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Nos. 10-1702 10-1761 IN THE UNITED STATES COURT OF

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					      Case: 10-1702 Document: 006110926703 Filed: 04/13/2011 Page: 1




                           Nos. 10-1702 / 10-1761


            IN THE UNITED STATES COURT OF APPEALS
                    FOR THE SIXTH CIRCUIT


                       WHITESELL CORPORATION,

                                           Plaintiff-Appellee /
                                           Cross-Appellant,
                                      v.

    WHIRLPOOL CORPORATION, WHIRLPOOL MEXICO S.A. de C.V.,
                   and JOSEPH SHARKEY,

                                           Defendants-Appellants /
                                           Cross-Appellees.


            On Appeal from the United States District Court for the
               Western District of Michigan, Southern Division
                              No. 1:05-CV-679
                    The Honorable Robert Holmes Bell


   THIRD BRIEF FOR DEFENDANT-APPELLANT/CROSS-APPELLEE
                 WHIRLPOOL CORPORATION


John R. Trentacosta                              Stephen M. Shapiro
Scott T. Seabolt                                 Jeffrey W. Sarles
Vanessa L. Miller                                Aaron S. Chait
FOLEY & LARDNER LLP                              Gretchen E. Helfrich
One Detroit Center                               MAYER BROWN LLP
500 Woodward Ave., Suite 2700                    71 South Wacker Drive
Detroit, MI 48226                                Chicago, IL 60606
(313) 234-7100                                   (312) 782-0600
jtrentacosta@foley.com                           jsarles@mayerbrown.com

  Attorneys for Defendant-Appellant/Cross-Appellee Whirlpool Corporation
          Case: 10-1702 Document: 006110926703 Filed: 04/13/2011 Page: 2


                                         TABLE OF CONTENTS
                                                                                                                     Page
INTRODUCTION ....................................................................................................1

ARGUMENT ............................................................................................................3

I.       WHITESELL IS NOT ENTITLED TO LOST PROFIT DAMAGES ..........3

         A.       Paragraph 20 Does Not Bar All Relief.................................................4

                  1.       Whitesell’s interpretation of Paragraph 20 conflicts with
                           its plain text and the parties’ intent............................................5

                  2.       Paragraph 20 should be construed to render it enforceable.......8

                  3.       Any problematic clause may be excised from Paragraph
                           20................................................................................................9

         B.       The UCC Authorizes The Exclusion Of Lost Profit Damages ..........10

                  1.       The parties agreed to preclude lost profit damages .................11

                  2.       Whirlpool’s Purchase Order terms cover the parts for
                           which Whitesell was awarded lost profit damages..................11

                  3.       The UCC and governing precedent require that the
                           parties’ agreement to preclude lost profit damages be
                           upheld.......................................................................................15

         C.       Whitesell Retained Minimum Adequate Remedies ...........................23

II.      ALTERNATIVELY, WHIRLPOOL IS ENTITLED TO JUDGMENT
         AS A MATTER OF LAW OR A NEW TRIAL ON PARTICULAR
         PARTS CLAIMS..........................................................................................27

         A.       The Jury Verdicts On Whitesell’s Dual-Sourced/Diverted Parts
                  Claim Cannot Stand............................................................................28

                  1.       The jury improperly awarded damages for Benton Harbor
                           parts that the SAA excluded from its scope.............................28

                  2.       There was no evidence to support the jury’s verdict for
                           many parts and insufficient evidence to support it for
                           others ........................................................................................30

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        B.       The SAA Did Not Bar Whirlpool’s Safety Stock Purchases.............36

III.    ON WHITESELL’S CROSS-APPEAL, THE DISTRICT COURT’S
        RULING ON THE PREJUDGMENT INTEREST PERIOD SHOULD
        BE AFFIRMED ............................................................................................39

CONCLUSION.......................................................................................................43




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                                    TABLE OF AUTHORITIES

                                                                                                        Page(s)
CASES
Advanced Accessory Sys., LLC v. Gibbs,
  71 F. App’x 454 (6th Cir. 2003) ...................................................................40, 42

AES Tech. Sys., Inc. v. Coherent Radiation,
  583 F.3d 933 (7th Cir. 1978) ..............................................................................23

Ahghazali v. Sec’y of Health & Human Servs.,
  867 F.2d 921 (6th Cir. 1989) ..............................................................................24

Alan Custom Homes, Inc. v. Krol,
   667 N.W.2d 379 (Mich. App. 2003)...................................................................33

Associated Gen. Contractors of Ohio, Inc. v. Drabik,
   250 F.3d 482 (6th Cir. 2001) ............................................................39, 40, 41, 42

B.F. Goodrich Co. v. U.S. Filter Corp.,
   245 F.3d 587 (6th Cir. 2001) ................................................................................9

Brown Bros. Equipment Co. v. State,
   51 Mich. App. 448, 215 N.W.2d 591 (1974)......................................................24

In re Buffalo Coal Co.,
    424 B.R. 738 (Bankr. N.D. W. Va. 2010) ..........................................................22

CSX Transp., Inc. v. Ala. Dep’t of Revenue,
  131 S. Ct. 1101 (2011)..........................................................................................6

Caffey v. Unum Life Ins. Co.,
  302 F.3d 576 (6th Cir. 2002) ..............................................................................41

Coal Res., Inc. v. Gulf & W. Indus., Inc.,
  954 F.2d 1263 (6th Cir. 1992) ............................................................................40

Cognitest Corp. v. Riverside Publishing Co.,
  107 F.3d 493 (7th Cir. 1997) ..............................................................................17

Colonel’s Inc. v. Cincinnati Milacron Marketing Co.,
  1998 WL 321061 (6th Cir. June 1, 1998)...........................................................20
                                                      -iii-
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                                   TABLE OF AUTHORITIES
                                         (continued)

                                                                                                       Page(s)

Computrol, Inc. v. Newtrend, L.P.,
  203 F.3d 1064 (8th Cir. 2000) ............................................................................21

In re Delta Am. Re Ins. Co.,
    900 F.2d 890 (6th Cir. 1990) ................................................................................9

Detroit Radiant Prods. Co. v. BSH Home Appliances Corp.,
  473 F.3d 623 (6th Cir. 2007) ..............................................................................12

Early Dubey & Sons, Inc. v. Macomb Concrete Corp.,
  81 Mich. App. 662, N.W.2d 152 (1978).............................................................24

In re First Magnus Financial Corp., (B.A.P. 9th Cir. Aug. 31, 2010),
    http://207.41.19.15/Web/bap.nsf/869AD7CF45FB27BE882577A
    70078F22F/$file/First+Magnus+Financial+10-1006.pdf?openelement. .....22, 23

General Motors Corp. v. Paramount Metal Products Co.,
  90 F. Supp. 2d 861 (E.D. Mich. 2000) ...............................................................18

Insurance Co. of N. Am. v. NNR Aircargo Serv. (USA), Inc.,
   201 F.3d 1111 (9th Cir. 2000) ............................................................................14

Kaiser Aluminum & Chem. Corp. v. Bonjorno,
  494 U.S. 827 (1990)..........................................................................40, 41, 42, 43

Klapp v. United Ins. Group Agency, Inc.,
   663 N.W.2d 447 (Mich. 2003)..............................................................................5

Krupp PM Engineering, Inc. v. Honeywell, Inc.,
  530 N.W.2d 146 (Mich. App. 1995)...................................................................21

Kunststoffwerk Alfred Huber v. R.J. Dick, Inc.,
  621 F.2d 560 (3d Cir. 1980) .................................................................................4

Latimer v. William Mueller & Son,
   386 N.W.2d 618 (Mich. App. 1986)...................................................................26



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                                    TABLE OF AUTHORITIES
                                          (continued)

                                                                                                         Page(s)

Lebron v. Nat’l Passenger R.R. Corp.,
   513 U.S. 374 (1995)............................................................................................10

M&G Polymers USA, LLC v. Carestream Health, Inc.,
  2010 WL 1611042 (Del. Super. Ct. Apr. 21, 2010) ...........................................26

McJunkin Corp. v. Mechs., Inc.,
  888 F.2d 481 (6th Cir. 1989) ..............................................................................13

Mead Corp. v. McNally-Pittsburg Mfg. Corp.,
  654 F.2d 1197 (6th Cir. 1981) ............................................................................15

Mich. Consol. Gas Co. v. Savoy Oil & Gas, Inc.,
  1998 WL 1991026 (Mich. App. July 10, 1998) ...................................................6

Multimatic, Inc. v. Faurecia Interior Sys. USA, Inc.,
  358 F. App’x 643 (6th Cir. 2009) .......................................................................29

Ozormoor v. T-Mobile USA, Inc.,
  354 F. App’x 972 (6th Cir. 2009) .........................................................................4

Parrott Marine Sys., Inc. v. Shoremaster, Inc.,
  2008 WL 3875432 (Tenn. App. Aug. 21, 2008) ................................................33

Polimeni v. General Motors Corp.,
   2007 WL 1791894 (Mich. App. June 21, 2007).................................................13

Posttape Assocs. v. Eastman Kodak Co.,
  537 F.2d 751 (3d Cir. 1976) ...............................................................................14

Robert Bosch Corp. v. ASC Inc.,
  195 F. App’x 503 (6th Cir. 2006) .......................................................................12

In re Sandwich Islands Distilling Corp.,
    2009 WL 3806680 (Bankr. D. Haw. Nov. 12, 2009...........................................26

Scotts Co. v. Central Garden & Pet Co.,
   403 F.3d 781 (6th Cir. 2005) ........................................................................41, 42

