BRC Rubber & Plastics, Incorpo v. Continental Carbon Company ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1011
BRC RUBBER & PLASTICS, INC.,
Plaintiff-Appellee,
v.
CONTINENTAL CARBON COMPANY,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:11-cv-00190-SLC — Susan L. Collins, Magistrate Judge.
____________________
ARGUED OCTOBER 2, 2020 — DECIDED NOVEMBER 25, 2020
____________________
Before RIPPLE, KANNE, AND HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. This appeal presents two classic
contract issues under Article 2 of the Uniform Commercial
Code: (1) whether a seller of goods repudiated a supply con-
tract by failing to give adequate assurance of its performance
under § 2-609, and (2) whether the buyer acted reasonably in
“covering” to replace the breaching seller’s goods under § 2-
712. The product was carbon black, used to manufacture rub-
ber products. After a bench trial, the district court ordered
2 No. 20-1011
seller Continental Carbon Company to pay damages to buyer
BRC Rubber & Plastics, Inc. The court resolved sharply dis-
puted factual issues, finding that Continental had repudiated
the parties’ supply contract and that BRC acted reasonably in
buying carbon black from different suppliers for the remain-
ing years of the contract. The court also awarded prejudgment
interest to BRC for the cost of the “cover,” i.e., replacing the
lost supply at higher prices. BRC Rubber & Plastics, Inc. v. Con-
tinental Carbon Co., 2019 WL 3985900 (N.D. Ind. Aug. 22, 2019).
In this third, and we hope final, appeal in this case, we af-
firm. The district court’s factual findings are not clearly erro-
neous. The court properly applied U.C.C. § 2-609 to find that
the seller gave the buyer reasonable grounds for doubting
that it would perform and that the seller then repudiated by
failing to provide adequate assurance that it would continue
to perform. The court then properly applied U.C.C. § 2-712 to
find that the buyer’s cover was commercially reasonable. Fi-
nally, the court did not err in awarding prejudgment interest.
I. Standards for Appellate Review
We review the trial court’s conclusions of law de novo, but
we review its findings of fact and applications of law to find-
ings of fact only for clear error. See Metavante Corp. v. Emigrant
Savings Bank, 619 F.3d 748, 758–59 (7th Cir. 2010). “A finding
of fact is clearly erroneous only when the reviewing court is
left with the definite and firm conviction that a mistake has
been committed.” Gaffney v. Riverboat Services of Indiana, Inc.,
451 F.3d 424, 447 (7th Cir. 2006), quoting Carnes Co. v. Stone
Creek Mechanical, Inc., 412 F.3d 845, 847 (7th Cir. 2005). The
appellate court “must affirm if the district court’s account of
the evidence is plausible” when viewed in light of the entire
No. 20-1011 3
record. Advertising Specialty Inst. v. Hall-Erickson, Inc., 601 F.3d
683, 688 (7th Cir. 2010).
Appellate courts owe deference to a trial court’s determi-
nation of the credibility of witnesses. Anderson v. City of Besse-
mer, 470 U.S. 564, 575 (1985) (“[W]hen a trial judge’s finding
is based on his decision to credit the testimony of one of two
or more witnesses…that finding, if not internally inconsistent,
can virtually never be clear error.”). Continental urges us to
give less deference to factual findings here because of the ex-
tent of documentary evidence in this case. In Anderson, how-
ever, the Supreme Court rejected just this argument. Id. (“This
is so even when the district court’s findings do not rest on
credibility determinations, but are based instead on physical
or documentary evidence or inferences from other facts.”).
II. Repudiation of a Sales Contract under U.C.C. § 2-609
A. Section 2-609
BRC’s claims arise under Indiana law, and the district
court had jurisdiction under 28 U.S.C. § 1332. Indiana has
adopted the Uniform Commercial Code. Section 2-609 on ad-
equate assurance appears in Indiana Code § 26-1-2-609. 1
1 Indiana Code § 26-1-2-609 provides in full:
(1) A contract for sale imposes an obligation on each
party that the other’s expectation of receiving due per-
formance will not be impaired. When reasonable
grounds for insecurity arise with respect to the perfor-
mance of either party the other may in writing demand
adequate assurance of due performance and until he re-
ceives such assurance may if commercially reasonable
suspend any performance for which he has not already
received the agreed return.
4 No. 20-1011
Under § 2-609, a party who has reasonable grounds for in-
security about the other’s performance may request “ade-
quate assurance” that the other will perform. The worried
party may treat the other’s failure to provide timely and ade-
quate assurance as a repudiation of the contract. Whether the
grounds for insecurity are reasonable and whether assurances
are reasonable are matters of fact to be determined under all
the circumstances. See AMF, Inc. v. McDonald’s Corp., 536 F.2d
1167, 1170 (7th Cir. 1976); U.C.C. § 2-609, cmt. 3; 4 Anderson
U.C.C. § 2-609:16 (3d ed. 2019).
Critical to the district court’s and our resolution of this
case, § 2-609(2) provides: “Between merchants the reasonable-
ness of grounds for insecurity and the adequacy of any assur-
ance offered shall be determined according to commercial
standards.” See also Wildwood Industries, Inc. v. Genuine Ma-
chine Design, Inc., 587 F. Supp. 2d 1035, 1047 (N.D. Ind. 2008)
(Indiana law does not “suggest what form adequate assur-
ance should take other than that the form be commercially
(2) Between merchants the reasonableness of
grounds for insecurity and the adequacy of any assur-
ance offered shall be determined according to commer-
cial standards.
(3) Acceptance of any improper delivery or pay-
ment does not prejudice the aggrieved party’s right to
demand adequate assurance of future performance.
(4) After receipt of a justified demand failure to pro-
vide within a reasonable time not exceeding thirty days
such assurance of due performance as is adequate un-
der the circumstances of the particular case is a repudi-
ation of the contract.
No. 20-1011 5
reasonable.”). The failure to give adequate assurance may be
treated as a repudiation. U.C.C. § 2-609(4).
Section 2-609 addresses the problem that arises when one
party to a contract has reasonable concerns about another
party’s ability or intent to fulfill its promises before perfor-
mance is actually due. As comment 1 explains: “The section
rests on the recognition of the fact that the essential purpose
of a contract between commercial men [sic] is actual perfor-
mance and they do not bargain merely for a promise, or for a
promise plus the right to win a lawsuit and that a continuing
sense of reliance and security that the promised performance
will be forthcoming when due, is an important feature of the
bargain.” U.C.C. § 2-609, cmt. 1.
