### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 2847

E NTERTAINMENT USA, I NC

., Plaintiff

‐ Appellant

,

v.

M OOREHEAD C OMMUNICATIONS

, I NC

., Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, Fort Wayne Division.

No. 12

‐ CV

‐ 116

— Robert L. Miller, Jr.

, Judge

.

____________________

A RGUED F EBRUARY 21, 2018

— D ECIDED J ULY 26, 2018

____________________

Before R IPPLE

, K ANNE

, and H AMILTON

, Circuit Judges

.

H AMILTON

, Circuit Judge

. In 2006, plaintiff Entertainment

USA sold cellular telephones and service contracts in central

Pennsylvania through a network of retail dealers. Defendant

Moorehead Communications, an Indiana company, sought to

break into that geographic market by offering dealers the

chance to sell Verizon products and services. Without aid of

counsel, the two companies signed a two

‐ page “referral

agreement” connecting Moorehead with a number of2 No. 17

‐ 2847

Entertainment USA’s dealers. The agreement promised

Entertainment USA a “referral fee” for every Verizon

activation or upgrade that resulted.

Six years later, this referral agreement became the subject

of litigation in the Northern District of Indiana. Entertainment

USA alleged that Moorehead breached the agreement by

discontinuing the referral payments. After a bench trial, the

district court agreed that Moorehead had breached, but in

much narrower ways than Entertainment USA had claimed.

The court also found, however, that Entertainment USA had

failed to prove the amount of its damages with reasonable

certainty. The court therefore awarded no damages to

Entertainment USA. Entertainment USA, Inc. v. Moorehead

Communications, Inc

., 2017 WL 3432319 (N.D. Ind. Aug. 9,

2017). We affirm.

I. Factual Background and Procedural History

A. The Referral Agreement

This case is about selling cell phones. More specifically, it

is about who sells cell phones. When a customer walks into a

cellular telephone retail store, depending on the store, the

customer may have a choice of wireless carrier service

contracts with different companies (e.g., AT&T, T

‐ Mobile,

etc.), or the store may offer only one option (e.g., only Verizon

or only Sprint). Whether the customer has a choice of carrier

or not depends on the licensing status of the store owner and

its wholesaler, and the licensing policies of the various

carriers.

In 2006, plaintiff Entertainment USA—doing business as

One Wireless World or “OWW,” as the parties’ documents

sometimes called it—operated as a cell phone wholesaler andNo. 17

‐ 2847 3

licensor. It had a network of affiliated dealers and retail stores

in central Pennsylvania. 1 At that time, the stores affiliated

with Entertainment USA offered their customers service

contracts through several different carriers, including AT&T,

Sprint, and T

‐ Mobile. Entertainment USA did not have a

relationship with Verizon, however, so its stores could not

offer customers Verizon service. Around this time, defendant

Moorehead Communications, a Verizon master agent based

in Indiana, sought to expand its presence in central

Pennsylvania by signing up dealers and their stores with

Verizon.

Entertainment USA had the kind of stores Moorehead

sought to do business with, but Entertainment USA would

probably lose out on some revenue from offering service

through other carriers if its stores added Verizon to its lineup.

So the parties made a deal: the referral agreement whereby

Entertainment USA agreed to refer some of its stores to

Moorehead for consideration as potential new Verizon

locations. In return, Moorehead agreed to pay Entertainment

USA a “referral bonus” for each new Verizon activation that

eventually resulted from this arrangement, whether or not the

referred stores continued to offer service with other carriers.

Representatives for both sides worked together to draft a two

‐

page contract formalizing this arrangement in January 2006,

though neither side engaged counsel. The relevant portions of

the referral agreement are as follows:

1 The trade name One Wireless World was used by several related

wireless wholesaling companies run at the time by brothers Chau and

Chinh Nguyen. To minimize confusion, we use the plaintiff entity’s name,

Entertainment USA, to refer to all of the related entities on that side of the

disputed referral agreement.4 No. 17

‐ 2847

The proposed referral fee is designed to

compensate OWW for location handoffs and

offset loss incurred from adding another

carrier to their Branded Store’s existing lineup.

This will also include any locations, other than

the current list of Branded stores that are

approved through Verizon and signed up

under Moorehead Communications in the

future that are referred directly to us by the

OWW group.

