### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 19

‐ 1528 & 19

‐ 1613

E PIC S YSTEMS C ORP

., Plaintiff/Counterclaim Defendant

‐ Appellee/Cross

‐ Appellant

,

v.

T ATA C ONSULTANCY S ERVICES L TD

. & T ATA A MERICA

I NTERNATIONAL C ORP

. d/b/a TCS A MERICA

, Defendants/Counterclaim Plaintiffs

‐ Appellants/Cross

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 14

‐ cv

‐ 748

— William M. Conley

, Judge

.

____________________

A RGUED J ANUARY 16, 2020

— D ECIDED A UGUST 20, 2020

A MENDED N OVEMBER 19, 2020

____________________

Before F LAUM

, M ANION

, and K ANNE

, Circuit Judges

.

K ANNE

, Circuit Judge

. Without permission from Epic Sys

‐

tems, Tata Consultancy Services (“TCS”) 1 downloaded, from

1 Tata Consultancy Services Limited is an Indian company; Tata

America International Corp. is a New York corporation that is wholly2 Nos. 19

‐ 1528 & 19

‐ 1613

2012 to 2014, thousands of documents containing Epic’s con

‐

fi dential information and trade secrets. TCS used some of this

information to create a “comparative analysis”—a spread

‐

sheet comparing TCS’s health

‐ record software (called “Med

Mantra”) to Epic’s software. TCS’s internal communications

show that TCS used this spreadsheet in an a tt empt to enter

the United States health

‐ record

‐ software market, steal Epic’s

client, and address key gaps in TCS’s own Med Mantra soft

‐

ware.

Epic sued TCS, alleging that TCS unlawfully accessed and

used Epic’s con fi dential information and trade secrets. A jury

ruled in Epic’s favor on all claims, including multiple Wiscon

‐

sin tort claims. The jury then awarded Epic $140 million in

compensatory damages, for the bene fi t TCS received from us

‐ ing the comparative

‐ analysis spreadsheet; $100 million for the

bene fi t TCS received from using Epic’s other con fi dential in

‐

formation; and $700 million in punitive damages for TCS’s

conduct.

Ruling on TCS’s motions for judgment as a ma tt er of law,

the district court upheld the $140 million compensatory

award and vacated the $100 million award. It then reduced

the punitive

‐ damages award to $280 million, re fl ecting Wis

‐

consin’s statutory punitive

‐ damages cap. Both parties ap

‐ pealed di ff erent aspects of the district court’s rulings.

We agree with the district court that there is su ffi cient ev

‐

idence for the jury’s $140 million verdict based on TCS’s use

of the comparative analysis, but not for the $100 million ver

‐

dict for uses of “other information.” We also agree with the

owned by Tata Consultancy Services. We refer to these companies collec

‐ tively as “TCS.”Nos. 19

‐ 1528 & 19

‐ 1613 3

district court that the jury could punish TCS by imposing pu

‐

nitive damages. But the $280 million punitive

‐ damages award

is constitutionally excessive, so we remand to the district

court with instructions to reduce the punitive

‐ damages

award.

I. B ACKGROUND

Epic Systems is a leading developer of electronic

‐ health

‐

record software. This software aims to improve patients’ qual

‐ ity of care by keeping relevant information about patients—

like patient schedules and billing records—in a central loca

‐

tion. Epic provides versions of this software to some of the top

hospitals in the United States. Each customer licenses from

Epic software applications (modules) to fi t the customer’s spe

‐

ci fi c needs. The customer can then customize the software to

ensure it operates properly within the customer’s organiza

‐

tional structure.

The complexity of Epic’s health

‐ record system requires

Epic’s customers to consistently update and test their sys

‐

tems. To facilitate this process, Epic provides its customers

with access to a web portal called “UserWeb.” UserWeb pro

‐

vides various resources—including administrative guides,

training materials, and software updates—and it also sup

‐ plies an online forum where Epic’s customers can share infor

‐

mation.

Along with these helpful resources, UserWeb contains

con fi dential information about Epic’s health

‐ record software.

To protect this information, Epic restricts who can access the

UserWeb portal. Epic’s customers, who have access, are re

‐ quired to maintain the con fi dentiality of this information, and4 Nos. 19

‐ 1528 & 19

‐ 1613

they are expected to allow speci fi c individuals access to this

sensitive information on a “need

‐ to

‐ know” basis only.

To guard this con fi dentiality, Epic allows only creden

‐

tialed users to access UserWeb; to get credentialed, users must

prove they are either a customer or a consultant. Customers

get access to all features and documents related to the mod

‐

ules they license from Epic. Consultants—who are hired by

customers to implement and test Epic’s software—cannot ac

‐

cess features like the discussion forum and training materials.

In 2003, Kaiser Permanente—the largest managed

‐

healthcare organization in the United States—obtained a li

‐

cense from Epic to use KP HealthConnect, a Kaiser

‐ speci fi c

version of Epic’s electronic

‐ health

‐ record software. Because of

Kaiser’s size, implementation of KP HealthConnect is highly

complex; testing and tweaking it after each update is compli

‐

cated and time consuming.

For help with these tasks, Kaiser hired TCS in 2011. TCS

provides information

‐ technology services, like software test

‐ ing and consulting, on a global basis. But TCS also has its own

electronic

‐ health

‐ record software, Med Mantra, which at the

time was predominately sold in India.

Epic was aware of this con fl ict of interest and was con

‐

cerned about TCS’s relationship with Kaiser. Still, Kaiser used

TCS to test KP HealthConnect. But to ful fi ll its obligation of

con fi dentiality to Epic, Kaiser imposed rules for TCS to follow

while working on Kaiser’s account.

First, TCS was required to perform all services related to

KP HealthConnect at Kaiser o ffi ces in the United States or o ff‐

shore development centers—approved facilities outside the

United States.Nos. 19

‐ 1528 & 19

‐ 1613 5

Second, TCS was required to follow strict security proto

‐

cols at the o ff shore development centers. Desktop computers

used to work on KP HealthConnect could be used only for

Kaiser

‐ related work. To ensure these computers could not ac

‐

cess the internet or TCS’s email system, a fi rewall was in

‐

stalled. Other computers at the o ff shore facilities could access

TCS’s network and email system but were not allowed to ac

‐

cess KP HealthConnect material.

TCS, while operating under these strict requirements, pro

‐

vided testing and support services to Kaiser. But TCS employ

‐

ees claimed they could perform the required tasks more e ffi‐

ciently if they had full access to UserWeb. Kaiser repeatedly

asked Epic to grant TCS this access; Epic repeatedly declined

to do so.

Unsatis fi ed with this lack of access, in late 2011, TCS found

a way to gain unfe tt ered access to all the information available

on UserWeb: the key was Ramesh Gajaram. TCS hired Gaja

‐

ram to work on the Kaiser account from an o ff shore develop

‐

ment center in Chennai, India. Before working for TCS, Gaja

‐

ram worked for a di ff erent company that also helped Kaiser

test KP HealthConnect. While working for that company,

Gajaram falsely identi fi ed himself to Epic as a Kaiser em

‐ ployee, and Epic granted Gajaram full access to UserWeb.

Gajaram informed his superior at TCS, Mukesh Kumar,

that he still had access to UserWeb. At Kumar’s request, Gaja

‐

ram accessed the UserWeb portal. Gajaram also shared his

login credentials with other employees at the Chennai o ff‐

shore development center. A few years later, Gajaram trans

‐

ferred to TCS’s Portland, Oregon o ffi ce; he again shared his

UserWeb login credentials with at least one other TCS em

‐ ployee.6 Nos. 19

‐ 1528 & 19

‐ 1613

Thanks to Gajaram’s actions, dozens of TCS employees

gained unauthorized access to UserWeb. And from 2012 to

2014, TCS employees accessed UserWeb thousands of times

and downloaded over 6,000 documents (1,600 unique docu

‐

ments) totaling over 150,000 pages. These documents con

‐

tained Epic’s con fi dential information, including some of its

trade secrets. And not all of this information related to TCS’s

work for Kaiser; employees downloaded information related

to a medical

‐ laboratory module that Kaiser does not license

from Epic.

This unauthorized access came to light in early 2014, when

Philip Guionnet, a TCS employee, a tt ended meetings concern

‐ ing the Med Mantra software. At the fi rst meeting, Guionnet

observed a demonstration of Med Mantra for Kaiser execu

‐

tives. Guionnet was “astounded”; he had seen Med Mantra

several times before and believed the software had dramati

‐ cally improved.

After this meeting, Guionnet was concerned that “some of

the information from Kaiser had been used to improve Med

Mantra.” So, Guionnet visited the Med Mantra product devel

‐

opment team. During his visit, a TCS employee showed

Guionnet a spreadsheet that compared Med Mantra to Epic’s

electronic

‐ health

‐ record software. The spreadsheet com

‐ pared, in some detail, the functionalities of the two products.

Guionnet believed this spreadsheet con fi rmed his suspicion

that information regarding Kaiser’s version of Epic’s software

had been used to improve Med Mantra. Guionnet then asked

for a copy of this spreadsheet. What he received instead was

a less

‐ detailed document referred to as the “comparative anal

‐ ysis.”Nos. 19

‐ 1528 & 19

‐ 1613 7

The comparative analysis—a key document in this ap

‐ peal—was created as a part of TCS’s e ff ort to see if it could

sell Med Mantra in the United States. Speci fi cally, TCS

wanted to sell Med Mantra directly to Kaiser, who was using

Epic’s software, and wanted to be sure that “key gaps” in Med

Mantra were addressed before this a tt empted sale. So, TCS

gave a consultant from the Med Mantra team the task of cre

‐ ating a comparison between Med Mantra and Epic’s software.

In doing so, this employee worked with “Subject Ma tt er Ex

‐ perts”—employees who had experience with Epic’s soft

‐

ware—and created the comparative analysis that was ulti

‐ mately sent to Guionnet.

