Professional Documents
Culture Documents
No. 94-1490
FLEET NATIONAL BANK,
Plaintiff,
v.
ANCHOR MEDIA TELEVISION, INC.,
AND KOVR OF DELAWARE, INC.,
Defendants, Appellants.
__________________
NARRAGANSETT CAPITAL, INC.,
AND EDWIN PFEIFFER,
Defendants, Appellees.
__________________
ERRATA SHEET
ERRATA SHEET
The opinion of
amended as follows:
this court
issued on January
26, 1995,
is
Stephen M. Sacks, with whom Tim Atkeson, Arnold & Porter, Anth
________________
____________ _______________ ____
F. Muri, and Goldenberg & Muri were on brief for appellants.
_______
_________________
Charles I. Poret, with whom Richard M. Sharfman, Mark J. Kenn
________________
____________________ _____________
A. Lauriston Parks, Sharfman, Shanman, Poret & Siviglia, P.
____________________
____________________________________________
Severson & Werson, and Hanson, Curran, Parks & Whitman, were on br
_________________
_______________________________
for
defendants-appellees Narragansett
Capital, Inc.
and Ed
Pfeiffer.
____________________
January 26, 1995
____________________
BOWNES,
BOWNES,
appellants
Anchor
Media
Television,
In
Inc.
this appeal,
("Anchor"), and
against
("Narragansett"),
appellees
Narragansett
KOVR's former
owner, and
Capital,
of
Inc.
Edwin Pfeiffer,
by
complicated
has been
factual
predicate
meticulously rehearsed
the district
court.
See
in a
Fleet Nat'l
of
this
published
Bank v.
___
_________________
It
will be
reiterated
here
only
to the
extent
arises
of
California.
1988.
high bid
at a closed
Narragansett's
out
sale
to
located
the station
auction held
in
The deal
was structured as
-22
merger
were
memorialized
in
merger
("the
as an interpleader action
agreement
filed by plaintiff
KOVR's sale.
district court
escrow funds.
In its
complaint, Fleet
to determine proper
allocation of
and Narragansett,
among others,
Anchor
Anchor
common
allegations
cash
law
alleging breach of
fraud.1
the
actually running
while
commercials
cross-claims
Underlying
against
the Agreement
these
claims
were
flow in
industry
filed
than
months preceding
the
auction by:
that
was customary
it
was
(1)
customary in the
running
fewer
("the overcommercialization
contractually obliged
("the
shifting
ABC
to
newsbrief
subsequent
to
be running
allegation");
years
certain
an ABC
(3)
newsbrief
surreptitiously
operating
expenses
____________________
1. Pfeiffer also brought a cross-claim against Anchor for
breach of his employment contract. The subject matter of
this claim is not before us.
-33
incurred
as
result
Research2
("the
political
candidates
advertisements
of
Nielson
a contract
with
allegation");
and
too
much
money
Nielson
(4)
to
run
Media
charging
political
We
upon
its
bid,
accordance
with
i.e.,
taking
by
standard
the
(essentially, profit)
multiplier")
which
which
was
largely
industry
formulated
valuation
projected
appropriately
it by a
accounted
from January 1,
information
September 1,
enabled
flow
number ("the
certain
In projecting
which
cash
for
practices --
year-of-sale
and multiplying
in
it
to project
cash
of the year.
flow
from
All of the
the
in
Narragansett's
(quantified
concrete
terms,
fraudulent inflation
at trial
as being
Anchor
of its
at least
argued
that
1988 cash
flow
$1,943,000) caused
____________________
2. Nielson Media Research is a rating service that monitors
audience viewership of a television station.
Fleet Nat'l
___________
Bank, 831 F. Supp. at 28.
____
-44
the amount
and multiplying it
valuing the
the fraud.
Anchor reached
this number
of improperly-obtained 1988
by 13.6,
the multiplier it
Sacramento market.
This "effect
cash flow
had used
on the
in
bid"
its value
See
___
203 (1st Cir.
trial
days.
In
the
course
of
the trial,
the
Agreement
or
fraud
advertising allegation.
on
the
basis
of
a breach of
the
political
claims,
overcommercialization,
allegations.4
At the
the
evidence
ABC
It also
newsbrief,
and
underlying
its
Nielson
jury awarded
awarded Anchor $1
million in
punitive
damages.
