PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-1617

REMY HOLDINGS INTERNATIONAL, LLC,

 Plaintiff – Appellant,

v.

FISHER AUTO PARTS, INC,

 Defendant – Appellee.

Appeal from the United States District Court for the Western District of Virginia, at

Harrisonburg. Elizabeth Kay Dillon, District Judge. (5:19-cv-00021-EKD-JCH)

Argued: October 25, 2023 Decided: January 3, 2024

Before AGEE, WYNN and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Agee wrote the opinion in which Judge Wynn and 

Judge Richardson joined.

ARGUED: David Wayne Hearn, SANDS ANDERSON, PC, Richmond, Virginia, for 

Appellant. Matthew Allen Fitzgerald, MCGUIREWOODS, LLP, Richmond, Virginia, for 

Appellee. ON BRIEF: Matthew D. Green, Karissa T. Kaseorg, SANDS ANDERSON, 

PC, Richmond, Virginia, for Appellant. Ryan D. Frei, Lyle D. Kossis, MCGUIREWOODS 

LLP, Richmond, Virginia, for Appellee.

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AGEE, Circuit Judge:

This appeal centers on the relationship between a manufacturer and a distributor of 

rotating electrical parts—specifically, starters and alternators—and their disagreement as 

to who owned the “core value” of thousands of finished parts when their relationship ended.

For years, USA Industries (“USA”) harmoniously sold automotive parts to Fisher 

Auto Parts, Inc. (“Fisher”) pursuant to numerous agreements. Remy Holdings 

International, LLC (“Remy”) then bought USA and continued the relationship with Fisher 

under USA’s existing agreements as well as a few additional ones. In time, Remy began to 

struggle to meet its contractual obligations. Fisher complained and invoked certain 

contractually available penalties but continued the parties’ relationship for over a year. 

Eventually, however, Fisher terminated the relationship and began working with a different 

manufacturer. As part of the new arrangement, Fisher sold all of Fisher’s core inventory to 

that manufacturer. Contending that Fisher wrongfully terminated their agreement and 

Fisher’s core inventory belonged to it, Remy brought this action, claiming breaches of 

contract, unjust enrichment, and conversion. Fisher filed a counterclaim for breach of 

contract due to Remy’s poor performance. 

Although the claims were disposed of at different procedural postures, all claims 

were resolved in Fisher’s favor. The district court granted summary judgment to Fisher on

Remy’s breach of contract claims and unjust enrichment claim. It also granted summary 

judgment to Fisher, concluding that Remy was liable on Fisher’s breach of contract claim. 

Remy’s conversion claim and the damages determination for Fisher’s breach of contract 

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claim then proceeded to trial. The jury returned a verdict in favor of Fisher on the

conversion claim and awarded Fisher $1,816,277 in damages for its claim.

Remy timely appeals, challenging aspects of the district court’s evidentiary, 

summary judgment, and trial decisions. For the following reasons, we affirm. 

I.

A.

To understand the parties’ disagreement, some general knowledge about the 

relevant industry is necessary. 

Although a dead alternator or starter may be useless to the average car owner, 

manufacturers can utilize those finished parts to remanufacture new parts. So, generally, 

when an alternator or starter dies, the old part can be removed and returned to the 

manufacturer for reuse. Manufacturers encourage the distributors they work with to return 

their finished parts so that the manufacturers can benefit from the parts’ reuse. This process

saves the manufacturer money by reducing its material costs. In that vein, finished parts

retain a “core value”—the value of the parts’ reusable materials.

Ordinarily, manufacturers incentivize returning finished parts through various

programs, two of which are relevant here. First, in a “regular core deposit program” the 

manufacturer includes a refundable core charge—equal to the value of the part’s reusable 

materials—in the sales price of a new part. J.A. 2239. When a distributor returns the 

finished part to the manufacturer, the manufacturer refunds that cost to the distributor. 

Second, in a “one-for-one” program, the manufacturer does not charge the distributor for 

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the core value, but the distributor returns a finished part for every new part it receives. J.A. 

3027. Because this give and take isn’t always perfectly balanced, the parties keep track of 

how many new parts are sold to the distributor and how many finished parts the distributor 

returns and then periodically reconcile the difference. If a distributor “over-returns” 

(returns more finished parts than new parts it receives), the manufacturer credits the 

difference. If the distributor “under-returns” (returns fewer finished parts than new parts it 

receives), the distributor pays the difference. 

B. 

With this general knowledge of industry practice in mind, we can turn to the specific 

facts of this case. USA manufactured rotating electrical parts, specializing in alternators 

and starters. It contracted to sell those parts to Fisher, an automotive parts warehouse 

distributor that sells rotating electrical parts to auto repair businesses. In 1997, USA 

became Fisher’s primary supplier of rotating electrical parts. At all relevant times, Frank 

Doria, a senior USA (and later Remy) executive, and Bo Fisher, Fisher’s CEO, negotiated 

the agreements that governed USA and Fisher’s relationship. Some of those agreements 

are at issue here and require further context.

From 1997 to 2004, USA and Fisher agreed to use the regular core deposit program 

to govern the return of core parts to USA. Consistent with that program, USA charged 

Fisher a core deposit for each part it sold to Fisher and USA refunded that deposit when 

Fisher returned the finished part. 

But given the large scale of its orders, Fisher had difficulty paying the large core 

deposits up front as required under that arrangement. So, in 2005, USA and Fisher orally 

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negotiated a new “core policy,” which was memorialized in an unsigned document created 

by Bo Fisher entitled “USA Core Policy.” J.A. 235. The USA Core Policy provided that 

“USA would support the Fisher core devaluation program” through four “steps.” J.A. 235. 

The first two steps created a one-for-one core value program for the parties to follow

beginning on January 1, 2005. Under step one, Fisher would no longer be charged for a 

refundable core deposit and would instead return a finished part for every new part it 

received. Under step two, the parties agreed to “an accounting process whereby” they 

would “analyze the net core balance (net cores purchased less returned) for the year.” J.A. 

235. If Fisher over-returned, USA would credit the difference and if Fisher under-returned, 

it would pay USA the difference. 

Rather than addressing future transactions, the last two steps sought to “devalue”

Fisher’s then-existing cores. The third step provided that Fisher’s then-existing “core value 

would instantly go to zero.” J.A. 235. To “compensate” Fisher for that loss in core value, 

USA agreed to pay Fisher for the value of its then-existing core inventory in 144 monthly 

payments so that “[t]he full core value will be issued back to Fisher over 12 years.” J.A. 

