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Morgan Stanley Lawsuit Highlights Pitfalls of Emailed Employee Contracts

By Miriam Rozen August 23, 2018

Litigation pitting Morgan Stanley against one of its former sales assistants could have implications for its employees and those of other wirehouses.

That will be particularly true if the wirehouse employees receive — but don’t always read — emails sent by their employers to set employment conditions.

The wirehouse contends that if they’ve sent you an emailed contract, you’ve essentially agreed to the contract just by continuing to work.

In October Morgan Stanley is scheduled to file a response brief in the case, which is pending in the U.S. Court of Appeals for the Second Circuit.

But for this story, a Morgan Stanley spokesperson points to a lower federal court’s ruling issued in the lawsuit in May. In that lawsuit, filed last year, the former sales assistant, Roberta Antollino, alleges the wirehouse discriminated against her because of her age and gender.

In the lower court ruling in Connecticut, U.S. District Judge Vanessa L. Bryant decided an employment-arbitration agreement between Morgan Stanley and Antollino was enforceable, even though the former sales assistant claimed she never read a 2015 email that the wirehouse sent notifying her she would be entered into such a contract. Based on that enforceability, Bryant ruled Antollino must arbitrate her age- and gender-discrimination claims.

“[R]easonable people in the position of the parties would have known about the terms and the conduct that would be required to assent to them,” Bryant writes about the email Morgan Stanley sent Antollino.

“This mishmash that they say is a contract is not a contract,” argues Gregory Antollino, a New York lawyer who represents the former Morgan Stanley sales assistant and who is also her nephew. His message to Morgan Stanley: “You are not going to get away with this in this case and not in future cases.”

His arguments focus particularly on Connecticut, where his aunt was employed. That state’s laws governing contracts’ enforceability apply and those are less lenient than other states’ statutes, Antollino says.

With her appeal, first filed in July, Antollino seeks to reverse Bryant’s ruling. His aunt “presents abundant evidence that, under Connecticut law, there was no enforceable agreement between these litigants to arbitrate,” her appellate brief states.

She is entitled to a trial on the enforceable contract question, the brief states. Morgan Stanley persuaded the lower court by citing federal, Georgia, New Jersey and New York laws, but did not address fully Connecticut laws governing contracts, Antollino’s brief adds.

The legal fight between Antollino and Morgan Stanley began in earnest in October 2017 when she filed her lawsuit alleging the wirehouse terminated her after working for 25 years because of her gender and age; she was 69 at the time. In 2015 Morgan Stanley managers wrote her up for what her lawsuit alleges was a client “peccadillo” related to compliance, her lawsuit states.

Around that time, Morgan Stanley sent her the email that is the subject of the dispute pending in the Second Circuit.

The email states: “By continuing your employment with Morgan Stanley, you accept and agree to, and will be covered and bound by the terms of the Arbitration Agreement and the arbitration provisions of the CARE Guidebook, unless you elect to opt out of the CARE Arbitration Program by completing, signing and submitting an effective CARE Arbitration Program Opt-Out Form by October 2, 2015.”

The email adds: “If you remain employed and do not timely complete, sign and submit an effective CARE Arbitration Program Opt-Out Form, the Firm’s records will reflect that you have consented and agreed to the terms of the Arbitration Agreement and the arbitration provisions of the CARE Guidebook. You will not have an opportunity to opt out at a later date.”

In her ruling that the Morgan Stanley email created an enforceable contract, Bryant concludes that it gave Antollino “sufficient notice of the agreement.”

Antollino’s assertion that “she did not actually read the email” does not determine if she was noticed, Bryant writes. Antollino was given reasonable time for an opt-out, the judge adds.

His aunt didn’t remember any email, Antollino, the nephew, says.

In her appellate brief, he argues Antollino “never signed anything agreeing to the statement in the email and never agreed to arbitrate anything with Morgan Stanley in writing at any time.” He adds: “The email is confusing and does not say [she is] giving up any of the rights and remedies [she has] under civil rights law, including a public jury trial.”

(Getty)

Although Bryant terms email missives “the new standard of everyday communication” and contends “employees must assiduously pay attention to each of them – every sentence, implicitly – or potentially lose their jobs or other benefits of employment,” Antollino writes in his aunt’s appellate brief, those conclusions fail to support the notion that an email creates a contract.

“Email is precisely the improper way to deliver notice of a contract – at least not a contract described incompletely and deceptively,” Antollino’s brief argues.