NOT RECOMMENDED FOR PUBLICATION

File Name: 21a0505n.06

Case No. 20-2062

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WHIRLPOOL CORPORATION,

Plaintiff-Appellee,

v.

EQUITY MANAGEMENT, INC.,

Defendant-Appellant.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE WESTERN DISTRICT OF 

MICHIGAN

Before: GUY, COLE, and STRANCH, Circuit Judges.

RALPH B. GUY, JR., Circuit Judge. Equity Management, Inc. (EMI), a company in the 

business of corporate trademark licensing, appeals from the entry of judgment in favor of 

Whirlpool Corporation declaring—as a matter of law—that EMI did not have a right to share in 

royalties from a new 2019 License Agreement between Whirlpool and Nortek Global HVAC, 

LLC. On appeal, EMI contends that its rights under its Representation Agreement with Whirlpool 

unambiguously reach the 2019 Nortek License or, at a minimum, that its rights could not be 

determined on a Rule 12(c) motion for judgment on the pleadings. See FED. R. CIV. P. 12(c). EMI 

also argues that, notwithstanding its own cross-motion, it was error for the district court to have 

entered judgment against it on its counterclaim for breach of contract. Finding no error, we affirm.
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I.

Founded by former advertising executive Glen Konkle, EMI is described as “an industry 

pioneer” in corporate trademark licensing “representing some of the most recognized brands in the 

United States.” EMI began representing the Maytag Corporation and, in 2002, EMI secured a 

license agreement between Maytag and Nordyne, Inc. (Nordyne License). With that, in 2003, EMI 

and Maytag entered into an integrated Representation Agreement that granted EMI broad 

responsibility to develop, negotiate, and manage “relationships with third parties who use Maytagowned trademarks to manufacture and distribute licensed products.” (R. 60.)

But in 2006, Whirlpool acquired Maytag. In December 2006, Whirlpool and EMI executed

two agreements: (1) a First Amendment to the Representation Agreement limiting EMI’s 

representation to certain licenses (Amendment); and (2) a separate Licensing Representation 

Agreement that gave Whirlpool sole discretion whether to use EMI for other licensing projects 

(LRA). (R. 61, 62.) The 2003 Agreement had a term of five years, with a renewal for five more 

years if certain conditions were met. That term was extended twice—by the First Amendment in 

2006 and a Second Amendment in 2010—and the Agreement finally expired on December 31, 

2015.1

In the 2010 Amendment, EMI and Whirlpool also agreed “to modify their respective 

sharing of the royalties generated by the Nordyne License.” That was followed by an amendment 

to the Nordyne License, which, among other things, adjusted its renewal terms again. That is, the 

Nordyne License would expire after an “Initial Term,” “unless sooner terminated or renewed as 

provided in this LICENSE.” Also, Nordyne could automatically renew the license for two 

1 The LRA expired in 2009. Its terms are not directly relevant to this dispute.
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successive three-year terms (First and Second Renewal Term) if certain conditions were met. No 

further renewal would follow, however:

In any event, this LICENSE shall expire on December 31, 2018 and shall not 

automatically be renewed pursuant to this LICENSE. If the parties desire to 

continue licensing the Marks after expiration of this LICENSE, any understandings 

between the parties regarding the further licensing of the Marks must be set forth 

in a new license agreement. Neither party is obligated to enter into a new license 

agreement.

So, as of 2010, the Nordyne License had an expiration date and required that any continuation of 

the license would have to be set forth in a “new license agreement.” Those provisions were not 

affected by any of the subsequent amendments, the last of which accounted for Nordyne’s name 

change to Nortek Global HVAC, LLC. (R. 66, 67, 68.) The Nordyne/Nortek License continued 

through both Renewal Terms and was “scheduled to expire at the end of 2018.” (Counterclaim, 

Para. 34.) All indications are that, despite the earlier expiration of EMI’s agreement with 

Whirlpool, EMI continued to share in the revenues that the Nordyne/Nortek License generated 

until December 31, 2018. (Whirlpool Br., p. 11 n.4.) Certainly, EMI has not suggested otherwise.

EMI’s counterclaim alleged that before the Nordyne/Nortek License expired, EMI was 

heavily involved in discussions regarding a continuation of the license in the form of another 

renewal. All discussions ceased, however, when EMI rejected Whirlpool’s proposed reductions 

in revenue sharing and the Nordyne/Nortek License expired by its terms on December 31, 2018. 

