PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

Nos. 15-3198 & 15-3247

______________

ANDREW PAUL LEONARD,

d/b/a APL Microscopic

Appellant in No. 15-3247

v.

STEMTECH INTERNATIONAL INC; 

STEMTECH HEALTHSCIENCES, INC.; 

JOHN DOES 1-100, Inclusive,

 Stemtech International Inc and

 Stemtech HealthSciences, Inc,

 Appellants in No. 15-3198

______________

ON APPEAL FROM THE UNITED STATES DISTRICT 

COURT

FOR THE DISTRICT OF DELAWARE

(D.C. Nos. 1-08-cv-00067, 1-12-cv-00086)

District Judge: Honorable Leonard P. Stark

______________

Argued July 12, 2016

______________

Before: FUENTES, SHWARTZ, and RESTREPO, Circuit
2

Judges.

(Filed: August 24, 2016)

Kathleen M. Kushi Carter, Esq [ARGUED]

Christine R. Arnold, Esq.

Hollins Law

2601 Main Street

Suite 1300

Irvine, CA 92614

Thomas P. Leff, Esq.

Casarino Christman Shalk Ransom & Doss

405 North King Street

Suite 300, P.O. Box 1276

Wilmington, DE 19899

Counsel for Appellants/Cross-Appellees

Jan I. Berlage, Esq. [ARGUED]

Gohn Hankey Stichel & Berlage

201 North Charles Street

Suite 2101

Baltimore, MD 21201

James S. Green, Sr., Esq.

Jared Green, Esq.

Seitz Van Ogtrop & Green

222 Delaware Avenue

Suite 1500, P.O. Box 68

Wilmington, DE 19899

Counsel for Appellee/Cross-Appellant

______________
3

OPINION OF THE COURT

______________

SHWARTZ, Circuit Judge.

Andrew Leonard, a stem cell photographer, and 

Stemtech International, Inc., a company that sells nutritional 

supplements through independent distributors, cross appeal

various rulings in the copyright infringement lawsuit Leonard 

brought against Stemtech in the District of Delaware. For the 

reasons discussed herein, we will affirm the District Court’s 

pretrial, trial, and post-trial rulings, except the order denying 

prejudgment interest to Leonard, which we will vacate and 

remand.

I

A. Andrew Leonard’s Images

Leonard takes photographs of stem cells using electron 

microscopes. Only a few photographers engage in this highly 

technical type of photography. Leonard obtains cell samples 

from doctors, scientists, and researchers and pays a scientific 

research institution to use an electron microscope to 

photograph the cells. The images first appear in black and 

white, and Leonard uses his “artistic judgment” to enhance 

the photos in color. J.A. 822-23.

Leonard created the images at issue in this case in the 

1990s. Below are the two photographs at issue in this case.1 

 

1 Leonard created these images in 1996 but did not 

register them with the U.S. Copyright Office until 2007, when 

he planned to bring this lawsuit.
4

The image on the left will be referred to as Image 3 and the 

right as Image 4.

 

 

Leonard markets his photographs through his business, 

APL Microscopic, and, during the relevant time period, used

a stock photography agency known as Photo Researchers, 

Inc., to license his images.2 He only allows limited licenses

of his images because, in his view, unlimited usage licenses 

decrease the value of his work. 

The licensing fee Leonard charges varies depending on 

whether his images are used for commercial, editorial, or 

educational purposes. Licensing fees are also impacted by 

the size, color, and the medium in which the images will 

appear. 

During the 1990s and through the period at issue in 

this case, stem cell images were rare. At that time, Leonard’s 

images were unique and sought after because there were very 

 

2 Photo Researchers, Inc., is now known as Science 

Source.
5

few photographers who had the technical skill necessary to 

produce such work. Even Stemtech’s Chief Scientific 

Officer, Christian Drapeau, testified that Leonard’s images 

were “extremely valuable.” J.A. 1544. 

In licensing his stem cell photographs, Leonard has 

received a range of fees, including a $4,000 fee for a nonexclusive license to use his image at trade shows for one year, 

$6,500 for a one-time, non-exclusive license to use one of his 

images on a university website for four years, and $1,325 for 

a one-time, non-exclusive license to use his image in a 

brochure with a print run of 5,000. He also received $1,500 

from Time magazine, which featured one of his images of a 

human bone marrow stem cell on its August 7, 2006 cover.3

Between 2007 and 2012, Photo Researchers licensed 

Leonard’s images for fees ranging from less than $100 to 

several thousand dollars. 

B. Stemtech and its Distributors

Stemtech “formulates” and sells nutritional supplement 

products through thousands of distributors, J.A. 1387, who 

form the backbone of the company. Each distributor signs an 

agreement and is subject to Stemtech’s policies and 

procedures manual. According to the manual, distributors are

required to use only Stemtech marketing materials and its 

self-replicated websites. Specifically, the manual provides: 

 

3

Image 4 appeared on the cover of Time, albeit in a 

different pink and green color scheme. Because a feature on 

the cover of Time meant worldwide exposure of his work, 

Leonard charged a reduced fee for this editorial use.
6

To promote both the products and the 

tremendous opportunity STEMTech offers, 

distributors must use the Marketing Materials 

and support materials produced by STEMTech.

. . . Because the Internet recognizes no 

geographic borders (Domestic or Foreign), 

information on the Internet may be legal in one 

State or Country and illegal in another. 

Therefore, Distributors desiring to utilize an 

Internet web page to promote his/her 

distributorship must do so through the 

Company’s official website, using official 

STEMTech replicated templates.

J.A. 2173-74 (emphasis and capitalization in original). 

Stemtech owns the domain and sub-domains of at least some 

of its distributors’ websites, and Stemtech’s vendor operates 

the server that hosts the Stemtech-supplied sites. Distributors 

who purchase a website from Stemtech may customize the 

site only to provide the distributor’s name, phone number, 

email address, and a biography.

C. Leonard and Stemtech’s Initial Discussions

In May 2006, Stemtech contacted Leonard about using 

Image 4 for the “company[’s] internal magazine,” J.A. 869-

70, and for use on its website. After discussing usage and 

color terms, Leonard provided Stemtech with a quote of $950 

for a “one-year usage” of Image 4 in two places in Stemtech’s 

HealthSpan magazine and a separate quote of $300 for a 

“one-year usage” of the image on the HealthSpan website. 

J.A. 871; 2120. Stemtech declined to license the image for 

website use because “the price was too high,” J.A. 872, but 

chose to use the image twice in its magazine. 
7

Leonard sent Stemtech an invoice for $950 for the two 

magazine placements, but was only paid $500. After multiple 

unsuccessful attempts to collect the $450 balance, Leonard 

abandoned his collection effort. Not only did Stemtech fail to 

pay Leonard in full, but it used his images without a license in 

its other promotional materials.

The images appeared on Stemtech websites, its 

distributors’ websites, marketing DVDs, and other 

promotional and recruitment materials. Several Stemtech 

officials and employees explained that using these images 

was important to Stemtech’s business. Chief Scientific 

Officer Drapeau explained: “If you talk about stem cells, you 

need [ ] support for the discussion, so you . . . show a cell 

showing what it’s about . . . . It’s a marketing thing. I 

understand [Leonard’s images’] value totally. I mean, it’s a 

good representation.” J.A. 1539, 1544. George Antarr, 

Stemtech’s Director of North American Sales, produced the 

DVD in which one of Leonard’s images appeared, and 

explained the importance of a visual depiction of a stem cell 

in the video: “[W]e talked about stem cells in the product 

movie, so [ ] it would be good to show that, what one looks 

like . . . [b]ecause [a] visual [is] part of every sentence. A 

picture tells a thousand words.” J.A. 1510. Thus, as Antarr 

noted, using a photograph was important to Stemtech’s 

marketing efforts. 

D. Stemtech’s Unauthorized Use

To make sure his images were not used for 

unauthorized purposes, Leonard “periodically” conducted

internet searches for images of stem cells. J.A. 879-80. In 

October 2007, Leonard discovered his images on numerous 
8

Stemtech and Stemtech-affiliated websites. He took 

screenshots of and archived the webpages on which his 

images appeared and retained copies of emails he sent to the 

contacts on various sites.

For example, Leonard found his images on 

“yourstems.com,” a website selling a Stemtech product called 

Stem Enhance and in a Stemtech e-book featured on the 

website. J.A. 881, 889. He contacted the site operator, 

informed him of the infringing uses, requested an accounting 

of how long the operator used the images, and sought 

payment for their use. The website operator informed 

Leonard that he and other distributors were using materials 

received from Stemtech. Thereafter, Leonard contacted 

Stemtech’s Chief Compliance Officer, Donna Serritella, 

requesting that Stemtech stop using his images. Serritella 

told Leonard that she thought that one of the images “was on 

the cover of a major publication, and that made it public for 

usage.” J.A. 898. 

Despite being on notice of Leonard’s claim that 

Stemtech and its distributors were using his images without 

permission, Stemtech did not notify its distributors of his 

assertion, which it could have done via company-wide email, 

its weekly newsletter, or monthly communications. In fact, 

Leonard continued to discover and document unauthorized 

uses of his photographs on Stemtech-affiliated websites and 

in its materials. For example, in May 2008, Leonard’s friend 

ordered a Stemtech sales kit from a distributor. The sales kit, 

intended for marketing the Stemtech product and training

distributors, included DVDs with covers featuring one of 

Leonard’s images, and videos of “The Stemtech Story” and 

“Stem Cells and Stem Enhance with Christian Drapeau,”

which also contained one of the images. J.A. 905-10, 161. 
9

Leonard continued to take screenshots of the websites and 

infringing materials, connecting them to Stemtech via website 

addresses, Stemtech-branded materials such as videos and 

PowerPoint presentations, distributor ID numbers, and even 

references and links encouraging website visitors to join the 

Stemtech distribution team. Additionally, Leonard 

discovered his images on Stemtech’s website system, 

stemtechbiz.com, which involved “websites that Stemtech 

owned and operated,” as well as websites of individual 

distributors. J.A. 945-46.

