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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

PREMIER DEALER SERVICES, INC.,

Plaintiff, Case No. 2:18-cv-735

Judge Edmund A. Sargus, Jr.

v. Magistrate Judge Chelsey M. Vascura

ALLEGIANCE ADMINISTRATORS, 

LLC et al.,

Defendants. 

OPINION AND ORDER

This copyright action came before the Court for a bench trial to determine copyright 

infringement damages on May 31, 2022, and June 1, 2022. The Court now sets forth its findings 

of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a).

I. BACKGROUND

Plaintiff Premier Dealer Services, Inc. (“Premier”) and Defendant Allegiance 

Administrators, LLC (“Allegiance”) compete as administrators of automobile service contracts

and loyalty programs. Automobile dealerships offer loyalty programs to encourage customers to

return to that dealership for maintenance in exchange for a discounted rate. Allegiance and Premier 

administer loyalty programs by enrolling customers and handling customer claims in the programs. 

Tricor Automotive Group (“Tricor”), which is not a party to this case, was the obligor in 

all service contracts and loyalty programs relevant to this lawsuit. Tricor offers Canadian 

automobile dealerships various service contracts and loyalty programs that those dealerships sell 

to customers buying new and used vehicles. From 2001 to May 29, 2018, Premier served as 

Tricor’s administrator of service contracts and loyalty programs. One program is called the 

“Lifetime Powertrain Loyalty Program (LPLP).” To sign up for the LPLP, customers or Premier 

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representatives completed an administrative form called the LPLP Certificate—which is the 

subject of Premier’s copyright infringement claim. Premier has two copyrights registered with the 

U.S. Copyrights Office for its LPLP Certificates. 

After Premier stopped working with Tricor in 2018, Allegiance began administering 

service contracts and loyalty programs for Tricor. Tricor sent Allegiance the Canadian LPLP 

Certificates that Premier created for Tricor’s use and represented that the LPLP Certificates were 

Tricor’s. Allegiance made minor changes to the LPLP Certificates. The language and appearance 

of the documents, however, remained nearly identical to the LPLP Certificates Premier created. 

Premier filed suit against Allegiance in the Franklin County Court of Common Pleas on 

June 4, 2018, alleging copyright infringement of its LPLP Certificates, misappropriation of trade 

secrets, and violations of Ohio tort law. Allegiance removed the case to federal court. On summary 

judgment, this Court held Allegiance liable for copyright infringement of Premier’s LPLP 

Certificates. (Op. & Order, ECF No. 128.) The Court held a bench trial to determine Premier’s 

copyright infringement damages. (Minute Entries, ECF Nos. 227, 228.) 

II. LAW

The purpose of copyright infringement damages is “to compensate the copyright owner for 

losses from the infringement, and...prevent the infringer from unfairly benefitting from a wrongful 

act.” Cotter v. Christus Gardens, Inc., 238 F.3d 420 (6th Cir. 2000) (quoting H.R.Rep. No. 94-

1476, at 161 (1976), reprinted in 17 U.S.C.A. § 504, at 146 (West 1996)). In general, copyright 

infringers are liable “for either ... (1) the copyright owner’s actual damages and any additional 

profits of the infringer ... or (2) statutory damages.” 17 U.S.C. § 504(a). The pertinent statute on 

proving actual damages and profits for a direct copyright infringement is 17 U.S.C. § 504(b), 

which provides:

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The copyright owner is entitled to recover the actual damages suffered by him or 

her as a result of the infringement, and any profits of the infringer that are 

attributable to the infringement and are not taken into account in computing the 

actual damages. In establishing the infringer’s profits, the copyright owner is 

required to present proof only of the infringer's gross revenue, and the infringer is 

required to prove his or her deductible expenses and the elements of profit 

attributable to factors other than the copyrighted work.

17 U.S.C. § 504(b). In the alternative, “the copyright owner may elect, at any time before final 

judgment is rendered, to recover, instead of actual damages and profits, an award of statutory 

damages for all infringements involved in the action.” 17 U.S.C. § 504(c)(1). 

In this case, Plaintiff Premier seeks only its lost profits, also called disgorgement profits. 