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                                   TABLE OF AUTHORITIES
                                         (continued)

                                                                                                      Page(s)

Skalka v. Fernald Envtl. Restoration Mgmt. Co.,
   178 F.3d 414 (6th Cir. 1999) ..............................................................................40

Stamtec, Inc. v. Anson Stamping Co., LLC,
   346 F.3d 651 (6th Cir. 2003) ........................................................................20, 21

Stryker Corp. v. XL Ins. Am., Inc.,
   2006 WL 1997142 (W.D. Mich. July 14, 2006)...................................................9

Sullivan Indus., Inc. v. Double Seal Glass Co.,
   480 N.W.2d 623 (Mich. App. 1991).....................................................................4

Summit Polymers Inc. v. Atek Thermoforming Inc.,
  2010 WL 1052278 (Mich. App. Mar. 23, 2010) ................................................15

Sundram Fasteners Ltd. v. Flexitech, Inc.,
   2009 WL 3763772 (E.D. Mich. Nov. 9, 2009)...................................................12

Thap v. Mukasey,
  544 F.3d 674 (6th Cir. 2008) ..............................................................................10

Tractebel Energy Marketing, Inc. v. AEP Power Marketing, Inc.,
   487 F.3d 89 (2d Cir. 2007) .................................................................................21

Transmatic, Inc. v. Gulton Indus., Inc.,
   180 F.3d 1343 (Fed. Cir. 1999) ..........................................................................42

Viastar Energy, LLC v. Motorola, Inc.,
   2006 WL 3075864 (S.D. Ind. Oct. 26, 2006) .....................................................22

Weaver v. Ret. Plan,
  323 F. App’x 564 (9th Cir. 2009) .......................................................................43

West Branch Tank & Trailer, Inc. v. Searfoss,
  1998 WL 2016554 (Mich. App. Mar. 10, 1998) ................................................18

Whitesell Int’l Corp. v. Whitaker,
  2011 WL 165405 (Mich. App. Jan. 18, 2011)....................................................27

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                                    TABLE OF AUTHORITIES
                                          (continued)

                                                                                                          Page(s)

Wilkie v. Auto-Owners Ins. Co.,
   664 N.W.2d 776 (Mich. 2003)..............................................................................8

Wood Care X, Inc. v. Dep’t of Cmty. Health,
  2011 WL 222245 (Mich. App. Jan. 25, 2011)....................................................30

STATUTES AND RULE
28 U.S.C. § 1961...............................................................................................passim

Mich. Comp. Laws § 440.1205(1)...........................................................................13

Mich. Comp. Laws § 440.2708................................................................................16

Mich. Comp. Laws § 440.2719................................................................................23

Fed. R. App. P. 28.1(c)(4)........................................................................................43

OTHER AUTHORITIES
32 CJS Evidence § 628 (2010).................................................................................25

1 James J. White & Robert S. Summers,
    UNIFORM COMMERCIAL CODE (5th ed. 1996) ................................................4, 13




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                                INTRODUCTION
      Whirlpool’s First Brief established that Whitesell’s request for lost profit

damages never should have gone to the jury because the parties had agreed to

preclude lost profits and courts consistently uphold such agreements. In response,

Whitesell contends that the parties’ agreement, set forth in Paragraph 20 of

Whirlpool’s Purchase Orders and incorporated in the SAA, barred only

“consequential” lost profits, not “direct” lost profits. But Paragraph 20 made no

such distinction; indeed, it separately barred “consequential damages” and thus

made clear that its preclusion of lost profits meant just what it said. Moreover,

Michigan UCC § 2719(1)(a) authorizes commercial parties to “limit or alter the

measure of damages,” without suggesting that parties may not do so generally with

respect to lost profits. And countless cases hold that they may do so.

      Whitesell further contends that the district court correctly ruled that

Paragraph 20 is unenforceable because it deprives Whitesell of minimum adequate

remedies. But Whitesell’s interpretation of Paragraph 20 would make most of its

text redundant and cannot be reconciled with the parties’ manifest intent to bar

only consequential, incidental, and lost profit damages.

      Moreover, Whitesell is wrong in contending that the only minimum

adequate remedy it had available was lost profits.         The relief that Whitesell

requested in its Amended Complaint expressly included damages for “investments



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in capital made in reliance on Whirlpool’s promises.” R.14 ¶ 180 (emphasis

added). That constitutes a judicial admission that Whitesell had an alternative

adequate remedy—reliance damages. See infra, pp. 24-25. Yet Whitesell opted

not to pursue reliance damages at trial. Instead, Whitesell sought to maximize its

recovery by presenting a single lost profits theory based on its expert’s calculation

of a lost profits percentage. Thus, Whitesell made a deliberate and considered

choice to seek only lost profits from the jury, even though the parties’ agreement

barred lost profits and other types of relief were available. As a matter of law, the

ensuing award of lost profits should be vacated and judgment entered for

Whirlpool on Whitesell’s parts claims.

      In response to Whirlpool’s alternative argument, focusing on particular

parts, Whitesell offers no viable reason why the jury verdicts should not be

vacated. The contract language excluding Benton Harbor parts from the SAA’s

scope is clear and unambiguous; Whitesell presented no or insufficient proof of

liability or damages with respect to many parts for which the jury awarded

damages; and Whirlpool’s obligation to order parts from Whitesell was limited to

“volume requirements” and did not extend to “safety stock.”

      Whitesell’s contention on its cross-appeal that the prejudgment interest

period does not end on the date judgment was entered on the jury verdict conflicts

with the applicable statute, 28 U.S.C. § 1961, and with governing precedent.



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      Finally, a number of assertions in Whitesell’s Statement of Facts are pure

fantasy. Of particular note, Whitesell asserts (at 7) that “Whirlpool admitted at

trial that it executed the SAA knowing the promises it made to Whitesell in the

SAA were false.” Whitesell offers no record citation for that assertion, which is

not surprising because Whirlpool made no such admission.

                                   ARGUMENT

I.   WHITESELL IS NOT ENTITLED TO LOST PROFIT DAMAGES.
      Whirlpool’s First Brief demonstrated that (i) the parties mutually agreed to

preclude lost profit damages, as well as consequential and incidental damages,

leaving all other remedies available in the event of a breach; (ii) the Michigan

UCC requires that such an agreement by commercial parties be upheld; and

(iii) notwithstanding that agreement, Whitesell sought only lost profit damages on

its parts claims. In response, Whitesell offers an interpretation of the limitation of

liability provision that deviates from its plain meaning, as well as legal arguments

that conflict with the mandates of the Michigan UCC and are unsupported by

Whitesell’s cited cases.

      Whitesell also misstates the burden of proof. Whitesell contends (at 24) that

“Whirlpool has the burden of proving ¶20 is enforceable.” Whitesell cites two

cases for that proposition, neither of which says any such thing. They hold only—

and unremarkably—that a party seeking to limit damages pursuant to the UCC



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“must prove an agreement that limits damages.” Kunststoffwerk Alfred Huber v.

R.J. Dick, Inc., 621 F.2d 560, 561 (3d Cir. 1980); accord Sullivan Indus., Inc. v.

Double Seal Glass Co., 480 N.W.2d 623, 635 (Mich. App. 1991). Here, the

existence of such an agreement is undisputed. Whirlpool’s Purchase Orders are a

matter of record (R.435-10, Ex.7), explicitly limit damages in Paragraph 20 (id.),

and are expressly incorporated by the SAA (see First Brief at 10-11). With the

agreement proven, it is up to Whitesell to prove that it is unenforceable. See 1

James J. White & Robert S. Summers, UNIFORM COMMERCIAL CODE § 4-3, at 293

(5th ed. 1996) (“the party raising the issue [of unconscionability] has the burden of

proof”); Ozormoor v. T-Mobile USA, Inc., 354 F. App’x 972, 974 (6th Cir. 2009)

(the party asserting unconscionability bears the burden of proving it) (citing Morris

v. Metriyakool, 344 N.W.2d 736, 742 (Mich. 1984)). Whitesell did not satisfy that

burden in the court below and has not done so here.

      A.     Paragraph 20 Does Not Bar All Relief.
      The district court could support its ruling that Paragraph 20 bars Whitesell

from obtaining any relief only by replacing much of the language of that provision

with five ellipses. As demonstrated below, Whitesell fails in its attempt to reach

the same result without the ellipses. Whitesell also offers no viable reason not to

interpret Paragraph 20 so as to make it enforceable, or to excise any problematic

clause rather than invalidate the entire provision.



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             1.   Whitesell’s interpretation of Paragraph 20 conflicts with its
                  plain text and the parties’ intent.
      As demonstrated in the First Brief (at 22-26), Paragraph 20 of Whirlpool’s

Purchase Orders bars three types of damages—anticipated profits, consequential

damages, and incidental damages—in three types of specified situations.

Whirlpool illustrated that meaning by inserting numbers before each of those

specified situations as follows:

             LIMITATION ON BUYER’S LIABILITY: In no event shall
             Buyer be liable to Seller for anticipated profits or for incidental
             or consequential damages [1] for a claim of any kind, or [2] for
             any loss or damage arising out of or in connection with this
             agreement, or [3] from any performance or breach, termination
             or expiration of this agreement or any order.

      Whitesell (at 31) tries to defend the district court’s view that Paragraph 20

bars any and all damages by inserting letters in Paragraph 20 so that it reads as

follows:

             In no event shall Buyer be liable to Seller [A] for anticipated
             profits or for incidental or consequential damages for a claim of
             any kind, or [B] for any loss or damage arising out of or in
             connection with this agreement, or [C] from any performance or
             breach, termination or expiration of this agreement or any order.