Section 2-609 was a significant and pragmatic innovation
in the U.C.C. Professor Karl Llewellyn and other legal realists
were pushing against more formalist legal rules for anticipa-
tory repudiation that acknowledged a breach only after it had
actually occurred, even if the breach had appeared inevitable
or probable long before the date performance was due. See,
e.g., Lowe v. Harwood, 29 N.E. 538, 539 (Mass. 1885) (Holmes,
J.) (despite doubts about plaintiff’s ability to pay money owed
under contract, the “degree of [plaintiff’s] ability at any mo-
ment before he was called on to pay was no concern of the
defendant’s”). Section 2-609 was intended to protect the “es-
sential purpose of the bargain…performance itself.” Larry T.
Garvin, Adequate Assurance of Performance: Of Risk, Duress, and
Cognition, 69 U. Colo. L. Rev. 71, 93 (1988) (discussing Llewel-
lyn’s comments urging codification of adequate assurance).2
2Professor Garvin’s article provides a detailed account of the origins
and evolution of what became § 2-609. The first Restatement of Contracts
opened the pragmatic door a crack, teaching that an expression of doubt,
6 No. 20-1011
Indeed, “the point of a forward contract is the continued sense
of reliance and security it gives the promisee. Loss of security
thus deprives the promisee of much of the benefit of its bar-
gain. … [An insecure buyer] cannot be certain that it will have
the supplied goods for its own manufacturing or inventory.”
Id. (quotations and citations omitted).
The district court’s factual findings trace here the kind of
story for which § 2-609 was designed: a seller of goods tried
to take advantage of a tight market to force a price increase on
the buyer despite their long-term contract. When the buyer
resisted the price increase, the seller threatened to stop sup-
plying the buyer at all. The buyer then asked for “adequate
assurance” under § 2-609, did not receive it, and so chose to
treat the contract as repudiated.
B. The Parties and Their Contract
Plaintiff BRC Rubber & Plastics, Inc. designs and manufac-
tures rubber and plastic products, primarily for the automo-
tive industry. Defendant Continental Carbon Company man-
ufactures carbon black, an ingredient in many rubber prod-
ucts.
“ordinarily inadequate to repudiate, would constitute breach if the prom-
isee, relying on the doubt, arranged for cover.” 69 U. Colo. L. Rev. at 88,
citing Restatement of Contracts § 323, cmt. B, Illus. 1 (1932). In the 1941
draft of the Revised Uniform Sales Act, Llewellyn included a section gov-
erning instalment contracts that “allowed the aggrieved party to demand
assurance that the other party’s material default would no longer occur”
and, if assurance was not “prompt,” permitted the aggrieved party to
“cancel the balance of the contract and seek its remedy for breach of the
whole.” Id. at 90. Eventually, the cross-reference instalment contracts was
removed, and an early version of § 2-609 was born.
No. 20-1011 7
Before 2010, BRC bought all the carbon black it needed
from Continental but without having a long-term supply con-
tract. In 2009, BRC solicited bids from several suppliers of car-
bon black, seeking a long-term contract to ensure continuity
of supply. Carbon black is a critical component in BRC’s prod-
ucts. Because each supplier’s products perform a little differ-
ently, BRC sought a single supplier of carbon black to help
make its products’ qualities as consistent as possible.
In late 2009, BRC and Continental signed a five-year con-
tract to run from January 1, 2010 to December 31, 2014. Con-
tinental agreed to supply BRC with “approximately 1.8 mil-
lion pounds of prime furnace black annually” taken in “ap-
proximately equal monthly quantities.” The price of carbon
black consists of a baseline price and so-called “feedstock” ad-
justments for the fluctuating prices of oil and natural gas.
The contract listed baseline prices for three types of carbon
black, grades N339, N550, and N762, which were “to remain
firm throughout the term of this agreement.” The contract
also included instructions for calculating the feedstock adjust-
ments each month. The parties’ dispute here focuses on the
baseline prices in their contract.
In 2010, the first year under the contract, BRC bought 2.6
million pounds of carbon black from Continental. In the first
four months of 2011, BRC bought about 1.3 million pounds,
putting it on pace to buy about 3.9 million pounds that year.
C. BRC’s Grounds for Insecurity
In April 2011, supplies of carbon black were tight. Conti-
nental tried to use market shortages to impose an increase in
the baseline prices for to BRC. Continental agrees for pur-
poses of appeal that its actions gave BRC reasonable grounds
8 No. 20-1011
for insecurity under § 2-609. The dispute is whether Continen-
tal provided adequate assurance in response to BRC’s de-
mand. We summarize the district court’s detailed findings of
fact about how the problem arose, which is relevant to the ad-
equacy of the assurance that Continental later provided.
Thomas Moccia was at the center of the effort. He was
Continental’s vice president of marketing and development.
He instructed Thomas Nunley, its sales representative on the
BRC account, to raise prices for BRC. Nunley protested the
change. He thought it violated the contract with BRC. Moccia
told him to proceed anyway because BRC could not obtain
carbon black elsewhere.
On those instructions, on April 14, 2011, Nunley emailed
Michael Cornwell, vice president of materials at BRC, to an-
nounce a unilateral price increase of two cents per pound ef-
fective June 1. Cornwell replied the next day that the price in-
crease would violate the parties’ five-year contract. Continen-
tal refused to rescind the price increase, and Moccia in-
structed Nunley to withhold shipping from BRC unless it
agreed to the increase. 3
3 Continental argues that the district court clearly erred in this finding.
Nunley testified on direct that Moccia instructed him to withhold ship-
ping to BRC unless it agreed to the price increase: “Q: And did he tell you
why you couldn’t ship carbon black to BRC? A. Because they weren’t go-
ing to accept our 2-cent-a-pound increase.” Tr. 196–97. On cross-examina-
tion, Nunley was impeached with his deposition testimony: “Q: Do you
recall any discussions after that April 26 purchase order about whether or
not Continental would supply BRC? A: To my knowledge, I did not have
any discussions about whether they were going to supply or not.” Tr. 224.