This is the amount of profit Allegiance earned from using the LPLP Certificate. Premier must 

show its lost profits by a preponderance of the evidence. Smith v. Thomas, 911 F.3d 378, 381 (6th 

Cir. 2018).

Section 504(b) of the Copyright Act provides a two-step calculation for lost profits. First, 

the copyright owner must present proof of “the infringer’s gross revenue” that is “reasonably 

related” to the infringement. ECIMOS, 971 F.3d at 635; Navarro, 515 F. Supp. 3d 718, 764–65 

(S.D. Ohio 2021) (describing the Sixth Circuit’s reasonable relationship standard as “something 

less than causation,” “generous,” and “relatively lax”). The burden then shifts to the infringer to 

show (1) deductible expenses, and (2) the elements of revenue attributable to factors other than the 

copyrighted work. Balsley v. LFP, Inc., 691 F.3d 747, 768–69 (6th Cir. 2012). Copyright infringers 

must “prove their deductible expenses with specificity.” Singletary Constr., LLC v. Reda Home

Builders, Inc., 815 F. App’x 892, 899–900 (6th Cir. 2020). If the infringer does not meet its burden, 

the gross revenue figure is left to stand as the complete measure of lost profit damages. Balsley, 

691, F.3d at 769. 

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III. FINDINGS OF FACT AND CONCLUSIONS OF LAW

At trial, the Court heard testimony from the following Premier witnesses: Lisle 

Greenweller, President of Premier Dealer Services; Nicholas Biagoli, expert witness; Christopher 

Bokhart, rebuttal expert witness. The Court heard testimony from the following Allegiance 

witnesses: Michelle DeFouw, CEO and Executive Vice President for Dimension Services and 

former Chief of Staff for Allegiance; Nicole Blackburn Tiell, Vice President of Administration at 

Allegiance; Douglas Terry, expert witness; Lyle King, expert witness; Dawn Murphy, Chief 

Operating Officer at Allegiance. The parties stipulated to the admission of the expert reports of 

Nicholas Biagoli, Christopher Bokhart, Douglas Terry, and Lyle King. The parties further 

stipulated to admitting the deposition transcript of Dawn Murphy, Allegiance’s Federal Civil Rule 

of Procedure 30(b)(6) witness. The following exhibits were admitted into evidence at trial: Joint 

Exhibits 106, 122, 134, 138, 139, 140, 148, 150; Plaintiff’s Exhibits 143, 214–218; Defendants’ 

Exhibits 141, 146, 153, 155, 159, 164. 

The evidence in this case consists of the sworn testimony of the witnesses who testified at 

trial, the sworn deposition testimony of Dawn Murphy, the expert reports, stipulated facts in the 

Final Pretrial Order, and the exhibits admitted into evidence. The Court will make inferences and 

deductions from the evidence based on reason and common sense. As the finder of fact in this 

case, the Court is the sole judge of the credibility of the witnesses and the weight their testimony 

deserves. The Court may be guided by the appearance and conduct of a witness, or by the way a 

witness testifies, or by the character of testimony given, or by evidence to the contrary of testimony 

given.

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A. Premier Presented Proof of Allegiance’s Gross Revenue Attributable to Infringement

The copyright owner must first present proof of “the infringer’s gross revenue” that is 

“reasonably related” to the infringement. ECIMOS, 971 F.3d at 635; Navarro, 515 F. Supp. 3d 

718, 764–65 (S.D. Ohio 2021). Premier meets its burden by proving Allegiance’s gross revenue 

from the LPLP was $1,169,851 US dollars1 between April 1, 2018, and October 31, 2021, and 

$1,279,280 US dollars between April 1, 2018, and April 30, 2022.2

In pretrial briefing and at trial, Allegiance contested whether the LPLP gross revenue is 

“reasonably related” to the Allegiance’s infringement of the LPLP Certificate. Allegiance’s 

witnesses testified that there is no evidence that the gross revenue was earned because of the LPLP 

Certificates. Allegiance contends the revenue stems from administering the LPLP itself, not the 

form used to enroll customers. This position is inconsistent with Sixth Circuit law.

