In the

United States Court of Appeals

For the Seventh Circuit ____________________

Nos. 19-2089 & 19-2173

CONTINENTAL VINEYARD, LLC, and INDECK-PASO ROBLES LLC,

Plaintiffs-Appellants, Cross-Appellees,

v.

VINIFERA WINE CO., LLC, and RANDY DZIERZAWSKI,

Defendants-Appellees, Cross-Appellants.

____________________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12 C 3375 — Thomas M. Durkin, Judge.

____________________

ARGUED JUNE 1, 2020 — DECIDED SEPTEMBER 2, 2020

____________________

Before RIPPLE, WOOD, and SCUDDER, Circuit Judges.

WOOD, Circuit Judge. This case pits two wine enterprises 

against one another. In one corner, we have Gerald Forsythe, 

who formed Indeck-Paso Robles, LLC (“Indeck”) for the purpose of creating and managing a wine-grape vineyard. In the 

other, we have Randy Dzierzawski, who started out as Forsythe’s business associate and vice-president and later 

branched out on his own. In time, Forsythe became convinced 
2 Nos. 19-2089 & 19-2173

that Dzierzawski and his company stole valuable business opportunities from Forsythe’s operations. Litigation ensued, 

with an ultimate outcome largely favoring Dzierzawski, but 

also giving Forsythe’s company $285,731 as disgorgement. 

Forsythe and his related companies have appealed from 

the judgment in favor of the Dzierzawski parties, largely on 

the ground of allegedly fatal inconsistencies in the jury’s verdict. Dzierzawski has cross-appealed from the disgorgement 

order. Forsythe argues that Dzierzawski stole a corporate opportunity from his company, but we agree with the district 

court that the evidence does not support such a finding. As 

for the verdicts, we are left to make the best of a bad thing. 

They are hard to reconcile at first glance, but neither party 

made any objection until several weeks after the jury was disbanded. Without such a contemporaneous objection, the court 

was left on its own. It resolved the uncertainties in a way that 

respected what the jury said. Finally, with respect to the crossappeal, we see no reversible error in the disgorgement order.

Although the case is something of a procedural mess, we conclude in the final analysis that the judgment of the district 

court should be affirmed.

I

We begin with a closer look at the events leading up to this 

litigation, as the issues on appeal are largely factual. In 2006, 

Indeck purchased Shimmin Canyon Vineyard in Paso Robles, 

California. Forsythe later established Continental Vineyard, 

LLC (“Continental”), as a wholly-owned subsidiary of Indeck, for the purpose of operating Shimmin Canyon. Forsythe 

appointed himself chairman and CEO and named Dzierzawski president. In that capacity, Dzierzawski was in charge 

of all of Continental’s day-to-day operations.
Nos. 19-2089 & 19-2173 3

At first, Forsythe and Dzierzawski wanted Continental to

operate Shimmin Canyon exclusively as a grape-growing enterprise. Later, however, they decided to get into the business 

of winemaking. Continental’s first step was to hire Chris 

Cameron, an experienced vintner, as Director of Winemaking.

In 2010, Cameron and Dzierzawski, on behalf of Continental, met with Mark Esterman, a wine buyer for the Meijer grocery store chain, to discuss developing custom wine for the 

store. This was an ambitious plan: fulfilling Meijer’s need 

would have required Continental to purchase wine from 

other suppliers, because Shimmin Canyon’s crop was too 

small and did not include all the right varieties for Meijer’s 

desired wines. After the Esterman meeting, Dzierzawski informed Forsythe about the Meijer opportunity. Forsythe was 

uninterested; he stated that Shimmin Canyon was already a 

money-loser and that he did not want to invest additional 

capital into buying “juice” from other suppliers. A week or 

two later, Dzierzawski again urged Forsythe to pursue the 

Meijer opportunity, but Forsythe again declined. 

Only then did Dzierzawski decide to take matters into his 

own hands. Along with Cameron, he formed Vinifera Wine 

Company (“Vinifera”) and, working with Meijer, he obtained 

his wines (Zinfandel and Moscato) from third parties. In time, 

Vinifera began to source some of its wine from Continental. It 

paid Continental to bottle, store, and ship wine under Vinifera’s label. Continental also worked with at least two other 

companies. Cameron provided some winemaking services to 

these companies, but he worked primarily for Vinifera. His 

services to Vinifera were extensive, and he became concerned 

that Vinifera was not compensating Continental properly for 

the use of its resources. 
4 Nos. 19-2089 & 19-2173

At trial, Cameron testified that Dzierzawski concealed the 

extent of Vinifera’s operations from Forsythe during this period. In addition, Cameron accused Dzierzawski of using his 

position as Continental’s president to sell the same wine under both the Continental and Vinifera labels and to assign 

lower prices to the Vinifera wines, thereby siphoning sales 

away from Continental. Cameron also reported that Dzierzawski instructed Continental employees to enter these identical wines in the same wine contests to enhance the reputation and market share of the cheaper Vinifera-labelled wines.