Subsequent to this verdict, and
then-Fed. R.
for
judgment
the
in accordance with
and Pfeiffer moved
verdict
or,
in
the
____________________
In any event, Narragansett has not raised the absence of
proof of damages as an alternative ground for affirmance.
Because this issue is somewhat involved and has not been
argued, and because we believe that affirmance is otherwise
compelled on the record and briefs before us, we do not delve
further into the damages question at this time.
record,
advisement
the
trial.
district
court
kept
disclosed by
this
motion
addressing
Rule 50(b)
motion,
the court
based
While
sufficient
on
under
the
court
believed
evidence to support
the ABC
newsbrief
that
the jury's
to a
See id. at
___ ___
there
had
been
contract verdict
allegation, id.
___
at
34-36, it
find
breach
of contract
on
the
basis
of either
the
overcommercialization
and
43 n.6.
that
In
or Nielson
allegations, id.
___
Narragansett
and
Pfeiffer
had
not
made
any
regarding the
37, and
Anchor
at 36-37
alleged
failed
to
misrepresentation, id. at 43
___
ordered because
n.6.
viable because
reliance
A
on
the
allow the
37-38
(citing,
inter
_____
Id.
___
v.
Winckler & Smith Citrus Prods. Co., 370 U.S. 19, 29-30 (1962)
__________________________________
-77
652, 662
While
the
court believed
evidence to
regard
fraud claim.
to
that
there
ABC
and
id. at 38-44.
___
had been
verdict on
newsbrief
allegations, it ruled
See
___
entitled
sufficient
this claim
with
overcommercialization
allegation
Id.
___
at 42-43.
Finally,
damages award
the
court
as lacking
negated
the
jury's punitive
evidentiary support.
Id.
___
at 45.
trial commenced
court ruled
on March
court's opinion, a
matter of
law, see
___
Fed. R.
and
newsbrief
Anchor's ABC
proven
Civ. P.
overcommercialization allegation
lasted
allegation
in
claim,
could not
could
connection
be
The
its
overcommercialization
allegation,
and that
Anchor
had not
notice of
the ABC
-88
provided
Narragansett and
newsbrief
allegation
contemplated
Anchor's
by the
attempt
allegation at
Pfeiffer with
within
the
fifteen-day
Agreement.5
to
revive
this time.
The
its
time
court also
political
period
rebuffed
advertising
fraud claim,
The jury
and Pfeiffer on
took
the
apparently
After the
unprecedented
verdict, the
step
of
as a matter
court
granting
the
of law on
the
the reserved
instructions
of Narragansett
motion
could be
so
that
ignored
in
any
error
subsequent
in
the
jury
proceedings.
___
STANDARD OF REVIEW
STANDARD OF REVIEW
__________________
We
matter.
first
Rule
proceedings
deal
50 was
before
the
with
amended
technical,
during
district
the
court.
nomenclature
course of
The
the
amendments
See generally
___ _________
____________________
5. Section 8.5 of the Agreement required any party with a
claim arising out of the Agreement to send a notice of claim
to the breaching party within fifteen business days of coming
to the belief that it had suffered damages in connection with
the claim.
-99
not,
however,
affect
either
the
The amendments
standard
by
which
See
___
id.
___
("If
a motion
verdict
or for
party's
error is
treated
as
motions,
denominated
judgment
however
Such
for judgment
with this
refer to
a motion
notwithstanding
merely formal.
a motion
accordance
therefore
is
rule.").
For
Narragansett's
denominated
as
at
for
directed
the verdict,
a motion
a matter
should be
of
law in
simplicity's sake,
and
Pfeiffer's
the time
of
the
we
various
filing,
as
the
district court's
Pfeiffer
extent
that
post-trial
were entitled
Anchor
is
rulings that
to judgment
as a
novo.
____
challenging
the
Narragansett
and
matter of
See Lama v.
___ ____
law on
Borras,
______
16 F.3d 473, 477 (1st Cir. 1994) (affirming denial of a postverdict Fed. R. Civ. P. 50(b) motion for judgment as a matter
of law); Rolon-Alvarado v.