Moorehead is proposing the following:

‐ For all handoffs / referrals from OWW,

dating back to Jan 1, 2006 and any locations

that are approved following that date as a

direct result of an OWW referral, we will

pay a referral bonus in the amount

described below.

Monthly Activations for the referred group

*** 20$ per activation (New Activations Only)

to assist with ramp up period which will

remain in effect 6 months from the date this

agreement is signed by both parties. After

which, referral bonus will be adjusted to the

appropriate tier. (See Below)

50

‐ 150 per month

‐ 10$ referral bonus per

activation

151

‐ 250 per month

– 15$ referral bonus per

activation

251

‐ 350 per month

– 20$ referral bonus per

activationNo. 17

‐ 2847 5

351

‐ 450 per month

– 25$ referral bonus per

activation

451

‐ 500 per month

– 30$ referral bonus per

activation

501 per month and higher

– 35$ referral bonus

per activation

*There will be a flat fee of 10$ per 2 year

upgrade in addition to items listed above.

Dkt. 1 at 7.

From early 2006 until sometime in 2008, Moorehead paid

referral fees on a regular basis to Entertainment USA under

this agreement. Though the agreement did not specifically

define the term “activation,” Moorehead paid referral fees for

“two

‐ year phone activations (new lines of service) and two

‐

year upgrades”—the kinds of phone sales that entailed new

two

‐ year service contracts with Verizon. Though it also did

not define “location,” the agreement did include an initial list

of referred locations, with the name of each store, its

owner/operator, and its address or city. After Sprint required

exclusivity from all of its wholesalers and dealers in late 2006,

Entertainment USA referred several more stores to

Moorehead—the stores that did not wish to become exclusive

Sprint retailers. From 2006 to 2008, Moorehead paid

$70,979.50 in referral fees with respect to six referred stores

that sold Verizon products.

In 2008, Moorehead stopped paying referral fees to

Entertainment USA, and around that time, Entertainment

USA’s “OWW group” of stores stopped selling Sprint

products entirely. Chau Nguyen then started a new company

and proposed a new referral agreement to Moorehead.6 No. 17

‐ 2847

Moorehead declined. From 2009 to 2011, Chau Nguyen sent

several more requests for commission reports and payments

to Moorehead, to no avail.

B. The Lawsuit

In April 2012, about four years after the payments

stopped, Entertainment USA filed its complaint alleging a

breach of contract, requesting an equitable accounting, and

claiming unjust enrichment. Since “Moorehead has and

continues to enjoy the fruits of” the plaintiff’s referrals, the

complaint alleged, Moorehead should have continued to pay

referral fees under the contract. Moorehead agreed in part, as

shown by two additional payments it made to Entertainment

USA after the suit was filed, totaling $52,273.24. After

tendering those additional payments, though, Moorehead

answered the complaint and asserted that it had paid

Entertainment USA in full. Given that the parties were

citizens of different states litigating an amount in controversy

estimated in the millions, federal jurisdiction was secure. See

28 U.S.C. § 1332(a). The parties agreed that Indiana contract

law applied.

The parties filed cross

‐ motions for summary judgment in

2014. Entertainment USA, Inc. v. Moorehead Communications,

Inc.

, 93 F. Supp. 3d 915, 922 (N.D. Ind. 2015). Judge Lozano

resolved several of the disputed issues on summary

judgment. He decided that the agreement’s term “referred

locations” meant only physical locations and not individuals

and entities, id. at 924–25, 926, and decided that Entertainment

USA’s unjust enrichment claim had to be rejected as

duplicative because it covered the same subject matter as a

contract (the referral agreement), id. at 934–35. The rest of the

issues, including questions about the duration of theNo. 17

‐ 2847 7

agreement, the precise meaning of the term “activations,” and

whether there were additional “directly referred” locations

beyond a list stipulated to by Moorehead, remained for trial.

Id. at 927, 930, 931–32.

The case was transferred to Judge Miller, who held a bench

trial in August 2016 and set forth his findings in a thorough

order. Judge Miller agreed with Entertainment USA that the

parties “intended an agreement that would live on as long as

any referred location was producing activations,” though he

sided with Moorehead that only two

‐ year post

‐ paid phone

contracts counted as “activations.” 2017 WL 3432319, at *6,

*13. Since the agreement required fee payments from any

“referred location,” the district court went store

‐ by

‐ store to

determine which of the many alleged stores were in fact

referred by the plaintiff, settling on a list of twelve stores. Id.

at *14.

