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Case 1:08-cv-02950-PAC Document 218 Filed 08/02/17 Page 1 of 19
`USDC SDNY
`DOCUMENT
`ELECTRONICALLY FILED
`DOC #: _________________
`DATE FILED: August 2, 2017
`
`

`

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`conjecture. The Court also conditionally grants Defendants’ alternative motion for a new trial on
`
`damages because the jilry’s award-of $750,000 was a seriously erroneous result and a miscarriage
`
`ofjustice; Ifthe Courti’ s decision on Defendants’ JMOL motion is reversed or vacated, Vioni may
`choose between a new; trial on damages or remittitur reducing the award to $150,000.
`
`BACKGROUND
`
`In this quantuln meruit action, Vioni seeks compensation for introducing Jeffrey and
`Robert Grunewald, leafding to ACAS hiring Jeffrey and eight PIM employees. On March 17, 2017,
`after a four-day trial,
`jury returned a verdict against Defendants and in favor of Vioni in the
`amount of$750,000.
`199. The evidence at trial included e-mails, agreements, a recording of
`
`a telephone call, and iestimony fi‘om seven witnesses, including Jill Niemczyk, an expert in the
`
`field of executive seaifch and recruitment.
`The evidence established that Vioni and Jeffrey first met when Vioni started working in
`
`Jeffrey’s division at Ilrudential Securities in 1990. Tr. 78—80. Vioni came to see Jeffrey as a
`
`mentor. Tr. 80, 82. Béoth moved on from Prudential, and were in and out of touch over the years.
`Tr. 81e82, 230, 315. 2006, Jeffrey and Vioni reconnected. Tr. 315. Jeffrey owned PIM, which
`
`was the general partner 'of a hedge fund; and Vioni was the CEO of Hedge Connection, Inc.
`
`(“HCI”), a website that provided a way for hedge funds and investors to meet. See Tr. 101, 233,
`
`296, 427. They discussed the looming subprime mortgage crisis and how Jeffrey wanted to take
`advantage ofwhat he isaw as an opportunity to make money. See Tr. 92—93. Jeffrey needed ready
`access to large amounts of capital fast, and he was open to a number of alternatives, including
`
`selling a part of PIM; merging with another company, or obtaining investments. Tr. 93, 96; see
`
`also Ex. 132. Vioni then started thinking about people she could introduce to Jeffrey. Tr. 94.
`
`Vioni contactbd Jay Chapler, who represented a multibillion-dollar family office in
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`Canada. Tr. 95. Chaplet was interested in investing hundreds of millions of dollars into hedge
`
`funds by buying a
`
`of the hedge fimds. Id. On March 25, 2007, Vioni introduced Jeffrey to
`
`Chapler by e—mail, and} on March 26, 2007, the three talked by phone. Tr. 241—42. Also on March
`
`26, 2007, after the call with Chapler, Jeffrey sent Vioni an e-mail stating: “we should also have a
`discussion about finanbial considerations.
`1 want you to have a comfort and confidence about this
`whole process, so that a deal is consummated, you are compensated accordingly.” Tr. 24243;
`Ex. 9. The Chapler inhoduction did not lead to a deal. Tr. 97, 392.
`
`Vioni was alsd in contact with Robert Grunewald of ACAS. Tr. 236. Grunewald was
`
`looking to buy part elf a general partner that managed a hedge find, or to make a substantial
`
`investment in a hedge fund. Tr. 236—37. On approximately April 4, 2007, Vioni introduced Jeffi'ey
`
`and Grunewald by plione. Tr. 129. On April 18, 2007, Vioni, Grunewald, Jeffrey, two PIM
`employees, and two AI,CAS employees met in a New York board room that Vioni rented. Tr. 135,
`
`330—31. The meetingE appeared to go well, and it seemed possible that a deal could be reached
`
`where ACAS would purchase PIM and fold it into ACAS. Tr. 137.