Instead, Whirlpool and Nortek entered into a new License Agreement for the use of the Maytag 

trademarks effective January 1, 2019 (2019 Nortek License). (R.69.) Whirlpool took the position

that EMI had no rights with respect to the new 2019 Nortek License. EMI objected and responded 

by retaining and refusing to turn over royalty revenues for Q4 of 2018 and Q1 of 2019. Whirlpool 

commenced this declaratory judgment action, which alleged in part that EMI’s retention of those 

funds constituted breach of contract, conversion, and/or unjust enrichment (R.45, Counts II-IV). 
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The district court found in Whirlpool’s favor on those claims, and EMI does not challenge that 

portion of the decision on appeal.2

Whirlpool also sought declaration that it was not in breach of its Agreement with EMI 

(Count I). EMI’s counterclaim alleged that Whirlpool had breached their Agreement by 

negotiating, completing, and refusing to recognize EMI’s right to revenue generated under the 

2019 Nortek License (PageID 256-57.) Whirlpool moved for judgment on the pleadings in its 

favor, while EMI’s response sought partial summary judgment against Whirlpool on its 

counterclaim “with only the issue of damages remaining.” Finding no ambiguity, the district court 

determined that EMI’s rights and obligations under its Representation Agreement with 

Whirlpool—including a right to continue collecting royalties from Nortek—expired with the 

Nordyne/Nortek License on December 31, 2018. Granting Whirlpool’s motion and denying 

EMI’s, the district court entered judgment in favor of Whirlpool on both its complaint and EMI’s 

counterclaim. This appealed followed.

II.

We review the district court’s grant of judgment on the pleadings under Rule 12(c) under 

the same de novo standard that applies to an order of dismissal under Rule 12(b)(6). Poplar Creek 

Dev. Co. v. Chesapeake Appalachia, LLC, 636 F.3d 235, 240 (6th Cir. 2011). A Rule 12(c) motion 

must be converted to one for summary judgment if “matters outside the pleadings are presented to 

and not excluded by the court.” Clark v. Stone, 998 F.3d 287, 296 (6th Cir. 2021). A court may, 

however, properly consider documents that are attached to the pleadings, as well as public records, 

matters in the record of the case, and exhibits attached to the motion so long as they are “referred 

2Whirlpool also represents that the dispute over those retained funds has been resolved out of the 

appeal bond, but that would not matter since any argument EMI might raise has been abandoned.
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to in the complaint and are central to the claims contained therein.” Id. (brackets omitted) (quoting 

Kreipke v. Wayne State Univ., 807 F.3d 768, 774 (6th Cir. 2015)). Here, the district court adhered 

to this requirement, noting that the agreements and correspondence it considered “were attached 

to and/or referenced in the pleadings in this breach-of-contract case.” So, for purposes of the crossmotions here, all well-pleaded material allegations of the opposing party must be taken as true, 

and the motion is properly granted only if the moving party is clearly entitled to judgment as a 

matter of law. Poplar Creek, 636 F.3d at 240; see also Jackson v. Prof’l Radiology, Inc., 864 F.3d 

463, 465-66 (6th Cir. 2017).

A.

The parties agree that the Representation Agreement between EMI and Whirlpool provided 

that it is to be “governed by, and construed in accordance with, the laws of the State of Illinois.” 

There is also no dispute concerning the familiar principles of contract interpretation to be applied

under Illinois law. “The primary objective in construing a contract is to give effect to the intent of 

the parties.” Gallagher v. Lenart, 874 N.E.2d 43, 58 (Ill. 2007); see also Thompson v. Gordon, 

948 N.E.2d 39, 47 (Ill. 2011). When, as here, “parties formally include an integration clause in 

their contract, they are explicitly manifesting their intention to protect themselves against 

misrepresentations which might arise from extrinsic evidence.” Air Safety, Inc. v. Teachers Realty 

Corp., 706 N.E.2d 882, 885 (Ill. 1999).