The comparative analysis is an 11

‐ page spreadsheet that

compares Med Mantra to Epic’s software. The fi rst page lists

33 modules, and it notes whether the module is available in

Med Mantra and Epic’s software; the next 10 pages list Med

Mantra’s functions and note whether Epic’s software contains

the same functions. Multiple TCS employees con fi rmed that

the information used in this comparative analysis is not pub

‐ licly available. 2

Guionnet—after a tt ending these meetings and viewing

the comparative analysis—reported his concerns in June 2014

to TCS, Kaiser, and Epic employees. Epic and Kaiser immedi

‐ ately investigated Guionnet’s claim and discovered that TCS

employees had gained unauthorized access to UserWeb. But

TCS employees were less than forthcoming during Kaiser’s

2 In fact, TCS was barred from arguing that the comparative analysis

was created from information in publicly available sources because it

failed to “direct the court to any evidence that the comparative analysis

was created from such sources.”8 Nos. 19

‐ 1528 & 19

‐ 1613

investigation; multiple TCS employees lied to investigators

about TCS’s access to UserWeb.

A few months later, Epic fi led suit against TCS, alleging

that TCS used fraudulent means to access and steal Epic’s

trade secrets and other con fi dential information. During a

contentious year

‐ and

‐ a

‐ half discovery process, Epic learned

that TCS had failed to preserve relevant evidence. The district

court sanctioned TCS for its discovery failures by ultimately

providing the jury with an adverse

‐ inference instruction:

If you fi nd by a preponderance of the evidence that

Epic has proven TCS both: (1) intentionally de

‐ stroyed evidence (or intentionally caused evidence

to be destroyed), and (2) caused the evidence to be

destroyed in bad faith, then you may assume that

this evidence contained information helpful to Epic

and harmful to TCS.

The district court bifurcated proceedings into a liability

phase and a damages phase. The liability phase began in April

2016. The jury returned a verdict in favor of Epic on all claims,

including those under Wisconsin law for breach of contract,

fraudulent misrepresentation, misappropriation of trade se

‐

crets, unfair competition, deprivation of property, and unjust

enrichment.

Before the damages phase of trial, Epic presented the dis

‐

trict court with evidence it sought to present to the jury re

‐ garding the bene fi t TCS received by using Epic’s con fi dential

information and trade secrets. Epic’s expert, Thomas Britven,

initially based his damages calculation on costs Epic incurred

developing the modules underlying all the documents TCS

stole. But the district court concluded that the evidence did

not support Epic’s broad claims of the use to which TCS putNos. 19

‐ 1528 & 19

‐ 1613 9

the stolen information. The district court accordingly rejected

Epic’s initial damages pro ff er but gave Epic another oppor

‐ tunity to present evidence of TCS’s uses of the stolen infor

‐

mation and the value of those uses to TCS.

Epic went back to the drawing board and returned to the

district court with a new, more limited theory of damages.

Britven based his new calculation on only the con fi dential in

‐

formation and trade secrets that were incorporated into the

comparative analysis spreadsheet. This calculation still used

a proxy for the bene fi t TCS received: the costs Epic incurred

in developing these speci fi c software modules—accounting

for coding costs that did not bene fi t TCS and technology de

‐

cay over time. The district court accepted this “ratchet[ed]

back” damages theory, noting the new calculation “more ap

‐ proximates what was actually received and apparently used

by [TCS] both in the comparative model but also what were

ongoing discussions by marketing people within [TCS].”

During the damages trial, Epic presented two witnesses:

Stirling Martin and Britven. Martin used a chart that both

identi fi ed which Epic modules were re fl ected in TCS’s down

‐

loads and identi fi ed, with a checkmark, which of these mod

‐

ules were re fl ected in the comparative analysis. Martin testi

‐

fi ed about what stolen information was incorporated into the

comparative analysis. Britven then presented a calculation of

the value TCS received by avoiding research and develop

‐

ment costs they would have incurred without the stolen in

‐

formation. First, Britven identi fi ed how much it cost Epic to

develop the modules related to the trade secrets and con fi den

‐

tial information that made their way into the comparative

analysis. Then, Britven adjusted this number based on certain

coding costs (which conferred no bene fi t on TCS) and the10 Nos. 19

‐ 1528 & 19

‐ 1613

decay in the value of technology over time. He reached an ap

‐ proximate bene fi t to TCS of about $200 million.

TCS called its damages expert—Brent Bersin—to testify

about the value of the bene fi t TCS received related to the com

‐ parative analysis. Bersin testi fi ed that Epic was not entitled to

an award of economic damages, but he also testi fi ed that

Britven incorrectly calculated the damages. Speci fi cally, Ber

‐

sin pointed out that Britven’s calculation failed to account for

reduced labor costs in India; TCS could pay its India

‐ based

engineers about 30% to 40% less than Epic would have to pay

its engineers to develop the same software.

At the end of the damages trial, the district court gave the

jury a special

‐ verdict form concerning compensatory dam

‐

ages. The jury was asked to determine the amount of dam

‐

ages, if any, to which Epic was entitled based on (a) the “Ben

‐

e fi t of TCS’s Use of [the] Comparative Analysis,” and (b) the

“Bene fi t of TCS’s Use of Other Con fi dential Information.” The

jury was also asked to determine whether Epic should be

awarded punitive damages, and if so, in what amount.

The jury returned a $940 million total damages award:

$140 million for uses of the comparative analysis, $100 million

for uses of “other” con fi dential information, and $700 million

in punitive damages. The district court entered an injunction

prohibiting TCS from using, possessing, or retaining any of

Epic’s trade secrets or con fi dential information.

The court then addressed several post

‐ trial motions, in

‐ cluding TCS’s three motions for judgment as a ma tt er of law

on liability and damages. Fed. R. Civ. P. 50(a). The district

court upheld the jury’s liability verdict and its $140 million

compensatory

‐ damages award based on TCS’s uses of theNos. 19

‐ 1528 & 19

‐ 1613 11

comparative analysis, which contained Epic’s information.

But the district court struck the $100 million compensatory

award for “other uses” of Epic’s con fi dential information and

also reduced the punitive

‐ damages award to $280 million

based on a Wisconsin statutory cap on punitive damages. See

Wis. Stat. § 895.043(6).

TCS then fi led a post

‐judgment motion under Rules 50(b)

and 59, again seeking judgment as a ma tt er of law, or in the

alternative, a new trial. But this motion “largely repeat[ed] the

same arguments previously raised in [TCS’s] Rule 50(a) mo

‐

tion.” The district court denied this new motion, leaving in

‐

tact the $140 million compensatory award based on the com

‐ parative analysis. It also upheld the previously reduced $280

million punitive

‐ damages award, noting that its prior deci

‐

sion to vacate part of the compensatory

‐ damages award

“does not undermine the jury’s award of punitive damages.”

II. A NALYSIS

Both parties appealed di ff erent aspects of the district

court’s post

‐ trial rulings. TCS challenges the district court’s

decision to leave intact the $140 million compensatory award

related to the comparative analysis. TCS also challenges the

district court’s punitive damages decisions. On cross

‐ appeal,

Epic challenges the district court’s decision to vacate the $100

million compensatory award based on “other uses” of Epic’s

con fi dential information.

We fi rst note what law applies to these appeals. Jurisdic

‐

tion in this case is based on diversity of citizenship and a fed

‐

eral question (with supplemental jurisdiction over the state

‐

law claims). When hearing state

‐ law claims that arise under

diversity jurisdiction, 28 U.S.C. § 1332, or supplemental12 Nos. 19

‐ 1528 & 19

‐ 1613

jurisdiction, id. § 1367, federal courts are “obliged to follow

state decisional law, as well as all other state law.” Houben v.

Telular Corp.

, 309 F.3d 1028, 1032 (7th Cir. 2002). And when a

federal jury awards compensatory damages based on a state

‐

law claim, state law applies to our review of that damages

award. Kaiser v. Johnson & Johnson

, 947 F.3d 996, 1019 (7th Cir.

2020). Similarly, when state law provides the basis for liabil

‐ ity, the punitive

‐ damages award must be consistent with state

law. See Kapelanski v. Johnson

, 390 F.3d 525, 534 (7th Cir. 2004).

Epic’s damages award for unjust enrichment was based on

its claims under Wisconsin law for misappropriation of its

trade secrets and con fi dential information. And its award of

punitive damages had to be based on Epic’s Wisconsin law

“trade secrets, fraudulent misrepresentation[,] and unfair

competition claims.”

Wisconsin law therefore applies to the parties’ substantive

challenges of these damages awards. With that in mind, we

address the parties’ challenges to the district court’s decisions

regarding compensatory damages. We then turn to TCS’s ar

‐

guments concerning punitive damages.

A. “Comparative Analysis” Compensatory Award

The jury awarded Epic $140 million in compensatory dam

‐

ages based on the bene fi t TCS derived from using the com

‐ parative analysis, which contained some of Epic’s con fi dential

information. The district court upheld this award on two oc

‐

casions: fi rst, when ruling on TCS’s post

‐ trial motion for judg

‐

ment as a ma tt er of law, Fed. R. Civ. P. 50(a); and second,

when ruling on TCS’s renewed motion for judgment as a mat

‐

ter of law, id. 50(b), and motion for a new trial, id. 59.Nos. 19

‐ 1528 & 19

‐ 1613 13

We review a district court’s denial of a motion for judg

‐

ment as a ma tt er of law de novo

. Empress Casino Joliet Corp. v.

Balmoral Racing Club, Inc.

, 831 F.3d 815, 822 (7th Cir. 2016); see

also Abellan v. Lavelo Prop. Mgmt., LLC

, 948 F.3d 820, 827 (7th

Cir. 2020) (applying Rule 50 and reviewing the district court’s

decision de novo when state substantive law applied). “Thus,

like the district court, we decide whether the jury had ‘a le

‐ gally su ffi cient evidentiary basis’ for its verdict.” May v.

Chrysler Grp., LLC

, 716 F.3d 963, 971 (7th Cir. 2013) (per cu

‐

riam) (quoting Fed. R. Civ. P. 50(a)(1)). In doing so, we con

‐

strue all evidence in the record—and inferences that can be

reasonably drawn from that evidence—in favor of the party

that prevailed at trial on the issue; that party here is Epic. May

,

716 F.3d at 971. This is a high burden for the moving party to

satisfy: we reverse the verdict “only if no rational jury could

have found in [Epic’s] favor.” Andy Mohr Truck Ctr., Inc. v.

Volvo Trucks N. Am.