Whitesell’s interpretation cannot be right because it would make the [A] clause

redundant. The [B] clause alone would preclude “any loss or damage,” so nothing

is added by additionally barring the specific types of damages listed after [A]. See

Klapp v. United Ins. Group Agency, Inc., 663 N.W.2d 447, 453 (Mich. 2003)



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(under Michigan law, contracts must be construed to avoid redundancy and

surplusage).

      Whitesell (at 32-33) brushes off an additional problem with its interpretation

that arises from the ejusdem generis canon. See First Brief at 24. As the Supreme

Court recently explained, ejusdem generis ensures “that a general word will not

render specific words meaningless.” CSX Transp., Inc. v. Ala. Dep’t of Revenue,

131 S. Ct. 1101, 1113 (2011). Yet, Whitesell would have the general term “any

loss or damage” render the specific terms “anticipated profits” and “incidental or

consequential damages” meaningless.

      The district court sought to avoid these problems by impermissibly inserting

five sets of ellipses into Paragraph 20. Whitesell’s approach is no better because

its inserted letters simply highlight the redundancy that refutes the district court’s

theory.   By contrast, reading Paragraph 20 to bar only lost profits and

consequential and incidental damages is true to its plain meaning and gives effect

to every term without redundancy. “When attempting to ascertain the meaning of a

contract, a court should strive to give all of its terms reasonable, effective and

lawful meaning.” Mich. Consol. Gas Co. v. Savoy Oil & Gas, Inc., 1998 WL

1991026 (Mich. App. July 10, 1998).

      Whirlpool’s reading also aligns with the parties’ reasonable intent.         As

Whirlpool showed (First Brief at 24-26), commercial parties frequently exclude



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consequential, incidental, and lost profit damages to control their risks, and courts

consistently uphold limitation of liability provisions virtually identical to

Paragraph 20. Indeed, as Whirlpool described (id. at 26) and Whitesell does not

deny, Whitesell’s own purchase orders exclude “direct, indirect, special,

consequential, incidental or other losses or damages.”         R.567 ¶ 5 (emphasis

added). If Whitesell’s argument were accepted in this case, then Whitesell’s own

purchase orders would be unenforceable.

      Whitesell’s argument is inconsistent not only with its own purchase orders,

but also with its conduct under the SAA. It is undisputed that Whitesell accepted

thousands of parts orders under Whirlpool Purchase Orders—without ever once

objecting to the limitation of liability language in Paragraph 20. As Neil Whitesell

testified, “[w]e’ve always received purchase orders.” Tr.512. If Paragraph 20

precluded any recourse by Whitesell in the event of a breach by Whirlpool, as

Whitesell argues in its brief, why would Whitesell have continued to do business

with Whirlpool? The fact is that no rational party, much less a sophisticated

commercial party like Whitesell, would do business under terms that offer it no

relief if the other party breaches.           Whitesell’s (and the district court’s)

interpretation of Paragraph 20 is thus contrary both to its plain language and to the

presumption that commercial parties intend reasonable contract terms. See First

Brief at 25.



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            2.    Paragraph 20 should be construed to render it enforceable.
      Whirlpool’s First Brief demonstrated (at 26-27) that even if there were

alternative acceptable readings of Paragraph 20, the district court was obliged to

adopt the reading that would make the provision lawful.         Under Whirlpool’s

interpretation, Paragraph 20 is lawful because it leaves Whitesell with minimum

adequate remedies, indeed all remedies other than consequential, incidental, and

lost profit damages. Under Whitesell’s interpretation, Paragraph 20 is unlawful

because it leaves Whitesell without any remedy at all. The district court should not

have adopted the unlawful interpretation.

      Whitesell suggests (at 48) that Paragraph 20 could be rendered enforceable

without adopting Whirlpool’s reading by removing the term “anticipated profits”

and replacing it with the term “indirect lost profits.” But the parties expressly

agreed to bar all—not just a subset of—“anticipated profits.” Purchase Order,

R.435-10, Ex.7.    It is not the province of the courts to rewrite contracts, as

Whitesell demands. See Wilkie v. Auto-Owners Ins. Co., 664 N.W.2d 776, 782

(Mich. 2003) (courts may not “rewrite” contracts but rather are “to enforce the

agreement as written absent some highly unusual circumstance”).

      Finally, Whitesell argues (at 32) that Paragraph 20 must be construed against

its drafter, Whirlpool. But the contra proferentem canon does not apply unless the

contract is “genuinely ambiguous” and, even then, not where the contract was



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negotiated by sophisticated commercial parties, as was indisputably the case here.

See In re Delta Am. Re Ins. Co., 900 F.2d 890, 892 n.4 (6th Cir. 1990) (canon

applicable only in cases of “unequal sophistication or bargaining power”); B.F.

Goodrich Co. v. U.S. Filter Corp., 245 F.3d 587, 597 (6th Cir. 2001) (rejecting

contra proferentum argument by “a large and sophisticated company”); Stryker

Corp. v. XL Ins. Am., Inc., 2006 WL 1997142, at *12 (W.D. Mich. July 14, 2006)

(under Michigan law “the contra proferentum rule has no application where the

contract between the parties is the product of negotiation”). See First Brief at 37-

38.

             3.   Any problematic clause may be excised from Paragraph 20.
      Whirlpool’s First Brief also demonstrated (at 27-29) that even if the “any

loss or damage” clause in Paragraph 20 raised an enforceability issue, the court

should have excised that clause rather than invalidate the entire provision.

Whitesell does not attempt to distinguish the cases cited by Whirlpool for that

proposition, instead (at 42) summarily dismissing them as involving “unrelated

areas of law.” But those cases address the very area of law at issue here—contract

law—and hold that problematic clauses should be blue-penciled to ensure

enforceability of the provisions in which they are found.

      Whitesell also asserts (at 41) that the UCC’s directive to strike any “clause”

making a provision unenforceable means that the entire provision, not a



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“fragment” of the provision, must be stricken. That assertion is inconsistent with

the UCC language. See First Brief at 28. Whitesell does not explain why the UCC

would authorize deleting a “clause” if its intent were to mandate deletion of the

entire provision in which the clause appears.

      Finally, Whitesell argues (at 41) that Whirlpool’s argument on this point

should not be considered because it was first raised below in Whirlpool’s motion

for reconsideration. Whitesell offers no response to Whirlpool’s showing (First

Brief at 29 n.6) that Whirlpool had no opportunity to raise that argument prior to

the district court’s ruling that it sought to have reconsidered. The only case cited

by Whitesell, Thap v. Mukasey, 544 F.3d 674 (6th Cir. 2008), involved an

argument that, unlike Whirlpool’s, was not raised at all before the finder of fact in

that immigration case.    And here the district court actually (but erroneously)

decided the question in its reconsideration order. Mem. Op. and Order, R.661, at

2-3; see Lebron v. Nat’l Passenger R.R. Corp., 513 U.S. 374, 379 (1995) (courts

may review any issue “so long as it has been passed upon” by the court below).

      B.     The UCC Authorizes The Exclusion Of Lost Profit Damages.
      Whitesell cannot escape the fact that it agreed with Whirlpool to preclude

lost profit damages. The Michigan UCC and governing precedent require that such

agreements be enforced.




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             1.   The parties agreed to preclude lost profit damages.
      Paragraph 20 is an agreement between commercial parties to limit liability in

the event of a litigated dispute, the type of agreement that courts consistently

recognize is enforceable under the UCC. See First Brief at 31-33.

      Whitesell contends (at 47) that the parties did not negotiate the Purchase

Order terms. But the Purchase Orders—which Whitesell repeatedly accepted with

each order over the entire life of the SAA—expressly stated that these very terms

“constitute the parties’ contractual agreement.” Purchase Order, R.435-10, Ex.7,

¶ 1. Moreover, it is a matter of record that, during the negotiations for the 2002

SAA, Whitesell unsuccessfully sought to remove the SAA provisions

incorporating the Purchase Orders and to add language requiring that Purchase

Orders be signed by both parties to be effective. See First Brief at 10-11. Thus,

Whitesell was well aware that the 1995 SAA incorporated Whirlpool’s Purchase

Orders and that the 2002 SAA repeated and reaffirmed that incorporation.

Whitesell’s belated attempt to claim lack of agreement is refuted by this record.

             2.   Whirlpool’s Purchase Order terms cover the parts for which
                  Whitesell was awarded lost profit damages.
      Whitesell tries to limit the scope of its agreement by contending (at 42-44)

that Whirlpool’s Purchase Orders do not apply to parts that Whirlpool did not

order. The district court made no such ruling, and in any event the SAA generally

incorporated the Purchase Orders by stating that its terms were “in addition to [the]


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         Case: 10-1702 Document: 006110926703 Filed: 04/13/2011 Page: 20



terms, conditions and provisions set forth in Whirlpool Purchase Orders.” SAA,

R.424-3, p.2; see also id. § 16.2 (terms in “Purchase Orders” supplement those in

SAA with respect to “the relationship between the parties”).      “Michigan law

permits a party to incorporate terms or documents from other writings.” Robert

Bosch Corp. v. ASC Inc., 195 F. App’x 503, 505 (6th Cir. 2006). The SAA made

clear that the terms of the Purchase Orders bound the parties generally, governing

all contractual disputes between them.

