used today.” (quotation omitted)). Because “quantum meruit is an action at law, numerous
federal courts have allowed actions for quantum meruit to be tried before a jury.” /d. (listing
cases); see Henderson Bridge Co. v. McGrath, 134 U.S. 260, 275-76 (1890) (affirming jury
instructions given for quantum meruit claim brought at law).

Based on the historical origins of restitution and unjust enrichment, the Court holds that
in the eighteenth century prior to the merger of the courts of law and equity, a suit such as this
one where Polska seeks recovery for services that it supplied to EchoStar under circumstances
constituting unjust enrichment was an action under common law. In any event, the Court is
mindful that this factor is not determinative as to whether a right to jury trial attaches. See id. at
444 (“[W]hen th[e] right [to a jury trial] is at stake the Supreme Court does not use an
exclusively historical approach to decide whether a claim is equitable.”)

With regard to the second factor, the Court must determine whether the remedy Polska
seeks is legal or equitable. EchoStar relies on Roberts v. Sears Roebuck & Co., 617 F.2d 460,
465 (7th Cir. 1980), for the bright-line rule that “[rJestitution for the disgorgement of unjust
enrichment is an equitable remedy with no right to a trial by jury.” Alas, however, in First
National Bank of Waukesha v. Warren, the Seventh Circuit rejected Roberts’ proclamation as
mere obiter dictum:

The question in [Roberts] . .. was whether the plaintiff, having already had a jury

trial and recovered damages, could have a second go-round on “equitable”

theories; the court held that one bite at the apple is enough, and whether there

should have been a jury trial in an equitable action (had there been one) was

irrelevant in Roberts.

796 F.2d 999, 1000 (7th Cir. 1986). The First National Bank court noted that “[r]emedies
known as ‘restitution’ were available in courts of law and equity alike before their merger, and

terms such as ‘restitution’ and ‘unjust enrichment’ have slowly changed from distinctive forms

5


Conclusion
For the reasons set forth above, the Court denies (1) EchoStar’s Motion to Strike Polska’s
Unjust Enrichment Claim [doc. no. 192-1] and (2) EchoStar’s Motion, in the Alternative, for a
Judicial Determination of Polska’s Unjust Enrichment Claim and for a Separate Trial as to

Unjust Enrichment Relief [doc. no. 192-2}.

SO ORDERED ENTERED: YW gf 0s

KE (Ciel lf. Lexy,
FION. RONALD A. 2 Re
United States Judge

ja



Such is the case here, where Polska seeks money for its own coffers, i.e., Polska wants
EchoStar to disgorge profits made from the sale of Polska’s programming to new subscribers
during the wind-down period. Because Polska is not acting altruistically on behalf of a third
party outside of these proceedings, the characterization of disgorgement based on unjust
enrichment as an equitable action does not control. Thus, the Court holds that Polska seeks
legal, rather than equitable, relief.

This provides a fitting segue to the third factor, whether this action involves a matter of a
private or public right. “When Congress creates new statutory ‘public rights’ it may assign their
adjudication to an administrative agency with which a jury trial would be incompatible, without
violating the Seventh Amendment’s injunction that jury trial is to be ‘preserved’ in ‘suits at
common law.” Atlas Roofing Co., Inc. v. Occupational Safety & Health Review Comm'n, 430
U.S. 442, 443 (1977). If the right at issue is a private right that involves “the liability of one
individual to another under the law as defined,” then a jury trial right attaches. See Crowell v.
Benson, 285 U.S. 22, 51 (1932). If the right at issue is a public right that involves disputes
“between the government and persons subject to its authority in connection with the performance
of the constitutional functions of the executive or legislative departments,” then a jury trial right
does not attach. See id. at 50.

The instant case does not involve an assignment by Congress of the resolution of the
unjust enrichment claim to a non-Article ITI adjudicative body. The parties agree that a private
right is at stake here. In other words, this case involves the liability of one corporation to
another. Accordingly, analysis of the third factor does not sway the Court from holding that

Polska has a right to a jury trial as to its unjust enrichment claim.


of action to measures of damages available in actions of all sorts.” Jd. “The evolution of the
legal terms, coupled with the merger of the court systems, makes it difficult to say when a
request for ‘restitution’ . . . is distinctively legal and when it is distinctively equitable-if these
distinctions any longer have meaning for remedies measured solely in money.” Id.