E. The Civil Suit

Leonard demanded that Stemtech and several of its 

distributors pay him for the unauthorized use of his images.

When Stemtech refused, Leonard filed the instant action, 

alleging numerous claims of copyright infringement. 

Following discovery and motion practice, a jury trial 

commenced on Leonard’s claims against Stemtech for direct, 

vicarious, and contributory infringement.4 The jury heard 

testimony from Leonard, a Photo Researchers employee, and 

Stemtech officials and distributors.

In addition, the jury heard testimony from Leonard’s 

damages expert, Jeffrey Sedlik. Sedlik estimated the fair 

market value of a license to use the images. To this end, he 

contacted two of the largest stock photo agencies and two 

agencies that specialize in scientific images to ascertain the 

 

4 Stemtech does not appeal the jury’s verdict finding it 

liable for direct copyright infringement and Leonard does not 

appeal the order granting summary judgment to Stemtech on 

his claims for statutory damages and alleged infringement of 

other images. 
10

fair market value of microscopic photography images when 

licensed for various forms of media comparable to those

Stemtech used in its marketing materials. From the quotes 

provided by these agencies, he generated a benchmark 

licensing fee of between $1,277.10 and $2,569.46. He then 

applied the average of these fees to the 92 infringing uses 

identified at trial, which yielded a fee of $215,767.66. 

Sedlik then adjusted this figure upward to account for 

the “scarcity or rarity” of Leonard’s images. J.A. 1315-17. 

In other words, Sedlik attempted to capture “the market value 

of stem cell photographs in general, and then the scarcity or 

rarity of particular stem cell images, [which] is a factor that is 

considered in licensing.”5 J.A. 1313. Sedlik recommended a

premium of three to five times the benchmark to reflect the 

scarcity of the images.6 In addition, he adjusted the 

benchmark figure for “exclusivity,” which accounts for 

“overuse or broad use” of an image, which diminishes the 

value of other uses, by adding a premium of 3.75 to 8.75

times the benchmark. J.A. 1317-19. After adding the 

adjustments together, he opined that the appropriate damages 

 

5 On the rarity point, Sedlik noted that “[s]tem cell 

[photographs] [are] not Sasquatch; however, every 

photographer, everybody in the industry that saw that 2006 

cover of Time, that was kind of a turning point where people 

realized that microscopy can be an art form,” J.A. 1313, and 

“in 2006 and before, there were fewer images available.” 

J.A. 1314. 

6 Sedlik testified that the multipliers were not applied 

as punishment for Stemtech’s unauthorized use of the images. 

J.A. 1307 (noting “in actual damages, the damages that 

[Sedlik] come[s] up with can’t be of a kind that punish the 

defendant”).
11

would range from $1.4 million to nearly $3 million. 

Stemtech neither cross-examined Sedlik about his use of 

these premiums nor presented its own expert, and asserted 

that Leonard’s past licensing history supported an award of 

only $1,804. 

 The jury returned a $1.6 million verdict in Leonard’s 

favor on his direct, vicarious, and contributory infringement 

claims against Stemtech. The District Court denied 

Stemtech’s motion for a new trial on contributory and 

vicarious liability and damages.

In these cross appeals, we are asked to review whether 

the District Court abused its discretion in denying Stemtech’s 

motion for a new trial by finding that the jury’s contributory 

and vicarious infringement findings were supported by 

substantial evidence, and affirming the jury’s damages award, 

which Stemtech contends is unconstitutionally and grossly 

excessive. We are also asked to review the District Court’s 

ruling that Leonard’s counsel’s conduct and certain 

evidentiary rulings did not warrant a new trial. In addition, 

we are asked to consider whether the District Court abused its 

discretion in declining to award Leonard prejudgment 

interest, erred in not permitting the jury to consider awarding 

Leonard infringer’s profits under 17 U.S.C. § 504(b), and 

correctly decided two fee awards. 

II

7

A. New Trial Standard

 

7 The District Court had jurisdiction pursuant to 28 

U.S.C. §§ 1331, 1332, and 1338(a), and 17 U.S.C. § 101, et 

seq. We have appellate jurisdiction under 28 U.S.C. § 1291.
12

We will first address Stemtech’s appeal of the order 

denying it a new trial. While a court may grant a new trial 

under Rule 59 “for any reason for which a new trial has 

heretofore been granted in an action at law in federal court,” 

Fed. R. Civ. P. 59(a)(1)(A), it should do so only when “the 

great weight of the evidence cuts against the verdict and . . . 

[ ] a miscarriage of justice would result if the verdict were to 

stand,” Springer v. Henry, 435 F.3d 268, 274 (3d Cir. 2006) 

(internal quotation marks omitted); see Williamson v. Consol. 

Rail Corp., 926 F.2d 1344, 1352-53 (3d Cir. 1991) (new trial 

should be granted only where the verdict “cries out to be 

overturned” or “shocks [the] conscience”). A district court’s 

power to grant a new trial is limited “to ensure that [it] does 

not substitute its judgment of the facts and the credibility of 

the witnesses for that of the jury.” Delli Santi v. CNA Ins. 

Cos., 88 F.3d 192, 201 (3d Cir. 1996) (internal quotation 

marks omitted). Our power is similarly limited and we 

review the grant or denial of a motion for a new trial for 

abuse of discretion. Olefins Trading, Inc. v. Han Yang Chem. 

Corp., 9 F.3d 282, 289 (3d Cir. 1993).

To demonstrate that the District Court erred in 

declining to grant it a new trial because the verdict was 

against the weight of the evidence, Stemtech must establish

that (1) the jury reached an unreasonable result, and (2) the 

District Court abused its broad discretion in not setting the

verdict aside. See ZF Meritor, LLC v. Eaton Corp., 696 F.3d 

254, 268 (3d Cir. 2012) (noting that while we exercise 

plenary review of “questions of law underlying a jury 

verdict,” putting those questions aside, a “‘jury verdict will 

not be overturned unless the record is critically deficient of 

that quantum of evidence from which a jury could have 
13

rationally reached its verdict.’” (quoting Swineford v. Snyder 

Cty., 15 F.3d 1258, 1265 (3d Cir. 1994))).

B. Secondary Liability

Stemtech argues that a new trial is warranted because

the jury’s contributory and vicarious infringement findings 

are not supported by substantial evidence. Contributory and 

vicarious infringement are theories of secondary liability for 

copyright infringement that “emerged from common law 

principles and are well established in the law.”8 MetroGoldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 

930 (2005). “Secondary liability for copyright infringement 

does not exist in the absence of direct infringement by a third 

party.” A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 

1013 n.2 (9th Cir. 2001). Thus, to prove a claim of 

contributory or vicarious infringement, a plaintiff must first 

show direct infringement by a third party. To prove direct 

infringement, a plaintiff must show that (1) it owns a valid 

copyright; (2) another party copied elements of its work

without authorization; and (3) that party engaged in volitional 

conduct. Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199, 

203 (3d Cir. 2005); CoStar Grp., Inc. v. LoopNet, Inc., 373

 

8 While “the lines between direct infringement, 

contributory infringement and vicarious liability are not 

clearly drawn,” Metro-Goldwyn-Mayer Studios Inc. v. 

Grokster, Ltd., 545 U.S. 913, 930 n.9 (2005), “in general, 

contributory liability is based on the defendant’s failure to 

stop its own actions which facilitate third-party infringement, 

while vicarious liability is based on the defendant’s failure to 

cause a third party to stop its directly infringing activities.” 

Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1175 

(9th Cir. 2007).
14

F.3d 544, 551 (4th Cir. 2004). Volitional conduct occurs 

when a party engages in “the act constituting infringement.” 

CoStar Group, 373 F.3d at 551 (distinguishing between 

internet entities that serve as conduits for transmission of 

copyrighted material and those who have an “interest in the 

copy itself”).

Leonard proved direct infringement by Stemtech 

distributors. He demonstrated that he owned the copyrights 

to the infringed images, and that he did not authorize or 

license the use of his images in Stemtech’s advertising, 

marketing, and training materials. The materials containing 

his images ranged from webpages and PDFs to videos and a 

PowerPoint presentation promoting Stemtech products.

9

 This 

evidence provided a sufficient basis for a jury to reasonably 

conclude that the distributors directly infringed Leonard’s 

copyrights. 

Having determined that there was sufficient evidence 

to establish the predicate for secondary liability, we now turn 

to the claims against Stemtech for contributory and vicarious

infringement. 