, 869 F.3d 598, 602 (7th Cir. 2017). Addi

‐ tionally, we review a district court’s denial of a motion for a

new trial under Rule 59 for an abuse of discretion. Abellan

, 948

F.3d at 830.

TCS argues it is entitled to judgment as a ma tt er of law on

this compensatory

‐ damages award because there is no logical

connection between the basis for liability and the jury’s dam

‐

ages verdict. Speci fi cally, TCS argues that a reasonable jury

could not fi nd that TCS received a $140 million bene fi t by in

‐ corporating Epic’s con fi dential information and trade secrets

into what TCS characterizes as a “stale marketing document.”

Unjust enrichment damages are available as a remedy for

a defendant’s misappropriation of trade secrets, Wis. Stat.

§ 134.90, and are also available as a remedy for Wisconsin tort

claims, see Pro

‐ Pac, Inc. v. WOW Logistics Co.

, 721 F.3d 781, 78614 Nos. 19

‐ 1528 & 19

‐ 1613

(7th Cir. 2013). An action for recovery seeking unjust enrich

‐

ment damages is “grounded on the moral principle that one

who has received a bene fi t has a duty to make restitution

where retaining such a bene fi t would be unjust.” Wa tt s v.

Wa tt s

, 405 N.W.2d 303, 313 (Wis. 1987).

Because the recovery of unjust enrichment damages is

grounded in equitable principles, Wisconsin law limits the

measure of unjust enrichment damages to the value of the

“bene fi t conferred upon the defendant.” Mgmt. Comput.

Servs., Inc. v. Hawkins, Ash, Baptie & Co.

, 557 N.W.2d 67, 79–80

(Wis. 1996); cf. Halverson v. River Falls Youth Hockey Ass’n

, 593

N.W.2d 895, 900 (Wis. Ct. App. 1999) (“Making improvements

alone does not prove the [defendant] received any bene fi t

from them.”). Unjust enrichment damages must be proven

with reasonable certainty, Mgmt. Comput. Servs.

, 557 N.W.2d

at 80, and any costs the plainti ff may have incurred are “gen

‐ erally irrelevant,” Lindquist Ford, Inc. v. Middleton Motors, Inc.

,

557 F.3d 469, 477 (7th Cir. 2009).

But the reasonable value of the bene fi t conferred on a de

‐

fendant can be measured in a variety of ways. In ordinary un

‐ just enrichment cases involving money or services, the

amount of recovery “is the amount of money advanced or the

reasonable value of the services rendered.” Shulse v. City of

Mayville

, 271 N.W. 643, 647 (Wis. 1937). In other cases, a ben

‐

e fi t is conferred under circumstances in which the “benefactor

reasonably believes that he will be paid,” so the benefactor

may be entitled to receive damages equaling “the market

value of the bene fi t.” Cosgrove v. Bartolo tt a

, 150 F.3d 729, 734

(7th Cir. 1998). And the Restatement of Restitution and Unjust

Enrichment—which Wisconsin courts treat as persuasive au

‐ thority, see, e.g.

, Bucke tt v. Jante

, 767 N.W.2d 376, 382–83 (Wis.Nos. 19

‐ 1528 & 19

‐ 1613 15

Ct. App. 2009)—provides many examples of how to calculate

the bene fi t conferred on a defendant depending on the con

‐

text in which that bene fi t is received. See, e.g.

, Restatement

(Third) of Restitution and Unjust Enrichment § 41 (2011)

(providing guidance on how to calculate the bene fi t conferred

on the defendant in cases involving the misappropriation of

fi nancial assets).

Simply put, there is no single way to measure the bene fi t

conferred on a defendant; the measurement is context de

‐ pendent. The important considerations are that a judge or jury

calculates the bene fi t to the defendant—not the loss to the

plainti ff —and that this calculation is done with reasonable

certainty. See, e.g.

, Mgmt. Comput. Servs.

, 557 N.W.2d at 80

(holding that evidence of lost pro fi ts is insu ffi cient for a “fair

and reasonable approximation of unjust enrichment dam

‐ ages” because “unjust enrichment is not measured by the

plainti ff ’s loss”); W.H. Fuller Co. v. Seater

, 595 N.W.2d 96, 100

(Wis. Ct. App. 1999) (remanding with instructions for the trial

court to fi rst determine which of the plainti ff ’s services the de

‐

fendant actually bene fi ted from and then determine the value

of that bene fi t).

Following this general approach, we have noted at least

one way a plainti ff may prove the amount of bene fi t conferred

on the defendant when the case involved misappropriation of

trade secrets. In 3M v. Pribyl

, we upheld the jury’s liability

fi nding concerning the defendant’s misappropriation of 3M’s

trade secret (operating procedures and manuals). 259 F.3d

587, 595–97 (7th Cir. 2001) (applying Wisconsin trade secret

law). We found in the record su ffi cient evidence that the de

‐

fendants used the misappropriated operating procedures and

manuals to gain “a signi fi cant head start in their operation.”16 Nos. 19

‐ 1528 & 19

‐ 1613

Id. at 596. While this trade secret was not used directly to de

‐ velop a new product and was not tied to any of the defend

‐

ant’s speci fi c pro fi ts, we a ffi rmed the jury’s liability verdict,

and also noted that damages were awarded based on “what

it would have cost the defendants to independently develop

the trade secrets at issue.” Id. at 607.

So, avoided research and development costs have been

awarded when the defendants gained a signi fi cant head start

in their operations.

TCS believes that avoided research and development costs

are not a reasonable proxy for the bene fi t it received from the

comparative analysis. TCS assumes that Epic could prove

only that the comparative analysis was used as a “stale mar

‐ keting document.” Additionally, TCS argues that Britven—

Epic’s damages expert—made a fundamental error under

Wisconsin law: he based his unjust enrichment damages on

Epic’s cost rather than TCS’s bene fi t

. So, TCS reasons, the dam

‐

ages awarded based on this calculation must fail as a ma tt er

of law.

We disagree. Calculating the bene fi t conferred on a de

‐

fendant to determine unjust enrichment damages is a context

‐ speci fi c analysis. Under Wisconsin law, the jury could award

avoided research and development costs based on TCS gain

‐ ing a “signi fi cant head start in [its] operation.” Id. at 596. And,

viewing the evidence in the light most favorable to Epic, the

jury would have a su ffi cient basis to award Epic $140 million

in compensatory damages based on the “head start” TCS

gained in development and competition. That “head start,”

the jury could conclude, came from TCS’s use of the compar

‐

ative analysis and thus the stolen information incorporated

into that analysis. Furthermore, the jury could base its awardNos. 19

‐ 1528 & 19

‐ 1613 17

on the bene fi t TCS received from avoided research and devel

‐

opment costs, not the cost Epic incurred when creating the

same information.

Let’s turn from the legal theory that supports the jury ver

‐

dict to the evidence that supports the damages award. First,

Epic presented evidence that TCS stole con fi dential infor

‐

mation and trade secrets from Epic’s UserWeb. Gajaram, a

TCS employee, testi fi ed that he improperly obtained creden

‐

tials that allowed him to view UserWeb in its entirety. Gaja

‐

ram also testi fi ed that he shared his credentials with other

TCS employees. Stirling Martin, Epic’s senior vice president,

testi fi ed that he determined TCS employees downloaded at

least 1,600 unique fi les from UserWeb in two years. Martin

con fi rmed that these fi les contained con fi dential information,

including trade secrets.

The jury also saw slides from a TCS PowerPoint presenta

‐

tion showing that TCS strategized as to how it could start sell

‐ ing electronic

‐ health

‐ record software in the United States.

TCS noted in this PowerPoint, however, that there were “key

gaps” in Med Mantra that TCS would need to address before

selling it to United States companies. In a deposition played

for the jury, a TCS employee con fi rmed that TCS wanted to

“implement” Med Mantra at Kaiser, one of Epic’s biggest cus

‐

tomers, and that he was asked to create the comparative anal

‐ ysis to help achieve this goal. This employee also testi fi ed that

he refused to create the comparative analysis because he did

not want to get in trouble for disclosing Epic’s con fi dential in

‐

formation. Still, the jury saw internal emails showing that TCS

found a willing participant and the comparative analysis was

created.18 Nos. 19

‐ 1528 & 19

‐ 1613

The jury also heard Guionnet testify that TCS wanted to

fi nd a way to implement “Med Mantra, either as a whole or

in modules, in the U.S.” To that end, Guionnet testi fi ed that

TCS worked with DaVita to develop a lab module. And the

PowerPoint slides shown to the jury show that TCS—as a part

of its United States entry strategy—would use DaVita “as a

reference site to promote Lab Management solution[s] to Hos

‐ pitals and Independent Laboratories.” This lab module was a

success; an email shown to the jury indicated that TCS

planned on “marketing the [l]ab product as a starter immedi

‐ ately to position [itself] in the Provider space.”

Additionally, Epic presented evidence that, based on

TCS’s discovery violations, would allow it to draw an adverse

inference against TCS. The jury heard evidence that TCS

failed to preserve proxy logs that would have indicated who

accessed UserWeb and when. It also heard that TCS failed to

preserve the contents of its computer hard drives. So, the jury

could conclude that TCS destroyed evidence of additional

downloaded documents that “contained information helpful

to Epic and harmful to TCS.”

The jury could conclude, based on all the evidence we’ve

described, that TCS used Epic’s stolen con fi dential infor

‐

mation, including trade secrets, to create the comparative

analysis. Then, the jury could infer from the evidence that the

comparative analysis was used for a variety of purposes.

These purposes include: a tt empting to sell Med Mantra to

Kaiser, one of Epic’s largest customers; a tt empting to enter the

United States market and compete directly with Epic; and ad

‐ dressing any key gaps in Med Mantra, potentially by improv

‐ ing the product. These fi ndings are bolstered by the adverseNos. 19

‐ 1528 & 19

‐ 1613 19

inference against TCS—an inference that would allow the jury

to conclude that more documents harmful to TCS existed.

