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Law360 (February 2, 2021, 3:15 PM EST ) A Pittsburgh attorney should not receive bonus pay from cases that closed after he was fired from a New York firm, according to a motion filed Monday to dismiss his breach of contract suit.
Partners at Pollock Cohen LLP say Darth Newman is attempting to rewrite his employment contract through a suit filed in the U.S. District Court for the Western District of Pennsylvania. Nowhere in the contract does it say Newman is entitled to portions of settlements that occurred after he left the firm in March 2020, their motion says.
"It is a fundamental tenet of contract law that a breach of contract claim's purpose is to provide the plaintiff the benefit of his bargain — not to award the plaintiff with more than he bargained for," they argued. "That is what Darth Newman is asking for here: a contractual benefit the other party never agreed to give him."
Newman filed the breach of contract suit with the Allegheny County Court of Common Pleas and moved it to federal court in December. He claims Pollock Cohen owes him more than $50,000 in contingency fees, saying his contract entitles him to a percentage of revenue from whistleblower and qui tam cases the firm settles or wins.
Pollock Cohen's motion seeks to dismiss the complaint in its entirety, saying Newman's argument hinges on a misreading of the contract. The bonuses are intended as end-of-year payments for eligible staff, not a source of revenue in perpetuity for ex-employees, it said. Firm partner and co-founder Adam Pollock, in an email to Law360 on Tuesday, reiterated this argument.
"As detailed in the motion to dismiss, as a matter of law and good sense, Darth isn't entitled to a performance bonus for the year that he was fired," Pollock writes. "Nor is Darth entitled to a bonus, as he claims, for future years when he's not even working with us."
Newman's attorney, Rachel McElroy of McElroy Law Firm in Pittsburgh, responded to the firm's statement in a separate email to Law360.
"We are disappointed but not surprised by defendants' made-for-litigation smears, which conflict with the contemporaneous public and private accolades defendants provided related to Mr. Newman's legal work," McElroy writes. "In fact, his work at defendants has continued to result in favorable decisions for defendants even after his departure. We stand by the facts set out in the complaint. This very simple dispute will be resolved in court, not the press."
Newman joined Pollock Cohen as a full-time employee in April 2019, with a contract giving him a $10,000 monthly salary and bonus pay. The bonus structure awarded Newman 10% of the first $2 million of fees accumulated per year, then 5% of the remaining fees collected.
Pollock Cohen fired Newman in March 2020, with the firm saying struggles from the COVID-19 pandemic forced cutbacks. It gave Newman a positive reference and left his profile on the website until he found new employment, but the relationship quickly grew sour when clients began following Newman out the door, according to his initial complaint.
After Newman filed the breach of contract suit, partners at Pollock Cohen said in an emailed statement that he was fired for cause, telling Law360 he was terminated "for significant performance, interpersonal and teamwork issues."
McElroy on Monday filed a brief in support of a motion for preliminary injunction requiring Pollock Cohen to set aside the contingency payments she claims Newman is owed. The motion says Pollock Cohen has not submitted evidence supporting claims of Newman's job performance issues, and that the bonus payments were contractually due to him regardless of his work quality.
"This scurrilous assertion is in direct contradiction to defendants' own contemporaneous written documentation and entirely irrelevant," the motion says. "The contract at issue here is not dependent on or connected to 'performance.'"
Newman is represented by Rachel McElroy of McElroy Law Firm LLC in Pittsburgh.
Pollock Cohen and its partners are represented by Marla N. Presley and Joanna M. Rodriguez of Jackson Lewis PC of Pittsburgh.
The case is Newman v. Pollock Cohen LLP et al., case number 2:05-mc-02025, filed with the U.S. District Court for the Western District of Pennsylvania.
--Editing by Philip Shea.
For a reprint of this article, please contact reprints@law360.com.