Although the district court’s findings on liability could

have set up Entertainment USA to recover a significant

portion of its requested damages, the district court saw a

fundamental problem with the plaintiff’s damages

presentation: Entertainment USA “provides no help in

identifying any difference between what was paid and what

was due under the referral agreement as the court construes

it.” Id. at *15. In essence, the plaintiff presented a damages

calculation aligned with its broad theories of liability, but it

did not present an estimate or evidence that could, with

reasonable effort, be disaggregated and recalculated in

accordance with the district court’s much narrower bases for

finding liability. Id. Examining other exhibits in the record did

not help the judge, since the plaintiff’s “numbers differ

frighteningly from the Moorehead records introduced into8 No. 17

‐ 2847

evidence,” and the plaintiff’s numbers were purportedly

based on six additional years of data not contained in the

record. See id

. 2

Citing Indiana law, which requires a plaintiff to prove its

breach of contract damages with reasonable certainty, see

R&R Real Estate Co. v. C&N Armstrong Farms, Ltd.

, 854 N.E.2d

365, 370–71 (Ind. App. 2006), the district court concluded:

Even a reasonable estimate can’t be achieved on

this record.

.... [Entertainment USA] hasn’t

proved that it was paid any less than it should

have been. This record doesn’t support a

damages award in any amount.

2017 WL 3432319, at *16. Since the plaintiff had full use of the

discovery process yet still failed to prove its damages with

any certainty, the district court also denied an equitable

accounting. Id. at *17. As a result, the district court ruled that

“Entertainment USA, Inc.

... shall take nothing by its

complaint.” Id. The plaintiff appeals that determination, as

well as all of the other decisions that led to the district court’s

judgment, except for the dismissal of its unjust enrichment

claim.

II. Analysis

A. Standard of Review

Entertainment USA urges us to revisit all of the district

court’s many conclusions about how to interpret the contract,

2 As seen above at 4–5, the per

‐ activation referral fee depended in part

on the per

‐ month volume of the “referral group” of stores. That means

that a correct calculation of the amount due would require analysis of all

the data about all the relevant sales in all time periods.No. 17

‐ 2847 9

its denial of an equitable accounting, and its critical finding

on damages. We focus on the damages issue, which is

sufficient to decide virtually all of this appeal. As we have

said in other complex cases with fatal shortcomings of proof:

“It is not always necessary to march through this entire

process if a single issue proves to be dispositive.” Lesch v.

Crown Cork & Seal Co.

, 282 F.3d 467, 473 (7th Cir. 2002)

(declining to sort through all of the evidence of employment

discrimination under McDonnell Douglas Corp. v. Green

, 411

U.S. 792 (1973), when plaintiff failed to show pretext); Harden

v. Marion County Sheriff’s Dep’t

, 799 F.3d 857, 866 (7th Cir. 2015)

(same). Here, that core issue is whether Entertainment USA

met its burden in proving damages with reasonable certainty

under Indiana law. See National American Insurance Co. v.

Artisan & Truckers Casualty Co.

, 796 F.3d 717, 723 (7th Cir. 2015)

(“In diversity cases, we apply federal procedural law and

state substantive law.”), citing Allen v. Cedar Real Estate Group,

LLP

, 236 F.3d 374, 380 (7th Cir. 2001); see generally Erie

Railroad Co. v. Tompkins

, 304 U.S. 64 (1938).

We review the district court’s decision on damages for

clear error. Advertising Specialty Institute v. Hall

‐ Erickson, Inc.

,

601 F.3d 683, 688 (7th Cir. 2010) (applying Pennsylvania’s

“reasonable certainty” requirement for contract damages).

We do not ask “what we would find were we sitting at the

trial level.” Id.

, citing Lever v. Northwestern University

, 979 F.2d

552, 553–54 (7th Cir. 1992), and Jones v. Hamelman

, 869 F.2d

1023, 1031 (7th Cir. 1989). Instead, we “must affirm if the

district court’s account of the evidence is plausible” in light of

the whole record, asking whether “a reasonable trier of fact

could conclude that the proffered evidence falls short of

proving damages with reasonable specificity.” Id. ; see also

Trustees of Chicago Painters & Decorators Pension, Health &10 No. 17

‐ 2847

Welfare, & Deferred Savings Plan Trust Funds v. Royal Int’l

Drywall & Decorating, Inc.