      Moreover, the SAA provided that Whirlpool’s orders “will be pursuant to

blanket Purchase Orders” (R.424-3 § 3.1) (emphasis added), contemplating broad

and continuing applicability of the Purchase Order terms. See also SAA § 1

(definition of “Purchase Order”) (“Purchase Order shall mean a blanket purchase

order”). As this Court has explained, the “trade meaning” of the term “blanket

purchase order” is that “it can last for some time.” Detroit Radiant Prods. Co. v.

BSH Home Appliances Corp., 473 F.3d 623, 631 (6th Cir. 2007); accord Sundram

Fasteners Ltd. v. Flexitech, Inc., 2009 WL 3763772, at *8 (E.D. Mich. Nov. 9,

2009).

      It is undisputed that Whirlpool’s standard Purchase Orders would have been

issued for all parts ordered by Whitesell. See SAA, R.424-3 § 1 (definition of

“Item”) (“Whirlpool will issue Purchase Orders pursuant to the process defined in

the Agreement”). As Neil Whitesell testified about Whirlpool, “They have to issue



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      Case: 10-1702 Document: 006110926703 Filed: 04/13/2011 Page: 21



a purchase order within their system to be able to buy [parts]. * * * That was just

standard practice.” Tr.330. Whirlpool’s Purchase Orders, used repeatedly over

many years by these parties, reminded Whitesell again and again that it could not

claim lost profits for any breach or any other performance shortcoming. See

Polimeni v. General Motors Corp., 2007 WL 1791894, at *3 (Mich. App. June 21,

2007) (even where plaintiff never signed a purchase order, “under the general

terms of the contract, his performance of services under the stated terms

constituted his agreement to those terms”).

      These commercial parties had an established course of dealing under

Whirlpool’s Purchase Orders and the SAA. The Michigan UCC regards such a

“course of dealing” as “establishing a common basis of understanding for

interpreting their expressions and other conduct.”           Mich. Comp. Laws

§ 440.1205(1); see McJunkin Corp. v. Mechs., Inc., 888 F.2d 481, 488 (6th Cir.

1989) (course of conduct established terms of relationship where seller sent

numerous shipments after receiving buyer’s purchase orders); 1 James J. White &

Robert S. Summers, UNIFORM COMMERCIAL CODE § 3-3, at 192 (5th ed. 1996)

(“The agreement of the parties includes that part of their bargain that may be found

in course of dealing”).    As the Ninth Circuit has put it, “invoice terms and

conditions may supplement shipping agreements if there has been a sufficient

course of dealing.” Insurance Co. of N. Am. v. NNR Aircargo Serv. (USA), Inc.,



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       Case: 10-1702 Document: 006110926703 Filed: 04/13/2011 Page: 22



201 F.3d 1111, 1113-14 (9th Cir. 2000) (reception of 47 identical invoices over 3

years put parties “on notice of the terms and conditions contained in them,”

including liability limit, even where invoice was not sent with disputed shipment);

see also Posttape Assocs. v. Eastman Kodak Co., 537 F.2d 751, 756 (3d Cir. 1976)

(“a limitation of damages may be imposed” based on a “course of dealing”). Here,

it is even clearer that the parties agreed to preclude lost profits for all parts covered

by the SAA because their course of dealing simply confirms what they had already

expressed in writing.

      Furthermore, Paragraph 20 states that lost profits are precluded “from any

performance or breach, termination or expiration of this agreement or any order.”

Purchase Order, R.435-10, Ex.7 (emphasis added).                  The provision thus

distinguishes a breach of the agreement, as asserted by Whitesell in this case, from

contract performance such as the placement of an order, refuting Whitesell’s

contention that only placed orders are subject to Paragraph 20. And that broad

language makes clear that Whitesell could not get lost profit damages even from a

“termination” of the parties’ relationship, which by definition would mean that no

more parts were being ordered or Purchase Orders issued. Thus, the Purchase

Orders provide binding terms governing the parties’ relationship as a whole, which

is why they are incorporated in the SAA.




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      Whitesell (at 43) tries to avoid that conclusion by asserting that the term

“agreement” in Paragraph 20 is limited to the Purchase Order itself. But the SAA

expressly incorporates the Purchase Order terms without any indication that the

limitation of liability terms were excluded. See Mead Corp. v. McNally-Pittsburg

Mfg. Corp., 654 F.2d 1197, 1205 (6th Cir. 1981) (rejecting consequential damages

because there was “no indication” that the parties “sought to exclude” a damages

limitation from a contract incorporating purchase order terms).

      Whitesell (at 46-47) contends that it does not matter that the Purchase Order

terms are incorporated in the SAA, citing Summit Polymers Inc. v. Atek

Thermoforming Inc., 2010 WL 1052278, at *5 (Mich. App. Mar. 23, 2010). But

Summit Polymers says nothing of the sort. It involved a purchase order term that

was “no longer a term of the parties’ contract” because the parties had negotiated a

new contract that did not incorporate such purchase orders. Id. Here, by contrast,

the parties expressly negotiated and reaffirmed the incorporation of Whirlpool’s

purchase orders in the 2002 SAA.

            3.    The UCC and governing precedent require that the parties’
                  agreement to preclude lost profit damages be upheld.
      The UCC makes agreements to limit damages liability enforceable.

Michigan UCC § 440.2719(1)(a) expressly provides that contracting parties “may

limit or alter the measure of damages recoverable under this article” (emphasis

added). See First Brief at 31-33 (citing cases upholding agreements to exclude lost


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       Case: 10-1702 Document: 006110926703 Filed: 04/13/2011 Page: 24



profit damages).      Whitesell contends that this UCC provision applies only to

“consequential” and not to “direct” lost profits; Paragraph 20 bars only

consequential lost profits; and the jury awarded Whitesell only “direct” lost profits.

See Second Brief at 27-30, 42-48. Whitesell’s strained argument fails in light of

the text of both the UCC and Paragraph 20, and Whitesell’s argument contradicts

its position below.

      First, Michigan UCC § 440.2719(1)(a) broadly authorizes parties to limit

damages liability, and it does so without any reference to “direct” damages. By

providing that contracting parties may “limit or alter the measure of damages

recoverable under this article,” it necessarily authorizes limitations on the lost

“profit” damages recoverable under Section 2708(2). Subsection (2) provides an

exception where “circumstances cause an exclusive or limited remedy to fail of its

essential purpose,” an exception not at issue in this case (and thus not addressed by

the district court).      Subsection (3) provides an additional exception for

“[c]onsequential      damages”   where   excluding    such    damages     would    be

“unconscionable.”      In sum, Section 2719 broadly authorizes parties to limit

damages, including lost profit damages, so long as any limitation or exclusion of

consequential damages is not unconscionable.

      That exception does not apply here. Whirlpool has shown that Paragraph 20

is not unconscionable. First Brief at 38-40. Whitesell (at 26) takes Whirlpool to



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task for stating that the district court found Paragraph 20 “unconscionable.” But

Whirlpool was simply quoting the court itself, which deemed Paragraph 20 to be

“substantive[ly] unconscionab[le].” Mem. Op. & Order, R.661, at 3 n.1. Nor is

the issue here consequential damages, but rather the lost profits squarely barred by

Paragraph 20 (which separately bars consequential damages). Thus, nothing in

Section 2719 supports Whitesell’s contention that the UCC’s broad authorization

to “limit or alter the measure of damages” does not apply to the “anticipated

profits” referenced in Paragraph 20.

      Whitesell also suggests (at 37-38) that the UCC does not authorize parties to

exclude a seller’s lost profits. But unlike other UCC provisions, Section 2719 is

not directed only to buyers or sellers.      And Whirlpool cited numerous cases

permitting buyers to exclude lost-profits claims of sellers. First Brief at 38-39.

Whitesell’s attempt (at 39-40) to distinguish those cases fails. In Cognitest Corp.

v. Riverside Publishing Co., 107 F.3d 493, 496 (7th Cir. 1997), the court of appeals

held that a seller could not obtain lost profits due to a contract provision that

“precludes recovery of the lost profit damages alleged.” In Safety Socket, 2009

WL 1508377, at *14 (E.D. Mich. May 29, 2009), although the court put off a

ruling on damages pending discovery, it made clear that “any claims to damages”

by the seller must be constrained by the parties’ contract, which “explicitly

disclaims lost profits.” In West Branch Tank & Trailer, Inc. v. Searfoss, 1998 WL



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        Case: 10-1702 Document: 006110926703 Filed: 04/13/2011 Page: 26



2016554, at *3 (Mich. App. Mar. 10, 1998), the court upheld an exclusive remedy

provision against a seller’s challenge. And in General Motors Corp. v. Paramount

Metal Products Co., 90 F. Supp. 2d 861, 874 (E.D. Mich. 2000), the court upheld a

purchase order’s exclusive remedy because the seller could still recover the “actual

costs of work-in-progress and raw materials,” just as Whitesell could have sought

here.

        Second, Paragraph 20 precludes Whitesell from recovering “anticipated

profits” and separately precludes Whitesell from recovering “consequential

damages.”        Purchase Order, R.435-10, Ex. 7.        Thus, the parties plainly

distinguished between the two, and Whitesell’s attempt to limit the exclusion of

“anticipated profits” to “consequential” lost profit damages fails. Paragraph 20 by

its terms bars all damages for “anticipated profits,” no matter how they are

characterized.

        Whitesell admits (at 45 n.28) that its position on this issue contradicts its

position in the district court. Whitesell vehemently argued below that “the lost

profit damages at issue here are direct damages,” and that it was “difficult to

support” the suggestion that “¶ 20 permits direct damages.” Whitesell’s District

Court Reply Brief, R.576, at 2-3. Whitesell tries to justify its change of mind by

pointing to “recent decisions” from far-flung trial courts in Hawaii, West Virginia,

and Delaware. But all three decisions, in addition to involving very different



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factual situations, were issued while the district court proceeding in this case was

still pending.

