[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-10157

________________________

D.C. Docket No. 1:15-cv-01422-AT

LUXOTTICA GROUP, S.p.A.,

an Italian corporation, 

OAKLEY, INC., 

a Washington corporation, 

 Plaintiffs - Appellees

 Cross Appellants,

versus

AIRPORT MINI MALL, LLC, 

a Georgia limited liability company, 

d.b.a. Old National Discount Mall, 

YES ASSETS, LLC, 

a Georgia limited liability company, 

CHIENJUNG YEH, 

a.k.a. Jerome C. Yeh, 

DONALD C. YEH,

individually, 

JENNY YEH,

ALICE JAMISON, 

 Defendants - Appellants

 Cross Appellees.

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________________________

Appeals from the United States District Court

for the Northern District of Georgia

________________________

(August 7, 2019)

Before WILSON, JILL PRYOR and TALLMAN,* Circuit Judges.

JILL PRYOR, Circuit Judge:

Luxury eyewear manufacturers holding registered trademarks brought a 

contributory trademark infringement action under the Lanham Act against owners 

of a discount mall whose subtenants were selling counterfeit eyewear. At trial, the

jury returned a verdict in the plaintiffs’ favor. After careful review and with the 

benefit of oral argument, we conclude that none of the issues the defendants raise 

on appeal demonstrates reversible error, so we affirm the jury’s verdict.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Luxottica Group, S.p.A. and its subsidiary Oakley, Inc. 

(collectively and individually “Luxottica”) manufacture and sell luxury eyewear

and own registered trademarks for the Ray-Ban and Oakley brands. Defendants 

Jerome and Jenny Yeh own defendant Yes Assets, LLC. In 2004, Yes Assets 

purchased the Old National Village Shopping Center in College Park, Georgia. 

* Honorable Richard C. Tallman, United States Circuit Judge for the Ninth Circuit, sitting 

by designation.

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The Shopping Center included about 30 store fronts as well as an approximately 

79,000-square-foot indoor space (the “Mall”), which contained between 120 and

130 booths to lease to individual vendors. Defendant Alice Jamison, the Yehs’ 

daughter, managed the Shopping Center. Her responsibilities included reviewing

leases, collecting rent, and visiting the Shopping Center and Yes Assets’ tenants, 

including the lessee of the Mall.

Until December 1, 2009, Yes Assets leased the Mall to a tenant, who 

assigned it to a subtenant, who subleased it to former Georgia congressman Pat 

Swindall, who in turn subleased the booths to vendors. From December 1, 2009

forward, Yes Assets leased the Mall to defendant Airport Mini Mall, LLC

(“AMM”), a company Jerome and Jenny created and later gave to their son, 

defendant Donald Yeh, and the Mall became known as the International Discount 

Mall, AMM’s tradename. Under the lease agreement, Yes Assets provided AMM 

and its subtenants (the vendors in the 120 to 130 booths) with a variety of 

services—including lighting, water, sewerage, maintenance and repairs, painting, 

and cleaning—and a parking area for customers. Greg Dickerson, whom Jerome 

hired as AMM’s property manager, subleased the booths to vendors and reported 

to Jamison and Jerome until 2013, when Jerome had a stroke, and to Jamison and 

Donald afterward.

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AMM’s tenure as the Mall’s landlord saw three law enforcement raids there, 

during which officers executed search warrants, arrested subtenants, and seized 

alleged counterfeits of Luxottica eyewear and other brands’ products. After the 

first raid, law enforcement left a copy of the search warrant and a list of items

seized, including eyewear bearing Luxottica’s marks, at the raided booth. The 

second raid lasted more than 14 hours and involved approximately 30 federal and 

local law enforcement agents who shut down the Mall to execute search warrants, 

arrested subtenants for selling counterfeit goods, seized thousands of counterfeit 

items bearing Luxottica’s marks, and loaded the items onto a tractor-trailer parked 

in front of the Shopping Center. Dickerson witnessed the second raid from the 

Shopping Center’s parking lot and notified Jamison, Donald, and Jerome and 

Jenny’s attorney, Louis Bridges. Dickerson later walked through the Mall to 

compile a list of the booths where law enforcement had seized goods and informed 

Jamison, Jerome, and Bridges about his inquiries of subtenants regarding the raid 

and whether they were selling counterfeit items. Each subtenant denied selling

counterfeit merchandise, but Jamison admitted that she would expect the 

subtenants to lie if they were selling counterfeit goods. On Bridges’ advice, the 

defendants decided to take no action against the subtenants unless the subtenants

were convicted of a crime. More than a year after Luxottica filed this lawsuit,

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police executed several more search warrants at the Mall and seized additional 

counterfeit items bearing Luxottica’s marks.

Luxottica twice sent letters notifying the defendants that their subtenants 

were not authorized to sell Luxottica’s eyewear and that any mark resembling RayBan or Oakley marks would indicate that the glasses were counterfeit. The second 

letter also identified specific booths Luxottica suspected of selling counterfeit 

eyewear. Jamison and Donald were aware of both letters. Dickerson visited the 

booths named in the second letter but made no attempt to determine whether those 

vendors’ eyewear products were counterfeit or to terminate their leases. After 

Luxottica filed this lawsuit, Jamison and Bridges attended a meeting at the College 

Park Police Department to discuss the unlawful selling of counterfeit products at 

the Mall.