, 493 F.3d 782, 785 (7th Cir. 2007) (“In

an appeal from a bench trial, we review a district court’s

conclusions of law de novo, and we review its findings of fact,

as well as applications of law to those findings of fact, for clear

error.”) (cleaned up). As the Indiana courts have observed, the

role of an appellate court in cases like this is to “focus upon

the evidence in favor of the judgment and any reasonable

inferences to be drawn therefrom.” Gigax v. Boone Village L.P.

,

656 N.E.2d 854, 857 (Ind. App. 1995), citing K

‐ Mart Corp. v.

Beall

, 620 N.E.2d 700, 706 (Ind. App. 1993).

B. Damages

The “essential elements of any breach of contract claim are

the existence of a contract, the defendant’s breach thereof, and

damages.” Old Nat’l Bank v. Kelly

, 31 N.E.3d 522, 531 (Ind.

App. 2015), quoting Holloway v. Bob Evans Farms, Inc.

, 695

N.E.2d 991, 995 (Ind. App. 1998); see also Haegert v. University

of Evansville

, 977 N.E.2d 924, 937 (Ind. 2012) (“the plaintiff

must prove

... damages resulting from the breach”). Indiana

contract law requires a plaintiff to prove its damages with

reasonable certainty:

In actions for breach of contract, damages must

be proven with reasonable certainty. Noble

Roman ʹ s, Inc. v. Ward

, 760 N.E.2d 1132, 1140

(Ind.Ct.App.2002). While the plaintiff need not

prove the amount of damages suffered to a

mathematical certainty, the award must be

supported by evidence in the record. [ Gigax

, 656

N.E.2d at 856.] A factfinder may not award

damages on the mere basis of conjecture or

speculation. Noble Roman ʹ s

, 760 N.E.2d at [1140].No. 17

‐ 2847 11

As the party that had the burden of proving

damages, R & R is appealing from a negative

judgment. See id. Consequently, R & R must

demonstrate that the damage award is clearly

erroneous or contrary to law to have it set aside.

Id.

R&R Real Estate

, 854 N.E.2d at 370–71 (cleaned up).

This burden falls on the plaintiff because damages are an

element of a breach of contract action—a plaintiff cannot

recover anything without “proving with reasonable certainty

the damages which he incurred” due to the breach. Indiana

Bell Tel. Co. v. O’Bryan

, 408 N.E.2d 178, 183 (Ind. App. 1980),

citing Daly v. Nau

, 339 N.E.2d 71 (Ind. App. 1975), and Bond v.

Snyder Construction Co.

, 234 N.E.2d 659 (Ind. App. 1968); see

also City of North Vernon v. Voegler

, 2 N.E. 821, 824 (Ind. 1885)

(“In every valid cause of action two elements must be present,

the injury and the damages. The one is the legal wrong which

is to be redressed; the other, the scale or measure of the

recovery.”).

While seeking to recover “the benefit of the bargain,”

Berkel & Co. Contractors, Inc. v. Palm & Assocs., Inc.

, 814 N.E.2d

649, 658 (Ind. App. 2004), a plaintiff may use any “proper

evidence” to measure damages, see Indianapolis City Market

Corp., v. MAV, Inc.

, 915 N.E.2d 1013, 1024–25 (Ind. App. 2009),

citing Berkel & Co.

, 814 N.E.2d at 658. Trial testimony can

support a decision on damages, as long as the evidence in

total is “sufficient to enable the factfinder to make a fair and

reasonable finding as to the proper damages.” Id. at 1025,

citing Jerry Alderman Ford Sales, Inc. v. Bailey

, 291 N.E.2d 92,

106 (Ind. App. 1972). An award of damages must be “within12 No. 17

‐ 2847

the scope of the evidence that was presented at trial” and

cannot stray beyond that scope. Id. at 1026.

This means that to award damages at all, a judge finding

a breach of contract after a trial must have enough reliable

evidence available to support a damages award without

resorting to speculation or conjecture. See Vaughn v. General

Foods Corp.