Neither counsel asked Nunley to explain the apparent contradiction. The
deposition of another former Continental sales representative corrobo-
rated Nunley’s direct testimony. The other representative testified that
No. 20-1011 9
Between April 15 and 27, 2011, BRC placed new orders
with Continental relying on the contract’s prices. It did not
receive any communications from Continental regarding the
price increase. On April 27, Cornwell repeated BRC’s objec-
tion and said that BRC expected Continental to abide by the
contract prices. Again, Continental did not respond. Moccia
had instructed Nunley not to respond to BRC’s April 27 letter.
On April 29, Nunley called BRC’s Cornwell and said that his
superiors had told him he was no longer allowed to communi-
cate with BRC. BRC leadership was worried because if Conti-
nental refused to ship to BRC, it would disrupt BRC’s ability
to fulfill its customer’s demands, which would have been
“devastating” for BRC’s business.
On May 9, 2011, Continental fired Nunley, and Nunley
told Cornwell the next day. Cornwell then emailed Moccia di-
rectly to say again that BRC expected Continental to abide by
the terms of the contract. He asked for a written response to
his April 27 letter by May 20. Moccia had Continental’s sales
manager David Word call Cornwell on May 10. Word knew
little about BRC and offered meager satisfaction, saying that
pricing was out of his control.
On May 11, 2011, Continental missed a shipment to BRC
under an April 12 purchase order. And on May 13, Word
again told BRC that Continental could not guarantee to ship
product under the April 26 purchase order and that it was
Moccia instructed sales representatives not to place an order if the cus-
tomer would not accept the price increase. Dkt. 247, JE384–86. It is not un-
usual for a witness to give conflicting accounts within the scope of his tes-
timony and for judges and juries to decide which version to credit. The
district court found that Moccia did instruct Nunley not to ship to BRC
unless it agreed to the price increase. The finding is not clearly erroneous.
10 No. 20-1011
“out of his control.” Word also would not confirm any future
shipment dates or tell BRC when to expect a response from
Continental to confirm that it intended to perform under the
contract. In a May 13 email, BRC’s Cornwell told Word that
this was “totally unacceptable,” that the delay in shipping
jeopardized BRC’s ability to satisfy its customers, and that
“BRC will not allow this to occur.”
On May 13, to avoid running out of N762 carbon black,
BRC began looking for alternate suppliers. One was able to
promise grade N762 carbon black for a shipment in 30 days at
a spot rate higher than the price in the BRC-Continental con-
tract.
D. BRC’s Request for Assurance and the Conflicting Responses
On May 16, 2011, BRC formally invoked § 2-609. BRC’s
outside lawyer emailed a letter to Continental’s Moccia asking
for adequate assurance that Continental would continue to
supply carbon black under the existing contract. The letter
asked Continental to respond by May 18 and identified two
main issues with Continental’s performance: (1) Continental
had not shipped carbon black grade N762 under the April 26
purchase order; and (2) Continental’s request for a price in-
crease was unacceptable. Continental concedes for purposes
of appeal that this series of events gave BRC grounds for rea-
sonable insecurity within the meaning of § 2-609 so that BRC
was entitled to demand prompt and adequate assurance from
Continental. The contested issue is whether Continental actu-
ally provided adequate assurance.
The district court traced in detail Continental’s contradic-
tory responses over the next two weeks. BRC Rubber & Plas-
tics, 2019 WL 3985900, at *1−7. After looking at the course of
No. 20-1011 11
communications, the district court found that Continental
had failed to provide adequate assurance. Just one communi-
cation, on May 20, from Continental’s outside lawyer to
BRC’s lawyer, purported to provide adequate assurance. But
that assurance was contradicted and undermined by Conti-
nental’s other actions and statements during the two weeks
following BRC’s request for assurance. Continental hedged
on whether it would actually fill BRC’s orders (as opposed to
“trying” to do so). Most significant, Continental continued to
demand that BRC accept the price increase that Continental’s
lawyer had supposedly forsworn.
On May 20, 2011, Continental’s lawyer responded to
BRC’s § 2-609 demand and confirmed that Continental would
comply with the contract. If that communication could be con-
sidered in isolation, we assume it might have been sufficient
as “adequate assurance.” But on that same day, Continental’s
Linda Nelson wrote to BRC that Continental could fulfill the
April 26 purchase order with modified shipping dates, but
with the disputed price increase. When BRC objected again to the
price increase, Continental’s Moccia replied that BRC should
look for another supplier. And still later that day, when BRC
asked Moccia to confirm what Continental’s lawyer had said,
Moccia hedged. The hedging continued for another week,
from Moccia and others at Continental. The last straw came
on May 28 when Continental sent BRC its June prices. The list
included the disputed price increase.
After a party has made a proper demand for adequate as-
surance, § 2-609(4) requires “assurance of due performance as
is adequate under the circumstances of the particular case.”
The text of § 2-609 leaves the trier of fact considerable leeway
in deciding whether assurances of performance are adequate.
12 No. 20-1011
Comment 4 to § 2-609 instructs: “What constitutes ‘adequate’
assurance of due performance is subject to the same test of
factual conditions,” telling the trier of fact to consider com-
mercial practicalities in light of all the circumstances. For ex-
ample, a promise by a seller in good repute that a defect in
delivery will not be repeated is “normally sufficient,” but the
same promise made by a “known corner-cutter might well be
considered insufficient….” Id. And “repeated delinquencies
must be viewed as cumulative.” Id. A failure to provide ade-
quate assurance under the circumstances “is a repudiation of
the contract.” U.C.C. § 2-609(4).
Applying the standard of commercial reasonableness to
all the circumstances of the case, the district court reasonably
found that Continental’s assurance was inadequate. Conti-
nental did not follow its lawyer’s assurance with consistent
expressions of its readiness to perform under the contract. It
did the opposite. Its repeated equivocations and contradic-
tions undermined the lawyer’s assurance. In particular, Con-
tinental’s repeated use of its unauthorized baseline price in-
crease—after its lawyer supposedly assured BRC it would
abide by the contract—was a “clear indication” that it did not
intend to continue performing under the existing contract.
The situation is similar to a case where the seller repudiated
the contract by failing to provide adequate assurance and in-
stead asking the buyer to review a new, more onerous sales
agreement. Gatt Trading, Inc. v. Sears, Roebuck and Co., 2004 WL
2511894, at *14 (N.D. Tex. Nov. 8, 2004); see also Kaiser-Francis
Oil Co. v. Producer’s Gas Co., 870 F.2d 563, 568–69 (10th Cir.
1989) (buyer failed to provide adequate assurance where
buyer tried to force price cut); Louisiana Power & Light Co. v.