______________
74,
77 (1st Cir.
scrutinizing
therefrom
in
the
light
Fed. R. Civ. P.
if, after
1 F.3d
the proof
most
and inferences
hospitable
to
derivable
Anchor,
we
-1010
one conclusion:
to judgment.
order
granting Narragansett
and
Pfeiffer a
new trial
was
to go to the
jury, we first
determine the
we decide
correct,
our
circumscribed.
that the
review
Where
the
court's legal
becomes
trial
conclusions
significantly
court
has
more
correctly
Daiflon, Inc.,
_____________
of discretion.
449 U.S.
33, 36
(1980) (per curiam); see also Payton v. Abbott Labs. 780 F.2d
___ ______
___ ____ ______
____________
147, 152 (1st
Miller,
Cir. 1985); 11
(1973) (deference
is appropriate because
2818,
Arthur R.
at 119-20
decide whether
substantial rights of
the parties").
Deference in this
for
two reasons.
First,
its published
which make
verdicts
clear
that courts
opinion,
the
authority two
should set
aside jury
compelling of circumstances.
See
___
-1111
F. Supp.
at
32 (citing
Coffran v.
_______
459 U.S. 1087 (1982), and Borras v. Sea-Land Serv., Inc., 586
______
____________________
F.2d 881, 886 (1st Cir. 1978) (trial court may set aside jury
verdict only
where verdict
(1) is
of
result in a miscarriage
of justice)).
or (3)
And second, in
reasons for
(court could
not
tell
whether
erroneously
jury
submitted
had
awarded
evidence
or
Anchor
damages
improperly
on
allowed
arguments).
Finally,
excluding
we review
evidence
the
offered by
discretion standard.
district court's
Anchor
under
to
affirm
the abuse
of
rulings
the
trial
judge's
Moreover, we are
decisions
"on
any
v. Alioto,
______
26 F.3d
we review
Anchor's
criteria
in mind,
claims.
III.
III.
____
-1212
DISCUSSION
DISCUSSION
__________
Anchor makes
which we
a number
of arguments, the
of analysis.
As to
the first
based on the
order of
Nielson allegation;
jury to have
(2) the
jury
allegation in
to
raise
the
issue
of
been
overcommercialization
in
district
As to
court
improperly
Anchor asserts:
prohibited
its
(1) the
witnesses
from
its
allegation; (4)
of mind"
learned
otherwise erred in
allegation; (3)
renewing
based
on
the
advertising
evidence relevant
that
on the overcommercialization
taking from
it had
to the question
suffered damages
as
of when
Anchor
a result
of the
improper
running
of
local
commercials
during
the
ABC
____________________
6. We have already rejected Anchor's argument that the
district court erred in assuming that the Nielson allegation
partially undergirded the breach of contract claim.
See
___
supra note 4.
_____
-1313
one issue --
fraud based on
the ABC
newsbrief
judgment as a matter of
Anchor
determining
that
reasonable jury
allegation.
involved
As
first
argues
that
the
evidence
was
to have
found
court
surreptitious
erred
in
for
insufficient
fraud based
previously stated,
the claimed
the
on the
Nielson
the Nielson
allegation
shifting to
subsequent
contract
Research.
between
Narragansett
and
Nielson
Media
August 3, 1988, at
a box
KOVR.
One
monthly
that contained
contracts involving
amount
service.
hundreds of
that KOVR
would
On the first
page of
pay
for Nielson's
rating
the appendix, in
a section
captioned
-1414
"Base
space provided
1989.
An
asterisk
corresponding
read
for the
note, typed
"see attached
letter
next
to
1988 through
this
at the bottom
figure,
of the
dated 4/7/88."
April
and
same page,
No letter
was
second
page
computation worksheet.
The
of
the
appendix
included
worksheet included a
space for
Directly
this was
"$3,090.00," which
a space
of May 1988."
typed in
captioned
The figure
was explained
only
discrepancy
between
the
of the appendix
period
May
through
Narragansett's failure
box
monthly rates
base
of contracts
December
1988.
to include
involving
Anchor
KOVR amounted
-1515
alleged
to a
that
in the
fraudulent
to
inflate
misrepresentations
figure
typed on
1988
were
the
appendix,
and
officials
(including
cash
the
first
subsequent
operating expenses in an
flow.