In 2012, in anticipation of an audit of Continental, Dzierzawski disclosed the scope of Vinifera’s operations to Forsythe. Forsythe responded angrily, stating that he had made 

it clear that Continental was not to purchase wine from other 

vineyards. He demanded that Dzierzawski shutter operations 

at Vinifera. Dzierzawski initially agreed but quickly thought 

better of it and resigned from Continental and Indeck. In short 

order, Continental and Indeck (to which we refer collectively 

as Continental) sued Dzierzawski and Vinifera, alleging that 

Dzierzawski had injured them by starting a competing business while he was still serving as Continental’s vice president.

II

Continental raised five theories in its complaint against 

Dzierzawski and Vinifera: (1) breach of fiduciary duty for failing to act in good faith; (2) breach of fiduciary duty of loyalty 

for self-dealing; (3) unfair competition; (4) unjust enrichment; 

and (5) usurpation of a corporate opportunity. The district 

court granted summary judgment in favor of the defendants 

on the corporate opportunity theory but allowed the other 

four counts to proceed to trial. A jury found the defendants 

liable on the unfair competition contention, but it ruled in 
Nos. 19-2089 & 19-2173 5

their favor on the other three theories. But its verdict with respect to unfair competition was opaque: despite rendering a 

verdict seemingly in Continental’s favor, the jury left the 

damages section on the verdict form blank. After the jury returned its verdict, the court suggested that it should poll the 

jury members individually to ensure that the blank damages 

section indicated that they intended to award no damages. 

Counsel agreed, and so the court polled the jurors, who unanimously responded that this was, in fact, their intention.

Continental did not object to the jury’s verdict at the time 

that it came down. Several weeks after the jury was discharged, however, it filed a timely motion for a new trial under Federal Rule of Civil Procedure 59. It argued that the 

jury’s verdict was inconsistent in two respects: first, it contended that it is impossible to reconcile the finding that Dzierzawski was liable for unfair competition with its verdict that 

he was not liable for breach of the fiduciary duty of loyalty; 

and second, it argued that the jury’s decision not to award 

damages for Continental could not be squared with its finding 

that Dzierzawski was liable for unfair competition.

The district court denied the motion for a new trial. It 

found that Continental had waived its opportunity to raise 

the argument that the jury’s verdict was inconsistent, because 

it had failed to make an objection to the jury instructions. See 

FED. R. CIV. P. 51. The court did, however, grant Continental’s 

request for disgorgement as alternative relief, and ordered 

Dzierzawski to pay $285,731 to Continental. The court observed that “the jury’s verdict is merely advisory on the issue 

of equitable disgorgement, as it is an equitable remedy to be 

imposed by the Court as opposed to the jury.” (internal quotation marks omitted). Continental and Indeck appealed both 
6 Nos. 19-2089 & 19-2173

from the denial of their motion for new trial and from the adverse ruling on summary judgment on their claim under the 

corporate-opportunity doctrine. Vinifera and Dzierzawski

filed a cross-appeal challenging the disgorgement award.

III

A

Before turning to the main event, we briefly touch on jurisdiction and choice of law. Continental filed its complaint in 

the Northern District of Illinois; it relied on diversity jurisdiction under 28 U.S.C. § 1332. The two plaintiffs, Continental 

Vineyard, LLC and Indeck-Paso Robles LLC, are both Delaware limited-liability companies. Continental’s sole member 

is Indeck-Paso Robles LLC, and Indeck’s sole member is Indeck Energy Services, Inc., an Illinois corporation with its 

principal place of business in Illinois. That means that both 

Continental and Indeck are Illinois citizens for purposes of 

section 1332. Wise v. Wachovia Sec., LLC, 450 F.3d 265, 267 (7th 

Cir. 2006). Vinifera is a Michigan limited-liability corporation 

whose sole member at the time of suit was Dzierzawski. He is 

a citizen of Michigan. Finally, the amount in controversy exceeds $75,000 (by a comfortable margin).

Personal jurisdiction is a bit of a puzzle, but the time for 

making an objection passed and it is now too late to raise one. 