The Seventh Circuit in Reich v, Continental Casualty Co. has stated that “restitution
straddles th[e] divide” between legal and equitable relief and that “[rJestitution is merely not an
exclusively equitable remedy like an injunction.” 33 F.3d at 756 (emphasis original). The Reich
court interpreted the jurisprudence of the Supreme Court as holding “that restitution, in contrast
to damages, is a remedy commonly ordered in equity cases and therefore an equitable remedy in
a sense in which damages, though occasionally awarded in equity cases, are not.” /d.
(interpreting Chauffeurs, Teamsters & Helpers, Local No. 391, 494 U.S. at 570, Tull, 481 U.S. at
424). Therefore, the Reich court concluded that “restitution is a legal remedy when ordered in a
case at law and an equitable remedy . . . when ordered in an equity case.” Id.

So, is the instant case before the Court a case at law or an equity case? In this regard, the
Court finds the First National Bank opinion enlightening. That court, in rejecting Roberts’
bright-line rule, explained that the Roberts court mistakenly relied on two cases, S.EC. v.
Commonwealth Chemical Securities, 574 F.2d 90, 94-97 (2d Cir. 1978), and S.E.C. v. Asset
Management Corp., 456 F. Supp. 998, 999-1000 (S.D. Ind. 1978). First Nat'l Bank, 796 F.2d at
1000. The First National Bank court stated that in those two cases, where a public agency
requested an order to compel the defendant to disgorge money and pay a victim, who was not a
party to the litigation, the relief sought was equitable because the “agency seeks no money for
itself.” Jd. However, “[tJhe characterization of these actions as ‘equitable’ does not control

when as here the plaintiff seeks money for its own coffers.” Id.

6


trial in this case will lessen the delay, costs, and inconvenience to the parties, their witnesses,
and the Court, and this is precisely the reason why separate cases are the exception and not the
norm. Asa whole, the Court holds that bifurcating the trial is unlikely to save judicial resources.

Second, as Polska has pointed out, EchoStar does not explain how it will be prejudiced
by a single trial combining the breach of contract and unjust enrichment claims, and it is
EchoStar’s burden to establish that bifurcation is proper. EchoStar merely provides rules of law
regarding prejudice and confusion, but it fails to impart to the Court why those rules apply in the
instant case. This is not a complicated case with multiple defendants where prejudice based on
confusion is an issue because the jury is required to figure out “who did what to whom and for
what reason.” Bailey v. N. Trust Co., 196 F.R.D. 513, 518 (N.D. II. 2000) (quotation omitted).
In addition, EchoStar could not possibly argue that a separate jury trial is required each and
every time a jury is faced with an alternative theory of recovery. The Court is satisfied that the
parties are quite capable of crafting jury instructions that clearly explain the circumstance in
which the jury will reach the unjust enrichment claim.

Third, the uncertainty that EchoStar, and the Court in turn, might obtain some economy
in expenses and resources if separate trials were ordered does not outweigh the prejudice to
Polska from the considerable delay that will likely result if the Court orders two separate trials
with two separate juries--especially in light of the Court’s trial calendar. Thus, the balance of
equities does not favor bifurcation. Accordingly, the Court denies EchoStar’s motion for a

separate trial.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
TELEWIZJA POLSKA USA, INC.,
an Illinois corporation,
Plaintiff,
Judge Ronald A. Guzman
Vv.

02 C 3293
ECHOSTAR SATELLITE CORPORATION,
a Colorado corporation,

Defendant.

weer YS SY

MEMORANDUM OPINION AND ORDER

Before the Court is defendant EchoStar Satellite Corporation’s (“EchoStar”) motion to
strike plaintiff Telewizja Polska USA, Inc.’s (“Polska”) unjust enrichment claim (“Count IT”),
for a judicial (as opposed to jury) determination of Polska’s unjust enrichment claim and for a
separate trial on unjust enrichment remedies. For the following reasons, the Court denies

EchoStar’s motion in its entirety.

