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IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, LAW DIVISION
Nirmal Seenu,
Plaintiffs, No, 2021 L 4665
v.
Commercial Calendar T
Radix Trading, LLC, et al.,
Judge Daniel J. Kubasiak
Defendants.
OPINION
This cause is before the court on Defendant Radix Trading LLC (“Radix”), and its
principals, Benjamin Blander (“Blander”) and Michael Rauchman‘s (“Rauchman”)
(collectively, “Defendants”) Motion for Summary Judgment on Plaintiff Nirmal Seenu’s
(‘Plaintiff’) Amended Complaint pursuant to 735 ILCS 5/2-1005.
The court reviewed the pleadings, the parties’ briefs, and the exhibits attached
thereto. After reviewing these materials, and after applying summary judgment motion
standards, the court grants Defendants’ Motion for Summary Judgment as set forth below.
BACKGROUND
The following allegations are contained in the Amended Complaint. In August of
2015, Radix hired Plaintiff as a Quantitative Technologist to build out Radix’s computing
infrastructure. Plaintiff's job duties included, among other things, negotiating contracts,
keeping aware of the last developments of various new technologies, and installing multiple
high-speed internet connections. Beginning in late 2019, Plaintiff
was tasked with building
Radix’s new data center, which was integral to Radix’s growth plans over the next five
years.
Pursuant to the Employment Agreement between Plaintiff and Radix, Radix agreed
to compensate Plaintiff with an annual salary of $175,000, plus performance bonuses, but
did not specify how Radix calculates its bonuses. Throughout his five years of employment,
Plaintiff received a quarterly bonus from Radix without interruption. Given his
contributions to Radix, in late 2019 and early 2020, Plaintiff requested an increase in his
base salary, and Radix’s co-founders, Blander and Rauchman, allegedly assured Plaintiff
repeatedly that he would be compensated for his services, including a larger earned bonus
tied directly to Radix’s profitability stemming from Plaintiff's successful build-out of the
new data center.
On May 8, 2020, without warning, Radix terminated Plaintiff's employment while he
was out of the country. Radix offered Plaintiff a nominal severance payment of $100,000,
with a limited period of acceptance, in exchange for a request of Plaintiffs broad release of
claims against Radix, which Plaintiff declined. Radix failed to provide Plaintiff with any
explanation regarding how it calculated the severance payment and did not identify what
amount, if any, represented Plaintiffs unpaid earned bonus. Plaintiff alleges that his
Page 1 of 5
substantial contributions to Radix in late 2019 and early 2020 entitle him to a bonus far in
excess of the severance amount offered by Radix.
The Amended Complaint alleges Violation of Illinois Wage Payment and Collection
Act (“IWPCA”) against Radix (Count J), violation of [WPCA against Blander (Count ID),
violation of the IWPCA against Rauchman (Count III), breach of contract (Count IV), unjust
enrichment in the alternative to Count IV (Count V), and promissory estoppel (Count VI).
STANDARD OF LAW
Summary judgment is proper when the pleadings, affidavits, depositions,
admissions, and affidavits on file fail to establish a genuine issue of material fact and that
the movant is entitled to judgment as a matter of law. 735 ILCS 5/2 1005(c); N. Jl.
Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 305 (2005). A
genuine issue of material fact exists when the material facts are disputed or when
reasonable persons might draw different inferences from the undisputed facts. Adams v. N.
Ill. Gas Co., 211 Ill. 2d 32, 48 (2004). The burden of making a prima facie showing that
there are no genuine issues of material fact is on the moving party. Williams v. Covenant
Med. Ctr., 316 Ill. App. 3d 682, 689 (4th Dist. 2000). Once the movant has met this initial
burden, the non-movant must produce facts that would arguably entitle it to a favorable
judgment. Helfers-Beitz v. Degelman, 406 Ill. App. 264, 267-68 (3rd Dist. 2010).