       Whitesell (at 34) invokes a supposed “admission” by Whirlpool that

Paragraph 20 allows direct damages. That is not an admission but simply a plain

reading of Paragraph 20, which bars consequential, incidental, and lost profit

damages and says nothing about direct damages. Whitesell complains (at 34) that

Whirlpool has offered no alternative “direct damages” methodology, but it was

Whitesell’s burden to prove its damages in light of Paragraph 20, not Whirlpool’s.

And Whitesell’s own complaint alleged it could prove reliance damages. See

infra, p. 24.

       Third, Whitesell sought and was awarded “lost profits” by the jury without

any suggestion that those “lost profits” were “direct” rather than “consequential.”

Whitesell does not deny that its expert, William Bradshaw, testified only about

“lost profit” damages on Whitesell’s parts claims, without drawing any distinction

between “direct” and “consequential” lost profits. See First Brief at 16, 34-35. In

fact, Whitesell admits (at 16) that Bradshaw applied what it calls “Whitesell’s

actual annual historical margins” to determine Whitesell’s damages. That is a pure

“lost profits” approach, which is but one of many ways to calculate damages. And

that was a choice made by Whitesell and its expert to maximize Whitesell’s

damages (accomplished by using a grossly inflated 40% profit rate, Tr.1543). See



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       Case: 10-1702 Document: 006110926703 Filed: 04/13/2011 Page: 28



First Brief at 34-35. Whitesell also does not deny that the jury awarded solely

“lost profits” on Whitesell’s parts claims, just as the verdict form submitted by

Whitesell specified without distinguishing between “direct” or “consequential” lost

profits. Jury Verdict Form, R.742.

      It was Whitesell’s deliberate tactical choice to maximize damages by

requesting only lost profits on its parts claims. That was a calculated risk in light

of the parties’ agreement to exclude lost profit damages in Paragraph 20.

Whitesell’s attempt to escape that considered decision by labeling the lost profits it

was awarded “direct” as opposed to “consequential” is simply an argument

concocted for appeal with no support in the record.

      Finally, the cases on which Whitesell relies for its direct/consequential

damages argument offer it no support. Colonel’s Inc. v. Cincinnati Milacron

Marketing Co., 1998 WL 321061 (6th Cir. June 1, 1998) (Second Brief at 27), is

an unpublished opinion that does not even mention “direct” damages, much less

distinguish them from “consequential” damages. As explained above, Whitesell

sought to pursue—and was awarded—only “lost profit” damages on its parts

claims. Whitesell also cites Stamtec, Inc. v. Anson Stamping Co., LLC, 346 F.3d

651 (6th Cir. 2003), which says nothing at all about any issue on this appeal. In

Stamtec, there was no limitation of liability provision barring lost profits. The

Court simply rejected a contention that the prevailing party had not “actually



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experienced any lost profits,” ruling that the “uncontested facts” showed that the

party had suffered such losses. Id. at 654-55. In contrast, the question here is not

whether Whitesell incurred lost profits, but whether Paragraph 20 bars their

recovery.

        The sole Michigan case cited by Whitesell on these issues is Krupp PM

Engineering, Inc. v. Honeywell, Inc., 530 N.W.2d 146, 148-49 (Mich. App. 1995).

There the court simply found that a manufacturer’s limitation of warranty liability

in a customer service invoice was not conspicuous, a defect not at issue in this

case.

        Whitesell cites a number of cases from other jurisdictions that likewise offer

it no support. In Tractebel Energy Marketing, Inc. v. AEP Power Marketing, Inc.,

487 F.3d 89, 111 (2d Cir. 2007) (Second Brief at 29), the court did not address any

limitation of liability provision, instead addressing whether the plaintiff had to

prove the extent of its general damages “to a reasonable certainty,” a question not

at issue here. In Computrol, Inc. v. Newtrend, L.P., 203 F.3d 1064, 1070 (8th Cir.

2000) (Second Brief at 29), the court did address a limitation of liability clause,

holding that it “unambiguously precluded Computrol from recovering the

prospective lost profits it would have earned”—precisely what the district court

should have held in this case.




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      In Viastar Energy, LLC v. Motorola, Inc., 2006 WL 3075864, at *4 (S.D.

Ind. Oct. 26, 2006) (Second Brief at 29-30), the limitation of liability clause

precluded “consequential” damages but—unlike Paragraph 20 in this case—did not

preclude lost profit damages. Given that circumstance, the court unsurprisingly

rejected Motorola’s contention that the parties agreed to preclude lost profit

damages. In re Buffalo Coal Co., 424 B.R. 738 (Bankr. N.D. W. Va. 2010)

(Second Brief at 45-46), involved a limitation of liability provision that excluded

“lost profits” but also made “direct actual damages” the “sole and exclusive

remedy.” The court found that the damages at issue were “direct actual damages”

and thus awardable pursuant to the terms of that provision, terms not found in

Paragraph 20 of Whirlpool’s Purchase Orders. Id. at 743.

      Finally, In re First Magnus Financial Corp. (B.A.P. 9th Cir. Aug. 31, 2010)

(Second Brief at 28), an unpublished opinion from the Ninth Circuit’s Bankruptcy

Appellate Panel available only on the internet,1 involved a service agreement with

a limitation of liability provision that excluded “consequential damages, including

but not limited to *** lost profits.” Id. at 12-13. That provision expressly made

lost profits a subset of consequential damages, whereas Paragraph 20 expressly




1
       http://207.41.19.15/Web/bap.nsf/869AD7CF45FB27BE882577A70078F22F
/$file/First+Magnus+Financial+10-1006.pdf?openelement.

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distinguished lost profits from consequential damages. Thus, First Magnus is not

on point as to the issue presented here.

      C.      Whitesell Retained Minimum Adequate Remedies.
      As explained in Whirlpool’s First Brief (at 33), a comment to Michigan

UCC § 440.2719 provides that, although parties are free to limit damages,

“minimum adequate remedies” must remain available. Based on this comment

which Whitesell correctly notes (at 24 n.15) is dictum lacking the force of law,

Whitesell incorrectly contends that the exclusion of consequential, incidental, and

lost profit damages in Paragraph 20 deprived it of any minimum adequate remedy.

      As Whitesell notes, whether minimum adequate remedies are available must

be determined based on the particular circumstances of each case. Second Brief

25, citing AES Tech. Sys., Inc. v. Coherent Radiation, 583 F.2d 933, 941-42 (7th

Cir. 1978) (upholding limitation of liability clause after determining that minimum

adequate remedies remained available). Here, Whitesell acknowledges (at 33) that

it was awarded $3.3 million in damages on its inventory claims. It argues that it

was entitled to additional relief on its parts claims but fails to note that it also

received over $120 million in revenues and $55 million in profits for parts ordered

by Whirlpool under the 2002 SAA, as Whitesell’s own expert testified. Tr.1543

(Bradshaw).




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      Whitesell also could have sought reliance damages based on its investments

in reliance on Whirlpool’s SAA commitments. See First Brief at 34. Whitesell

wrongly contends (at 34) that Whirlpool waived this argument by not raising it in

the district court. In fact, Whirlpool explicitly told the district court:

             The 2002 SAA did not preclude Whitesell from seeking other
             forms of damages or other remedies. See, e.g., Early Dubey &
             Sons, Inc. v. Macomb Concrete Corp., 81 Mich. App. 662, 266
             N.W.2d 152, 160 (1978) (allowing the recovery of expenses
             incurred in reliance on a contract where lost profits were not
             available); Brown Bros. Equipment Co. v. State, 51 Mich. App.
             448, 451, 215 N.W.2d 591, 593 (1974) (“the reliance interest is
             that interest of the nondefaulting party in the expenditure which
             he made or the property which he transferred or consumed in
             [r]eliance on the contract”).

Whirlpool’s Reply Brief, R.493, at 2 (emphasis added).               Whitesell’s waiver

argument therefore has no basis.

      Whitesell’s substantive response fares no better. Whirlpool showed that

Whitesell could have claimed reliance damages based on the substantial

investments it made in reliance on the SAA. Whitesell responds (at 34) that its

investments were made in reliance on the 1995 SAA, not the 2002 SAA. But

Whitesell’s Amended Complaint, filed in September 2005 and asserting claims

under the 2002 SAA, expressly demanded damages for “investments in capital

made in reliance on Whirlpool’s promises.” Amended Complaint, R.14, ¶ 180

(emphasis added). That is a binding admission. See Ahghazali v. Sec’y of Health

& Human Servs., 867 F.2d 921, 927 (6th Cir. 1989) (“Statements in pleadings that


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acknowledge the truth of some matter alleged by an opposing party are judicial

admissions binding on the party making them”); 32 CJS Evidence § 628 (2010)

(“An admission in a pleading on which a party goes to trial is conclusive against

him”). It was Whitesell’s decision to drop that request and not pursue reliance

damages at trial.

      Moreover, there is no factual basis for now asserting that Whitesell ceased

its admitted investments and other expenditures in “equipment, facilities, people”

(Tr.182) and in “capital improvements and resource capacity” (Affidavit of Neil

Whitesell, R.94 ¶ 4) after 2002. The 2002 SAA increased the need for such

investments and expenditures in reliance on Whitesell’s renewed relationship with

Whirlpool.    For example, Whitesell hired a regional account manager, Steve

Garapic, in reliance on the new business contemplated in Exhibit B-1 of the SAA.