`
`On April 19, 25007, Vioni sent Grunewald an e-mail stating: “In formulating my payment
`
`from Russell for this acquisition I need to understand how his group will be folded into AC [AS].
`For example, if the other group I introduced him to ended up doing the deal we had proposed, I
`
`would have gotten ani upfront fee and then ownership in the entire holding company.” Ex. 15.
`
`Also on April 19, 20057, Vioni wrote to Jeffrey: “I would like to get a little more specific as soon
`as we can with how the deal between you and me will work.
`I agree that there should be a
`
`significant upfront payment for the introduction to AC[AS] and then that I should be tied to the
`
`growth ofthe business going forward.” Ex. 62. Jeffrey responded: “If I do go to NYC tomorrow,
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`let’s meet again if your schedule permits to iron out more specifics.” Id.
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`Negotiations bdtween PIM and ACAS continued. On June 5, 2007, Jeffrey sent Grunewald
`an e—mail with a proposed framework for a deal. Ex. 136. Attached to the e-mail was a document
`that noted: “Lisa Vioiii expects payments for the initial introduction and for any capital that is
`
`managed for ACAS out of its newly created PIM office.” 1d. While negotiations were ongoing,
`
`Vioni continued her attempts to secure compensation. For example,
`
`0 On May 14, 2007, Vioni e—mailed Jeffrey to outline details of how she would be
`compensated fer the ACAS deal. Ex. 21. She wrote: “I would be comfortable stating that
`the details will be determined when you know how ACAS will structure your deal but
`acknowledges that my compensation will be similar to the normal pattern of compensation
`of general industry practices for a person that raises money in the hedge fund industry etc.”
`Id.
`
`0 On June 4, 200?, Vioni wrote to Jeffrey: “I hope to be compensated the way that any
`marketing person in our industry would be compensated for this type of introduction. A
`marketing persion typically gets paid a percentage of fees on the money they raise usually
`in perpetuity.
`view this deal as being no different and in fact more significant because
`the access to capital will be almost unlimited some ways. So in terms of how I should be
`compensated on this deal should be a combination of things. As we discussed, I think I
`should receive; an upfront fee for the deal and then payment for the money that goes into
`the hedge fund from ACAS.
`I don’t know how you work that into your deal with
`them. . .perhaps my fee would be part of your expenses? I am sure we can get to a place
`where we all feel comfortable.” Ex. 22.
`
`G On July 16, 2d07, Vioni sent Jeffrey an e—mail stating: “I am feeling like I need to close
`the loop on the introduction I made between you and ACAS .
`.
`.
`.
`I really need to know
`how your deallproposes that I get compensated.
`It should be clearly written in your deal
`memo with indemnifications etc. .
`.
`. For example, if I am going to get paid according to
`industry standard on the introduction of you to ACAS, I don’t necessarily want or need to
`sell any of [HCI] to ACAS.” Ex. 24.
`
`0 On July 17, 2GOT, Vioni e-mailed Jeffrey: “Before I speak to [Grunewald], can you tell
`me if there is ai reason that you didn’t include my marketing fee when you were negotiating
`operating expenses, guaranteed salaries, guaranteed bonuses, options and upside for your
`group? My ekpectation was to be paid versus industry standard which would be some
`percentage of the management fee for some amount of years on all money that comes in
`from the investor introduction. Since [Grunewald] has said that ACAS will not pay for
`marketing according to industry standard, how will you go back to him now and get me
`paid out of your P&L? I really need you to clarify with me how I am included in your deal
`with ACAS. Since I did not get an engagement letter signed by you for the introduction
`and we only discussed it and always referred to industry standard, I must now rely on y0u
`to help negotiate marketing fees into your deal for me.” Ex. 25.
`
`4
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`o On July 17, Viimi wrote to Grunewald, in an e-mail she later forwarded to Jeffrey, that she
`saw her “payment as two different things.” Ex. 26. First was marketing fees, and second
`was an “ACAS fee.” Id. Vioni stated as to the ACAS fee: “I have introduced a key team
`of executives that are joining ACAS. A department is being developed and ACAS will
`have access toi this group and all of the opportunities including but not limited to their
`expertise and potential investor introductions (like the potential investment from the RI
`treasurer).