1. Contributory Infringement

“One infringes contributorily by intentionally inducing 

or encouraging direct infringement.” Grokster, 545 U.S. at 

930. To establish a claim of contributory infringement, a 

plaintiff must show: (1) a third party directly infringed the 

 

9 Stemtech’s argument that Leonard failed to prove 

that Photo Researchers, his licensing agent at the time, did not 

license the images to Stemtech and/or its distributors, is, as 

the District Court noted, an improper attempt to shift the 

burden of an unproven defense of authorization.
15

plaintiff’s copyright; (2) the defendant knew that the third 

party was directly infringing; and (3) the defendant materially

contributed to or induced the infringement. See Gershwin 

Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 

1162 (2d Cir. 1971) (“[O]ne who, with knowledge of the 

infringing activity, induces, causes or materially contributes 

to the infringing conduct of another, may be held liable as a 

‘contributory’ infringer.”); see also Perfect 10, 508 F.3d at 

1171 (explaining that, “under Grokster, an actor may be 

contributorily liable for intentionally encouraging direct 

infringement if the actor knowingly takes steps that are 

substantially certain to result in such direct infringement”).

The District Court appropriately denied Stemtech’s 

motion for a new trial on Leonard’s contributory infringement 

claim. As discussed above, there was sufficient evidence 

from which a jury could conclude that third parties, namely 

Stemtech’s distributors, directly infringed Leonard’s 

copyrights. Furthermore, the evidence shows that Stemtech 

knew of the distributors’ infringing activity. Stemtech itself 

created the materials containing Leonard’s images, provided 

the materials to its distributors, and required the distributors 

to use the materials. Thus, Stemtech knew of its distributors’ 

infringing activities and plainly took “steps that [we]re 

substantially certain to result in such direct infringement.” 

Perfect 10, 508 F.3d at 1171-72. 

We also note that the jury had a basis to conclude that 

Stemtech knew that the images it provided to its distributors 

were copyrighted. The jury heard evidence that Stemtech had

negotiated with Leonard for a limited-use license of one of 

his images in the HealthSpan magazine. From this evidence,

the jury could infer that, despite knowing that Leonard’s

images were copyrighted, Stemtech required its distributors to 
16

use the images Leonard owned to promote Stemtech’s 

products and thereby materially contributed to or induced 

their infringement.10

For these reasons, the District Court did not abuse its 

discretion in concluding that the jury’s contributory 

infringement verdict in favor of Leonard was not against the 

weight of the evidence and hence properly denied Stemtech’s 

motion for a new trial on Leonard’s contributory infringement 

claim.

2. Vicarious Infringement

The District Court also correctly denied the motion for 

a new trial on Leonard’s vicarious infringement claim. 

Vicarious infringement occurs when one “profit[s] from 

direct infringement while declining to exercise a right to stop 

or limit it.” Grokster, 545 U.S. at 930. To establish vicarious 

infringement, a plaintiff must prove that the defendant had (1) 

the right and ability to supervise or control the infringing 

activity; and (2) a direct financial interest in such activities.

Grokster, 545 U.S. at 930 & n.9; Am. Tel. and Tel. Co. v. 

Winback and Conserve Program, 42 F.3d 1421, 1441 (3d Cir. 

1994) (reciting similar standard). 

The requirement that a defendant have the right to 

supervise or control is not limited to traditional agency 

 

10 Stemtech’s sole defense to its use was its 

compliance officer’s belief that the image was in the public 

domain because it appeared on the cover of Time. Even if her 

ignorance of the law were excusable, the fact that Stemtech 

entered into negotiations for a limited use of the images belies 

such ignorance. 
17

relationships such as master-servant or employer-employee.

Indeed, vicarious infringement liability has been imposed on 

a person or entity “even in the absence of an employeremployee relationship . . . if [the person or entity] has the 

right and ability to supervise the infringing activity.” 

Gershwin, 443 F.2d at 1162; Shapiro, Bernstein & Co. v. H. 

L. Green Co., 316 F.2d 304, 308 (2d Cir. 1963); see Napster, 

239 F.3d at 1022 (affirming extension, in copyright context, 

of vicarious liability beyond employer-employee 

relationship); see also Winback and Conserve Program, 42 

F.3d at 1441 (citing Gershwin and Shapiro, Bernstein). Nor 

does the control element require the existence of a formal 

contract between the defendant and the infringer. Rather, this

element is satisfied where a “defendant’s ‘pervasive 

participation in the formation and direction’ of the direct 

infringer[’s]” activity supports a finding that “defendants 

were in a position to police the direct infringers.” Fonovisa, 

Inc. v. Cherry Auction, Inc., 76 F.3d 259, 262-63 (9th Cir. 

1996) (defendant flea market operator had right to exclude 

vendors and “controlled and patrolled” the premises) (quoting 

Gershwin, 443 F.2d at 1163)); see Gershwin, 443 F.2d at 

1163 (imposing vicarious liability even where defendant 

lacked contractual ability to control direct infringer); Shapiro, 

Bernstein, 316 F.2d at 306 (imposing vicarious liability where 

parties had licensing agreement).

Cases from other circuits provide examples of conduct 

sufficient to demonstrate control. In Shapiro, Bernstein, for 

example, the Court of Appeals for the Second Circuit held a 

chain store company liable for the sale of infringing bootleg 

records by its licensee, who operated “the phonograph record 

department in . . . its stores,” because the company “retained 

the ultimate right of supervision over the conduct of the 

record concession and its employees.” 316 F.2d at 306, 308. 
18

The court compared the situation to the numerous cases

holding a “dance hall proprietor liable for the infringement of 

copyright resulting from the performance of a musical 

composition by a band or orchestra whose activities provide 

the proprietor with a source of customers and enhanced 

income[,] . . . whether the bandleader is considered, as a 

technical matter, an employee or an independent contractor.” 

Id. at 307 (collecting cases). In Napster, the Court of Appeals 

for the Ninth Circuit observed that the defendant, a file 

sharing program operator, “ha[d] the ability to locate 

infringing material listed on its search indices, and the right to 

terminate users’ access to the system.” 239 F.3d at 1024. At 

the other end of the “spectrum” is the example of a landlordtenant case in which a “landlord leas[es] his property at a 

fixed rental to a tenant who engages in copyright-infringing 

conduct on the leased premises” and who generally does not 

have an obligation to police infringing conduct. Shapiro, 

Bernstein, 316 F.2d at 307-08. 

Like the chain store, dance-hall proprietor, and filesharing program operator, Stemtech had the right and ability 

to control the infringing activities of its distributors.

Stemtech created and provided marketing materials to its 

distributors, and required their use. It also had the contractual 

right to impose a range of disciplinary sanctions on 

distributors who violated its policies or engaged in illegal 

behavior, ranging from withholding compensation to 

terminating a distributorship agreement. Additionally, 

Stemtech required its distributors to use “official STEMTech 

replicated templates” and websites that it controlled. J.A. 

2139. To the extent infringements occurred on what 

Stemtech asserts were unauthorized, independent websites, 

Stemtech still had the ability to induce compliance by 

distributors operating these websites by withholding 
19

compensation and access to back office support.

11

 Stemtech

thus had the “practical ability to police the third-party 

[distributors’] infringing conduct.” Perfect 10, 508 F.3d at 

1174. The evidence of this contractual and financial 

relationship between Stemtech and its distributors provided a 

basis for the jury to conclude that Leonard satisfied the right

and ability to supervise or control element. 

Besides demonstrating control, a plaintiff must also 

show financial benefit to the defendant to prevail on a 

vicarious infringement claim. Shapiro, Bernstein, 316 F.2d at 

307 (courts should consider the interplay between the two 

elements). “Financial benefit exists where the availability of 

infringing material acts as a draw for customers.” Ellison v. 

Robertson, 357 F.3d 1072, 1078, 1079 (9th Cir. 2004)

(internal quotation marks omitted). “There is no requirement 

that the draw be substantial.” Id. (internal quotation marks 

omitted).

The jury could reasonably have credited the testimony 

from Stemtech officials indicating that images of stem cells 

lend legitimacy to products that purportedly enhance stem 

cell production and from this infer that the images could have 

drawn customers to buy the product, which would financially 

benefit Stemtech. Thus, there was sufficient evidence from 

which the jury could find that the financial benefit element 

was met. Because the verdict was not against the weight of 

the evidence, the District Court did not abuse its discretion in 

denying Stemtech’s motion for a new trial on Leonard’s 

vicarious infringement claim.

 

11 Stemtech’s ability to control its distributors is further 

reflected by the fact that when it asked a distributor to stop 

using the images, the distributor complied.
20

C. Damages

1. The Jury Award

Stemtech argues that the jury’s $1.6 million actual 

damages award was unconstitutionally and grossly excessive, 

and therefore should be reduced or vacated and remanded for 

a new damages trial. We will first discuss the methods for 

calculating actual damages under the Copyright Act, then 

review the District Court’s decision to permit Leonard’s

damages expert to testify, and finally examine whether the 

award here was unconstitutionally or grossly excessive.

a. Actual Damages under § 504(b)

Section 504 of the Copyright Act authorizes recovery 

of “the actual damages suffered by [the copyright owner] as a 

result of the infringement.” 17 U.S.C. § 504(b). Although 

the Act does not define “actual damages,” our sister circuits 

have explained that an actual damages award “looks at the 

facts from the point of view of the[] copyright owners; it 

undertakes to compensate the owner for any harm he suffered 

by reason of the infringer’s illegal act.” On Davis v. The 

Gap, Inc., 246 F.3d 152, 159 (2d Cir. 2001). These damages

“are usually determined by the loss in the fair market value of 

the copyright, measured by the profits lost due to the 

infringement or by the value of the use of the copyrighted 

work to the infringer.” McRoberts Software, Inc. v. Media 

100, Inc., 329 F.3d 557, 566 (7th Cir. 2003); see Fitzgerald 

Publ’g Co. v. Baylor Publ’g Co., 807 F.2d 1110, 1118 (2d

Cir. 1986) (“[T]he primary measure of recovery is the extent 

to which the market value of the copyrighted work at the time 

of the infringement has been injured or destroyed by the 
21

infringement.”) (citing 3 Nimmer on Copyright § 14.02 at 14-

6); Dash v. Mayweather, 731 F.3d 303, 312 (4th Cir. 2013) 

(quoting Fitzgerald, supra). Because the Act “should be 

broadly construed to favor victims of infringement,” On 

Davis, 246 F.3d at 164, “uncertainty will not preclude a 

recovery of actual damages if the uncertainty is as to amount, 

but not as to the fact that actual damages are attributable to 

the infringement,” 4 Nimmer on Copyright § 14.02[A], at 12-

14; see, e.g., On Davis, 246 F.3d at 166 (explaining that the 

jury’s calculation of actual damages may not be based on 

“undue speculation” (internal quotation marks omitted));

Sygma Photo News, Inc. v. High Soc. Magazine, Inc., 778 

F.2d 89, 95 (2d Cir. 1985) (“Confronted with imprecision in 

the computation of expenses, the court should err on the side 

of guaranteeing the plaintiff a full recovery.”). Some 

uncertainty stems from the fact that the Copyright Act does 

not specify how damages should be calculated. See

Mayweather, 731 F.3d at 312. Case law, however, describes 

the permissible methods for determining damages.