The jury could therefore fi nd that TCS’s bene fi t, based on

TCS’s use of the comparative analysis, was a “head start” in

competition and development. Indeed, the evidence allowed

a jury to conclude that TCS used Epic’s con fi dential infor

‐

mation to thoroughly evaluate what it would take to compete

in a new market. In other words, a jury could conclude that

TCS had a free shot—using stolen information—to determine

whether it would be pro fi table to improve Med Mantra and

implement a variety of tactics to enter the United States elec

‐

tronic

‐ health

‐ record market. Based on these intermediate

fi ndings, a jury could determine that a reasonable valuation

of this bene fi t is the cost TCS avoided by not having to de

‐ velop this information by itself.

And the jury could value that bene fi t—avoided research

and development costs—at $140 million. Martin testi fi ed that

information taken from UserWeb was incorporated into the

comparative analysis. He explained that the stolen infor

‐

mation corresponded to speci fi c modules of Epic’s software;

so, Martin broke down for the jury which information, corre

‐ sponding to speci fi c modules, had been embedded in the

comparative analysis. Martin then showed the jury an exhibit

on which he placed a checkmark by each module of Epic’s

software that he believed made its way into the comparative

analysis.

Britven then calculated TCS’s bene fi t from avoiding the

cost of researching and developing the stolen modules that

were incorporated into the comparative analysis. He started

by calculating Epic’s cost in developing all of the information

taken by TCS; he then reduced that number to re fl ect only the20 Nos. 19

‐ 1528 & 19

‐ 1613

cost Epic incurred from developing modules incorporated

into the comparative analysis. A few more reductions were

made: one subtracting the costs of Epic’s coding that TCS did

not receive, and one re fl ecting the decayed value of technol

‐

ogy over time. Britven concluded, based on this calculation,

that TCS received a $200 million bene fi t even though “Epic

incurred [$]306 million to develop those same trade secrets

and con fi dential information.”

TCS’s expert, Bersin, testi fi ed about what he believed to be

missing from Britven’s calculation: a labor

‐ cost reduction. He

explained that Med Mantra’s development team is located in

India, where labor costs are 30–40% less than in the United

States, where Epic developed its software. So, he reasoned,

TCS’s avoided research and development costs should be 30–

40% less than the $200 million Britven calculated. And apply

‐ ing a 30% reduction to Britven’s $200 million bene fi t value

leaves you with an estimated $140 million in avoided research

and development costs—the exact amount of damages

awarded by the jury.

In sum, the jury had a su ffi cient basis to reach the $140

million “comparative analysis” compensatory award. TCS’s

argument to the contrary relies on the assumption that the

comparative analysis was used as nothing more than a stale

marketing document. But the jury was presented with evi

‐

dence that would allow it to conclude the comparative analy

‐

sis was not just a stale marketing document; the comparative

analysis—and therefore Epic’s information—was used to help

TCS evaluate its United States entry strategy and potentially

even address key gaps in Med Mantra by improving the prod

‐

uct. The evidence also allowed the jury to conclude that

avoided research and development costs were a reasonableNos. 19

‐ 1528 & 19

‐ 1613 21

valuation of the bene fi t TCS received from using the compar

‐

ative analysis, which contained stolen information. Likewise,

using avoided research and development costs as the valua

‐

tion of TCS’s bene fi t, the jury could have reached a $140 mil

‐

lion compensatory award. Importantly, it could do so without

equating Epic’s development costs ($306 million, by Britven’s

estimate) to TCS’s bene fi t from using Epic’s information in the

comparative analysis. So, we agree with the district court’s

decisions to uphold this damages verdict and deny TCS’s mo

‐

tion for a new trial.

TCS’s next argument concerns the punitive

‐ damages

award. But before we shift to punitive damages, we address

Epic’s cross

‐ appeal of the district court’s decision to vacate the

jury’s $100 million compensatory

‐ damages award for TCS’s

“other uses” of Epic’s con fi dential information.

B. “Other Con fi dential Information” Compensatory Award

The district court presented the jury with a special

‐ verdict

form that allowed it to award damages based on (a) the bene

‐

fi t of TCS’s use of the comparative analysis and (b) the bene fi t

of TCS’s use of other con fi dential information. The district

court included “part b” of the verdict because “there was

some evidence that other con fi dential information was dis

‐

seminated ‘out beyond the speci fi c people who discussed the

comparative analysis.’”

The jury initially awarded $100 million for “the bene fi t of

TCS’s use of other con fi dential information” in addition to the

$140 million awarded for the “bene fi t of TCS’s use of [the]

comparative analysis.” But, in partially granting TCS’s Rule

50 motion for judgment as a ma tt er of law, the district court

held that this $100 million award for bene fi ts from “other22 Nos. 19

‐ 1528 & 19

‐ 1613

information” was too speculative and was “tied to no evi

‐

dence of speci fi c use at all.”

We review a district court’s decision to grant judgment as

a ma tt er of law de novo

. Passananti v. Cook County

, 689 F.3d 655,

659 (7th Cir. 2012). “Our job is to assure that the jury had a

legally su ffi cient evidentiary basis for its verdict.” Filipovich v.

K & R Express Sys., Inc.

, 391 F.3d 859, 863 (7th Cir. 2004). In

deciding a Rule 50 motion, we “construe[] the evidence

strictly in favor of the party who prevailed before the jury”

and we do not make credibility determinations or reweigh the

evidence. Passananti

, 689 F.3d at 659. Still, “a verdict sup

‐ ported by no evidence or a mere scintilla of evidence will not

stand.” Martin v. Milwaukee County

, 904 F.3d 544, 550 (7th Cir.

2018).

The speci fi c verdict at issue here is the jury’s award of

compensatory damages apart from those based on the com

‐ parative analysis. Under Wisconsin law, compensatory dam

‐

ages must be “proved with reasonable certainty.” Novo Indus.

Corp. v. Nissen

, 140 N.W.2d 280, 284 (Wis. 1966). This does not

require the plainti ff to prove damages with “mathematical

precision; rather, evidence of damages is su ffi cient if it ena

‐

bles the jury to make a fair and reasonable approximation.”

Mgmt. Comput. Servs.

, 557 N.W.2d at 80.

Epic—to prove it was entitled to unjust enrichment dam

‐

ages for TCS’s use of other con fi dential information—needed

to show that TCS used con fi dential information that was not

incorporated into the comparative analysis. Epic says the jury

heard evidence that would allow it to conclude that other con

‐

fi dential information—that was not incorporated into the

comparative analysis—was used to improve Med Mantra.

Epic points to Guionnet’s testimony, testimony that TCSNos. 19

‐ 1528 & 19

‐ 1613 23

assigned a Med Mantra team member to the Kaiser account,

testimony about TCS’s downloading of information unrelated

to its work for Kaiser, and the adverse

‐ inference jury instruc

‐

tion in support of this theory. Epic also points to evidence it

believes the jury could have used to reasonably determine

that TCS received a $100 million bene fi t based on its use of

this alleged other con fi dential information. But we believe the

evidence isn’t enough to support the jury’s $100 million

award.

Let’s start with Guionnet’s testimony. Guionnet—a TCS

manager responsible for the Kaiser account—testi fi ed that he

a tt ended a meeting where Med Mantra was presented to Kai

‐

ser executives. He left the meeting “astounded”; Med Mantra

had improved signi fi cantly since the last time he had seen the

software, and he “was concerned that some of the information

from Kaiser had been used to improve Med Mantra.” Guion

‐

net then met with members of the Med Mantra team. A TCS

employee—introduced to Guionnet as the “interface between

Med Mantra” and the Kaiser team—showed Guionnet a

“comparison

... between Med Mantra and Epic.” Guionnet

“basically

... knew” at that point that TCS had improperly

used Epic’s information.

In a portion of Guionnet’s deposition played for the jury,

Guionnet con fi rmed that he more than suspected that Epic’s

information was used to improve Med Mantra: “it’s

knowledge.” He stated that Epic’s “work fl ow, data model,

functionalities, [and] test scripts” were used in Med Mantra’s

development. But when pressed about how he knew Epic’s

information was used to improve Med Mantra, Guionnet con

‐ sistently responded by saying “I don’t remember,” “I don’t24 Nos. 19

‐ 1528 & 19

‐ 1613

remember the details,” or by saying he would have to go back

and look at his emails.

Guionnet then confronted TCS’s president with infor

‐

mation about TCS’s misconduct. But rather than initiating an

investigation, TCS’s president transitioned Guionnet away

from the Kaiser account and told him that if he did not tran

‐

sition “peacefully,” he would be “put

... in a corner” and TCS

would “make [his] life miserable.”

This evidence is missing something: any proof that TCS

used any con fi dential information besides the information in

‐ corporated into the comparative analysis. Guionnet testi fi ed

that he knew TCS used Epic’s information to improve Med

Mantra, but the evidence indicated that his knowledge came

from reviewing the comparative analysis, only. And when

pressed at his deposition about how he knew that Med Man

‐

tra improved, Guionnet provided nothing but a lack of

memory and some general statements that Med Mantra had

improved. Basically, Guionnet was unable to tie what he per

‐

ceived to be Med Mantra’s signi fi cant improvements to any

“other information” besides the comparative analysis.

Guionnet’s testimony about his meeting with the Med

Mantra team does not add any support for the verdict. Guion

‐

net testi fi ed that at this meeting, he received a detailed run

‐

down of Med Mantra’s functionality. Additionally, a TCS em

‐ ployee showed him a spreadsheet comparing Med Mantra to

Epic’s software. But this information is related to TCS’s use of

the comparative analysis; it has nothing to do with Epic’s

other con fi dential information. Guionnet’s testimony thus

supports an inference that TCS used Epic’s con fi dential infor

‐

mation, but only the information that was incorporated into

the comparative analysis.Nos. 19

‐ 1528 & 19

‐ 1613 25

Epic next points to evidence that TCS assigned members

of the Med Mantra team to the Kaiser account. Guionnet tes

‐

ti fi ed that “DV” Prasad “was a member of the Med Mantra

team who was planted in [the Kaiser] organization.” And in a

deposition played for the jury, Prasad stated that Reddy, a

senior TCS executive, asked him to prepare a presentation

comparing Med Mantra and Epic. Prasad then con fi rmed that

he “never did” prepare the presentation because he knew it

was “not right.” But even without Prasad’s compliance,

Reddy found a willing employee and created the comparative

analysis.