`fee that you pay for this service is one that you are probably more familiar
`with. Whatever you traditionally pay for this type of service is what I would accept.” Id.
`Grunewald responded “ACAS does not pay fees other than those for a retained search for
`the introductioh of employees.” Id.
`
`By August 10,§ 2007, PIM and ACAS had reached a deal, see Ex. 37—45, but not the one
`
`originally envisioned.i Instead of ACAS buying, or investing in PIM, or its hedge funds, ACAS
`
`hired Jeffrey and eighti PIM employees and paid their salaries and bonuses to work for ACAS. See
`
`id; Tr. 168—69. However, Jeffrey and the PIM employees were able to continue to run the PIM
`
`hedge funds. See Tr. l68—69.
`
`Defendants neier paid Vioni for the introduction to ACAS.
`
`DISCUSSION
`
`I.
`
`Judgment as Matter of Law
`
`JMOL is appi'opriate when “a reasonable jury would not have a legally sufficient
`
`evidentiary basis to find for the [opposing] party on that issue.” Fed. R. Civ. P. 50(a)(1). The
`
`Court “may set aside a jury’s verdict where there is such a complete absence of evidence
`
`supporting the verdict? that the jury’s findings could only have been the result of sheer surmise or
`
`conjecture, or there
`
`such an overwhelming amount of evidence in favor of the 1110th that
`
`reasonable and fair minded persons could not arrive at a verdict against him.” Vangas v.
`
`Montefiore Med. Cart,i 823 F.3d 174, 180 (2d Cir. 2016) (internal quotation marks and alteration
`
`omitted). “In reviewing a Rule 50 motion, all credibility determinations and reasonable inferences
`
`of the jury are given deference and [the Court] may not weigh the credibility of witnesses.” Id.
`
`

`

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`“In order to reeover in quantum meruit under New York law, a claimant must establish (1)
`
`the performance ofserivices in good faith, (2) the acceptance ofthe services by the person to whom
`they are rendered, (3)
`expectation ofcompensation therefor, and (4) the reasonable value ofthe
`services.” Mid-Hudsrim Catskill Rural Migrant Ministry, Inc. v. Fine Host Corp, 418 F.3d 168,
`175 (2d Cir. 2005) (initernal quotation marks omitted). Defendants argue that they are entitled to
`
`JMOL because Vieni failed to offer sufficient evidence relating to her expectation ofcompensatiou
`and the reasonable value ofher services.
`A.
`Expectjation of Compensation
`Defendants laimch several attacks on the sufficiency of the trial evidence of Vioni’s
`
`expectation of compehsation. They stress that the inquiry must focus on the expectations at the
`time that services werie rendered, and that at that time, the evidence showed that Vioni expected
`
`compensation from Dzefendants only if an investor purchased PIM, or invested in PM or a PIM
`
`hedge fund. Next, tliey argue, even if Vioni expected compensation from Defendants for an
`employment arrangerrient, her expectation was unreasonable. And finally, they contend that there
`
`was no evidence thati at the time of Vioni’s services, Defendants understood Vioni expected
`
`compensation from thiem for an introduction that led to employment.
`These arguments are certainly appropriate; Defendants made them to thejury. But thejury
`
`rejected them. They fail here, as well.
`
`1.
`
`EVioni’s Expectation of Compensation for Employment Transaction
`i Introduction
`
`Contrary to thendants’ assertions, there was sufficient evidence that at the time Vioni
`
`provided her services, ishe expected payment from Defendants for any deal that was consummated,
`
`and not just for an intiroduction leading to an investment or acquisition. When Jeffrey and Vioni
`
`reconnected in 2006, ihey discussed how to get Jeffrey access to large amounts of capital to take
`
`6
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`advantage ofthe looming subprime mortgage crisis. There was evidence that Jeffrey was open to
`any alternative so thatihe would not be a spectator once the crisis hit; no one deal was identified
`as the only option Jeffiiey would have pursued. It was in that context that Vioni introduced Jeffrey
`to potential deal
`-
`Vioni first intrci‘aduced Jeffrey to Chapler, and after meeting Chapler, Jeffrey wrote to Vioni
`on March 26, 2007 thiat they should “have a discussion about financial considerations.” Ex. 9.
