                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 14-2352


JOHN R. KOLB, JR.,

                 Plaintiff - Appellant,

           v.

ACRA CONTROL, LTD., d/b/a ACRA Control, Inc.; ACRA CONTROL,
INC., other ACRA U.S.A.,

                 Defendants – Appellees,

           and

CURTISS-WRIGHT CONTROLS, INC.,

                 Defendant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:12-
cv-02782-PWG)


Argued:   September 16, 2015                 Decided:   November 20, 2015


Before KING, KEENAN, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Ian Andrew Cronogue, MURRAY, CRONOGUE & WERFEL, P.L.C.,
Alexandria, Virginia, for Appellant.      Howard Ross Feldman,
WHITEFORD, TAYLOR & PRESTON L.L.P., Baltimore, Maryland, for
Appellees. ON BRIEF: Richard Murray, MURRAY, CRONOGUE & WERFEL,
P.L.C.,   Alexandria, Virginia,   for  Appellant.     Aaron  L.
Casagrande, Christopher C. Jeffries, WHITEFORD, TAYLOR & PRESTON
L.L.P., Baltimore, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

      This appeal arises out of an employment arrangement between

John R. Kolb (Kolb) and ACRA Control, Ltd. (ACRA Ireland).                            In

1999, ACRA Ireland hired Kolb as president of its new wholly-

owned     American     subsidiary,   ACRA      Control,       Inc.      (ACRA    USA).

During employment negotiations, Kolb and ACRA Ireland agreed to

a Performance Incentive Compensation Plan (PICP), under which

Kolb would be granted options to purchase shares of ACRA Ireland

if ACRA USA’s sales met certain benchmarks.                    Although ACRA USA

met those benchmarks in at least some years, Kolb never received

any options under the PICP.

        Kolb filed this action, alleging that ACRA Ireland breached

the PICP by failing to issue him share options and that ACRA USA

was unjustly enriched.         The district court granted ACRA Ireland

and ACRA USA’s (collectively, the “ACRA entities”) motion for

summary judgment, finding that Kolb had waived his rights under

the   PICP.      The    district   court     also    denied    Kolb’s        motion   to

amend.    For the reasons below, we affirm.



                                        I.

        On February 28, 1999, ACRA Ireland, an Irish corporation,

formed    ACRA   USA,    a   Maryland   corporation,          as   a    wholly-owned

subsidiary.      Both corporations supply real-time data processing

ground    stations     and   airborne   data        acquisition        and   recording

                                        3
systems to the aerospace industry.          ACRA Ireland hired Kolb as

president of ACRA USA.      Kolb also served as ACRA USA’s secretary

and treasurer.     Fergal Bonner, ACRA Ireland’s managing director

at the time, negotiated an employment agreement with Kolb.               At

the same time the parties entered into the initial employment

agreement, they also executed the PICP.

     Under   the   PICP,   Kolb   would   receive   options   to   purchase

shares of ACRA Ireland if certain conditions were satisfied:

     [ACRA Ireland] agrees that when the average turnover
     (ATO) of [ACRA Ireland] due to US Sales, as defined,
     exceeds one million ($1,000,000) dollars, [Kolb] will
     be granted an option to purchase 2,159 ordinary shares
     of one (1) Irish pound each in [ACRA Ireland] at the
     option price defined in the paragraph below. For each
     successive increase of one ($1,000,000) Million in ATO
     as defined, [Kolb] will be granted an option to
     acquire an additional 2,159 ordinary shares of one (1)
     Irish pound each in [ACRA Ireland].       The maximum
     number of shares available to be granted to [Kolb]
     will be 10,795 ordinary shares of one (1) Irish pound
     each.

J.A. 420.    The PICP defined ATO as “the total sales revenue of

[ACRA Ireland] in the US, for the current fiscal year plus the

previous fiscal year, divided by two (2) corresponding to the

previous two fiscal years.”        J.A. 421.    The share options were

to be issued at a price of 10 Irish pounds per share.              The PICP

was to be “in effect and maintained for a minimum of five (5)

years during the period of employment unless mutually agreed in

writing.”    J.A. 420 (emphasis in the original).