Allegheny Ludlum Indus., Inc., 517 F. Supp. 1319, 1322−23 (E.D.
No. 20-1011 13
La. 1981) (seller’s “qualified offer” to “perform…for added
compensation” was not adequate assurance under § 2-609).
Continental’s failure to provide adequate assurance meant
that BRC was entitled to treat Continental as having repudi-
ated the contract. AMF, Inc. v. McDonald’s Corp., 536 F.2d
1167, 1171 (7th Cir. 1976), citing Pittsburgh-Des Moines Steel
Co. v. Brookhaven Manor Water Co., 532 F.2d 572, 581 (7th Cir.
1976). That’s what BRC did on June 2, 2011, notifying Conti-
nental that it was terminating the parties’ contract and had
filed this lawsuit. BRC then proceeded to “cover” by starting
to buy carbon black from another supplier at higher prices,
which it did for the rest of the contract term.
E. Continental’s Arguments Against Repudiation
To avoid the finding that it repudiated the contract, Con-
tinental offers several arguments: that its lawyer’s assurance
was adequate assurance by itself; that the price dispute was
not substantial and was only a pretext for BRC’s actions; that
the price increase would not have substantially impaired the
contract as a whole; and that BRC should have been required
to prove “clear, absolute, and unconditional” repudiation un-
der U.C.C. § 2-610. We explain next why we reject these argu-
ments.
1. Continental’s May 20 Assurance
First, Continental says that its lawyer’s assurance of
May 20 was adequate. If its contemporaneous and later com-
munications contradicted that assurance, Continental argues,
BRC should have sent a fresh statement of reasonable insecu-
rity and started the § 2-609 sequence all over again.
Continental offers no authority requiring that one selected
communication be considered in such isolation, and we see
14 No. 20-1011
no reason to do so. In evaluating both grounds for insecurity
and adequacy of assurances under § 2-609, the U.C.C. adopts
a standard of commercial reasonableness. Applying that
standard, a buyer in BRC’s position could not reasonably be
required to take the lawyer’s assurance at face value when the
client was contradicting that assurance at every turn.
Recall that § 2-609 focuses on the reality that merchants
expect one another to perform under their contracts. Here,
BRC needed carbon black to manufacture products for its cus-
tomers and stay in business. The district court’s approach is
consistent with comment 4 to § 2-609, which instructs that “re-
peated delinquencies must be viewed as cumulative.” Conti-
nental’s actions and statements after its lawyer’s assurance of
May 20 were repeated delinquencies that must be viewed as
cumulative. We see no reason to impose on the eminently
practical standards and process of § 2-609 the formalistic
dance that Continental proposes, such that if a supposedly
adequate assurance is given but then immediately under-
mined, the insecure party would need to start the § 2-609 pro-
cess all over again.
2. “Peanuts” and Substantial Impairment
Second, Continental argues that BRC was not, as the dis-
trict court found, actually the victim of an unjust price in-
crease. Continental points to evidence that BRC terminated
the contract not because of the modest price increase but be-
cause it thought, incorrectly, that its contract required Conti-
nental to supply all of BRC’s requirements for carbon black.
We rejected that reading of the contract by BRC in the first
appeal in this case. BRC Rubber & Plastics, Inc. v. Continental
Carbon Co., 804 F.3d 1229 (7th Cir. 2015). Continental cites, for
example, testimony from BRC’s CEO calling the two-cent per
No. 20-1011 15
pound price increase “peanuts.” As Continental sees the case,
BRC abandoned its original theory for repudiation (the mis-
taken belief that it had a requirements contract), and then em-
braced a pretext for repudiation (the “peanuts” price in-
crease).
Continental offers a reasonable view of the conflicting ev-
idence. The problem is that BRC’s and the district court’s view
of the evidence is also reasonable. That factual dispute is one
of the reasons we remanded for trial in the second appeal.
BRC Rubber & Plastics, Inc. v. Continental Carbon Co., 900 F.3d
529, 537−43 (7th Cir. 2018). We find nothing clearly erroneous
in the district court’s central finding that Continental repudi-
ated the terms of the parties’ contract by failing to give ade-
quate assurance in response to a reasonable demand under
§ 2-609. Even after Continental’s lawyer gave the supposed
assurance that it would honor the contract, Continental con-
tinued to insist on its price increase.
Precedents under § 2-609 teach that continuing to push for
a price increase or a contract modification after a demand for
adequate assurance amounts to a failure to provide adequate
assurance. See Kaiser-Francis Oil Co., 870 F.2d at 568−69 (af-
firming summary judgment for seller where buyer tried to
force price cut; buyer failed to provide adequate assurance
where evidence showed that it “had no intention of perform-
ing the contract unless [seller] agreed to modify the take-or-
pay provision”); Louisiana Power & Light Co., 517 F. Supp. at1322−23 (granting summary judgment for buyer; seller made
“qualified offer” to “perform…for added compensation,”
which was not adequate assurance under § 2-609); Copylease
Corp. v. Memorex Corp., 403 F. Supp. 625, 631 (S.D.N.Y. 1975)
16 No. 20-1011
(granting summary judgment on breach for buyer; manufac-
turer failed to retract its intention to modify contract unilater-
ally and thus failed to give reasonable assurance of perfor-
mance); see also 1 White, Summers, & Hillman, U.C.C. § 7:6
(6th ed. 2020) (assurance that hedges by, for example, prom-
ising performance only if the contracts “are determined to be
enforceable” is not adequate assurance under § 2-609), citing
Land O’Lakes, Inc. v. Hanig, 610 N.W.2d 518, 523−24 (Iowa
2000) (finding that seller’s assurances were unreasonable as a
matter of law).
In a similar vein, Continental argues that its “over-perfor-
mance” under the contract, delivering 1.3 million pounds in
the first four months of 2011, undermines any argument that
it failed to provide adequate assurance. Continental’s perfor-
mance in the first four months of 2011 reduced the balance of
the amount it was obliged to supply for the remainder of 2011.
Those quantities did not substitute for Continental’s failure to
provide reasonable assurance of its remaining contractual ob-
ligations. A party’s satisfaction of a past obligation prior to the
events prompting a reasonable request for adequate assur-
ance may be relevant but does not substitute for adequate as-
surance of future performance. See U.C.C. § 2-609, cmt. 2 (sec-
tion merges principles of anticipatory breach, defective part
performance, and repudiation “into a single theory of general
application to all sales agreements looking to future perfor-
mance”) (emphasis added).