The Sixth Circuit has explained that while the gross revenue must be reasonably related to 

the copyrighted material, there need not be a direct causal connection. In Balsley v. LFP, Inc., the 

plaintiff sued a magazine for publishing a photograph of her without her permission. 691 F.3d 747, 

769 (6th Cir. 2012). The magazine earned $1,148,000 in gross revenue for that issue of the 

magazine. Id. at 770. The Balsley Court held that “the relationship of the infringement to that gross 

revenue number was demonstrated by the parties’ stipulation that photograph was published in” 

the issue. Id. at 770. The Court rejected the argument that the plaintiff had to prove the magazine 

profited because of the photograph or prove which portions of the revenue were attributable to the 

photograph. Id. at 769. As stated explicitly in the statute, “[p]laintiffs have only one requirement: 

to prove Defendant’s gross revenue.” Id. at 769.

1 All values in this opinion are in U.S. Dollars (as opposed to Canadian Dollars) unless otherwise indicated. 2 Premier and Allegiance used the time period April 1, 2018 to October 31, 2021 to calculate damages but Premier is 

entitled to damages from April 1, 2018 to April 30, 2022. The Parties used the first time period because they needed 

time to calculate damages and dispute the calculations before trial. 

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Just as the gross revenue from the magazine issue in Balsley had a reasonable relationship 

to the photograph in the magazine issue, the gross revenue from the LPLP has a reasonable 

relationship to the LPLP Certificate used to administer the program. In both cases, the copyrighted 

material was one small part of the final product. As in Balsley, Premier does not have to prove that 

Allegiance received revenue from the LPLP because of the LPLP Certificate. Premier also does 

not have to prove which portions of Allegiance’s revenue, if any, are attributable to the LPLP 

Certificate. Premier merely has to show that the revenue is reasonably related to or stems from the 

LPLP. The reasonable relationship test “ensures only that a plaintiff is not placing before the jury 

revenue figures bearing absolutely no relationship to the infringing activity.” Navarro v. Procter

& Gamble Co., 515 F. Supp. 3d 718, 765 (S.D. Ohio 2021).

Furthermore, the gross revenue is reasonably related even though the LPLP Certificate was

not part of the final product sold––the LPLP. See ECIMOS, LLC v. Carrier Corp., 971 F.3d 616, 

635 (6th Cir. 2020) (finding a reasonable relationship between the revenue from a final product 

and infringing computer code in a quality control machine used to make the final product); 

Navarro v. Procter & Gamble Co., 515 F. Supp. 3d 718, 765 (S.D. Ohio 2021) (finding the same 

where the infringing photograph was on the product’s external packaging rather than on the 

product itself). 

Premier meets its burden. It proved that Allegiance’s gross revenue reasonably related to 

the infringement is the revenue from the LPLP––$1,169,851 dollars between April 1, 2018, and 

October 31, 2021, and $1,279,280 dollars between April 1, 2018, and April 30, 2022. Allegiance 

does not dispute these values, only their relationship to the infringement. The burden now shifts to 

Allegiance.

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B. Allegiance Proved Some Gross Revenue is Not Attributable to Infringement

In the second step of the lost-profit calculation, Allegiance has the opportunity to show

deductible expenses or elements of revenue attributable to factors other than the copyrighted work. 

17 U.S.C. § 504(b); Balsley v. LFP, Inc., 691 F.3d 747, 768–69 (6th Cir. 2012). Allegiance must 

prove deductible expenses by a preponderance of the evidence. Id. If Allegiance does not meet its

burden, Premier is entitled to recover the entire gross revenue amount.

Allegiance contends that it has $788,206 in expenses between April 1, 2018, and October 

31, 2021, that should be deducted from the gross revenue amount, $1,169,851. Allegiance does 

not track expenses separately for each program it administers and consequently was unable to 

present an exact figure of LPLP expenses. Instead, Allegiance’s expert, Douglas Terry, estimated 

the LPLP expenses for the purpose this lawsuit. 