                                     4
      ACRA Ireland did not calculate the ATO at any point during

Kolb’s    employment.         For   the       first    five     years    of     Kolb’s

employment, ACRA Ireland did not calculate the ATO because ACRA

USA’s revenue never reached $1 million.                     For the remainder of

Kolb’s employment, 2004 to 2011, ACRA Ireland did not calculate

the ATO because it believed that the PICP only had a five-year

term and had therefore expired in 2004.                 While the ATO for these

years—-had    it   been     calculated—-likely         would    have    exceeded    $1

million, ACRA Ireland never granted Kolb any share options under

the PICP during his employment.

      In addition to the PICP, Kolb and ACRA Ireland entered into

two   other   share    option    agreements.           In    2003,     ACRA    Ireland

offered Kolb an option to buy 2,268 shares of ACRA Ireland for

€31.96 per share. 1       The 2003 option agreement did not reference

the   PICP.    Kolb    purchased    100       shares    under    the    2003    option

agreement.     In October 2010, Curtiss-Wright Controls (UK) Ltd.

(Curtiss-Wright       UK)     entered     into        negotiations       with     ACRA

Ireland’s shareholders to purchase all of the outstanding ACRA

Ireland shares.       In November 2010, ACRA Ireland offered Kolb an

option to buy 2,168 shares of ACRA Ireland for €76.00 per share.

Again, the 2010 option agreement did not reference the PICP.

      1Between the execution of the PICP and the execution of the
2003 option agreement, Ireland switched its currency from the
Irish pound to the euro.    At the time of conversion, €1.00 was
equivalent to about 0.79 Irish pounds.


                                          5
Kolb purchased all 2,168 shares under the 2010 option agreement,

conditioned on the completion of Curtiss-Wright UK’s proposed

purchase of all the outstanding ACRA Ireland shares.                              In his

notice       exercising      the     2010    option,       Kolb    “confirm[ed]         and

acknowledge[d]” that apart from the 2,168 shares acquired by

exercising        the   2010     option     and    the    100   shares      acquired     by

exercising        the     2003     option,    he    had    “no     other       rights   or

entitlements in respect of Shares.”                 J.A. 574.

       On July 28, 2011, Curtiss-Wright UK finalized its purchase

of all the outstanding ACRA Ireland shares with the execution of

the    Share      Purchase     Agreement     (SPA).       The     SPA    was   signed    by

Curtiss-Wright and ACRA Ireland’s shareholders, including Kolb.

The SPA, which is 103 pages, states:

       The Sellers 2 have agreed to sell and the Buyer has
       agreed to purchase the Shares on the terms and subject
       to the conditions of this Agreement.

       The Shares represent the entire issued share capital
       of the Company.

J.A.       449.     The    SPA     and    related     documents         contain   several

warranties and representations relevant to the current dispute.

       The SPA provides that “each Seller shall irrevocably waive

any claims against [ACRA Ireland or any subsidiary,] its agent,

or employees which he/she may have outstanding at Completion.”



       2
       The SPA defines “Sellers” as the “legal and beneficial
owners of the Shares,” which includes Kolb. J.A. 449, 480.


                                             6
J.A. 464.   Schedule 4 to the SPA, which contains the sellers’

warranties, provides:

     The Shares comprise the whole of the allotted and
     issued share capital of [ACRA Ireland]. There are no
     shares issued or allotted in [ACRA Ireland or any
     subsidiary] which are not legally and beneficially
     owned   by    the    Sellers,  [ACRA  Ireland]  or   a
     [subsidiary].     At Completion there is no agreement,
     arrangement or obligation in force which calls for the
     present or future allotment, issue or transfer of, or
     the grant to any person of the right (whether
     conditional or otherwise) to call for the allotment,
     issue or transfer of, any share or loan capital of
     [ACRA Ireland or any subsidiary] . . . .

J.A. 491.   Schedule 4 also provides that neither ACRA Ireland

nor a subsidiary “has offered nor is proposing to introduce any

. . . share option/purchase or retention scheme for any employee

or other person” and that “[t]here are no claims in existence,

pending, or threatened against [ACRA Ireland or any subsidiary]

. . . by a current or former officer or employee in relation to

his terms and conditions of employment or appointment.”           J.A.

515–16.