Guionnet testi fi ed that he later caught wind that Prasad—

a member of the Med Mantra team—was planted in the Kaiser

organization. Guionnet a tt empted to get rid of Prasad imme

‐ diately; the head of TCS’s healthcare unit denied this request,

leaving this “plant” on the Kaiser team.

This evidence, contrary to Epic’s argument, has nothing to

do with TCS’s uses of “other information.” Reddy made his

intentions clear: Prasad was to use Epic’s con fi dential infor

‐

mation to compare Med Mantra to Epic’s software before at

‐ tempting to sell Med Mantra to Kaiser. This evidence shows

only that Epic’s con fi dential information made its way into

the comparative analysis, which was then used as part of an

overall market

‐ entry strategy. Rather than proving that

“other information” was used, this evidence simply provides

additional support for the jury’s compensatory

‐ damages

award for TCS’s use of the comparative analysis. So again, we

see no evidence tying any of Epic’s other stolen con fi dential

information to any use outside of the comparative analysis.

In another a tt empt to show TCS used other con fi dential

information to improve Med Mantra, Epic points to evidence26 Nos. 19

‐ 1528 & 19

‐ 1613

regarding TCS’s laboratory module. First, Epic points to

TCS’s PowerPoint, which acknowledges that there were key

gaps in Med Mantra that needed to be addressed. And Martin

testi fi ed that TCS employees stole information regarding

Epic’s laboratory product, Beaker. Guionnet testi fi ed that TCS

had partnered with DaVita to create its own laboratory mod

‐

ule. This project, however, fell behind and was described as

“well below average” by an independent third party. Still, an

email from a TCS employee showed that TCS was “very seri

‐ ously thinking” about “marketing the Lab product as a starter

immediately to position [TCS] in the Provider space.” TCS

later licensed the DaVita laboratory module to another United

States company, Quest Diagnostics.

But this is where evidence concerning Beaker ends. Epic

asserts that the mere fact that TCS downloaded information

about Beaker shows that “TCS used [its] con fi dential infor

‐

mation and trade secret information to improve the lab prod

‐

uct it developed for DaVita.” Yet Epic fails to provide any ex

‐ amples of how Epic’s modules or information, including the

Beaker module, could be tied to uses or improvements involv

‐ ing the DaVita project. So, Epic presented evidence only that

TCS downloaded information concerning Beaker; but it does

not present evidence that TCS actually used this information.

Without a link from this information to any use, Epic’s evi

‐

dence does not support a fi nding that TCS used “other con fi

‐

dential information.”

Epic a tt empts to plug the evidentiary holes described

above by pointing to the adverse

‐ inference instruction. It’s

true that—given the district court’s instruction—the jury

heard evidence supporting an inference that TCS destroyed

documents that were harmful to TCS and helpful to Epic. ButNos. 19

‐ 1528 & 19

‐ 1613 27

even with this inference, there is still no concrete evidence

showing that TCS used Epic’s “other information.”

Epic is thus left asking a jury to award damages based

solely on speculation as to what might be contained in the de

‐ stroyed documents. And if this type of broad adverse infer

‐

ence based on the destruction of evidence—standing alone—

were enough to support a jury’s damages verdict, a jury could

hypothetically award a plainti ff any amount of damages

based on any theory of liability. This would be antithetical to

the purpose of adverse

‐ inference instructions: sanctioning

misconduct while leveling the evidentiary playing fi eld. See

Silvestri v. General Motors Corp.

, 271 F.3d 583, 590 (4th Cir.

2001).

To be clear, evidence supporting an adverse inference,

combined with other relevant circumstantial evidence, may

be a su ffi cient evidentiary basis for a jury’s verdict. See Aspen

Tech., Inc. v. M3 Tech., Inc.

, 569 F. App’x 259, 266 (5th Cir. 2014)

( fi nding the jury had a legally su ffi cient basis for its verdict

based on circumstantial evidence and two adverse

‐ inference

instructions); cf. Kronisch v. United States

, 150 F.3d 112, 128 (2d

Cir. 1998) (“[A]t the margin, where the innocent party has

produced some (not insubstantial) evidence in support of his

claim, the intentional destruction of relevant evidence

... may

push a claim that might not otherwise survive summary judg

‐

ment over the line.”). But the destruction of evidence—by it

‐

self—is insu ffi cient to support a jury’s verdict as a ma tt er of

law. Cf. Kronisch

, 150 F.3d at 128 (“We do not suggest that the

destruction of evidence, standing alone, is enough to allow a

party who has produced no evidence—or u tt erly inadequate

evidence—in support of a given claim to survive summary

judgment on that claim.”). See generally HK Sys., Inc. v. Eaton28 Nos. 19

‐ 1528 & 19

‐ 1613

Corp.

, 553 F.3d 1086, 1088 (7th Cir. 2009) (noting that the

standard is the same for summary judgment and for judg

‐

ment as a ma tt er of law).

So, if Epic were truly using the adverse inference to plug

evidentiary holes, this verdict might survive. But the other ev

‐

idence on which Epic relies provides “u tt erly inadequate”

support for a fi nding that TCS used con fi dential information

apart from that incorporated into the comparative analysis.

Kronisch, 150 F.3d at 128. As a result, Epic seeks to use the ad

‐

verse inference not just to plug evidentiary holes but to hold

all the water for a fi nding that TCS used other con fi dential in

‐

formation. But Epic cannot rely on an adverse inference to do

so much.

In sum, Epic has not provided more than a mere scintilla

of evidence in support of its theory that TCS used any of its

other con fi dential information. This portion of the jury’s dam

‐

ages award cannot stand. With compensatory damages sorted

out, we now turn to punitive damages.

C. Punitive Damages

In addition to the $240 million awarded in compensatory

damages, the jury initially awarded Epic $700 million in pu

‐

nitive damages. The district court cut that award to $280 mil

‐

lion based on a Wisconsin law capping statutory damages at

two times the amount of compensatory damages, Wis. Stat.

§ 895.043(6). 3 The district court then denied TCS’s renewed

motion for judgment as a ma tt er of law under Rule 50(b) and

TCS’s motion for a new trial under Rule 59; the court

3 Recall that the district court also reduced the compensatory award

by $100 million, leaving $140 million in compensatory damages and $280

million in punitive damages.Nos. 19

‐ 1528 & 19

‐ 1613 29

accordingly left the $280 million punitive

‐ damages award in

‐

tact, reasoning in part that its decision to vacate the jury’s $100

million compensatory award for use of “other information”

did not a ff ect the jury’s punitive damages verdict.

Whether the district court erred in denying TCS’s Rule 50

motion is a question of law that we review de novo

. Valdivia v.

Twp. High Sch. Dist. 214

, 942 F.3d 395, 396 (7th Cir. 2019). In

reviewing this decision, “[w]e view the facts and evidence in

the light most favorable to [Epic], as the litigant who pre

‐

vailed before the jury.” Id. To the extent TCS asked the district

court for a new trial regarding punitive damages under Rule

59, we review the district court’s decision to deny this motion

for an abuse of discretion. Abellan

, 948 F.3d at 830. And be

‐

cause the punitive damages stand on Wisconsin causes of ac

‐

tion, the punitive

‐ damages award must be consistent with

Wisconsin law. See Kapelanski

, 390 F.3d at 534.

TCS presents four arguments challenging the $280 million

punitive

‐ damages award: First, TCS argues that, to receive

punitive damages under Wisconsin law, the plainti ff must

prove an actual injury—which Epic did not do. Second, TCS

argues that the punitive

‐ damages award here must be set

aside because it may have been based on a claim that cannot

support punitive damages as a ma tt er of law. Third, TCS ar

‐

gues that the punitive

‐ damages award must be vacated and

retried in light of the district court’s decision to vacate the

$100 million compensatory

‐ damages award. Finally, TCS ar

‐

gues the punitive

‐ damages award is constitutionally exces

‐

sive. We take each in turn.

1. “Actual Injury” Requirement30 Nos. 19

‐ 1528 & 19

‐ 1613

TCS argues that the punitive

‐ damages award fails as a

ma tt er of law because Epic failed to prove an “actual injury.”

TCS contends that under Wisconsin law, an actual injury and

a damages award re fl ecting redress for this injury are “thresh

‐

old requirements before punitive damages may be awarded.”

TCS reasons that, because Epic did not su ff er an actual injury

and instead was awarded damages solely based on the bene fi t

TCS received, Epic cannot receive punitive damages.

But Wisconsin law is not as exacting as TCS argues. Ra

‐

ther, Wisconsin law requires—for punitive damages to be

awarded—the imposition of compensatory damages. TCS

fi rst cites to Tucker v. Marcus for the proposition that a plainti ff

must prove “some actual injury which would justify an award of

actual or compensatory damages before punitive damages may

be awarded. ” 418 N.W.2d 818, 823 (Wis. 1988) (quoting Han

‐

son v. Valdivia

, 187 N.W.2d 151, 155 (Wis. 1971)). However,

Tucker makes clear that the threshold requirement for puni

‐

tive damages is an “‘award’ of actual or compensatory dam

‐ ages” rather than an injury to the plainti ff

. Tucker

, 418 N.W.2d

at 827. In fact, the Wisconsin Supreme Court speci fi cally held

that—even though the jury found “there had been injury suf

‐ fered”—“punitive damages were inappropriately allowed in

this case” because the plainti ff could not recover “actual dam

‐ ages.” Id. at 823.

In a more recent decision, the Wisconsin Supreme Court

a ffi rmed that compensatory damages are a su ffi cient predi

‐

cate for punitive damages. “[W]e have held that ‘where there

exists a “cause of action,” but the action is not one for which

the recovery of compensatory damages is justi fi ed

, punitive dam

‐

ages cannot be awarded.’” Groshek v. Trewin

, 784 N.W.2d 163,

173 (Wis. 2010) (emphasis added) (quoting Tucker

, 418 N.W.2dNos. 19

‐ 1528 & 19

‐ 1613 31

at 824). Groshek

, like Tucker

, holds that the availability of pu

‐

nitive damages is governed by whether compensatory dam

‐

ages are recoverable, and not by whether an “actual injury”

has been in fl icted. See Groshek

, 784 N.W.2d at 173; cf. Tucker

,

418 N.W.2d at 830 (He ff ernan, C.J., dissenting) (“Today’s ma

‐ jority holds that [actual damages] should be de fi ned in a man

‐

ner that no punitive damages may be awarded in the absence

of a recovery for compensatory damages.”).