3. Effect on the Whole Contract?
Continental also argues that even if its price increase
amounted to a breach, it did not substantially impair the value
of the whole contract so that BRC was not entitled to treat the
whole contract as repudiated. After a seller repudiates under
No. 20-1011 17
§ 2-609(4) by failing to give adequate assurances, § 2-711(1)
provides that the buyer may cancel and seek damages under
§ 2-712 “if the breach goes to the whole contract.” U.C.C. § 2-
711(1); Ind. Code § 26-1-2-711(1) (“Where the seller…repudi-
ates…with respect to the whole if the breach goes to the whole
contract (IC 26-1-2-612), the buyer may cancel….”); see also 4
Anderson U.C.C. § 2-609:75 (3d ed. 2019) (“The failure to pro-
vide adequate assurance when properly demanded is a
breach of the contract that entitles the aggrieved party to as-
sert any remedy authorized by the Code in case of breach.”). 4
Determining whether the “breach goes to the whole con-
tract” involves an analysis under § 2-612, and under § 2-
612(3), a breach of the whole occurs “whenever non-conform-
ity or default with respect to one or more instalments substan-
tially impairs the value of the whole contract.” Under § 2-612,
a party may demonstrate substantial impairment from one or
more nonconforming instalment(s) through “evidence that
with respect to its own needs, the value of the goods was sub-
stantially impaired by the breach.” Integrity Bio-Fuels, LLC v.
Musket Corp., 2015 WL 1417849, at *33 (S.D. Ind. Mar. 27,
2015), citing Arkla Energy Resources v. Roye Realty & Dev., Inc.,
4 Repudiation under § 2-609 can justify either cancellation under § 2-
711 or rejection by the non-breaching party. See ARB (American Research
Bureau), Inc. v. E-Systems, Inc., 663 F.2d 189, 196 (D.C. Cir. 1980) (affirming
as to adoption of special master’s report; buyer was entitled to reject non-
conforming product due to seller’s failure to provide adequate assurance
under § 2-609); Hudson Feather & Down Products, Inc. v. Lancer Clothing
Corp., 128 A.D.2d 674, 674 (N.Y. App. 1987) (affirming judgment for buyer;
seller’s failure to provide adequate assurance meant buyer was “entitled
to cancel the contract”); Turntables, Inc. v. Gestetner, 52 A.D.2d 776, 776
(N.Y. App. 1976) (affirming judgment for seller; buyer’s refusal to give any
assurances whatsoever meant seller was entitled to cancel contract).
18 No. 20-1011
9 F.3d 855, 862 (10th Cir. 1993); Midwest Mobile Diagnostic Im-
aging, LLC v. Dynamics Corp. of America, 965 F. Supp. 1003,
1012 (W.D. Mich. 1997). But some authorities indicate that re-
pudiation through failure to provide adequate assurance is by
default automatically an impairment to the “entire contract,”
permitting the buyer to cancel under § 2-711. See 4 Anderson
U.C.C. § 2-609:76 (3d ed. 2019) (“When the seller repudiates
the contract and refuses to give the buyer assurance of future
performance, the value of the entire contract to the buyer is
impaired and the buyer may cancel the contract.”); Hudson
Feather & Down Products, 128 A.D.2d at 674 (“The seller’s re-
fusal to respond to the buyer’s demands for further assur-
ances was a substantial impairment of the whole con-
tract…and the buyer was therefore entitled to cancel the con-
tract….”). See also note 4, supra.
The district court concluded here that Continental’s repu-
diation did substantially impair the value of the contract. That
was an application of law to findings of fact that we review
for clear error. Trustees of the Chicago Painters & Decorators Pen-
sion v. Royal Int’l Drywall & Decorating, Inc., 493 F.3d 782, 785
(7th Cir. 2007). Continental argues, though, that its two-cent-
per-pound price increase was too small to affect the overall
value of the contract and that the contract was an instalment
contract and could not be cancelled because of one non-con-
forming instalment. We reject both challenges.
The district court found that the price increase “would af-
fect the remaining shipments due in 2011 and every shipment
from 2012 until 2014, causing a substantial negative financial
impact to BRC.” BRC Rubber & Plastics, 2019 WL 3985900, at
*14. BRC reasonably believed both that Continental’s unilat-
eral price increase would affect all future shipments of carbon
No. 20-1011 19
black for years to come, and that Continental would withhold
future shipments if BRC did not pay the price increase. In
other words, Continental had shown BRC that it was not a
trustworthy business partner and supplier for a commodity
essential for BRC’s business. Continental’s actions qualify as
the sort of repudiation contemplated by the Anderson trea-
tise: repudiation that impairs the value of the entire contract.
See 4 Anderson U.C.C. § 2-609:76 (3d ed. 2019). Thus, whether
or not the contract was an instalment contract under § 2-612,
the district court reasonably found that Continental’s demand
for a price increase substantially impaired the value of the
contract as a whole.
Continental’s final point on the “whole contract” issue is
that BRC should not recover damages because the 1.8 million
pounds per year in the contract were not sufficient for BRC’s
needs. Continental argues from this foundation that BRC’s
need or preference for having just one supplier of carbon
black meant that BRC would have had to find a new supplier
in any event. That is not an unreasonable argument, but it pre-
sents an issue of commercial reasonableness that was decided
against Continental at trial. We find no clear error in the dis-
trict court’s finding that BRC reasonably chose to insist on 1.8
million pounds per year from Continental with the agreed
pricing and to manage for itself any complications caused by
needing to buy more carbon black from other sources. Even
though BRC required more than 1.8 million pounds a year, it
is still entitled to damages for Continental’s failure to supply
1.8 million pounds a year under the contract.