Tr.804 (O’Neil); see also Tr.1303 (Garapic). Whitesell could have quantified

amounts paid to Garapic in salary and benefits as an element of reliance damages.

      Thus, Whitesell has not shown that, given the availability of alternative

damages measures, Paragraph 20’s exclusion of lost profits and consequential and

incidental damages left it without minimum adequate remedies. Whitesell cannot

escape its own decision to forgo those alternatives and seek solely lost profit

damages on its parts claims.




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       Case: 10-1702 Document: 006110926703 Filed: 04/13/2011 Page: 34



      Whitesell (at 35) cites Latimer v. William Mueller & Son, 386 N.W.2d 618,

625 (Mich. App. 1986), for its contention that reliance damages would be

“illusory.” But Latimer does not even mention reliance damages, instead holding

that circumstances caused an exclusive return-of-the-purchase-price remedy for

breach of warranty to fail of its essential purpose in violation of Michigan UCC

§ 440.2719(2), a provision not at issue in this case.

      Whitesell’s cited cases for its minimum adequate remedies argument also

are far off-point. In In re Sandwich Islands Distilling Corp., 2009 WL 3806680

(Bankr. D. Haw. Nov. 12, 2009) (Second Brief at 37), the parties’ contract had a

limitation of liability provision that expressly excluded only consequential lost

profits. Id. at *4. The court’s holding was that a specific performance remedy

ordered by arbitrators was not minimally adequate because the breaching party

refused to comply with it. Id. at *5. That ruling says nothing about the dispute

here in this very different context. Whitesell also relies on dicta from a state trial

court in M&G Polymers USA, LLC v. Carestream Health, Inc., 2010 WL 1611042

(Del. Super. Ct. Apr. 21, 2010) (Second Brief at 36-37). The court previously had

ruled that a limitation of liability provision did not apply by its terms to the type of

claims at issue. Id. at *29. In reaffirming that ruling on a motion for new trial, the

court speculated that if the provision did apply, it would be unenforceable for

failing to provide minimum adequate remedies.           Id. at *30-32.    Beyond this



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dictum, the court addressed none of the issues before this Court, including the

adequacy of such other remedies as reliance damages.

                                     *    *   *

      Whirlpool agrees with Whitesell’s view (at 47) that Paragraph 20 must be

given a “reasonable, fair and just” meaning. But there is nothing “reasonable, fair

and just” about judicial nullification of the parties’ plain intention to exclude lost

profit damages.       To the contrary, as recognized in Michigan UCC

§ 440.2719(1)(a), it is eminently reasonable, fair, and just for commercial parties to

“limit or alter the measure of damages recoverable” and thereby consensually

allocate their risk. That is precisely what these commercial parties did here.

Whitesell should not be allowed to toss that agreement aside to maximize its

recovery.2

II.   ALTERNATIVELY, WHIRLPOOL IS ENTITLED TO JUDGMENT
      AS A MATTER OF LAW OR A NEW TRIAL ON PARTICULAR
      PARTS CLAIMS.
      Whirlpool alternatively contends that the jury’s award with respect to dual-

sourced/diverted and safety stock parts should be vacated. The Court need not


2
  Whirlpool’s First Brief noted (at 9 n.4) that a recent Michigan Court of Appeals
opinion concluded that Whitesell had engaged in “sham litigation” and brought its
suit “in bad faith.” That opinion was vacated on reconsideration and replaced by a
new opinion, which again concluded that Whitesell “engaged in sham litigation”
by bringing an “objectively baseless” complaint filed “to harass [the defendant] or
prevent him from competing.” Whitesell Int’l Corp. v. Whitaker, 2011 WL
165405, at *8-10 (Mich. App. Jan. 18, 2011).

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       Case: 10-1702 Document: 006110926703 Filed: 04/13/2011 Page: 36



address that contention if it agrees with Whirlpool that Whitesell’s claim for lost

profits should not have gone to the jury at all. In the event the Court does address

Whirlpool’s alternative argument, we now show why Whitesell’s responses are

without merit.

     A.      The Jury Verdicts On Whitesell’s Dual-Sourced/Diverted Parts
             Claim Cannot Stand.
      As demonstrated in Whirlpool’s First Brief, the SAA expressly excluded

Benton Harbor parts from its scope, and Whitesell failed to meet its burden of

proof as to other dual-sourced/diverted parts. Whitesell fails to rebut these

showings.

             1. The jury improperly awarded damages for Benton Harbor
                parts that the SAA excluded from its scope.
      Whirlpool’s First Brief demonstrated (at 42-46) that Whirlpool’s Benton

Harbor facility was not obligated to order parts from Whitesell because it was not

one of the 11 facilities “subject to this Agreement” listed on SAA Exhibit C-1.

Whirlpool explained (at 42-43) that this straightforward issue of contract

construction was an issue of law that the district court should have resolved rather

than send to the jury. In response, Whitesell simply recites the district court’s view

that the referenced contract provisions were “ambiguous” and contends that the

jury received “substantial evidence” countering Whirlpool’s view of the contract.




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      The issue on appeal, however, is not the scope of the evidence presented to

the jury but whether the construction of the SAA should have been presented to the

jury at all. See Multimatic, Inc. v. Faurecia Interior Sys. USA, Inc., 358 F. App’x

643, 647 (6th Cir. 2009) (“Courts determine the meaning of unambiguous contract

provisions”).   The SAA provisions on which Whirlpool relies are clear and

unambiguous. The first section of the SAA emphatically states: “The Whirlpool

manufacturing divisions that are subject to this Agreement are listed on Exhibit C.”

SAA, R.424-3, Ex.1 § 1 (last paragraph). The next sentence states: “Additional

manufacturing divisions can be added to this Agreement through an addendum

agreed to by both Contract Administrators.” Id. It is undisputed that Exhibit C-1

lists only 11 Whirlpool facilities and that Benton Harbor is not one of them. And it

is equally undisputed that the Contract Administrators never agreed to add Benton

Harbor or any other facility to the C-1 list.

      Whitesell (at 66) tries to inject ambiguities into these clear-cut contract

provisions. It acknowledges that Exhibit C-1 has a “list of Whirlpool facilities,”

but observes that the exhibit “does not identify them as manufacturing divisions.”

Whitesell does not explain why that would be necessary in light of the fact that

SAA § 1 expressly states that the listed facilities are the “manufacturing divisions

that are subject to this Agreement.” Whitesell also points to other SAA provisions

that say nothing at all about which Whirlpool facilities are governed by the SAA,



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much less anything about Benton Harbor. Whitesell (at 65-66) then relies on trial

witness testimony, which of course cannot override the plain meaning of the

contract. See Wood Care X, Inc. v. Dep’t of Cmty. Health, 2011 WL 222245, at *8

(Mich. App. Jan. 25, 2011) (parol evidence may not “vary the terms of a contract

which is clear and unambiguous”).

      Finally, Whitesell admits (at 67) that one of the facilities listed on Exhibit C-

1 (in McAllen Texas) did not manufacture appliances. That admission refutes the

district court’s view that the SAA is ambiguous as to whether the “manufacturing

divisions that are subject to this Agreement” include only facilities that

manufacture entire appliances, unlike Benton Harbor which manufactures parts.

The admitted fact that McAllen was included on the C-1 list shows that there is no

such ambiguity. Benton Harbor’s exclusion from the C-1 list means that Benton

Harbor parts are not within the SAA’s scope. Thus, as a matter of law, issues of

liability and damages as to those parts should not have been presented to the jury.

             2.    There was no evidence to support the jury’s verdict for many
                   parts and insufficient evidence to support it for others.
      Whirlpool also has demonstrated that Whitesell’s proof was insufficient (and

in some cases nonexistent) as to many of the parts on which the jury awarded

damages. Whitesell’s response points to no proof that could sustain the jury’s

verdict as to those parts.




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                    a.     There was no evidence but demonstrative evidence
                           for 25 parts.

      As Whirlpool’s First Brief explained (at 48-51), Whitesell is not entitled to

damages for 25 parts for which it introduced no evidence other than the two

demonstrative charts reproduced in Whirlpool’s brief. Whitesell complains (at 57)

that it must “guess” at the identity of those 25 parts because 36 parts are listed on

the two demonstratives. But there is no need to guess because the 25 parts were

listed in both Whirlpool’s Motion for Partial Directed Verdict (R.717 at 6

(“Column B”)) and in its Motion for Judgment as a Matter of Law (R.754 at 11

n.6). The latter stated:

             The 25 part numbers for which Whitesell failed to present any
             evidence at trial are: W10001320, W10112537, W10112540,
             8579561, W10075890, 8523704, 8533995, W10076010,
             8565324, 3400412, 3400069, 9762971, 2005921, 388094,
             W10114533, W10004990, 1185948, 8533890, W10001340,
             8564084, 8534015, W10078270, 3400217, 8533835 and
             3400235.

Those are the same 25 parts referenced in Whirlpool’s First Brief. Whitesell’s

suggestion (at 57) that Whirlpool has “abandoned its appeal” as to those parts is

frivolous.

      Whitesell also contends (at 59) that its use of demonstratives was

“appropriate because the court had imposed a 50 hour limit” for each side’s case at

trial. But it offers no authority for the novel notion that an equally allocated time

limit affects a plaintiff’s burden of proof as to breach, causation, and damages.


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Moreover, Whitesell had plenty of time to offer evidence. Whitesell rested its case

on February 4, 2010. Tr.1600-01. At the close of the first day of Whirlpool’s case

on February 5, Whitesell had used only 32 hours of its 50-hour allotment. Tr.1923.