Background

The Court assumes familiarity with the facts of this case. The facts have been provided
in the Court’s September 3, 2004 Memorandum Opinion and Order. Telewizja Polska USA, Inc.

v, EchoStar Satellite Corp., No. 02 C 3293, 2004 WL 2005808, at *1-2 (N.D. Ill. Sept. 3, 2004).

Discussion
1. Motion to Strike Polska’s Unjust Enrichment Claim
First, EchoStar moves to strike Polska’s unjust enrichment claim. EchoStar filed this

motion after the Court, over EchoStar’s opposition, granted Polska leave to file its Third


IIL. Motion for Separate Trial on Unjust Enrichment Claim

Lastly, anticipating that the Court might deny its motion to strike the unjust enrichment
claim and motion for judicial determination of that claim, EchoStar moves for separate trials as
to liability and damages. The motion is governed by Rule 42(b), which allows the separate trial
of any issue when the separation would be “in furtherance of convenience or to avoid prejudice,
or when separate trials will be conducive to expedition and economy.” FED. R. Civ. P. 42(b).
“Only one of these criteria--avoidance of prejudice or judicial economy--need be met before a
court can order separation.” Houseman vy, U.S. Aviation Underwriters, 171 F.3d 1117, 1121 (7th
Cir. 1999). “Next, the court must be satisfied that the decision to bifurcate does not unfairly
prejudice the non-moving party.” /d, “[B]ecause bifurcation risks additional delay, it has
remained the exception and not the rule.” A.L. Hansen Mfg. Co. v. Bauer Prods., No. 03 C 3642,
2004 WL 1125911, at *2 (N.D. Ill. May 18, 2004). “The burden is on the moving party to show
that bifurcation is proper.” Id.

EchoStar argues that judicial economy requires bifurcation of the breach of contract and
unjust enrichment remedy issues because a jury finding in EchoStar’s favor on the breach of
contract claim will obviate the need for the adjudication of the remedy for unjust enrichment.
Further, EchoStar opines that bifurcation is desirable because then the jury will not need to hear
evidence regarding revenues and profits in support of the unjust enrichment claim. Although the
Court appreciates EchoStar’s sensitivity to the waste of judicial resources, it rejects these
arguments. The Court does not envision that Polska’s proof of its unjust enrichment claim or
damages flowing therefrom will require substantial time during the trial in comparison to the
entire length of the trial. Revenues and profits from the sale of new subscriptions during the

wind-down period should not be so difficult to prove that a separate trial is required. A single

8


remedy historically and today dispensed in law and equity proceedings alike.”! Reich v. Cont’l
Cas. Co., 33 F.3d 754, 755 (7th Cir. 1994); see Medtronic, Inc. v. Intermedics, Inc., 725 F.2d
440, 443 (7th Cir. 1984) (“The origins of unjust enrichment are both legal and equitable.”). This
is due to the fact that “[rJestitution based upon unjust enrichment cuts across many branches of
the law, including contract, tort, and fiduciary relationship.” See 1 PALMER, THE LAW OF
RESTITUTION § 1.1 at p. 2 (1978).

In 1760, the King’s Bench, a court of law, in Moses v. MacFerlan, recognized that a
plaintiff could sue for an action of assumpsit not merely based on an express or implied contract
but also when fairness demanded that the plaintiff recover from the defendant. 97 Eng. Rep. 676
(K.B. 1760). “Claims for quasi-contract arose and developed under the common law writ of
assumpsit and, as a result, were historically brought in the courts of law.” Fischer Imaging
Corp. v. Gen. Elec. Co., 187 F.3d 1165, 1172 (10th Cir. 1999). Further, “[t]he common count[]
of quantum meruit . . . allowed recovery for services . . . that had been supplied by the plaintiff
to the defendant under circumstances constituting unjust enrichment.” Colleen P. Murphy,
Misclassifying Monetary Restitution, 55 SMU L. REV. 1577, 1600 (2002) (citing LORD GOFF OF
CHIEVELEY & GARETH JONES, THE LAW OF RESTITUTION 3 (5th ed. 1998)); see GSGSB, Inc. v.
New York Yankees, No. 91 Civ. 1803 (SWK), 1995 WL 507246, at *4 (S.D.N.Y. Aug. 28, 1995)