"$10,000"
page
The
base
of the
Pfeiffer),
both
monthly
Nielson
representations
alleged
by
oral
rate
contract
Narragansett
and
in
the
fraud
here),
claim under
Anchor was
Rhode
Island law
required to
prove that
(which
governs
Narragansett and
thereby inducing
misrepresentation to
of the
4/7/88
the
its
Anchor to rely
detriment.
asterisk referring
Nielson contract
justifiably on
See Fleet Nat'l
___ ____________
concluded that, in
interested readers
statements on the
appendix
referencing
to the
second page of
a
$3,000
base
monthly
found
rate for
that
Anchor
representation on
appendix.
May 1988,
no
reasonable jury
justifiably
the first
relied
page of the
on
could have
the
$10,000
Nielson contract's
justifiable,
we
of
whether
regard
as
Anchor's
independently
reliance
supported
was
the
-1616
F.3d at 204.
Under
cannot attach
unless
intentionally
made with
legally viable.
the
236
liability for
misrepresentation
an
intent to
A.2d
at 641;
Di Santo,
________
148
See Alioto, 26
___ ______
at
issue
was
See
___
East
____
deceive.
see
___
also
____
A.2d 273,
fraud
Cliftex
_______
275 (R.I.
1949);
__________
_______
the same
asterisk,
representations
reference
statements of the
court
was not
to
the
that
justifiable compel
deceive.
could reasonably
letter --
to
such an
the
on the
__ ___
there
the
intent
box
of
Accordingly, we
documents
(i.e.,
the
and
same page
____ ____
that the
made with
document
as the
jury
is
--
an
the
crucial alleged
involving
-1717
$10,000
where there
the exclusion of
correct
not think a
term-altering
next page of
____ ____
is no evidence that
our
the conclusion
put, we do
letter,
In
Simply
infer
explicit reference
4/7/88
4/7/88
Anchor's reliance
alleged misrepresentations
an intent to
and references
to determine
figure
KOVR
grant of
intentional.
judgment as
makes
Nielson allegation,
an
alternative
and its
argument
that
the
not
and
introduced
fraud
little
claims.
Anchor
evidence
in
breach of
contends
support
of
that
the
it
Nielson
out of
it
during its
contention,
Anchor
asserts
jettisoning
the contract
closing.
that
the
and fraud
Relying
district
verdicts,
on
court,
this
by
allowed "the
of Anchor's case, a
shows
that
opening and
Anchor specifically
mentioned
closing arguments.
Moreover, Anchor
review of the
testify
incompleteness
to the
4/7/88
the
from
fraudulently "presented to
they should have because
in both
its
supported
letter
to
it
of
the
Nielson
omission of
the
involving
KOVR
what
And
box of
contracts
us a larger
while Anchor
did
arising out
of the
not
quantify
for the
Nielson allegation,
jury
the
damages
it did provide
the
-1818
jury with a
damages theory
at
(i.e., improperly-obtained
its bid)
by which
the
jury could
used in
easily and
In
1988
light
appeal
cannot say
returned at the
conclusion
been
infected
of
by
the
the
first
legally
trial
may
deficient
have
Nielson
incurably
allegation.
________________________________
As
we have noted,
a second basis
determination that
warranties
in
commercials
the
had
this
there were
been
no representations
regarding
running
the
prior
number
to
or
of
Anchor's
conclusion,
provisions which,
Agreement
KOVR
denoting
three
contractual
can be found
"Conduct
"Except as
the
of
the
Business
Until Effective
Effective
Time
[Narragansett]
will
____
Time,"
states:
in writing, until
(i)
operate
its
(Emphasis supplied).
Plainly,
through its
use of
the
future
tense "will,"
this
representation
covers only
the
Thus,
otherwise,7
pertaining
prior
_____
despite
paragraph
Anchor's
5.1(a)
attempts
simply
to Anchor's submission of
__
inflated
cannot
convince
be
damages
to
read
25,
us
as
running of
the
theory
involved
only
the effect
of
artificially
to
its claims.