See FED. R. CIV. P. 12(b)(2), (h)(1). Continental chose the Illinois forum and contended that Illinois’s courts have specific 

personal jurisdiction over Vinifera and Dzierzawski based on

Vinifera’s sale of wine in Illinois and the harms Continental 

suffered in that state because of those sales. Given the waiver 

of this point, we make no comment on the adequacy of these 
Nos. 19-2089 & 19-2173 7

allegations under cases such as Walden v. Fiore, 571 U.S. 277 

(2014). 

The choice-of-law principles of the forum state, Illinois, 

govern here. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 

487, 496 (1941). The parties agree that Illinois directs us to the 

laws of Michigan and Delaware.

B

1

Moving on to the heart of the appeal, we begin with the 

district court’s handling of Continental’s motion for a new 

trial. We need to clear away some underbrush before we 

tackle that issue head-on. As we noted earlier, Continental asserted that a new trial was necessary because of inconsistencies in the jury’s verdict, which took the form of a general verdict with answers to written questions, as contemplated by 

Federal Rule of Civil Procedure 49(b).

The district court, in an order issued December 12, 2018, 

concluded that the jury had returned irreconcilably inconsistent verdicts when it found Dzierzawski liable for unfair 

competition, implying that he injured the plaintiffs, yet at the 

same time it exonerated him on the charge that he owed and 

breached a fiduciary duty to Continental “and/or” Indeck. 

Faced with this conflict, it turned to the question whether 

Continental waived the inconsistency argument “by failing to 

raise it at the instruction conference or immediately after the 

jury’s verdict,” as required by Rule 51. In this connection, it 

noted that three circuits take the position that a failure to raise 

this type of argument before the jury is discharged leads to 

waiver. See Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, 83 (2d 

Cir. 2006); Oja v. Howmedica, Inc., 111 F.3d 782, 790 (10th Cir. 
8 Nos. 19-2089 & 19-2173

1997); Home Indem. Co. v. Lane Powell Moss & Miller, 43 F.3d 

1322, 1331 (9th Cir. 1995). The Seventh Circuit, however, while 

acknowledging the value of a waiver rule, see Strauss v. 

Stratojac Corp., 810 F.2d 679, 683–84 (7th Cir. 1987) (Rule 49(a) 

special verdicts), has never formally adopted this position for 

general verdicts under Rule 49(b). The district court then

found that Continental had waived its objection to the inconsistencies among the general verdict answers when it failed to 

seek a jury instruction forbidding the jury to return a verdict

in the plaintiffs’ favor on unfair competition while ruling for 

the defendants on breach of fiduciary duty. It then ordered 

additional briefing on the question whether plaintiffs’ failure 

to preserve their objection to the inconsistent verdicts affected 

the outcome of the trial.

The court also preliminarily addressed Continental’s other 

concern, which was the finding of liability for unfair competition coupled with a finding of no damages. It ruled that these 

two findings were not necessarily inconsistent. Instead, they 

might have reflected a failure of proof on Continental’s part. 

Continental had introduced evidence of Vinifera’s profits and 

Dzierzawski’s share of that pot, but it failed to show how 

those profits damaged Continental or Indeck. Before finally 

ruling, however, the court also called for further briefing on 

this point.

Finally, the court allowed Continental to proceed with its 

claim for equitable disgorgement, if further research indicated that Michigan law permits such a remedy.

After the court received the requested supplemental 

briefs, it resolved the remaining issues in an order of May 10, 

2019. First, it found that the outcome of the trial had not been 

affected by the conflict between the unfair-competition and 
Nos. 19-2089 & 19-2173 9

breach-of-fiduciary-duty verdicts. Although it had been inclined otherwise in the December 12 order, it stated that its

earlier “reasoning failed to account for the fact that Plaintiffs 

brought unjust enrichment as a stand-alone claim, and the 

jury issued a separate verdict in Defendants’ favor on unjust 

enrichment.” There was no material difference, the court 

found, “between the jury’s consideration of the unjust enrichment instruction and the damages the jury would have considered if it had reached damages under the instruction for 

breach of fiduciary duty.” The court also declined to revisit its 

conclusion that plaintiffs waived any inconsistency argument 

when they failed to object to the jury instructions. 

Looking at the zero-damage award on the unfair-competition count, the court found support in the record for this outcome in the defendants’ expert’s report, which pointed out 

that Vinifera provided considerable benefits to Continental, 

even while it was engaged in the objectionable operations. 

