FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALASKA RENT-A-CAR, INC.,

Plaintiff-Appellee,

v.

AVIS BUDGET GROUP, INC., FKA

Cendant Corporation; AVIS BUDGET

CAR RENTAL, LLC, FKA Cendant

Car Rental Group, Inc., FKA

Cendant Car Rental Group, LLC,

Defendants-Appellants.

No. 10-35137

D.C. No.

3:03-cv-00029-

TMB

ALASKA RENT-A-CAR, INC.,

Plaintiff-Appellee,

v.

AVIS BUDGET GROUP, INC., FKA

Cendant Corporation; AVIS BUDGET

CAR RENTAL, LLC, FKA Cendant

Car Rental Group, Inc., FKA

Cendant Car Rental Group, LLC,

Defendants-Appellants.

No. 10-35615

D.C. No.

3:03-cv-00029-

TMB

OPINION
2 ALASKA RENT-A-CAR V. AVIS BUDGET GROUP

 The original panel, consisting of Judge B. Fletcher, Judge Kleinfeld, *

and Judge Callahan, heard oral argument on July 25, 2011. Judge B.

Fletcher died on October 22, 2012, while the decision was pending, and

Judge Rawlinson was drawn to replace her. Judge Rawlinson has read the

briefs, reviewed the record, and listened to the tape of oral argument. 

 This summary constitutes no part of the opinion of the court. It has

**

been prepared by court staff for the convenience of the reader.

Appeal from the United States District Court

for the District of Alaska

Timothy M. Burgess, District Judge, Presiding

Argued and Submitted

July 25, 2011—San Francisco, California

Filed March 6, 2013

Before: Andrew J. Kleinfeld, Johnnie B. Rawlinson,*

and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Kleinfeld

SUMMARY

**

State Law / Daubert / Batson / Attorneys’ Fees

The panel affirmed the district court’s judgment,

following a partial summary judgment and a jury trial, in an

action alleging breach of a settlement agreement, and

remanded for the district court to reduce the prejudgment

interest award.
ALASKA RENT-A-CAR V. AVIS BUDGET GROUP 3

The district court held that Alaska Rent-A-Car was a

party to a settlement agreement, and that Avis had breached

the agreement by using the same personnel to sell and market

both Avis and Budget Rent-A-Car cars. The panel held that

Alaska Rent-A-Car was a party to the settlement agreement

by virtue of its sufficiently timely joinder. The panel also

held that it was not error when during jury selection the

district court applied Batson v. Kentucky, 476 U.S. 79 (1986),

and rejected one of Avis’s peremptory challenges to one of

two Alaska Natives on the panel. Addressing Avis’s

objection under Fed. R. Evid. 702 and Daubert v. Merrell

Dow Pharmaceuticals, 509 U.S. 579 (1993), the panel held

that the district court did not abuse its discretion by allowing

the jury to listen to Alaska Rent-A-Car’s expert witness on

damages as well as Avis’s. The panel also held that under

New York law, there was sufficient evidence to establish

reasonable certainty for the amount of damages awarded by

the jury to Alaska Rent-A-Car. The panel further held that

the law of the forum, Alaska, properly applied to diversity

cases brought in or removed to the United States District

Court for the District of Alaska, and the district court did not

err by applying Alaska Rule of Civil Procedure 82 to the

attorneys’ fee award.

COUNSEL

Christopher Landau (argued), Stephen S. Schwartz, Kirkland

& Ellis LLP, Washington, D.C.; Howard S. Trickey, Matthew

Singer, Jermain, Dunnagan & Owens, P.C., Anchorage,

Alaska, for Appellants.

Susan Orlansky, Jeffrey M. Feldman, Feldman Orlansky &

Sanders, Anchorage, Alaska, for Appellee.
4 ALASKA RENT-A-CAR V. AVIS BUDGET GROUP

 Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993). 1

 Batson v. Kentucky, 476 U.S. 79 (1986). 2

 Alaska Civil Procedure Rule 82. 3

 “We recount the relevant facts in the manner most favorable to the 4

jury’s verdict.” United States v. Hicks, 217 F.3d 1038, 1041 (9th Cir.

2000), cert. denied, 531 U.S. 1037 (2000).

OPINION

KLEINFELD, Senior Circuit Judge:

Several state law questions arise in this appeal, and three

federal law questions, whether expert testimony should have

been excluded under Daubert , whether disallowance of a 1

peremptory challenge was Batson error and if so whether it

2

was harmless, and whether Alaska “English Rule” attorneys

fee awards may be awarded in a diversity action where 3

Alaska is the forum state but another state’s law governs the

dispute.

FACTS4

Alaska Rent-A-Car’s predecessor began doing business

as an Avis licensee in 1956, three years before Alaska

attained statehood. Most other Avis licensees had a defined

territory in a locality, not an entire state, within which they

had the exclusive right to rent cars on behalf of Avis. Avis

reasonably considered Alaska different.

In its 1959 agreement, the Alaska Avis licensee was

entitled to operate in the “entire State of Alaska,” about 20%

of the entire United States, but a negligible percentage of the
ALASKA RENT-A-CAR V. AVIS BUDGET GROUP 5

nation’s roads. The license was renewed in 1965, this time

giving Alaska Rent-A-Car exclusive rights in specific

locations within Alaska. A 1976 amendment added

additional locations to the license agreement, and gave

Alaska Rent-A-Car a right of first refusal for control of any

license Avis planned to grant anywhere in Alaska. It also

gave Alaska Rent-A-Car the right to expand into new

territory, such as temporary camps during the construction of

the oil pipeline from Prudhoe Bay to Valdez during the 1974-

1977 period. The 1976 amendment stated: 

It is additionally agreed: (a) That Alaska

conditions of terrain and weather as well as

changing and cyclical economic conditions

may result in customer demands for quick

service in new and even temporary locations

or camps. It is understood that Licensee may

utilize his floating fleet to meet such

demands, with full reporting of such

circumstances to Avis.

Avis bought a company called Agency Rent-A-Car in

1995. Some of Avis’s licensees claimed that Avis was

breaching their license agreements by operating another

rental car company in their territories. To protect itself

against these claims, Avis sued thirteen of its licensees, and

sought class certification, to obtain a judgment that its

purchase of Agency Rent-A-Car and its changed operations

did not violate licensee rights. Avis and named defendants

settled in 1997, without ever litigating to class certification or

judgment. Our case arises out of that settlement, which

allows Avis to purchase additional rental car companies, but

requires that “the sales, marketing and reservation activities,

operations and personnel of and for the Avis System will not
6 ALASKA RENT-A-CAR V. AVIS BUDGET GROUP

 The two appellants in this litigation are Avis Budget Car Rental, LLC

5

and its parent company, then HFS Car Rental, later Cendant, now Avis

Budget Group, Inc. We refer to appellants collectively here as Avis, but

note that the settlement agreement’s restrictions on buying an additional

car rental company were restrictions on the parent company.

be utilized to market, provide, and/or make available car

rental services” for any additional rental car company

purchased by Avis. The settlement agreement protected 5

Avis licensees from the risk of Avis using its personnel to

steer customers and potential customers towards another

brand. Licensees would typically only rent Avis cars, but

Avis might own a competitor operating in the same locality

under a different name.