Despite the raids, letters, and meeting with law enforcement, the defendants 

took no steps to evict the infringing subtenants; they even renewed leases with

several of the subtenants who had been arrested during the 14-plus-hour raid. In 

the month leading up to the filing of this lawsuit, Isabel Rozo, an employee of 

Luxottica’s private investigator Geanie Johansen, purchased and photographed $15

and $20 counterfeit Ray-Ban glasses at several booths. Ray-Ban glasses normally 

retail for $140 to $220 a pair.

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Luxottica sued the defendants for contributory trademark infringement under 

§ 32 of the Lanham Act, 15 U.S.C. § 1114. The district court denied the 

defendants’ motions in limine to exclude evidence, except for their second motion, 

which it granted in part to limit the evidence Luxottica could introduce regarding 

sales at the Mall of counterfeit non-Luxottica brands and counterfeit sales that 

occurred before AMM took over as the Mall’s landlord. After an 11-day trial, the 

jury returned a special verdict holding all defendants except Jenny liable for

contributory trademark infringement and assessing $100,000 in damages for each 

infringed trademark, totaling $1.9 million in damages. Having moved for 

judgment as a matter of law after the close of all the evidence, the defendants 

renewed their motion, which the district court denied.

The defendants appeal the jury verdict, a portion of the district court’s 

instructions to the jury regarding the application of Georgia landlord-tenant law, 

and the district court’s denials of their motions in limine and renewed motion for 

judgment as a matter of law under Federal Rule of Civil Procedure 50(b).

1

1 The defendants appeal the denial of their first motion for judgment as a matter of law 

made under Rule 50(a), but because the only way to preserve a Rule 50(a) motion is to renew it 

under Rule 50(b), we review only the denial of their renewed motion under Rule 50(b). The 

defendants also appeal the district court’s submission to the jury of the amount of statutory 

damages to be awarded. Because they make no argument about the statutory damages issue in 

their briefs on appeal, however, we deem it abandoned. Sapuppo v. Allstate Floridian Ins. Co., 

739 F.3d 678, 681 (11th Cir. 2014). We grant the defendants’ motion to dismiss the cross-appeal

because Luxottica has abandoned it.

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II. STANDARDS OF REVIEW

We review de novo questions of law, such as the legal standard for liability 

for contributory trademark infringement. U.S. Sec. & Exch. Comm’n v. Big Apple 

Consulting USA, Inc., 783 F.3d 786, 795 (11th Cir. 2015). We also review de novo 

a district court’s denial of a Rule 50(b) motion. Id. at 813. “Judgment as a matter 

of law is appropriate only if the facts and inferences point overwhelmingly in favor 

of one party, such that reasonable people could not arrive at a contrary verdict.” 

Equal Emp’t Opportunity Comm’n v. Exel, Inc., 884 F.3d 1326, 1329 (11th Cir. 

2018) (internal quotation marks omitted), cert. denied, 139 S. Ct. 1373 (2019). 

“We consider all the evidence, and the inferences drawn therefrom, in the light 

most favorable to the nonmoving party.” Id. (internal quotation marks omitted). 

“We will not second-guess the jury or substitute our judgment for its judgment if 

its verdict is supported by sufficient evidence.” Id. (internal quotation marks 

omitted).

Orders denying motions in limine are reviewed for abuse of discretion. 

Kropilak v. 21st Century Ins. Co., 806 F.3d 1062, 1067 (11th Cir. 2015). Under 

that standard, we will reverse a district court’s ruling “only if the court applie[d] an 

incorrect legal standard, follow[ed] improper procedures in making the 

determination, or ma[d]e[] findings of fact that are clearly erroneous.” Id. (internal 

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quotation marks omitted). The movant must also establish “substantial prejudicial 

effect.” Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1276 (11th Cir. 2008).

This Court reviews jury instructions de novo to determine whether they 

“misstate the law or mislead the jury to the prejudice of the objecting party.” 

Bhogaita v. Altamonte Heights Condo. Ass’n, 765 F.3d 1277, 1285 (11th Cir. 

2014) (internal quotation marks omitted). Although our review is de novo, we will

reverse based on a district court’s jury instructions “only where we are left with a 

substantial and ineradicable doubt as to whether the district court properly guided 

the jury.” Id. (internal quotation marks omitted).

III. DISCUSSION

We affirm the district court on each issue appealed. The district court 

(1) correctly determined that the evidence was sufficient—even under the legal 

standard the defendants urge us to adopt—to support the jury’s verdict finding the 

defendants liable for contributory trademark infringement; (2) committed no 

reversible error in instructing the jury; (3) correctly determined that the evidence 

was sufficient to support the jury’s verdict on each defendant’s individual liability; 

and (4) did not abuse its discretion in the challenged evidentiary rulings.

A. Luxottica Presented Sufficient Evidence to Sustain the Jury’s Verdict on 

Contributory Trademark Infringement.

Under the Lanham Act, the owner of a registered trademark may hold 

someone contributorially liable for trademark infringement if that person induces 

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or knowingly facilitates the infringement. The defendants argue that the district 

court should have followed the reasoning of a Second Circuit case that they believe 

imposed a tougher knowledge requirement for contributory trademark 

infringement claims. Under that court’s reasoning, the defendants argue, the 

evidence was insufficient to prove that they had the requisite knowledge of, or 

demonstrated willful blindness to, their subtenants’ direct infringement. We 

disagree and affirm the district court’s denial of the defendants’ Rule 50(b) motion. 