`Jeffrey wanted Vioni ‘ito have a comfort and confidence about this whole process, so that ifa deal
`[was] consummated, [lv’iom‘ was] compensated accordingly.” Id. Jeffrey’s e-mail does not specify
`
`l
`
`that it was limited to dnly a deal with Chaplet, and the jury could have credited Vioni and drawn
`an inference that Jefihiey was referring to any deal that Vioni helped Jeffrey consummate.
`
`in-person meeting with Grunewald and Jeffi'ey on April 18, 2007, Vioni
`A day after
`wrote to Jeffrey: “I “iould like to get a little more specific as soon as we can with how the deal
`between you and me Vinfill work.” Ex. 62. She stated that “there should be a significant upfront
`payment for the introduction to AC[AS].” Id. Jeffrey responded: “If I do go to NYC tomorrow,
`
`let’s meet again if ymiu‘ schedule permits to iron out more specifics.” Id. And on June 5, 2007,
`
`Jeffrey sent Grunewzild a document that noted “Lisa Vioni expects payments for the initial
`
`introduction and for any capital that is managed for ACAS out of its newly created PIM office.”
`Ex. 136.
`I
`
`Moreover, Vicini testified at trial about her conversations with Jeffrey regarding the goal
`ofthe introductions:
`‘E‘[W]e both discussed that since we don’t know what the transaction’s going
`
`to be and since we dori’t know what the structure ofthe deal is going to be, that ultimately I would
`
`get paid based on the :final structure that occurred, whatever structure it was.” Tr. 100—01. With
`
`respect to the e-mail Jairffrey sent after the Chapler meeting on March 26, 2007 (see page 3, supra),
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`i
`
`Vioni fiirther testifiedzii “I understood the e-mail was that he was writing to confirm that he was
`
`giving me comfort that5 he would compensate me for any deal.” Tr. 130.
`
`It is true that Vioni repeatedly framed her expectation for compensation from Defendants
`
`in terms of marketingifees. See Exs. 21, 22, 25, 26. That does not end Vioni’s compensation
`expectation, however. ilt makes sense that Vioni would try to tailor her compensation requests to
`how and what she anticipated the deal would end up being.
`It certainly does not follow that in
`talking about one deal structure, she was implicitly foregoing compensation for any other deal
`
`structure. Further, although there was evidence that Vioni expected ACAS to pay her for an
`employment arrangemibnt, see Tr. 23]; Ex. 26, this does not compel the conclusion that Vioni was
`limiting herselfto obtziining those fees solely from ACAS, to the exclusion ofDefendants.
`In View ofthe astontemporaneous documentation and discussion, as well as the testimony at
`trial, there was sufficiient evidence that Vioni expected payment from Defendants, regardless of
`the ultimate structure
`the deal that followed from her introduction-
`It therefore cannot be said
`that there was “a comdlete absence ofevidence” that Vioni expected Defendants to pay her for an
`introduction that led an employment transaction, such that the jury’s findings must “have been
`the result ofsheer surrhise or conjecture.” Vangas, 823 F.3d at 180.
`2.
`hieasonableness of Vioni’s Expectation of Compensation
`
`Defendants argue that Vioni’s expectation of compensation was unreasonable based on the
`
`evidence at trial that candidates (job applicants) do not pay recruiters for their placement services.