, 797 F.2d 1403, 1416 (7th Cir. 1986) (applying

Indiana law). The “award must be supported by evidence in

the record,” or it is improper, Gigax

, 656 N.E.2d at 856, though

this analysis “does not require any particular degree of

mathematical certainty” and “where there is doubt as to the

exact proof of damages, such uncertainty must be resolved

against the wrongdoer,” Stoneburner v. Fletcher

, 408 N.E.2d

545, 550 (Ind. App. 1980), citing Friendship Farms Camps, Inc. v.

Parson

, 359 N.E.2d 280 (Ind. App. 1977) and Gene B. Glick Co.

v. Marion Construction Corp.

, 331 N.E.2d 26 (Ind. App. 1975).

Reasonable estimates are enough, as long as they are

supported by a factual basis. See id. at 550–51 (upholding

award where “a reasonably sound factual basis for the award

[could] be found”).

Entertainment USA’s presentation of damages fell well

short of this modest threshold. The presentation consisted of

several demonstrative spreadsheets that summarized

Moorehead’s relevant account records, and calculated

expected referral fees in accordance with the plaintiff’s

sweeping theory of liability, arriving at a total damages

estimate of $2,282,550. See Dkt. 157–5; Dkt. 174–4 at 1. Chau

Nguyen, who prepared this estimate himself, admitted in his

trial testimony that he based his count of qualifying

activations on appearances of generic terms like “NEWACT:”

and “UPGR:” in Moorehead’s account records, terms whichNo. 17

‐ 2847 13

included many instances of non

‐ compensable activity like

dealer incentive payments, customer returns, and even

upgrade deactivations

. Dkt. 173 at 567–73. In response,

Moorehead submitted its own summary of the relevant

records matching its theory of the case, which estimated the

total referral fees due to be $20,600—well below the amount

Moorehead had already paid Entertainment USA. See Dkt.

175 at 6. Neither side’s estimate contained citations to the

docket or trial record, making verification of the underlying

methods nearly impossible. Since the district court’s liability

findings did not accord with the assumptions built into any

of these calculations, the parties, and especially the plaintiff,

which had the burden of proof, left the court without reliable

guidance in finding a supportable figure somewhere between

$20,600 and $2.28 million.

Entertainment USA argues on appeal that the judge had

all the information needed to re

‐ calculate damages in

accordance with his findings, and points out that the

summary spreadsheets were provided in its written closing

argument. See Dkt. 174 at 20–22; Dkt. 174–4. This argument

vastly overstates the reliability, clarity, and usefulness of the

plaintiff’s presentation. The judge would have had to exclude

rows of data that did not match the court’s liability findings,

then excise columns that also did not match, then select a new

per

‐ activation “referral bonus” amount from the sliding scale

in the contract (despite not having a month

‐ by

‐ month

breakdown of sales). Then the judge would have had to

simply trust that the underlying counts of activations and

upgrades were correct, despite Chau Nguyen’s testimony that

those counts were incorrect. No trial judge could (or should)

have done what Entertainment USA urges here. It was not14 No. 17

‐ 2847

error—let alone clear error—to refuse to award damages on

such an infirm basis.

Entertainment USA attempts to explain away the errors in

Chau Nguyen’s damages estimate by reference to a pretrial

discovery dispute it lost. Moorehead produced some pre

‐ 2013

account records in Adobe Portable Document Format (PDF)

files instead of in spreadsheet form, making Chau Nguyen’s

task more difficult. See Dkt. 72. On appeal, however, the

parties agreed that this discovery dispute about the file

format of document production actually pertained not to

Verizon activations and upgrades, but instead to satellite

television services not relevant to this appeal. Even if the file

format dispute were relevant, Entertainment USA had every

opportunity to present an accurate estimate of damages. As

the district court wrote in rejecting the plaintiff’s request for

an accounting:

This court held several hearings, issued 6

separate written rulings on discovery

‐ related

motions, issued a 47

‐ page summary judgment

order, and conducted a 3

‐ day bench trial on

[Entertainment USA’s] complaint for damages,

with this 40

‐ page opinion setting forth findings

of fact and conclusions of law. The trial record

doesn’t suggest that Moorehead produced

anything short of what it was ordered to do in

discovery

... .