The second provision, found at paragraph 5.1(e) and
captioned "Preservation
for the same reason.
of Business,"
does not
help Anchor
"[Narragansett]
____________________
7. In what appears to be an attempt to avoid paragraph
5.1(a)'s temporal limitations, the citation to paragraph
5.1(a) in Anchor's brief omits paragraph 5.1(a)'s caption
("Conduct of Business Until Effective Time") and alters the
phrase "will (i) operate" to read "operat[ed]." If this was
deliberate, it
was deceptive;
if a mistake,
it was
inexcusable.
-2020
shall
_____
conduct the
diligently and
business
in the
and operations
ordinary course in
same manner
as heretofore conducted."
Through its
of the
substantially the
(Emphasis supplied).
"shall," this provision
Station
And as we
October 12,
have explained,
time period
are
irrelevant under
the damages
theory
pursued by Anchor.
The
paragraph
final
provision
4.1(f), simply
upon
by
cannot be construed
"customary"
commercialization
"Absence of
Certain Changes
forth a number of
relied
levels
as warranting
at KOVR.
or Events," the
Anchor,
Captioned
provision sets
structure-altering
events
and
transactions, warranting
an
Financial
Statements
[August
31,
1988]."
The
proviso upon which Anchor seizes states that "the Company has
not
. .
(v)
entered
into
. .
any
other
material
other than
Leaving
aside
the
fact
that
Anchor
did
September 28,
at KOVR
1988 (the
not
only
bid that
-2121
here
as
"ordinary
course
observed,
paragraph 4.1(f)'s
of
being
transactions
business."
As
outside
the
of KOVR's
district
"ordinary course
court
of business"
as simply
warranting
into
that
Narragansett
had
not
entered
any
Supp. at 37.
Certainly,
unusual transactions
for a
assets or
sales of commercial
time are
not
the
revenues
generated
lifeblood.
by
Moreover,
such sales
constitute
station's
of evidence that
Narragansett during
excess of
norms
period --
-- threatened
to
even if in
unduly dissipate
industry
KOVR's assets
or
be sure,
which
interpretations
can
the actual
reasonably
__________
should be
left
meaning of
accommodate
to the
Cir.
question
1987)
whether
(applying
a
two
jury.
a contractual
See,
___
can
more
e.g.,
____
Massachusetts law).
provision
or
reasonably
But
support
the
a
-2222
court.
1076,
(1st
Cir.
1989)
(applying
892 F.2d
Michigan
law)
of contract
for the
construction, a matter
course of
business"
proviso --
as warranting customary
which reads
the
commercialization levels at
KOVR during 1988 -- was not one that a reasonable juror could
accept.
sum,
we agree
to
that
determining
well
the
district court
that
connection with
rule
with
the
the
issue
its breach of
court
that these
have affected
the
did
of
overcommercialization
contract claim.
not
abuse
its
improperly asserted
jury's general
We
in
further
discretion
in
allegations may
contract and
fraud
16, in
all respects.8
____________________
8. Because of these rulings, we need not discuss whether the
court's new
trial order
on the fraud
claim against
Narragansett can be alternatively upheld on the basis of the
court's post-trial determination that it should not have
submitted to
the jury the question
of Narragansett's
vicarious
liability as
Pfeiffer's
alter ego
or coconspirator. See Fleet Nat'l Bank, 831 F. Supp. at 44-45.
___ ________________
-2323
Industry
________
the
district
foundation,
Lawrence
court
improperly
testimony
by
Clamage,
Anchor's
regarding
commercialization in
excluded,
the industry.
for
Senior
of
Vice President,
customary
Anchor
lack
levels
of
underscores this
objection, to
industry norms
in the first
contrary ruling
trial, and
to the jury
by
denying
it
a one-day
continuance
abused its
so
that
Sheehan
could appear.
erroneous,
because
discretionary
rulings
were
highly
Anchor's
fraud
premised upon
claim
based
on
an absence of
prejudicial
a matter of law on
overcommercialization
evidence by which
was
Anchor could
the
equities
of
the
situation
involving
-2424
in its
brief,9 we
the court's
admissible
failure to
in
the
frustration with
first
trial
but
not
testimony was
in
the
second.
motion,
we
think
that Anchor
was
entitled
to
an
trial.