A defendant may be granted summary judgment in two instances: “(1) when the
movant affirmatively disproves the non-movant’s case by introducing evidence that, if
uncontroverted, would entitle the movant to judgment as a matter of law...or (2) when the
movant can establish the non-movant lacks sufficient evidence to prove an essential
element of the cause of action.” Rice v. AAA Aerostar, 294 Ill. App. 3d 801, 805 (4th Dist.
1998), citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The trial judge cannot make
credibility determinations or weigh the evidence at the summary judgment stage.
Pietruszynski v. McClier Corp., 338 Ill. App. 3d 58, 67-68 (2003).
DISCUSSION
Motion for Summary Judgment
Defendants seek summary judgment on Plaintiff's Amended Complaint pursuant to
735 ILCS 5/2-1005 by arguing that no genuine issue of material fact exists as to their
argument that all bonuses owed to Plaintiff were discretionary, and Radix promised
Plaintiff nothing other than bonus “eligibility” rather than bonus “entitlement,” and
therefore, summary judgment is warranted in their favor. Upon review of the pleadings, the
parties’ arguments, and the exhibits attached thereto, the court agrees and finds that
Defendants are entitled to summary judgment on Plaintiffs Amended Complaint.
While the Amended Complaint alleges that Plaintiff seeks “all unpaid wage and
bonuses” purportedly owed to him, Defendants have established, and Plaintiff has failed to
sufficiently refute, that all bonuses were discretionary and indeterminate, and that Radix
discharged Plaintiff for performance issues prior to the Q1 or Q2 2020 payment dates.
Plaintiffs own deposition testimony confirms Defendants’ position, and Plaintiff repeatedly
acknowledged that he cannot articulate any cognizable damages amount in this matter
Page 2 of 5
because Radix never made him any bonus guarantee. The court discusses the individual
counts below.
Violation of IWPCA, Breach of Contract, and Promissory Estoppel (Counts I, Il, and IV)
Defendants first seek summary judgment on Counts I, I, and IV of Plaintiffs
Amended Complaint alleging violation of the IWPCA, breach of contract, and promissory
estoppel by arguing that the claims fail because Plaintiff cannot show any promise of
additional compensation. The court agrees. In 1973, the Illinois General Assembly enacted
the IWPCA to provide employees with a cause of action for the timely and complete
payment of earned wages or final compensation, without retaliation from employers. Soh v.
Target Mktg. Sys., 353 Ill. App. 3d 126, 129 (1st Dist. 2004). Upon an employee’s
separation, an employer is required to pay the full amount of the employee’s final
compensation within the next regularly scheduled pay period. Id.
Yet as Defendants argue, whether pled as a statutory violation, contractual
entitlement, or equitable remedy, Plaintiff's claim for unpaid compensation requires him to
show that Radix made an “unequivocal” or “clear and definite” promise to pay him
something that went unpaid. See IWPCA Regulations, 56 Ad. Code §300.500; Grottkau v.
Sky Climber, Inc., 1995 WL 32611 (N.D. Ill. 1995). Without an “unequivocal guarantee,”
bonus is not earned under the IWPCA or an employment agreement, or recoverable under a
promissory estoppel theory. Stark v. PPM America, Inc., 354 F.3d 666 (7th Cir. 2004).
In Birkholz v. Corptax, LLC, 2011 WL 10088322, the court held that the bonus
referred to in the parties’ employment agreement was not guaranteed by the company or
earned by the employee, so the employee was not entitled to the bonus under the IWPCA.
The court noted that “the company exercised its discretion after its evaluation of Birkholz’s
role in the unusual accounting practices he was involved in and informed him that, as part
of his discipline, he was ineligible for any bonus in 2009.” Jd. In April of 2010, Birkholz, an
at-will employee, was terminated. Jd. The court held that upon termination, the
employment agreement did not include payment of bonuses and did not give him any rights
to incentives offered pursuant to his employment contract. Jd. The Birkholz court cited to
McLaughlin, wherein the court adopted a further distinction regarding bonus plans — those
plans which are unequivocal or guaranteed, and those plans which are equivocal or not
guaranteed. See McLaughlin v. Sternberg Lanterns, Inc., 395 Ill. App. 3d 536, 544 (2009).