2017 WL 3432319, at *17. 3

3 There is yet another problem with Entertainment USA’s expectation

that the district court re

‐ engineer its damages estimate—the credibility of

the estimator. In two incidents in the course of discovery, Chau NguyenNo. 17

‐ 2847 15

Of course, in a case with multiple disputed legal

interpretations, Entertainment USA could not have predicted

in advance precisely how the district court would rule on

liability. It needed to plan accordingly and present its

evidence in a format that would allow reliable adjustments.

Yet Entertainment USA did not even attempt to present the

district court with a damages estimate matching the court’s

liability findings. It did not file a motion to reconsider after

the district court’s post

‐ trial ruling. Even on appeal, it was still

unable to give this court such an estimate.

Motions to reconsider are not explicitly provided for in the

Federal Rules of Civil Procedure or in this district court’s local

rules, but filing them is a common practice in many district

courts in situations like this. (We have even reversed district

courts on occasion for failing to grant them. See, e.g., Terry v.

Spencer

, 888 F.3d 890, 893–94 (7th Cir. 2018) (district court

abused its discretion by misapprehending the law and

substance of a motion for reconsideration).) In fact, Judge

Miller ruled on at least three motions to reconsider in other

cases in the six months leading up to his post

‐ trial ruling. See

Patrick v. Cowen

, No. 3:14

‐ CV

‐ 782 RLM, 2017 WL 993067 (N.D.

Ind. Mar. 15, 2017); Valley Forge Insur. Co. v. Hartford Iron &

drew his trustworthiness into serious doubt. First, he “doctored an

important email” regarding the payment of referral fees. 2017 WL

3432319, at *4. Second, Moorehead filed an affidavit from a former

Entertainment USA dealer accusing Chau Nguyen of deliberately

withholding documents in discovery. Chau’s alleged plan was to “‘punch’

Moorehead’s counsel ‘in the face’ with the documents at a later date.” Dkt.

63–3 at 2. Chau responded with an affidavit of his own denying the

statement, Dkt. 70–3, and the matter was dropped. Given both of these

incidents in discovery, the district court was entitled to look skeptically at

the assumptions underlying Entertainment USA’s estimates.16 No. 17

‐ 2847

Metal, Inc.

, No. 1:14

‐ cv

‐ 6 RLM

‐ SLC, 2017 WL 1546277 (N.D.

Ind. Apr. 28, 2017); Brown v. Biomet Orthopedics, LLC

, No. 3:14

‐

CV

‐ 1470 RLM

‐ MGG, 2017 WL 2684856 (N.D. Ind. Jun. 22,

2017). In one such order, the judge noted the availability of

Rule 59(e) motions to correct a judgment within 28 days.

Valley Forge

, 2017 WL 1546277 at *1, citing Fed. Rule Civ. Pro.

59(e). He correctly observed that motions to reconsider exist

to spare parties and courts unnecessary appeals. Id.

, quoting

Russell v. Delco Remy Div. of Gen. Motors Corp.

, 51 F.3d 746, 749

(7th Cir. 1995). Perhaps the district court might have been

persuaded by a responsive and reliable damages estimate that

fit its findings of liability, and perhaps the plaintiff would

have been satisfied with that result. But we cannot know since

Entertainment USA decided to invoke our clear

‐ error review

instead. 4 Since the district court did not make an error, we

affirm its judgment. Regardless of the scope of potential

liability under the referral agreement, Entertainment USA did

not show the district court that it was entitled to any recovery.

C. Equitable Accounting

The plaintiff’s failure to prove its damages with reasonable

certainty also shows why its request for an equitable

accounting must fail. Because this was a request for an

equitable remedy, we review its denial by the district court for

an abuse of discretion. ABM Marking, Inc. v. Zanasi Fratelli,

S.R.L.

, 353 F.3d 541, 544–45 (7th Cir. 2003), citing EEOC v.