To calculate LPLP expenses, Terry first determined the amount of Allegiance’s total 

expenses between April 1, 2018, and October 31, 2021. He confirmed the expense amounts 

Allegiance provided against the auditor’s report and found the figures matched. Then, Terry 

worked with Allegiance Chief Financial Officer Brian Leslie to identify expense categories that 

were related to LPLP. Although Allegiance does not track expenses separately for each program, 

it tracks categories of expenses (e.g. salaries and benefits, professional services, rent expense, etc.) 

across all programs and operations. Allegiance represented that the following categories of 

expenses supported the LPLP: Salaries and Benefits, Tricor Automotive Group Management 

Expenses (“TAG”), Facility, Communications, General and Administrative, Insurance, and Audit 

and Tax Fees. (See Trial Ex. 138.) The sum of these categories of expenses is $24,150,842.

Next, Terry determined that LPLP revenue constitutes 3.3% of Allegiance’s total revenue. 

He divided the LPLP revenue, $1,169,851, from the total revenue, $35,365,743, to reach 3.3%. 

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Terry applied the 3.3% to Allegiance’s expenses potentially attributable to the LPLP, $24,150,842, 

which yields $798,877. 

Terry then considered that Allegiance received a foreign-currency-exchange gain of 

$51,854 from Allegiance’s Canadian Tricor business during the applicable time period. He 

calculated that the LPLP is 20.6% of the Tricor business. Therefore, 20.6% of the exchange gain, 

$10,671, is attributable to LPLP revenue. Subtracting $10,671 from $798,877 equals $788,206 in 

LPLP expenses. 

To summarize, Terry submits that, of the $1,169,851 in LPLP gross revenue between April 

1, 2018, and October 31, 2021, $788,206 is deductible expenses and the remaining $381,645 is 

profit. Based on Terry’s calculations, Allegiance contends Premier is entitled to a lost profit 

damages amount of $381,645. (See Trial Ex. 146.)

Premier challenges Terry’s method of calculation and input variables, arguing: (1) using 

the absorption approach is an improper method of calculating expenses; and (2) the LPLP expenses

amount, $788,206, is artificially high because Terry included expense categories that do not 

support the LPLP.

1. Method of Calculation

Allegiance and Premier disagree whether to include Allegiance’s general overhead costs 

in its deductible expenses. Allegiance’s expert, Douglas Terry, used the absorption approach, 

which includes general overhead costs. Premier’s expert, Christopher Bokhart, advocates for the 

incremental approach, which does not include all general overhead costs. Both are recognized 

methods of estimating overhead expense deductions. See Practical Law Intellectual Prop. & 

Technology, Copyright Litigation: Monetary Relief, (Reuters), p. 11. 

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a. Absorption Approach

Allegiance’s proposed method, the full absorption approach, “allows deduction of a portion 

of any overhead expense related to the infringement, even if the expense did not vary as a result 

of the infringing good or service, if the infringer both: (1) demonstrates that the expense 

contributed to production of the infringing product, and (2) provides the court with fair and 

reasonable method for calculating the amount of the expense category that should be deducted.”

Id. The Second and Ninth Circuits adopted this approach in copyright cases. See Hamil America 

Inc. v. GFI, 193 F.3d 92 (2d Cir. 1999); Frank Music Corp. v. Metro-Goldwyn-Mayer Corp., 772

F.2d 505, 516 (9th Cir. 1985).

Applying the absorption approach to this case, the percentage of LPLP expenses out of

Allegiance’s total expenses is the percentage of LPLP revenue out of Allegiance’s total revenue. 

In other words, because 3.3% of Allegiance’s revenue comes from the LPLP, it is reasonable to

estimate that 3.3% of Allegiance’s expenses come from the LPLP. The general idea is the more 

revenue a program generates, the more expensive it is to operate.

Michelle DeFouw’s testimony supports this approach. DeFouw, a former Allegiance Chief 

of Staff, testified that in determining the administrative fee to charge for each program, Allegiance 

considers the complexity of the program, the length of the program, and the costs of administering 

the program. Thus, the greater the expenses to administer the program, the greater the 

administrative fee and overall revenue of a program.

b. Incremental Approach

Premier’s proposed method, the incremental approach, “recognizes that it does not cost as 

much to produce unit N + 1 if the first N (or fewer) units produced already have paid the fixed 

costs. Thus, fixed costs—those costs which do not vary with increases in production, such as 

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management salaries, property taxes and insurance—are excluded when determining profits.” 