     Schedule 3 of the SPA requires a “letter in the Agreed Form

from each of the Sellers to [ACRA Ireland and its subsidiaries]

acknowledging that the Seller has no claim against the relevant

company other than for compensation in relation to wages and

salary due for the last month.”       J.A. 489.   The same day the SPA

was executed, Kolb delivered the letter required by Schedule 3

to ACRA Ireland.   The letter stated:


                                  7
      I have no claim or right of action of any kind
      outstanding against [ACRA Ireland or any subsidiary]
      or any . . . officers or employees arising from my
      ownership of shares . . . or otherwise. To the extent
      that any such claim exists or may exist, I irrevocably
      waive such claim and release [ACRA Ireland and any
      subsidiary], its officers and employees from any
      liability in respect thereof.

J.A. 598.

      Kolb admits that he forgot about the PICP sometime between

when it was executed in 1999 and the execution of the SPA and

related documents in 2011.           Approximately one year after signing

the SPA, Kolb filed this action for breach of contract against

ACRA Ireland, arguing that ACRA Ireland breached the PICP by

failing     to    issue    share    options        despite    sales    meeting     the

requisite ATO. 3         A subsequent amended complaint added an unjust

enrichment       claim    against    ACRA       USA.   On     May    16,   2014,   the

district court granted the ACRA entities’ motion for summary

judgment, finding that Kolb had waived his rights under the PICP

by executing the SPA and related documents.                   Kolb filed a motion

for   reconsideration,       which    the       district     court   denied.       Kolb

timely appealed. 4




      3Kolb's original complaint also asserted breach of contract
claims against ACRA USA and Curtiss-Wright USA.      The district
court disposed of these claims on Curtiss-Wright USA’s motion
for summary judgment and ACRA USA’s motion to dismiss.       Kolb
does not contest either ruling.
     4 Kolb also appeals the district court’s denial of Kolb’s

second motion to amend, which sought to add a claim against ACRA
(Continued)
                                            8
                                               II.

       We review a grant of summary judgment de novo.                                      Evans v.

Techs. Applications & Serv. Co., 80 F.3d 954, 958 (4th Cir.

1996).        “Summary     judgment         is    appropriate           when       ‘there     is    no

genuine     dispute      as    to     any     material          fact    and    the        movant    is

entitled to judgment as a matter of law.’”                              Bostic v. Schaefer,

760    F.3d    352,      370     (4th    Cir.        2014)       (citation          and    internal

quotation marks omitted).               “A dispute is genuine if a reasonable

jury     could      return       a     verdict        for        the     nonmoving          party.”

Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir.

2013) (citation and internal quotation marks omitted).                                      “A fact

is material if it ‘might affect the outcome of the suit under

the governing law.’”             Id. (citation and internal quotation marks

omitted).          “We     are       required        to    view        the    facts        and     all

justifiable        inferences         arising        therefrom         in     the    light       most

favorable to the nonmoving party . . . .”                          Id. at 312.             In doing

so,    we      must      not        weigh        evidence         or        make      credibility

determinations.          Mercantile Peninsula Bank v. French, 499 F.3d

345, 352 (4th Cir. 2007).                     “[C]ourts may not resolve genuine

disputes      of    fact       in     favor      of       the    party        seeking       summary




Ireland under the Maryland Wage Payment and Collection Law, Md.
Code Ann. Lab. & Empl. § 3-501 et seq.


                                                 9
judgment.”     Tolan v. Cotton, ––– U.S. ––––, 134 S. Ct. 1861,

1866 (2014) (per curiam).



                                       III.

     As an initial matter, we assume that the PICP was in effect

for the entire period of Kolb’s employment.                 See J.A. 420 (“The

[PICP] will be in effect and maintained for a minimum of five

(5) years during the period of employment unless mutually agreed

in writing.” (emphasis in original)); see also id. (providing

that when the ATO was achieved, ACRA Ireland would grant Kolb

share options      “[n]ot later than ninety (90) days after the end

of the fiscal year of [ACRA Ireland] and each subsequent fiscal

year of [ACRA Ireland] ending during the period of employment”

(emphasis added)).          Moreover, it is undisputed that Kolb was

never    granted   any     share    options   under   the    PICP.     The   only

question     before   us    is     whether    the   district   court   properly

determined that Kolb waived any claims arising out of the PICP

by executing the SPA and related documents.