As we have explained, the court properly ruled that
the Agreement could not
commercialization
examined
of a
levels
during
representation
Anchor at
called July/August
1988
period
Anchor
day-part summary,
summarized commercialization
and
time
regarding commercialization
KOVR introduced by
income
the
levels
was the
a document
at
sothat
August
1988.
The
July/August
1988 day-part
summary
and August
1988
and understated
commercial-generated
____________________
9. Anchor had more than a month's notice that the second
trial would begin on March 21, 1994.
Despite this notice,
Anchor apparently did not ascertain Sheehan's availability as
a witness until it was in the middle of presenting its case.
Indeed, Anchor did not communicate with Sheehan at all
between January 27, 1994 and March 25, 1994, the date on
which it learned of Sheehan's unavailability.
-2525
income
of a representation to Anchor
that KOVR
Anchor
had no
basis for
arguing
that it
was damaged
ground that
it was irrelevant.
in
the
second
Narragansett and
Anchor's
allegation
this
fraud
claim
ruling, arguing
generated
the
district
Pfeiffer judgment
for failure
demonstrating
trial,
the
based
on
to prove
that it
difference
as a
the
court
matter
of law
on
overcommercialization
damages.
Anchor contests
proved expectancy
between
granted
the
damages by
actual
revenue
lower revenue
both
summary falsely
Anchor
consistently
of
examined in
industry
norms
during the
formulating its
bid.
time
Anchor
period
Anchor
also consistently
reduce commercialization
station
into conformity
levels
in order
with industry
to bring
norms.
the
Given these
an explicit
____________________
legal viability of this quantification in the next section of
our opinion; suffice it to say at this point that Anchor has
waived any argument that evidence of industry norms was
relevant to its expectancy damages theory.
See, e.g.,
___
____
Sandstrom v. Chemlawn Corp., 904 F.2d 83, 86 (1st Cir. 1990)
_________
______________
(deeming waived an argument not made below or in appellant's
opening brief).
-2727
alternative
argument
levels commensurate
____________
that it
expected to
commercialize at
at KOVR in
1988.
Cf. Desjardins
___ __________
21, 23 (1st
apply to
bar a litigant
contradiction
as a
(citations omitted).
of judicial estoppel
from engaging in
means
of
37 F.3d
"may
intentional self-
obtaining unfair
advantage")
quantifying
subtracting the
its
expectancy
damages
by
set forth in
that
repudiating
KOVR
any
was
generating,
suggestion that
and
the
in
explicitly
lower, misrepresented
that,
at
the time
generate the
it been commercialized
it bought
the
station, it
in 1988.
expected to
was if it
same
number of
been
that Narragansett
-2828
run the
actually had
Anchor's
alternative
damages
theory
was
tacit
commercials that
relevant
time in 1988 --
Narragansett
had been
running at
the
at odds with
It
follows, therefore, that the court did not err in ruling that
Anchor had failed to prove expectancy
any fraudulent misrepresentation of
by
Narragansett or Pfeiffer.
law).
disadvantage
____________
commercialization levels
has fraud
action
under
Rhode Island
and Pfeiffer
judgment
as
a matter
based
first
on
the
trial,
of law
on Anchor's
contract and
fraud claims
political advertising
allegation
during the
the
summarily11
precluded
district
court
the
a cause
of
action.
Vartanian v.
_________
1994)."
Anchor's
of its
nothing
better
supporting authority.
Vartanian
_________
summarizes the
propriety
of the
under
Fed.
R.
Anchor's
standard
a district
Civ. P.
highlights
by which
language
from
we review
the
court's dismissal
12(b)(6).
The
of a
claim
exclusion of
the
Thus, despite
deemed it insufficient
court's exclusion
of
the political
to go to
a jury.
it otherwise, the
advertising
allegation
See
___
circumstances
motion to set
Fed.
in
R.
Civ.
which a
aside a properly-entered
P.