One method involves calculating the fair market value 

of the licensing fees “the owner was entitled to charge for 

such use.” On Davis, 246 F.3d at 165 (explaining that “[i]f a 

copier of protected work, instead of obtaining permission and 

paying the fee, proceeds without permission and without 

compensating the owner . . . the owner has suffered damages 

to the extent of the infringer’s taking without paying what the 

owner was legally entitled to exact a fee for”). Fair market 

value is often described as “the reasonable licensing fee on 

which a willing buyer and a willing seller would have agreed 

for the use taken by the infringer.” Id. at 167; see Jarvis v. 

K2 Inc., 486 F.3d 526, 534 (9th Cir. 2007) (applying 

standard); Mackie v. Rieser, 296 F.3d 909, 917 (9th Cir. 

2002) (noting that the “market value approach is an objective, 
22

not a subjective, analysis”). Another method for calculating 

damages focuses on the plaintiff’s own past licensing fees.

See, e.g., Jarvis, 486 F.3d at 534 (noting district court 

calculated damages using plaintiff’s past license). Stemtech 

asks us to use the past licensing fee method but cites no 

authority requiring the use of this method as opposed to the 

fair market value approach, and case law on this subject 

supports using the fair market value. See On Davis, 246 F.3d 

at 166 (“The question is not what the owner would have 

charged, but rather what is the fair market value.”); 

Mayweather, 731 F.3d at 312 (describing both calculation 

methods and noting “general[ ] accept[ance]” of fair market 

value approach). Because the jury was instructed about both 

methods for determining actual damages, and had an 

evidentiary basis for applying the fair market value through 

Sedlik’s expert testimony, there was no error in allowing the 

jury to consider evidence about damages based on the fair 

market value approach.

b. Admission of Sedlik’s Expert Opinion

Stemtech challenges the denial of its Daubert motion 

to exclude Sedlik’s testimony on various grounds, including, 

as relevant here, the basis for his opinions. In denying the 

motion, the District Court determined that Sedlik’s method 

for calculating Leonard’s actual damages using fair market 

value, as opposed to Leonard’s past licensing history, was 

reliable, as there is no requirement that actual damages be 

calculated based on a plaintiff’s own history of licensing fees. 

It also concluded that Sedlik had a factual basis for his 

calculation based upon the quotes he received for other 

photographs. Finally, the District Court concluded that there 

was a fit between the facts of the case and Sedlik’s damages 

calculation, and that challenges to the fit and reliability of the 
23

fair market value method could be pursued via crossexamination.12

Stemtech argues that the District Court erred in 

denying its Daubert motion, claiming that Leonard failed to 

lay a foundation for Sedlik’s lump sum damages figure 

because Sedlik’s testimony revealed “he relied on unverified 

information from Leonard’s counsel and did not make an 

independent determination of usages or infringements or 

calculate separate fees for the 92 alleged infringements.” 

Appellant’s Br. 57 (citing J.A. 1304-05, 1307-09, 1310-11, 

1316, 1320). We review the admission or exclusion of expert 

testimony for abuse of discretion. Pineda v. Ford Motor Co., 

520 F.3d 237, 243 (3d Cir. 2008). “It is an abuse of 

discretion to admit expert testimony which is based on 

assumptions lacking any factual foundation in the record.” 

Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 414 

(3d Cir. 2002). 

Sedlik adopted the recognized fair market value 

approach for calculating damages. To enable him to estimate 

the fair market value, he collected quotes from Getty Images 

and other photo licensing agencies and obtained a range of 

licensing fees for various uses similar to those involved in the 

case, averaged them, and then applied the average to the 92 

alleged instances of infringement. Stemtech’s disagreement 

with the calculation methodology and the underlying 

assumptions Sedlik made about which images and uses were 

similar to those in this case goes to the weight given to his 

testimony, rather than admissibility. See Breidor v. Sears, 

 

12 We note that Stemtech failed to file objections to the 

Magistrate Judge’s memorandum order denying Stemtech’s 

Daubert motion.
24

Roebuck & Co., 722 F.2d 1134, 1138-39 (3d Cir. 1983) 

(“Where there is a logical basis for an expert’s opinion 

testimony, the credibility and weight of that testimony is to be 

determined by the jury, not the trial judge.”). Thus, the 

District Court appropriately denied the Daubert motion, and 

the jury was properly permitted to consider Sedlik’s 

testimony about damages.

c. Excessiveness

Because we are deferential to a jury’s damages verdict, 

that verdict may be disturbed only if it is so grossly excessive 

that it shocks the judicial conscience, William A. Graham Co. 

v. Haughey, 646 F.3d 138, 142 (3d Cir. 2011) (Graham II), or 

if it is unconstitutionally excessive because it is predicated on 

an impermissible basis, Cortez v. Trans Union, LLC, 617 

F.3d 688, 715-18 (3d Cir. 2010). With respect to a claim that 

a damage award is grossly excessive, our review is 

“exceedingly narrow” and our “responsibility [is] to review a 

damage award to determine if it is rationally based.” Id. at 

718. This standard “exists to ensure that a district court does 

not substitute its judgment of the facts and the credibility of 

the witnesses for that of the jury,” and is “even more pressing 

at the appellate level, where the judges have not had the 

opportunity to observe the trial.” Graham II, 646 F.3d at 143 

(internal quotation marks omitted). Thus, although we view 

the facts “in the light most favorable to” the defendant, 

Cortez, 617 F.3d at 719, “[a] jury’s damages award will not 

be upset so long as there exists sufficient evidence on the 

record, which if accepted by the jury, would sustain the 

award,” Thabault v. Chait, 541 F.3d 512, 532 (3d Cir. 2008). 

If a court determines that “the amount of the award is 

inconsistent with the evidence in a case,” it “must offer a new 

trial as a[] [conditional] alternative to a reduction in the award 
25

in order to avoid depriving the plaintiff of his/her Seventh 

Amendment right to a jury trial.” Cortez, 617 F.3d at 716.

Of course, the award must also be consistent with the 

governing law. The Copyright Act sets forth the available 

damages for a prevailing plaintiff. Stemtech correctly notes 

that the Act does not authorize recovery of punitive damages. 

See 17 U.S.C. § 504. Stemtech, however, wrongly asserts 

that the $1.6 million award includes punitive damages. To 

understand why, we will examine Sedlik’s expert damages 

opinion.

As recounted above, Leonard’s expert, Sedlik,

surveyed four stock photo agencies to obtain image licensing 

rates for uses similar to the infringing uses, and averaged the 

quotes to arrive at a per-use licensing fee of between 

$1,277.10 and $2,569.46. These fees factored in the image 

size, form of media, size of audience, geographical scope, 

placement, number of appearances, and length of the license. 

Sedlik selected a figure within this range, multiplied it by the 

92 infringements presented at trial, and arrived at a 

“benchmark” fair market value calculation of $215,767.65. 

In Sedlik’s opinion, this figure did not account for 

scarcity—the rarity of stem cell images—or exclusivity—that 

is, how Stemtech’s extensive use would be akin to an 

exclusive license that would eliminate or reduce licensing 

revenue from other sources and/or decrease the value of 

Leonard’s work. Sedlik testified that a “premium” or 

multiplier of three to five times the benchmark figure was 

warranted to account for the scarcity, and a multiplier of 3.75 

to 8.75 times the benchmark was appropriate to account for 

the exclusivity of Leonard’s images during the infringement 

period, which yielded a total estimated range of actual 
26

damages of approximately $1.4 million to nearly $3 million. 

In addition to explaining that the benchmark figure needed to 

be enhanced because it did not capture the rarity or 

exclusivity of Leonard’s images, Sedlik informed the jury that 

“the damages that [he] come[s] up with can’t be of a kind that 

punish[es] the defendant.” J.A. 1307.

Despite this comment, Stemtech claims the multipliers

Sedlik applied are actually an impermissible penalty “akin to 

punitive damages, which are not recoverable under § 504(b) 

of the Copyright Act.”13 Grant Heilman Photography, 115 F. 

