BigLaw "guaranteed offer" meaning? Forum

[ClubberLang]

Can you please just let this at-will employment debate go? The lawyers who actually do L&E have said your argument has no legs, it certainly doesn't have any relevance to anyone currently facing salary cuts/deferrals, and at this point it's become a pissing contest about hypotheticals.

Nice bit of objectivity there, nix. You aren't even doing objct and I the courtesy of "both-sidesing" the issue. objct and I aren't the ones making over-the-top (and frankly reckless) assertions. And I'm not aware Clubber's a L&E litigator. (If he is, I hope his posts here aren't representative of his actual legal acumen.)

Hot takes from the site mods. Why are you two allowed to be insulting?

Do you have any authority to support your positions? One of you asked if I had conducted a 50 state survey - surely you've surveyed at least one to reach the conclusion that I lack legal acumen, am reckless, and am not familiar with how litigation works.

Just to talk about the merits - what have you lost if a firm doesn't follow through on a guaranteed offer? "Oh, Your Honor, the other firm historically has a 100% offer rate. If I had accepted their summer offer, and went there, it almost certainly would have resulted in a real offer, and then a year and a half later I would have made some money." Good luck with that. Also I expect that many jurisdictions draw a hard line at "you can't reasonably rely on future income in at-will employment."

But please, carry on with your insults.

[QContinuum]

Hot takes from the site mods. Why are you two allowed to be insulting?

Every TLSer is allowed to be insulting (within the bounds of no profane ad hominems, no racism, no sexism, etc.). Mods don't have less freedom of speech than non-mods.

Do you have any authority to support your positions? One of you asked if I had conducted a 50 state survey - surely you've surveyed at least one to reach the conclusion that I lack legal acumen, am reckless, and am not familiar with how litigation works.

I mean, you wrote "[t]here is literally no legal recourse here". A good lawyer would never give that kind of ironclad advice based on nothing more than gut instinct (you admit to having done zero legal research). That's bad TV lawyer territory, not ethical counselor behavior.

objct and I didn't make any predictions about chances of success. You're the one who made the assertion. You don't get to make a wild claim and put the burden on us to disprove it.

"Your Honor, you should sanction opposing counsel for abuse of process!" "Why, what did he do?" "Your Honor, opposing counsel bears the burden of proving he shouldn't be sanctioned!"

[nixy]

Can you please just let this at-will employment debate go? The lawyers who actually do L&E have said your argument has no legs, it certainly doesn't have any relevance to anyone currently facing salary cuts/deferrals, and at this point it's become a pissing contest about hypotheticals.

Nice bit of objectivity there, nix. You aren't even doing objct and I the courtesy of "both-sidesing" the issue. objct and I aren't the ones making over-the-top (and frankly reckless) assertions. And I'm not aware Clubber's a L&E litigator. (If he is, I hope his posts here aren't representative of his actual legal acumen.)

There's no point in "both-sidesing" an issue when one side is wrong (see: evolution v. creationism). It seems WAY more reckless to claim there is some sort of recourse via promissory estoppel than to dismiss that claim. (You assert to Clubber that you didn't make any predictions about chances of success, but I don't see how you can claim that the logic behind the argument is sound without also actually making some kind of claim that such an argument could succeed.) Other L&E lawyers (both here and others I know elsewhere) have confirmed this theory is bad. The only reason I'm posting about it is that I am frankly absolutely baffled as to why you and objct have glommed onto this idea with such enthusiasm. It comes across as sounding really really uninformed and out of touch. (For instance, you talk about "new theories" and "no precedent," but this isn't a new idea at all. This is discussed extensively in any employment law class. You're not creatively extending the law here at all.)

Also honestly the comeback of "have you done a 50 state survey" when all this amounts to is spitballing on the internet is pretty ludicrous. We're not in court; and given how many people have tried to explain that this idea doesn't fly, it is on the proponents of it to come up with some indication that it would succeed. Regardless, continuing to discuss it in the context of people trying to figure out what to do right now in response to salary cuts/deferrals/possible rescission of offers seems pretty irresponsible.

