Ellicott v. American Capital Energy, Inc., 906 F.3d 164

Ellicott was hired by American Capital Energy (ACE) as Director of Business Development under a 2008 written compensation plan: a monthly draw (annualized $120,000) credited against commissions of 40% of the profit margin on each sale, payable within 30 days after client payment and project completion.
Between 2007–2012 Ellicott sold nine projects (gross > $37M); eight were profitable and, by stipulation, the facts needed to calculate commissions (dates, revenue, direct costs) were undisputed.
ACE continued paying Ellicott the monthly draw through Oct. 2012, then stopped; Ellicott’s benefits were cancelled in mid‑2013 and he ceased working for ACE; he filed suit on Apr. 2, 2014.
Ellicott sued for unpaid commissions under the Massachusetts Wage Act and for breach of contract; the district court excluded late, extrinsic evidence that would vary the 2008 plan and disallowed eleventh‑hour witness affidavits.
A jury found ACE, Hunton, and Hennessey liable; damages allocated in the second verdict form gave ACE $758,830 (trebled to $2,276,490) and $100,000 (trebled to $300,000) against each individual; the district court entered judgment totaling $2,876,490 plus fees and costs.

Issue	Plaintiff's Argument (Ellicott)	Defendant's Argument (ACE/Hunton/Hennessey)	Held
Whether commissions are "wages" under the Wage Act	Commissions were arithmetically determinable and contingencies (profit, payment, completion) were met, so commissions are wages	Compensation was profit‑based, akin to profit‑sharing, not Wage Act wages	Held: Commissions are wages — "definitely determined" and "due and payable"; Wage Act applies
Whether the Wage Act statute of limitations was equitably tolled	Defendants repeatedly assured payment and cited cash‑flow problems, fraudulently concealing nonpayment and inducing delay	Statute should bar claims that matured more than three years before the suit	Held: Sufficient evidence of affirmative misrepresentations; equitable tolling applies through Oct. 2011 so claims are timely
Tolling as to individual defendant Hennessey	Hennessey participated in assurances and meetings promising payment at 40%	Hennessey’s involvement was insufficient to toll the statute as to him individually	Held: Trial evidence supported tolling as to Hennessey; jury could find he joined concealment
Exclusion of extrinsic/evidence and late affidavits (motions in limine)	Evidence showing Ellicott agreed to split commissions was relevant to reduce or defeat Wage Act liability	Exclusion was improper and prejudicial; late affidavits should be admitted	Held: District court did not abuse discretion; exclusion justified under Rule 403 and due to untimely, contradictory late evidence

Sinai v. New England Tel. & Tel. Co., 3 F.3d 471 (1st Cir. 1993) (standard for viewing facts in favor of the verdict)
Wiedmann v. Bradford Grp., Inc., 831 N.E.2d 304 (Mass. 2005) (commission is "definitely determined" when arithmetically determinable)
McAleer v. Prudential Ins. Co. of Am., 928 F. Supp. 2d 280 (D. Mass. 2013) (when plan sets contingencies, courts apply plan to determine when commission is due)
Okerman v. VA Software Corp., 871 N.E.2d 1117 (Mass. App. Ct. 2007) (treatment of commission determinations under Wage Act)
Crocker v. Townsend Oil Co., 979 N.E.2d 1077 (Mass. 2012) (equitable tolling and Wage Act limitations analysis)
Mass. Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 412 F.3d 215 (1st Cir. 2005) (equitable tolling where plaintiff was affirmatively misled)
Passatempo v. McMenimen, 960 N.E.2d 275 (Mass. 2012) (fraudulent concealment by one defendant cannot usually toll claims against others)
Thibeault v. Square D Co., 960 F.2d 239 (1st Cir. 1992) (disfavoring eleventh‑hour changes in litigation theory)