      Whitesell further argues (at 59-60, 62-63) that Neil Whitesell’s generalized

testimony sufficed to prove its case on these parts. But the transcript extract it

cites (Tr.422-31) says nothing specific about any of the parts on the

demonstratives. Whitesell (at 60) also points to testimony that Whitesell promised

to provide the best total cost for a certain category of parts, but it cites no

testimony (because there is none) to demonstrate that Whitesell would have

provided the overall best total costs for the particular parts listed on the

demonstratives. For example, Whitesell presented no evidence that Whirlpool

purchased Part 3400235 from a competitor, that Whitesell offered the overall best

total costs for that part, or that Whitesell incurred any quantified damages from

Whirlpool’s alleged failure to order that part from Whitesell. This is a gaping hole

in the evidence that shows Whitesell has not met its burden of proof.

      Whitesell (at 60) tries to dismiss this issue as one involving “credibility and

weight” for the jury because some of the cases cited by Whirlpool were bench-trial

cases. But none of the rulings in Whirlpool’s cited cases rested on the identity of

the factfinder. Rather, in each case the issue was the plaintiff’s failure to provide

competent evidence to prove its case. See First Brief at 50-51. Whitesell (at 60)



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also dismisses a jury trial case cited by Whirlpool (this Court’s Grantham

decision) because it addressed the requirement to prove damages with “reasonable

certainty” under Tennessee, rather than Michigan, law.       But the “reasonable

certainty” requirement is identical under both states’ law.      Compare Parrott

Marine Sys., Inc. v. Shoremaster, Inc., 2008 WL 3875432, at *4 (Tenn. App. Aug.

21, 2008), with Alan Custom Homes, Inc. v. Krol, 667 N.W.2d 379, 383 (Mich.

App. 2003).

      Finally, Whitesell attempts (at 61) to reduce this issue to one of “contract

interpretation.” But the issue is not the meaning of the contract but whether

Whitesell submitted evidence to support the required breach, causation, and

damages elements of its claim. Whitesell did not submit such evidence but only

demonstrative charts for the above-listed 25 parts and generalized testimony that

did not address those parts.          Whitesell obviously cannot overcome the

insufficiency of its own evidence by charging Whirlpool with “skullduggery.”

Second Brief 64.

      b.      There was insufficient evidence on 9 parts.

      Whitesell also fails to rebut Whirlpool’s showing (First Brief at 51-53) that

it submitted insufficient proof on nine other parts.

      Part 62596.     Whirlpool showed (First Brief at 51-52) that it was not

obligated to purchase Part 62596 because it was assembled from a part on SAA



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       Case: 10-1702 Document: 006110926703 Filed: 04/13/2011 Page: 42



Exhibit B-2 (listing parts Whirlpool was not required to purchase from Whitesell)

and because the SAA authorized Whirlpool to outsource assembly of parts to other

suppliers. Whitesell responds (at 68) that this outsourcing right did not apply to a

part (like 62596) constituting “the assembly itself.” But that assertion finds no

support in the SAA, which states that “Whirlpool may * * * decide for business

reasons to outsource some of its assembly or other processes.” SAA § 14 (R.424-

3, Ex.1).

      Part 8318096. Whirlpool’s First Brief (at 52) showed that Whirlpool’s

obligation to order Part 8318096 from Whitesell ended by agreement once

Whitesell’s inventory was exhausted.      Whitesell (at 69) calls this “revisionist

history.” But the record is unrebutted that Whitesell agreed in writing to terminate

supply of this part. Memo, R.754-7. Whitesell did not make a claim for “wrongful

rejections and debits,” as it now claims (at 69) without record support. Whitesell

should not be able to claim lost profit damages for parts that it agreed Whirlpool

did not have to order.

      Parts 8533957 and W10000070. Whirlpool’s First Brief (at 52-53) showed

that the only testimony as to these parts did not begin to show breach, causation,

and damages. Whitesell fails to cure that omission in its response (at 70). In

particular, Whitesell points to no evidence at all as to the amount of damages it

incurred from any Whirlpool purchases of these parts from other suppliers.



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      Parts 3400090, 8281183, 3400001, 3400639, and W10067840. Whirlpool’s

First Brief (at 52-53) showed that the sole evidence relating to these parts was

vague and unspecific.     Whitesell responds (at 70) by pointing to testimony

regarding Whirlpool’s alleged “delay tactics,” but its transcript cites refer only to

Part 489470, which is not at issue on this appeal. See Tr.2283, 2290-95, 849, 856-

58. Whitesell relies on a chart (PX40) for its assertion (at 70-71) that “Whirlpool

continued for months to purchase [these three parts] from others.” But that chart

shows no such thing. It lists where parts were sourced on an annual basis, showing

that Part 3400001 was purchased from Whitesell beginning in 2000, Part 8281183

in 2001, and Part 3400090 in 2002. PX40. These references do not begin to show

breach or quantify damages with respect to these parts. Whitesell (at 71) finds it

“astonishing” that Whirlpool challenges Steve Garapic’s “belie[f]” that Whitesell

supplied Part 3400639 at some date he could not recall. Whitesell contends (at 71)

that this testimony was preceded by “4 pages of detailed testimony,” but nothing in

those four pages indicates when Whitesell began supplying that part or quantifies

any damages it may have incurred from not having supplied it earlier.            See

Tr.1278-81.

      Finally, Whitesell (at 73) suggests that “arithmetic is not on [Whirlpool’s]

side” because the jury’s verdict as to these parts did not exceed the $4 million

difference between Whitesell’s request and the jury’s award. But Whitesell’s own



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arithmetic shows that the jury award cannot stand if the Court finds in favor of

Whirlpool on either (1) the Benton Harbor Parts ($5 million) or (2) Part 62596

($3.2 million) and the 25 parts for which Whirlpool claims no or insufficient

evidence ($1.1 million).

      B.    The SAA Did Not Bar Whirlpool’s Safety Stock Purchases.
      Whirlpool’s First Brief (at 54-58) showed that (i) the SAA obligated

Whirlpool to purchase only those parts from Whitesell that met its “volume

requirements” (R.424-3, Ex.1 § 3.1), and (ii) Whirlpool purchased its “safety

stock” parts from other suppliers for purposes other than filling its “volume

requirements.”

      In response, Whitesell acknowledges (at 48) that the SAA limited

Whirlpool’s ordering obligations to Whitesell to its “volume requirements.” See

R.424-3, Ex.1 § 3.1. Whitesell (at 49) nonetheless contends, based on testimony

from its CEO, that Whirlpool was obligated to order parts from Whitesell “for any

reason.” Whitesell does not explain why the SAA would limit that obligation to

“volume requirements” if the parties intended Whirlpool’s obligation to extend to

purchases made for “any reason.” Whitesell further argues (at 53) that it does not

matter whether Whirlpool actually used its safety stock for production purposes

during the life of the SAA. But parts not used in production would not fit within

the “volume requirements” that alone were subject to the SAA.



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       Case: 10-1702 Document: 006110926703 Filed: 04/13/2011 Page: 45



      Whitesell does not dispute Whirlpool’s showing that Whirlpool established

extensive controls to keep its safety stock totally separate from its production

volume stock. See First Brief at 57. The “phantom account” referenced by

Whitesell (at 50) was simply the mechanism by which Whirlpool segregated safety

stock from production stock. Tr.2432, 2469. Whitesell (at 50-51) questions when

Whirlpool purchased its safety stock, and suggests that Whitesell’s threats to cease

supplying ordered parts had nothing to do with Whirlpool’s purchases.              In

particular, Whitesell notes (at 52) that Whirlpool did not purchase all its safety

stock “in the few days” between Whitesell’s threat to cease supplying parts and the

district court’s TRO enjoining Whitesell from carrying out that threat. See First

Brief at 12-13. But the evidence showed that Whitesell’s threats were a continuing

concern to Whirlpool, requiring it to build up a supply of “safety stock” to avoid

having to shut down its facilities for lack of parts. See First Brief at 55-56.

      Whitesell admits (at 53) that the evidence “established Whirlpool’s need for

safety stock to protect against supply disruptions.”         But it insists (id.) that

Whirlpool should have depended on Whitesell for protection against those

disruptions even though the threats came solely from Whitesell. That would not

have been rational or comported with Whirlpool’s obligation to fill only its

“volume requirements” from Whitesell. Nothing in the SAA prevented Whirlpool




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       Case: 10-1702 Document: 006110926703 Filed: 04/13/2011 Page: 46



from taking prudent precautions by amassing a store of safety stock separate from

its production volume requirements.

      There were additional reasons to obtain safety stock that complied with the

SAA’s terms. For example, SAA § 4.9 authorized trial runs of parts from post-

SAA suppliers. See First Brief at 56. Those contractually-authorized trial runs

could not have taken place if Whirlpool had to order all its parts from Whitesell, as

Whitesell now contends (at 53).

      Whitesell acknowledges (at 54) that SAA § 13.4 relieved Whirlpool of its

obligation to purchase parts from Whitesell during the Phase-Out Period. See First

Brief at 57-58. But Whitesell objects (at 54) that § 13.4 required Whirlpool to use

its “best efforts” to gradually decrease its orders from Whitesell during that period

and that whether Whirlpool did so was a question of fact. That is a different

question, however, from whether Whirlpool was obligated to purchase safety stock

from Whitesell even though it was not within Whirlpool’s “volume requirements”

during that period. Whirlpool has shown, based on the SAA’s express language,

that it was not so obligated, and thus the best efforts provision of § 13.4 has no

application.