[TexasBigLaw]

Can you please just let this at-will employment debate go? The lawyers who actually do L&E have said your argument has no legs, it certainly doesn't have any relevance to anyone currently facing salary cuts/deferrals, and at this point it's become a pissing contest about hypotheticals.

Not to mention that every biglaw offer letter says, in at least one way if not two or three, that the offer is not a guarantee of a job and is subject to be revoked at any time. Hard to say reliance is reasonable when the offer explicitly tells you otherwise.

Anyway, to the OP: I think it's too speculative right now. If things bounce back in a few months, then I think we may see some firms who were already struggling take some hard hits, but most will probably be able to keep their offers. If things continue as-is for the rest of the year or get worse... then I would not be surprised to see a lot of firms rescinding offers, or at least furloughing. If they do, I imagine it won't be announced until after OCI, so they don't take the recruiting hit. With OCI delayed until January, that likely means no public announcements until next Feb/March.

[beepboopbeep]

Reddit-quality lawyering, Q. Stick to your day job.

[Newbie2TLS]

Can you please just let this at-will employment debate go? The lawyers who actually do L&E have said your argument has no legs, it certainly doesn't have any relevance to anyone currently facing salary cuts/deferrals, and at this point it's become a pissing contest about hypotheticals.

Nice bit of objectivity there, nix. You aren't even doing objct and I the courtesy of "both-sidesing" the issue. objct and I aren't the ones making over-the-top (and frankly reckless) assertions. And I'm not aware Clubber's a L&E litigator. (If he is, I hope his posts here aren't representative of his actual legal acumen.)

Two theories generally exist to side step the at-will doctrine in these circumstances. First, there’s promissory estoppel, which requires a showing that you detrimentally and reasonably relied on a promise that was made clearly to you, causing you harm. Second, there’s breach of the covenant of good faith and fair dealing, which prevents the use of the at-will doctrine to undermine the benefit/purpose of a contract you entered into. Both theories are primarily used when someone leaves their current job in reliance on accepting an offer from another employer, only to have that offer be rescinded, leaving the person jobless. In that scenario, it’s easy to argue that, for promissory estoppel, there was reasonable and detrimental reliance since the temporal proximity is clear. Person had a job, they got another, quit their job because of the new one, but new one fell through, leaving them harmed. It’s also arguable that there was a contract and the at-will doctrine was misused to undermine the purpose of it since the offer was accepted, the job was about to start fairly soon, but was terminated abruptly.

In your situation, there is no offer or detriment. The offer happens at the end of your summer program which hasn’t even started (even if you’ve been told it’s guaranteed, whatever that means). And you never “had” jobs at any other firms that you gave up, you just had offers to gig during their summer there (offers that could’ve been rescinded in your specific case, regardless if it didn’t happen to anyone else, let alone the fact that you may very well not have gotten an offer for regular work after the summer was over). Even if you had an offer or detriment to show, you have a whole Avengers movie plotline in between the offer and detriment. An economy in the toilet, layoffs and salary cuts done by V50 firms, you not even graduating law school yet, not even passing the bar yet, not even doing the summer associate gig yet, your failure to look for alternative work during 3L year, etc.

But there is one effective recourse, though. Public shame/disclosure. In recessions, the most obvious people to cut are incoming first years because it takes at least 6 months to train them to do basic work of the group, and they get slashed from the bill by clients easily, essentially guaranteeing that for the first year and a half they’re almost pure dead weights. But firms try not to do that because future top law students worth hiring will be able to look it up and avoid those firms during recruitment.

[objctnyrhnr]

Can you please just let this at-will employment debate go? The lawyers who actually do L&E have said your argument has no legs, it certainly doesn't have any relevance to anyone currently facing salary cuts/deferrals, and at this point it's become a pissing contest about hypotheticals.