Since Groshek

, we have further expounded on when puni

‐

tive damages are appropriate under Wisconsin law. In Pro

‐

Pac, Inc. v. WOW Logistics Co.

, we stated that punitive dam

‐

ages are recoverable under Wisconsin law regardless of

whether damages are based on “gain to [the defendant] ( i.e.

, restitutionary damages) or loss to [the plainti ff ] ( i.e.

, compen

‐

satory damages).” 721 F.3d 781, 788 (7th Cir. 2013). This is true

because Wisconsin law allows “awards of punitive damages

when ‘compensatory damages’ are imposed,” and Wisconsin

de fi nes compensatory damages to include compensation, in

‐ demnity, and restitution. Id.

So, TCS is incorrect that Wisconsin law requires Epic to

prove an “actual injury” to obtain punitive damages. Instead,

punitive damages are available when compensatory damages

are imposed, as they were in this case. Epic is therefore not

barred from recovering punitive damages simply because

compensatory damages were awarded for TCS’s bene fi t ra

‐

ther than any injury Epic sustained.

2. Claims that Support Punitive Damages

TCS next argues that the punitive

‐ damages award must be

set aside because it might have been based on one of Epic’s

claims that does not support punitive damages as a ma tt er of32 Nos. 19

‐ 1528 & 19

‐ 1613

law. Speci fi cally, TCS points out that Epic’s unjust enrichment

claim does not support punitive damages, and there is no way

to know—based on the generality of the jury’s punitive

‐ dam

‐

ages verdict—if that is the claim the jury used to support pu

‐

nitive damages.

We can quickly dispose of this argument. The jury was

speci fi cally instructed that it could only award punitive dam

‐

ages “with respect to Epic’s trade secrets, fraudulent misrep

‐

resentation[,] and unfair competition claims.” “Jurors are pre

‐

sumed to follow a court’s instructions.” Seifert ex rel. Scoptur

v. Balink

, 869 N.W.2d 493, 504 (Wis. Ct. App. 2015); see also

Schandelmeier

‐ Bartels v. Chi. Park Dist.

, 634 F.3d 372, 388 (7th

Cir. 2011) (“[W]e presume that juries follow the instructions

they are given.”). So we may presume that the jury based its

punitive

‐ damages award on these claims, and not on the un

‐ just enrichment claim.

And Epic’s claims for trade secrets, fraudulent misrepre

‐

sentation, and unfair competition all allow recovery of dam

‐

ages on a theory of gain to the defendant. Wis. Stat. § 134.90(4)

(damages for a violation of Wisconsin’s trade secrets act in

‐

clude “unjust enrichment caused by the violation”); Pro

‐ Pac

,

721 F.3d at 786 (restitutionary damages, i.e. damages based on

the defendant’s bene fi t, are recoverable “as compensation for

tort claims”). As discussed above, punitive damages can be

awarded when compensatory damages—including damages

based on a defendant’s gain—are imposed. Pro

‐ Pac

, 721 F.3d

at 788.

TCS does not dispute that Epic’s trade secrets, fraudulent

misrepresentation, and unfair competition claims support an

award of punitive damages; in fact, it admits these claims

“could support punitive damages.” And because the jury wasNos. 19

‐ 1528 & 19

‐ 1613 33

instructed to base punitive damages on these claims only, the

punitive

‐ damages award was not based on a claim that does

not support punitive damages as a ma tt er of law.

3. Conduct on which Punitive Award is Based

TCS next argues that the punitive

‐ damages award must be

vacated and retried in light of the district court’s decision—

which we a ffi rm—to vacate the $100 million damages award

for TCS’s uses of other con fi dential information. TCS argues

that when the jury determined punitive damages, it had in

mind a broader range of conduct “than was legally sustaina

‐

ble.” And because we cannot know whether the jury’s puni

‐

tive

‐ damages decision was based on “a permissible or imper

‐

missible claim or theory,” we must vacate the punitive award

and remand for the issue to be retried.

But this argument fundamentally misunderstands puni

‐

tive damages. Punitive damages are imposed to “punish[] un

‐

lawful conduct and deter[] its repetition.” Trinity Evangelical

Lutheran Church v. Tower Ins. Co.

, 661 N.W.2d 789, 798 (Wis.

2003) (emphasis added); see also Kemezy v. Peters

, 79 F.3d 33,

34 (7th Cir. 1996) (“The standard judicial formulation of the

purpose of punitive damages is that it is to punish the defend

‐

ant for reprehensible conduct and to deter [the defendant]

and others from engaging in similar conduct.”). Stated di ff er

‐ ently, punitive damages are based on the defendant’s conduct

underlying a plainti ff ’s claims, not on the claims themselves.

And the cases TCS cites in support of its argument provide

further support for this understanding of punitive damages.

Take Robertson Oil Co. v. Phillips Petroleum Co.

, 871 F.2d 1368

(8th Cir. 1989), as an example. The jury in that case found Phil

‐ lips Petroleum liable for fraud, breach of the duty of good34 Nos. 19

‐ 1528 & 19

‐ 1613

faith and fair dealing, tortious interference, and negligence.

Id. at 1370. The jury also awarded Robertson Oil punitive

damages. Id. But on appeal, the Eighth Circuit a ffi rmed only

the theory of tortious interference with a business relation

‐ ship. Id. at 1375. And Phillips’s conduct “relevant to an award

of punitive damages necessarily di ff er[ed] according to the

various theories of liability on which the jury based its ver

‐

dict.” Id. at 1376. So, because the court could not “ascertain

what conduct of Phillips was determined by the jury to merit

punitive damages,” the Eighth Circuit ordered the district

court to retry punitive damages. Id.

The Eighth Circuit in Robertson Oil did not require a retrial

of punitive damages simply because it found that some of the

theories of liability failed as a ma tt er of law. Instead, the em

‐ phasis was on the conduct underlying these theories. Because

the court could not be sure which of Phillips’s conduct led the

jury to believe punitive damages were necessary, and some of

that conduct did not warrant damages as a ma tt er of law, a

new trial was necessary. This understanding of punitive dam

‐

ages holds true throughout the cases TCS cites in support of

its argument. See, e.g.

, CGB Occupational Therapy, Inc. v. RHA

Health Servs. Inc.

, 357 F.3d 375, 390 (3d Cir. 2004) (reversing

punitive damages because it was unclear which act of tortious

interference formed the basis of punitive damages when the

plainti ff interfered with two distinct contracts); Marrero v.

Goya of P.R., Inc.

, 304 F.3d 7, 30 (1st Cir. 2002) (a ffi rming a har

‐

assment claim, reversing a retaliation claim because there was

no evidence of an adverse personnel action, and requiring a

new trial on punitive damages because the court could not be

sure if punitive damages were based on the erroneous retali

‐

ation fi nding).Nos. 19

‐ 1528 & 19

‐ 1613 35

So, a punitive

‐ damages award requires a new trial only

when (1) the claims of liability supporting punitive damages

are based on di ff erent underlying conduct by the defendant,

and (2) one of those claims (and therefore the conduct under

‐ lying that claim) is found to be unsupported as a ma tt er of

law. TCS argues that di ff erent conduct underlies the two sep

‐

arate compensatory

‐ damages awards, and we cannot know

which conduct led the jury to award punitive damages.

But the conduct underlying both compensatory

‐ damages

awards was the same. One compensatory

‐ damages award

was based on the “bene fi t of TCS’s use of [the] comparative

analysis” and the other was based on the “bene fi t of TCS’s use

of other con fi dential information.” The key distinction be

‐

tween these two compensatory awards is information

, not con

‐

duct. By awarding damages for TCS’s uses of “other con fi den

‐

tial information,” the jury did not have to fi nd any uses—or

any conduct—that di ff ered from the uses and conduct under

‐ lying the comparative

‐ analysis portion of the compensatory

award. Based on reasonable inferences drawn in Epic’s favor,

a jury could conclude that TCS used the comparative analysis

(and therefore Epic’s information incorporated into that anal

‐ ysis) to improve its marketing strategy, to try to enter the

United States market, and to generally improve Med Mantra

before a tt empting to sell it to Kaiser. And these are the only

uses that can be found in the record; TCS does not point us to

a single use of Epic’s information that is not also a use that the

jury could reasonably infer stemmed from the comparative

analysis.

So, the overall conduct underlying these two verdicts is

the same. TCS stole thousands of Epic’s documents, lied about

it, covered it up, and used Epic’s information in a variety of36 Nos. 19

‐ 1528 & 19

‐ 1613

ways. This course of conduct is the same regardless of

whether the jury incorrectly found that this course of conduct

included the use of a few more pieces of Epic’s information.

Whether the jury found that TCS received an additional ben

‐

e fi t based on other con fi dential information does not a ff ect the

jury’s assessment of TCS’s overall conduct. So, our determi

‐

nation that TCS did not use “other con fi dential information”

does not disturb the jury’s punitive

‐ damages award.

4. Constitutionality of the Punitive

‐ Damages Award

TCS fi nally argues that the punitive

‐ damages award of

$280 million violates its due process rights under the federal

constitution and Wisconsin law. We review these questions de

novo

. Rainey v. Taylor

, 941 F.3d 243, 254 (7th Cir. 2019); Trinity

Evangelical Lutheran Church

, 661 N.W.2d at 799.

As we reminded the litigants in Saccameno

, “the Constitu

‐

tion is not the most relevant limit to a federal court when as

‐ sessing punitive damages, as it comes into play ‘only after the

assessment has been tested against statutory and common

‐

law principles.’” Saccameno v. U.S. Bank Nat’l Ass’n

, 943 F.3d

1071, 1086 (7th Cir. 2019) (quoting Perez v. Z Frank Oldsmobile,

Inc.

, 223 F.3d 617, 625 (7th Cir. 2000)). “The Constitution is the

only federal restraint on a state court’s award of punitive

damages,” but federal judges are not restricted to reducing

punitive damages in a federal case. Id. (citing Perez

, 223 F.3d

at 625). Indeed, “[a] federal court

... can (and should) reduce

a punitive damages award sometime before it reaches the

outermost limits of due process.” Id. (citing Perez

, 223 F.3d at

625; Payne v. Jones

, 711 F.3d 85, 97–100 (2d Cir. 2013)).