Avis bought Budget Rent-A-Car out of bankruptcy in

2002. It then restructured its central operations, putting the

Avis and Budget marketing teams under unified management,

creating a single team to answer calls to both Avis and

Budget reservation lines, and combining the Avis and Budget

national corporate sales forces. The obvious threat from these

actions to Avis’s licensees was that Budget would bleed off

some of their customers and potential customers. People

typically rent cars online or by telephone from a national site

or 800 number, and governments and big corporations

typically negotiate with the national entity, because they

typically rent cars for use away from home.

Alaska Rent-A-Car sued Avis claiming that Avis had

indeed breached the settlement agreement, causing Alaska

business to be switched to Budget Rent-A-Car, its local

competitor. The district court granted a partial summary

judgment, establishing that Alaska Rent-A-Car was a party to

the settlement agreement, and that Avis had breached the
ALASKA RENT-A-CAR V. AVIS BUDGET GROUP 7

 See Sullivan v. Dollar Tree Stores, Inc., 623 F.3d 770, 776 (9th Cir. 6

2010).

agreement by using the same personnel to sell and market

both Avis and Budget cars. Damages were left for jury trial.

The jury returned a verdict in favor of Alaska Rent-A-Car for

$16 million. Avis appeals.

ANALYSIS

I. Was Alaska Rent-A-Car a promisee under the

settlement agreement?

The question whether the 1995 settlement agreement

included Alaska Rent-A-Car was decided by partial summary

judgment, so we review de novo. Avis argues on appeal that 6

Alaska Rent-A-Car was not a party.

First, Avis argues that Alaska Rent-A-Car could not be

embraced by the settlement agreement, because the

agreement protected only licensees with “exclusive” license

agreements, that is, with exclusive territories within which

Avis could not promote competitors to the licensee except to

the extent the settlement agreement allowed. This argument

is entirely without merit. One reason why is that Alaska

Rent-A-Car plainly did have exclusive territories, the

designated and permitted locations within the State of Alaska.

Were Alaska Rent-A-Car to use the Avis brand to open a

counter at the Seattle airport, it would violate its licensing

agreement, just as any other Avis licensee would if it opened

a counter at the Anchorage airport. The other reason is that

we can find no language limiting permission to join in the

settlement agreement to licensees with exclusive licensing

agreements. The settlement agreement was offered to “all
8 ALASKA RENT-A-CAR V. AVIS BUDGET GROUP

 See, e.g., Sterngass v. Maisel, 519 N.Y.S.2d 569, 570 (N.Y. App. Div. 7

1987).

 Cf. id. at 570; B/R Sales Co. v. Krantor Corp., 640 N.Y.S.2d 204, 205 8

(App. Div. 1996).

Avis System licensees/franchisees,” which Alaska Rent-ACar indisputably was. 

Avis also makes the more substantial argument that

Alaska Rent-A-Car’s joinder was untimely. What color this

argument has arises from the fact that Alaska Rent-A-Car did

not send in a signed joinder to the settlement agreement until

July 2001, almost four years after the settlement and three

and a half years after Avis had sent its licensees a letter

inviting them to join in the settlement.

Avis’s letter was an offer, and Alaska Rent-A-Car’s

response was an acceptance. The parties do not dispute that

New York law controls on the timeliness of acceptance, and

New York law establishes the usual rule, that acceptance

must be within a “reasonable” time. Under New York law, 7

reasonableness is normally a question for a jury. However,

a court may decide it as a matter of law when rational jurors

could reach only one conclusion. 

8

Three or four years might well be unreasonable in many

circumstances, but not in this one. First, the offer stated no

time limit on acceptance, though Avis could easily have

expressly limited the duration of its offer. The reasonable

inference from Avis’s failure to impose a time limit is that it

did not intend for there to be a time limit, because it saw

advantage to joinders whenever they came in. Second, four

and a half years after Alaska Rent-A-Car joined, eight years
ALASKA RENT-A-CAR V. AVIS BUDGET GROUP 9

 Ever since the many aboriginal peoples in Alaska, including Inupiat, 9

Yupik, several groupings of Athabaskans, Haida, Tsimshian, Tlingit,

Aleut, and many others united during the struggle for what became the

Alaska Native Claims Settlement Act, their and others’ custom has been

to refer to “Alaska Natives” as a uniting term.

 Batson v. Kentucky, 476 U.S. 79 (1986). 10

after the offer was made, Avis asked the court overseeing the

Agency settlement to declare the offer terminated, implying

that Alaska Rent-A-Car’s joinder came in plenty of time.

Third, Avis’s intent that no time limit should apply may be

inferred from its written confirmation of acceptances by six

other licensees who sent in their acceptances after Alaska

Rent-A-Car did. Fourth, Avis’s previous representations in

this litigation that Alaska Rent-A-Car had joined in the

settlement imply that it too interpreted its own offer to be

open to acceptance and timely accepted by Alaska Rent-ACar. Avis has cited no New York case involving anything

like parallel facts where an acceptance was deemed untimely,

and a rational juror could only conclude from Avis’s actions

that Alaska Rent-A-Car’s acceptance was made within a

reasonable time. The district court was correct in ruling that

Alaska Rent-A-Car was a party to the settlement agreement

by virtue of its sufficiently timely joinder.

II. Batson.

During jury selection, Avis made peremptory challenges

of the only two Alaska Natives on the panel. The district 9

court accepted one but denied the other, applying Batson v.

Kentucky. Avis argues that denial of its peremptory

10

challenge of the second Alaska Native juror, who sat on the

trial jury, was a Batson error requiring reversal. We reject the
10 ALASKA RENT-A-CAR V. AVIS BUDGET GROUP

argument on alternative grounds, that there was no error, and

that even if there had been, it would be harmless.

Since liability was established by summary judgment, the

only issue for the jury was whether Alaska Rent-A-Car had

proved damages, and if so, how much. Avis had to start off

on the wrong foot, that it had made a promise to Alaska RentA-Car and broken it. Faced with the problem of justifying a

zero or low damages award despite having broken its

promise, Avis needed a jury willing to deny an award to the

victim of a broken promise. Avis’s attorney used voir dire to

try to avoid jurors who would punish the broken promise

even if no damages were proved.