Not to mention that every biglaw offer letter says, in at least one way if not two or three, that the offer is not a guarantee of a job and is subject to be revoked at any time. Hard to say reliance is reasonable when the offer explicitly tells you otherwise.

Anyway, to the OP: I think it's too speculative right now. If things bounce back in a few months, then I think we may see some firms who were already struggling take some hard hits, but most will probably be able to keep their offers. If things continue as-is for the rest of the year or get worse... then I would not be surprised to see a lot of firms rescinding offers, or at least furloughing. If they do, I imagine it won't be announced until after OCI, so they don't take the recruiting hit. With OCI delayed until January, that likely means no public announcements until next Feb/March.

Using that logic, promissory estoppel could never carve an exception to at will employment. But we already know it does in some situations.

At the end of the day, there’s no caselaw that’s rejected the idea (that we know of right now but I’m not going to use firm resources to confirm that).

If it’s unreasonable to rely on a post-SA offer then the whole system kind of falls apart doesn’t it?

And let’s not forget that when the “little guy” (a consumer, etc.) gets totally screwed (here the law student), most judges I know will typically at least consider letting them past a MTD or even a MSJ if there is no no-point caselaw saying they can’t. And as we’ve established, here, there isn’t (that we know of).

So when the equities at least arguably favor plausible relief, as does policy, there are already at will employment exceptions, and there’s no caselaw saying it’s illegitimate, I continue to be confused as to why everybody is so convinced that this is a nonstarter.

Maybe a “yeah it’d be an extreme uphill battle IMO but with the right judge maybe you get to trial or at least past the MTD” would be a much more reasoned response.

[QContinuum]

It seems WAY more reckless to claim there is some sort of recourse via promissory estoppel than to dismiss that claim. (You assert to Clubber that you didn't make any predictions about chances of success, but I don't see how you can claim that the logic behind the argument is sound without also actually making some kind of claim that such an argument could succeed.)

You have it exactly backwards, nix. Clubber asserted there was "literally no legal recourse here". objct and I were like, wow, really, 0% chance? If there's directly on-point caselaw foreclosing any legal remedy, we'd like to know about it.

Clubber made the claim of 0% chance. Asking Clubber to support his claim (which he admitted he couldn't, having done zero legal research) isn't objct and I "making some kind of claim that such an argument could succeed".

Also, appreciate if you could explain to me why it's "WAY more reckless" to question Clubber's claim than to accept it at face value. Remember that Clubber himself has admitted to doing zero legal research - his claim's based on nothing more than gut instinct.

you talk about "new theories" and "no precedent," but this isn't a new idea at all. This is discussed extensively in any employment law class. You're not creatively extending the law here at all.)

Your employment law class extensively discussed law firms revoking offers?

This is really kind of a sui generis scenario. When law firms extend return offers to summer associates, they take these summers off the job market for over an entire calendar year. Sure, it's possible a judge would say this is exactly the same as a typical job offer that calls for a candidate to start in 2 weeks. But it's also possible a judge would say, no, this is distinguishable because these students are taking themselves off the job market in reliance on this offer for over a year. Arguably the possibility is low, but it's not zero (especially in, say, California). I get that Clubber thinks it isn't distinguishable, and I get that you, nix, agree with Clubber's hot take, but gut instinct isn't the same as actual precedent. In the absence of on-point caselaw, why are you so confident 0% of judges would disagree with you?

Regardless, continuing to discuss it in the context of people trying to figure out what to do right now in response to salary cuts/deferrals/possible rescission of offers seems pretty irresponsible.

It's very clear objct and I aren't encouraging anyone to sue. What's "pretty irresponsible" is the uninformed hot takes about how law firms can do anything and there's "literally no legal recourse". Words matter. If Clubber had said there's 'literally no practical recourse", sure, he's entitled to his opinion about what's practical and what isn't, and I might even agree with that proposition. But on a legal forum, we should be a bit more cautious about saying, without a shred of supporting caselaw, that there's "literally no legal recourse".