                                        IV.

                                        A.

        In considering the waiver issue, we must first determine

whether to apply Maryland’s or Ireland’s waiver law.



                                        10
      Because jurisdiction is based on diversity, we apply the

choice of law principles of the state in which the case was

filed--here, Maryland.           Marks v. Scottsdale Ins. Co., 791 F.3d

448, 451 (4th Cir. 2015).           “When determining which law controls

the   enforceability       and   construction     of    a   contract,      [Maryland

courts] apply lex loci contractus.”               Lewis v. Waletzky, 31 A.3d

123, 129 n.8 (Md. 2011).            This principle instructs that “[i]n

deciding questions of interpretation and validity of contract

provisions, Maryland courts ordinarily should apply the law of

the jurisdiction where the contract was made.”                       Allstate Ins.

Co. v. Hart, 611 A.2d 100, 101 (Md. 1992).                  Because the PICP was

entered    into       in   Maryland      and     this       case     involves     the

enforceability of the PICP, we apply Maryland law to determine

whether Kolb has waived his rights under the PICP. 5



                                         B.

      It   is    well-established        under    Maryland         law   that    “‘the

parties    [to    a    contract]    by    their     conduct        may   waive    the

      5The parties agree that Irish law governs the construction
of the SPA and related documents. See J.A. 478 (“[The SPA] and
any dispute arising out of or in connection with it or its
subject matter or formation . . . shall be governed by and
construed in accordance with the laws of Ireland.”).       In the
district court, Kolb argued that the SPA and related documents,
by their terms, did not waive rights arising out of the PICP.
However, he has not raised that argument here.      Therefore, as
discussed below, matters of Irish law are only at issue to the
extent Kolb argues that lack of privity precludes waiver.


                                         11
requirements      of     [the]      written    contract.’”            Questar      Homes   of

Avalon, LLC v. Pillar Constr., Inc., 882 A.2d 288, 294 (Md.

2005)    (alteration        in     original)       (quoting    Univ.       Nat'l   Bank    v.

Wolfe,    369     A.2d      570,     576    (Md.      1977)).          Waiver      is   “the

intentional relinquishment of a known right, or such conduct as

warrants an inference of the relinquishment of such right, and

may   result     from       an    express     agreement        or    be    inferred     from

circumstances.”          Myers v. Kayhoe, 892 A.2d 520, 530 (Md. 2006)

(citations      and     internal      quotation        marks    omitted).           Because

“[w]aiver rests upon the intention of the party, . . . acts

relied     upon        as        constituting        waiver         must    unequivocally

demonstrate that waiver is intended.”                         Taylor v. Mandel, 935

A.2d 671, 686 (Md. 2007) (citations omitted).



                                              C.

      Kolb argues that he has not waived his rights under the

PICP for three reasons: (1) he did not have full knowledge of

his rights; (2) he could not unilaterally waive his rights; and

(3) ACRA Ireland cannot enforce the SPA since it was not a party

to the SPA.     We consider each argument in turn.



                                              1.

      Kolb first contends that he did not waive his rights under

the PICP because he did not have full knowledge of those rights.

                                              12
     Maryland      courts     have    defined     waiver       as   “the    intentional

relinquishment      of    a   known    right.”          Taylor,     935    A.2d   at   686

(emphasis added).         “The right or advantage waived must be known;

[t]he general rule is that there can be no waiver unless the

person against whom the waiver is claimed had full knowledge of

his rights, and of facts which will enable him to take effectual

action    for    the     enforcement     of      such    rights.”          Id.    at   687

(alteration in original) (citations and internal quotation marks

omitted).

     The Maryland Court of Appeals has apparently not considered

whether constructive knowledge is sufficient to satisfy waiver’s

knowledge    requirement.           Where     state     law    is   unclear,      federal

courts must predict the decision of the state’s highest court.

See Wells v. Liddy, 186 F.3d 505, 527-28 (4th Cir. 1999).