`
`That may be so, bujt Defendants’ argument conflates reasonableness of expectations with
`
`reasonable value of services. Defendants cite no authority suggesting that whether a plaintiff
`
`reasonably expects payment for her services must be determined solely by reference to whether
`the recipient normallyi pays for such services under industry standards, especially where there is
`
`no evidence that the plaintiff was aware of the industry standards at the time. The reasonableness
`
`8
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`of Vioni’s expectation: here is more than adequately supported by the evidence that Vioni told
`Jeffrey on multiple occiasions that she expected him to compensate her, and Jeffrey never said no
`(as ACAS did), and negver objected. See, e.g., Exs. 22, 26, 62; Tr. 441—42; see also Exs. 9, 136.
`Second, there “EMS, in fact, evidence that a candidate would be willing to pay a recruiter for
`
`a successful employinjent introduction. Vioni testified that she and a hedge fund manager had
`
`entered into an agreeinent in which the hedge fund manager agreed to pay Vioni a fee for
`
`introducing him to a pbtential employer. Tr. 188. Thus, assuming reasonableness of expectation
`is properly determined: by reference to practices in the industry, there was sufficient evidence for
`
`the jury to conclude that Vioni’s expectation of compensation was reasonable.
`
`3.
`
`iDefendantS’ Understanding of Vioni’s Reasonable Expectation
`
`Defendants contend that there was insufficient evidence that Defendants understood Vioni
`expected them to pay for her services. Vioni responds first by disputing that there is any
`requirement that such Sevidence be introduced at trial, and second by arguing that in any event the
`evidence at trial was siifficient.
`
`Contrary to Vioni’s first assertion, the Second Circuit previously held in this case that
`
`“[b]oth parties must uriiderstand that the party performing the services has a reasonable expectation
`
`1 (2d
`of compensation for those services.” Viom' v. Am. Capital Strategies, Ltd, 508 F. App’x 1,
`Cir. 2013) (summary brder); see also Viom‘ v. Providence Inv. Mgmt., L.L.C., 648 F. App’x 114,
`
`116 (2d Cir. 2016) (summary order); Aluminum Fair, Inc. v. Abdello, 456 N.Y.S.2d 184, 185 (3d
`Dep’t 1982); DiBella Hopkins, 18'? F. Supp. 2d 192, 201 (S.D.N.Y. 2002) (Chin, J.); cf Shapiro
`
`v. Dictaphone Corp.,i411 N.Y.S.2d 669, 673 (2d Dep’t 1978). This is logical. A plaintiff’s
`
`expectation of compensation would hardly seem reasonable, if the defendant was kept in the dark
`
`about it.
`
`i
`
`However, for substantially the same reasons that there was sufficient evidence that Vioni
`
`9
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`

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`expected compensatioin for any deal that she helped Defendants reach (see Section LA. 1, supra),
`l
`Vioni is correct that thlere was sufficient evidence ofDefendants’ understanding of her expectation
`
`of compensation.
`
`B.
`Reasonable Value of Vioni’s Services
`The reasonablei value ofservices for a recovery in quantum meruit is “the amount for which
`[the] services could have been purchased from one in the plaintiff’s position at the time and place
`
`the services were rendered, or the amount for which the defendant could have obtained services
`
`under like circumstanties.” Carlino v. Kaplan, 139 F. Supp. 2d 563, 565 (S.D.N.Y. 2001) (internal
`quotation marks and leitations omitted). While reasonable value is commonly determined by
`reference to hourly raties and number ofhours worked, a plaintiffmay, in appropriate cases, prove
`the reasonable value
`her services through “clear and accepted market place conventions.” Idi;
`see also Hershkowitzjv. Think Tech Labs, ELC, 651 F. App’x 15, 19 (2d Cir. 2016) (summary
`order). There was no iproofofhourly rates or hours worked. Instead, Vioni opted to try to prove
`the reasonable value cit“her services through market place conventions.
