Brooklyn Mirage
After terminating their Director of Premium Sales, Avant Gardner/Brooklyn Mirage pocketed $60,000 of the director’s earned commissions.
And then counsel intervened.
A high-profile Director of Premium Sales was abruptly terminated by Avant Gardner, the company behind Brooklyn Mirage, with substantial unpaid commissions. His compensation arrangement with senior members of the venue comprised of a percentage of venue-wide table sales and commissions on personal sales. But because the parties never formally documented that arrangement, the venue’s General Counsel took the position that there was no contractual basis for payment. Over $60,000 in commissions hung in the balance.
Establishing the Agreement Without a Signed Contract
New York law provides that, absent a governing written contract, the parties’ express or implied agreement determines when commissions are earned and become wages.
Counsel assembled contemporaneous compensation discussions, internal commission records, and correspondence involving a former vice president who confirmed that he had approved the arrangement prior to his departure. He agreed to provide testimony if litigation became necessary. The director also repeatedly raised the need to memorialize the arrangement with senior management and the operations department. Each time the topic was raised, it was rebuffed.
Although counsel did not yet have access to internal documents through discovery, the director had kept meticulous notes and retained relevant communications and sales records. Each category addressed a distinct element of a potential claim: compensation discussions supported the promised terms; the former executive’s confirmation supported approval; and accounting records supplied the revenue figures against which the commission percentages could be applied.
While the absence of a signed agreement was not ideal, it could not negate the evidence of an approved compensation arrangement.
Turning a Compensation Dispute Into Wage Exposure
New York Labor Law expressly includes commission-based earnings as wages. Counsel presented the claim as unpaid compensation for services already performed and commissions already earned.
That framing materially changed the economics of the dispute. A successful statutory wage claim could expose the company to the unpaid amount, reasonable attorney’s fees, prejudgment interest, and an additional 100% in liquidated damages unless it established a good-faith basis for the underpayment.
In other words, the venue’s exposure crossed into the six-figure range before incurring their own legal fees for defense, should this proceed into litigation. At best, a complete defense win would likely cost approximately $40,000 in attorney’s fees. A loss, on the other hand, could bring total economic exposure to approximately $200,000–$323,000, depending on how far the litigation proceeds. Given the available evidence pre-litigation, this was not going to be a slam dunk defensive win for the venue.
The Negotiation Shift
A few days after the demand landed, the General Counsel advised that the venue was prepared to offer $35,000 and urged the client to accept it, explaining that obtaining that amount had required substantial internal effort. Counsel did not forget that just a few days ago, the venue denied owing any obligation to remit the commissions.
So counsel declined. And then followed up with further evidence that counsel would rely on if forced to litigate. Two days later, the venue countered with an additional $10,000 raising their offer to $45,000.
The Commercial Resolution: What the Client Keeps
Why accept $45,000 on a $60,000 claim? Entitlement and proof are different things.
Counsel believed the client was entitled to the additional $15,000. But establishing that entitlement would require time, expense, and litigation risk. Counsel evaluated the final offer against what the client would likely keep after further negotiations and litigation—not simply the amount that might be recovered.
Although counsel believed the claim would prevail, counsel viewed $60,000 as the likely ceiling for a settlement before the company committed to litigating. Pursuing that amount could consume another five or six months and leave approximately $49,000–$54,500 after additional attorney’s fees, before expenses. The practical choice was therefore between $45,000 secured in 12 days and a potentially modest improvement in net recovery months later, with additional stress and the risk of the company hardening its position.
As Detective Alonzo Harris once said, “It’s not what you know. It’s what you can prove.” The matter proved that you don’t need a perfect hand (or claim) to win.