Avis asked prospective jurors whether any of them had “a

strong belief or hold a strong opinion that if someone breaks

a promise that they should be punished for that by having to

pay damages?” The first of the two Native veniremen,

Number 6, said she agreed that someone who breaks a

promise should be punished by having to pay damages, even

if there was no proof of any loss. But at a sidebar, Number 6

said she would nevertheless follow the judge’sinstructions if

they were to the contrary. Avis exercised a peremptory

challenge against her. Despite a Batson challenge from

Alaska Rent-A-Car, the judge allowed Avis to use that

peremptory challenge. The judge accepted Avis’s lawyer’s

representation that he was not satisfied that her feelings,

about how damages ought to be awarded for breach of

contract regardless of whether actual loss was proved, would

not affect her verdict. No issue has been raised in this appeal

about allowing that challenge.

The issue goes to the challenge of the other Native

venireman, Number 15. When informed that he was almost
ALASKA RENT-A-CAR V. AVIS BUDGET GROUP 11

out of time to question prospective jurors, Avis’s counsel

chose to question Number 15, who said that whether she

would punish someone who broke a promise without harming

anyone “would depend on how the promises were made and

what’s been broken.” Two non-minority jurors said

substantially the same thing. But both of the unchallenged

jurors assured counsel they would obey the court’s

instructions regardless of their feelings. Number 15 did not

say she would obey the instructions despite her personal

views, but because the court’s time limit ran out, she was not

asked. 

Responding to Alaska Rent-A-Car’s Batson challenge,

Avis’s lawyer said his gut feeling was that Number 15 viewed

punishment as appropriate for breach of contract regardless

of whether there was any harm. He pointed out that there

were no racial issues in this commercial dispute, and said his

challenge was not based on race. Alaska Rent-A-Car’s

lawyer and the judge both expressed their confidence that

Avis’s lawyer was not racially motivated (the trial was in

Alaska, where the lawyers and judges often have substantial

professional experience with, against, and before each other).

But the judge disallowed the challenge. The court

acknowledged that Avis’s lawyer had not had sufficient time

for a dialogue on voir dire with Number 15, to see whether

she would follow instructions about damages despite her

views to the contrary, but the court was not satisfied with

striking both Native jurors on the record before him. 

This Batson issue is difficult because of the explicit

finding that Avis’s lawyer did not act with a racial

motivation. The court did not expressly find the evil to which
12 ALASKA RENT-A-CAR V. AVIS BUDGET GROUP

 United States v. Collins, 551 F.3d 914, 919 (9th Cir. 2009) (quotations 11

and citations omitted); accord Batson, 476 U.S. at 86, 98.

 Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991). 12

 Batson, 476 U.S. at 93–98; Collins, 551 F.3d at 919. 13

 See Lewis v. Lewis, 321 F.3d 824, 830–31 (9th Cir. 2003); see also 14

Miller-El v. Dretke, 545 U.S. 231, 241 (2005).

Batson is directed, “purposeful racial discrimination.” The 11

judge merely indicated that he was uncomfortable in this case

with a jury from which all Natives had been excluded by

peremptory challenges.

Batson applies to civil as well as criminal cases. Avis 12

was entitled to its peremptory challenge unless it exercised it

in a manner violative of Batson. The troubling issue here is

step three of the three-part Batson test (prima facie case, raceneutral explanation, finding of pretext). Were it not for the 13

express agreement by the judge and counsel that Avis’s

lawyer, whom they likely all knew, was not personally

motivated by ethnic discrimination, pretext would strongly

suggest itself. Venireman 15 said just what two unchallenged

non-Native jurors said, so “comparative juror analysis”14

would support an inference of “purposeful racial

discrimination.” And when Avis’s lawyer saw that time was

running out, he chose to question Number 15 instead of

another venireman.

We are nevertheless not persuaded that the district court

erred. We review application of Batson law to facts
ALASKA RENT-A-CAR V. AVIS BUDGET GROUP 13

 Batson, 476 U.S. at 98 n.21 (“[A] finding of intentional discrimination 15

is a finding of fact entitled to appropriate deference by a reviewing court.

Since the trial judge’s findings in the context under consideration here

largely will turn on evaluation of credibility, a reviewing court ordinarily

should give those findings great deference.”) (quotations and citations

omitted); United States v. Bauer, 84 F.3d 1549, 1555 (9th Cir. 1996)

(noting that a trial court’s findings regarding purposeful discrimination are

entitled to great deference).

 Miller-El, 545 U.S. at 267–68 (2005) (Breyer, J., concurring). 16

 Batson, 476 U.S. at 87. 17

deferentially and note that part three of the Batson test “asks 15

judges to engage in the awkward, sometimes hopeless, task

of second-guessing a [lawyer’s] instinctive judgment – the

underlying basis for which may be invisible even to the

[lawyer] exercising the challenge.” It seems evident that 16

although the district judge believed that Avis’s lawyer had no

subjective purpose of racial discrimination, he was concerned

that an objective observer would infer from the facts –

comparative analysis of the substantially similar responses

from two unchallenged non-Native jurors, skipping over other

veniremen to get to Number 15 – that there was purposeful

discrimination. Such a concern is among the reasons for

Batson. “The harm from discriminatory jury selection

extends beyond that inflicted on the defendant and the

excluded juror to touch the entire community. Selection

procedures that purposefully exclude [minorities] from juries

undermine public confidence in the fairness of our system of

justice.” 

17

Objective analysis is also more reliable than subjective

analysis. A judge, like any person, is ill-equipped to see into
14 ALASKA RENT-A-CAR V. AVIS BUDGET GROUP

 See, e.g., United States v. Vance, 62 F.3d 1152, 1158 (1995). 18

 United States v. Lindsey, 634 F.3d 541 (9th Cir. 2011), cert. denied,

19

131 S. Ct. 2475 (2011).

 Rivera v. Illinois, 556 U.S. 148 (2009). 20

 United States v. Annigoni, 96 F.3d 1132 (9th Cir. 1996) (en banc). 21

 Lindsey, 634 F.3d at 549. 22

 Id. at 550. 23

peoples’ hearts. Trial judges are generally very reluctant to

18

call a lawyer a liar, by finding that the justification for a

peremptory challenge is not credible. But a trial judge is in

a very good position to evaluate objectively and impartially

what the record would establish, from the point of view of a

reasonable observer. In this case, the trial judge found the

absence of subjective racial bias, but the presence of an

appearance of purposeful discrimination. That suffices to

justify denial of a peremptory challenge, at least in a civil

case.