First, we explain the elements of the contributory trademark infringement cause of 

action. Second, because the defendants do not contest that landlords may be held 

contributorially liable for their (sub)tenants’ direct trademark infringement, we 

assume without deciding that contributory liability for trademark infringement 

extends to the landlord-tenant context. Third, we resolve the defendants’ argument 

about the proper legal standard by assuming without deciding that liability for 

contributory trademark infringement requires that the defendant have knowledge of 

specific acts of direct infringement. Even under this standard, the evidence was 

sufficient to support the jury’s verdict because the defendants had at least

constructive knowledge of their subtenants’ direct infringement.

1. Contributory Liability Under the Lanham Act

The contributory trademark infringement cause of action stems from the 

application of “basic tort liability concepts to determine the scope of liability” 

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under the Lanham Act. Duty Free Americas, Inc. v. Estée Lauder Cos., 797 F.3d 

1248, 1276 (11th Cir. 2015) (internal quotation marks omitted).2

 The Supreme 

Court first acknowledged the existence of this cause of action in Inwood 

Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844 (1982). In that case, 

manufacturers had supplied pharmacists with a generic version of a drug whose 

brand name was trademarked. Id. at 846-48. Some pharmacists had infringed the 

brand name manufacturer’s mark by mislabeling bottles containing generic 

capsules as containing brand name capsules. Id. at 848-51, 854. But instead of 

suing the infringing pharmacists, the brand name manufacturer sued the generic 

manufacturers, id. at 846-47, 849-51, prompting the Supreme Court to recognize in 

the Lanham Act a cause of action for contributory infringement: “if a 

manufacturer or distributor intentionally induces another to infringe a trademark, 

or if it continues to supply its product to one whom it knows or has reason to know 

is engaging in trademark infringement, the manufacturer or distributor is 

contributorially responsible for any harm done as a result of the deceit.” Id. at 

854.3

2 The plain text of § 32 of the Lanham Act prohibits only direct infringement: a person 

may not “use” or “reproduce, counterfeit, copy, or colorably imitate a registered mark . . . in 

connection with the sale . . . of goods or services” if such use “is likely to cause confusion.” 

15 U.S.C. § 1114(1).

3 The Supreme Court ultimately ruled in the generic manufacturers’ favor, holding that 

the Court of Appeals should not have disturbed the district court’s findings that the generic 

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A claim for contributory trademark infringement thus has two elements: 

(1) a person or entity commits direct trademark infringement under the Lanham 

Act; and (2) the defendant (a) “intentionally induces” the direct infringer to 

commit infringement, (b) supplies a “product” to the direct infringer whom it 

“knows” is directly infringing (actual knowledge), or (c) supplies a “product” to 

the direct infringer whom it “has reason to know” is directly infringing

(constructive knowledge). See id. The defendants do not challenge the first 

element—the jury’s finding of direct infringement by their subtenants. As to the 

second element, Luxottica proceeded on a knowledge rather than an intentional 

inducement theory, so only the actual and constructive knowledge prongs of the

second element are at issue in this appeal.

In support of its theory that the defendants had at least constructive 

knowledge of their subtenants’ infringement, Luxottica presented evidence tending 

to show that the defendants exhibited willful blindness to the subtenants’ unlawful 

conduct. Across the circuits, a consensus has developed that willful blindness is 

one way to show that a defendant had constructive knowledge in cases of

contributory trademark infringement. See Coach, Inc. v. Goodfellow, 717 F.3d 

498, 503, 505 (6th Cir. 2013); Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93, 109-10 

manufacturers had not “suggested, even by implication, that pharmacists should dispense generic 

drugs incorrectly identified as” the brand name drug. Inwood, 456 U.S. at 852, 856-58.

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(2d Cir. 2010); Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 265 (9th Cir. 

1996); Hard Rock Cafe Licensing Corp. v. Concession Servs., Inc., 955 F.2d 1143,

1149, 1151 n.5 (7th Cir. 1992); see also United States v. Baxter Int’l, Inc., 

345 F.3d 866, 902 (11th Cir. 2003) (holding, in the context of the Medicare 

Secondary Payer statute, that “[a] party that willfully blinds itself to a fact . . . can 

be charged with constructive knowledge of that fact”). Willful blindness occurs 

when a person “suspect[s] wrongdoing and deliberately fail[s] to investigate.” 

Hard Rock Cafe, 955 F.2d at 1149. We agree with the other circuits that willful 

blindness is a form of constructive knowledge for contributory trademark 

infringement. We evaluate the strength of Luxottica’s evidence regarding willful 

blindness and constructive knowledge in Part III.A.3.

2. Landlord Liability for Contributory Trademark Infringement

Whether contributory liability for trademark infringement extends to the 

landlord-tenant context is a question of first impression for this Court. The 

defendants in Inwood supplied the very product the direct infringers mislabeled

with the plaintiff’s trademark. 456 U.S. at 846-50. In contrast, the defendants in 

this case supplied services and support—such as space, utilities, maintenance, and 

parking—that facilitated the direct infringers’ sale of counterfeit goods. In this 

case, the defendants do not contest that Inwood’s contributory trademark 

infringement cause of action may be applied to the landlord-tenant context. We 

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therefore assume without deciding that a landlord may be contributorially liable for 

its (sub)tenants’ direct trademark infringement if the landlord intentionally induces 

the infringement or knows or has reason to know of the infringement while 

supplying a service (such as space, utilities, or maintenance) that facilitates it.

