agreement between the parties provided that either could terminate the relationship upon 30 days prior written notice. (See Pl.'s Ex. 1, para. 16.) However, neither party exercised that right until defendant did so in June of 1994. Prior to that time, the parties operated "under the terms" of the June 12, 1991 agreement. (Tr. at 249.) That agreement called for plaintiff to receive commissions at the rate of 5%. During much of the pre-termination period, however, he received commission checks based on lower percentages. In those instances, he complained, and, in the process, promoted an ongoing dialogue between the parties concerning the appropriate level of his compensation.
Defendant unsuccessively urged to the jury that plaintiff did not substantially perform his obligations under the contract and, thus, was not entitled to recover any damages. Defendant further maintained, again unsuccessfully, that, in any event, plaintiff had agreed to accept lesser percentages. For present purposes, defendant argues to the Court that, as a matter of law, plaintiff's acceptance of the lesser sums, even though under objection, caused a modification of the contract and extinguished plaintiff's rights under the 1991 agreement. Schoppert v. CCTC Intl., Inc., 972 F. Supp. 444 (N.D. Ill. 1997) is cited in support of that proposition.
In Schoppert, an employment agreement existed between the parties which was "terminable at will." In December 1991, the employer informed Schoppert that his commissions were being lowered. Schoppert objected then and thereafter, but he continued working with the company and accepted the reduced payments.
In 1994, the employer again made an effort to revise the compensation paid to Schoppert, this time by, inter alia, reducing his base salary.
With respect to the 1991 reduction of commissions, the Schoppert court, applying Illinois law, noted that when an employment agreement is "terminable at will" it may be unilaterally modified by the employer "as a condition of its continuance." ( Id. at 447) (citation and internal quotations omitted.) Against that backdrop, the Court found that during a 1991 meeting at which the changed commission structure was discussed, it was "clear that [the employer] made it plain to Schoppert that the consideration for the Modification would be his continued employment." Id. Given that circumstance, the Court concluded that continuation of his employment was the consideration for the modification of his commissions.
As to the 1994 modification, the Schoppert Court found that issues of fact existed which precluded summary judgment being granted to the employer. There -- unlike the situation in 1991 -- the employer did not contemporaneously indicate that it would fire Schoppert unless he agreed to the proposed modification; moreover, Schoppert and his employer discussed alternative proposals during the time the reduced payments were being made.
A juxtapositioning of our factual scenario with that in Schoppert indicates that defendant's reliance on that decision is misplaced. Here, at the very least, there were issues of fact as to whether plaintiff's continued employment with defendant was dependent upon his acceptance of the reduced commissions. Defendant presented no evidence to indicate that such an utterance was made to plaintiff. There were also discussions between the parties regarding possible modifications to the 5% commission rate which occurred between the time the commissions were reduced and plaintiff was fired. Our case, then, is more akin to the proposed 1994 modification in Schoppert than the earlier one upon which defendant mistakenly relies.
The defendant here could have served a thirty-day written notice on plaintiff, and terminated the contract. Alternatively, it could have said that it intended to do so unless plaintiff signed a modification to the commission structure. However, it did neither.
In sum, the holding in Schoppert does not warrant the relief requested by defendant. Issues of fact were framed by the evidence. Construing all the evidence most favorably to plaintiff, there is sufficient evidence in the record to support that portion of the jury's verdict awarding unpaid commissions to plaintiff.
3. Conclusions re: Defendant's Motions. For the reasons given, defendant's applications pertaining to the jury's award for punitive damages and for past-due commissions (both pre-termination and post-termination) are denied. In addition, its application for judgment as a matter of law -- as of the conclusion of plaintiff's case in chief, and at the conclusion of all the evidence -- is denied, as is its motion for a new trial.
RELIEF SOUGHT BY PLAINTIFF
In opposing plaintiff's cross-motion for counsel fees, defendant urges that the Sales Act "should not have been before the jury" and that "if the Court disagrees, the claim for attorneys fees clearly is too late." (Def.'s Reply Mem. at 3.)
As mentioned previously, the contract provides that it is to be governed by Illinois law. The Sales Act clearly is applicable to the present proceeding. There is no requirement that the plaintiff include in his pleading reference to the Sales Act as a precondition to seeking counsel fees since the statute, by its terms, provides for such an award.
Plaintiff has submitted a detailed affidavit setting forth the nature of the services performed. Defendant has not challenged the reasonableness of the fees. The Court's independent review of the materials submitted indicates their reasonableness, both as to the nature of the services performed and the hourly rate charged. Accordingly, plaintiff is awarded counsel fees in the amount requested, to wit, $ 20,361.20.
In addition, plaintiff shall receive prejudgment interest on the portion of the jury's award that pertains to underpaid commissions to place him in the position he would have been had he been paid in a timely fashion. See Gramercy Mills, Inc. v. Wolens, 63 F.3d 569, 571 (7th Cir. 1995); Publishers Resource, Inc. v. Walker-Davis Publications, Inc., 762 F.2d 557, 559 (7th Cir. 1985).
Date: Hauppauge, New York
January 23, 1998
DENIS R. HURLEY, U.S.D.J.