Even if there were error, we held in United States v.

Lindsey that an erroneous denial of a peremptory challenge 19

does not require automatic reversal. We held that Rivera v.

Illinois overruled our holding in United States v. Annigoni 20 21

that denial of a peremptory challenge required reversal, and

stated that “the Rivera Court directly undercuts our precedent

by determining that the erroneous denial of a peremptory

challenge may indeed be subject to harmless-error review.”22

We concluded that Rivera allowed us to “apply the standard

of review that is appropriate under the circumstances of the

district court’s error.” In Lindsey, we applied plain error 23
ALASKA RENT-A-CAR V. AVIS BUDGET GROUP 15

 Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993). 24

review, as Lindsey failed to object to the district court’s error

depriving him of a peremptory challenge. Here, Avis did

object.

The right to peremptory challenges in civil cases exists by

virtue of Federal Rule of Civil Procedure 47(b) and 28 U.S.C.

§ 1870, three challenges per party or side, not by virtue of the

Constitution. Erroneous denial of a challenge is therefore

subject to Federal Rule of Civil Procedure 61 on harmless

error, requiring us to disregard error not affecting “substantial

rights.”

This case involved nothing bearing on race or ethnicity.

Number 15 was not challenged for cause, and the feelings she

expressed about damages were substantially identical to at

least two other jurors’ feelings. The district court allowed

Avis’s attorney to use his third peremptory challenge on

another juror if he wished, but counsel waived the

opportunity, thereby allowing three people with the same

uneasiness about breach without damages to stay on the jury

instead of two. The verdict was unanimous. We are unable

to see any way that “substantial rights,” that is, rights

affecting the substance of the case as opposed to the

procedural right to three peremptory challenges, could have

been affected by erroneous denial of this challenge. 

III. Daubert.

Each side put on testimony of an expert witness on

damages. Avis objected under Federal Rule of Evidence 702

and Daubert v. Merrell Dow Pharmaceuticals and its 24

progeny to allowing Alaska-Rent-A-Car’s expert to testify. 
16 ALASKA RENT-A-CAR V. AVIS BUDGET GROUP

Before it allowed Alaska Rent-A-Car’s expert to testify

about his opinion on damages, the court gave Avis the

opportunity to conduct a lengthy voir dire to inquire into the

facts and data underlying the expert’s conclusions. After that

voir dire, the court made a Daubert gateway determination.

It concluded that “there’s enough underlying data and . . . a

sufficient causal connection to allow [the expert’s]

testimony. . . . I think he’s qualified to give the testimony. I

think his testimony will assist the trier of fact and I think his

opinion is the result of reliable principles and methods. . . .

[C]learly, [Avis has] areas for cross examination, and that’s

what it’s going to be subject to.”

The task, for both sides, was to figure out how much

business and how much profit Alaska Rent-A-Car had lost on

account of Avis’s breach of the settlement agreement. Avis

had breached when it bought Budget Rent-A-Car out of

bankruptcy in 2002 and then merged much of the two

companies’ national sales and marketing staffs into one. 

As in any damages case, the calculation had to address a

hypothetical world that never existed, one in which other

things remained the same but the breach had not occurred.

To calculate damages from the breach, as opposed to

damages from competition, Alaska Rent-A-Car’s expert

witness compared Avis’s and Budget’s experience with

Alamo-National’s (Alamo) experience after Cerberus bought

Alamo out of bankruptcy at around the same time. His theory

was that Alamo and Budget both got infusions of capital and

management enabling them to compete, but differed in that

Cerberus did not rent cars through any other company, and

Avis did, through Budget. Thus Alamo could not benefit

from merging sales and marketing activities because Cerberus

had no other car rental company, but Budget could. His
ALASKA RENT-A-CAR V. AVIS BUDGET GROUP 17

assumption was that Budget would have performed much like

Alamo but for the benefit of a unified Avis-Budget sales and

marketing effort.

Budget rebounded much faster than Alamo. The witness

in effect treated the faster rebound of Budget as attributable

to the breach of the settlement agreement. He used Alamo’s

national rate of rebound as a rough approximation of how

Budget, had it not had the benefit of the breach, would have

performed in Alaska. He then projected how much market

share Budget gained each year due to the breach. He testified

that he used Alamo’s national rate of rebound as an

approximation for how Budget in Alaska would have

performed. He reasoned that the rental car market is a

national market, and that national rebound rates would not be

skewed by idiosyncratic local factors.

According to Alaska Rent-A-Car’s witness, Alamo’s

national market share dropped 35% after it went into

bankruptcy, slowly recovering after Cerberus bought it.

Budget was in bankruptcy a shorter time, and recovered faster

after Avis bought it. The witness, saying that he wanted to be

conservative in his estimates, assumed that Budget would

have lost 32.5% of its market share (slightly less than Alamo)

had Avis bought it out of bankruptcy but not breached the

settlement agreement.

Because the revitalized Budget would draw customers

from other car rental companies too, not just Avis, the witness

picked the Juneau airport to approximate how much of the

bite would come out of Alaska Rent-A-Car. Juneau had the

advantage of simplicity, because he could examine a market

before Budget entered and after Budget entered, to

approximate how much business it took from Alaska-Rent-A-
18 ALASKA RENT-A-CAR V. AVIS BUDGET GROUP

Car. Over the first three years of its entry into the Juneau

market, Budget got an average of 23.3% of the Juneau rental

car market. About 48% of that market share gain came from

Alaska Rent-A-Car customers, 52% from Hertz and other

competitors. So to get a statewide figure, the witness made

the assumption that after the breach, Budget got about half its

customers from Alaska Rent-A-Carstatewide. He calculated

Budget’s market share after the bankruptcy, assumed that but

for the breach Budget’s rate of market share recovery would

have been similar to Alamo’s national rate of recovery, and

assumed that about half of its faster recovery came at the

expense of Alaska Rent-A-Car. These assumptions and

inferences generated lost profits calculations of $4.079

million from 2003 to 2008 due to the breach, and future lost

profits, discounted to present value, of $11.708 million.

Avis challenges the expert’s assumptions and

comparisons. It argues that differences between Alamo and

Budget, such as the much longer duration of Alamo’s

bankruptcy, and many other factors, made Alamo an invalid

comparison. Avis also argues that applying a national market

share comparison to Alaska overlooked very significant

differences in how the national and Alaska markets worked.