A court must look first to the language of the contract alone, “as the language, given its 

plain and ordinary meaning, is the best indication of the parties’ intent.” Gallagher, 874 N.E.2d 

at 58. In doing so, the contract must be construed as a whole, and “intent is not determined by 

viewing a clause or provision in isolation.” Thompson, 948 N.E.2d at 47. Nor is a contract 

rendered ambiguous “merely because the parties disagree on its meaning.” Id. at 48. “Whether 
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the contract is ambiguous is an issue of law.” Fleet Bus. Credit, LLC v. Enterasys Networks, Inc., 

816 N.E.2d 619, 630 (Ill. Ct. App. 2004).

Although the Representation Agreement, as amended, expired in December 2015, it 

explicitly contemplated that EMI would have certain continuing rights and obligations. 

Specifically, as is pertinent here, § 10(c) of the 2003 Agreement provided for a continued period 

of revenue sharing after the Agreement expired.

Upon expiration of this Agreement or termination other than [for cause], Maytag 

shall pay EMI according to the sharing rates . . . against Gross Royalty Revenues 

and Other Revenues from License Agreements generated from EMI’s efforts 

hereunder (as such may be renewed, reinstated, modified or extended by the 

licensee at any time before or after termination or expiration) beginning on the date 

of expiration or termination and continuing for the period during which such 

revenues from such parties are generated, but (i) with respect to any Existing 

License Agreement [i.e., the Nordyne License], not to exceed twenty (20) years 

after the date the 1993 Agreement would have otherwise expired (i.e., March 31, 

2004), and (ii) with respect to any New License Agreement, not to exceed twenty 

(20) years after the effective date of such New License Agreement.

(2003 Agreement, § 10(c) (emphasis added).) First, EMI imprecisely describes this right to 

continued compensation with respect to the Nordyne License as continuing until March 31, 2024. 

Rather, the clear meaning of the “not to exceed” language is that any right to share in revenue 

would not continue beyond March 31, 2024. Second, as this implies, EMI’s right to compensation 

is contingent on there being revenue “from License Agreements generated from EMI’s efforts . . . 

as such may be renewed, reinstated, modified or extended.” The issue, then, is what license 

agreements the parties intended that this provision would cover.

EMI leans heavily on § 10(c)’s use of the term “License Agreement,” which was defined

to “mean the written agreement originally obtained through EMI’s efforts or administered by EMI 

(including amendments, renewals, extensions, reinstatements, modifications, addenda, and the 

like) between Maytag [or Whirlpool as its successor] and a Licensee, relating to the Licensed 

Products, and shall include Existing License Agreements and New License Agreements.” (2003 
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Agreement, § 1(i) (emphasis added).) EMI contends that the broad sweep of the “litany of 

continuations” language included in this definition meant that the Agreement covers any written 

agreement that continues a licensing relationship with the same party for the use of the same mark 

in the same product category. Whether this is so—or is at least ambiguously so—does not matter 

because we agree with the district court that reliance on this definition to determine the scope of 

EMI’s rights would be inconsistent with the changes that EMI and Whirlpool made in the 2006 

Amendment.

Resisting that conclusion, EMI points to the fact that the Amendment expressly carried 

over the meaning of “capitalized terms” such as “License Agreement” and “Existing License 

Agreement.” What the Amendment actually said is that “capitalized terms used in this 

Amendment shall have the meanings given to them in the Representation Agreement”—“[u]nless 

otherwise defined herein.” In fact, the Amendment stated quite clearly in § 7 that: “Any 

capitalized terms that continue to apply in light of the amendments made herein that are not 

defined in this Amendment shall have the same definitions set forth in the Agreement.” (2006 

Amendment, § 7 (emphasis added).) Section 7 also provided that “[t]he Agreement, in its limited 

form as amended by the Amendment, remains in effect,” and “[a]ny conflict between this 

Amendment and the Agreement shall be controlled by this Amendment.”

So what did the Amendment change? Quite a bit, as it turns out. The Amendment 

explained the parties’ intentions as follows:

Whirlpool is creating an internal licensing function that will engage in licensing 

intellectual property independent of EMI. The parties wish to amend the Agreement 

to limit EMI’s representation to the Maytag 2006 Agreements as described herein. 