     In     several      states,      courts      have        determined     that      the

knowledge       required      for     waiver      can     be    either      actual     or

constructive knowledge. 6            These states align with Williston on

Contracts, a treatise frequently cited by the Maryland Court of




     6 See, e.g., Brown-Marx Assocs., Ltd. v. Emigrant Sav. Bank,
703 F.2d 1361, 1369 (11th Cir. 1983) (applying Alabama law);
Richardson v. Wells Fargo Bank, N.A., 873 F. Supp. 2d 800, 810
(N.D. Tex. 2012) (applying Texas law); Winans v. Weber, 979 So.
2d 269, 274 (Fla. Dist. Ct. App. 2007); Lyons ex rel. Lawing v.
Holder, 163 P.3d 343, 349 (Kan. Ct. App. 2007); In re
Guardianship of Florence T.O., 744 N.W.2d 915, 919 (Wis. Ct.
App. 2007).


                                            13
Appeals. 7        See 13 Richard A. Lord, Williston on Contracts § 39:22

(4th       ed.    1990)(hereinafter          Williston).       Williston           notes    that

“[i]t is also essential to the existence of a waiver of a right

to performance under a contract that the party charged with the

waiver have actual or constructive knowledge of the right or

privilege allegedly waived.”                 Id.     Williston continues:

       [T]he party who has allegedly waived its rights is
       presumed to know those things (including matters
       concerning the other party’s performance or failure to
       perform) which reasonable diligence on its part would
       bring to its attention. Thus, the party charged with
       waiver may not plead willful ignorance and escape the
       waiver; rather, a waiver made with knowledge of facts
       which would put an ordinary person on inquiry is
       sufficient.

Id.; see also 28 Am. Jur. 2d Estoppel and Waiver § 188 (“It must

generally         be    shown    by    the   party    claiming       a    waiver     that   the

person against whom the waiver is asserted had, at the time,

knowledge,         actual       or    constructive,     of    the        existence    of    the

party’s          rights    or    of    all    material       facts       upon   which       they

depended.”).

       Based       on     the   foregoing      authority,      we        predict    that    the

Maryland Court of Appeals would hold that constructive knowledge

of a right—-that is, “[k]nowledge that one using reasonable care

or diligence should have, and therefore that is attributed by



       7Notably, the Maryland Court of Appeals has quoted
Williston with approval while discussing waiver. See Canaras v.
Lift Truck Servs., Inc., 322 A.2d 866, 879 (Md. 1974).


                                               14
law to a given person,” Black’s Law Dictionary (10th ed. 2014)

(defining “constructive knowledge”)-–is sufficient to waive that

right.

       Kolb asserts that because ACRA Ireland did not calculate

the ATO or grant him options to purchase shares when the ATO was

achieved, he did not have knowledge of his rights under the

PICP.      Regardless of whether Kolb had actual knowledge of his

rights under the PICP, we find as a matter of law that he had

constructive knowledge of those rights.                       First, Kolb was well-

acquainted with the PICP and its terms.                       Kolb and ACRA Ireland

signed the PICP only after “extensive negotiations.”                         J.A. 1022.

Kolb considered the PICP “a critical, if not decisive, factor”

in   his    choice    to     leave      his    higher    paying       job   and    become

president of ACRA USA.                  J.A. 351; see also J.A. 2264 (Kolb

testifying that the ability to gain ownership in ACRA Ireland

was a key component of his compensation package).                              Moreover,

Kolb     indicated     that,       as     president      of    ACRA     USA,      he   was

“generally” aware of the company’s sales at all times and that,

in   any   given     year,    he    had    all     the   information        required   to

calculate the ATO available to him.                      J.A. 1121, 1200–01.           He

further acknowledged that the ATO was a simple calculation that

he could have calculated if he had wanted to.                    J.A. 1199-1201.

       Reasonable diligence on Kolb’s part would have alerted him

that ACRA USA’s revenues triggered his rights to share options

                                              15
under the PICP.               That is, Kolb had full knowledge of “facts

which    [would]       enable     him    to     take       effectual       action    for     the

enforcement of such rights.”                   Taylor, 935 A.2d at 687 (citation

and     internal       quotation        marks       omitted).            Accepting       Kolb’s

contention that he had no knowledge of his rights under the PICP

would permit Kolb to “escape the waiver” by “plead[ing] willful

ignorance.”             13     Williston       §     39:22.             Because     Kolb     had

constructive knowledge of his rights under the PICP, he could

waive those rights.