And it argues that Alaska Rent-A-Car’s extrapolation from

the Juneau market experience ignored the differences

between this small market, only 5% of the statewide rental

car market, and the market elsewhere in the state, where roads

connected towns (unlike Juneau), and doing business more

often required a rental car. Of course, Alaska Rent-A-Car’s

expert gave reasons for his use of all these comparisons, such

as by pointing out the clarity with which the Juneau market

could be examined. Because Budget entered Juneau in 2000,

Juneau could clearly show how much business Budget took

from Avis there. 
ALASKA RENT-A-CAR V. AVIS BUDGET GROUP 19

 Fed. R. Ev. 702 (2009). Stylistic changes were made to Rule 702 in 25

2011, after this case had gone to trial. The changes were not substantive.

We use the language as it was when this case was decided.

 Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993). 26

 Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010) (quoting 27

Daubert, 509 U.S. at 597) (footnotes and citations omitted).

All of Avis’s challenges to Alaska Rent-A-Car’s expert

are colorable, but none go to admissibility. They amount to

impeachment. Under Federal Rule of Evidence 702 the trial

court may exercise discretion to allow expert testimony if the

testimony “will assist the trier of fact to understand the

evidence or to determine a fact in issue;” (1) it is “based upon

sufficient facts or data;” (2) it is “the product of reliable

principles and methods;” and (3) the expert “has applied the

principles and methods reliably to the facts of the case.”25

This list of requirements makes the task of determining

admissibility sound more mechanical and less judgmental

than it really is. Under Daubert v. Merrell Dow

Pharmaceuticals and its progeny, 

26

[T]he court must assess [an expert’s]

reasoning or methodology, using as

appropriate such criteria as testability,

publication in peer reviewed literature, and

general acceptance, but the inquiry is a

flexible one. Shaky but admissible evidence

is to be attacked by cross examination,

contrary evidence, and attention to the burden

of proof, not exclusion. In sum, the trial court

must assure that the expert testimony “both

rests on a reliable foundation and is relevant

to the task at hand.” 

27
20 ALASKA RENT-A-CAR V. AVIS BUDGET GROUP

 Id. at 565 (quoting United States v. Sandoval-Mendoza, 472 F.3d 645, 28

654 (9th Cir. 2006)).

 Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). 29

 Primiano, 598 F.3d at 564 (quoting Kumho Tire, 526 U.S. at 151, 30

150).

“Expert opinion testimony is relevant if the knowledge

underlying it has a valid connection to the pertinent inquiry.

And it is reliable if the knowledge underlying it has a reliable

basis in the knowledge and experience of the relevant

discipline.”28

The Daubert reliability requirement “is flexible” and

“Daubert’s list of specific factors neither necessarily nor

exclusively applies to all experts or in every case.” “The 29

‘list of factors was meant to be helpful, not definitive’ and the

trial court has discretion to decide how to test an expert’s

reliability as well as whether the testimony is reliable, based

on ‘the particular circumstances of the particular case.’” 

30

Basically, the judge is supposed to screen the jury from

unreliable nonsense opinions, but not exclude opinions

merely because they are impeachable. The district court is

not tasked with deciding whether the expert is right or wrong,

just whether his testimony has substance such that it would be

helpful to a jury. Avis does not challenge Alaska Rent-ACar’s expert’s credentials and qualifications. Nor does it

challenge his general methodology, comparing the unknown

to an analogous known experience. Instead, Avis challenges

three aspects of the witnesses testimony: using Alamo as the

comparator, using the national rather than the Alaska market

as a baseline, and extrapolating from the Juneau market to the
ALASKA RENT-A-CAR V. AVIS BUDGET GROUP 21

 Id. at 568 (quoting Sandoval-Mendoza, 472 F.3d at 654). 31

entire Alaska market. None of these challenges make the

district judge’s decision to admit the testimony an abuse of

discretion. They all go to the weight of the testimony and its

credibility, not its admissibility. Avis gave the jury good

arguments for rejecting the testimony, but the district court

did not abuse its discretion by allowing the jury to listen to

Alaska Rent-A-Car’s expert as well as Avis’s. “Given that

the judge is ‘a gatekeeper, not a fact finder,’ the gate could

not be closed to this relevant opinion offered with sufficient

foundation by one qualified to give it.”31

IV. Certainty of damages.

The jury returned a unanimous $16 million verdict for

Alaska Rent-A-Car, slightly more than the $15,787,182 in

damages that Alaska Rent-A-Car’s expert witness calculated.

Avis’s expert witness offered no total number at all to the

jury, just critiques of the other expert’s assumptions and

calculations, with some numbers differing from his for

component parts. Avis thus presented the case to the jury as

a $16 million or nothing choice. Avis argued in its close that

the burden of proof on damages was on Alaska Rent-A-Car,

and that its expert was effectively impeached by theirs, so no

damages should be awarded. 

The district court found, and neither side disputes, that

New York law controls on the standard of certainty required

for damages for breach of contract. Avis moved

unsuccessfully for judgment as a matter of law that damages

had not been proved with sufficient certainty or for a new

trial. We review denial of a motion for judgment as a matter

of law de novo, but draw all inferences in favor of the
22 ALASKA RENT-A-CAR V. AVIS BUDGET GROUP

 Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1005 (9th 32

Cir. 2004).

 White v. Ford Motor Co., 312 F.3d 998, 1010 (9th Cir. 2002) 33

(quotation omitted).

 E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 962 (9th Cir. 34

2009) (quotation omitted).

 Ashland Mgmt. Inc. v. Janien, 604 N.Y.S.2d 912, 916 (N.Y. 1993). 35

verdict. “The test is whether the evidence, construed in the 32

light most favorable to the nonmoving party, permits only one

reasonable conclusion, and that conclusion is contrary to that

of the jury.” We review a ruling on a motion for new trial 33

for abuse of discretion, and reverse “only if the record

contains no evidence in support of the verdict or if the district

court made a mistake of law.” 

34

Under New York law, in order to recover lost profits

Alaska Rent-A-Car must prove that “(1) the damages were

caused by the breach; (2) the alleged loss must be capable of

proof with reasonable certainty, and (3) the particular

damages were within the contemplation of the parties to the

contract at the time it was made.” “Damages resulting from 35

the loss of future profits are often an approximation. The law

does not require that they be determined with mathematical

precision. It requires only that damages be capable of

measurement based upon reliable factors without undue
ALASKA RENT-A-CAR V. AVIS BUDGET GROUP 23

 Id. at 915; see also 36 N.Y. Jur. 2d Damages § 107 (“The plaintiff 36

must supply some basis of computation for ascertaining the loss with

certainty. . . . The plaintiff must offer some reasonable basis for

ascertaining the amount of profit lost; an allowance therefor cannot be

made on the basis of guesswork or conjecture. Absolute certainty of data

upon which loss of future profits are to be estimated is not required, but

some fairly definite basis for computation must be supplied. . . . No hard

and fast rule in this regard can be laid down because such losses are

determined according to the circumstances of each particular case. But lost

profits cannot be proved where a multitude of assumptions underlying the

plaintiff’s claim makes it impossible to satisfy the ‘reasonable certainty’

test, even if the business were considered to be an existing business”).