Supp. 3d at 527. In response, Leonard argues that these 

multipliers are not punitive but rather comprise elements of

the fair market value of his images, and that the $215,767 

 

13 In our view, there is a question as to whether 

Stemtech waived its challenge to Leonard’s use of a 

multiplier as part of his damages proof. Sedlik disclosed his 

reliance on a multiplier for scarcity and mentioned exclusivity 

as an additional relevant factor in his report, but Stemtech 

never challenged either factor in its Daubert motion. 

Moreover, it did not cross-examine Sedlik at trial on this topic 

and raised the multiplier issue for the first time in its motion 

for a new trial. Leonard, however, does not argue waiver, so 

he arguably “waived” his right to oppose Stemtech’s 

challenge to the jury award on this basis. See Freeman v. 

Pittsburgh Glass Works, LLC, 709 F.3d 240, 250 (3d Cir. 

2013) (“The doctrine of appellate waiver is not somehow 

exempt from itself. This means that a party can waive a 

waiver argument by not making the argument below or in its 

briefs.” (internal citation omitted)). Because the District 

Court had an opportunity to address the issue, and Leonard 

has not asserted waiver, we will address Stemtech’s challenge 

to Leonard’s use of a multiplier for scarcity and exclusivity.
27

benchmark was not the complete fair market value sum

because Sedlik had not yet accounted for scarcity and 

exclusivity. 

The few district courts to consider the use of punitive 

multipliers have concluded that such use is improper under 

the Copyright Act because “[t]he value of what was illegally 

taken is not determined by multiplying it.” Stehrenberger v. 

R.J. Reynolds Tobacco Holdings, Inc., 335 F. Supp. 2d 466, 

469 (S.D.N.Y. 2004) (internal quotation marks omitted); 

Grant Heilman Photography, 115 F. Supp. 3d at 526-27; 

Faulkner v. Nat’l Geographic Soc’y, 576 F. Supp. 2d 609, 

617 (S.D.N.Y. 2008) (rejecting use of punitive multiplier for 

unauthorized use to calculate “actual damages” under § 

504(b)); Straus v. DVC Worldwide, Inc., 484 F. Supp. 2d 

620, 648-49 (S.D. Tex. 2007) (crediting testimony of 

defendant’s expert Jeff Sedlik, who stated that “multipliers 

are used only when the parties include them in licensing 

agreements and are enforced as part of the contract,” but “are 

not used to determine the fair market value of a license at the 

time infringement occurs,” and noting that use of a multiplier 

would be punitive in that case).

14

 These courts rejected the 

use of a multiplier or “‘fee for unauthorized usage’” over and 

above what “would otherwise represent a fair and reasonable 

licensing fee for the infringed material” as a component of the 

actual damages calculation. Stehrenberger, 335 F. Supp. 2d 

at 467. We agree with the reasoning of these district courts 

that, under the Copyright Act, an actual damages award may 

not include such a punitive component. We also agree with 

 

14 Cf. Bruce v. Weekly World News, Inc., 310 F.3d 25, 

27 n.1 (1st Cir. 2002) (permitting multiplier for unauthorized 

use in a § 504(b) case where the parties agreed on the use of a 

multiplier). 
28

Leonard that this case does not involve the use of a multiplier 

to penalize unauthorized use. Rather, the record demonstrates 

that the multiplier here was used to calculate fair market 

value.

The jury had sufficient evidence to credit Sedlik’s 

opinion and conclude that the sum calculated from the stock 

photo agency rates did not represent a full calculation of the 

fair market value of Leonard’s images because the rates did 

not account for scarcity and exclusivity. Put differently, 

Sedlik’s fair market value calculation in this case had two 

components: the stock agency quotes and the adjustments to 

reflect the uniqueness of the images and the impact of 

Stemtech’s usage. The multipliers here reflected a premium 

that, according to Sedlik, the market would find acceptable 

given the scarcity and exclusivity of the images as compared 

to the images for which he had secured rates for comparative 

purposes. The unrebutted evidence here showed that the fair 

market value calculation was complete only after these 

additional factors were applied. 

Since Stemtech presented no evidence or methodology 

to cast doubt on the use of multipliers to account for factors 

relevant to a final fair market value, neither the District Court 

nor the jury had any basis to discount this aspect of Sedlik’s

testimony. Because there is no evidence that the scarcity and 

exclusivity multipliers were punitive rather than valid factors 

for calculating fair market value, we cannot say that the 

verdict is based upon an improper consideration.

15

 

15 Stemtech also argues that the jury award was 

unconstitutionally excessive under the Due Process Clause. 

Ordinarily, Due Process challenges are appropriately directed 

at punitive damages awards, which are intended to punish 
29

Nor is the verdict grossly excessive. As noted above, 

courts are loath to substitute their judgment for that of the 

jury. While the award here was quite high, and perhaps 

surprising, we cannot say it lacked an evidentiary basis such 

that it “shock[s] the judicial conscience.” Graham II, 646 

F.3d at 143. The jury heard unrebutted expert testimony that 

provided it with the basis for the fair market value assigned to 

the images, which included both a benchmark for similar but 

less unique images and a range for a premium to reflect the 

rarity of Leonard’s image and its unusually widespread use in 

Stemtech’s materials. Sedlik provided a multiplier of three to 

five times the benchmark for scarcity and 3.75 to 8.75 times 

for exclusivity, and opined that the fair market value for use 

of the images would be determined by multiplying these 

figures by the benchmark sum of $215,767.65. The jury 

returned a verdict of $1.6 million, which represents a final 

sum at the lower end of Sedlik’s proposed range. 

The damages award was tethered to the record, which 

the jury was entitled to credit, and the jury was presented with 

no evidence that provided an alternative calculation. See

Thabault, 541 F.3d at 532-33 (reviewing testimony of 

 

defendants, rather than at compensatory damages awards, 

which are simply intended to redress a plaintiff’s loss. See

Cooper Indus. v. Leatherman Toll Grp., Inc., 532 U.S. 424, 

432 (2001) (discussing distinction between punitive and 

compensatory awards for Due Process purposes); United 

States ex rel. Drakeford v. Tuomey, 792 F.3d 364, 387 (4th 

Cir. 2015) (“[T]he Due Process Clause does not apply to 

compensatory damage awards.”). Here, our conclusion that 

the damages award did not include a punitive component is 

fatal to Stemtech’s constitutional excessiveness claim.
30

damages expert, noting defendant’s attempts to discredit 

expert at trial, and concluding that “it is clear that if the jury 

accepted his calculation there was sufficient evidence to 

sustain [the award] as detailed by his testimony”). In light of 

our deferential standard of review, we conclude that the 

District Court did not abuse its discretion in denying a new 

trial on the basis of a grossly excessive jury verdict.

2. Infringer’s Profits

In addition to authorizing recovery of actual damages, 

the Copyright Act allows a plaintiff to recover “any profits of

the infringer that are attributable to the infringement and are 

not taken into account in computing the actual damages.” 17 

U.S.C. § 504(b). These are “profits earned not by selling an 

infringing product, but rather earned from the infringer’s 

operations that were enhanced by the infringement.”16 

William A. Graham Co. v. Haughey, 568 F.3d 425, 442 (3d 

Cir. 2009) (Graham I). Under the Act, to “establish[] 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). Though the Act

 

16 Direct profits may also constitute infringer’s profits 

where, for example, a defendant sells an infringing product. 

To the extent Leonard claims that the District Court failed to 

consider his evidence of direct profits from Stemtech’s sale of 

DVDs containing his images, this claim is waived as he 

conceded in his opposition to Stemtech’s summary judgment 

motion that he was not seeking such direct profits. Moreover, 

Leonard presented no evidence of any profits Stemtech made 

from DVD sales. 
31

requires a copyright owner to present proof of the infringer’s 

“gross revenue” to support its initial burden, courts interpret 

the term to mean the gross revenue that is “reasonably related 

to the infringement.” Graham I, 568 F.3d at 443 (quoting On 

Davis, 246 F.3d at 160); see Polar Bear Prods., Inc. v. Timex 

Corp., 384 F.3d 700, 711-12 (9th Cir. 2004) (noting it would 

“make little practical or legal sense” to conclude a plaintiff 

satisfies his burden simply by “offer[ing] an overall gross 

revenue number . . . and sit[ting] back”); Taylor v. Meirick, 

712 F.2d 1112, 1122 (7th Cir. 1983) (“If General Motors 

were to steal your copyright and put it in a sales brochure, 

you could not just put a copy of General Motors’ corporate 

income tax return in the record and rest your case for an 

award of infringer’s profits.”).

Under § 504(b), we use a “‘two-step framework for 

recovery of indirect profits.” Graham I, 568 F.3d at 442. 

First, the plaintiff must demonstrate a “causal nexus between 

the infringement and the [infringer’s] gross revenue,” or put 

differently, show that the infringement contributed to the 

infringer’s profits. Id. (alteration in original). Second, “once 

the ca[usal] nexus is shown, the infringer bears the burden of 

apportioning the profits that were not the result of 

infringement” and may adduce evidence of offsets permitted 

by the statute. Id. (internal quotation marks and citation 

omitted) 

The District Court granted Stemtech’s motion for 

summary judgment on Leonard’s request for infringer’s

profits, concluding that the evidence he presented was too 

speculative for a jury to find that he was entitled to infringer’s
32

profits.17 To support his request for infringer’s profits, 

Leonard submitted proof of Stemtech’s total gross revenues. 