                                               2.

       Next,     Kolb    argues       that     he    could        not    have    unilaterally

waived his rights under the PICP because the provision at issue

was for the mutual benefit of both himself and ACRA Ireland.

       Under Maryland law, “[e]ither party to a contract may waive

any of the provisions made for his benefit.”                              Cattail Assocs.,

Inc.    v.     Sass,    907    A.2d    828,     843       (Md.    Ct.    Spec.    App.     2006)

(citation       and     internal      quotation           marks    omitted).         However,

“[a]lthough a party may waive a provision included in a contract

for     that     party’s       sole     benefit,          a     party     cannot     waive     a

contractual        requirement          that       benefits        both     sides     to     the

transaction.”            Id.     (citation          and       internal    quotation        marks

omitted).



                                               16
       Kolb contends that the PICP provision at issue—-which gives

him the option to buy shares of ACRA Ireland for 10 Irish pounds

per share—-also benefits ACRA Ireland because it would receive

monetary compensation for each option exercised.                               However, the

rule    that      a     contractual            provision—-typically            a   condition

precedent—-benefiting both parties cannot be unilaterally waived

is    intended    to     protect         the   nonwaiving       party.        13   Williston

§     39:24 (“[A] waiver of contract requirements and conditions

may    not   be       made     unilaterally           when     it     would    deprive    the

nonwaiving        party       of     a     benefit       under        the     provision    in

question.”).          Here, ACRA Ireland, the nonwaiving party, does not

contend that the provision granting Kolb share options was made

for    its   benefit.          In    fact,       it    explicitly       argues     that   the

provision was for Kolb’s exclusive benefit.

       Kolb’s argument that his waiver is not enforceable because

ACRA Ireland would have benefited from his exercise of the share

options turns ACRA Ireland’s shield into his own sword by using

the rule to avoid an otherwise valid waiver.                            Such a result is

contrary     to    the       law    of    waiver.        See     13    Williston     § 39:15

(“[O]nce it has been established that a right has been waived,

the party possessing the right prior to the waiver is generally

precluded from asserting it in a court of law.”).                              Kolb has not

cited, and we have not found, any case in which a party who

waived a contractual provision was later able to circumvent that

                                                17
waiver      by   asserting    that       the   provision     was   actually    for   the

benefit of both parties.             We will not allow Kolb to do so here.



                                               3.

       Finally, Kolb argues that ACRA Ireland and ACRA USA may not

enforce the waivers contained in the SPA and related documents

because they were not parties to the SPA.

       Kolb      bases   this    contention          on   his   Irish    law   expert’s

opinion that under Irish law, “‘no stranger to the consideration

can    take      advantage      of   a    contract,       although      made   for    his

benefit.’” 8         J.A. 1451.       The ACRA entities’ Irish law expert

agrees to an extent, opining that “the doctrine of privity of

contract would ordinarily prevent a non-party to the contract

from       taking    legal   proceedings        to    affirmatively      enforce     that

contract against one of the parties to it” under Irish law.

J.A. 1985.          However, the ACRA entities’ expert opines that lack

of privity would not preclude ACRA from raising Kolb’s waivers

in the SPA and related documents as an affirmative defense.




       8Kolb’s expert cites the Irish case of Murphy v. Bower,
[1868] 2 IR    506 (Ct. Com. Pl. 1866) (Ir.), as the source of
this quotation.     However, the quotation does not appear in
Murphy.    The quotation does appear in Tweedle v. Atkinson,
(1861) 121 Eng. Rep. 762, 764, 1 B&S 393, 398 (Eng.), an English
case also cited by Kolb’s expert in the same discussion.    Both
experts agree that Irish courts consider English law persuasive
authority.


                                               18
       We agree.          Murphy v. Bower, [1868] 2 IR                     506 (Ct. Com. Pl.

1866) (Ir.), which Kolb’s expert acknowledges is “[o]ne of the

most important Irish cases on the law of privity of contract,”

J.A.    1451,    held      that       “where       the   foundation        of    the       right   of

action is rested upon contract, no one can maintain an action

who is not a party to the contract.”                                 Murphy, 2 IR at 512

(emphasis added).               Here, ACRA is not attempting to maintain a

right    of   action       against          Kolb    based      on    the   SPA       and    related

documents, but rather is using Kolb’s waiver as an affirmative

defense.