4 If Entertainment USA had presented a responsive, reliable, and

updated damages estimate to the district court and been denied, it could

have sought review of that decision for an abuse of discretion. Selective

Insur. Co. of South Carolina v. City of Paris

, 769 F.3d 501, 507 (7th Cir. 2014)

(“We review denials of motions for reconsideration brought under Rules

59(e) and 60(b) for abuse of discretion.”). But that did not happen here.No. 17

‐ 2847 17

Laborers’ Int’l Union of N. Am., AFL

‐ CIO, Local 100

, 49 F.3d 304,

307 (7th Cir. 1995); see also Lily, Inc. v. Silco, LLC

, 997 N.E.2d

1055, 1076 (Ind. App. 2013) (“Generally, an action for an

accounting is a proceeding in equity and is addressed to the

sound discretion of the trial court.”), citing Atwood v. Prairie

Village Inc.

, 401 N.E.2d 97, 100 (Ind. App. 1980), and 1 I.L.E.

Accounts and Accounting § 1.

Under Indiana law, the main purpose of an equitable

accounting is the “striking of a balance between parties in a

fiduciary relationship

... and enforcing payment of the

difference, if any, to the party entitled thereto.” Atwood

, 401

N.E.2d at 100 (citations omitted). We will not find its denial to

be an abuse of discretion where the “amount of damages is

neither difficult nor impossible to measure,” and where the

accounting information “could and should have been

revealed through discovery.” Kempner Mobile Electronics, Inc.

v. Southwestern Bell Mobile Sys.

, 428 F.3d 706, 715 (7th Cir. 2005)

(applying Illinois law) ; see also Kimes v. City of Gary

, 66 N.E.2d

888, 893 (Ind. 1946) (where parties have “equal knowledge or

means of knowledge[,] neither party is entitled to require an

accounting from the other”). Equitable accounting, in short, is

generally not a proper remedy in a “garden

‐ variety contract

dispute.” Kempner Mobile Electronics

, 428 F.3d at 715.

Here, we know that Entertainment USA was not denied

equal means of knowledge. Through the discovery process, it

gained access to Moorehead’s accounting records up to 2013

and then produced a damages estimate. That estimate was

flawed, and its data sources and methods were too opaque for

the district court to verify the estimate independently.

Production of a flawed estimate, however, does not mean that

an information asymmetry existed. It simply means that the18 No. 17

‐ 2847

estimate as produced was not sufficient to support a damages

award. Moreover, there was no fiduciary relationship

between these parties. Arms

‐ length contracts do not establish

fiduciary relationships. See Kimes

, 66 N.E.2d at 893 (“A mere

creditor as such has no right to compel his debtor to account

in equity in the absence of any trust relationship between

them. The relation between the bondholders and the city is

contractual and the city’s liability, if any, is that of a debtor

only and there is no trust relationship.”) (citations omitted).

Entertainment USA is not entitled to a second attempt at

proving its damages through equitable accounting. 5

Conclusion

There is no reason for us to wade into the many

contractual interpretation arguments advanced by the parties

5 At oral argument we raised the possibility that under the district

court’s duration analysis—that the referral agreement remained in force

“as long as any referred location was producing activations,” 2017 WL

3432319, at *6—Moorehead may have had an ongoing post

‐ trial duty to

pay referral fees in 2016 and beyond that an equitable accounting would

reveal. Entertainment USA did not fail to “make the substantive

argument” on this point in either the district court or on appeal, so the

argument has not been forfeited. See Dixon v. ATI Ladish LLC

, 667 F.3d 891,

895 (7th Cir. 2012), citing Elder v. Holloway

, 510 U.S. 510 (1994), and FDIC

v. Wright

, 942 F.2d 1089, 1094–95 (7th Cir. 1991). However, given that an

equitable accounting is a remedy left to the sound discretion of the trial

court in the first instance, and given that Entertainment USA did not ask

the district court to clarify the prospective implications of its ruling, we

decline to reach that issue here. We do not express an opinion on this

question beyond observing that the general rule in Indiana is that “a

contract containing no specific termination date is terminable at will.” See

City of East Chicago, Ind. v. East Chicago Second Century, Inc.

, 908 N.E.2d 611,

623 (Ind. 2009), citing House of Crane, Inc. v. H. Fendrich, Inc.

, 256 N.E.2d

578 (Ind. App. 1970).No. 17

‐ 2847 19

in this case regarding the scope of Moorehead’s liability. Even

if Entertainment USA were to prevail on them all, its gains

would be merely academic since it failed to prove its damages

with anything close to reasonable certainty. The judgment of

the district court is

AFFIRMED.