235. The fourth and last step—and the provision that is particularly relevant to this 

litigation—stated that “should Fisher change [its] supplier of domestic remanufactured 

electrical products, all core reimbursement payments from USA would cease with nothing 

more owed to Fisher. Fisher wouldn’t have to repay USA for any core reimbursement 

payments received to date. The net result is that the cores are wholly owned by Fisher at 

the end of this process.” J.A. 235 (emphasis added).

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In 2012, USA and Fisher amended their agreement in a signed Letter of 

Understanding (“2012 LOU”). In relevant part, it noted that “USA is in the process of 

paying down Fisher cores and this multi-year effort will continue until Fisher cores are 

paid off.” J.A. 450. The 2012 LOU then explained that the “Fisher core devaluation monies 

will be sped up. All outstanding core devaluation credits that are scheduled to take more 

than 36 months to pay off will be refigured and paid to Fisher in equal monthly payments 

over the next 36 months.” J.A. 450. Next, the 2012 LOU provided that the agreement was 

“predicated upon USA keeping Fisher competitive in the marketplace in every way.” J.A. 

450. In addition, it noted that “[o]ther agreements exist between the parties and these shall 

continue” and nothing stated in this agreement “shall supplant, reduce or eliminate any 

currently-existing program between Fisher and USA other than the specific points 

addressed.” J.A. 450. Lastly, it stated that if USA sold its business, then “all aspects of this 

contract and the current program shall continue forward.” J.A. 450. 

Two years later Remy acquired USA and became Fisher’s supplier of rotating

electrical parts. 

In 2015, Remy submitted buying terms to the Auto Parts Services Group (the 

“APSG Terms”), a buying group in which Fisher participated.1 Members of the buying 

group could agree to the APSG Terms to the extent each individually chose to do so. The 

1 Distributors form buying groups to “leverage their power to get better deals, better 

promotions,” and the like. J.A. 2395. These groups invite manufacturers to propose sales 

terms to the entire group. 

Fisher was originally a part of the Federated buying group, which then merged with 

another buying group to form the Auto Parts Services Group. 

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APSG Terms included a “core pricing” provision that outlined Remy’s core programs. J.A. 

120. One of those programs was a “core relief program,” which provided that after six 

months Remy “will have taken 100% of [the distributor’s] core investment onto [its] 

balance sheet.” J.A. 120. Additionally, the APSG Terms included a clause that stated,

[Remy’s] buying program will be reviewed annually and analyzed for 

competitiveness. If The Group determines and documents that the market has 

shifted, resulting in an uncompetitive situation, [Remy] will work closely . . 

. to take corrective action. A time period of 60 days will be allocated for such 

measures. If, at the end of the allotted time, an agreement cannot be reached, 

The Group will be held harmless from this agreement.

J.A. 118. Finally, there was a performance guarantee in which Remy pledged a “93% or 

higher monthly order fill, or the customer will receive an additional 5% discount for the 

month’s shortages.” J.A. 122. There is no indication that Fisher agreed to these terms but, 

as will be discussed, the parties utilized at least one of the APSG Terms’ provisions during 

their relationship.

Remy and Fisher subsequently executed their own Letter of Understanding (the 

“2015 LOU”), which stated that “REMY wishes to continue to fully support Fisher with 

all aspects of past Fisher/USA agreements and Letters of Understanding, except as 

specifically included in this [LOU].” J.A. 136. The 2015 LOU provided for certain pricing 

and payment terms. Notably, in detailing the pricing, it explained that “the current 9% 

Federated Rebate will remain ongoing for Fisher beyond the expiration of this contract,” 

J.A. 136, seemingly referencing a particular APSG Terms provision. Additionally, the 

2015 LOU provided that “[t]his letter of understanding is predicated upon REMY keeping 

Fisher competitive in the marketplace in every way” (the “Keep Competitive Clause”). J.A. 

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136. It elaborated that “Remy shall take best efforts to ensure that Remy provides 

competitive products to Fisher compared to similar competitive products sold under the 

same market conditions and if this doesn’t occur in Fisher’s opinion then Fisher can change 

suppliers and end this contract with as little as 60 days of advanced notice; in such case 

Fisher shall not owe REMY any additional monies.” J.A. 136. 

There are two other agreements relevant to this appeal—the KOI Agreement and 

the Hoffman Agreement—which both related to Remy supplying parts to other auto parts 

distribution companies that Fisher later acquired. The precise details of these agreements 

are not relevant; it suffices to know that both agreements provided that if either agreement 

was terminated early, Fisher would owe Remy a certain amount of money for each month

remaining in the contractual period. J.A. 128; J.A. 131. 

Remy and Fisher performed under the above discussed agreements for a period of 

time without issue. However, in 2017, Remy’s performance of its obligations began to 

decline. In particular, Remy consistently failed to timely fill Fisher’s purchase orders. 

Generally, manufacturers are expected to have an order-fill rate of 95% (Remy pledged 

93% in the APSG Terms), meaning that the manufacturer timely fills 95% of the 

customer’s order. But “between March 2017 and May 2018, Remy’s monthly order-fill 

rate never rose above 80%,” and was “consistently in the 60s and 70s.” J.A. 265. Some 

individual order-fill rates were even in the 40s and 50s. 

By September 2017, Fisher regularly began expressing concern about Remy’s 

performance issues. For example, in one email to Doria, Bo Fisher stated that Remy’s fill 

rate was “terrible,” the situation was “embarrassing,” and Fisher was “losing lots of sales” 

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as a result. J.A. 1150. And throughout this period, Fisher invoked the fill-rate penalty set 

out in the APSG Terms to demand that Remy give Fisher a 5% discount whenever it did 

not have a 93% or higher monthly order-fill rate. Consistent with that provision, between 

2017 and 2018, Remy gave Fisher $196,001 in penalty discounts. 

Despite Fisher’s frustrations with Remy and its invocation of the penalty provision, 

Fisher continued placing new orders with Remy, including large seasonal orders. On at 

least one occasion it absolved Remy of a fill-rate penalty. For example, in January 2018, 

Fisher placed a seasonal order for over 39,000 parts—equivalent to a six-month supply

under their normal orders. Anticipating filling issues, Remy requested an accommodation 

on the 5% fill-rate penalty and Fisher agreed not to invoke the penalty for that order. 