Last, noting that the jury’s verdict was only advisory with respect to the equitable disgorgement issue, the court found it 

appropriate to follow the Restatement (Third) of Unfair Competition § 37 (Am. Law Inst. 1995), which permits disgorgement of net profits, when ascertaining the probable content of 

Michigan law. Examining the evidence and excluding sales 

that were unaffected by the unfair competition, the court 

awarded a total of $285,731 as net profits that Vinifera and 

Dzierzawski had to return to Continental and Indeck.

2

Continental first attacks the district court’s finding that it 

waived its objection to the inconsistent verdicts, relying on 

three cases from this court: Gordon v. Degelmann, 29 F.3d 295 

(7th Cir. 1994); Timm v. Progressive Steel Treating, Inc., 137 F.3d 
10 Nos. 19-2089 & 19-2173

1008 (7th Cir. 1998); and Turyna v. Martam Construction Company, Inc., 83 F.3d 178 (7th Cir. 1996). None of those, however, 

is directly on point, nor for that matter is Rule 51. We begin 

with the question of the time when an objection to inconsistent verdicts should be made, and we then turn to the details of this case.

In Gordon, a jury found a municipality liable under state 

law, but it absolved an individual defendant. The parties filed 

no contemporaneous objections, but the district court granted 

judgment as a matter of law to the municipality on the ground 

that vicarious liability required primary liability. With respect 

to the inconsistent verdicts, we wrote: “If the problem is not 

caught before the jury disbands (and no one noticed this conflict until post-trial motions), the proper thing to do is to hold 

a new trial with respect to all affected parties.” 29 F.3d at 298–

99. We ultimately upheld the district court’s grant of judgment as a matter of law on other grounds.

Gordon differs from the present case, however, in that it

concerns inconsistent verdicts for multiple defendants. The 

jury’s verdict was irreconcilably inconsistent, because resolving the inconsistency would have required either imposing liability on a defendant the jury had absolved or freeing a defendant from liability in the face of the jury’s finding to the 

contrary—and as we said, “there is no priority among inconsistent verdicts.” Id. at 298.

Pertinent differences also exist between our case and 

Timm. There, we commented in dicta that “[a] judge cannot 

treat one verdict ... as the jury’s ‘true’ disposition to which the 

other verdict must be conformed ... If inconsistency escapes 

notice until after the jury has disbanded, the proper thing to 

do is to hold a new trial.” 137 F.3d at 1010. In Timm, however, 
Nos. 19-2089 & 19-2173 11

we ultimately found that an award of punitive damages was 

not inconsistent with a lack of compensatory damages, and so 

no new trial was needed.

Turyna is also distinguishable in several pertinent respects. 

The district judge there asked the lawyers to stay within five 

minutes of the courtroom while the jury deliberated, because 

he “hated to have the jury wait once it was ready with a verdict.” 83 F.3d at 180. The jury thus came back to an empty 

room: defense counsel waived his right to be present while 

the verdict was read, and plaintiff’s counsel was absent for 

unknown reasons. Thus, “no one with any incentive to take 

action was present” when the jury returned its verdict. Id. Unfortunately, the jury returned a hopelessly muddled verdict 

that this court determined could not be salvaged. We did not 

address waiver because the jury verdict was so inconsistent 

that only a new trial could fix it.

That leaves the question what to do when a litigant fails to 

object to an apparently inconsistent general verdict with written questions before the jury disbands. We flagged this issue 

but did not resolve it in Fox v. Hayes, 600 F.3d 819, 844 (7th Cir. 

2010), and as we noted earlier, three of our sister circuits follow the rule that the failure to lodge a contemporaneous objection to an inconsistent verdict constitutes a waiver. See 

Kosmynka (2d Cir.); Oja (10th Cir.); and Home Indem. Co. (9th 

Cir.). 

We find the reasoning of our sister circuits to be sound, 

and thus now adopt the position that a party wishing to challenge a jury’s general verdict on the ground of inconsistent 

verdicts must normally make a contemporaneous objection 

before the jury disbands. Without such an objection, the 

court’s option to fix the problem by resubmission to the jury 
12 Nos. 19-2089 & 19-2173

as contemplated by Rule 49(b)(3)(B), vanishes. Indeed, this is 

implicit in Rule 49(b), which strikes us as a better match for 

guidance in this situation than Rule 51. But we realize that this 

rule will not fit all situations. Two in particular come to mind. 