Concurrent with the execution of this Amendment, Whirlpool and EMI are 

executing a separate additional Licensing Representation Agreement (“Whirlpool 

Representation Agreement”), which will allow Whirlpool, at its discretion, to use 

EMI for projects that it chooses not to conduct through its internal licensing 

function.
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(Emphasis added.) More specifically, the Amendment stated that “the Agreement shall continue 

to apply only to the Maytag 2006 Agreements and EMI shall only continue as the exclusive 

representative for the Intellectual Property under the Agreement with respect to the Maytag 2006 

License Agreements.” (Amendment, § 1.) Also, “other than with respect to the Maytag 2006 

License Agreements, Whirlpool may use Whirlpool’s internal licensing organization to develop 

and enter into new licenses without being required to compensate EMI with respect to such new 

licenses.” (Amendment § 1(b).) The parties confirmed that EMI would “continue to have the right 

to receive compensation for the Maytag 2006 License Agreements in accordance with Sections 6 

and 10 of the Agreement.” (Amendment § 3.)

These provisions unambiguously restricted the scope of the Representation Agreement to 

the “Maytag 2006 Agreements,” which were, in turn, specifically defined in the Amendment.

EMI has developed, is managing, and is being compensated for nine (9) License 

Agreements, as listed on Schedule A, which Schedule is made part of this 

Amendment (such License Agreements, including renewals, modifications, or other 

amendments to them, such as an expansion of a product line within a product 

category, are hereinafter referred to as the “Maytag 2006 License Agreements.”)

(Emphasis added.) For six of the nine Maytag 2006 License Agreements, EMI agreed that 

Whirlpool could “alter, amend, or terminate” them without being obligated to compensate EMI 

even if “such action results in the cessation of royalty payments.” For the other three Maytag 2006 

Agreements, including the Nordyne License, Whirlpool agreed to support EMI in their

development and management in the ways described in that section “for the periods specified 

therein.” (Amendment, § 6.) With respect to the Nordyne License specifically, the parties agreed

“to work together to maintain and develop the license for its current term and its renewal term.” 

(Amendment, § 6(a).) And those obligations would “survive the expiration or termination of the 

Agreement and shall continue for the current term and renewal term of the Nordyne License.” 

(Amendment, § 6(a)(iii).) These provisions were not altered by the Second Amendment between 
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EMI and Whirlpool in 2010, which extended the term and modified their revenue sharing from the 

Nordyne License.

Construing the Agreement as a whole, we find that the 2006 Amendment unambiguously 

limited the scope of the Representation Agreement, including § 10(c), to the Maytag 2006 License 

Agreements. EMI’s suggestion that the definitions of License Agreement and Maytag 2006 

License Agreements are simply “redundant” is not colorable in the context of the Agreement as a 

whole. See, e.g., Taracorp, Inc. v. NL Indus., Inc., 73 F.3d 738, 744 (7th Cir. 1996) (applying 

Illinois law) (explaining that “when parties to the same contract use such different language to 

address parallel issues . . . it is reasonable to infer that they intend this language to mean different 

things”). Consequently, we agree with the district court that EMI had no rights with respect to the 

2019 Nortek License unless it was intended to be a “renewal, modification, or other amendment” 

of the expired Nordyne/Nortek License.

To answer whether the agreement was nonetheless a renewal or modification of the prior 

agreement, the district court drew on the analysis employed in Cingular Wireless LLC v. Ahmad, 

500 F. Supp. 2d 917 (N.D. Ill. 2007). There, the issue was whether a guaranty entered into in 

connection with the agreement between Cingular and a buyer unambiguously extended to a 

subsequent agreement entered into with that same buyer. Id. at 918. Cingular argued that it did 

because the second agreement was simply a renewal or modification of the first agreement. Id. at 

919. In concluding that the second agreement was not a renewal or modification, the court found 

the guaranty itself was tied to the first agreement; the first agreement had a renewal mechanism 

that was not exercised; and the later agreement stated that it superseded all prior agreements. Id. 

at 919-20. The court found further support in the fact that the terms of the first and second 

agreements were significantly different—including, differences in the terms, pricing structure, the 
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addition of an arbitration clause, and a change in the law to govern the agreement. Id. at 920. EMI 

is right to argue that the contract language here is entirely different from the provisions at issue in 

Cingular. (EMI’s Reply, p. 9.) The decision is not, however, without illustrative value.