In addition, Leonard pointed to: (1) the regular use of his 

images in Stemtech marketing and training materials; (2) the 

requirement that Stemtech distributors use Stemtech’s 

replicated websites and marketing materials; and (3) his 

expert’s conclusion that “Stemtech’s many usages of 

Leonard’s photographs conclusively demonstrates that 

Stemtech exploited Leonard’s photograph[s] to promote its 

brand, to promote understanding of its company and products, 

to train and recruit distributors and to provide those 

distributors with tools which were used to maximize 

Stemtech’s profits.” J.A. 336 (internal quotation marks and 

emphasis omitted). 

None of this evidence shows how or why Leonard’s 

images, as opposed to other aspects of Stemtech’s marketing 

materials, influenced profits. As the District Court correctly 

found, this evidence did not “link customer decisions to 

purchase [Stemtech]’s product with [Stemtech]’s use of his 

[i]mages on its website, or in its videos, HealthSpan

publication or other marketing materials, as opposed to any 

other reason why a customer might purchase those products.” 

J.A. 337. We agree with these observations and with the 

conclusion that, while “it is conceivable that the presence of 

the [i]mages in [Stemtech]’s materials added an air of 

 

17 We review the District Court’s grant of summary 

judgment de novo, Alcoa, Inc. v. United States, 509 F.3d 173, 

175 (3d Cir. 2007), applying the same standard as the District 

Court and viewing facts and making reasonable inferences in 

the non-movant’s favor. Hugh v. Butler Cty. Family YMCA, 

418 F.3d 265, 266-67 (3d Cir. 2005). 
33

legitimacy to [Stemtech]’s product that might not have 

otherwise existed, and that the [i]mages could possibly have 

had some impact, whether consciously or subconsciously, on 

consumer purchasing decisions . . . [m]ere conceivability . . . 

is not enough. Instead, Plaintiff must identify evidence 

showing that the infringing use was ‘reasonably related to the 

infringement,’” and the evidence cited above amounted to 

mere speculation regarding the causal connection.18 J.A. 334. 

 

18 For examples discussing infringer’s profits, see 

Mackie, 296 F.3d at 916 (insufficient evidence of causal 

nexus between “the Symphony’s infringing use of [artwork 

called] ‘The Tango’ and any Pops series revenues generated 

through the inclusion of the collage in the direct-mail 

literature,” in part due to the “virtually endless permutations 

to account for an individual’s decision to subscribe to the 

Pops series, reasons that have nothing to do with the artwork 

in question”); cf. Graham I, 568 F.3d at 442 (sufficient 

evidence of causal nexus in a case where the copyrighted 

materials were sample insurance proposals, and where 

plaintiff’s expert “identified client proposals issued by USI 

that included infringing language and then calculated the 

revenues obtained by USI from those clients [who had 

received] infringing proposal[s]” and USI personnel testified 

“that the written proposals . . . were an important part of the 

sales process . . . that . . . convinced [some clients] to 

purchase insurance through USI”); Polar Bear Prods., 384 

F.3d at 700, 712 (sufficient evidence of causal nexus where 

expert calculated revenue from trade shows at which Timex 

used unauthorized “PaddleQuest” materials to promote its 

Expedition line of watches to outdoor sports enthusiasts, 

including a continuous-loop extreme-kayaking film produced 

by plaintiff, where expert “concluded that approximately 10% 

to 25% of trade show sales are the result of excitement 
34

There was no evidence upon which a reasonable juror could 

have calculated infringer’s profits. Because none of 

Leonard’s evidence “create[d] a triable issue regarding 

whether the infringement at least partially caused the profits 

that the infringer generated as the result of the infringement,”

Mackie, 296 F.3d at 911, we will affirm the District Court’s 

order granting summary judgment in Stemtech’s favor on 

Leonard’s request for infringer’s profits.

3. Prejudgment Interest

Leonard argues that the District Court abused its 

discretion in denying his motion for prejudgment interest. An 

award of actual damages under the Copyright Act alone “does 

not mitigate harm caused by delay in making reparations—a 

harm the remedy of prejudgment interest is uniquely tailored 

to address. Simply put, prejudgment interest is a different 

remedy for a different harm.” Polar Bear Prods., 384 F.3d at 

718 (cited with approval in Graham II, 646 F.3d at 144-45). 

Prejudgment interest “mak[es] the claimant whole and 

prevent[s] unjust enrichment.” Graham II, 646 F.3d at 145. 

As we noted in Graham II, we “favor[ ] permitting 

prejudgment interest awards” to make a plaintiff whole in 

copyright cases, id. at 144 (emphasis omitted), because “as 

between a copyright owner and an infringer, the former has 

the stronger equitable claim to the time-value of income 

 

created by the booth promotion, of which the . . . materials 

were a substantial part”); Andreas v. Volkswagen of Am., 

Inc., 336 F.3d 789, 791-97 (8th Cir. 2003) (sufficient nexus 

between Audi’s use of a copyrighted poem in a commercial 

and profits from the ad campaign, where evidence showed 

that the “infringement was the centerpiece of [the] 

commercial”). 
35

derived from his creation,” id. at 145; see Booker v. Taylor 

Milk Co., 64 F.3d 860, 868 (3d Cir. 1995) (describing general 

presumption in favor of prejudgment interest awards). For 

this reason, our Court subscribes to “our usual rule,” Graham 

II, 646 F.3d at 145, that “a monetary award does not fully 

compensate for injury unless it includes an interest 

component,” Kansas v. Colorado, 533 U.S. 1, 10 (2001). 

Accordingly, “prejudgment interest is available in 

copyright cases at the District Court’s discretion, exercised in 

light of ‘considerations of fairness.’” Graham II, 646 F.3d at 

145-46 (affirming District Court’s grant of nearly $5 million 

in prejudgment interest) (quoting Pignataro v. Port Auth. of 

N.Y. and N.J., 593 F.3d 265, 274 (3d Cir. 2010)). In Booker, 

our Court ruled that it is an abuse of discretion for a district 

court to deny an award for prejudgment interest based on the 

conclusion that the actual damages award “alone wholly 

compensated Plaintiff, and that, because Plaintiff’s conduct 

contributed to an inflated [damages] claim, the equities 

weighed against prejudgment interest.” 64 F.3d at 868-69 

(emphasis in original) (awarding prejudgment interest on a 

back pay award). A district court “may exercise its discretion 

to depart from th[e] presumption [of awarding interest] only 

when it provides a justification that reasonably supports the 

departure.” Id. at 868. In other words, “[i]f prejudgment 

interest is denied, the District Court must explain why the 

usual equities in favor of such interest are not applicable.” 

Pignataro, 593 F.3d at 274. 

The District Court here denied prejudgment interest, 

explaining that it viewed such an award in this case as 

“inequitable and unfair” because the verdict “sufficiently 

compensated” Leonard “for the misappropriated value of his 

property” and “the award of interest would constitute a 
36

windfall to Leonard.” J.A. 1737-38 (internal quotation marks 

omitted). In this regard, the District Court observed that the 

verdict represented a per-use licensing fee far greater than the 

per-use fees Leonard previously received for use of the 

infringed images. It also noted that awarding “sums on top of 

the $1.6 million already awarded is not necessary to ensure 

that . . . [Stemtech] is adequately deterred,” J.A. 1739, and 

emphasized that there was no jury finding of willful conduct 

on Stemtech’s part. As an additional ground for denying 

prejudgment interest, the District Court cited the difficulty of 

calculating the “appropriate amount” of interest due to 

numerous infringements. J.A. 1739.

As in Booker, the District Court here was concerned 

with the high jury award and denied Leonard’s motion for 

prejudgment interest because it deemed the $1.6 million 

actual damages award sufficient to compensate him. 

However, prejudgment interest serves a different purpose and 

Leonard was “entitled” to recompense “for the loss of the use 

of the amount” of actual damages. Booker, 64 F.3d at 869; 

see Graham II, 646 F.3d at 145 (emphasizing that 

“recoup[ment] [of] the time-value of [a plaintiff’s] loss . . . is 

not . . . confined to the provision of just compensation,” but 

also prevents a “losing defendant” from “retain[ing] . . . a 

windfall in the form of an interest-free loan”). Therefore,

denying prejudgment interest on the ground that the damages

award sufficiently compensated Leonard constitutes legal 

error. 

Moreover, while we are not unmindful of the 

challenges related to calculating prejudgment interest in this 

case, with the 92 separate infringements that occurred on 

different dates, difficulty in calculating prejudgment interest 

is generally not a basis to deny an interest award. See, e.g., 
37

Hutchison v. Amateur Elec. Supply, Inc., 42 F.3d 1037, 1047 

(7th Cir. 1994) (holding that “uncertainty” in calculating 

prejudgment interest does not “defeat the presumption in 

favor of prejudgment interest” and “[i]t is not within the 

district court’s discretion to deny the whole award of interest 

because of . . . calculational ambiguities”); Williamson v. 

Handy Button Mach. Co., 817 F.2d 1290, 1299 (7th Cir. 

1987) (“No purpose would be served by allowing the 

wrongdoer to keep the entire time value of the money, just 

because the exact amount is subject to fair dispute. Once we 

know that [damages are] at least some minimum, it is safe to 

award interest on that amount.”). We note that a prevailing 

party moving for an award of prejudgment interest must 

provide the district court with sufficient information to 

calculate the interest or inform the court of the evidence it 

needs (such as information within the other party’s control) to 

make its application. Where a prevailing party fails to 

provide the district court with this information, such an award 

may be denied.