[objctnyrhnr]

Today ATL reported that Nixon Peabody canceled its summer program with no guarantees. Assuming this is true, I want to ask a question that relates to the thread topic but veers slightly.

Before nix-“untested theories never work”-y (see what I did there?) jumps in and throws a fit about my position on this, I want to ask: isn’t it at least conceivable that those SAs have some recourse there notwithstanding what phrases their offer letters might have included in an attempt to head off such an argument?

And for the sake of the question let’s assume that during OCI the hypothetical plaintiff weighed offers between NP and another higher ranked firm (call it a v30) with a full on SA program and chose NP cause of some intangible like work-life balance. They relied on NP’s offer and withdrew from the v30 (ie relied on NPs offer to their detriment).

can it be that these would-be NP SAs are just SOL?

Truly from an equitable perspective, I have such a difficult time swallowing that. Or, more specifically, accepting that a judge would swallow that as a matter of law (ie at MTD or MSJ).

At the very knowing risk of starting the whole debate over again with a slightly different hypo, I am wondering what other people (perhaps with the exception of nixy) think, here.

(And let’s avoid discussion the practical concerns about getting blackballed by the industry and the effort not being worth the risk, etc. I get those concerns, but they are at best ancillary to my question.)

[QContinuum]

And for the sake of the question let’s assume that during OCI the hypothetical plaintiff weighed offers between NP and another higher ranked firm (call it a v30) with a full on SA program and chose NP cause of some intangible like work-life balance. They relied on NP’s offer and withdrew from the v30 (ie relied on NPs offer to their detriment).

can it be that these would-be NP SAs are just SOL?

I think it depends on the judge (to some extent) and on the state (to a perhaps greater extent). A 2L recruited from California who brings suit in California could have a greater chance of success than a 2L recruited from NY who brings suit in NY. And, IIRC, in the earlier thread someone mentioned NJ recognizing an equitable exception to at-will in some contexts. So, a 2L who lives in Jersey City might be in a better situation than a 2L who lives in the Village.

I do think this set of facts is one that might drive caselaw development. Clearly a plaintiff in this case would have an uphill battle due to lack of precedent, while a defending law firm would cite 100 not-quite-applicable at-will employment cases from nixy's old employment law casebook and argue that the 100 cases should simply be extended to apply to the SA context. But get the right judge, in the right state...

Damages would probably cap out at pay for the summer, though (maybe arguably supplanted by expected value of summer events like ballgames and concert tickets, but maybe not given that summer events wouldn't be possible this year anyway due to the coronavirus). Even at historically 100% offer rate firms, the defending law firm could simply say they always had the right to no-offer folks and every summer knew that when they accepted the summer offer, which is true. So we'd be looking at max damages of just under $40k, less any stipend the firm offered when they axed the summer program.

[Anonymous User]

can it be that these would-be NP SAs are just SOL?

Yes, it can be that SAs would be SOL in most jurisdictions. In Texas (at least as of summer of 2019), there is a court split as to whether a claim for promissory estoppel/detrimental reliance is available in the employment context. The majority of courts have held that a promise to provide employment that is subject to termination at any time or for any reason does not provide any assurances about the employer's future conduct, and does not provide a basis for detrimental reliance as a matter of law. See, e.g., Collins v. Allied Pharmacy Mgmt., 871 S.W.2d 929 (Tex. App.--Houston [14th Dist.] 1994, no writ).

A minority of Texas courts have held that if an individual acts to his detriment in reliance upon the promise of employment, or parts with some legal right or sustains some legal injury as the inducement for the employment agreement, then there is sufficient consideration to bind the employer to its promise. However, under Texas law, only reliance damages are recoverable for a promissory estoppel claim, which are measured as the out-of-pocket expenditures made by a party toward execution of the promise (for example, moving or traveling expenses related to relocating for the job offer that was revoked). Compensatory and expectancy damages, such as past or future lost earnings or benefits, and consequential damages resulting from the failure to perform the promise are not considered reliance damages and are not recoverable.