 See, e.g., Kenford Co. v. County of Erie, 502 N.Y.S.2d 131, 133 (N.Y. 37

1986) (claim for lost profits for stadium too speculative because the

stadium had not been built yet, and lost profits calculation assumed

successful operation of the stadium, attracting sporting events, meetings,

conferences, and other forms of entertainment over a 20 year span); Blinds

to Go (U.S.), Inc. v. Times Plaza Development, L.P., 88 A.D.3d 838, 841

(N.Y. App. Div. 2011) (reversing an award of lost profits because, “[i]n

light of the tenant’s admission that it leased the subject premises to break

into a new market, and its own expert’s testimony demonstrating the

differences between the subject premises and the allegedly comparable

stores, the evidence on lost profits was so lacking that the verdict could

not have been reached on any fair interpretation of the evidence.”). We

note, however, that “[T]here is no per se rule precluding a new business

from recovering lost profits.” Cifone v. City of Poughkeepsie,

650 N.Y.S.2d 797, 798 (N.Y. App. Div. 1996) (“A claim based on the loss

of anticipated profits in connection with a thwarted business venture may

be proved by methods other than by reference to the actual past

profit-making ‘experience’ of the enterprise in question, provided that the

speculation.” Avis’s argument is a continuation of its 36

Daubert attack on Alaska Rent-A-Car’s expert’s testimony.

New York courts generally reject lost profits for (1) new

business ventures as being based on impermissible

speculation, such as profits from a contemplated stadium that

was never built and (2) established businesses projecting 37
24 ALASKA RENT-A-CAR V. AVIS BUDGET GROUP

future profits can be calculated with reasonable certainty.”) (quotation and

citation omitted).

 See, e.g., LifeWise Master Funding v. Telebank, 374 F.3d 917, 932 38

(10th Cir. 2004) (applying New York law and rejecting lost profits as too

speculative because “[e]ven assuming that LifeWise could show lost

profits damages despite never having been profitable, it has not done so

here in a manner that satisfies New York’s prohibition of speculative

damages. In its damages report, LifeWise has failed to connect its past

losses with its proposed future earnings. It remains a fact that LifeWise

sustained losses in every year of its over five years of existence, and

frequently experienced capitalization problems, yet the damages model

predicted only uninterrupted future growth.”).

 See, e.g., Greasy Spoon, Inc. v. Jefferson Towers, Inc., 552 N.Y.S.2d 39

92, 94 (N.Y. 1990) (“Plaintiff established at trial that it was already

operating a successful restaurant business at a commercially desirable site.

Further, plaintiff’s witnesses gave evidence, based upon experience, as to

the level of profits that could reasonably be anticipated . . . . Unlike in

Kenford, where lost profits from a municipality’s decision not to construct

a stadium were denied in part because there were too many undetermined

variables, in this case most of the variables that would affect the success

of the thwarted business venture, i.e., location, capitalization and existing

or potential clientele, were established through competent proof. Thus,

the evidence at trial was sufficient to remove plaintiff’s lost profit claim

from the realm of impermissible speculation.”); cf. Wathne Imports, Ltd.

v. PRL USA, Inc., 953 N.Y.S.2d 7 (N.Y. App. Div. 2012).

future profits without a past history of profits, such as one

that in its five years of existence had never made a profit.38

Alaska Rent-A-Car was neither. It had been operating a

successful business since before statehood. And New York

courts have upheld the award of lost profits, where, as here,

past performance combined with some indicia of likelihood

of future success were presented to the jury. This case is 39

analogous to Greasy Spoon, where the plaintiff was already
ALASKA RENT-A-CAR V. AVIS BUDGET GROUP 25

 Greasy Spoon, 552 N.Y.S.2d at 94. 40

Susanne Di Pietro & Teresa W. Carns, Alaska’s English Rule: 41

Attorney’s Fee Shifting in Civil Cases, 13 Alaska L. Rev. 33, 38–39

(1996) (citing Frederic E. Brown, The Sources of the Alaska and Oregon

Codes Part II: The Codes and Alaska, 1867–1902, 2 UCLA-Alaska L.

Rev. 87, 88 (1973)).

 Edwards v. Alaska Pulp Corp., 920 P.2d 751, 755 (Alaska 1996); 42

Benjamin J. Roesch, Erie Similarities: Alaska Civil Rule 68, “Direct

Collisions,” and the Problem of Non-Aligning Background Assumptions,

23 Alaska L. Rev. 81, 81 (2006).

operating a successful restaurant (despite the name) and the

projection of lost profits was from adding a sidewalk café.40

A jury might have been persuaded by the impeachment

testimony, rejected Alaska Rent-a-Car’s expert’s damages

analysis and calculation, and awarded nothing. But it was not,

and the jury was entitled to decide. Drawing all inferences in

the favor of the non-moving party, as we must, the evidence

– including but not limited to the expert testimony – sufficed

to establish reasonable certainty for the damages awarded.

V. Attorney’s Fees 

Alaska has, since Congress applied the general laws of

Oregon to the Territory of Alaska in 1884, followed the

English Rule rather than the American Rule on attorney’s

fees. Alaska is the only state that follows the English

41

Rule, that the prevailing party is generally entitled to an 42

attorney’s fees award, though many federal and state statutes
26 ALASKA RENT-A-CAR V. AVIS BUDGET GROUP

 See, e.g., Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 43

240, 261–62 (1975).

 See e.g., Andrew J. Kleinfeld, Alaska: Where the Loser Pays the 44

Winner’s Fees, 24 Judges’ J. 4 (1985).

 Alaska Civil Procedure Rule 82(a) (“Except as otherwise provided by 45

law or agreed to by the parties, the prevailing party in a civil case shall be

awarded attorney’s fees calculated under this rule.”).

 Alaska Const. art. IV, § 15; see also State v. Native Village of 46

Nunapitchuk, 156 P.3d 389, 395 (Alaska 2007).

Although District of Alaska Local Rule 54.3(b) no longer provides 47

expressly, as it did until 2006, that “In a diversity case the court will apply

Rule 82, Alaska Rules of Civil Procedure,” it appears to assume that such

fees will still be awarded, since it provides that motions for attorney’s fees

must “set forth the authority for the award, whether Rule 82, Alaska Rules

of Civil Procedure” or some other source.

provide for awards in designated circumstances. Though 43

sometimes criticized, the rule remains robustly in force.