In June 2018, however, Fisher notified Remy that it intended to end their 

relationship effective August 18, 2018—before the intended expiration of the KOI and 

Hoffman Agreements—due to Remy’s performance issues. Around that time, Fisher

entered into a supply agreement with a new manufacturer. As part of that agreement, Fisher 

calculated its core value inventory to be worth $6,904,039 and sold it to the new 

manufacturer for $6,500,000.

After their arrangement ended, Remy billed Fisher $6,198,767.28 for approximately 

130,000 parts with core value that Remy alleged it had supplied to Fisher in 2017 and 2018

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and for which Fisher had not paid a core charge or returned parts with core value.2 Fisher 

denied that Remy owned its core inventory and refused to pay.

C. 

As a result of Fisher’s refusal to pay, Remy filed a complaint in the U.S. District 

Court for the Western District of Virginia.

3 Remy asserted three claims based on its 

contention that it owned Fisher’s core inventory: breach of contract, unjust enrichment, 

and conversion. The breach of contract claim also alleged that Fisher owed Remy damages 

for terminating the KOI and Hoffman Agreements prematurely. Remy additionally brought 

a second breach of contract claim, contending that Fisher improperly terminated the 

parties’ relationship. Fisher filed a counterclaim for breach of contract, asserting that Remy 

breached its duty to keep Fisher competitive. 

After discovery, the parties filed various motions, including (1) Remy’s motion to 

exclude the USA Core Policy from evidence as violating Virginia’s statute of frauds

regarding sales of goods over $500; (2) Fisher’s motion for summary judgment on Remy’s 

second breach of contract claim (improper termination of the relationship); (3) Remy’s 

motion for summary judgment on its first breach of contract claim (ownership of the core 

value and KOI and Hoffman Agreements); and (4) Remy’s motion to exclude one of 

Fisher’s experts.

2 Remy claims that it only desires the value of cores that were supplied to Fisher 

after the 2015 APSG Terms “became effective.” Opening Br. 7.

3 Because the parties are diverse in citizenship and Remy sought over $75,000, the 

district court had jurisdiction over these state law claims pursuant to 18 U.S.C. § 1332.

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After a hearing on all the motions, the district court denied each of Remy’s motions 

and granted Fisher’s motion. See Remy Holdings Int’l, LLC v. Fisher Auto Parts, Inc., No. 

5:19-cv-00021, 2022 WL 193742, at *1 (W.D. Va. Jan. 21, 2022).4 On Remy’s motion to 

exclude, the district court explained that the statute of frauds did not apply because the 

USA Core Policy did not involve a sale of goods and, even if it did, numerous exceptions 

to the statute of frauds applied in this case. Id. at *7–8. 

Turning to the motions for summary judgment, the court granted Fisher’s motion 

for summary judgment on Remy’s breach of contract claim related to Fisher’s allegedly 

wrongful termination of the parties’ relationship because Remy conceded that Fisher had 

the right to terminate their relationship after Remy failed to keep Fisher competitive by 

failing to meet its 93% fill-rate pledge. Id. at *10; J.A. 1307–08. The district court then 

denied summary judgment to Remy on its breach of contract claim related to the ownership 

of core value and damages under the KOI and Hoffman Agreement because the 2015 LOU 

stated that if Remy did not keep Fisher competitive “in Fisher’s opinion then Fisher can 

change suppliers and end this contract with as little as 60 days of advanced notice” and “in 

such case Fisher shall not owe REMY any additional monies,” Remy Holdings Int’l, 2022 

WL 193742, at *11 (citation omitted) (emphasis added), and there was ample evidence 

Remy failed to keep Fisher competitive. Lastly, the court denied Remy’s motion to exclude 

certain expert testimony. Id. at *12.

4 Given the numerous motions and various agreements related to each argument, we 

begin with an overview of the district court’s decisions and give a more thorough 

explanation of each one in the context of Remy’s specific arguments below.

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In a subsequent decision, the district court granted Fisher leave to file a second 

motion for summary judgment due to a change in legal theories by Remy in its motion for 

summary judgment.5 In that motion, Fisher argued it was entitled to summary judgment on 

Remy’s breach of contract and unjust enrichment claims, which were based on Remy’s 

alleged entitlement to the core value and damages under the KOI and Hoffman 

Agreements. 

With regard to the breach of contract claim, Fisher asserted that, under the first 

material breach doctrine, Remy’s failure to keep Fisher competitive precluded Fisher’s 

liability under any of the parties’ agreements. The district court granted Fisher’s motion, 

rejecting Remy’s argument that Fisher waived a first material breach defense. Remy 

Holdings Int’l, LLC v. Fisher Auto Parts, Inc., No. 5:19-cv-00021, 2022 WL 571527, at 

*5 (W.D. Va. Feb. 25, 2022).

The district court also granted Fisher’s motion as to the unjust enrichment claim.

The court reasoned that Remy did not dispute Fisher’s arguments regarding that claim and, 

in fact, conceded at a hearing on the motion that its claim could not be sustained in light of 

the express contractual agreements. Id.

Because the district court had determined that Remy failed to keep Fisher 

competitive in Fisher’s second motion for summary judgment, it then granted summary 

5 In its complaint, Remy claimed that the APSG Terms governed Fisher’s 

termination rights and Fisher failed to comply with those terms. However, at the summary 

judgement stage, Remy conceded the language in the 2015 LOU “control[led] Fisher’s 

termination rights” and that its “complaint [was] no longer in line with Remy’s current 

theory.” J.A. 1301.

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judgment to Fisher as to Remy’s liability for Fisher’s breach of contract claim as that claim 

was also based on Remy’s failure to keep Fisher competitive.6

 

The parties proceeded to trial on Remy’s conversion claim and to determine 

damages for Fisher’s breach of contract claim. In addition to other evidence regarding core 

ownership, at least five USA/Remy employees testified indicating that they understood that 

Fisher owned its cores. Ultimately, the jury returned a verdict in favor of Fisher on Remy’s 

conversion claim and awarded Fisher $1,816,277 on its breach of contract claim.7

Remy timely appeals, bringing five general challenges to the district court’s 

decisions. First, Remy asserts that the district court erroneously concluded that the statute 

of frauds does not bar the admission of the USA Core Policy. Second, it contends that the 

district court incorrectly determined that Fisher had not waived its first material breach 

defense. Third, Remy argues that the district court should have revived its unjust 

enrichment claim after dismissing its breach of contract claim related to its alleged 

ownership of the core value and entitlement to damages under the KOI and Hoffman 

Agreements. Fourth, it posits that the district court erroneously admitted certain expert 

6 Though it is not clear if this aspect of the district court’s decision is in the twentyvolume record, the parties do not dispute that it occurred. In fact, Remy does not appear to 

challenge this decision at all. 