The first, exemplified by our decision in Turyna, arises when 

a party had no meaningful opportunity to object to the jury’s 

verdict. If there was no way a party reasonably could have 

recognized the inconsistency, because counsel was compelled 

to be out of the room or otherwise unable to object, then there 

is no waiver. The second situation — the one at issue in Gordon 

— arises if the jury’s verdict resists all efforts at reconciliation, 

such that the grant of a Rule 59 motion for new trial is the only 

remedy possible.

Neither of those exceptions to the contemporaneous objection rule applies here. Continental had ample opportunity to 

object to the inconsistent verdict. When the jury announced 

its verdict, the court polled each juror individually. The court 

also held a sidebar to address the jury’s decision to leave 

blank the line for damages attributable to the unfair competition it had found. With the input of counsel, the court again 

polled each jury member to ensure that he or she intended to 

award no damages. Each juror stated that this was, in fact, his 

or her intent. After that, the jurors left the courtroom but were 

instructed to remain in the jury room. The court then asked 

the parties if there was anything more they wished to put on 

the record, and both parties declined the opportunity.

Continental thus had many opportunities to object to the 

verdict. This is not a case like Turyna, where counsel could not 

object because of a bizarre confluence of circumstances. Here, 

counsel was in the room, understood the situation, and was 

expressly invited by the court to raise any concerns. 
Nos. 19-2089 & 19-2173 13

Nor does the second exception fit this case. Neither of the 

two alleged inconsistencies that Continental invokes is truly 

impossible to reconcile, as were the vicarious liability findings 

in Gordon. Indeed, though we have proceeded on the assumption that inconsistencies exist, the district court’s own treatment of the case suggests otherwise. A careful look at both the 

answers and the record shows that any clumsiness in the 

jury’s responses was not so serious as to prevent harmonization or to affect anyone’s substantial rights. See FED. R. CIV. P.

61 (“Unless justice requires otherwise, no error ... by the court 

or a party ... is ground for granting a new trial [or] for setting 

aside a verdict. ... At every stage of the proceeding, the court 

must disregard all errors and defects that do not affect any 

party’s substantial rights.”).

The alleged inconsistencies stem from the apparent contrast between the jury’s findings on Questions 1 and 2 (fiduciary duty of loyalty) and its finding in Question 3 to the effect

that Dzierzawski “engaged in unfair competition with respect 

to Continental Vineyards, LLC and/or Indeck-Paso Robles, 

LLC,” though he did not do so through fraud, with willful or 

reckless disregard of the plaintiffs’ rights, or with malicious 

intent. Here is how the jury answered Questions 1 and 2:

1a. Have Plaintiffs proven that Randy Dzierzawski 

owed a fiduciary duty of loyalty to Continental Vineyards, LLC and/or Indeck-Paso Robles, LLC and that 

Randy Dzierzawski breached his fiduciary duty of loyalty to Continental Vineyards, LLC and/or Indeck-Paso 

Robles LLC by failing to act in good faith?

Yes____________ No _____X______

If you answered “Yes” proceed to Question 1b.
14 Nos. 19-2089 & 19-2173

If you answered “No” proceed to Question 2.

2a. Have Plaintiffs proven that Randy Dzierzawski

owed a fiduciary duty of loyalty to Continental Vineyards, LLC and/or Indeck-Paso Robles, LLC and that 

Randy Dzierzawski engaged in self-dealing by appearing on both sides of any transactions between Vinifera 

Wine Co., LLC and Continental Vineyards, LLC 

(and/or between Vinifera Wine Co., LLC and IndeckPaso Robles, LLC)?

Yes____X______ No _____________

If you answered “Yes” proceed to Question 2b.

If you answered “No” proceed to Question 3.

2b. Has Randy Dzierzawski proven that all self-dealing 

transactions with Continental Vineyards, LLC and Indeck-Paso Robles, LLC were entirely fair?

Yes ____________ No _____X_______

Proceed to Question 2c.

2c. Has Randy Dzierzawski proven that the Acquiescence Defense applies to all self-dealing transactions 

with Continental Vineyards, LLC and Indeck-Paso Robles, LLC?

Yes _______X______ No _____________

Proceed to Question 3 [Unfair Competition].

What are we to make of these answers? Unfortunately, 

several are not as clear as they might be, because they respond 

to compound questions, and so it is difficult to know which 

part of the question prompted the jury’s choice. Take 
Nos. 19-2089 & 19-2173 15

Question 1a. The jury might have concluded that Dzierzawski 

did not owe a fiduciary duty of loyalty to either Continental, 

Indeck, or both. That would have supported its “no” answer. 