The Due Process Clause of the Fourteenth Amendment

imposes constitutional limitations on punitive damages. StateNos. 19

‐ 1528 & 19

‐ 1613 37

Farm Mut. Auto. Ins. Co. v. Campbell

, 538 U.S. 408, 416–17

(2003). Punitive damages may be imposed to further a state’s

legitimate interests in imposing punishment for and deterring

illegal conduct, but punitive damages violate due process

when the award is “‘grossly excessive’ in relation to these in

‐

terests.” BMW of N. Am., Inc. v. Gore

, 517 U.S. 559, 568 (1996).

The Supreme Court, in testing awards of punitive damages

for compliance with due process, has established three

“guideposts”: “(1) the reprehensibility of the defendant’s con

‐

duct; (2) the disparity between the actual harm su ff ered and

the punitive award; and (3) the di ff erence between the award

authorized by the jury and the penalties imposed in compa

‐

rable cases.” Rainey

, 941 F.3d at 254 (citing Gore

, 517 U.S. at

575). Wisconsin courts apply a “virtually identical test.” Trin

‐ ity Evangelical Lutheran Church

, 661 N.W.2d at 800. 4

The Supreme Court’s fi rst guidepost—reprehensibility of

the defendant’s conduct—is the most important. Gore, 517

U.S. at 575. In determining the reprehensibility of the defend

‐

ant’s conduct, we consider fi ve factors: whether

the harm caused was physical as opposed to eco

‐

nomic; the tortious conduct evinced an indi ff erence

to or a reckless disregard of the health or safety of

others; the target of the conduct had fi nancial vul

‐ nerability; the conduct involved repeated actions or

4 Wisconsin courts consider the factors most relevant to the case at

hand, with those factors coming from the following list: (1) the grievous

‐

ness of the acts, (2) the degree of malicious intent, (3) whether the award

bears a reasonable relationship to the award of compensatory damages,

(4) the potential damage that might have been caused by the act, (5) the

ration of the award to civil or criminal penalties that could be imposed for

comparable misconduct, and (6) the wealth of the wrongdoer. Trinity

Evangelical Lutheran Church

, 661 N.W.2d at 800.38 Nos. 19

‐ 1528 & 19

‐ 1613

was an isolated incident; and the harm was the result

of intentional malice, trickery, or deceit, or mere ac

‐

cident.

Campbell

, 538 U.S. at 419. If none of these factors weigh in fa

‐

vor of the plainti ff

, the award is “suspect.” Id. And even if one

factor weighs in the plainti ff ’s favor, that may not be enough

to sustain the punitive award. Id. And fi nally, since a plainti ff

is presumed to be made whole by the compensatory award,

punitive damages should be awarded only if the defendant’s

conduct is “so reprehensible as to warrant the imposition of

further sanctions to achieve punishment or deterrence.” Id.

The fi rst factor asks us to consider if the harm was physical

as opposed to economic. Id. Conduct producing physical

harm is more reprehensible than conduct producing eco

‐

nomic harm. See Gore

, 517 U.S. at 576. Epic did not su ff er phys

‐

ical harm as a result of TCS’s conduct. So this factor weighs

against fi nding TCS’s conduct reprehensible.

Turning to the second factor, we do not believe that TCS’s

conduct evinced an indi ff erence to or a reckless disregard of

the safety of others. Epic does not a tt empt to persuade us oth

‐

erwise. This factor also weighs against fi nding TCS’s conduct

reprehensible.

The third factor—the fi nancial vulnerability of the target

of the defendant’s conduct—stands for the proposition that

conduct is more reprehensible if it impacts fi nancially vulner

‐

able plainti ff s. See, e.g.

, Saccameno

, 943 F.3d at 1087; EEOC v.

AutoZone, Inc.

, 707 F.3d 824, 839 (7th Cir. 2013). Epic, one of

the largest producers of electronic

‐ health

‐ record software, is

not fi nancially vulnerable. This factor again weighs against

fi nding TCS’s conduct reprehensible.Nos. 19

‐ 1528 & 19

‐ 1613 39

Applying the fourth factor, TCS’s conduct did involve a

repeated course of wrongful acts. Epic presented evidence

that TCS knew it lacked authority to access con fi dential infor

‐

mation from UserWeb. Yet TCS employees still accessed and

downloaded Epic’s con fi dential information for years, down

‐ loading over 1,600 unique documents from UserWeb and

gaining access to information that Epic speci fi cally forbid TCS

from accessing. This factor weighs in favor of fi nding TCS’s

conduct reprehensible and provides support for some award

of punitive damages.

As for the last factor—whether the harm was the result of

intentional malice, trickery or deceit, or mere accident—TCS

argues that Epic su ff ered no harm. Speci fi cally, TCS contends

that because Epic was not deprived of the enjoyment of its

software, did not lose business, and did not face any new

competition, there could not have been any harm to Epic. But

even though it is hard to quantify, Epic likely su ff ered a com

‐ petitive harm; TCS, a potential competitor, had access to

Epic’s con fi dential information for years without Epic’s

knowledge. This gave TCS insight into the strengths and

weaknesses of Epic’s software, regardless of whether TCS was

able to turn that knowledge into a direct economic harm to

Epic. Cf. United Tech. Corp. v. U.S. Dept. of Def.

, 601 F.3d 557,

564 (D.C. Cir. 2010) (discussing, for purposes of what consti

‐

tutes “con fi dential information” under an exemption to the

Freedom of Information Act, what constitutes substantial

competitive harm). We can also think of at least one economic

harm, albeit minor, that Epic su ff ered as a result of TCS’s con

‐

duct. Epic, after it became aware of TCS’s unlawful access to

UserWeb, had to expend time and resources investigating the

extent to which TCS had accessed Epic’s con fi dential infor

‐

mation and trade secrets.40 Nos. 19

‐ 1528 & 19

‐ 1613

And these harms were the result of TCS’s repeated, inten

‐

tional a tt empts to deceive Epic. See Gore

, 517 U.S. at 576 (not

‐ ing that deceit is more reprehensible than negligence). Epic

repeatedly denied Kaiser’s and TCS’s requests to allow TCS

access to UserWeb. But TCS gained access to UserWeb

through other means, using Gajaram’s account, which he ob

‐

tained by falsely identifying as a Kaiser employee. The jury

heard testimony that Gajaram’s account information was

shared throughout TCS and was frequently used to download

and share Epic’s con fi dential information.

TCS employees also lied to prevent Kaiser and Epic from

discovering that TCS had access to Epic’s UserWeb. A TCS

employee testi fi ed that his manager told him to hide the truth

from investigators. This employee obeyed these instructions

and lied to investigators, telling them that he had only ac

‐

cessed UserWeb one time when he knew he had accessed it

more than once.

The harms to Epic resulted from TCS’s deceitful conduct.

This factor weighs in favor of fi nding TCS’s conduct repre

‐

hensible and supports some award of punitive damages.

In sum, we agree with the district court that TCS’s conduct

warrants punishment. But TCS’s conduct was not reprehensi

‐

ble “to an extreme degree.” Saccameno

, 943 F.3d at 1088. TCS

caused no physical harm to Epic. TCS also did not recklessly

disregard the safety of others. And Epic is not a fi nancially

vulnerable plainti ff

. But TCS’s conduct consisted of a re

‐ peated course of wrongful actions spanning multiple years.

TCS’s conduct was also intentional and deceitful, not negli

‐

gent. We therefore conclude that TCS’s conduct justi fi es pun

‐

ishment, though not in the amount of a $280 million punitive

‐ damages award.Nos. 19

‐ 1528 & 19

‐ 1613 41

Turning to the Supreme Court’s second guidepost, we an

‐ alyze the ratio of punitive damages to the “harm, or potential

harm” in fl icted on the plainti ff

. Campbell

, 538 U.S. at 424. In

most cases, the compensatory

‐ damages award approximates

the plainti ff ’s harm. In those cases, identifying the ratio is

straightforward: we compare compensatory and punitive

‐ damages awards. See, e.g.

, Rainey

, 941 F.3d at 255. But in some

cases, the jury’s compensatory

‐ damages award does not re

‐

fl ect the plainti ff ’s quanti fi able harm. Still, we may account

for that harm in the harm

‐ to

‐ punitive

‐ damages ratio. See Som

‐

mer fi eld v. Knasiak

, No. 18

‐ 2045, 2020 WL 4211297, at *5 (7th

Cir. July 23, 2020).

The circumstances of this case, however, present an unu

‐

sual issue in determining the amount of “harm” under this

guidepost. The jury awarded $140 million in compensatory

damages based on the bene fi t to TCS, not because of any harm

su ff ered by Epic. This award, then, does not re fl ect Epic’s

harm. And if Epic su ff ered quanti fi able economic harm, that

harm is signi fi cantly smaller than $140 million, which would

in turn drastically change the relevant ratio. If we had to

quantify that harm to arrive at the appropriate ratio, applying

the second due

‐ process guidepost would pose a challenging

task.

But TCS makes no argument here—and did not argue to

the district court—that we should compare any number be

‐

sides compensatory damages to the punitive

‐ damages award.

See Pu ff

er v. Allstate Ins. Co.

, 675 F.3d 709, 718 (7th Cir. 2012)

(underdeveloped arguments are waived). In fact, most of its

argument under this guidepost emphasizes the size of the

compensatory award as a reason the punitive

‐ damages award

violates due process. TCS has thus waived any argument that42 Nos. 19

‐ 1528 & 19

‐ 1613

the compensatory award is the incorrect denominator in the

ratio analysis. And at least one other court has compared an

unjust enrichment award to the punitive

‐ damages award un

‐

der this guidepost when state law allowed punitive damages

to be imposed for the underlying claim. See Rhone

‐ Poulenc

Agro, S.A. v. DeKalb Genetics Corp.

, 272 F.3d 1335, 1351 (Fed.