7 During closing arguments, Fisher’s counsel asserted that Fisher proved damages 

of $2,297,474. However, Fisher reduced its requested damages by $196,001 to reflect 

order-fill penalties Remy already paid and then by an additional $285,196 to account for 

money Fisher admitted it owed under the KOI and Hoffman agreements. After the 

reductions, Fisher requested $1,816,277, which is the amount the jury awarded.

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testimony at trial. Finally, Remy maintains that the district court mistakenly failed to 

instruct the jury on equitable defenses. 

This Court has jurisdiction over this appeal under 28 U.S.C. § 1291. Because 

Remy’s claims arise under Virginia law, we apply the applicable law of Virginia. Whitmire 

v. S. Farm Bureau Life Ins. Co., 52 F.4th 153, 157 (4th Cir. 2022). Where necessary, we 

determine how the Supreme Court of Virginia would decide a particular issue. Id.

II.

Remy first asserts that the district court erred by allowing into evidence the USA 

Core Policy and testimony about it because the statute of frauds prohibits reliance on 

certain unsigned writings. 

Remy invokes two Virginia statutes to press its argument, one derived from the 

Uniform Commercial Code (“U.C.C.”) and the other derived from the common law.

Virginia’s U.C.C. statute of frauds provides: 

a contract for the sale of goods for the price of $500 or more is not 

enforceable by way of action or defense unless there is some writing 

sufficient to indicate that a contract for sale has been made between the 

parties and signed by the party against whom enforcement is sought. 

Va. Code Ann. § 8.2-201(1). The common law, or “general,” statute of frauds, now 

codified, provides in part that “unless a promise, contract, [or] agreement, . . . is in writing 

and signed by the party to be charged or his agent, no action shall be brought . . . [u]pon 

any agreement that is not to be performed within a year.” Id. § 11-2(8).

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Before trial, Remy argued that, as a contract for the sale of goods for $500 or more, 

the USA Core Policy failed to comply with the U.C.C. statute of frauds because it was not 

signed by USA or Remy. The district court rejected Remy’s argument, explaining that the 

USA Core Policy “is not a contract for the sale of goods” but is instead an “outline of steps 

the parties would follow as part of the Fisher core devaluation program,” and therefore is 

not subject to the statute of frauds. Remy Holdings Int’l, 2022 WL 193742, at *7 (cleaned 

up). Moreover, the district court found that even if it was subject to the statute of frauds, 

multiple exceptions to the enforcement of the statute of frauds applied. Id. at *8. For 

example, it concluded that the USA Core Policy was incorporated into the 2012 LOU and 

found that the merchant exception applied because USA never objected to the policy after 

receiving it from Fisher. Id. at *7–8.

Then, during trial, Remy argued that the USA Core Policy—and any testimony 

about it—was inadmissible as a violation of the general statute of frauds under Va. Code 

Ann. § 11-2(8). The district court overruled Remy’s objection, “[f]or all the reasons 

previously stated” in its denial of Remy’s original motion to exclude the USA Core Policy. 

J.A. 2785.

“We review a district court’s evidentiary rulings for abuse of discretion and subject 

such rulings to harmless error review.” United States v. Johnson, 587 F.3d 625, 637 (4th 

Cir. 2009).

We address the U.C.C. statute of frauds first. We note, as an initial matter, that there 

is a viable argument that the USA Core Policy does not involve a contract for the sale of 

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goods such that the U.C.C. statute of frauds would be inapplicable.8 But we need not 

definitively decide whether the USA Core Policy involves the sale of goods under the 

U.C.C. statute of frauds. This is because, even if it does, the U.C.C. statute of frauds does 

not preclude the admission of the USA Core Policy. Most obviously, a separate writing 

“sufficient to indicate that a contract for sale has been made between the parties and signed 

by the party against whom enforcement is sought” takes the USA Core Policy out of the 

U.C.C. statute of frauds. Va. Code Ann. § 8.2-201(1). Indeed, the signed 2012 LOU 

sufficiently references the USA Core Policy so as to satisfy this method of documenting 

the parties’ consent to the unsigned agreement. The USA Core Policy, at its heart, created 

a “core devaluation program” in which USA paid Fisher in equal monthly installments for 

the full value of Fisher’s then-existing cores. The 2012 LOU, signed by both parties,

acknowledged that “USA is in the process of paying down Fisher cores and this multi-year 

effort will continue until Fisher cores are paid off.” J.A. 450. It then explained that “Fisher 

core devaluation monies will be sped up. All outstanding core devaluation credits that are 

scheduled to take more than 36 months to pay off will be refigured and paid to Fisher in 

equal monthly payments over the next 36 months.” J.A. 450. 

The 2012 LOU leaves no doubt that a separate contract existed between USA and 

Fisher governing Fisher’s core devaluation and it explains how the agreement worked—

USA made equal monthly payments to Fisher for Fisher’s core devaluation. Although 

Remy complains that the 2012 LOU did not specifically reference the USA Core Policy 

8 “A ‘sale’ consists in the passing of title from the seller to the buyer for a price.” 

Va. Code Ann. § 8.2-106(1) (citation omitted). 

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provision most relevant to this case—the statement that, at the end of this process, Fisher 

would own its cores—there is no requirement that the incorporating document recite all of 

the unsigned contract’s terms. See Va. Code Ann. § 8.2-201(1) (“A writing is not 

insufficient because it omits . . . a term agreed upon[.]”). At bottom, the 2012 LOU 

references the USA Core Policy’s essential terms—those related to the day-to-day 

operation of the parties’ agreement—and sufficiently assures the Court that there was a 

contract between the two parties adopting the USA Core Policy. See id. The U.C.C. statute 

of frauds therefore does not bar the admission of the USA Core Policy.