19

 

 

19 An award may also be denied if the prevailing party 

engages in dilatory tactics during litigation or unnecessarily 

protracts the proceedings. Cf. City of Milwaukee v. Cement 

Div., Nat’l Gypsum Co., 515 U.S. 189, 196 (1995) (citing 

“undue delay” as “the most obvious example” justifying the 

denial of prejudgment interest (internal quotation marks 

omitted)); Gen. Motors Corp. v. Devex Corp., 461 U.S. 648, 

656-57 (explaining that in the patent infringement context, “it 

may be appropriate to limit prejudgment interest, or perhaps 

even deny it altogether, where the patent owner has been 

responsible for undue delay in prosecuting the lawsuit”). 

Consistent with Devex, we note that “[t]here may be other 

circumstances in which it may be appropriate not to award 
38

Here, the District Court stated that Leonard did not 

adequately address Stemtech’s assertion that the interest 

should be calculated based on “perhaps 92 different accrual 

dates and interest rates.” J.A. 1739. However, Leonard in 

fact offered to provide information on this topic if the Court 

deemed his proposed approach to use a single infringement 

date inadequate. Thus, Leonard was apparently ready to 

provide the information, including the dates on which he 

discovered each infringement. The District Court seems to 

have overlooked this offer, and therefore its views about the

difficulty in calculation may have been misplaced.

Because the District Court denied prejudgment interest 

based upon its view that Leonard was sufficiently 

compensated, its order “rest[ed] upon . . . errant 

conclusion[s] of law.” Pineda v. Ford Motor Co., 520 F.3d 

237, 243 (3d Cir. 2008). Moreover, because it found that 

calculating the interest was too difficult without fully 

considering the material Leonard was prepared to provide, its 

order rested on an erroneous finding of fact. We therefore 

will vacate the order denying an award of prejudgment 

interest and remand for the District Court to award 

prejudgment interest in the amount it deems appropriate 

under the governing law.

20

 

 

prejudgment interest,” but “[w]e need not delineate those 

circumstances in this case.” 461 U.S. at 657.

20 The District Court has discretion in selecting the 

appropriate interest rate and date(s) of infringement from 

which the interest begins to accrue. See Graham II, 646 F.3d 

at 146-51 (holding that prejudgment interest “may be 

awarded in appropriate cases from the initial accrual date” but 

leaving open the possibility that other cases may warrant 
39

D. Trial Issues

Stemtech also asserts that it is entitled to a new trial 

based upon alleged improper conduct by Leonard’s counsel 

and the erroneous admission of certain evidence. We will 

address these contentions in turn.

1. Counsel’s Conduct

Stemtech complains that Leonard’s counsel made 

comments during the trial that so prejudiced the jury that the 

District Court should have granted a new trial. Counsel’s 

conduct “constitutes reversible error” only where he or she 

engaged in “argument injecting prejudicial extraneous 

evidence,” Fineman v. Armstrong World Indus., Inc., 980 

F.2d 171, 210 (3d Cir. 1992), such that the “improper 

statements . . . so pervade[d] the trial as to render the verdict a 

product of prejudice,” Draper v. Airco, Inc., 580 F.2d 91, 96 

(3d Cir. 1978). “Because the trial judge was present and able 

to judge the impact of counsel’s remarks, we defer to his 

assessment of the prejudicial impact.” Fineman, 980 F.2d at 

207; Draper, 580 F.2d at 94 (recognizing that the trial judge 

has “considerable discretion in determining whether conduct 

by counsel is so prejudicial as to require a new trial”). We 

thus review the decision to grant or deny a motion for a new 

trial based upon counsel’s conduct for abuse of discretion. 

Fineman, 980 F.2d at 206. 

 

alternate approaches); see also Kansas, 533 U.S. at 11 

(concluding special master did not err in determining that 

“considerations of fairness . . . supported the award of at least 

some prejudgment interest” (emphasis added) (internal 

quotation marks omitted)).
40

Stemtech first argues that Leonard’s counsel 

“repeatedly referred to Stemtech as an international, 

multinational or global corporation” to highlight the financial 

disparity between Leonard and Stemtech. Appellant’s Br. 45

(emphasis omitted). Contrary to Stemtech’s assertions, 

reference to Stemtech’s international status was not a 

prominent “theme” throughout the trial, and thus even if 

improper, these isolated references do not constitute 

“argument injecting prejudicial extraneous evidence.”21 

Fineman, 980 F.2d at 210. 

Stemtech next argues that Leonard’s counsel used the 

wrong damages standard in his closing statement, but it did 

not object to these arguments during closing, and so the 

argument is waived.22 See Dunn v. HOVIC, 1 F.3d 1371, 

1377 (3d Cir. 1993) (failure to make timely objection to 

statements of counsel during closing argument is a waiver to 

challenging them on appeal). 

 

21 Similarly, Stemtech’s claim that Leonard’s counsel 

improperly insinuated that the company operated as a 

pyramid scheme is not a basis for a new trial. Not only were 

these references sporadic, but they also accurately describe 

Stemtech’s top-down business structure. In any event, the 

“pyramid” references do not make it “reasonably probable” 

that the jury’s verdict was influenced by these statements, 

Fineman, 980 F.2d at 207, and therefore do not warrant a new 

trial. 

22 To the extent Stemtech’s arguments on this point 

merely repeat its attack on Sedlik’s expert testimony, such 

arguments fail as we have determined that his testimony was 

properly admitted. 
41

Finally, Stemtech complains of “occasions that 

[Leonard’s counsel] argued unsupported issues[, which] are 

too numerous to discuss.” Appellant’s Br. 53. This broad 

statement does not suffice to preserve a claim of error on 

appeal. See Santomenno ex rel. John Hancock Trust v. John 

Hancock Life Ins. Co. (U.S.A), 768 F.3d 284, 292 n.3 (3d 

Cir. 2014) (discussing an issue in a single sentence may result 

in waiver); Long Hao Li v. Att’y Gen., 633 F.3d 136, 140 n.3 

(3d Cir. 2011) (“stray references” result in waiver); John 

Wyeth & Brother Ltd. v. CIGNA Int’l Corp., 119 F.3d 1070, 

1076 n.6 (3d Cir. 1997) (raising an issue “in passing” without 

“squarely argu[ing it]” results in waiver).

23

 

To the extent Stemtech has provided any details 

concerning such alleged misconduct, none provides a basis 

for granting a new trial. Stemtech’s contention that 

Leonard’s counsel improperly argued that Stemtech profited 

from the infringements “despite the absence of any such 

evidence,” Appellant’s Br. 54, is meritless because there was 

sufficient evidence to permit counsel to argue that Stemtech 

profited from the use of the images, including the testimony 

 

23 Similarly, Stemtech’s argument that a new trial is 

warranted due to counsel’s “additional unsupported and 

improper statements and arguments,” Appellant’s Br. 55 

(capitalization omitted), that amounted to “pleas of pure 

passion . . . [and] blatant appeals to bias and prejudice,” 

Draper, 580 F.2d at 95, has been waived. Stemtech did not 

object to any of the summation statements it claims were 

directed to bias and passion. See Dunn, 1 F.3d at 1377. Even 

if Stemtech had preserved these claims of error, “at least for 

civil trials, improper comments during closing arguments 

rarely rise to the level of reversible error.” Id. (quotation 

marks, citation, and alteration omitted). 
42

from Stemtech employees that depicting stem cells was 

important to selling products that purportedly enhanced stem 

cell production.

Stemtech’s assertion that Leonard’s counsel 

improperly argued that the evidence of infringement 

presented at trial was “only the tip of the iceberg” also does 

not provide a basis for a new trial. According to Stemtech, 

Leonard, his counsel, and Sedlik each used language at the 

trial that suggested that there were likely additional acts of 

infringement by Stemtech and its distributors that were not 

presented at trial. To the extent Stemtech makes claims about 

what Leonard and Sedlik said during their testimony, this is 

not conduct of counsel and is irrelevant. To the extent 

Stemtech complains about counsel’s use of the phrase during 

his argument, such a stray remark does not make it 

“reasonably probable” that the verdict was influenced by 

these statements and thus does not warrant a new trial. 

Fineman, 980 F.2d at 207.24

 

24 The District Court excluded as speculative Sedlik’s 

opinion that the 92 infringing examples that would be 

presented at trial were only the “tip of the iceberg.” J.A. 638-

40 (order granting motion in limine in part and barring “tip of 

the iceberg” statement and opinion regarding licensing fees 

for images not at issue in the case). To the extent Stemtech 

argues Sedlik’s testimony that “looking for usages on the 

internet is . . . an endless field of haystacks” violated this 

ruling, Stemtech objected and the District Court sustained the 

objection. J.A. 1381. Moreover, the District Court instructed 

the jury at the outset of trial that it should disregard evidence 

to which an objection was lodged when the objection is 

sustained, J.A. 766 (“If [an] objection is sustained, ignore the 

question.”), and jurors are presumed “to follow their 
43

For these reasons, the District Court did not abuse its 

discretion in determining that none of Leonard’s counsel’s 

conduct warrants a new trial.

2. Evidentiary Rulings

The final basis for Stemtech’s motion for a new trial is 

that the District Court erred in admitting certain evidence. 

Under Fed. R. Evid. 103 and Fed. R. Civ. P. 61, “a finding of

reversible error may not be predicated upon a ruling which 

admits or excludes evidence unless a substantial right of the 

party is affected.” Becker v. ARCO Chem. Co., 207 F.3d 

176, 180 (3d Cir. 2000) (internal quotation marks omitted); 

Goodman v. Pa. Tpk. Comm’n, 293 F.3d 655, 676 (3d Cir. 