Paper Converting Machine Co. v. Magna-Graphics Corp., 745 F.2d 11 (Fed. Cir. 1984); see also 

Taylor v. Meirick, 712 F.2d 1112, 1121 (7th Cir. 1983) (approving use of the incremental approach 

because “[c]osts that would be incurred anyway should not be subtracted, because by definition 

they cannot be avoided by curtailing the profit-making activity.”). 

Premier’s expert, Bokhart, asserts that Terry’s 3.3% calculation is based on an unsupported 

assumption that the amount of revenue and expenses for various programs are the same. He points 

to Allegiance COO Dawn Murphy’s testimony that some Allegiance programs are more profitable 

than others and some require more expenses than others. This argument is not persuasive because, 

as Terry and Murphy explained, the more profitable programs tend to cost more to operate as to 

claims and processing. In theory, the proportion is consistent across programs with different profits 

or expenses.

Bokhart also testified that growth rates for different programs changed each year and a 

more accurate calculation would have broken down the expenses by year. Terry, however, stated

that there would not be a meaningful difference between an incremental approach that broke down 

expenses by year, and the absorption approach which uses averages over the year. The expenses 

of starting the LPLP would have been higher at the initial period and lower at the end of the period. 

The discrepancies would have balanced out over the four-year period. 

The Parties do not cite to, and this Court has not found, Sixth Circuit cases endorsing one 

method over another. The Court believes it is logical to use the absorption approach. For example,

although building rent did not increase with the addition of the LPLP, it is a necessary cost of 

administering the LPLP. It is an expense that contributes to the production of the LPLP and should 

be considered a deductible expense. 

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2. Expenses Attributable to the LPLP

Premier contends Allegiance has not proven any deductible expenses by a preponderance 

of the evidence and therefore the Court should award the full amount of the revenue. If the Court 

does not award the full revenue, Premier argues that Allegiance artificially inflated its deductible 

expenses by including categories of expenses that are unrelated to the LPLP. 

Allegiance submits that its total expenses potentially related to LPLP from April 1, 2018, 

to October 31, 2021, were $24,150,842, and consisted of the following expense categories: Salaries 

and Benefits, TAG, Facility, Communications, General and Administrative, Insurance, and Audit 

and Tax Fees. (See Trial Ex. 138.) To calculate expenses that should be attributed to the LPLP, 

Allegiance’s expert, Douglas Terry, applied the percentage, 3.3%, to the total expenses within 

these categories—$24,150,842. Applying 3.3% to $24,150,842 yields $798,877 in expenses 

attributable to the LPLP. 

Premier attacks the following expense categories: Salaries and Benefits, Facility, 

Professional Services, TAG Management Fees, Depreciation. The Court acknowledges that 

Allegiance decided which categories should be included; Terry did not determine the categories 

of expenses related to LPLP himself.

a. Salaries and Benefits Relating to Scioto Subsidiary

Premier contends that Allegiance should not have included all its salaries and benefits 

expenses in the total expenses related to LPLP because some of its employees work for Scioto. 

Scioto is a wholly owned subsidiary of Allegiance that provides obligor duties to Allegiance. Dawn 

Murphy testified that “minimal people” from Allegiance complete filings for Scioto and there is 

no revenue or expenses from Scioto. Premier did not show sufficient evidence to rebut her 

testimony. The Court finds her testimony credible, and on balance, determines that Allegiance 

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proved by a preponderance of the evidence that 3.3% of its employee’s salaries and benefits are a 

deductible expense.

b. Facility Rental

In its post-trial brief, Premier argues that the facility rental costs should not be included in 

expenses attributable to LPLP because there are other companies, such as Scioto, operating in 

those facilities. However, Premier cites to deposition transcripts that were not entered into 

evidence at trial and are not part of the trial record. Evidence relating to facility expenses came 

solely from Michelle DeFouw, who testified that there are no other companies operating in the 

same buildings. Thus, Allegiance proved by a preponderance of the evidence that 3.3% of its 

facility rent and costs is a deductible expense.

c. Professional Services

The Professional Services category of expenses includes actuarial consulting and human 

resources. Premier asserts that Professional Services should not be included in the expenses related

to the LPLP but did not present compelling evidence in support. Dawn Murphy, Allegiance’s Chief 

Operating Officer, testified that actuarial and HR support every program, including LPLP. 