`I
`There simply was no evidence at trial of any market place convention (general industry
`I
`
`practicesfindustry standards) for what a candidate (like Jeffrey or the other PIM employees) would
`
`pay a recruiter (like \jfioni) to place the candidate with a hiring institution (like ACAS). Vioni
`
`attempts to evade this gap in the evidence by arguing broadly that there was evidence of “the
`I
`industry standard for Employee placement.” See Opp. at 19. True enough, but Vioni omits that
`I
`
`the “industry standard” evidence described what a hiring institution—and not a candidate—would
`
`pay a recruiter for a sitccessful placement in various circumstances. Niemczyk’s testimony does
`
`not establish what a candidate would pay for a recruiter’s services; Niemczyk testified that
`
`although she has “been involved either directly or indirectly with thousands of hires,” Tr. 4?0, in
`
`10
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`i i|
`
`her “20 years of exeetiitive search and talent acquisition,” she was “not familiar with any instance
`in which the candidate!paid a fee,“ Tr. 474; see also Tr. 481. Niemczyk’s testimony cannot support
`the verdict; indeed it cbntradicts the verdict. There is no basis in the record to impute to candidates
`the amounts a hiring ihstitution would pay a recruiter. See also Tr. 208 (Former ACAS recruiting
`manager testifying theft “candidate had no obligation to pay the recruiter” under ACAS recruiting
`
`contracts with recruiters).
`
`The distinctionli between markets for candidates and hiring institutions is important for at
`
`least two reasons. Firbt, it is not clear that a recruiter performs the same services when acting for
`
`a hiring institution, as! she does when acting for a candidate. Cf.’ Geraldi v. Melamid, 212 A.D.2d
`575, 576 (2d Dep’t 15995) (“The plaintiffs reliance on the fact that he had been previously paid
`
`$5,000 a month as a bonsultant was insufficient to raise a triable issue in View of his failure to
`establish that he perfdrmed the same tasks for the defendant as he had performed in his previous
`
`position”). When a Erecruiter is searching for a candidate on behalf of a hiring institution, she
`
`likely will have to expibnd significant time and effort to find a candidate who is willing to be placed.
`
`On her next search foir a hiring institution, the recruiter likely will not be able to place the same
`candidate who she alieady just placed; she will have to start her search for potential candidates
`
`recruiter is searching for a hiring institution on behalf of a candidate, the
`In contrast, if
`anew.
`recruiter may not nedd to expend significant time and effort to find a hiring institution that is
`willing to hire. This
`so because while candidates may only be willing to change jobs so often,
`
`hiring institutions may continually need new employees for a number of positions, so the recruiter
`
`may be able to keep going back to that same hiring institution to place candidates. See Tr. 476—
`
`77 (Niemczyk testifying that a recruiter might make an opportunistic introduction “to acquire a
`
`new client;” the recruiter “might hope that it opens dialogue around what their hiring needs are in
`
`

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`other areas so that [the recruiter] can later become engaged for a search to do that”); Ex. 169 at 6
`
`(ACAS fee agreementifor recruiting agency “from time-to-time to conduct assignments to identify
`
`candidates for potential employment”). Thus, a search may require vastly different amounts of
`
`time and effort depending on whether a recruiter is trying to find a hiring institution for a candidate
`
`
`
`
`or trying to find a candidate for a hiring institution. The evidence at trial was clearly insufficient
`l
`
`to support the conclusion that a fee paid by a hiring institution for a successful placement is “the
`
`amount for which [Vipni’s] services [for Jeffrey and PIM] could have been purchased .
`
`.
`
`. at the
`
`time and place the seri/ices were rendered.” See Carlino, 139 F. Supp. 2d at 565.
`Second, it statiids to reason that a candidate would not pay the same rate as a hiring
`institution. A hiring idstitution may be able to pay a recruiter 30 percent ofa candidate’s first-year
`base salary and guarafnteed or anticipated bonus without a substantial impact on its bottom line,
`
`but a candidate may dot be willing to part with an equivalent amount of his earnings. Cf Longs
`v. Shore & Reich, Ltdl, 25 F.3d 94, 98 n.1 (2d Cir. 1994) (recognizing that hourly rates may differ
`for‘a plaintiff depending on whether the plaintiff was an independent consultant or a full-time
`employee).