20 No. 20-1011
4. Anticipatory Repudiation Under § 2-610
Fourth, in what might be described as an attempt to turn
lemons into lemonade, Continental relies on the very ambigu-
ity of its actions and communications to argue that it did not
repudiate the contract. This argument relies not on § 2-609 but
on § 2-610, which addresses anticipatory repudiation and im-
poses a different and more demanding standard. Indiana
courts have said that anticipatory repudiation under § 2-610
must be positive, absolute, and unconditional. See, e.g., Air
Liquide America L.P. v. Independent Welding Distributor Coop.,
Inc., 2008 WL 2498138, at *16 (S.D. Ind. June 18, 2008); Jay
County Rural Elec. Membership Corp. v. Wabash Valley Power
Ass’n, 692 N.E.2d 905, 911 (Ind. App. 1998). 5
5The official comments to the U.C.C. and the Indiana enactment of
§ 2-610 seem to invite a less stringent standard for repudiation. Comment
2 reads:
It is not necessary for repudiation that performance be
made literally and utterly impossible. Repudiation can re-
sult from action which reasonably indicates a rejection of
the continuing obligation. And, a repudiation automati-
cally results under the preceding section [§ 2-609] on in-
security when a party fails to provide adequate assurance
of due future performance within thirty days after a jus-
tifiable demand therefor has been made. Under the lan-
guage of this section, a demand by one or both parties for
more than the contract calls for in the way of counter-per-
formance is not in itself a repudiation nor does it invali-
date a plain expression of desire for future performance.
However, when under a fair reading it amounts to a statement
of intention not to perform except on conditions which go be-
yond the contract, it becomes a repudiation.
No. 20-1011 21
Continental’s argument is based on a misunderstanding
about the relationship between § 2-609 and § 2-610. Because
parties often invoke the two sections together, it may be use-
ful to try to explain their differences, which courts must re-
spect.
As discussed above, § 2-609 was a deliberate innovation,
departing from prior, more general contract law, where re-
quiring clear, absolute, and unconditional repudiation had
sometimes caused practical difficulties and unjust results. See
generally Larry T. Garvin, Adequate Assurance of Performance:
Of Risk, Duress, and Cognition, 69 U. Colo. L. Rev. 71, 77–95
(1988). Section 2-609 addresses the problem of insecurity
about whether the other party to the contract is willing and
able to perform as promised. Reasonable grounds for insecu-
rity can take many forms. Id.Section 2-610 deals with a distinct problem, when a party
communicates that it does not intend to perform as promised.
Comment 1 to § 2-610 shows that the drafters of the U.C.C.
took care to distinguish between these forms of repudiation:
With the problem of insecurity taken care of by the pre-
ceding section [§ 2-609] and with provision being
made in this Article as to the effect of a defective deliv-
ery under an instalment contract, anticipatory repudi-
ation centers upon an overt communication of inten-
tion or an action which renders performance impossi-
ble or demonstrates a clear determination not to con-
tinue with performance.
Ind. Code § 26-1-2-610, cmt. 2 (emphasis added). Because we resolve this
case under § 2-609, we need not resolve the tension.
22 No. 20-1011
Accordingly, it would be a mistake to extend the § 2-610
standard, even if it demands “clear, absolute, and uncondi-
tional” repudiation, to decide whether assurances are ade-
quate under § 2-609.
Continental seems to argue that assurances given under
§ 2-609 must be deemed adequate unless the response is a
clear, absolute, and unconditional repudiation of the contract.
We disagree. That proposed rule would conflict with § 2-609
itself and its comments emphasizing the broad standard of
commercial reasonableness. “A…defendant, who does not
wish to forfeit the contract but is currently unable to perform,
is likely to send thoroughly ambiguous signals to the other
party.” 1 White, Summers, & Hillman, U.C.C. § 7:2 (6th ed.
2020); 4 Anderson U.C.C. § 2-609:69 (3d ed. 2019), citing Con-
solidated Edison Co. v. Charles F. Guyon, Inc., 98 A.D.2d 483, 484
(N.Y. App. 1984) (denying cross-motions for summary judg-
ment; after seller announced it was closing plant, seller’s state-
ment that a new supplier could supply the goods instead, as
a replacement, was not adequate assurance of performance
under contract between existing parties); 4 Anderson U.C.C.
§ 2-609:68 (3d ed.), citing American Bronze Corp. v. Streamway
Products, 456 N.E.2d 1295, 1303 (Ohio App. 1982) (reversing
dismissal of buyer’s counterclaim for seller’s wrongful repu-
diation under § 2-610; buyer gave adequate assurance under
§ 2-609 when seller demanded payment of all outstanding ac-
counts and payment of a new account within ten days, and
buyer gave a check the next day for all past due accounts and
promised to pay future accounts within ten days).
No. 20-1011 23
5. Section 2-609 and the Expectation of Performance
The law no longer treats commercial contracts as moral
obligations, the breach of which must be punished. Commer-
cial contract law encourages or at least tolerates breaches that
are economically efficient so long as the non-breaching party
is made whole (net of transaction costs). See generally Lake
River Corp. v. Carborundum Co., 769 F.2d 1284, 1289 (7th Cir.
1985); Robert L. Birmingham, Breach of Contract, Damage
Measures, and Economic Efficiency, 24 Rutgers L. Rev. 273,
284−86 (1970) (“Repudiation of obligations should be encour-
aged where the promisor is able to profit from his default after
placing his promisee in as good a position as he would have
occupied had performance been rendered”); Oliver Wendell
Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 462 (1897)
(“The duty to keep a contract at common law means a predic-
tion that you must pay damages if you do not keep it—and
nothing else.”). For a different view, however, see Charles
Fried, Contract as Promise: A Theory of Contractual Obligation 17
(2d ed. 2015) (“The moralist of duty thus posits a general ob-
ligation to keep promises, of which the obligation of contract
will only be a special case—that special case in which certain
promises have attained legal as well as moral force. But since
a contract is first of all a promise, the contract must be kept
because a promise must be kept.”).
Notwithstanding debates about efficient breaches, the
drafters of the U.C.C. pointed out in comment 1 to § 2-609 that
merchants enter into contracts because they expect perfor-
mance. The right to win a lawsuit years later may be cold com-
fort, especially where the contract concerns a commodity es-
sential to the business of the non-breaching party. “[T]he es-
sential purpose of a contract between commercial men [sic] is
24 No. 20-1011
actual performance and they do not bargain merely for a
promise, or for a promise plus the right to win a lawsuit.”
U.C.C. § 2-609, cmt. 1. Further, “a continuing sense of reliance
and security that the promised performance will be forthcom-
ing when due, is an important feature of the bargain. If either
the willingness or the ability of a party to perform declines
materially between the time of contracting and the time for
performance, the other party is threatened with the loss of a
substantial part of what he has bargained for.” Id. A lack of
trust undermines the value of the business relationship as a
whole.