Actuarial and human resources also helped onboard the LPLP from May 2018 to December 2018.

Therefore, the Professional Services category of expenses are properly included in deductible 

expenses. 

d. TAG Management Fees

The TAG Management fee is a flat fee of $400,000 that Allegiance pays annually for 

management consulting and administrative services. The TAG Management team includes Brian 

Leslie, Allegiance Chief Financial Officer. Mr. Leslie’s salary is included in the TAG Management 

fees.

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Premier contends that there is no evidence that the TAG fee supported the LPLP. 

According to former Allegiance Chief of Staff Michelle Defouw, however, the TAG team provides 

Allegiance with Canadian tax structure guidance, which is especially used for the LPLP. Defouw 

testified that the LPLP has a heavy reliance on the TAG program because it operates in Canada. 

From this testimony, Allegiance proved by the preponderance of evidence that the TAG 

Management fees is supports the LPLP and is therefore a deductible expense.

e. Depreciation

The Depreciation Expense category is the depreciation cost of servers, computers, and 

other assets used to administer the programs. Plaintiff argues that this is not attributable to the 

LPLP because the Depreciation Expense increased from 2018 to 2021 but the LPLP revenue 

decreased. Dawn Murphy testified that computers and servers service the LPLP and therefore the 

cost is attributable to it. There was no other evidence presented that addressed Depreciation 

Expenses. Allegiance did not sufficiently flesh out the relationship between the depreciation 

expenses and the LPLP. The Court is not convinced the increasing depreciation expense is 

attributable to LPLP. Because Allegiance did not prove by a preponderance of the evidence that 

Depreciation Expenses are a deductible expense, that category will not be included in the 

deductible expenses. 

From the $24,150,842 in total Allegiance expenses potentially related to the LPLP, the 

Depreciation Expense category, $620,906, is subtracted from that amount for a new total of 

$23,529,936 in expenses related to LPLP. Multiplying that number by 3.3% equals $776,488. 

Then, subtracting the $10,671 in currency exchange difference, the total expense amount equals

$765,817. Therefore, from the $1,169,851 in LPLP revenue between April 1, 2018, and October 

31, 2021, $765,817 is deductible expenses and $404,034 is profit.

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C. Additional Profit from October 31, 2021 to April 30, 2022

The Parties calculated damages from April 1, 2018 to October 31, 2021, instead of the 

proper end date, April 30, 2022, to give the experts time to rebut each other’s proposed calculations 

and conduct further discovery if necessary. As stated above, the amount of damages that 

Allegiance is entitled to from April 2018 to October 2021 is $404,034, which equals the total 

revenue, $1,169,851, minus the expenses, $765,817. These numbers yield a ratio of 34% profit to 

66% expenses.

To calculate the remaining profit Premier is entitled to—the LPLP profit Allegiance 

received from October 2021 through April 2022—Allegiance proposes that the Court apply the 

profit margin to Allegiance’s applicable revenue from October 2021 through April 2022. 

Allegiance received an additional $109,429 in revenue during that time. 34% of $109,429 equals 

$37,206. Therefore, Premier is entitled to an additional $37,206 on top of the $404,034 in profit 

from April 2018 to October 2021. 

In sum, Premier is entitled to receive $441,239 in lost profits for Allegiance’s copyright 

infringement of the LPLP Certificates. 

IV. Conclusion

For the foregoing reasons, it is hereby ORDERED that Plaintiff shall recover from 

Defendants $441,239.00 in copyright infringement damages. 

IT IS SO ORDERED.

8/29/2022 s/Edmund A. Sargus, Jr. 

DATE EDMUND A. SARGUS, JR.

 UNITED STATES DISTRICT JUDGE

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