4

3. The Evidence Was Sufficient to Prove That the Defendants Had at 

Least Constructive Knowledge of Specific Acts of Infringement.

Pursuing a knowledge theory of contributory trademark infringement, 

Luxottica sought to prove that the defendants knew or had reason to know that 

their subtenants were selling counterfeit items yet continued to supply services 

(space, utilities, maintenance, and parking) that enabled the subtenants to sell their 

goods. The question that arises—another one of first impression for this Court—is 

whether the knowledge theory of contributory liability requires the plaintiff to 

prove that the defendant had actual or constructive knowledge of specific

infringing acts. We need not answer this question, however, because even if 

4 We note that three circuits have applied Inwood to owners of flea markets whose 

tenants sold counterfeit goods. See Hard Rock Cafe, 955 F.2d at 1148-49; Fonovisa, 76 F.3d at 

265 (citing Hard Rock Cafe); Coach, 717 F.3d at 503-04 (citing Hard Rock Cafe and Fonovisa). 

Such a result is also consistent with the general tort liability principles upon which Inwood’s 

analysis rested. See Duty Free Americas, 797 F.3d at 1276 (“[T]he Lanham Act is derived 

generally and purposefully from the common law tort of unfair competition . . . . In construing 

the Act, then, courts routinely have recognized the propriety of examining basic tort liability 

concepts to determine the scope of liability.” (internal quotation marks omitted)); see also 

Restatement (Second) of Torts § 877(c) (Am. Law Inst. 1979) (June 2019 Westlaw update) (“For 

harm resulting to a third person from the tortious conduct of another, one is subject to liability if 

he . . . permits the other to act upon his premises or with his instrumentalities, knowing or having 

reason to know that the other is acting or will act tortiously.”); id. cmt.d.

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liability for contributory trademark infringement requires the defendant to have 

knowledge of specific acts of direct infringement, the evidence in this case was 

sufficient for a reasonable jury to find that the defendants had at least constructive 

knowledge of (or were willfully blind to) specific acts of direct infringement by 

their subtenants.

The defendants argue that the district court should have applied what they 

deem a stricter standard from Tiffany (NJ) v. eBay Inc., 600 F.3d 93 (2d Cir. 2010),

in ruling on their renewed motion for judgment as a matter of law. In Tiffany, the 

jewelry titan sued the online listing service eBay for contributory trademark 

infringement because vendors listed counterfeit Tiffany products for sale on

eBay’s website. Id. at 96-97. Whenever Tiffany notified eBay of a direct 

infringer’s identity, eBay delisted the vendor within 24 hours. Id. at 99. But, by 

itself, eBay was unable to identify and block each direct infringer, even with 200 

employees focused on that task, because its website contained 100 million listings,

and eBay lacked the ability to inspect goods in person and the expertise to 

distinguish Tiffany products from non-Tiffany products. Id. at 97-98. “For 

contributory trademark infringement liability to lie,” the Second Circuit held, “a 

service provider must have more than a general knowledge or reason to know that 

its service is being used to sell counterfeit goods. Some contemporary knowledge 

of which particular listings are infringing or will infringe in the future is 

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necessary.” Id. at 107. Because Tiffany’s demand letters identified no additional 

sellers of counterfeit goods other than the sellers eBay had already delisted, eBay 

lacked actual or constructive knowledge of the remaining direct infringers. The 

court thus upheld the bench trial verdict in favor of eBay. Id. at 96, 109.

The defendants articulate Tiffany’s legal standard for contributory trademark 

infringement as whether “Plaintiffs provide[d] notice to Defendants that a 

particular seller was then selling counterfeit versions of Plaintiffs’ product.” 

Appellants’ Initial Br. at 22 (internal quotation marks omitted). The defendants 

err, though, in asserting that Tiffany narrowed the sources of a defendant’s actual 

or constructive knowledge to just one: notice by the trademark holders. Tiffany

did not categorically shift the burden onto trademark holders to provide notice to 

defendants; it simply clarified that certain facts of the case—a marketplace of 100 

million listings and eBay’s inability to inspect goods in person and lack of 

expertise to distinguish Tiffany from non-Tiffany jewelry—made it unlikely that 

eBay could identify the infringing vendors on its own, without help from Tiffany. 

Tiffany, 600 F.3d at 97-98, 109. In arguing that it was Luxottica’s burden to notify 

the defendants of the infringing subtenants’ identities, the defendants fail to 

acknowledge that actual or constructive knowledge of the direct infringers’ 

identities could arise from many sources, including steps the defendants could have 

taken to investigate alleged direct infringement at the Mall after being put on 

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notice by Luxottica that unnamed subtenants’ may have been selling counterfeit 

Luxottica products.

In any event, we need not decide today whether a defendant must be found 

to have had knowledge of specific acts of direct infringement for contributory 

liability to attach. Even if specific knowledge is necessary, the trial evidence was 

sufficient to prove that the defendants had at least constructive knowledge of 

specific instances where their subtenants infringed Luxottica’s marks. Unlike in 

Tiffany, the defendants here did not need Luxottica’s help to identify the infringing 

subtenants. Although Inwood created “no affirmative duty to take precautions 

against the sale of counterfeits,” Hard Rock Cafe, 955 F.2d at 1149, the jury 

reasonably could have found that Luxottica’s notice letters would have prompted a 

reasonable landlord to do at least a cursory visual inspection of the Mall’s 130

booths to determine which vendors displayed eyewear with Luxottica’s marks and 

sold it at prices low enough—$15 or $20 a pair for glasses that typically retail at 

$140 to $220 a pair—to alert a reasonable person that it was counterfeit.

