Vahid Sedghi v. Patchlink Corporation, a Delaware Corporation

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2229
VAHID SEDGHI,
Plaintiff - Appellant,
v.
PATCHLINK CORPORATION, a Delaware Corporation,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:07-cv-01636-JFM)
Submitted: June 14, 2011 Decided: July 22, 2011
Before TRAXLER, Chief Judge, SHEDD, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.
Francis J. Collins, Darragh L. Inman, KAHN, SMITH & COLLINS,
P.A., Baltimore, Maryland; Clay M. Barnes, LAW OFFICE OF CLAY M.
BARNES, Towson, Maryland, for Appellant. John Alan Doran,
Juliet Speisman Burgess, Phoenix, Arizona; Steven M. Schneebaum,
GREENBERG TRAURIG, LLP, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Vahid Sedghi appeals a district court order granting
summary judgment against him in his action against his former
employer arising out of an alleged failure to honor a promise to
pay him a commission. We affirm in part, reverse in part, and
remand.
I.
Viewing the facts in the light most favorable to
Sedghi, as we must in reviewing a grant of summary judgment
against him, the record reveals the following. PatchLink was a
small software company based in Arizona. In 2004, a group of
venture capital firms invested approximately $35 million in the
company. At that time, the company was managed by its founder,
Sean Moshir, and his brother, Kourosh Moshir. Shortly after the
closing of the venture capital investment, Sean asked Sedghi,
whom he knew from college, to join the company.
On September 4, 2004, Sedghi signed PatchLink’s
standard employment agreement, the compensation portion of which
provided:
a. As compensation for the services provided by
employee under this AGREEMENT, EMPLOYER will pay
EMPLOYEE an initial annual salary of $135,000
b. Employer will provide
dollars . . . .
N/A stock option to the
employee . . . .

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c. Commission is paid according to PatchLink sales
policy.
d. There are no other compensation, incentive,
bonuses, payments, stocks, deferred payments,
deferred salary, stock options or any other
payment due to the employee other than what is
set forth in this agreement unless otherwise
added as amendment to this cont[r]act and signed
by both the EMPLOYEE and the president of the
company.
J.A. 353. Unlike with some PatchLink employees who had clearly
defined, written commission plans, no writing identified the
rate of Sedghi’s commission or what products or services would
warrant a commission. The agreement provided that it “shall be
construed and enforced in accordance with the laws of the State
of Arizona.” J.A. 358. Sedghi began work on September 7, 2004.
According to Sedghi and the Moshirs, around the time
that Sedghi signed his employment contract, Sean also orally
promised Sedghi that he would be entitled to a commission of one
percent of PatchLink’s sales. Sedghi would be paid this
commission in October 2005, at which time the parties would
memorialize this obligation in writing. However, the Moshirs
were no longer PatchLink employees by October 2005. The
obligation was never memorialized and Sedghi never received the
commission.
Sedghi brought this action against PatchLink—which is
now called “Lumension Security, Inc.”—asserting several claims
regarding PatchLink’s failure to pay him the commission he was

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allegedly promised. Among other claims, he alleged causes of
action for breach of contract, loss of commission under the
Maryland Wage Payment and Collection Law (“MWPCL”), and
promissory estoppel. Considering cross-motions for summary
judgment, the district court granted PatchLink’s motion and
denied Sedghi’s.
The district court ruled that Sedghi’s breach of
contract claim was governed by Arizona law and that it was
barred by the Arizona statute of frauds because the September
2004 oral promise to pay Sedghi a one-percent commission in
October 2005 could not be performed within one year of the
making of the promise. See Ariz. Rev. Stat. § 44-101(5). In
this regard, the court determined that there was no evidence
that Sedghi was entitled to any such commission if he left
PatchLink before October 2005.
As is relevant here, the court ruled that Sedghi’s
MWPCL claim was barred because there is no cause of action that
may be brought under the MWPCL for a promise that was not
enforceable under the statute of frauds. And, applying Maryland
law to Sedghi’s promissory estoppel claim, the court determined
that the claim failed because it was inequitable by its nature,
as we will explain.

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II.
Sedghi first argues that the district court erred in
ruling that his claim that he was promised a one-percent
commission as part of his compensation was barred by the statute
of frauds because the promise could not be performed within one
year. We disagree.
Sedghi does not dispute that the oral promise was made
more than one year prior to October 2005. However, he maintains
that it could have been performed in one year or less because
Sedghi was an at-will employee and PatchLink would have been
obligated to pay him his one-percent commission if he had been
terminated prior to October 2005. Although the district court
rejected this argument on the basis that there was no evidence
that the parties had agreed Sedghi would be entitled to any of
the commission if his employment terminated prior to October
2005, Sedghi simply argues that “there is no evidence whatsoever
in this record that PatchLink would not be obligated to pay
Sedghi his one percent commission on all sales prior to the
expiration of one year.” Brief of Appellant at 16. By
advancing only a conclusory argument, Sedghi has likely waived
the issue. See Eriline Co. S.A. v. Johnson, 440 F.3d 648, 653
n.7 (4th Cir. 2006) (holding that conclusorily assigning error
without providing supporting argument is insufficient to raise
issue). However, even if the issue were not waived, the

