## Facts

- Bell Microproducts, Inc. sent George R. McGurn a signed written employment offer that included a severance package of about $120,000 if he were terminated without cause during the first twelve months of employment.
- McGurn countersigned the offer letter but unilaterally altered a material term by crossing out “twelve” and substituting “twenty-four,” then initialed the change and returned the letter without otherwise calling the alteration to Bell’s attention.
- Bell employed McGurn and later terminated him without cause thirteen months after his start date.
- Bell refused to pay severance, asserting that the severance protection lasted only twelve months and that McGurn’s alteration was a counteroffer Bell never accepted.
- McGurn sued for severance in Massachusetts state court; Bell removed on diversity grounds. The parties agreed Massachusetts law governed.
- The district court granted summary judgment to McGurn, reasoning that Bell’s silence and conduct after receiving the altered letter constituted acceptance of the 24-month severance term.
- Bell appealed.

## Issues

1. Whether McGurn’s unilateral change to the severance duration created a counteroffer rather than an acceptance of Bell’s offer.
2. Whether, under Massachusetts contract law, Bell’s silence and subsequent conduct could be treated as acceptance by silence of McGurn’s counteroffer as a matter of law.
3. Whether genuine disputes of material fact existed regarding Bell’s actual or constructive knowledge of the alteration, precluding summary judgment.

## Decision

- The First Circuit vacated the district court’s grant of summary judgment for McGurn and remanded.
- The court held that summary judgment was improper because there were genuine issues of material fact about whether Bell knew or should have known of McGurn’s alteration when it received the countersigned letter.
- Because the effect of Bell’s silence depended on that knowledge question, the court ruled the “import” of Bell’s silence could not be determined as a matter of law on the record at summary judgment.

## Legal Principles

- A purported acceptance that changes a material term is generally treated as a counteroffer, not a mirror-image acceptance.
- Silence ordinarily does not constitute acceptance; acceptance by silence is exceptional and typically requires circumstances showing the offeree had reason to understand silence would operate as assent.
- For silence or inaction to constitute acceptance, the offeree must have knowledge (actual or properly imputed) of the offer or counteroffer and an opportunity to reject it.
- Summary judgment is improper where disputes of material fact could affect whether an exception to the no-acceptance-by-silence rule applies, including disputes about actual or constructive knowledge of altered terms.

## Conclusion

The First Circuit required fact development on whether Bell had actual or constructive notice of McGurn’s alteration before a court could treat Bell’s silence and continued employment relationship as acceptance of a counteroffer extending severance protection beyond twelve months.


McGurn v. Bell Microprods., Inc., 284 F.3d 86 (1st Cir. 2002)