5

 

Similarly, the jury reasonably could have found that a cursory visual inspection of 

130 booths to see if they displayed what appeared to be counterfeit Luxottica 

5 One of Luxottica’s witnesses acknowledged that there is a legitimate secondary market 

for Ray-Ban and Oakley eyewear, so the statements in Luxottica’s letters that the Mall’s tenants 

were unauthorized retailers were of limited use to the defendants. Nevertheless, the jury 

reasonably could have found that the defendants knew or should have known that $15 and $20 

eyewear bearing Ray-Ban trademarks was counterfeit.

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eyewear was not so burdensome as to relieve the defendants of the responsibility to 

investigate after being informed by Luxottica that unnamed subtenants may have 

been engaging in illegal activity.

What’s more, previously we have held that evidence of “serious and 

widespread” infringement makes it more likely that a defendant knew about the 

infringement. Mini Maid Servs. Co. v. Maid Brigade Sys., Inc., 967 F.2d 1516, 

1522 (11th Cir. 1992). The three law enforcement raids—one of which lasted over 

14 hours and required a tractor-trailer to haul away the seized merchandise—

evidenced “serious and widespread” violations that gave the defendants at least

constructive knowledge that their subtenants were selling counterfeit goods. Id. 

After the 14-plus-hour raid, Dickerson, the defendants’ property manager, walked 

through the Mall; compiled a list of booths where law enforcement had seized 

goods; and informed Jerome, Jamison, and Bridges about his conversations with 

subtenants regarding the raid and whether they were selling counterfeit products. 

The record evidence of (1) the raids, arrests, and seizures, (2) the meeting at the 

College Park Police Department Jamison and Bridges attended where they 

discussed the sale of counterfeit goods at the Mall, and (3) the defendants’ ability 

to visually inspect the approximately 130 booths was, taken together, sufficient to 

support a jury finding that the defendants had at least constructive knowledge of, 

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or were willfully blind to learning, which subtenants were directly infringing 

Luxottica’s trademarks.

In sum, evidence of the defendants’ knowledge of specific infringing acts by 

subtenants who relied on the services the defendants provided (including space, 

utilities, and maintenance) amply supported the jury verdict. The district court did 

not err in denying the defendants’ Rule 50(b) motion.

B. The District Court Made No Reversible Error in Instructing the Jury.

The defendants take issue with two of the district court’s instructions to the 

jury. We discern no reversible error in either one.

First, the defendants protest the district court’s instruction to the jury that 

Georgia law permits landlords to evict commercial tenants without resort to legal 

proceedings where the tenant has contractually waived its right to those procedural 

protections. See Rucker v. Wynn, 441 S.E.2d 417, 419 (Ga. Ct. App. 1994), 

disapproved on other grounds by George v. Hercules Real Estate Servs., Inc., 

795 S.E.2d 81, 89 (Ga. Ct. App. 2016). The defendants contend that Rucker is 

inapposite because in that case, the tenant’s nonpayment of rent constituted a clear 

default under the lease. Rucker, 441 S.E.2d at 419. But here, the defendants

assert, they lacked clear evidence of their subtenants’ defaults. They argue that 

without clear evidence of their subtenants’ defaults, they could have been sued for 

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wrongful eviction had they attempted “to use self-help to evict [their] 

[sub]tenants.” Appellants’ Initial Br. at 46.

Yet the defendants’ contention that they lacked clear evidence of their 

subtenants’ defaults belies the evidence presented at trial and ignores the 

provisions in AMM’s subleases that would have permitted the defendants to evict 

infringing subtenants. AMM’s standard sublease agreement provided that a 

“[v]erified written complaint[]” that a subtenant was selling counterfeit goods 

would constitute an “immediate breach” of the lease and authorize AMM to 

dispossess the subtenant “immediately.” Doc. 162-12 at 21.6

 Bridges, Jerome and 

Jenny’s counsel, acknowledged at trial that a search warrant accompanied by a 

sworn affidavit would qualify as a “[v]erified written complaint[].”7 Id. The jury 

reasonably could have found that the defendants could have sought copies of 

search warrants executed during the raids—one of which was left at the booth 

targeted by the first raid—to obtain proof of their subtenants’ defaults.

Even if law enforcement had refused to provide copies of the search 

warrants, the defendants had another tool at their disposal. AMM’s standard 

sublease agreement also provided that a subtenant’s failure to comply with 

trademark law would constitute a default on the sublease. Thus, the jury 

6 “Doc. #” refers to the numbered entry on the district court’s docket.

7 Bridges did not represent the defendants at trial.

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reasonably could have found that the defendants could have photographed the 

booths displaying counterfeit Luxottica-brand eyewear for sale—just as Rozo, the 

employee of Luxottica’s private investigator Johansen, did—which would have 

assisted the defendants in establishing that their subtenants were in breach of their 

subleases. Upon a subtenant’s first default under the sublease agreement, AMM 

could evict the subtenant and retake possession of the booth after providing five 

days’ notice; no notice was necessary for a subsequent default.