44

Present Alaska practice is set out in Alaska Rule of Civil

Procedure 82, which generally requires the award of

attorney’s fees to the prevailing party in civil cases. The 45

Alaska Supreme Court has promulgated Rule 82 pursuant to

its constitutional authority to “make and promulgate rules

governing practice and procedure in civil and criminal cases

in all courts.”46

The United States District Court for the District of Alaska

has itself for many years treated Alaska Rule 82 as generally

applicable in civil proceedings where federal law did not

provide otherwise. The district court followed its usual 47

practice in this case, awarding $1,605,000 in attorney’s fees
ALASKA RENT-A-CAR V. AVIS BUDGET GROUP 27

 Ryan ex rel. Syndicates and Ins. Companies Subscribing to Policy 48

PHP91-4699 v. Sea Air Inc., 902 F. Supp. 1064, 1070 (D. Alaska, 1995).

 Klopfenstein v. Pargeter, 597 F.2d 150, 152 (9th Cir. 1979). 49

 421 U.S. 240 (1975). 50

 304 U.S. 64 (1938). 51

based upon the Rule 82 formula. As the district court held in

Ryan v. Sea Air, “Alaska follows the English Rule, by virtue

of which the prevailing party always recovers a portion of its

fees from the losing party,” and the United States District

Court treats this Alaska practice as “binding in diversity

cases” brought there. Ryan cites our 1979 decision in 48

Klopfenstein v. Pargeter, in which we upheld an Alaska Rule

82 attorney’s fees award in a diversity case, because “[i]n a

diversity action the question of attorneys fees is governed by

state law.”49

Two issues arise in this case. First, should federal law or

state law apply to an attorney’s fees award? Second, if state

law applies, should Alaska law or New York law control? 

The first question is easily answered. As both parties

agree, state law applies. The Supreme Court held in Alyeska

Pipeline Service Co. v. Wilderness Society that for Erie 50

Railroad Co. v. Tompkins purposes, state law on attorney’s 51

fees is substantive, so state law applies in diversity cases.

“[I]n an ordinary diversity case where the state law does not

run counter to a valid federal statute or rule of court, and

usually it will not, state law denying the right to attorney’s

fees or giving a right thereto, which reflects a substantial
28 ALASKA RENT-A-CAR V. AVIS BUDGET GROUP

 Alyeska Pipeline, 421 U.S. at 259 n.31 (quoting 6 J. Moore, Federal 52

Practice 54.77(2), pp. 1712-1713 (2d ed. 1974)).

 See, e.g., MRO Communications, Inc. v. American Tel. & Tel. Co.,

53

197 F.3d 1276, 1282 (9th Cir. 1999) (“In an action involving state law

claims, we apply the law of the forum state to determine whether a party

is entitled to attorneys’ fees, unless it conflicts with a valid federal statute

or procedural rule.”).

 See, e.g., Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 54

487, 496 (1941) (“The conflict of laws rules to be applied by the federal

court in Delaware must conform to those prevailing in Delaware’s state

courts. . . . Any other ruling would do violence to the principle of

uniformity within a state upon which the Tompkins decision is based.”).

 See, e.g., Guaranty Trust Co. of New York v. York, 326 U.S. 99, 55

108–10 (1945); Sun Oil Co. v. Wortman, 486 U.S. 717, 726 (1988)

(“Guaranty Trust itself rejects the notion that there is an equivalence

between what is substantive under the Erie doctrine and what is

substantive for purposes of conflict of laws.”).

policy of the state, should be followed.” We have of course

52

said the same thing.53

The second question, Alaska law or New York law, is

more intricate. The rule is that the federal court in which the

case is litigated should apply the forum state’s choice of law

rules. The parties agree that Alaska choice of law rules

54

apply.

Though federal law establishes that attorney’s fees law is

substantive for Erie purposes, it is not necessarily substantive

for choice of law purposes. Whether it is substantive or 55

procedural for choice of law purposes depends on how the

Supreme Court of the forum state would characterize it.

Some state Supreme Courts consider their rules governing
ALASKA RENT-A-CAR V. AVIS BUDGET GROUP 29

 See, e.g., Kirwan v. Chicago Title Ins. Co., 624 N.W.2d 644, 653 56

(Neb. 2001) (applying a Nebraska statue on attorney’s fees in insurance

actions, despite the fact that South Dakota law governed the underlying

dispute, because Nebraska deems its attorney’s fees statute to be

procedural); North Bergen Rex Transport, Inc. v. Trailer Leasing Co.,

730 A.2d 843, 848 (N.J. 1999) (applying New Jersey law on attorney’s

fees despite the fact that another state’s substantive law governed the

underlying dispute, because “attorneys’ fees are a matter of practice and

procedure, rather than of substantive law.”).

 Ehredt v. DeHavilland Aircraft Co. of Canada, Ltd., 705 P.2d 446, 57

452 n.8 (Alaska 1985) (“Thus, even if we applied Florida law, Civil Rule

82 would control an award of attorney’s fees.”).

 See Aceves v. Allstate Ins. Co., 68 F.3d 1160, 1164 (9th Cir. 1995) 58

(“The district court, like us, is bound to follow the considered dicta as well

as the holdings of the California Supreme Court when applying California

law.”).

attorneys fees to be procedural for choice of law purposes.56

If the Alaska Supreme Court would consider its attorney’s

fees rule procedural, then Alaska law, the English Rule,

would apply. If, however, the Alaska Supreme Court would

consider its attorney’s fees rule substantive, then New York

law, the American rule, would apply. 

And that too is intricate. The Alaska Supreme Court has

never held that Alaska Rule of Civil Procedure 82 is

procedural for Alaska choice-of-law purposes. However, it

has stated in dicta in Ehredt v. DeHavilland that “attorney’s

fee are not an item of damage,” and that it would thus apply

Rule 82 even if anotherstate’s substantive law applied. We 57

must follow the considered dicta, as well as the holdings, of

the Alaska Supreme Court when applying Alaska law. The 58

Alaska Supreme Court has also held, in State v. Native
30 ALASKA RENT-A-CAR V. AVIS BUDGET GROUP

 156 P.3d 389 (Alaska 2007). 59

 Id. at 395, 402. 60

 Id. at 395–96 (quoting Alaska Const. art. IV, § 15) (emphasis in 61

original).

 See, e.g., Savage Arms, Inc. v. Western Auto Supply Co., 18 P.3d 49, 62

53 (Alaska 2001) (“We look to the Restatement (Second) of Conflict of

Laws for guidance in resolving choice-of-law issues.”).