Even if the separate writing provision of the U.C.C. statute of frauds were not 

enough to render it inapplicable, the merchant exception also does so. Virginia’s merchant 

exception states that if merchants orally agree to a contract and “within a reasonable time 

a writing in confirmation of the contract and sufficient against the sender is received and 

the party receiving it has reason to know its contents, it satisfies [the statute of frauds] 

against such party unless written notice of objection to its contents is given within ten days

after it is received.” Id. § 8.2-201(2). Here, Doria—the USA (and later Remy) executive 

who negotiated the agreements with Fisher—testified that he negotiated the USA Core 

Policy, he received the USA Core Policy, and he agreed to it. See J.A. 2792 (Q: “[D]o you 

remember, in fact, receiving [the USA Core Policy] at some point?” Doria: “Yeah.” Q: 

“And agreeing to it?” Doria: “Yes, I do.”). Neither Doria nor any other USA representative

objected to it or any of its terms. Under these circumstances, the merchant exception 

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applies. Therefore, the U.C.C. statute of frauds would not bar the USA Core Policy’s 

admission for this independent reason.9

Remy alternatively asserts that the USA Core Policy violates the general statute of 

frauds under Va. Code Ann. § 11-2(8). Although there are no enumerated exceptions to 

that statute of frauds, Virginia courts have applied certain exceptions to it. Similar to the

U.C.C. statute of frauds’ exception discussed above, Virginia courts have “long held that 

multiple writings” referencing the essential terms of an oral agreement “may be used to 

defeat a plea of the statute of frauds.” C. Porter Vaughan, Inc. v. DiLorenzo, 689 S.E.2d 

656, 661 (Va. 2010). Thus, for the same reasons the 2012 LOU’s incorporation of the 

essential terms of the USA Core Policy satisfies the U.C.C. statute of frauds, it similarly 

precludes the application of the common law statute of frauds.10

We therefore conclude that the district court did not abuse its discretion by allowing 

the USA Core Policy and testimony about it into evidence. 

9 We find no merit in Remy’s challenge to the reasonable-time-of-receipt element. 

The evidence was undisputed that USA received the USA Core Policy and acted under it 

for years. Remy offers no evidence to the contrary. 

10 We also note that because the object of the statute of frauds is to prevent fraud, 

Virginia courts refuse to apply the common law statute of frauds when doing “so would 

result in a fraud or perpetrate a wrong.” Troyer v. Troyer, 341 S.E.2d 182, 185 (Va. 1986); 

see also Murphy v. Nolte & Co., 307 S.E.2d 242, 245 (Va. 1983). Though we need not rely 

on this policy exception here, its application is clearly relevant given that all the original 

parties to the USA Core Policy testified that they negotiated for and agreed to its terms and 

Remy appears to simply wish to avoid its enforcement in this litigation. 

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III.

Remy next argues that the district court erroneously granted summary judgment to 

Fisher on Remy’s breach of contract claim related to the ownership of the core inventory

and the KOI and Hoffman Agreements. 

Fisher moved for summary judgment on this claim, arguing that, under the first 

material breach doctrine, Remy’s failure to keep Fisher competitive precluded Fisher’s 

liability for any money it would owe under the 2015 LOU. Remy responded that it did not 

breach the Keep Competitive Clause and, even if it did, that Fisher waived a first material 

breach argument by continuing to place orders with Remy. The district court concluded 

that “[g]iven Remy’s admitted performance issues, including but not limited to order fill 

rates, Remy breached the contract prior to June 18, 2018, by failing to keep Fisher 

competitive in the marketplace.” Remy Holdings Int’l, 2022 WL 571527, at *4. Thus, under 

the first material breach doctrine, the district court held that “Remy is precluded from 

proceeding against Fisher for breach of contract.” Id. In doing so, the district court rejected 

Remy’s waiver argument, reasoning that, in Virginia, continuing to perform after a material 

breach does not preclude asserting such a defense if the nonbreaching party complained 

about the breach when it occurred. Accordingly, the court granted Fisher’s motion and 

dismissed Remy’s breach of contract claim regarding ownership of the core inventory and 

the KOI and Hoffman Agreements.

Remy contends that the district court erroneously applied the first material breach 

defense because Fisher waived such a defense by continuing to order parts from Remy, 

utilizing the fill-order penalty, and at times explicitly waiving the fill-order penalty.

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We review the district court’s grant of summary judgment de novo. Belmora LLC 

v. Bayer Consumer Care AG, 987 F.3d 284, 291 (4th Cir. 2021). “Summary judgment is 

appropriate when there is no genuine issue of material fact and the moving party is entitled 

to judgment as a matter of law.” Id. (citation omitted). 

In Virginia, a party who commits the first material breach of a contract is generally

not entitled to enforce it. Horton v. Horton, 487 S.E.2d 200, 203 (Va. 1997). In other words,

as a defense to a breach of contract claim, a defending party can assert that the party who 

brought the claim committed the first material breach and therefore cannot enforce the 

contract. “A material breach is a failure to do something that is so fundamental to the 

contract that the failure to perform that obligation defeats an essential purpose of the 

contract.” Id. at 204. 

However, the first material breach defense can be waived in certain circumstances

during the course of the contract’s performance. Va. Polytechnic Inst. & State Univ. v. 

Interactive Return Serv., Inc., 595 S.E.2d 1, 6 (Va. 2004). “Waiver is an intentional 

relinquishment of a known right.” Id. (cleaned up). To establish waiver, there must be (1) 

“knowledge of the facts basic to the exercise of the right and” (2) “the intent to relinquish 

that right.” Id. (citation omitted). “The party relying on a waiver has the burden to prove 

the essentials of such waiver by clear, precise, and unequivocal evidence.” Id. (cleaned up). 

There is no genuine dispute that Remy committed the first material breach. Under 

the 2015 LOU, Remy was required to “keep[] Fisher competitive in the marketplace in 

every way.” J.A. 136. Remy conceded before the district court that “[t]o keep a customer 

competitive, Remy needed consistent order-fill rates in the low-to-mid 90s.” J.A. 264 

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(Fisher’s statement of undisputed material facts); J.A. 1304 (Remy conceding that Fisher’s 

statement of undisputed material facts was “correct”). The record shows that Remy 

consistently failed to meet that competitive fill rate, averaging an order-fill rate below 80% 

and sometimes timely filling only 40 or 50% of orders. And Remy does not dispute that its 

failure to meet this requirement was material. Given that Remy’s contractually deficient 

performance predated Fisher’s allegedly wrongful termination of their relationship, Remy 

committed the first material breach.11

The pertinent question therefore is whether Fisher waived its right to assert the first 

material breach doctrine during the parties’ course of dealing by (1) continuing to order 

from Remy—including by placing at least one large seasonal order—and (2) “absolving” 

Remy of the fill-rate penalty on at least one occasion. Two Supreme Court of Virginia cases 

are instructive in answering this question.