Likewise, Yes Assets’ lease with AMM required AMM to “comply with all 

applicable laws,” and failure to do so would constitute a default on the lease,

entitling Yes Assets to terminate the lease and immediately assume possession of 

the Mall. Doc. 162-9 at 7, 31. AMM’s continued provision of services to the 

infringing subtenants despite having at least constructive knowledge of their 

infringement violated the Lanham Act. See Part III.A.3. In turn, AMM’s 

continuing support of infringing subtenants put it in default of its lease with Yes

Assets and gave Yes Assets grounds to terminate the lease and dispossess AMM.

As part of their contention that they lacked clear evidence of their 

subtenants’ breaches of the subleases, the defendants further argue that Luxottica’s 

notice letters were nothing more than unsubstantiated hearsay insufficient to 

provide clear evidence of breaches. We reject this argument as well. For one 

thing, the defendants never objected at trial to the letters’ admission. For another, 

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the letters were admissible for their effect on the recipient, not for the truth of the 

matter asserted, so they were not hearsay. Fed. R. Evid. 801(c). And even without 

these letters, the jury reasonably could have found that the search warrants or 

photographs of counterfeit eyewear on display would have provided the defendants 

with clear evidence of their subtenants’ breaches of their subleases.

Second, the defendants protest the district court’s instruction that the jury 

could find that the defendants had the ability to control their subtenants’ activities 

in the Mall if “Airport Mini Mall, LLC, Yes Assets, LLC, Jerome Yeh, Jenny Yeh, 

Donald Yeh, and/or Alice Jamison possessed the right, ability[,] or authority to 

control either (i) the use of the physical retail space that it rented at the Discount 

Mall, or (ii) the activities that any of its vendors could engage in while occupying 

such space at the Discount Mall.” Doc. 155 at 17 (emphasis added). Essentially, 

the defendants object on appeal to the district court’s use of “and/or.” The 

defendants easily could have requested that the district court fix this conjunction, 

but they forfeited this objection by failing to raise it to the district court. Even if 

they had preserved it, however, the district court’s instruction was not reversible 

error. Although AMM was the Mall’s sole landlord, a corporation may act only 

through its agents. See United Techs. Corp. v. Mazer, 556 F.3d 1260, 1271 (11th 

Cir. 2009). The district court’s instructions could have been more precise by 

explaining, based on our above descriptions of AMM’s standard sublease 

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agreement and Yes Assets’ lease with AMM, that (1) Jerome, Jenny, and Donald 

were agents of AMM with the power to evict infringing subtenants; and (2) Yes 

Assets and its manager Jamison could have evicted AMM for failing to evict the 

infringing subtenants. But without any “substantial and ineradicable” sense that 

the district court’s imprecise instruction misled the jury or prejudiced the 

defendants, we will not reverse. Bhogaita, 765 F.3d at 1285.

We find no reversible error in either of the challenged jury instructions.

C. The Evidence Was Sufficient to Support the Jury’s Verdict on the 

Individual Defendants’ Liability for Contributory Infringement.

The defendants contest the sufficiency of the evidence supporting the jury’s 

verdict holding Jerome, Donald, and Jamison individually liable for contributory 

trademark infringement. Construing the evidence in the light most favorable to 

Luxottica, as we must in reviewing the denial of the defendants’ Rule 50(b) 

motion, Exel, 884 F.3d at 1329, we conclude that the evidence was sufficient to 

show that these three defendants had at least constructive knowledge of direct 

infringement by subtenants who relied on the services they provided.

Jerome was copied on e-mails between Swindall, who leased the Mall from 

Yes Assets up until December 2009, and the College Park Police Department 

regarding alleged sales of counterfeit goods at the Mall in 2008. The jury could 

infer from Swindall’s testimony that these e-mails would have put a reasonable 

landlord on notice to watch out for sales of counterfeit goods, including goods 

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bearing Luxottica’s marks. Jerome was also informed about Dickerson’s 

conversations with subtenants after the 14-plus-hour raid that took place during

AMM’s tenure as the Mall’s landlord. Donald admitted he knew about Luxottica’s

notice letters and widespread sales of counterfeit merchandise. And Jamison, who 

managed the Shopping Center, knew about Luxottica’s notice letters and at least 

one of the raids and attended a meeting at the College Park Police Department after 

this lawsuit was filed to discuss the sale of counterfeit products at the Mall.8

D. The District Court Did Not Abuse Its Discretion in Its Evidentiary Rulings.

The defendants appeal five sets of the district court’s evidentiary rulings. 

We conclude that the district court did not abuse its discretion in any of these 

rulings. First, the defendants argue that the district court abused its discretion in 

admitting the testimony of and counterfeit eyewear obtained by Rozo, an employee 

of Johansen, who was the investigator Luxottica hired to make undercover 

8 The defendants argue that Luxottica failed to pierce the corporate veil under Georgia 

law and show that the individual defendants were the “moving, active, conscious force[s]” 

behind their subtenants’ infringement. Appellants’ Initial Br. at 55 (internal quotation marks 

omitted). But Luxottica needed to prove only the elements of contributory trademark 

infringement: (1) direct infringement by a third party and (2) either intentionally inducing the 

direct infringement or providing a product or service to the direct infringer despite having actual 

or constructive knowledge of the direct infringement. The evidence was sufficient to support the 

jury’s finding that Luxottica established both elements as to Jerome, Donald, and Jamison. 

