The opinion of the court was delivered by: Mukasey, District Judge.
Plaintiff Seiden Associates, a New York executive recruiting
firm, sues for a portion of its fee allegedly earned by
causing William N. Sick, Jr. to be hired as chief executive
officer of American National Can Company ("Can"), a Delaware
Corporation with its principal place of business in Chicago.
In an earlier opinion published at 754 F. Supp. 37, I denied
defendants' motion to dismiss plaintiff's quantum meruit and
unjust enrichment claims because the existence of a written
contract governing the same subject matter did not, as a
matter of law, preclude quasi-contractual recovery from
entities that were not parties to the contract. Both sides
have now moved for summary judgment on plaintiff's contract
claims. For the reasons set forth below, defendants' motion
for summary judgment is granted. In addition, because it is
now clear that defendant ANC Holdings Inc. (ANC) is a
successor-in-interest to a party to the original contract,
plaintiff's unjust enrichment and quantum meruit claims are
On December 2, 1986, Seiden entered into a contract dated
October 31, 1986 with Triangle Industries Inc. to recruit a
Chief Executive Officer for Triangle's container business.
Plaintiff's Rule 3(g) Statement ¶ 2. ANC is a
successor-in-interest to Triangle. Id. ¶ 3; Stelzel Aff. ¶ 16.
The contract, which plaintiff drafted, provided that it would
be compensated as follows:
Our fee for this assignment, which shall be an
exclusive one, will be equivalent to 30% (thirty
percent) of the executive's first year's earned
base and incentive compensation, reduced by the
paid portion of our retainer but not lower than
the total retainer, as set forth in the following
paragraph. The final fee will be determined 12
months from the date of employ.
As such retainer, Triangle Industries Inc. agrees
to pay Seiden Associates $300,000 (three hundred
thousand) in five equal monthly payments of
$60,000 (sixty thousand) beginning on the date
this letter is signed by you. This retainer is
based on 30% of the Chief Executive Officer's
initially estimated first year's total cash
compensation of $1 million.
When the Chief Executive Officer of your
container business is hired, we shall be entitled
to the unpaid balance of our $300,000 retainer,
which shall be non-refundable.
During 1987, Seiden contacted and evaluated over 100
candidates for the position and eventually recruited William
N. Sick, Jr. to serve as Chief Executive Officer of Can,
effective January 1, 1988. Plaintiff's Rule 3(g) Statement
¶ 6. Seiden assisted Sick in negotiating the terms of his
employment. Defendants' 3(g) Statement ¶ 10. Sick and Can
eventually agreed to a five-year employment agreement, dated
January 1, 1988, which provided that Sick would receive an
annual salary of $800,000 and would be "eligible to receive a
cash bonus award up to an amount equal to 100% of the actual
salary payable . . . for such year." Stelzel Aff., Exh. F. §
2.1.2. The agreement further provided that the cash bonus
"shall be based upon the achievement, as determined by . . .
[Can's] Board of Directors in the exercise of its reasonable
judgment" of certain company and individual performance goals
set by Can's Board at the beginning of the year and that it
would "be payable in a lump sum on or before each April 1 for
the immediately preceding calendar year." Id. Thus, Sick's
right to receive the bonus was subject to the Board's
reasonable discretion and was payable any time on or before
April 1 of the following year. Defendants' Rule 3(g) Statement
¶ 12. In addition to this discretionary bonus, Sick was also
eligible to receive compensation from a Deferred Performance
Incentive Plan and two
3Page 92 stock option plans. Stelzel Aff., Exh. F §§ 2.1.3,
Sick started employment with Can on January 1, 1988. Stelzel
Aff. ¶ 3. According to Sick's 1988 W-2 form, Sick was paid
total cash compensation of $800,004 during calendar year 1988.
In addition to cash compensation, Sick's W-2 also shows $4,700
for "tax preparation," $173,437.50 for "stock option[s]," and
$45,189.67 for "moving expense." Stelzel Aff., Exh. A. Thus,
his total 1988 earnings, before 401-K contributions, was
$1,023,331.17. Meanwhile, during 1988, both Triangle and its
subsidiaries, including Can, were sold to the Pechiney Group.
Stelzel Aff. ¶ 15. As mentioned, defendant ANC is a
successor-in-interest to Triangle. Id. ¶ 16; Plaintiff's Rule
3(g) Statement ¶ 2. Pechiney Group apparently became the parent
of both defendants as a result of the sale.
On March 1, 1989, the Chairman of Pechiney, Jean Gandois,
determined that Sick should be granted a discretionary bonus
of $1 million. Seiden Aff. ¶ 7, Exh. C; Stelzel Aff. ¶ 18.
There is no dispute that this bonus was applicable to Sick's
performance during 1988, and could therefore be considered
"earned" during that year. However, it is also undisputed that
neither defendant was obligated to pay that bonus, nor was Sick
entitled to receive it, until March 1, 1989.
The Annual Report on Form 10-K filed by Trian Holdings,
Inc., apparently another successor of Triangle (Seiden Aff.
¶ 5), shows that for the year ended December 31, 1988, Sick was
paid "Cash Compensation" of $2,041,206. Seiden Aff., Exh. B.
There is no dispute that this amount includes Sick's $1 million
discretionary bonus, id. ¶ 7, as well as the other items on his
The dispute in this case is straightforward. Seiden contends
that, under its contract, it is entitled to a total placement
fee of $612,361.80, which it calculates by multiplying Sick's
"cash compensation" set forth in the annual report by 30%.
Because Seiden already has received a $300,000 advance
retainer, it sues for the remainder of $312,361.60. In
particular, Seiden contends that the $1 million discretionary
bonus, determined by Gandois on March 1, 1989, should be used
in calculating the total fee. On the other hand, defendants
contend that the contract clearly and unambiguously provided
that the final fee was to be determined 12 months from the
date of employ and that, therefore, only amounts which Can had
paid or was obligated to pay Sick as of December 31, 1988 (the
"final fee date") were to be used in calculating Seiden's
final fee. Defendants contend that Sick's 1988 cash
compensation of $800,004, as set forth in his W-2 form, is the
only item relevant to the fee calculation. Therefore,
defendants assert that because 30% of that amount,
$240,001.20, is less than the amount already paid, Seiden is
not entitled to an additional fee. Moreover, ...