The McLaughlin court clarified that if no unequivocal promise was made, then the
employee is not entitled to any part of the bonus pursuant to Section 2 of the IWPCA. Jd.
Here, like in Birkholz and McLaughlin, Plaintiff cannot establish that Radix made
“unequivocal” guarantee to pay him any bonus. Plaintiff's Offer Letter is the only
document provided that sets forth base salary amount and guaranteed total compensation
amounts during his first year of employment. Beyond that, the Offer Letter merely states
that Plaintiff will be “eligible for performance bonuses.” This is a non-specific assurance of
bonus eligibility, rather than a post-employment guarantee. See McLaughlin, 395 Il. App.
8d at 544. Plaintiff seeks to overcome the lack of documentation about bonuses with
allegations about oral promises from Radix’s principals. Yet as Defendants argue, at
Plaintiff's deposition, Plaintiff admitted that neither Blander nor Rauchman made any such
promises. Rather, Rauchman only articulated the general factors Radix considered in
determining bonuses. Beyond those allegations, Plaintiff has not provided any evidence
that Blander or Rauchman said anything to guarantee Plaintiff a quarterly bonus. Plaintiff
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even confirmed Blander and Rauchman’s testimony that Radix has never paid a quarterly
bonus to a terminated employee.
The court further finds persuasive Defendants’ argument that not only was Plaintiff
never promised a bonus, but he did not meet the conditions for a bonus for Q1 or Q2 2020.
Plaintiff was terminated on May 8, 2020, meaning he was not employed by Radix for the
entirety of Q2 2020. His May 8, 2020, termination date occurred prior to the dates that
bonuses were distributed for Q1 and Q2 2020, and Plaintiff testified that he “was not
available for the most part” of the quarter, from March 8 until his May 8 termination.
Plaintiff has not alleged what he was purportedly owed, and because the bonuses are
completely discretionary, there is no way to quantify that amount.
Accordingly, the court finds that Defendants are entitled to summary judgment on
Counts I, I, and IV of Plaintiffs Amended Complaint.
Unjust Enrichment (Count IID)
As to Count III, Defendants seek summary judgment in their favor by arguing that
Count III fails because Radix was not unjustly enriched by Plaintiffs work.
To state a claim for unjust enrichment, a plaintiff must allege that the defendant
has unjustly retained a benefit to the plaintiff's detriment, and that defendant's retention of
the benefit violates the fundamental principles of justice, equity, and good conscience.
Gagnon v. Schickel, 2012 IL App (1st) 120645, { 25. Unjust enrichment is not an
independent cause of action. Jd. Rather, it is condition that maybe brought about by
unlawful or improper conduct as defined by law, such as fraud, duress, or undue influence
or, alternatively, it may be based on contracts which are implied in law. Jd. This theory is
inapplicable where an express contract, oral or written, governs the parties’ relationship.
Id. A plaintiff is permitted to plead breach of contract claims in addition to unjust
enrichment. Jd. Thus, although a plaintiff may plead claims alternatively based on express
contract and an unjust enrichment, the unjust enrichment claim cannot include allegations
of an express contract. Id.
Here, not only is there no underlying cause of action for Plaintiff to base his claim
on, but there was an express contract between the parties governing compensation —
Plaintiff's Offer Letter. Moreover, the undisputed facts establish that Plaintiff received no
specific promise to 2020 bonuses, and thus, there is no unlawful conduct by Defendants that
violates the “fundamental principles of justice, equity, and good conscience.” Ultimately, the
undisputed facts establish that Radix promised Plaintiff nothing more than bonus
eligibility as opposed to bonus entitlement.
Accordingly, the court grants Defendants’ Motion for Summary Judgment in their
favor and against Plaintiff as to Count III of Plaintiffs’ Amended Complaint.
Page 4 of 5
AC Loo
ORDER
It is ordered:
(1) Defendants’ Motion for Summary Judgment on Plaintiff's Amended Complaint is fo
granted in their favor and against Plaintiff as to all claims;
(2) This is a final and appealable order disposing of the matter in its entirety.