Piercing the corporate veil is irrelevant to proving individual contributory liability, as is 

demonstrating that the defendants were the “moving, active, conscious force[s]” behind their 

subtenants’ infringement, which is the standard for imposing individual liability for direct, not 

contributory, infringement. Chanel, Inc. v. Italian Activewear of Fla., Inc., 931 F.2d 1472, 

1477-78 (11th Cir. 1991) (internal quotation marks omitted).

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purchases and take photographs of counterfeit eyewear at the Mall. They assert 

that Rozo’s testimony was unduly prejudicial because the destruction of her 

contemporaneous notes hindered both her ability to give reliable testimony and 

their ability to cross-examine her.9

 We reject the defendants’ contention because

the e-mails Rozo sent to Johansen within 24 hours of her visits to the Mall 

provided a near-contemporaneous account, and we have found no case holding that 

destruction of a witness’s contemporaneous notes—especially when not done in 

bad faith—requires the harsh sanction of complete exclusion of the witness’s 

testimony. Excluding evidence as unduly prejudicial under Federal Rule of 

Evidence 403 “is an extraordinary remedy [that] should be used sparingly,” and, in 

applying the rule, “courts must look at the evidence in a light most favorable to 

admission.” Aycock v. R.J. Reynolds Tobacco Co., 769 F.3d 1063, 1069 (11th Cir. 

2014) (internal quotation marks omitted). We are hard-pressed to say that any 

“unfair prejudice” caused by Rozo’s testimony and the admission into evidence of 

the eyewear she obtained and the photographs she took at the Mall “substantially 

9 Luxottica argues that the defendants failed to preserve their objection to the admission 

of Rozo’s testimony and the eyewear she purchased at the Mall. Because we conclude that the 

district court did not abuse its discretion in admitting this evidence, we need not decide whether 

the defendants preserved this objection or, if not, whether the district court committed plain 

error.

The defendants have abandoned the argument they made to the district court about 

spoliation of evidence because they make no such argument in their briefs on appeal. See 

Sapuppo, 739 F.3d at 681.

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outweighed” their “probative value.” Fed. R. Evid. 403. Moreover, the defendants 

were able to use cross-examination to undermine Rozo’s testimony and that of 

another Luxottica witness by demonstrating that these witnesses could not 

determine whether the counterfeit eyewear and photos of counterfeit eyewear 

displayed for sale that were presented to the jury came from the defendants’ mall 

or a different mall.

Second, the defendants protest the district court’s rearrangement of Exhibit 

646, a collection of counterfeit glasses Rozo purchased at the Mall and the bags 

associated with each pair of glasses.10 As we understand it, shortly after Rozo 

purchased each pair of glasses, she placed them in plastic bags and affixed stickers 

showing the number of the booth that sold her the glasses.11 During the trial, three 

witnesses handled the exhibit, and somehow the glasses got placed into the wrong 

bags.12 When counsel for both sides were unable to agree on how to restore the 

10 Luxottica argues that the defendants also failed to preserve their objection on this issue. 

Again, because we determine that the district court did not abuse its discretion in rearranging the 

exhibit, we need not decide whether the defendants preserved this objection or, if not, whether 

the district court committed plain error.

11 The record leaves unclear whether Rozo or Mall vendors supplied the bags. In 

addition, the trial transcript suggests that Rozo was inconsistent about putting the stickers on the 

glasses versus the bags, and she also testified that the stickers sometimes fell off, both of which 

may have contributed to the glasses becoming disassociated from their bags.

12 Rozo handled the exhibit first, then Johansen, then Luxottica’s director of intellectual 

property for the Americas. Twice—during Johansen’s testimony and after the director’s 

testimony—it emerged that the glasses were no longer in the proper bags, but it is unclear how 

this happened. To resolve this issue, we need not determine how the glasses became separated 

from their proper bags.

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exhibit, the district court rearranged the exhibit’s contents outside of the presence 

of the jury and counsel to ensure that each pair of glasses was placed in the correct 

bag before making the exhibit available to the jury for its deliberations. Citing no 

authority, the defendants argue that determining the proper relationship between 

the glasses and the bags was a job for the jury, not the judge. We conclude that the 

district court did not abuse its discretion in rearranging the exhibit because trial 

judges retain discretion “to enable the jury to hear [and examine] the evidence in a 

clear, orderly and methodical manner.” United States v. Watson, 466 F.2d 549, 

550 (5th Cir. 1972).

13 And even if the district court abused its discretion in 

reorganizing the exhibit outside of the presence of the jury and counsel, the 

defendants do not argue that the district court reorganized the exhibit erroneously 

or in a way that prejudiced them, so any error was harmless. See 28 U.S.C. 

§ 2111; Fed. R. Civ. P. 61.

Third, the defendants object to the admission of evidence of supposed 

counterfeit sales that took place before AMM’s assumption of the Mall’s lease, 

arguing that this evidence was irrelevant and unduly prejudicial. But evidence of 

“serious and widespread” sales of counterfeit goods increases the likelihood that 

the defendants knew about and failed to stop the infringement of Luxottica’s 

13 Decisions of the former Fifth Circuit rendered before the close of business on 

September 30, 1981 are binding on this Court. See Bonner v. City of Prichard, 661 F.2d 1206, 

1209 (11th Cir. 1981) (en banc).