      Finally, Whitesell contends (at 56) that there is no evidence that the jury’s

lost profits award included any damages for unordered safety stock. But the

verdict form expressly states that the jury awarded Whitesell $2.4 million on its



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       Case: 10-1702 Document: 006110926703 Filed: 04/13/2011 Page: 47



safety stock claim. Jury Verdict Form, R.742, at 4. That award was inconsistent

with Whirlpool’s obligations under the SAA and should be vacated.

                                     *   *    *

      It bears repeating that if the Court upholds the parties’ agreement to preclude

lost profit damages, there is no need to address these particular parts claims.

Resolving liability and damages issues arising from claims of this sort is complex

and burdensome, which is precisely why commercial parties commonly opt to

preclude lost profits.

III. ON WHITESELL’S CROSS-APPEAL, THE DISTRICT COURT’S
     RULING ON THE PREJUDGMENT INTEREST PERIOD SHOULD
     BE AFFIRMED.
      Whitesell raises a single issue on its cross-appeal: the proper end-date of the

prejudgment interest period, which is the same date on which post-judgment

interest accrues under 28 U.S.C. § 1961. This issue of statutory interpretation is

reviewed de novo. Associated Gen. Contractors of Ohio, Inc. v. Drabik, 250 F.3d

482, 484 (6th Cir. 2001). As demonstrated below, post-judgment interest began to

accrue on February 18, 2010, the date on which the district court entered judgment

on the jury’s verdict.

      The federal post-judgment interest statute, 28 U.S.C. § 1961, draws the

dividing line between prejudgment and post-judgment interest in federal court




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       Case: 10-1702 Document: 006110926703 Filed: 04/13/2011 Page: 48



diversity suits. Coal Res., Inc. v. Gulf & W. Indus., Inc., 954 F.2d 1263, 1274 (6th

Cir. 1992). Section 1961(a) provides:

             Interest shall be allowed on any money judgment in a civil case
             recovered in a district court. * * * Such interest shall be
             calculated from the date of the entry of the judgment.

28 U.S.C. § 1961(a) (emphasis added).

      The Supreme Court has held that the relevant judgment for purposes of

§ 1961 is the judgment ascertaining damages in a “meaningful” way.           Kaiser

Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 836 (1990). Applying

Bonjorno, this Court has explained that “Congress used the term ‘money

judgment’ [in § 1961] in its commonly understood sense of the judgment on a

verdict.” Drabik, 250 F.3d at 494 (emphasis added) (initial judgment triggered the

right to interest under § 1961); see also Advanced Accessory Sys., LLC v. Gibbs, 71

F. App’x 454, 463 (6th Cir. 2003) (post-judgment interest runs from “a judgment

that ‘unconditionally entitles’ a party to fees or damages”). Indeed, this Court has

held that post-judgment interest runs from an “initial judgment memorializing the

verdict[]” even though the judgment is not final and appealable because some

claims are still pending. Skalka v. Fernald Envtl. Restoration Mgmt. Co., 178 F.3d

414, 427 (6th Cir. 1999); see Coal Resources, 954 F.2d at 1275 (holding that

damages were “sufficiently ascertained at the time of the District Court judgment”

and rejecting later remittitur date for post-judgment interest purposes).



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       Case: 10-1702 Document: 006110926703 Filed: 04/13/2011 Page: 49



      Applying this authority, the February 18 judgment triggered the running of

post-judgment interest. It is the “money judgment” (Drabik, 250 F.3d at 494)—the

only judgment by which damages were ascertained at all in this case, much less in

a “meaningful way” (Bonjorno, 494 U.S. at 836). The fact that the district court

later entered amended judgments is irrelevant because they affected only interest

and costs and were not the judgments by which Whitesell became unconditionally

entitled to damages. See Caffey v. Unum Life Ins. Co., 302 F.3d 576, 587 (6th Cir.

2002) (post-judgment interests ran from initial judgment, even though prejudgment

interest was not quantified until later).

      Whitesell (at 77) contends, contrary to these authorities, that only a “final

appealable judgment” triggers § 1961.        The district court rejected Whitesell’s

argument, explaining that “a ‘judgment’ that merely adds costs to a jury verdict,”

which might then be final and appealable, “cannot constitute the ‘judgment’ that

triggers the running of postjudgment interest pursuant to 28 U.S.C. § 1961(a).”

Opinion, R.810, at 10. The court noted that “a determination that the judgment

adding costs is the ‘judgment’ for purposes of § 1961(a) would in practical effect

mean that the Court would be delaying the judgment on the jury verdict in order to

tax costs, which would be inconsistent with Rule 58(e).” Id. The court also

criticized Whitesell’s “equities approach” and its reliance on Scotts Co. v. Central

Garden & Pet Co., 403 F.3d 781, 792 (6th Cir. 2005), which, in the unique



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      Case: 10-1702 Document: 006110926703 Filed: 04/13/2011 Page: 50



circumstances of that case, determined the § 1961 date by considering the

“equitable imbalance” of awarding the lower of competing interest rates to the

prevailing party. The district court explained that this Court in more analogous

cases has “explicitly rejected” an “equities approach” to determining the § 1961

date. Opinion, R.810, at 11-12.

      The district court was correct. See Transmatic, Inc. v. Gulton Indus., Inc.,

180 F.3d 1343, 1349 (Fed. Cir. 1999) (observing that since Bonjorno the Sixth

Circuit has abandoned the balance-of-the-equities approach to § 1961). Based on

the text of § 1961(a) and Bonjorno, this Court has explained that “by linking all

post-judgment activity to the entry of a judgment, the courts have been provided a

uniform time from which to determine post-judgment issues.” Drabik, 250 F.3d at

494 (emphasis added).        That “uniform time” would be fragmented into

disuniformity if judges could pick and choose—based on idiosyncratic equitable

criteria—the date at which § 1961 begins to run. For that reason, this Court applies

§ 1961 without regard to the relative rate of pre-judgment interest so long as the

initial judgment unconditionally entitles a party to damages.       E.g., Advanced

Accessory Sys., 71 F. App’x at 463 (post-judgment interest ran from the initial

judgment even though it provided a lower interest rate than pre-judgment interest).

      Scotts also is plainly distinguishable.    There, the initial judgment was

modified at the plaintiff’s behest to reduce the amount owed to the defendant, and



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thus damages were not meaningfully ascertained in the initial judgment. Here,

by contrast, the initial judgment was not modified when the district court denied

Whirlpool’s post-trial motions. Accordingly, based on Bonjorno and this Court’s

precedents, the applicable date for § 1961 purposes is February 18, 2010, as the

district court ruled.3

                                  CONCLUSION
       On Whirlpool’s appeal, the judgment of the district court awarding lost

profit damages to Whitesell should be reversed. On Whitesell’s cross-appeal, the

district court’s ruling on the prejudgment interest date should be affirmed.

April 13, 2011                                      Respectfully submitted,

                                                    /s/ Jeffrey W. Sarles
John R. Trentacosta                                 Stephen M. Shapiro
Scott T. Seabolt                                    Jeffrey W. Sarles
Vanessa L. Miller                                   Aaron S. Chait
FOLEY & LARDNER LLP                                 Gretchen E. Helfrich
One Detroit Center                                  MAYER BROWN LLP
500 Woodward Ave., Suite 2700                       71 South Wacker Drive
Detroit, MI 48226                                   Chicago, IL 60606
(313) 234-7100                                      (312) 782-0600
jtrentacosta@foley.com                              jsarles@mayerbrown.com

            Attorneys for Appellant/Cross-Appellee Whirlpool Corporation




3
  Whirlpool notes that if Whitesell chooses to submit a cross-reply brief, it must be
limited to the issue of post-judgment interest. Fed. R. App. P. 28.1(c)(4); see
Weaver v. Ret. Plan, 323 F. App’x 564, 566 n.1 (9th Cir. 2009) (striking plaintiff’s
cross-reply brief for violating Rule 28.1(c)(4)).

                                         43
      Case: 10-1702 Document: 006110926703 Filed: 04/13/2011 Page: 52



                      CERTIFICATE OF COMPLIANCE

      I, Jeffrey W. Sarles, hereby certify that (1) this brief complies with the type-

volume limitation of Fed. R. App. P. 28.1(e)(2)(B) because it contains 9,894

words, excluding the parts of the brief exempted by Fed. R. App. P.

32(a)(7)(B)(iii), and (2) this brief complies with the typeface requirements of Fed.

R. App. P. 32(a)(5) because it has been prepared in a proportionally spaced

typeface, namely Times New Roman 14, using Microsoft Word 2007.



                                                    /s/ Jeffrey W. Sarles


Dated: April 13, 2011
      Case: 10-1702 Document: 006110926703 Filed: 04/13/2011 Page: 53



                       CERTIFICATE OF SERVICE
     The undersigned hereby certifies that, on April 13, 2011, he caused the

foregoing Third Brief For Defendant-Appellant-Cross-Appellee Whirlpool

Corporation to be served through the CM/ECF system on:

     Phillip J. Kessler
     Philip J. Kessler Law Offices, PLLC
     25612 Meadowdale
     Franklin, MI 48025

     Robin Luce Herrmann
     Sheldon H. Klein
     James E Stewart
     Robin Luce Herrmann
     BUTZEL LONG P.C.
     4100 Woodward Ave.
     Bloomfield Hills, MI 48304

     Cynthia M. Filipovich
     CLARK HILL PLC
     500 Woodward Avenue Suite 3500
     Detroit, MI 48226.

                                           /s/ Jeffrey W. Sarles

				
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