On its face, the 2019 Nortek License was a new agreement—unlike each of five 

Amendments of the 2002 Nordyne License. (R. 63, 64, 65, 66, 67, 68.) The 2019 Nortek License 

included an express merger and integration clause. Further, the Nordyne/Nortek License, as last 

amended, allowed for only two renewal terms; provided an express expiration date; and provided 

specifically that any continuation of the license after that expiration date “must be set forth in a 

new license agreement.” If that were not enough, comparison between the 2002 Nordyne/Nortek 

License, as amended, and the 2019 Nortek License support the conclusion that the new license 

agreement was not intended to be a “renewal, modification, or other amendment” of the expired

license. Nor was it error for the district court to consider the differences between them, including 

different compensation terms, warranty length, term of the agreement, and provisions for stricter 

oversight of the approval process.3

Taking the pleadings as true, we agree with the district court that the unambiguous 

language in the relevant agreements makes clear that EMI had no rights or obligations with respect 

to the 2019 Nortek License because its rights with respect to the Nordyne/Nortek License (one of 

the Maytag 2006 License Agreements) expired with it on December 31, 2018. Whirlpool was 

entitled to judgment on the pleadings in its favor declaring as much. That leaves EMI’s remaining 

3 The district court also considered the change in the governing law to be another significant 

difference. See Cingular, 500 F. Supp. 2d at 920 (suggesting the meaning of all terms were altered 

because they “took on the meaning and legal ramifications accorded to them under Georgia law 

rather than Illinois law”). We place no weight on this change where there is no reason to think the 

same terms would have different meanings as a result of the change in the governing law from 

Illinois to Michigan.
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assertion that the district court erred by entering judgment in Whirlpool’s favor on its counterclaim 

as well.

B.

EMI asserts a procedural error in the district court’s determination that it had resolved all 

pending claims in the case. Whirlpool was granted judgment on the pleadings declaring that EMI 

had no further rights or obligations under the Representation Agreement, including the right to 

continue collecting royalties, after December 31, 2018. EMI’s opposition to Whirlpool’s motion 

asked the district court to “enter judgment for EMI and against Whirlpool on the Amended 

Complaint claims and enter partial summary judgment in EMI’s favor and against Whirlpool on 

liability on EMI’s Counterclaim, with only the issue of damages remaining.” This would 

understandably have caused the district court to believe that the question of liability on EMI’s 

counterclaim for breach of contract was properly before it.

EMI argues on appeal, however, that its breach-of-contract claim included allegations that 

were not resolved by the district court’s decision. To be sure, EMI’s First Cause of Action alleged 

that Whirlpool had “breached the contract as discussed above, including, but not limited to,” the 

several ways alleged in Paragraph 48(a)-(f). EMI does not dispute that the first of those ways—

refusing to acknowledge EMI’s right to compensation for the “renewal and extension of the 

Nordyne agreement”—was fully litigated before the district court. Two other allegations rely 

directly on this right: acting unreasonably and without good faith in seeking to deny EMI 

compensation under that agreement; and depriving it of an opportunity to recover deferred 

compensation under that agreement. (Counterclaim, Para. 48(c), (f).) There can be no question 

that these theories were squarely decided by the district court.
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The three other allegations of breach of contract concerned Whirlpool’s completion of the 

2019 Nortek License without EMI’s involvement. (Counterclaim, Para. 48(b)-(d).) EMI argues 

on appeal that these allegations were “based on section 6(a) of the 2006 [A]mendment, separate 

and apart from EMI’s right to continue compensation after 2018.” (EMI’s Br., p. 38.) How that 

might be the case is conspicuously absent from EMI’s arguments on appeal. More importantly, 

EMI sought judgment of liability in its favor on its counterclaim without suggesting it had a 

separate yet to be resolved ground for its counterclaim. Also, although EMI had made allegations 

regarding the aborted negotiations with Whirlpool and Nortek, EMI did so to show that the 2019 

Nortek License was a renewal. (PageID 868, n.3.)

EMI faults the district court for not recognizing a breach of contract theory that it failed to 

pursue in seeking judgment of liability in its favor on its counterclaim. We find that EMI forfeited 

this argument by not raising it in the district court. See Am. Copper & Brass, Inc. v. Lake City 

Indus. Prods., Inc., 757 F.3d 540, 545 (6th Cir. 2014). Even if that were not the case, the doctrine 

of invited error would prevent EMI from complaining about the district court’s failure to do so. 

See Smith v. General Motors LLC, 988 F.3d 873, 879-80 (6th Cir. 2001) (“invited error prevents 

a party from inducing a court to follow a course of conduct” and then later relying on the error to 

set aside the consequences of that error (citation omitted)).

* * *

The district court’s judgment is AFFIRMED.