Or the jury might have thought that Dzierzawski did owe a 

fiduciary duty to one or both of the plaintiffs, but that he did 

not breach any such duty by failing to act in good faith. In 

Question 2a, the jury answered the compound question in the 

affirmative, thus implicitly finding both that Dzierzawski 

owed a fiduciary duty to the plaintiffs and that he engaged in 

self-dealing “by appearing on both sides of [a] transaction[].” 

The jury then found in Question 2b that Dzierzawski had 

failed to prove that all self-dealing transactions were “entirely 

fair,” but it concluded in Question 2c that he did show that 

the “Acquiescence Defense” applied to all the self-dealing 

transactions. 

Those findings do not necessarily conflict with the jury’s 

reaction to the unfair-competition count. There it found that, 

while Dzierzawski did engage in unfair competition with 

Continental and Indeck, he did not do so fraudulently, with 

willful or reckless disregard of plaintiffs’ rights, or maliciously. (The jury was also asked in Question 8a whether Vinifera engaged in unfair competition with respect to either 

plaintiff, but it answered in the negative.) 

In Question 4, it found that Dzierzawski had not been unjustly enriched at Continental’s or Indeck’s expense, and in 

Question 9, it made the same finding with respect to Vinifera. 

The finding with respect to Dzierzawski can stand as long as 

it is correct that acts of unfair competition may not necessarily 

inflict damage on the victim, or (as the district court found) 

the plaintiffs simply failed to prove the amount of damage 

they suffered. 
16 Nos. 19-2089 & 19-2173

Even if some residual tension remains among these findings, we agree with the district court that Continental cannot 

show that its substantial rights were affected by the court’s 

refusal to grant a new trial. A party’s substantial rights are affected only when an error is “of such great magnitude that it 

probably changed the outcome of the trial.” Lewis v. City of 

Chi. Police Dep’t, 590 F.3d 427, 434 (7th Cir. 2009) (quoting 

United States v. Noel, 581 F.3d 490, 499 (7th Cir. 2009). The district court offered sound reasons for why Continental’s substantial rights were not affected by its decision not to start 

over again. We describe the district court’s action that way because, as we already have noted, it was no longer possible for 

the judge to instruct the first jury to resolve any possible inconsistencies, because it had been disbanded. We reiterate 

that we do not agree with the district court that the source of 

this problem lay in the failure of the jury instructions to warn 

against inconsistent verdicts, nor do we see Rule 51 as particularly helpful here. The problem lay in the use of compound 

questions, which ultimately led to confusion when the verdict 

was received. The latter confusion should have been addressed by reference to Rule 49. Once the moment for using 

Rule 49 passed, all that was left was a possible motion under 

Rule 59(a) for a new trial. Normally, however, it is Rule 

49(b)(3)(C) and (4) that govern whether a new trial must be 

ordered in this situation. 

In addition to the reasons we already have given, there are 

other grounds for finding that plaintiffs’ substantial rights 

were not affected by the apparent inconsistency in the jury’s 

verdicts. The instructions for both breach of fiduciary duty 

and unfair competition told the jury that it could award damages for lost profits. Yet only the instruction for breach of fiduciary duty (not the one on unfair competition) directed the 
Nos. 19-2089 & 19-2173 17

jury to consider whether Dzierzawski was unjustly enriched 

by the breach. The district court also noted that the jury independently had considered whether Dzierzawski was unjustly 

enriched when in response to Question 4 it found him not liable on Continental’s stand-alone unjust-enrichment count. 

The jury thus necessarily considered whether unjust enrichment had occurred and determined that it had not. In the fact 

of these findings, Continental cannot show that its substantial 

rights were affected by the alleged inconsistencies in the jury’s 

verdict.

Continental also alleges that it is impossible to reconcile 

the jury’s decision to find Dzierzawski liable for unfair competition with its decision to award $0 in damages. Continental 

argues that by awarding $0 in damages, the jury necessarily 

found that Continental was not injured, making the verdict 

irreconcilably inconsistent as a matter of law. See Thomas v. 

Stalter, 20 F.3d 298, 303 (7th Cir. 1994) (granting a motion for 

a new trial where the jury instructions specifically required 

the jury to find damages before it could find liability).

The district court rejected this contention, and so do we. 

The damages available for unfair competition are (1) lost profits and (2) expenses incurred. Looking to the defendants’ expert, the court concluded that there was a sufficient basis for 

the jury to find that Continental had lost $0 in profits. The expert’s report stated that the minimum amount of expenses 

that Continental incurred as a result of the defendants’ conduct was $5,000. At the same time, there was evidence that 

Continental actually profited from Dzierzawski’s conduct. 