(“Quantum meruit . . . [was] used at common law by pleaders in suits in assumpsit, and [is] still

'sDefining the term restitution and explaining its relationship to unjust enrichment is a
complex question which many scholars have addressed.” Bd. of Trs., Sheet Metal Workers’ Nat 1
Pension Fund y. Ill. Range, Inc., 71 F. Supp. 2d 864, 871 n.4 (N.D. Ill. 1999). “To date there is no
one precise definition for restitution, however, it is commonly accepted that unjust enrichment is
the basis of restitution claims.” Jd. (quotations omitted). “Consequently, when referring to claims,
causes of action, or remedies, the courts use the terms restitution and unjust enrichment
interchangeably.” Id.


declared by the Seventh Amendment to the Constitution . . . shall be preserved to the parties
inviolate.” FED. R. Clv. P. 38(a). Once a plaintiff demands a jury, “[t]he trial of all issues so
demanded shall be by jury, unless . . . the court upon motion or of its own initiative finds that a
right of trial by jury of some or all of those issues does not exist under the Constitution or
statutes of the United States.” FED. R. Civ. P. 39(a). The Seventh Amendment restricts the right
to a jury trial to “suits at common law, where the value in controversy shall exceed twenty
dollars.” U.S. ConsT., amend. VII.

To determine whether a particular litigant is entitled to a jury trial, the Court must
examine three factors. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 41 (1989). “First, we
compare the statutory action to 18th-century actions brought in the courts of England prior to the
merger of the courts of law and equity. Second, we examine the remedy sought and determine
whether it is legal or equitable in nature.” Tull v. United States, 481 US. 412, 417 (1987)
(citations omitted). “The second stage of this analysis is more important than the first.”
Granfinanciera, 492 U.S. at 47-48. Indeed, there are some who advocate abolishing the
common law test altogether. See Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494
U.S. 558, 574 (1990) (Brennan, J., concurring) (“I believe that our insistence that the jury trial
right hinges in part on a comparison of the substantive right at issue to forms of action used in
English courts 200 years ago needlessly convolutes our Seventh Amendment jurisprudence.”).
“If, on balance, these two factors indicate that a party is entitled to a jury trial under the Seventh
Amendment, we must decide whether Congress may assign and has assigned resolution of the
relevant claim to a non-Article III adjudicative body that does not use a jury as factfinder.”
Granfinanciera, 492 U.S. at 42.

With regard to the first factor, the Seventh Circuit has stated that “[rlestitution is a

3


Amended Complaint which included the unjust enrichment claim, and therefore, the Court views
this motion as a motion to reconsider its prior ruling. “Such common law motions to reconsider
are appropriate when the facts or law on which the decision was based change significantly,
when the Court has misunderstood a party, has made a decision outside the adversarial issues
presented to it, or has ‘made an error not of reasoning but of apprehension.”” TIG Ins. Co. v.
Giffin, Winning, Cohen & Bodewes, P.C., 00 C 2737, 2002 WL 1803754, at *2 (N.D. Ill. Aug. 5,
2002) (quoting Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir.
1990)).

EchoStar’s motion to strike the unjust enrichment claim merely rehashes the same
arguments raised in its opposition to Polska’s motion for leave to file the Third Amended
Complaint. Further, the facts and law on which the decision was based have not changed
significantly, and the Court notes that this case is in the exact same procedural posture as when
EchoStar opposed Polska’s motion for leave to file the Third Amended Complaint. Moreover,
the Court is steadfastly sure that it has not misunderstood or misapprehended EchoStar, and the
Court has not made a decision outside the adversarial issues presented to it. Accordingly, the

Court denies the motion to strike the unjust enrichment claim.

Il. Motion for Judicial Determination of Polska’s Unjust Enrichment Claim

EchoStar also moves the Court for a ruling that the unjust enrichment claim lies in
equity, and therefore Polska has no right to a jury trial. Polska’s unjust enrichment claim seeks
disgorgement of, and payment to Polska, profits obtained by EchoStar when it sold subscriptions
of Polska’s programming to new customers during the wind-down period.

Pursuant to Federal Rule of Civil Procedure (“Rule”) 38(a), “[tJhe right of trial by jury as

2