BRC was not in a position to take a chance on an inter-
rupted supply. See U.C.C. § 2-609, cmt. 1. (“[A] buyer who be-
lieves that the seller’s deliveries have become uncertain can-
not safely wait for the due date of performance when he has
been buying to assure himself of materials for his current
manufacturing….”). Continental’s communications with BRC
created a lack of trust and failed to provide adequate assur-
ance. After examining the particular factual circumstances as
required under § 2-609, we find no clear error in the district
court’s conclusion that Continental failed to provide adequate
assurance and repudiated the parties’ contract.
III. Mitigation of Damages
Continental argues next that BRC’s “cover” by buying car-
bon black from another supplier at a higher price amounted
to an unreasonable failure to mitigate damages. The district
court rejected this affirmative defense, finding that Continen-
tal had failed to prove that BRC’s cover was commercially un-
reasonable. On appeal, Continental argues primarily that
later in the summer of 2011, it offered to supply BRC again at
No. 20-1011 25
lower prices than BRC was paying its new supplier. We find
no clear error in the district court’s treatment of this issue.
A. Events After BRC Terminated the Agreement
As noted, on June 2, 2011, BRC terminated the contract
with Continental and filed this lawsuit. The termination letter
also said that BRC was willing to accept delivery of the two
railcars of carbon black remaining under the April 26 pur-
chase order, but under the prices established in the contract,
if Continental confirmed that price by the close of business on
June 7. Continental did not provide this confirmation, so on
June 10, BRC rescinded its order for the two railcars of carbon
black. BRC then agreed with another supplier to buy carbon
black for the remainder of 2011 at prices higher prices than its
contract with Continental. In August 2011, BRC negotiated
with several carbon black suppliers for a long-term contract.
On August 19, 2011, despite the earlier repudiation and
the lawsuit, BRC sent Continental a proposal for terms for a
new contract. This proposal kept the baseline price of carbon
black and the feedstock adjustments at the same prices re-
quired by the original contract and included a volume com-
mitment of at least 2.7 million pounds annually. It also pro-
posed that Continental pay BRC’s new supplier a break-up
fee not to exceed $90,000, as well as $10,000 in legal fees for
Continental’s breach of contract. Continental’s national sales
manager responded by saying he wanted to meet personally
with BRC to discuss the proposal and to reestablish lost trust
between the companies.
On August 24, 2011, Continental sent BRC a counteroffer.
Continental proposed to raise the baseline price by four cents
per pound for grade N762 and by three cents per pound for
26 No. 20-1011
grade N550 and proposed that Continental supply 2.9 million
pounds of carbon black annually. BRC was disappointed by
the counteroffer, and the parties did not reach a new agree-
ment.
Instead, in October 2011, BRC reached an agreement with
a competitor of Continental, Sid Richardson Carbon & Energy
Co., for the supply of carbon black to BRC from January 1,
2012 to December 31, 2014. The baseline price for carbon black
was higher than that in BRC’s contract with Continental. BRC
calculated the difference between what it paid Sid Richardson
for the baseline price of the first 1.8 million pounds of carbon
black per year in 2012, 2013, and 2014, and the baseline price
of what it would have paid Continental for the same 1.8 mil-
lion pounds under the contract. The total difference was
$842,683.37, representing the damages BRC sought.
B. Mitigation of Damages
Under the U.C.C., in the event of repudiation, the “injured
party has the right to elect and pursue any of several reme-
dies.” Jay County Rural Elec. Membership Corp. v. Wabash Valley
Power Ass’n, 692 N.E.2d 905, 910 (Ind. App. 1998) (citations
omitted). If a party’s repudiation “substantially impair[s]” the
value of the contract as a whole, the non-breaching party may
resort to any remedy for breach under § 2-711, which includes
“cover” under § 2-712.
BRC had a duty to act reasonably to mitigate its damages,
but this was an affirmative defense that Continental had the
burden of proving. Indiana Indus., Inc. v. Wedge Products, Inc.,
430 N.E.2d 419, 428 (Ind. App. 1982) (breaching party has bur-
den of proving that non-breaching party has not used reason-
able diligence to mitigate its damages). Under § 2-712, the test
No. 20-1011 27
of proper cover is “whether at the time and place the buyer
acted in good faith and in a reasonable manner, and it is im-
material that hindsight may later prove that the method of
cover used was not the cheapest or most effective.” § 2-712,
cmt. 2.
Continental argues that BRC should have accepted its of-
fer in August 2011 because it offered a better deal than Sid
Richardson, with a larger overall volume and savings of over
$1 million a year from 2012 to 2014. The district court found
otherwise. Applying the standard of good faith and reason-
ableness, the district court found that BRC was not required
to trust its fate to Continental any longer. BRC engaged in rea-
sonable negotiations with other potential suppliers and
agreed to commercially reasonable terms. See 2019 WL
3985900, at *15. 6
We find no clear error in these findings that Continental
failed to show that BRC did not take reasonable steps to miti-
gate its damages. Nor do we find clear error in the district
court’s finding that BRC is entitled to recover as damages the
difference between the cost of the first 1.8 million pounds of
carbon black that BRC purchased from Sid Richardson in
2012, 2013, and 2014, and what BRC would have paid Conti-
nental under the contract for the same 1.8 million pounds of
carbon black in those same years, nor in the district court’s
finding that BRC is entitled to an award of its costs pursuant
to Federal Rule of Civil Procedure 54(d)(1). See U.C.C. § 2-712.
6 In the district court, Continental also argued that BRC failed to mit-
igate damages by failing to seek an injunction to require continued perfor-
mance. Continental has wisely dropped that argument on appeal, for its
breach could be remedied by a damages award.
28 No. 20-1011
IV. Prejudgment Interest
The final issue in this appeal is Continental’s challenge to
the award of prejudgment interest to BRC for the costs of its
cover from 2011 through 2014. Prejudgment interest is in-
tended to compensate a plaintiff for delay in receiving money
it should have received much earlier or should not have been
required to spend in the first place. See Frey v. Hotel Coleman,
903 F.3d 671, 682 (7th Cir. 2018) (“Courts award prejudgment
interest because ‘compensation deferred is compensation re-
duced by the time value of money,’ and only prejudgment in-
terest can make the plaintiff whole.”), quoting In re Milwaukee
Cheese Wisconsin, Inc., 112 F.3d 845, 849 (7th Cir. 1997).