 Restatement (Second) Conflict of Laws § 122. 63

 Nunapitchuk, 156 P.3d at 398. 64

Village of Nunapitchuk, that Rule 82 is procedural, not 59

substantive, though not in the choice of law context.60

Nunaptichuk dealt with whether Rule 82 is procedural for

purposes of the Alaska Constitution, which “commits the

enactment of all substantive law – that is all law except rules

of practice and procedure – to the legislature” but authorizes

the Supreme Court to “promulgate ‘rules governing practice

and procedure in civil and criminal cases in all courts.’”61

In analyzing Nunapitchuk, we note that Alaska generally

follows the Restatement (Second) of Conflict of Laws,

62

which says that “[a] court usually applies its own local law

rules prescribing how litigation shall be conducted even when

it applies the local law rules of another state to resolve other

issues in the case.” Avis urges us to hold that Rule 82 is not 63

a rule “prescribing how litigation shall be conducted” because

the Alaska Supreme Court has said that Rule 82 has a

partially compensatory purpose. We reject this argument

because Nunapitchuk deemed Rule 82 to be “primarily

concerned with . . . an effective and efficient system for the

administration ofjustice” despite its compensatory purpose.64
ALASKA RENT-A-CAR V. AVIS BUDGET GROUP 31

 N.Y. C.P.L.R. § 5004. 65

Based on the dicta in Ehredt and the holding and analysis

in Nunapitchuk, we conclude that the Alaska Supreme Court

would hold, for purposes of choice of law, that its attorney’s

fees rule is procedural. Rule 82 is thus substantive for Erie

purposes, procedural for Alaska constitutional purposes of

allocating authority as between the courts and the legislature,

and procedural for choice of law purposes. We therefore hold

that the law of the forum, Alaska, properly applies to

diversity cases brought in or removed to the United States

District Court for the District of Alaska. The district court

did not err by applying Alaska Rule of Civil Procedure 82 to

the attorney’s fee award.

VI. Prejudgment Interest.

The district court awarded prejudgment interest pursuant

to New York law of 9% per annum. The court used Alaska 65

Rent-A-Car’s expert’s analysis to separate lost profits before

judgment, 2003 to 2008, from lost profits projected to occur

after the 2009 judgment. The court then applied the New

York interest rate to the profits lost before the verdict on a

year by year basis (approximately 6 years interest on 2003

profits, 5 years interest on 2004 profits, and so forth). The

total interest awarded was $1,478,519.23. The court awarded

an additional $57,739.51 as interest on lost profits from the

date of the verdict to the date of judgment, plus $86,480.17 in

interest on the entire judgment from the date of the verdict

through the date of judgment. The parties agree that the

$57,739.51 was an error, double counting, and that the

judgment should be reduced by that amount.
32 ALASKA RENT-A-CAR V. AVIS BUDGET GROUP

 The parties do not dispute that New York law applies to this issue. 66

 N.Y. C.P.L.R. § 5001(a). 67

 N.Y. C.P.L.R. § 5001(b). 68

 N.Y. C.P.L.R. § 5001(c). 69

Avis argues that the district court erred in one additional

respect, making its own judgment on how to separate past

from future lost profits, because the jury was not asked to do

so by special verdict. The argument is unpersuasive.

New York law provides for the court to make just such 66

a calculation as the district court made. By statute,

prejudgment interest “shall” be awarded for breach of

contract. The statute provides that where damages “were 67

incurred at various times, interest shall be computed upon

each item from the date it was incurred or upon all of the

damages from a single reasonable intermediate date.” The 68

statutory language does not require juries to determine these

various dates or the “single reasonable intermediate date.”

Instead, “[i]f a jury is discharged without specifying the date,

the court upon motion shall fix the date.” The New York 69

practice appears to be for the trial court to make a reasonable

calculation based on the evidence, as provided in the statutory

language, directing the court to choose a “reasonable

intermediate date” or to “upon motion . . . fix the date”

implies.

Avis argues that two New York decisions establish that

prejudgment interest cannot be awarded on a verdict that

includes both past and future damages. These cases, Helman
ALASKA RENT-A-CAR V. AVIS BUDGET GROUP 33

 Helman v. Markoff, 8 N.Y.S.2d 448 (App. Div. 1938), aff’d per 70

curiam, 20 N.E.2d 1012 (N.Y. 1939).

 Brandt Corp. v. Warren Auto. Controls Corp., 322 N.Y.S.2d 291 71

(App. Div. 1971).

 Avis Reply Brief at 13 (emphasis in original). 72

v. Markoff and Brandt Corporation v. Warren Automatic 70

Controls Corporation, should be distinguished. In Brandt,

71

the plaintiff recovered a general verdict on two theories, one

of which was reversed on appeal, so there was no reasonable

way to tell whether much or all of the damages were on the

invalid theory. In Helman, plaintiff recovered a general

verdict on two causes of action, only one of which would

allow an award of prejudgment interest. By contrast, in this

case, no theory of recovery on which the damages award was

based is reversed, and the theory of recovery, breach of

contract, is one for which New York requires a prejudgment

interest award. 

The district court had a reasonable basis in the record for

allocating portions of the judgment to different years and

calculating interest as it did. Alaska Rent-A-Car’s expert

provided precisely such a breakdown, with a year by year

table that the court used. The jury’s verdict was so close to

the expert witness’s calculation that the court could

reasonably infer that the jury accepted the substantial

correctness of his testimony, especially since Avis’s expert

witness provided no alternative calculation. Avis’s

alternative, no prejudgment interest, assumes that “the jury

may have awarded no damages at all subject to prejudgment

interest,” an assumption unsupportable on the record. 72
34 ALASKA RENT-A-CAR V. AVIS BUDGET GROUP

Denial of prejudgment interest would be contrary to the

New York statute providing that it “shall” be awarded for

breach of contract. Since the breach and damage began about

six years before the verdict, some sort of calculation of

prejudgment interest was required by New York law. Though

Avis essentially faults Alaska Rent-A-Car for not obtaining

a special verdict to facilitate the calculation, Avis also did not

request a special verdict separating out past and future

damages. Avis gambled on an all or nothing argument, the

jury awarded all, and Avis had not asked for an instruction

requiring the jury to break out the pre and post-verdict

amount. It cannot now fault the court for making a

reasonable allocation based upon evidence in the record that

provided good support for the calculation it made.

CONCLUSION

The judgment is AFFIRMED, except that we remand

for the district court to reduce the prejudgment interest

award by $57,739.51. Costs are awarded to Alaska RentA-Car.