`It may hie that as a matter of market place convention, candidates pay the same as
`hiring institutions, but;;no evidence at trial suggested that Defendants would have obtained Vioni’s
`services at a hiring iristitution’s rate. See Carlino, 139 F. Supp. 2d at 565 (reasonable value) of
`services is “the amriunt for which the defendant could have obtained services under like
`
`circumstances”); cf Bairadkin v. Lever-ton, 25'? N.E.2d 643, 645 (NY. 1970) (obligation implied
`under quasi contract plaim “must conform to what the court may assume would have been the
`agreement of the pariies if the situation had been anticipated and provided for”); Economist ’s
`
`Advocate, LLC v. Coghu’t‘iveArts Corp, 01 Civ. 9468 (RWS), 2004 WL 2429804, at *3 (S.D.N.Y.
`
`Oct. 29, 2004) (analylzing whether expert had experience in relevant market in which plaintiff
`
`12
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`I|I
`
`participated, and notjust whether the projects the expert and plaintiffperformed were comparable).
`
`Absolutely nothing in the record supports the conclusion that the market place conventions
`
`for candidates and hirin institutions that use recruiters’ services are the same. That conclusion,
`
`necessarily reached by the jury, is sheer surmise and conj ecture.2 Defendants are entitled to JMOL.
`
`II.
`
`New Trial or Remittitur
`
`
`
`Defendants move in the alternative, pursuant to Fed. R. Civ. P. 59, for a new trial or for
`
`remittitur. Although the Court grants Defendants’ “renewed motion for judgment as a matter of
`
`law, it must also conditionally rule on [Defendants’] motion for a new trial by determining whether
`
`a new trial should be gianted ifthe judgment is later vacated or reversed.” Fed. R. Civ. P. 50(c)(1).
`
`A.
`
`New Trial
`
`The Court can 'order a new trial under Rule 59(a), if it concludes “that the jury has reached
`
`a seriously erroneous tesult or the verdict is a miscarriage of justice.” Manley v. AmBase Corp,
`
`337' F.3d 23 7, 245 (2d Cir. 2003) (internal quotation marks and alteration omitted). A Rule 59(a)
`
`motion differs from a Rule 50 motion because a trial judge can (1) grant a new trial “even if there
`.I
`
`is substantial evidence supporting the jury’s verdict,” and (2) “weigh the evidence .
`
`.
`
`.
`
`, and need
`
`not view it in the lightlmost favorable to the verdict winner.” 10'. at 244—45.
`
`In light of Rule 50(c)(1), the Court rules conditionally that it would grant Defendants’
`
`motion for a new trial but solely on the issue of damages. There is sufficient evidentiary support
`_.u.
`
`for Vioni’s expectation of compensation, as described above (see pages 6—10, supra). The same,
`
`however, cannot be said of the jury’s award of $750,000. The verdict does not set forth how the
`
`jury arrived at its awaird of $750,000, but it is clear that the award is based on a calculation that
`
`2 Thejury awarded Vioni £750,000, which, Vioni states, is “less than 23% ofthe first year’s base salary and bonus
`
`compensation set forth in
`at 20.
`
`l
`
`e offer letters and employment contracts" of Jeffrey and the eight PIM employees. Opp.
`
`13
`
`

`

`Case 1:08-cv-02950-PAC Document 218 Filed 08/02/17 Page 14 of 19
`Case 1:08-cv-02950-PAC Document 218 Filed 08/02/17 Page 14 of 19
`
`included the eight PIM employees and bonuses (or at least the bonus provided for in Jeffrey’s
`
`February 2008 employment agreement, see n.4, trying).3 This calculation is seriously erroneous
`
`and a miscarriage ofjustice for three reasons.
`
`First, as explained above, Vioni failed to prove the reasonable value of her services.
`
`Second, assuming that the reasonable value of Vioni’s services can be calculated based on
`
`market place conventian for hiring institutions, thejury’s award improperly includes fees for the
`
`eight PIM members that joined Jeffrey at ACAS. Niemczyk testified that “[u]nder industry
`
`standard, you’d only reasonably expect to be paid for .