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marks. See Mini Maid, 967 F.2d at 1522. Apart from Swindall’s testimony, which 

we address below, the only other evidence of pre-December 2009 counterfeit sales 

that the defendants challenge is Luxottica’s questioning of Jamison and Dickerson 

regarding what they knew about alleged infringement at the Mall before AMM’s 

assumption of the lease. To lay an evidentiary foundation for the defendants’ 

knowledge of pre-December 2009 counterfeit sales, the district court permitted 

Luxottica to cross-examine the individual defendants on this topic. When Jamison 

and Dickerson denied knowledge of the pre-December 2009 allegations, Luxottica 

ended these lines of questioning. Given the limited questions posed to Jamison 

and Dickerson, we disagree that any prejudice introduced by these questions 

“substantially outweighed” their significant “probative value.” Fed. R. Evid. 403.

Fourth, the defendants object to the admission of evidence of alleged 

infringement of non-Luxottica brands, arguing that this evidence was also 

irrelevant and unduly prejudicial because Luxottica failed to show that the nonLuxottica goods were actually counterfeit. Yet the jury reasonably could have 

inferred that even mere allegations of counterfeit sales of non-Luxottica products 

should have alerted the defendants to watch out for infringement of Luxottica’s 

brands, so this evidence was relevant to the jury’s determination of liability. 

Further, in ruling on the defendants’ second motion in limine, the district court 

required Luxottica to ensure that the evidence of infringement of non-Luxottica 

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products did not outweigh the evidence it presented of infringement of its own 

products. The defendants make no argument that the evidence of infringement of 

non-Luxottica brands predominated over evidence of infringement of Luxottica 

brands. In addition, the district court gave the jury a limiting instruction that it 

could not find the defendants liable based solely on evidence of alleged 

infringement of other brands, a straightforward instruction “that the jury could 

easily understand and take to heart.” United States v. Mateos, 623 F.3d 1350, 1365 

(11th Cir. 2010). “We presume that a jury follows the instructions given to it by 

the district court,” and the defendants “ha[ve] offered nothing to rebut this 

presumption.” Wilbur v. Corr. Servs. Corp., 393 F.3d 1192, 1201 (11th Cir. 2004) 

(internal quotation marks omitted). Because the defendants have not demonstrated 

their entitlement to the “extraordinary remedy” of exclusion of all evidence of 

infringement of other brands under Federal Rule of Evidence 403, the district court 

did not abuse its discretion in admitting this evidence. Aycock, 769 F.3d at 1069 

(internal quotation marks omitted).

Fifth, the defendants object to the testimony from Swindall, the Mall’s 

landlord prior to December 2009, because Luxottica failed to name Swindall in the 

pretrial witness list as a rebuttal witness and, according to the defendants, his 

testimony was irrelevant and unduly prejudicial. Neither reason persuades us. 

“Rebuttal witnesses are a recognized exception to all witness disclosure 

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requirements,” United States v. Windham, 489 F.2d 1389, 1392 (5th Cir. 1974), 

and “[t]he trial judge has broad discretion in determining whether to admit 

evidence and witnesses not included in pretrial orders,” Calamia v. Spivey, 

632 F.2d 1235, 1237 (5th Cir. Unit A 1980); see also Travelers Ins. Co. v. Dykes, 

395 F.2d 747, 749 (5th Cir. 1968) (“Much considered and wise discretion must be 

accorded to a district judge as [s]he deals with the infinite variables of evidence.”). 

Swindall testified regarding e-mails between law enforcement and himself, on 

which Jerome was copied, about a raid that took place before the defendants took 

over as the Mall’s landlord. As the district court recognized, Swindall’s testimony 

and the e-mails were probative of Jerome’s (and possibly other defendants’) actual

or constructive knowledge of the infringement of Luxottica’s marks after AMM 

became the Mall’s landlord—an important element of Luxottica’s claim that 

Jerome and other defendants were contributorially liable. And the district court 

limited Swindall’s testimony to the e-mails and any conversations he had with 

Jerome about the e-mails. Given the district court’s wide discretion regarding 

evidentiary matters, the probative value of Swindall’s testimony to Luxottica’s 

case, and the limited nature of his testimony, we conclude that the district court 

committed no abuse of discretion in permitting him to testify.14

14 Although the defendants repeatedly emphasize that Swindall had previous perjury 

convictions, they cite no authority suggesting that the district court had to exclude his testimony 

based on that fact. See United States v. Swindall, 971 F.2d 1531, 1534 (11th Cir. 1992). The 

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We affirm the district court’s rulings on each evidentiary issue that the 

defendants appeal.

IV. CONCLUSION

The evidence was sufficient to support the jury’s verdict holding the 

defendants liable for contributory trademark infringement under the Lanham Act. 

Concluding that the district court made no reversible error regarding any of the 

issues the defendants submit for our review, we affirm.

AFFIRMED.

district court properly permitted the defendants significant cross-examination regarding 

Swindall’s perjury convictions, as allowed by Federal Rule of Evidence 609(b) where the 

witness was convicted and released from confinement more than 10 years earlier. The

defendants’ cross-examination fully informed the jury as to reasons why they might doubt his 

credibility, and the jury was entitled to assess his credibility as it saw fit. See J & H Auto Trim 

Co. v. Bellefonte Ins. Co., 677 F.2d 1365, 1366, 1375-76 (11th Cir. 1982) (reinstating jury 

verdict, despite trial judge’s disbelief of witnesses’ testimony, because making “credibility 

choices” is “precisely what juries are for”).

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