Continental’s controller testified that Vinifera brokered sales 

of Continental wine and that Dzierzawski’s promotion of Vinifera created opportunities for the distribution and sale of 
18 Nos. 19-2089 & 19-2173

Continental wines. Further testimony indicated that Continental may have benefited by as much as $180,000 in sales. 

The jury could have concluded that the $5,000 in expenses 

that Continental incurred at a minimum was offset by benefits 

that Vinifera created for Continental.

Mindful of the great respect owed to jury verdicts, we 

agree with the outcome reached by the district court. Although the verdicts at first glance appear to be inconsistent, a 

closer look shows that they can be reconciled. The jury apparently concluded that, although Dzierzawski through Vinifera 

had competed with Continental unfairly, Continental ultimately gained more than it lost from Dzierzawski’s conduct. 

That conclusion could have been reinforced by the lack of concrete proof of loss from Continental. The jury thus could have 

determined that the amount of lost profits was negative; that 

is to say, that Continental’s profits grew rather than declined

as a result of Dzierzawski’s conduct. Because the verdicts can 

be resolved, the district court was correct to uphold the jury’s 

verdict and deny Continental’s motion for a new trial.

IV

Continental and Indeck also ask us to reverse the district 

court’s finding that the defendants were entitled to summary 

judgment on the claim that Dzierzawski illegally usurped a 

corporate opportunity from Forsythe and Continental. Delaware law supplies the rule of decision for this claim. Under 

the corporate-opportunity doctrine, the officer of a corporation may not take a business opportunity for himself if: (1) the 

corporation of which he is an officer is financially able to exploit the opportunity; (2) the opportunity is within the corporation’s line of business; (3) the corporation has an interest or 

expectancy in the opportunity; and (4) by taking the 
Nos. 19-2089 & 19-2173 19

opportunity for his own, the corporate fiduciary will thereby 

be placed in a position inimical to his duties to the corporation. Broz v. Cellular Info. Sys., Inc., 673 A.2d 148, 155 (Del. 

1996). Under Delaware law, “the determination of [w]hether 

or not a director has appropriated for himself something that 

in fairness should belong to the corporation is a factual question to be decided by reasonable inference from objective 

facts.” Id. (internal quotation marks omitted). Delaware also 

recognizes a safe harbor, in which a corporate director or officer may pursue an opportunity otherwise covered by the 

primary doctrine if he first presents the opportunity to the 

corporation and the corporation declines to pursue it. Id. at 

157 (“[P]resenting the opportunity to the board creates a kind 

of ‘safe harbor’ for the director, which removes the specter of 

a post hoc judicial determination that the director or officer has 

improperly usurped a corporate opportunity.”).

The district court held that the Meijer contract qualified as 

a corporate opportunity for this purpose, but that Dzierzawski took the necessary steps to fall within the safe harbor. 

We agree. Dzierzawski approached Forsythe twice with the 

opportunity to source wines for Meijer. Both times, Forsythe 

explicitly and emphatically declined the opportunity, believing that the vineyard was already a money-loser. Dzierzawski 

thus fulfilled his duty to disclose the opportunity.

Lastly, Continental argues that a corporate officer must 

not only disclose the opportunity itself to the corporation; he 

must also disclose his intention personally to take advantage 

of the opportunity if the corporation turns it down. Because 

Dzierzawski did not make the latter disclosure, Continental 

contends, he is not eligible for the safe harbor. We are not persuaded. First, the weight of authority is not on Continental’s 
20 Nos. 19-2089 & 19-2173

side. Continental has mustered in its support only one unreported case from the Delaware Chancery Court. Grove v. 

Brown, No. CV 6793-VCG, 2013 WL 4041495 (Del. Ch. Aug. 8, 

2013). But even this case does not hold that an officer must 

disclose his intention to pursue an opportunity in order to 

avail himself of the safe harbor. In Grove, the court found that, 

while officers of a home-health agency may have discussed 

possible opportunities with their co-officers, they never made 

a formal presentation of the opportunity to the corporation. 

Because “[p]resenting an opportunity to [their partners was] 

not the same as presenting an opportunity to [the corporation],” the defendants could not avail themselves of the safe 

harbor. Id. at *10. Other than Grove, there appears to be nothing in Delaware law supporting the idea that an officer may 

not take advantage of the safe harbor of the corporate-opportunity doctrine unless he discloses both the opportunity and 

his intention to pursue it.