`
`.
`
`. team members if you had individually
`
`recruited, interviewed,- managed the interview process, and closed those hires.” Tr. 480; see also
`
`Tr. 477—78. There was}; no evidence at trial that a recruiter would receive a fee for doing less. And,
`
`the evidence was compelling that Vioni did not perform those services for the eight PIM
`
`employees. See, e.g., Tr. 252 (Vioni only talked with Jeffrey and Smith about “the possibility of
`
`them taking a position with” ACAS); Tr. 172 (Vioni did not provide ACAS with PIM employees’
`
`salary information); sde also Tr. 428.
`
`
`
`
`Third, again assuming that the reasonable value of Vioni’s services can be calculated based
`
`on market place conventions for hiring institutions, the jury’s award appears, in serious error, to
`
`include a fee based on Jeffrey and the eight PIM employees“ bonuses. Niernczyk’s uncontroverted
`
`testimony was that a recruiter could earn a fee based on a candidate’s first-year base salary and
`
`- guaranteed or anticipated bonus. See Tr. 399. She explained, however, that a conditional bonus
`
`would not be included in calculating a recruiter’s fee, and that “[y]ou cannot pay an executive
`
`3 Vioni does not try to arg e otherwise. See Opp. at 5. Nor could she. The award is greater than J efi‘rey’s entire
`first-year base salary ($500,000), and fully halfof Jeffrey’s first-year base salary and 200 percent guaranteed bonus
`provided for in his February 2008 employment agreement (total of $ 1 ,500,000). See Exs. 39, 46. There was no
`evidence that under industry standards, a recruiter could earn more than 30 percent of a candidate’s first-year base
`salary and guaranteed or anticipated bonus.
`
`14
`
`

`

`Case 1:08-cv-02950-PAC Document 218 Filed 08/02/17 Page 15 of 19
`Case 1:08-cv-02950-PAC Document 218 Filed 08/02/17 Page 15 of 19
`
`search fee on an amount that you don’t know whether it would be paid.” Tr. 520. The bonuses
`
`set forth in Jeffrey and the PIM employees” August 2007 offer letters were all conditioned on at
`
`least $25 million being raised. See Exs. 38—45. The bonuses were neither guaranteed nor
`anticipated, according to Niemczyk’s testimony on industry standards. No evidence at trial
`
`supports the jury’s apparent inclusion ofthe bonuses in its calculation of Vioni’s damages.4
`
`B.
`
`Remittitur
`
`“Remittitur is the process by which a court cempels a plaintiff to choose between reduction
`
`' of an excessive verdict and a new trial.” Stampfv. Long Island RR. Ca, 761 F.3d 192, 204 (2d
`
`Cir 2014). State law “governs the issue of the excessiveness of ajury award in a diversity case.”
`
`See Consorti v. Armstrong World Indus, Inc, 103 F.3d 2, 4 (2d Cir. 1996). NY. C.P.L.R.
`
`§5501(c) providess:
`
`
`
`
`
`i
`
`In reviewing almoneyjudgment in an action in which an itemized verdict is required
`by rule forty-one hundred eleven of this chapter in which it is contended that the
`award is excessive or inadequate and that a new trial should have been granted
`unless a stipulation is entered to a different award, the appellate division shall
`determine that an award is excessive or inadequate if it deviates materially from
`what would be reasonable compensation.
`
`In applying the “deviates materially” standard, “a district court reviews the evidence presented at
`
`trial in support of the ;challenged damage award and compares the award to other cases in which
`
`evidence of similar injuries was presented.” Presley v. United States Postal Servs., 317 F.3d 16?,
`
`4 Vioni argues that Jeffi'eyls February 2008 employment agreement, which provided for a guaranteed bonus of 200
`percent of his base salary, supports the jury’s award. See Opp. at 24; Ex. 46 (agreement “made and enter

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