In Horton v. Horton, the Supreme Court of Virginia determined that a party did not 

waive the first material breach defense despite continuing the contractual relationship after 

11 Remy does assert, however, that the district court erroneously failed to consider 

the APSG Terms’ provision regarding Remy’s obligation to keep Fisher competitive when 

interpreting the 2015 LOU’s Keep Competitive Clause. But Remy conceded below that the 

APSG Terms did not govern the parties’ conduct. See J.A. 1300–01 (“And I will concede 

to you, . . . Remy no longer relies on [the APSG Terms’] language and Remy concedes 

that, because the LOU between Remy and Fisher has different termination language, the 

language in the LOU would trump.”). Moreover, as noted, Remy conceded that it failed to 

perform as necessary to keep Fisher competitive—with order-fill rates far below the 

required low-to-mid 90s. See J.A. 265, 1304. The district court did not err therefore by 

failing to consider if the APSG Terms—which were not signed by the parties or otherwise 

agreed to by Fisher—affected the signed 2015 LOU’s terms.

Additionally, Remy asserts that the Keep Competitive Clause is too indefinite to 

establish an enforceable promise. However, Remy forfeited that argument by failing to 

raise it below. See Hicks v. Ferreyra, 965 F.3d 302, 310 (4th Cir. 2020).

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the breach occurred. 487 S.E.2d at 204. In relevant part, the parties’ contract required Mrs. 

Horton to sign a separate dissolution agreement and execute a power of attorney giving her 

lawyer the ability to sign on her behalf certain documents necessary to the sale of multiple 

real estate lots. Id. at 202. In return, Mr. Horton agreed to pay Mrs. Horton net proceeds 

from the anticipated sale of those lots and to supplement the payments with his own funds 

in certain circumstances. Mrs. Horton signed the dissolution agreement, but failed to 

execute the power of attorney “despite Mr. Horton’s repeated requests” to do so. Id. Mrs. 

Horton instead simply signed the relevant documents herself and ignored Mr. Horton’s 

request before each sale that she execute the power of attorney. Nonetheless, for years, Mr. 

Horton complied with his end of the agreement, paying Mrs. Horton the proceeds from the 

sales and supplementing those payments when necessary. Id. at 203. Eventually, however, 

Mrs. Horton began withholding her signature, which resulted in delays—and sometimes 

the complete loss—of settlements, causing harm to Mr. Horton. He ceased his payments to 

her as a result. Id. 

Mrs. Horton then sued for breach of contract. Mr. Horton countered that Mrs. 

Horton could not bring such a claim because she committed the first material breach by 

failing to execute a power of attorney. Mrs. Horton responded that by proceeding with the 

payments and accepting her signatures instead of a power of attorney, Mr. Horton had 

waived the requirement that Mrs. Horton execute a power of attorney. Id. The court rejected 

Mrs. Horton’s argument, reasoning that “the evidence affirmatively showed that Mr. 

Horton did not intend to relinquish his contractual right to secure a power of attorney from 

Mrs. Horton.” Id. at 205. For example, “before each settlement, Mr. Horton requested that 

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Mrs. Horton sign the power of attorney as required by the [parties’] contract. These 

repeated requests establish that Mr. Horton did not waive his right to assert Mrs. Horton’s 

failure to sign the power of attorney as an excuse for his nonperformance.” Id. Horton 

therefore provides that a party can continue a contractual relationship after a breach without 

waiving the first material breach defense where he or she continues to request that the 

breaching party comply with the contract’s terms. 

The second relevant case is Virginia Polytechnic Institute & State University v. 

Interactive Return Services, Inc., where the Supreme Court of Virginia determined that a 

party could waive a first material breach defense by agreeing to amend the terms of the 

contract. 595 S.E.2d at 6–7. There, Interactive Return Services (“IRS”) agreed to 

“promptly” reimburse Virginia Tech every month for 80% of the costs of the research and 

development of a particular device. Id. at 3. From the outset, IRS informed Virginia Tech 

that its income sources were limited. And at some point during the contractual period, IRS 

stopped reimbursing Virginia Tech. Id. Virginia Tech sent several letters demanding 

payment, but IRS stated that it could not pay and instead offered to work out a payment 

schedule. Later, IRS informed Virginia Tech that it could not make any further payments 

until it received the finished device. Id. Nevertheless, Virginia Tech continued its research 

and even requested several extensions and additional research costs toward developing the 

device.

When Virginia Tech eventually stopped working on the project, IRS filed a breach 

of contract claim. Virginia Tech responded that IRS could not enforce the contract because 

IRS committed the first material breach by failing to promptly reimburse Virginia Tech. In 

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reply, IRS alleged that Virginia Tech had waived that argument by modifying the terms of 

their agreement and explicitly agreeing to give IRS until after the device was developed to 

reimburse Virginia Tech. The court concluded that there was sufficient evidence

“consistent with IRS’s position that Virginia Tech had agreed to wait for payment until . . . 

after it provided a working prototype to IRS,” such that a jury should resolve the issue. Id. 

at 6. It relied on the fact that IRS timely disclosed financial deficiencies and that Virginia 

Tech continued to work on the project—even requesting additional costs—after IRS 

informed it that it could not make further payments until IRS received the device. As a 

result, the case was not one “in which Virginia Tech merely acquiesced in IRS’s failure to 

pay its indebtedness promptly. Instead, there is sufficient evidence from which the jury 

could fairly infer that Virginia Tech intended to relinquish its contractual right to receive 

prompt payment by IRS in order to produce [the device].” Id. at 7 (citation omitted). 

Virginia Polytechnic therefore suggests that a party can waive a first material breach 

defense by explicitly amending the relevant contractual term. 

Remy contends that this case is more analogous to Virginia Polytechnic because

Fisher explicitly “absolved” Remy of its order-fill penalty on at least one occasion and

Fisher was aware of Remy’s poor performance but continued to order from Remy and even 

requested larger orders. We disagree with Remy. 

Unlike in Virginia Polytechnic—where IRS alleged Virginia Tech agreed to amend 

their agreement and accept a later payment—there is no allegation that Fisher ever 

abrogated Remy’s contractual obligation to keep it competitive through certain fill rates.