The district court correctly granted summary judgment on 

this count. Dzierzawski brought the Meijer opportunity to 

Forsythe, not once but twice. He was not required to do anything more under standard principles of corporate law.

V

Dzierzawski and Vinifera may have felt that they won the 

battles but lost the war: after defeating in one way or the other 

Continental’s theories at the jury trial, they found themselves 

subject to equitable disgorgement in the amount of more than 

$285,000. This is the subject of their cross-appeal. We review 

a district court’s grant of equitable relief in the form of disgorgement for abuse of discretion. Fed. Trade Comm’n v. Febre, 

128 F.3d 530, 534 (7th Cir. 1997). Once again, the district court 

looks to Illinois choice of law rules, see Klaxon. Illinois follows 
Nos. 19-2089 & 19-2173 21

the most-significant-contacts approach of the Restatement 

(Second) of Conflict of Laws for tort actions. See Wreglesworth 

v. Arctco, Inc., 316 Ill. App. 3d 1023, 1031 (2000). For unfaircompetition claims, that approach dictates that “the principal 

location of the defendant’s conduct ... will usually be given 

the greatest weight in determining” controlling state law. Restatement (Second) of Conflict of Laws § 145 cmt. F (1971). In 

this case, both parties agreed that Michigan was that state, because Vinifera earned most of its allegedly unjust profits 

there.

Dzierzawski offers two reasons why the district court 

abused its discretion in granting disgorgement. First, he argues that Michigan law does not recognize disgorgement as a 

remedy for unfair competition. Second, he argues that the district court made a commitment not to order disgorgement

when it stated earlier that it planned to handle the equitable 

portion of the case strictly according to the determination of 

the jury.

It appears that no Michigan appellate court has upheld an 

award of disgorgement for unfair competition. In fact, no 

Michigan appellate court has ever addressed the issue. In the 

absence of guidance from Michigan’s judiciary, the district 

court turned to the Restatement (Third) of Unfair Competition, which states that disgorgement is an appropriate remedy for unfair competition where “the actor engaged in the 

conduct with the intention of causing confusion or deception; 

and the award of profits is not prohibited by statute and is 

otherwise appropriate” based “upon a comparative appraisal 

of all the factors of the case.” Id. § 37.

Dzierzawski argues that the district court’s reliance on the 

Restatement was misplaced, because no Michigan court has 
22 Nos. 19-2089 & 19-2173

ever explicitly adopted section 37. That is not the way things 

work, however, when a district court is faced with silence 

from the state courts. In such a situation, the district court 

must make an educated guess about the likely content of state

law. Here, it made sense to use the Restatement as a guide. 

Michigan courts have often relied on the Restatement in addressing novel issues of unfair competition. See, e.g., Janet 

Travis, Inc. v. Preka Holdings, L.L.C., 306 Mich. App. 266, 285–

86 (2014) (relying upon section 21 of the Restatement); Movie 

Mania Metro, Inc. v. GZ DVD’s Inc., 306 Mich. App. 594, 611 

(2014) (citing section 33 of the Restatement). We cannot say 

that the district court abused its discretion in relying upon the 

Restatement to establish the content of Michigan’s law.

Dzierzawski next points to an order in which the district 

court stated that it would “be bound by [the jury’s] liability 

finding across all of Plaintiffs’ claims, whether seeking damages or equitable relief.” Dzierzawski argues that this statement was binding law of the case and must prevail over any 

later decision by the district court about how to calculate 

monetary relief. But that makes no sense: of course district 

courts have the power to correct their own missteps, as Rule 

59 underscores; the only question on appeal is whether the 

court landed in the right place. That is why we have held that 

the law-of-the-case doctrine does not prevent a district court 

from exercising its discretion to reconsider earlier interlocutory orders. Williams v. C.I.R., 1 F.3d 502, 504 (7th Cir. 1993).

In any event, the court’s earlier order is not at odds with 

its later disgorgement decision. Although the court did state 

that it would be bound by the jury’s liability finding, it also 

stated, under a separate heading on “disgorgement,” that 

“[d]isgorgement is an equitable remedy to be imposed by the 
Nos. 19-2089 & 19-2173 23

Court as opposed to a jury,” and that the court might “order 

Dzierzawski to disgorge ... money if the Court were to find 

that Dzierzawski acquired [it] as a result of his breach of fiduciary duties.” The district court thus never made an unambiguous commitment not to award equitable remedies if the jury 

found the defendants not liable. We see no abuse of discretion 

in the court’s decision to grant disgorgement.

VI

We AFFIRM the decision of the district court.