60(b)
court may
-3030
(setting
relieve
forth
a party
prior
the
or a
party's
representative
review
from
final
order).12
an abuse of
And
discretion.
we
See,
___
60(b) -- which
under exceptional
circumstances" --
. . "only
reviewed solely
for an
political
the
advertising allegation
criteria
excusable
e.g.,
mistake,
of
arguments on
Rule 60(b).
surprise,
the
[the
second
"had
political advertising]
inadvertence,
any of
delineated in
the time
--
an inadequate
reconsidered
issue
and
of its claim."
foundation upon
that, by
which
its
[had]
Plainly,
to premise
v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir.) ("Rothwell's
_______________
brief
is long
on support
for why
summary judgment
is not
____________________
12. Apparently
believing itself entitled to renew its
political advertising allegation at the second trial as of
right, Anchor never formally moved the court for relief from
the prior order under Rule 60(b). Its arguments in support
of its position were instead set forth in its opposition to
Narragansett's pretrial motion in limine to exclude the
__ ______
allegation from the second trial.
-3131
it
be
almost six
against Rothwell."),
710
(7th Cir.
record
have
reveals
made
those arguments --
in waves --
1987).
Furthermore, our
no "exceptional
relitigation
of
own review
circumstances"
the
allegation
appropriate.
acted well
political
Accordingly, the
of the
which would
advertising
district
court
relate
connection
13-14.
four remaining
We
arguments,
to
arguments
decisions
the
Anchor
district
court
do not
reach the
of the
presses
made
on
in
See supra at
___ _____
merits of these
record compels
us to
of
contract and
legally deficient.
fraud
based on
these
claims were
____________________
13. While we do not address the merits of Anchor's argument
that the court was without the power to grant judgment as a
matter of law to Narragansett and Pfeiffer on the one issue
that went to the jury after the jury had returned a verdict
_____
in their favor, we do note that this type of order is utterly
superfluous. The beneficiary of a jury verdict may, after
all, always assert on appeal (as an alternative basis for
upholding the verdict) a properly preserved argument that the
claim underlying the verdict was legally deficient. And we,
-3232
As already explained,
newsbrief
allegation
running
was
that
Narragansett
local
commercials
at
ABC
fraudulently
time
when
it
was
Anchor
its "effect on
supra at 4-5.
_____
That is
of 1988
times the
to say, Anchor
theory.
revenue generated
multiplier (13.6)
by the
the
improper practice
Anchor used in
formulating its
bid.
As
the
district
court
noted
in
judgment as a matter
granting
of law after
at 9
this damages
Anchor's
of the
Martin Ross,
at a specific point
commercials are
____________________
of
course, would
review such
a legal
where the jury has found in favor of the party or parties who
initially filed the motion.
-3333
"preemptable"
discretion,
have
(i.e.,
able
to
be
run,
in
the
station's
always going to be
on a given
Moreover,
not
have
been
of the improperly-run
run
elsewhere,
thus
fraud
in connection
any of this.
the
ABC
concomitant
breach of
the Agreement
engendered)
except to
the extent
irreplaceable
_____________
order to prove
revenue.
Anchor
In
fact, it
actually affected
newsbrief (and
such fraud
that the
argues,
it had to
any
would have
fraud generated
however, that,
do was
in
quantify
quantified
such
Pfeiffer's burden
revenue,
it
to prove the
became
Narragansett's
extent to which
of their burden of
and
the revenue
proving failure
to mitigate damages).
This argument
contemplate
that a
is unconvincing.
party victimized by
prove, as
__
The law
fraud or
breach of
does not
of its
__ ___
requires that
case, the
____
extent to
-3434
evidence
most of the
showing that
KOVR still
revenues it obtained
it should have
is apparent that
In the face of
by running
Anchor, by proving
would
ABC
only the
to provide
reasoned
the jury
with a basis
damages finding.
_______
upon which
to premise
to prove an
and Pfeiffer
it is incorrect
bore
the burden
to suggest
that
of proving
the
their duty
to prove
failure to
mitigate damages.
The
diligence
and
ordinary
care
in attempting
to
ed.
the existence of
a causal nexus
sought
its damages;
it
is, rather,
the threshold
question of
-3535
of
which Anchor
complained.
Accordingly, the
doctrine of
we think
it clear that
and fraud
deficient
because of
an absence
Anchor's contract
of damages.
We
to the district
court's handling of
these
claims.
IV.
IV.
___
CONCLUSION
CONCLUSION
__________
For the
judgment of the
-3636