Judge Daniel J. Kubasiak
MAY -9 2003 At?
Circuit Court-2072
ENTERED,
i fret int POL —
Ji =
)
aniel J. Kubasiak, No. 2072
Page 5 of 5
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IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION Nirmal Seenu, Plaintiffs, No, 2021 L 4665 v. Commercial Calendar T Radix Trading, LLC, et al., Judge Daniel J. Kubasiak Defendants. OPINION This cause is before the court on Defendant Radix Trading LLC (“Radix”), and its principals, Benjamin Blander (“Blander”) and Michael Rauchman‘s (“Rauchman”) (collectively, “Defendants”) Motion for Summary Judgment on Plaintiff Nirmal Seenu’s (‘Plaintiff’) Amended Complaint pursuant to 735 ILCS 5/2-1005. The court reviewed the pleadings, the parties’ briefs, and the exhibits attached thereto. After reviewing these materials, and after applying summary judgment motion standards, the court grants Defendants’ Motion for Summary Judgment as set forth below. BACKGROUND The following allegations are contained in the Amended Complaint. In August of 2015, Radix hired Plaintiff as a Quantitative Technologist to build out Radix’s computing infrastructure. Plaintiff's job duties included, among other things, negotiating contracts, keeping aware of the last developments of various new technologies, and installing multiple high-speed internet connections. Beginning in late 2019, Plaintiff was tasked with building Radix’s new data center, which was integral to Radix’s growth plans over the next five years. Pursuant to the Employment Agreement between Plaintiff and Radix, Radix agreed to compensate Plaintiff with an annual salary of $175,000, plus performance bonuses, but did not specify how Radix calculates its bonuses. Throughout his five years of employment, Plaintiff received a quarterly bonus from Radix without interruption. Given his contributions to Radix, in late 2019 and early 2020, Plaintiff requested an increase in his base salary, and Radix’s co-founders, Blander and Rauchman, allegedly assured Plaintiff repeatedly that he would be compensated for his services, including a larger earned bonus tied directly to Radix’s profitability stemming from Plaintiff's successful build-out of the new data center. On May 8, 2020, without warning, Radix terminated Plaintiff's employment while he was out of the country. Radix offered Plaintiff a nominal severance payment of $100,000, with a limited period of acceptance, in exchange for a request of Plaintiffs broad release of claims against Radix, which Plaintiff declined. Radix failed to provide Plaintiff with any explanation regarding how it calculated the severance payment and did not identify what amount, if any, represented Plaintiffs unpaid earned bonus. Plaintiff alleges that his Page 1 of 5 substantial contributions to Radix in late 2019 and early 2020 entitle him to a bonus far in excess of the severance amount offered by Radix. The Amended Complaint alleges Violation of Illinois Wage Payment and Collection Act (“IWPCA”) against Radix (Count J), violation of [WPCA against Blander (Count ID), violation of the IWPCA against Rauchman (Count III), breach of contract (Count IV), unjust enrichment in the alternative to Count IV (Count V), and promissory estoppel (Count VI). STANDARD OF LAW Summary judgment is proper when the pleadings, affidavits, depositions, admissions, and affidavits on file fail to establish a genuine issue of material fact and that the movant is entitled to judgment as a matter of law. 735 ILCS 5/2 1005(c); N. Jl. Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 305 (2005). A genuine issue of material fact exists when the material facts are disputed or when reasonable persons might draw different inferences from the undisputed facts. Adams v. N. Ill. Gas Co., 211 Ill. 2d 32, 48 (2004). The burden of making a prima facie showing that there are no genuine issues of material fact is on the moving party. Williams v. Covenant Med. Ctr., 316 Ill. App. 3d 682, 689 (4th Dist. 2000). Once the movant has met this initial burden, the non-movant must produce facts that would arguably entitle it to a favorable judgment. Helfers-Beitz v. Degelman, 406 Ill. App. 264, 267-68 (3rd Dist. 2010). A defendant may be granted summary judgment in two instances: “(1) when the movant affirmatively disproves the non-movant’s case by introducing evidence that, if