Cir. 2001) (concluding it is appropriate to base punitive dam

‐

ages on an unjust enrichment award when the defendant’s

gain “is logically related” to the plainti ff ’s “harm or potential

harm”), vacated

, 538 U.S. 974 (2003), remanded to 345 F.3d 1366

(2003) (reaching the same result as to punitive damages). So,

we will conduct the ratio analysis using the $140 million com

‐

pensatory award as the denominator.

In conducting this analysis, the Supreme Court has de

‐

clined to set a fi xed ratio limiting punitive damages. Campbell

,

538 U.S. at 425 (“[T]here are no rigid benchmarks that a puni

‐

tive damages award may not surpass

... .”). The Supreme

Court has, however, noted that “few awards exceeding a sin

‐ gle

‐ digit ratio between punitive and compensatory damages

... will satisfy due process.” Id.

The punitive award in this case—after the district court

lowered it to comply with Wisconsin’s statutory cap on puni

‐

tive damages—is two times the ultimate compensatory

award. Our court and Wisconsin courts have upheld signi fi

‐ cantly higher ratios. See, e.g.

, Rainey

, 941 F.3d at 255 (a ffi rming

a 6:1 ratio); Mathias v. Accor Econ. Lodging, Inc.

, 347 F.3d 672,

676–78 (7th Cir. 2003) (a ffi rming a 37:1 ratio); Kimble v. Land

Concepts, Inc.

, 845 N.W.2d 395, 412 (Wis. 2014) ( fi nding a 3:1

ratio appropriate and constitutional); Trinity Evangelical Lu

‐

theran Church

, 661 N.W.2d at 803 (a ffi rming a 7:1 ratio).Nos. 19

‐ 1528 & 19

‐ 1613 43

But the compensatory damages here are high. The Su

‐

preme Court has noted that “[w]hen compensatory damages

are substantial, then a lesser ratio, perhaps only equal to com

‐

pensatory damages, can reach the outermost limit of the due

process guarantee.” Campbell

, 538 U.S. at 425. And the $140

million award in this case far exceeds what other courts have

considered “substantial

. ” See Lompe v. Sunridge Partners, LLC

,

818 F.3d 1041, 1069 (10th Cir. 2016) (“[I]n many cases, com

‐

pensatory damages less than $1,000,000 have also been con

‐

sidered substantial.”). In fact, neither party points us to any

comparable cases in which any court has upheld a 2:1

‐ or

‐ higher ratio resulting in over $200 million in punitive dam

‐

ages. 5

Many courts have instead found awards “substantial” and

imposed a 1:1 ratio based on signi fi cantly lower compensa

‐

tory awards. See Saccameno

, 943 F.3d at 1090 (gathering cases

where courts have imposed a 1:1 ratio when the compensa

‐

tory award is less than $1 million); cf. Estate of Moreland v. Di

‐

eter

, 395 F.3d 747, 756–57 (7th Cir. 2005) (a ffi rming a $15 mil

‐

lion punitive

‐ damages award that was “a fraction of the un

‐ derlying compensatory damages award” and was based on

5 Epic only cites to one case with a relatively comparable award, Yung

v. Grant Thornton, LLP

, 563 S.W.3d 22, 73 (Ky. 2018) (upholding $80 million

in punitive damages, resulting in a 4:1 ratio). It’s true that in Yung

, like in

this case, only the last two reprehensibility factors weighed in favor of al

‐ lowing punitive damages. Id. at 67. But the economic harm suffered by the

plaintiffs in Yung distinguishes that case from the circumstances here. In

Yung

, the plaintiffs suffered substantial, quantifiable economic harm, in

‐ cluding millions of dollars in taxes, interest, and fees owed to the IRS. Id.

at 57. Here, there is hardly evidence that Epic suffered any economic

harm; the compensatory award was based on TCS’s benefit. And any po

‐

tential future economic harm has not been quantified.44 Nos. 19

‐ 1528 & 19

‐ 1613

“truly reprehensible” conduct). Still, the precise award must

be based on “the facts and circumstances of the defendant’s

conduct and the harm to the plainti ff

. ” Campbell

, 538 U.S. at

425; cf. Sommer fi eld

, 2020 WL 4211297, at *6 (noting that sanc

‐

tions should be based on the wrong done rather than the de

‐

fendant’s wealth).

The facts and circumstances of this case do not justify

awarding $280 million in punitive damages. As noted above,

three of the fi ve reprehensibility factors weigh against the rep

‐ rehensibility of TCS’s conduct. TCS’s conduct was reprehen

‐

sible, but not to an extreme degree. See, e.g.

, Bridgeport Music,

Inc. v. Justin Combs Publ’g

, 507 F.3d 470, 490 (6th Cir. 2007)

(based on “the low level of reprehensibility of defendants’

conduct, a ratio of closer to 1:1 or 2:1 is all that due process

can tolerate in this case”). But see, e.g.

, Rainey

, 941 F.3d at 255

(“the truly egregious nature” of the defendant’s acts of sexual

objecti fi cation and assault justi fi ed “the size of [the] punitive

award even with [a] signi fi cant compensatory award”); Ma

‐

thias

, 347 F.3d at 675–78 (a ffi rming a 37:1 ratio in part because

the motel company refused to have bed bugs in hotel rooms

exterminated when it was aware of the risk to its customers).

And although TCS’s actions did harm Epic, that harm

does not support the size of the punitive

‐ damages award. Cf.

Rainey

, 941 F.3d at 254–55 (a ffi rming a punitive

‐ damages

award six times larger than the $1.13 million compensatory

award in part because the plainti ff su ff ered “pain and humil

‐

iation” as a result of the defendant’s groping and acts of sex

‐

ual objecti fi cation); In re Exxon Valdez

, 472 F.3d 600, 623–25

(9th Cir. 2006), amended 490 F.3d 1066, (reducing punitive

damages to $2.5 billion, re fl ecting a 5:1 ratio with compensa

‐

tory damages, where the plainti ff caused severe economicNos. 19

‐ 1528 & 19

‐ 1613 45

harm and emotional harm to thousands of people by spilling

11 million gallons of crude oil into United States waters).

We therefore conclude that a 2:1 ratio exceeds the outer

‐

most limit of the due process guarantee in this case because

TCS’s conduct, while reprehensible, was not egregious, and

multiplying the substantial compensatory award—calculated

on the basis of TCS’s bene fi t rather than Epic’s loss—is unnec

‐

essary to re fl ect Epic’s uncertain economic harm. See Campbell

,

538 U.S. at 425; Saccameno

, 943 F.3d at 1090. Instead, the ratio

relative to the $140 million compensatory award should not

exceed 1:1 in this case. See Saccameno

, 943 F.3d at 1090 (con

‐ cluding that the ratio “should not exceed 1:1” where the com

‐

pensatory award was “substantial”). It should be noted,

though, that “[w]hat counts as substantial depends on the

facts of the case, and an award of this size (or larger) might

not mandate a 1:1 ratio on another set of facts.” Id.

We now turn to the fi nal guidepost: the di ff erence between

the punitive award authorized by the jury and civil penalties

imposed in comparable cases. Although “this guidepost gen

‐ erally deserves less weight than the other two,” Rainey

, 941

F.3d at 255, it serves an important purpose: to “allow[] courts

to show ‘substantial deference to legislative judgments con

‐ cerning appropriate sanctions for the conduct at issue.’” Auto

‐

Zone

, 707 F.3d at 840 (7th Cir. 2013) (quoting Gore

, 517 U.S. at

583).

TCS has made no argument about this guidepost and has

thus waived any argument that it points toward the award

being unconstitutional. Although TCS has not pointed us to a

single relevant civil penalty for comparison, we recognize that

both the $280 million award the district court entered, and a

$140 million award that would re fl ect a 1:1 ratio, comply with46 Nos. 19

‐ 1528 & 19

‐ 1613

Wisconsin’s statutory cap on punitive damages. That cap is

one indication of what the Wisconsin legislature has judged

to be an inappropriate sanction for reprehensible conduct:

any punitive award exceeding a 2:1 ratio is inappropriate.

Wis. Stat. § 895.043(6); see AutoZone

, 707 F.3d at 840 (“We rec

‐ ognize that this statutory cap suggests that an award of dam

‐

ages at the capped maximum is not outlandish.”). 6 So, the fi

‐

nal guidepost does not point toward a $280 million or $140

million punitive

‐ damages award being unconstitutional.

In sum, considering the factors together, we conclude that

the maximum permissible award of punitive damages in this

case is $140 million—a 1:1 ratio relative to the compensatory

award. And TCS only mentions Wisconsin law to point out

that Wisconsin courts apply a test substantively identical to

the federal test analyzed above. So, TCS has waived any argu

‐

ment that Wisconsin law might produce a di ff erent result. We

therefore remand for the district court to amend its judgment

and reduce punitive damages to, at most, $140 million.

III. C ONCLUSION

The jury heard plenty of evidence that TCS stole Epic’s

con fi dential information and incorporated it into a compara

‐

tive

‐ analysis spreadsheet. And, drawing all inferences in fa

‐

vor of Epic, the jury could conclude that TCS used the com

‐ parative analysis for a variety of purposes, including the

6 TCS does not challenge the constitutionality of the Wisconsin statute

that sets this cap, and we do not question it either. The protections af

‐

forded by the Constitution are not fixed to a particular ratio. See Campbell

,

538 U.S. at 425. As such, the due

‐ process guarantee may be more protec

‐

tive than a statutory cap in one case but less protective in another. Today,

we hold only that, although the Wisconsin statute permits a 2:1 ratio, the

constitutional protection under these circumstances goes further.Nos. 19

‐ 1528 & 19

‐ 1613 47

improvement of Med Mantra. However, the jury did not hear

any evidence that would allow it to infer that any of Epic’s

other information was used by TCS.

Pursuant to the reasoning set forth above, the judgment of

the district court upholding the jury’s $140 million compen

‐

satory

‐ damages award connected to the comparative analysis

is AFFIRMED; and, the judgment of the district court vacating

the jury’s $100 million compensatory damages award for

TCS’s use of other information is also AFFIRMED.

Further, the judgment of the district court awarding $280

million in punitive damage is VACATED as it exceeds the

outermost limit of the Due Process guarantee in the Constitu

‐

tion; and, the issue of the amount of punitive damages is

REMANDED with instruction to the district court to reduce

the punitive

‐ damages award consistent with the analysis in

this opinion.