“In diversity actions…, a federal court must look to state
law to determine the propriety of awarding prejudgment in-
terest….” Travelers Ins. Co. v. Transport Ins. Co., 846 F.2d 1048,
1051 (7th Cir. 1988) (applying Indiana law). Under Indiana
law, interest may be awarded where the value of the damages
is not in dispute and “the damages are ‘ascertainable in ac-
cordance with fixed rules of evidence and accepted standards
of valuation’ at the time the damages accrued.” Cincinnati Ins.
Co. v. BACT Holdings, Inc., 723 N.E.2d 436, 441 (Ind. App.
2000) (reversing denial of interest; prejudgment interest is
typically appropriate “only when a ‘simple mathematical
computation’ is required,” but some interpretation is allowed
“even where some degree of judgment must be used to meas-
ure damages”) (citations omitted); see also Harlan Sprague
Dawley, Inc. v. S.E. Lab Grp., Inc., 644 N.E.2d 615, 617 (Ind.
App. 1994) (affirming award of prejudgment interest; dam-
ages were ascertainable in accordance with fixed rules of evi-
dence and accepted standards of valuation at time they ac-
No. 20-1011 29
crued). Prejudgment interest is not permitted for personal in-
juries, wrongful death, defamation, false imprisonment, ma-
licious prosecution, assault and battery, and “all cases where
the damages are incomplete and are peculiarly within the
province of the jury to assess at the time of the trial.” Id. at 619,
quoting New York, Chicago & St. L. Ry. Co. v. Roper, 96 N.E. 468,
472 (Ind. 1911).
This standard leaves considerable play in the joints, so we
generally defer to the district court’s judgment. See Frey, 903
F.3d at 682 (“whether and how to award prejudgment interest
also lies in the discretion of the district court”); see also Dana
Cos. v. Chaffee Rentals, 1 N.E.3d 738, 751 (Ind. App. 2013) (re-
viewing award of prejudgment interest for abuse of discre-
tion).
Even where the amount of actual damages is partly in dis-
pute, courts applying Indiana law regularly award prejudg-
ment interest. See, e.g., Roper, 96 N.E. at 473 (affirming interest
award based on fair market value of house destroyed by fire);
Town of New Ross v. Ferretti, 815 N.E.2d 162, 170 (Ind. App.
2004) (reversing denial of interest where itemized list showed
relevant portion of damages award eligible for award); New
York Central R.R. Co. v. Churchill, 218 N.E.2d 372, 379 (Ind.
App. 1966) (affirming interest award where fair market value
of tractor was disputed but easily ascertainable with a degree
of certainty); see also Luksus v. United Pacific Ins. Co., 452 F.2d
207, 210-11 (7th Cir. 1971) (affirming interest award based on
sums owed for labor, services, equipment rental, and bo-
nuses); Indiana Bell Tel. Co. v. Thrifty Call, Inc., 2005 WL 552260,
at *4 (S.D. Ind. June 29, 2005) (awarding interest where fact-
finder used estimate of total minutes of stolen long-distance
calls to determine damages).
30 No. 20-1011
We do not read the cases Continental cites as undermining
the interest award here. First, Dana Companies disapproved
prejudgment interest for the total damage award where a
damage calculation was based on the reasonableness of the
method of cost allocation. But the court in the next paragraph
reversed and remanded with instructions to award prejudg-
ment interest for a portion of the award that was readily as-
certainable. 1 N.E.3d at 751 (confirming that “prejudgment in-
terest is considered proper where the trier of fact does not
have to exercise judgment in order to assess the amount of
damages”). Next, AM General LLC v. Demmer Corp., 2015 WL
1256370 (N.D. Ind. Mar. 18, 2015), also does not support re-
versal here. The court ultimately awarded prejudgment inter-
est for the portion of the damages that were ascertainable and
not in dispute. Finally, Anderson v. Sailing Concrete Corp., 411
N.E.2d 728, 735 (Ind. App. 1980), ultimately reversed an
award of prejudgment interest because the actual value of the
damages in question was in dispute. These cases help to clar-
ify the line between the types of damages that are proper and
improper for prejudgment interest, but they show that the cal-
culation of the price differences between the contract prices
and actual prices paid for cover were sufficiently determinate
to award prejudgment interest here.
In Public Service Co. of Indiana, Inc. v. Bath Iron Works Corp.,
773 F.2d 783 (7th Cir. 1985), we applied Indiana law in way
that is instructive here. The defendant argued that because the
jury had to determine whether the plaintiff’s repair costs were
reasonable, prejudgment interest should not be allowed. We
rejected that argument because the dispute was not about the
amount of actual damages but only whether those damages
were reasonable. Once that issue was resolved, the plaintiff
No. 20-1011 31
was entitled to interest on those ascertainable damages. Id. at
796−97.
In this case, BRC’s actual damages amount of $842,683.37
was not only ascertainable but undisputed. Like the damage
amounts in AM General and Dana Companies that were eligible
for prejudgment interest, and unlike the damage amount in
Anderson, the damage amount itself is not in dispute here.
Continental disputes only whether the cover itself was rea-
sonable based on its argument that BRC should have returned
to buying from Continental rather than switching to new sup-
pliers. We addressed those issues above. Those disputes do
not affect whether, once they were resolved, prejudgment in-
terest was proper or permissible. Once the cover itself is found
reasonable, a district court may use a formula, as it did here,
to calculate prejudgment interest. 7
“Prejudgment interest is computed from the time the prin-
cipal amount was demanded or due and is allowable at the
permissible statutory rate when no contractual provision
specifies the interest rate.” Cincinnati Ins. Co., 723 N.E.2d at
441 (citation omitted). Where the parties have not agreed to a
specified interest rate, Indiana law directs courts to use the
rate of 8% per year. Care Group Heart Hospital, LLC v. Sawyer,
93 N.E.3d 745, 757 (Ind. 2018), citing Ind. Code § 24-4.6-1-102.
We find no error in the district court’s calculation of prejudg-
ment interest based on the damages awarded as cover for
Continental’s repudiation, in the amount of $383,561.12 plus
7 We also agree with the district court’s statement that “even if the
Court had adopted Continental’s version of damages, which it did not,
prejudgment interest would still be appropriate in this case.” BRC Rubber
& Plastics, Inc. v. Continental Carbon Co., 2019 WL 6487323, at *4 (N.D. Ind.
Dec. 3, 2019).
32 No. 20-1011
$184.70 per diem through the date of judgment, for a total of
$400,184.12.
For these reasons, the judgment of the district court is
AFFIRMED.