NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AECOM ENERGY AND 

CONSTRUCTION, INC., an Ohio 

corporation, 

Plaintiff-Appellee, 

 v. 

MORRISON KNUDSEN CORPORATION, 

a Nevada corporation; et al., 

Defendants-Appellants, 

and 

JOHN RIPLEY; et al., 

Defendants.

No. 19-55588 

D.C. No. 

2:17-cv-05398-RSWL-SS 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Ronald S.W. Lew, District Judge, Presiding

Argued and Submitted March 15, 2021

Pasadena, California

Before: WATFORD, FRIEDLAND, and BENNETT, Circuit Judges.

Concurrence by Judge Friedland

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

MAR 24 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

The district court granted summary judgment to Plaintiff-Appellee AECOM 

Energy and Construction, Inc. (“AECOM”) and awarded AECOM $1,802,834,672 

(“$1.8 billion”) in damages under the Lanham Act, 15 U.S.C. § 1117(a). 

Defendants-Appellants1appeal only the damages award. They also argue for the 

first time on appeal that AECOM lacks Article III standing. We have jurisdiction 

under 28 U.S.C. § 1291. We hold that AECOM has standing, and we reverse and 

remand the damages award.

We must determine whether AECOM has standing, even though 

Defendants-Appellants did not raise the issue below. See Animal Prot. Inst. of Am.

v. Hodel, 860 F.2d 920, 923 (9th Cir. 1988). Defendants-Appellants argue that 

AECOM has failed to establish that it owned a legally protectable interest in the 

“Morrison Knudsen” name, trademarks, and attendant goodwill (“MK property”). 

Thus, according to Defendants-Appellants, AECOM has failed to show that it 

suffered an “injury in fact,” a necessary element for constitutional standing. See 

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). We reject DefendantsAppellants’ argument because the record shows that the original entity that owned 

1 Defendants-Appellants are Morrison Knudsen Corporation, Morrison-Knudsen 

Company, Inc., Morrison-Knudsen Services, Inc., Morrison-Knudsen International, 

Inc., and Gary Topolewski.
3 

the MK property became AECOM through various name changes.2 AECOM is 

therefore the entity that always owned and still owns the MK property.

On summary judgment, we must “draw[] all justifiable inferences in favor of 

the non-moving party.” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 

F.3d 1119, 1125 (9th Cir. 2014). Because the district court decided the damages 

award on summary judgment, we review it de novo. Cf. Chao v. A-One Med.

Servs., Inc., 346 F.3d 908, 920 (9th Cir. 2003) (“Although we generally review a

district court’s decision on liquidated damages for abuse of discretion, we review

the issue here, which was decided below on summary judgment, de novo.” (citation

omitted)).

Under 15 U.S.C. § 1117(a), a plaintiff is generally entitled to a disgorgement 

award equal to the defendant’s profits derived from the infringing activity. Id. In 

seeking such an award, it is the plaintiff’s “burden to show with reasonable 

certainty [the defendant’s] gross sales from [the infringing activity].” Rolex 

Watch, U.S.A., Inc. v. Michel Co., 179 F.3d 704, 712 (9th Cir. 1999). AECOM’s 

only evidence establishing Defendants-Appellants’ sales were three press releases. 

These press releases announced that the EPA and the Bureau of Land 

Management, the Blackstone Mining Group, and the Indonesian Infrastructure 

2 Contrary to Defendants-Appellants’ argument, we are not limited to the summary 

judgment record in determining whether AECOM has standing. See Animal Prot. 

Inst. of Am., 860 F.2d at 924 n.6.
4 

Partnership had awarded “Morrison-Knudsen” three construction contracts totaling 

$1.8 billion. Defendants-Appellants failed to dispute the accuracy of the press 

releases or AECOM’s calculation of $1.8 billion in damages based on the press 

releases. Thus, the district court reasoned that Defendants-Appellants had failed to 

raise a genuine factual dispute as to the amount of damages and awarded AECOM 

$1.8 billion in damages. 

Defendants-Appellants argue that the press releases failed to satisfy 

AECOM’s burden of proving Defendants-Appellants’ sales under § 1117(a) 

because the press releases “merely announce construction projects have been 

awarded,” and fail to show that Defendants-Appellants completed any of the 

projects or received any revenue from the projects.3 We agree. The press releases, 

viewed in the light most favorable to Defendants-Appellants, merely show that 

Defendants-Appellants had been awarded contracts; they do not show whether 

Defendants-Appellants completed (or even started) the projects or whether 

Defendants-Appellants received any payments under the contracts, much less 

3 We consider this argument even though Defendants-Appellants failed to raise it 

below because the district court necessarily considered it in granting the damages 

award. See Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1054 (9th Cir. 2007)

(“We need not resolve whether this issue was raised before that court because even 

if a party fails to raise an issue in the district court, we generally will not deem the 

issue waived if the district court actually considered it.”). Because this argument is 

dispositive, we do not consider Defendants-Appellants’ other arguments 

challenging the damages award or whether they waived those arguments by failing 

to raise them below.
5 

almost $2 billion.

4

 Thus, AECOM failed to carry its burden of establishing 

Defendants-Appellants’ sales arising from their infringing activity, and the district 

court erred in granting the damages award.

The parties shall bear their own costs on appeal.