To the contrary, Remy concedes that “Fisher routinely demanded that Remy meet order fill 

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at a certain percentage, [and] complained when that did not occur.” Opening Br. 44.

Moreover, consistent with a desire to enforce its contractual right, Fisher repeatedly 

invoked the 5% order-fill penalty, requiring Remy to discount the parts that Remy failed 

to timely provide to Fisher.12 That puts this case more in line with Horton than Virginia 

Polytechnic. Fisher’s repeated requests and asserted penalties are convincing direct 

evidence that it intended to invoke its right to demand that Remy keep it competitive. It is 

not enough that Fisher simply continued to order from Remy consistent with their 

agreements when Fisher so clearly intended to invoke its contract right—“[a]cceptance of 

defective performance, without more, does not prove intent to relinquish the right to full 

performance.” Horton, 487 S.E.2d at 204.

13

12 To the extent Remy suggests that Fisher’s invocation of the order-fill penalty was 

itself a waiver of its right to claim a breach of contract, that argument is without merit. 

Under Virginia law, a remedy is “exclusive of other possible remedies only where the 

language employed in the contract clearly shows an intent that the remedy be exclusive.” 

Bender-Miller Co. v. Thomwood Farms, Inc., 179 S.E.2d 636 (Va. 1971). And nothing 

suggests the order-fill penalty was an exclusive remedy.

13 To support its position, Remy also points the Court to Richmond Leather 

Manufacturing Co. v. Fawcett, where the Supreme Court of Virginia concluded that “[a] 

series of dealings in which delayed deliveries are accepted and paid for, and further 

deliveries demanded, justifies the party in default, in the absence of anything to the 

contrary, in concluding that the contract will not be rescinded on account of such delayed 

deliveries without notice.” 107 S.E. 800, 808 (Va. 1921). The court further provided that

“[i]f failure to deliver according to the terms of a contract, gives the right to rescind, 

acceptance of a delayed delivery and payment therefor, standing alone, is a waiver of the 

right and an election to hold the defaulting party to his contract.” Id. Remy asserts that 

Richmond Leather therefore suggests that Fisher waived its right to enforce the contract by 

accepting Remy’s deficient performance and submitting further orders. 

There are two problems with Remy’s argument. To start, it’s somewhat unlikely

that those statements that Remy cites are still good law, as the Virginia Supreme Court has 

since significantly changed course. See, e.g., Stanley’s Cafeteria, Inc. v. Abramson, 306 

(Continued)

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Despite Remy’s contentions to the contrary, Fisher never absolved Remy of its 

contractual duty to keep Fisher competitive through certain order-fill rates. True, Gregory 

Haan, a corporate adviser at Fisher, stated in his deposition that “from time to time [Fisher] 

absolved [Remy] from order fill penalties.” J.A. 3001.14 But the fact that Fisher may have 

absolved Remy of the order-fill penalty on specific occasions is not the same thing as 

absolving Remy of the underlying contractual obligation to meet the required order-fill 

rate. This vague absolution testimony simply does not amount to a waiver of Fisher’s 

contractual right to receive competitive order-fill rates or otherwise make this case more 

like Virginia Polytechnic. At most, there were isolated one-off orders in which Fisher 

waived the discount, but for that order only. 

S.E.2d 870, 873 (Va. 1983) (“[S]tanding alone, an obligee’s acceptance of less than full 

performance by the obligor does not prove intent to relinquish a right to enforce full 

performance.”); Tandberg, Inc. v. Advanced Media Design, Inc., No. 1:09cv863, 2009 WL 

4067717, at *4 (E.D. Va. Nov. 23, 2009) (unpublished) (stating that Virginia’s more recent 

waiver decisions “implicitly abrogate, if not overrule” its older decisions). In addition, even 

if that were the law in Virginia, Remy ignores a key aspect of the Virginia Supreme Court’s 

statements in Richmond Leather. The court stated only that the acceptance of deficient 

performance and further dealings constitute a waiver “in the absence of anything to the 

contrary.” Richmond Leather, 107 S.E. at 808 (emphasis added); id. (stating that 

acceptance of an inadequate delivery “standing alone” amounts to a waiver (emphasis 

added)). However, here, Fisher did not simply accept Remy’s insufficient performance and 

order more parts. To the contrary, Fisher repeatedly objected to and complained about 

Remy’s failure to meet its contractual obligations. Richmond Leather therefore does not 

help Remy.

14 Notably, this statement was made in reference to an email in which a Remy 

employee stated that “Fisher has never held Remy to the same order fill standards for [large 

seasonal orders] as they have for normal stock orders.” J.A. 9830. Haan’s response to that 

email was: “We can certainly discuss this. . . . I don’t think Remy can absolve from order 

fill penalties entirely.” J.A. 9830.

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At bottom, like in Horton, although Fisher continued performing under the parties’ 

agreement, Fisher repeatedly complained about Remy’s failure to meet its order-fill rates 

and—going a step further than Mr. Horton—even penalized Remy for its failure to do so. 

This consistent and repeated objection to Remy’s subpar performance conclusively 

demonstrates Fisher’s intention to enforce its right to competitive order-fill rates. See 

Stanley’s Cafeteria, Inc. v. Abramson, 306 S.E.2d 870, 873 (Va. 1983) (“The focus of the 

waiver inquiry is upon intent to relinquish.”). Therefore, the district court properly 

concluded that Fisher did not waive its first material breach defense.15 And because, as 

discussed above, Remy indisputably committed the first material breach, the district court 

properly granted summary judgment to Fisher on Remy’s breach of contract claim relating 

to the core inventory and the KOI and Hoffman Agreements. 

IV. 

Remy also argues that the district court erred by not reinstating Remy’s unjust 

enrichment claim—seeking a “disgorgement of the benefit conferred upon Fisher by virtue 

of its non-payment on core balances,” J.A. 113—after declaring its contractual rights 

legally unenforceable. 

15 Remy additionally argued—with little explanation—that the district court’s 

“flawed application of Fisher’s first material breach defense” resulted in an error related 

specifically to the KOI and Hoffman Agreements. Opening Br. 49. But given that we find 

no error with the district court’s first material breach analysis, Remy’s assertion is without 

merit. 

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However, Remy’s argument fails because it wholly neglected to respond to Fisher’s 

summary judgment motion seeking the dismissal of the unjust enrichment claim and, 

consequently, forfeited any opposition to its dismissal. See Williams v. Pro. Transp. 