2002) (“A motion for a new trial should be granted where 

substantial errors occurred in admission or rejection of 

evidence.”). In the context of evidentiary issues raised in 

support of a request for a new trial, “particular deference is 

appropriate where the decision to grant or deny a new trial 

rested on the district court’s evidentiary ruling that itself was 

entrusted to the trial court’s discretion.” Becker, 207 F.3d at 

180 (internal quotation marks omitted). 

We review preserved evidentiary objections for abuse 

of discretion. McKenna v. City of Phila., 582 F.3d 447, 460 

(3d Cir. 2009). Where, however, a party failed to object to 

the admission of evidence before the District Court, we deem 

that objection waived on appeal. See Lloyd v. HOVENSA, 

LLC, 369 F.3d 263, 272-73 (3d Cir. 2004) (observing that “it 

is inappropriate for an appellate court to consider a contention 

 

instructions.” Richardson v. Marsh, 481 U.S. 200, 211 

(1987).
44

raised on appeal that was not initially presented to the district 

court”) (internal quotation marks omitted); Waldorf v. Shuta, 

142 F.3d 601, 629 (3d Cir. 1998) (failure to object at trial 

results in waiver).

Stemtech argues that the District Court abused its 

discretion in admitting numerous exhibits and testimony, 

which it claims warrant granting a new trial. To the extent 

Stemtech argues that the District Court erred in admitting 

certain evidence that lacked a proper foundation, Stemtech 

has waived such an objection because the District Court 

clearly ruled that foundation objections needed to be raised 

when the allegedly objectionable exhibits were offered at 

trial, and Stemtech failed to lodge a contemporaneous 

objection. 

As for the 92 exhibits depicting infringing uses of 

Leonard’s images, Stemtech objected to the admission of 

these exhibits on relevance and foundation grounds. The 

District Court properly overruled the foundation objections, 

as a foundation for the documents was laid. First, Leonard

explained how he found the items and identified the indicia 

within the items that showed their connection to Stemtech. 

Second, Leonard testified that he contacted certain website 

owners and learned they were Stemtech distributors. Third, 

Stemtech failed to provide a basis to question whether the 

websites embodied in the screenshots were connected to the 

Stemtech enterprise. In addition to the fact that the contents 

of the screenshots showed their connections with Stemtech, 

Dr. Rivka Rachel, a Stemtech distributor, testified about 

several Stemtech websites that were captured in the 

Leonard’s screenshots. 
45

Furthermore, the exhibits were relevant because, as the 

District Court stated, they are “part of what is at issue in 

terms of the allegations of infringement,” since they reflect 

the infringements Leonard discovered online. J.A. 850. For 

these reasons, the District Court properly admitted the 

documents embodying the infringing images. 

We have reviewed all of Stemtech’s other arguments 

concerning its evidentiary objections and conclude that the 

arguments have either been waived or are meritless because

the admission of the evidence about which Stemtech

complains did not affect its substantial rights.

For these reasons, none of Stemtech’s evidentiary 

arguments warrants a new trial. 

E. Fee Disputes

Finally, we address the two attorneys’ fees disputes: 

one arising from a discovery-related award and the second 

stemming from the second lawsuit Leonard filed against 

Stemtech.

1. Discovery Violation Award

Stemtech challenges the District Court’s order granting 

Leonard fees and costs incurred in taking a Stemtech 

employee’s deposition.25 Fed. R. Civ. P. 37(c)(2) provides:

If a party fails to admit what is requested under 

Rule 36 and if the requesting party later proves . 

 

25 We review the decision to impose sanctions for 

abuse of discretion. Bowers v. Nat’l Collegiate Athletic 

Ass’n, 475 F.3d 524, 538 (3d Cir. 2007). 
46

. . the matter true, the requesting party may 

move that the party who failed to admit pay the 

reasonable expenses, including attorney’s fees, 

incurred in making that proof. The court must 

so order unless:

(A) the request was held objectionable 

under Rule 36(a);

(B) the admission sought was of no 

substantial importance;

(C) the party failing to admit had a 

reasonable ground to believe that it might 

prevail on the matter; or

(D) there was other good reason for the 

failure to admit.

Fed. R. Civ. P. 37(c)(2).

Leonard sought to prove that Stemtech controlled its 

distributors through, among other things, the use of Requests 

for Admission under Fed. R. Civ. P. 36.26 To this end, 

Leonard sent Requests for Admission to Stemtech “seeking 

Stemtech’s admission that it provided its independent 

distributors with internet sub-domains to the official Stemtech 

owned domain.” Appellee’s Br. 65 (citing J.A. 351-69). 

Stemtech denied these requests. 

Leonard later deposed George Tashjian, Stemtech’s 

Information Technology Director. Tashjian testified that (1) 

he had never seen the requests for admission, nor had he been 

asked for his input into the answers; (2) Stemtech provided 

 

26 Rule 36 provides a tool to streamline the proof of 

controverted facts. See Fed. R. Civ. P. 36.
47

distributors with internet sub-domains associated with 

Stemtech’s parent website, stemtechbiz.com; and (3) the 

requests for admission concerning Stemtech’s ownership of 

the domain that Stemtech denied were, in fact, true and 

should have been admitted. Tashjian’s testimony therefore 

established that Stemtech wrongly denied certain requests for 

admissions.

Nearly two years later, Leonard moved for an award of 

fees and costs incurred in taking Tashjian’s deposition. See

Fed. R. Civ. P. 37(c)(2). The District Court granted the 

motion in part, awarding 50% of the $3,048.30 requested, 

because only a portion of the deposition pertained to the 

control issue. 

Stemtech’s conduct falls within the ambit of Rule 

37(c)(2) and, despite Stemtech’s argument that the sanctions 

motion was not expeditiously filed and the requested 

admission pertained to a matter of no substantial importance 

under Rule 37(c)(2)(B), this exception to the mandatory 

imposition of sanctions does not apply. Leonard sought the 

admission of facts concerning Stemtech’s control over its 

distributors’ websites, which was a crucial component of 

Leonard’s vicarious and contributory infringement claims. 

Because this issue was central to Leonard’s secondary 

infringement claims, Stemtech had no factual basis for 

denying the request, and Leonard incurred expenses to prove 

these facts during Tashjian’s deposition, the District Court did 

not abuse its discretion in awarding sanctions to Leonard. 

See Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, 

774 F.3d 1065, 1074-75 (6th Cir. 2014) (holding that the 

district court did not abuse its discretion in awarding nominal 

Rule 37(c)(2) sanctions and costs where withholding party 
48

“did not have reasonable grounds to believe it might 

prevail”).

2. Stemtech’s Prevailing Party Fee Request

We are also asked to review a fee ruling arising from 

Leonard’s second lawsuit against Stemtech, alleging new 

infringing uses he discovered while this case was pending. 

The District Court granted Stemtech’s motion for summary 

judgment in the second case. As the prevailing party in the 

second suit, Stemtech moved for an award of attorney’s fees 

pursuant to 17 U.S.C. § 505. The District Court denied the 

motion.

The Copyright Act permits a discretionary award of 

attorneys’ fees to the prevailing party in a copyright lawsuit. 

17 U.S.C. § 505; Fogerty v. Fantasy, Inc., 510 U.S. 517, 533 

(1994) (noting § 505 “clearly connotes discretion” and a 

district court may not “award[] attorney’s fees as a matter of 

course”). Several factors guide the exercise of discretion in 

this context, including “frivolousness, motivation, objective 

unreasonableness (both in the factual and legal components of 

the case) and the need in particular circumstances to advance 

considerations of compensation and deterrence.” Id. at 534 

n.19 (quoting Lieb. v. Topstone Indus., Inc., 788 F.2d 151, 

156 (3d Cir. 1986)). The Supreme Court recently reaffirmed 

that § 505 fee awards are discretionary and placed extra, but 

not controlling, weight on the “objective unreasonableness” 

factor, and reminded courts to consider the totality of the 

circumstances and make a “particularized, case-by-case 

assessment.” Kirtsaeng v. John Wiley & Sons, Inc., 136 S. 

Ct. 1979, 1985 (2016) (quoting Fogerty, 510 U.S. at 527, 534 

n.19). 
49

The District Court did not abuse its discretion when it 

denied Stemtech’s fee motion in the second suit. The District 

Court applied the Fogerty factors and determined that there 

was no evidence that Leonard’s decision to file the second 

suit was objectively unreasonable, frivolous, or in bad faith 

because “Leonard ha[d] reason to believe Stemtech was 

engaged in ongoing and new infringement, that was not the 

subject of [the first suit],” and accordingly “had a nonsanctionable, non-frivolous basis to file [the second suit].” 

J.A. 40. Despite the temporal proximity between the filing of 

the second suit and unfavorable rulings in this case, where 

Leonard was denied leave to amend his complaint and the 

ability to seek infringer’s profits and statutory damages, the 

District Court appropriately adopted the Magistrate Judge’s 

findings that “the filing of [the second suit] was not an endrun around” these adverse rulings in the first suit but rather 

stemmed from Leonard’s belief that Stemtech continued to 

engage in new infringing activity, and thus was not “a bad 

faith attempt to re-litigate issues that have been decided 

[against Leonard] in [the first suit].” J.A. 40-41 (internal 

quotation marks omitted). Because it had a factual basis for 

concluding that the filing of the second suit was objectively 

reasonable, the District Court acted within its discretion in 

denying Stemtech’s fee motion.

III

For the foregoing reasons, we will affirm the District 

Court’s rulings on all issues except for its order denying 

Leonard’s motion for prejudgment interest, which we will

vacate and remand for further proceedings.