uncontroverted, would entitle the movant to judgment as a matter of law...or (2) when the movant can establish the non-movant lacks sufficient evidence to prove an essential element of the cause of action.” Rice v. AAA Aerostar, 294 Ill. App. 3d 801, 805 (4th Dist. 1998), citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The trial judge cannot make credibility determinations or weigh the evidence at the summary judgment stage. Pietruszynski v. McClier Corp., 338 Ill. App. 3d 58, 67-68 (2003). DISCUSSION Motion for Summary Judgment Defendants seek summary judgment on Plaintiff's Amended Complaint pursuant to 735 ILCS 5/2-1005 by arguing that no genuine issue of material fact exists as to their argument that all bonuses owed to Plaintiff were discretionary, and Radix promised Plaintiff nothing other than bonus “eligibility” rather than bonus “entitlement,” and therefore, summary judgment is warranted in their favor. Upon review of the pleadings, the parties’ arguments, and the exhibits attached thereto, the court agrees and finds that Defendants are entitled to summary judgment on Plaintiffs Amended Complaint. While the Amended Complaint alleges that Plaintiff seeks “all unpaid wage and bonuses” purportedly owed to him, Defendants have established, and Plaintiff has failed to sufficiently refute, that all bonuses were discretionary and indeterminate, and that Radix discharged Plaintiff for performance issues prior to the Q1 or Q2 2020 payment dates. Plaintiffs own deposition testimony confirms Defendants’ position, and Plaintiff repeatedly acknowledged that he cannot articulate any cognizable damages amount in this matter Page 2 of 5 because Radix never made him any bonus guarantee. The court discusses the individual counts below. Violation of IWPCA, Breach of Contract, and Promissory Estoppel (Counts I, Il, and IV) Defendants first seek summary judgment on Counts I, I, and IV of Plaintiffs Amended Complaint alleging violation of the IWPCA, breach of contract, and promissory estoppel by arguing that the claims fail because Plaintiff cannot show any promise of additional compensation. The court agrees. In 1973, the Illinois General Assembly enacted the IWPCA to provide employees with a cause of action for the timely and complete payment of earned wages or final compensation, without retaliation from employers. Soh v. Target Mktg. Sys., 353 Ill. App. 3d 126, 129 (1st Dist. 2004). Upon an employee’s separation, an employer is required to pay the full amount of the employee’s final compensation within the next regularly scheduled pay period. Id. Yet as Defendants argue, whether pled as a statutory violation, contractual entitlement, or equitable remedy, Plaintiff's claim for unpaid compensation requires him to show that Radix made an “unequivocal” or “clear and definite” promise to pay him something that went unpaid. See IWPCA Regulations, 56 Ad. Code §300.500; Grottkau v. Sky Climber, Inc., 1995 WL 32611 (N.D. Ill. 1995). Without an “unequivocal guarantee,” bonus is not earned under the IWPCA or an employment agreement, or recoverable under a promissory estoppel theory. Stark v. PPM America, Inc., 354 F.3d 666 (7th Cir. 2004). In Birkholz v. Corptax, LLC, 2011 WL 10088322, the court held that the bonus referred to in the parties’ employment agreement was not guaranteed by the company or earned by the employee, so the employee was not entitled to the bonus under the IWPCA. The court noted that “the company exercised its discretion after its evaluation of Birkholz’s role in the unusual accounting practices he was involved in and informed him that, as part of his discipline, he was ineligible for any bonus in 2009.” Jd. In April of 2010, Birkholz, an at-will employee, was terminated. Jd. The court held that upon termination, the employment agreement did not include payment of bonuses and did not give him any rights to incentives offered pursuant to his employment contract. Jd. The Birkholz court cited to McLaughlin, wherein the court adopted a further distinction regarding bonus plans — those plans which are unequivocal or guaranteed, and those plans which are equivocal or not guaranteed. See McLaughlin v. Sternberg Lanterns, Inc., 395 Ill. App. 3d 536, 544 (2009). The McLaughlin court clarified that if no unequivocal promise was made, then the employee is not entitled to any part of