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district court correctly concluded that Sedghi forecasted no
evidence that he was promised any commission in the event that
he was no longer with the company in October 2005.
To the extent that the oral promise made in September
2004 required Sedghi to still be in the company’s employ in
October 2005 to become entitled to the commission, the district
court correctly concluded that the statute of frauds barred an
action to enforce that promise because, under the very terms of
such an agreement, performance could not be completed within one
year. Sedghi argues at length that the district court should
have considered parol evidence that the parties actually did
orally agree that he would be entitled to that commission. This
argument misses the point, however. That the parties actually
orally agreed that Sedghi would receive the commission does not
allow Sedghi to avoid the statute of frauds. To do that, he
needs a writing supporting his entitlement to the one-percent
commission that is signed by PatchLink’s representative. See
Ariz. Rev. Stat. § 44-101(5).
III.
Sedghi next challenges the district court’s conclusion
that the MWPCL does not confer a cause of action for enforcement
of a promise when an action on that promise is barred by the
statute of frauds. We disagree.

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The MWPCL requires each employer to pay its employee
“all wages due for work that the employee performed before the
termination of employment, on or before the day on which the
employee would have been paid the wages if the employment had
not been terminated.” Md. Code, Lab. & Empl. § 3-505(a).
Sedghi maintains that even if the applicable statute of frauds
would generally bar him from filing suit on the alleged oral
promise of a one-percent commission, he may bring an action
under the MWPCL. However, as the district court concluded,
there is simply no indication that the Maryland legislature
intended that the MWPCL would essentially trump the statute of
frauds or other prohibitions on the enforcement of certain
promises.1 Thus, the district court properly granted summary
judgment on this claim.
IV.
Sedghi finally argues that the district court erred in
granting summary judgment on his claim for promissory estoppel.
We agree.
1 Like the Arizona statute of frauds, the Maryland statute
of frauds prohibits the bringing of an action that cannot be
performed within one year of the making of the agreement unless
the agreement, “or some memorandum or note of it, is in writing
and signed by the party to be charged or another person lawfully
authorized by that party.” Md. Code, Cts. & Jud. Proc., § 5-
901.

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To prevail on a claim of promissory estoppel under
Maryland law, the plaintiff must show that there was “(1) a
clear and definite promise; (2) where the promisor has a
reasonable expectation that the offer will induce action or
forbearance on the part of the promisee; (3) which does induce
actual and reasonable action or forbearance by the promisee; and
(4) causes a detriment which can only be avoided by the
enforcement of the promise.” Pavel Enters. v. A.S. Johnson Co.,
674 A.2d 521, 532 (Md. 1996) (emphasis omitted). The district
court acknowledged that “[m]echanical application of these four
elements may seem to indicate that [Sedghi] does have a viable
promissory estoppel claim.” J.A. 918. The district court
nonetheless noted that Pavel requires that
in applying the fourth element, the trial court, and
not a jury, must determine that binding the defendant
is necessary to prevent injustice. This element is to
be enforced as required by common law equity courts—
the Plaintiff must have clean hands. This requirement
requires the further determination that justice
compels the result.
J.A. 918-19 (internal quotation marks and alterations omitted).
The court reasoned that under this principle, Sedghi’s
promissory estoppel claim was “by its nature . . . inequitable”:
It is based upon the assertion that (1) Plaintiff was
orally promised a substantial commission by his
college roommate, who was then an owner of defendant;
(2) the alleged promise was unenforceable under the
statute of frauds and inconsistent with the language
of the written employment agreement into which
Plaintiff entered; (3) Plaintiff was handsomely

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compensated for the work that he performed for
defendant without consideration of the alleged
commission; (4) Plaintiff bases his claim solely upon
the testimony of himself, his former college roommate,
and his former college roommate’s brother, and (5)
Plaintiff’s college roommate and his brother, as well
as plaintiff, would benefit from holding defendant
liable in this case because Plaintiff’s college
roommate and his brother have now started a business
that competes with Plaintiff.
J.A. 919.
We hold that the district court’s analysis is flawed.
Viewed in the light most favorable to Sedghi, as it must be at
the summary judgment stage, the forecasted evidence shows that
Sedghi and the Moshir brothers testified truthfully regarding
the commission promise. In that event, their prior relationship
would be irrelevant as would any other incentive the Moshirs had
to testify as they did. It appears that the district court, in
concluding otherwise, erred in making credibility determinations
at the summary judgment stage. Additionally, that Sedghi was
well compensated is not dispositive of his claim so long as
PatchLink’s promise nevertheless induced actual and reasonable
action or forbearance by him. Finally, that the statute of
frauds bars enforcement of the oral promise only supports
Sedghi’s promissory estoppel claim as it leaves promissory
estoppel as his only remaining possible avenue for relief for
the loss incurred. Thus, we conclude that the facts identified

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by the district court do not justify the grant of summary
judgment against Sedghi on his promissory estoppel claim.
V.
In sum, we reverse the grant of summary judgment to
PatchLink on Sedghi’s promissory estoppel claim but otherwise
affirm the district court’s judgment. We therefore remand to
the district court for further proceedings consistent with this
opinion.2 We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
2 PatchLink requests that we award it attorneys’ fees and
costs for defending this appeal. See Ariz. Rev. Stat. § 12-
341.01. We do not address this issue but leave it to the
district court to resolve at the appropriate time.

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