Inc., 294 F.3d 607, 614 (4th Cir. 2002) (“Issues raised for the first time on appeal are 

generally not considered absent exceptional circumstances.”); Hadeed v. Abraham, 103 F. 

App’x 706, 708 (4th Cir. 2004) (per curiam) (stating the nonmoving parties waived an issue 

on appeal by failing to oppose the moving party’s motion before the district court). We 

therefore discern no error in the district court’s failure to subsequently reinstate Remy’s 

unjust enrichment claim. 

V. 

Remy next asserts that the district court erroneously allowed testimony from 

Fisher’s expert, Peter Kornafel, into evidence at trial.

Federal Rule of Evidence 704(a) allows the admission of expert testimony that 

“embraces an ultimate issue” to be decided by the trier of fact. “However, opinion 

testimony that states a legal standard or draws a legal conclusion by applying law to the 

facts is generally inadmissible.” United States v. McIver, 470 F.3d 550, 561–62 (4th Cir. 

2006). 

Kornafel is an expert “in the automotive aftermarket with respect to core-related 

programs and practices, automotive buying groups, and inventory management.” J.A. 

3025. He was designated to testify regarding core programs. In his deposition, Kornafel 

stated in relevant part, “I’m not here to give you a legal opinion about who owns the cores, 

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one way or the other. But I think that [the USA Core Policy] is pretty straightforward in 

what it says, that at the conclusion of the deal that was outlined in that program, it says, 

quote, Fisher would own those cores.” J.A. 7271. He also stated that the program “was 

followed from 2005 to the end of the relationship, even by Remy. So while that document 

isn’t signed, I believe that it was, in fact, how they did business with each other for more 

than 10 years.” J.A. 7273. Based on those statements, Remy challenged the admission of 

Kornafel’s testimony as giving improper legal conclusions. The court rejected that 

argument because “Kornafel bases his opinions on industry-specific experience, not an 

interpretation of the parties’ contracts” but noted that it “may revisit this ruling at trial if 

Kornafel’s testimony crosses the line into contract interpretation.” Remy Holdings Int’l, 

2022 WL 193742, at *15.

At trial, Kornafel testified that group term sheets—such as the APSG Terms—are 

offers made “available to any member of the group, but [they] do[] not create any 

obligations on any part of the members of the group.” J.A. 3024. Instead, the “important 

document in every case would be a contract between the individual member and the 

[manufacturer].” J.A. 3024. Kornafel also stated that ownership of the core is “[e]ntirely 

unrelated” to the kind of program the contracting parties employ. J.A. 3028. Importantly, 

Kornafel did not give an opinion on who owned the cores on direct examination. However, 

on cross examination, Remy’s attorney asked Kornafel how he arrived at his “opinion that 

Fisher owned the Remy cores.” J.A. 3052. Kornafel responded that his “opinion was based 

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on the fact that there is no contract that says Remy owns those cores.” J.A. 3052. Remy did 

not object to Kornafel’s testimony during trial.16

We review the district court’s decision to admit expert testimony into evidence for 

abuse of discretion. Bryte ex rel. Bryte v. Am. Household, Inc., 429 F.3d 469, 475 (4th Cir. 

2005). “A district court abuses its discretion if its conclusion is guided by erroneous legal 

principles, or if it rests upon a clearly erroneous factual finding.” Id. 

Remy asserts the district court abused its discretion by allowing the jury to hear 

Kornafel’s testimony that interpreted the parties’ contractual rights and opined on who 

owned the cores. But none of Kornafel’s direct examination testimony involved the 

allegedly improper legal conclusions. He merely testified about general practices between 

buying groups and manufacturers and typical core ownership agreements. See Pelletier v. 

Main St. Textiles, LP, 470 F.3d 48, 55 (1st Cir. 2006) (“[I]n general, the customs and 

practices of an industry are proper subjects for expert testimony.”). It was not until Remy’s 

own counsel brought up Kornafel’s opinion on core ownership that Kornafel explained 

why he believed Fisher owned the core. Given that Remy “invited” the allegedly 

erroneously admitted testimony by introducing the issue in a question that elicited the 

response it now complains of, this testimony provides “no basis for reversal.” United States 

16 Fisher contends that because Remy failed to object at trial, its argument is 

reviewed for plain error. That is incorrect. “Motions in limine ‘preserve issues that they 

raise without any need for renewed objections at trial, just so long as the movant has clearly 

identified the ruling sought and the trial court has ruled upon it.’” Rice v. Comty. Health 

Ass’n, 203 F.3d 283, 286 (4th Cir. 2000) (citation omitted).

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v. Neal, 78 F.3d 901, 904 (4th Cir. 1996) (citing the invited-error doctrine to find no error 

where the objecting attorney elicited most of the statements he later challenged on appeal). 

VI.

Finally, Remy argues that the district court erroneously declined to instruct the jury 

on waiver, laches, and estoppel as defenses to Fisher’s breach of contract claim relating to 

Remy’s failure to keep Fisher competitive.

17

The Court reviews “the decision to give or not give a jury instruction . . . for abuse 

of discretion.” Snoeyenbos v. Curtis, 60 F.4th 723, 729 (4th Cir. 2023). “A district court 

will be reversed for declining to give an instruction proposed by a party only when the 

requested instruction ‘(1) was correct; (2) was not substantially covered by the court’s 

charge to the jury; and (3) dealt with some point in the trial so important, that failure to 

give the requested instruction seriously impaired’ that party’s ability to make its case.” 

Noel v. Artson, 641 F.3d 580, 586 (4th Cir. 2011) (citation omitted).

Remy asserts that the district court should have instructed the jury on waiver, laches, 

and estoppel as defenses to Fisher’s breach of contract claim because Fisher invoked 

contract penalties, submitted new orders, and continued to accumulate lost profit damages 

after Remy allegedly breached the parties’ contract. However, prior to trial the district court 

determined that Remy was liable for the breach of contract claim and explicitly rejected 

Remy’s waiver argument. All that was left for trial was a determination of damages. Remy 

17 The district court’s decision not to give Remy’s requested jury instructions is not 

in the record. 

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provides no support for its contention that the equitable defenses of waiver, laches, and 

estoppel can be used as defenses to damages as opposed to liability. Therefore, Remy failed 

to meet its “heavy burden” showing that the district court abused its discretion by failing 

to so instruct the jury. Id.

VII. 

Because we find no error in its decisions, the district court’s judgment is 

AFFIRMED.

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