This is of course going to be jurisdiction-specific and should not be construed as legal advice, even for Texas. Do your own research or consult an attorney if this situation is applicable to you.

[QContinuum]

I also decided to do some legal research just for the heck of it. This is theoretical, very preliminary, and not legal advice to anyone, in any jurisdiction, on any facts.

Here are some cases supporting the possibility of a legal remedy:

• Goldstein v. Unilever (Conn. Super. 2004): Promissory estoppel held to apply to revocation of at-will employment on day one. Prospective employee's reliance on the job offer was reasonable, the employer's conduct was calculated to induce the prospective employee to believe she would have a job, and the prospective employee ceased looking for a job in reliance on the offer.
• Peck v. Imedia (NJ Super. 1996): Promissory estoppel held to apply to revocation of at-will employment offer before prospective employee started the job. Prospective employee's reliance on the job offer - in potentially losing her business and moving to NJ - was reasonable. Further, the employer's lack of candor in informing the prospective employee promptly of the rescission of the offer showed a lack of good faith.
• Schley v. Microsoft Corp. (D.N.J. 2008): The court held that the prospective employee's promissory estoppel claim survived the MTD stage because it alleged (1) that the employer made a clear and definite promise that it was giving the prospective employee a highly paid position, (2) that the employer expected the prospective employee would quit his job and purchase a new home in reliance on this promise and actually encouraged him to do so, (3) that the prospective employee did so in reasonable reliance on the employer's promise, and (4) that, as a result, the prospective employee has suffered definite and substantial losses.
• Goff-Hamel v. Obstetricians & Gynecologists, P.C. (Nebraska 1999): Promissory estoppel held to apply to revocation of at-will employment offer before prospective employee started the job. Prospective employee's reliance on the job offer - in quitting her previous job - was reasonable.
• Bower v. AT&T Tech., Inc. (8th Cir. 1988): Promissory estoppel at least potentially applies to revocation of at-will employment offer where the offer was sufficiently detailed. The court found it persuasive that the prospective employees were "continuously reassured" they would be hired as soon as possible and that they were encouraged to wait for the offered jobs. The court considered it reasonable for the prospective employees to have turned down job offers and delayed their search for other employment in reliance on the job offer.

I'm sure there are many more. I only looked at the first ten cases.

[thatlawlkid]

i gotta know what you billed this research as.

[lawdude31]

i gotta know what you billed this research as.

It's researching CYA

[objctnyrhnr]

Thanks QCont. I wasn’t going to use firm resources to get more support for my theory, but I’m glad you did!

I’ll be interested to see if the naysayers arrive to do what they do best—naysay (or, in nixy’s case, baselessly call me “weirdly defensive” about this whole thing haha).

But in all seriousness I think lawyers debating extremely pertinent hypos like this is a solid thing that can, and perhaps even should, occur on TLS.* I’m all for reasoned debate (thank you to the poster above you as well), but I’ll continue to snap at any of the narrow-minded linear-thinking folk who try to shut down my theory** based on their own (at least arguably misguided) intuitions.


*this is just a hypo of my own creation. I lack any personal stake in the matter, as I am a midlevel at a no-cut firm. It’s merely a thought experiment perhaps propelled by my dislike of when “the man” screws over “the little guy”

**i refer to this as “my theory“ but it is NOT legal advice. If you are thinking about acting upon it, you really should contact an employment lawyer before doing anything. This footnote is the most important part of this whole post.

[Anonymous User]

Former Nixon Peabody summer associate and then associate here. Problem with the fact pattern is that NP is not a 100% offer firm, no matter what they tell the summers. They give out cold offers left and right.

It really sucks for the current summers, I totally feel them. But NP is a disaster and this is a blessing in disguise for these summers, even if it doesn’t feel like it.

Not only has NP laid off associates, staff, cut pay for associates, they also just cut all staff pay by 20%. So that legal assistant making 55k in NYC/DC, yeah well now they are making 20% less. Even all the other biglaw firms had the heart to not cut staffs salaries below a 100k threshold. And mind you - this is after NP has already fired approximately 20% of the staff and associates at the firm!