the bonus pursuant to Section 2 of the IWPCA. Jd. Here, like in Birkholz and McLaughlin, Plaintiff cannot establish that Radix made “unequivocal” guarantee to pay him any bonus. Plaintiff's Offer Letter is the only document provided that sets forth base salary amount and guaranteed total compensation amounts during his first year of employment. Beyond that, the Offer Letter merely states that Plaintiff will be “eligible for performance bonuses.” This is a non-specific assurance of bonus eligibility, rather than a post-employment guarantee. See McLaughlin, 395 Il. App. 8d at 544. Plaintiff seeks to overcome the lack of documentation about bonuses with allegations about oral promises from Radix’s principals. Yet as Defendants argue, at Plaintiff's deposition, Plaintiff admitted that neither Blander nor Rauchman made any such promises. Rather, Rauchman only articulated the general factors Radix considered in determining bonuses. Beyond those allegations, Plaintiff has not provided any evidence that Blander or Rauchman said anything to guarantee Plaintiff a quarterly bonus. Plaintiff Page 3 of 5 even confirmed Blander and Rauchman’s testimony that Radix has never paid a quarterly bonus to a terminated employee. The court further finds persuasive Defendants’ argument that not only was Plaintiff never promised a bonus, but he did not meet the conditions for a bonus for Q1 or Q2 2020. Plaintiff was terminated on May 8, 2020, meaning he was not employed by Radix for the entirety of Q2 2020. His May 8, 2020, termination date occurred prior to the dates that bonuses were distributed for Q1 and Q2 2020, and Plaintiff testified that he “was not available for the most part” of the quarter, from March 8 until his May 8 termination. Plaintiff has not alleged what he was purportedly owed, and because the bonuses are completely discretionary, there is no way to quantify that amount. Accordingly, the court finds that Defendants are entitled to summary judgment on Counts I, I, and IV of Plaintiffs Amended Complaint. Unjust Enrichment (Count IID) As to Count III, Defendants seek summary judgment in their favor by arguing that Count III fails because Radix was not unjustly enriched by Plaintiffs work. To state a claim for unjust enrichment, a plaintiff must allege that the defendant has unjustly retained a benefit to the plaintiff's detriment, and that defendant's retention of the benefit violates the fundamental principles of justice, equity, and good conscience. Gagnon v. Schickel, 2012 IL App (1st) 120645, { 25. Unjust enrichment is not an independent cause of action. Jd. Rather, it is condition that maybe brought about by unlawful or improper conduct as defined by law, such as fraud, duress, or undue influence or, alternatively, it may be based on contracts which are implied in law. Jd. This theory is inapplicable where an express contract, oral or written, governs the parties’ relationship. Id. A plaintiff is permitted to plead breach of contract claims in addition to unjust enrichment. Jd. Thus, although a plaintiff may plead claims alternatively based on express contract and an unjust enrichment, the unjust enrichment claim cannot include allegations of an express contract. Id. Here, not only is there no underlying cause of action for Plaintiff to base his claim on, but there was an express contract between the parties governing compensation — Plaintiff's Offer Letter. Moreover, the undisputed facts establish that Plaintiff received no specific promise to 2020 bonuses, and thus, there is no unlawful conduct by Defendants that violates the “fundamental principles of justice, equity, and good conscience.” Ultimately, the undisputed facts establish that Radix promised Plaintiff nothing more than bonus eligibility as opposed to bonus entitlement. Accordingly, the court grants Defendants’ Motion for Summary Judgment in their favor and against Plaintiff as to Count III of Plaintiffs’ Amended Complaint. Page 4 of 5 AC Loo ORDER It is ordered: (1) Defendants’ Motion for Summary Judgment on Plaintiff's Amended Complaint is fo granted in their favor and against Plaintiff as to all claims; (2) This is a final and appealable order disposing of the matter in its entirety. Judge Daniel J. Kubasiak MAY -9 2003 At? Circuit Court-2072 ENTERED, i fret int POL — Ji = ) aniel J. Kubasiak, No. 2072 Page 5 of 5