       Kolb cannot use privity of contract principles to escape

the consequences of his waiver.                           Kolb could have waived his

rights    under      the       PICP    in    any    number      of    ways.          See    BarGale

Indus., Inc. v. Robert Realty Co., 343 A.2d 529, 533 (Md. 1975)

(under Maryland law, “[a] waiver may be either verbal or in

writing;      and    it    is    not    necessary         that      the    waiver      should      be

direct and positive.              It may result from implication and usage,

or from any understanding between the parties which is of a

character       to   satisfy          the    mind       that   a     waiver     is     intended.”

(citations and internal quotation marks omitted)).                                         The fact

that Kolb’s waiver happened to be in a contract with a third

party    governed         by    Irish       law    is    inconsequential.              Once    Kolb

waived his rights under the PICP, those rights were extinguished

as a matter of law.                   See 13 Williston § 39:15.                      Kolb cannot

                                                   19
circumvent an otherwise-valid waiver simply because ACRA Ireland

and ACRA USA were not parties to the contract containing the

waiver.     Lack of privity does not prevent ACRA from asserting

the affirmative defense of waiver.



                                     V.

     The Maryland Court of Appeals has noted that “[g]iven the

highly factual nature of the waiver inquiry, it is an uncommon

case in which the issue can be resolved by summary judgment.”

Hovnanian Land Inv. Grp. v. Annapolis Towne Ctr. at Parole, LLC,

25 A.3d 967, 984 (Md. 2011).         “Occasionally, however, the waiver

is so obvious that a ruling can be made as a matter of law.”

Id. (describing the cases where summary judgment is appropriate

as an “unusual category”).

     This is such a case.      Kolb waived his rights under the PICP

in a number of ways.        First, and as relied on by the district

court, by signing the SPA Kolb “irrevocably waive[d] any claims

against   [ACRA   Ireland    or   any       subsidiary,]       its       agent,   or

employees which he . . . may have outstanding at Completion.”

J.A. 464.    Moreover, in the SPA, Kolb warranted that there was

“no agreement, arrangement or obligation in force which calls

for the present or future allotment, issue or transfer of, or

the grant to any person of the right . . . to call for the

allotment,   issue   or   transfer    of,    any   share   .    .    .    of   [ACRA

                                     20
Ireland or any subsidiary] . . . .”                               J.A. 491.             Kolb also

warranted      that      neither        ACRA       Ireland     nor     a    subsidiary        “has

offered     nor     is      proposing         to     introduce        any    .     .     .    share

option/purchase or retention scheme for any employee or other

person.”      J.A. 515.

      Second, in the letter required by Schedule 3 of the SPA,

which Kolb delivered to ACRA Ireland, he stated that he had “no

claim or right of action of any kind outstanding against [ACRA

Ireland or any subsidiary]” and to the extent that any such

claim     existed      or    may    exist,          he    “irrevocably        waiv[ed]         such

claim.”     J.A. 598.

      Third     and      finally,        in    his       notice      exercising         the   2010

option, Kolb “confirm[ed] and acknowledge[d]” that apart from

the shares acquired by exercising the 2003 and 2010 options, he

had   “no   other      rights      or    entitlements           in    respect      of    Shares.”

J.A. 574.

      The     SPA     and    related          documents        clearly      show       that    Kolb

unequivocally         waived       any    rights          he    had    against          the    ACRA

entities,      including           any    rights          arising       under       the       PICP.

Therefore, the district court properly granted summary judgment

in favor of ACRA Ireland and ACRA USA. 9


      9Because Kolb waived any claims against ACRA Ireland and
ACRA USA, the district court properly denied Kolb’s second
motion to amend his complaint.   See Steinburg v. Chesterfield
(Continued)
                                                21
                              VI.

    For the foregoing reasons, we affirm the district court.

                                                        AFFIRMED




Cnty. Planning Comm'n, 527 F.3d 377, 390 (4th Cir. 2008)
(holding that a district court does not abuse its discretion in
denying a motion to amend where the amendment would have been
futile).


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