There are a few good people at NP, but they have all been leaving pre-covid. I don’t think it will get better for them.

[ksm6969]

In your situation, there is no offer or detriment.

Yeah, that's the exact (hypothetical) issue-- they guaranteed you an offer and it never came. It's not (exactly) like a revoked offer.

The question is: 'was the guarantee of an offer contractually binding on the firm?' which then turns on a number of factors, primarily including whether employee provided any consideration or bargained for detriment (we are not talking about promissory estoppel detrimental reliance here, but bargained for detriment). I dont know how these 'guaranteed offers' are being worded, and what they require on the part of the potential employee. If they require that the potential employee "doesn't work for another firm over the summer" to qualify, or they require that the employee "complete remote training for the firm," or that the 'employee register for the NY state bar", or require basically that the employee does or doesnt do anything to qualify for the guaranteed offer, then the guarantee of an offer can become binding once the employee performs-- no promissory estoppel needed (there would still be concerns with the definiteness of the guarantee of an offer, as well as what the damages are for breach of a contract to make an offer for at-will employment, which would depend on state and probably come down to reliance damages, but in a different way then promisorry estoppel). You essentially get into 'formal contract contemplated' / 'agreement to agree' land, which is fact specific and nobody can predict. If the "guaranteed offers" require that the employee does absolutely nothing, then you would have to rely on promissory estoppel which would be a tough case.

[jacketyellow]

Don't you guys have stuff to do?

[objctnyrhnr]

Former Nixon Peabody summer associate and then associate here. Problem with the fact pattern is that NP is not a 100% offer firm, no matter what they tell the summers. They give out cold offers left and right.

It really sucks for the current summers, I totally feel them. But NP is a disaster and this is a blessing in disguise for these summers, even if it doesn’t feel like it.

Not only has NP laid off associates, staff, cut pay for associates, they also just cut all staff pay by 20%. So that legal assistant making 55k in NYC/DC, yeah well now they are making 20% less. Even all the other biglaw firms had the heart to not cut staffs salaries below a 100k threshold. And mind you - this is after NP has already fired approximately 20% of the staff and associates at the firm!

There are a few good people at NP, but they have all been leaving pre-covid. I don’t think it will get better for them.

I don’t see the relevance of whether there is a guaranteed offer at the end, other then practical considerations and/or damages. They promised a SA, that was relied upon in decision to withdraw from other spots (ie detriment), and now they said no. That’s the issue, here, as I see it.

[QContinuum]

Thanks QCont. I wasn’t going to use firm resources to get more support for my theory, but I’m glad you did!

I honestly wish I'd done it earlier. Only took me like 5 minutes - just typed in some keywords and glanced over the first ten results that popped up. Would've (hopefully) short-circuited all those pages of snark from the "gut instinct-ers".

Does your firm not have an unlimited subscription to Lexis/Westlaw? My firm pays a flat rate and only gets hit with additional charges if someone accesses an out-of-plan doc.

[objctnyrhnr]

Thanks QCont. I wasn’t going to use firm resources to get more support for my theory, but I’m glad you did!

I honestly wish I'd done it earlier. Only took me like 5 minutes - just typed in some keywords and glanced over the first ten results that popped up. Would've (hopefully) short-circuited all those pages of snark from the "gut instinct-ers".

Does your firm not have an unlimited subscription to Lexis/Westlaw? My firm pays a flat rate and only gets hit with additional charges if someone accesses an out-of-plan doc.

No they do, but it needs to be linked to a matter number. I mean in theory I could have linked to the pitch or pro bono matter number (ie not associated with a client) but eh, it made me nervous.

[QContinuum]

No they do, but it needs to be linked to a matter number. I mean in theory I could have linked to the pitch or pro bono matter number (ie not associated with a client) but eh, it made me nervous.

We have personal numbers! And I know it's not uncommon for folks to do personal research.