REVERSED AND REMANDED.5

4 Even if we were to view the press releases in the light most favorable to AECOM, 

we doubt they would support an inference that there were “sales”—i.e., monies 

actually received—by Defendants-Appellants, in any amount, much less in the 

amount of $1.8 billion. And this is without even considering that there was no 

evidence in the record that Defendants-Appellants had started any of the claimed 

massive construction contracts or were remotely able to undertake any of the 

construction.

5 We note that Defendants-Appellants failed to provide in discovery any reliable 

evidence of their sales, profits, or costs, despite court orders compelling them to do 

so. Our decision does not preclude the district court on remand from considering 

whether a discovery sanction is appropriate should AECOM seek such relief, such 

as a sanction focused on the evidentiary inferences that may be drawn from the 

defendants’ refusal to produce relevant financial records. We express no opinion 

on whether any such sanction would be appropriate.
1 

AECOM Energy & Constr., Inc. v. Morrison Knudsen Corp., No. 19-55588

FRIEDLAND, J., concurring in the judgment: 

I concur in the judgment because it appears that the district court did not 

understand that it had discretion to reduce the disgorgement award under 15 U.S.C. 

§ 1117(a). I would reverse and remand for the district court to reconsider whether 

to exercise such discretion. 

The Lanham Act states that plaintiffs shall be entitled to recover damages 

“subject to the principles of equity,” and that “the court may in its discretion” alter 

awards based on profits “as the court shall find to be just.” 15 U.S.C. § 1117(a); 

see also Fifty-Six Hope Rd. Music, Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059, 1073 

(9th Cir. 2015). The district court did not appear to recognize its duty to consider 

equitable principles or its discretion to reduce the disgorgement award if it 

determined that $1.8 billion would be excessive. See 15 U.S.C. § 1117(a). To the 

contrary, the district court stated that it was “restless . . . over the amount of 

damages,” but Defendants-Appellants’ “procedural failures left the [c]ourt with no 

clear avenue other than to rest upon the standards of civil procedure,” which 

suggests that it may have felt bound to grant $1.8 billion or nothing. This error 

amounted to an abuse of discretion requiring a remand for reconsideration. See 

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990). 

FILED

MAR 24 2021

MOLLY C. DWYER, 

CLERK

U.S. COURT OF APPEALS
2 

But I respectfully disagree with my colleagues’ conclusion that a summary 

judgment ruling granting some damages amount to AECOM was inappropriate—

and, indeed, I believe that the damages amount the district court entered was within 

the range of options available for the court to consider in exercising its discretion. 

As the majority mentions only in passing, see supra note 5, the defining feature of 

this dispute has been what the district court aptly described as DefendantsAppellants’ “lengthy history of bad faith litigation practices.” DefendantsAppellants ignored multiple discovery orders, refused to appear for depositions, 

and ultimately failed to produce a single reliable business record from which 

AECOM could calculate damages. Unsurprisingly, AECOM’s reliance on the 

publicly available press releases to meet its burden under § 1117(a) was the direct 

result of Defendants-Appellants’ tactics. This context is important because 

“[r]equiring more precision than can be attained, especially where the impossibility 

of more precise ascertainment was the fault of the wrongdoer, would be inequitable 

and is not required.” DSPT Int’l, Inc. v. Nahum, 624 F.3d 1213, 1223 (9th Cir. 

2010). 

Critically, Defendants-Appellants failed to contest the press releases as 

evidence of their revenue. As the moving party on summary judgment, AECOM 

had the burden to prove that it was entitled to a disgorgement award. Fed. R. Civ. 

P. 56. AECOM submitted the press releases into evidence, and its statement of 
3 

uncontroverted facts in support of its motion for summary judgment included the 

fact that Defendants-Appellants had claimed to earn revenue totaling $1.802 

billion. Given that Defendants-Appellants had stonewalled AECOM’s every effort 

to ascertain information about their finances, it was reasonable for AECOM to

assert that the publicly available press releases accurately reflected DefendantsAppellants’ revenues—and Defendants-Appellants still had the opportunity to 

contest that assertion in opposition to summary judgment, as the local rules 

required them to do if they believed Plaintiff’s asserted undisputed fact was untrue. 

See C.D. Cal. R. 56-2. But when Defendants-Appellants then filed a statement of 

genuine disputes of material facts in opposition to AECOM’s motion, they raised 

no objection the asserted revenue fact. Nor did they otherwise deny winning the 

contracts or contest that they had received the revenue anticipated by the awards. 

Consequently, the district court was permitted to assume that this fact “as claimed 

and adequately supported by the moving party [was] admitted to exist without 

controversy.” C.D. Cal. R. 56-3. 

Even under the majority’s reasoning, on remand the district court will have 

another opportunity to decide whether or how this case should proceed. I share the 

majority’s opinion that the district court could consider entering discovery 

sanctions. See supra note 5. In my view, appropriate sanctions could even include

a default judgment against Defendants-Appellants, if the district court deems it 
4 

justified. See Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 

1091, 1096 (9th Cir. 2007) (describing a five-part test to determine “whether a 

case-dispositive sanction under [Federal Rule of Civil Procedure 37(b)(2)] is just”). 

Especially if discovery abuses were what was already motivating the district 

court’s reasoning, it would be preferable for the court to describe the sanctions it 

has chosen to impose in clear terms and explain the reasons for doing so.