Storagecraft Technology Corp. v. Kirby

FILED
United States Court of Appeals
Tenth Circuit
March 11, 2014
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
STORAGECRAFT TECHNOLOGY
CORPORATION,
Plaintiff - Appellee,
No. 12-4182
v.
JAMES KIRBY, an individual,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:08-CV-00921-DN)
Richard F. Ensor of Vantus Law Group, P.C., Salt Lake City, Utah, for
Defendant-Appellant.
Thomas R. Karrenberg (Heather M. Sneddon with him on the brief), of Anderson
& Karrenberg, P.C., Salt Lake City, Utah, for Plaintiff-Appellee.
Before TYMKOVICH, SEYMOUR, and GORSUCH, Circuit Judges.
GORSUCH, Circuit Judge.
James Kirby says the jury’s award against him is too much. True, he
helped start and served as a director of StorageCraft, a computer software
company. True, after a falling out with his colleagues he stole the computer
source code on which the company’s products depend. True, he shared the source
code with NetJapan, a rival company that quickly produced a competing software
product much like StorageCraft’s. But the jury’s $2.92 million trade secret
misappropriation award is still too much. Too much, Mr. Kirby says, because he
never used the secret for his own personal profit. And too much because
StorageCraft never sought to prove at trial that NetJapan made commercial use of
its trade secret either. Maybe he was angry about how his former colleagues had
treated him, maybe he disclosed the trade secret to a rival out of vengeance. But
without firmer proof that someone profited from his misdeed Mr. Kirby insists the
jury’s verdict should be overturned.
The trouble is Utah law doesn’t distinguish between a misappropriator’s
venial motives. When someone steals a trade secret and discloses it to a
competitor he effectively assumes for himself an unrestricted license in the trade
secret. And that bears its costs. After all, what value does a trade secret hold
when it’s no longer a secret from the trade? The misappropriator may act with a
wish to line his pockets or satisfy a vendetta or for some other purpose still. All
the same Utah’s trade secret statute holds him to account for the full value of the
license he arrogated to himself. Just as the district court held.
I
Mr. Kirby’s argument otherwise takes various but related forms. In its first
and most ambitious guise Mr. Kirby insists a trade secret plaintiff cannot seek and
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obtain a “reasonable royalty” measure of damages — as StorageCraft did in this
case — without proving the misappropriating defendant made commercial use of
the secret. He presses this same essential point in at least three different ways —
suggesting he is entitled to judgment as a matter of law because the record
contains no evidence of commercial use, claiming that a new trial is warranted for
the same reason, and arguing the district court erred by failing to give a jury
instruction requiring proof of commercial use. But however the argument is
dressed, underneath lies the same problem: Utah’s trade secret statute, the law
governing Mr. Kirby’s case, expressly allows a reasonable royalty measure of
damages when the misappropriator uses or discloses the trade secret. And no one
disputes that Mr. Kirby did at least that — disclosing the secret to NetJapan.
Utah’s Uniform Trade Secrets Act provides three possible measures of
damages for misappropriation — the defendant’s unjust enrichment, the plaintiff’s
“actual loss,” or “a reasonable royalty.” Utah Code Ann. § 13-24-4(1). This last
option is sometimes described as “the price that would be set by a willing buyer
and a willing seller” for a license in the trade secret, a measure of damages that
seeks to recreate “an actual market transaction . . . [in] which both parties gain
from the transaction.” Restatement (Third) of Unfair Competition § 45 cmt. g
(1995). At trial, the district court allowed StorageCraft to present evidence
premised on a reasonable royalty damages theory. The company argued that its
source code was its lawful trade secret; that Mr. Kirby stole it; that he disclosed it
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to a rival; that in doing so he effectively assumed for himself a license to reveal
the trade secret to StorageCraft’s competitor; that this diminished the value of its
intellectual property and the products depending on it; and that Mr. Kirby should
pay a royalty reflecting that much, whether or not he or NetJapan have to date
made commercial use of that intellectual property in products of their own.
Utah law allows a plaintiff to proceed just as StorageCraft did. Contrary to
Mr. Kirby’s supposition, nothing in the state’s trade secret statute categorically
restricts the availability of “reasonable royalty” damages to cases in which the
misappropriator used a trade secret commercially rather than disclosed it to
others. To the contrary, the statute expressly provides that “[i]n lieu of damages
measured by any other methods,” the reasonable royalty measure of damages is
available “for a misappropriator’s unauthorized disclosure or use of a trade
secret.” Utah Code Ann. § 13-24-4(1) (emphasis added). In this respect, Utah’s
statute tracks the Uniform Trade Secrets Act, which itself provides that
reasonable royalty damages are a “general option” for cases involving disclosure
as well as use. See Unif. Trade Secrets Act § 3 & cmt. (amended 1985); cf. Hertz
v. Luzenac Grp., 576 F.3d 1103, 1115 (10th Cir. 2009) (noting that under
Colorado’s materially identical trade secret statute reasonable royalty damages
are allowed for a misappropriator’s disclosure or use of a trade secret); Sonoco
Prods. Co. v. Johnson, 23 P.3d 1287, 1290 (Colo. App. 2001) (same).
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Neither does Utah’s policy choice on this score come without its reasons.
In the first place, the line between use and disclosure is hardly as crisp as Mr.
Kirby suggests. Can’t disclosing a trade secret for a particular end or purpose (be
it retribution or profit or otherwise) be a way of putting it to use, at least in a
broad sense of the word? What happens when the disclosure is made to a third
party (like NetJapan) with the intent the third party itself put the trade secret to
commercial use in ways harmful to the secret’s owner? Isn’t at least that
disclosure a use of the secret, whether or not the third party takes up the
invitation?
Beyond these definitional difficulties, where (as here) a defendant discloses
a trade secret to a rival company in a fit of retaliatory pique without any desire
for personal riches, the other two measures of damages may not always be
entirely fit for the task. An award based on unjust enrichment risks
undercompensating the plaintiff when the defendant has no gains of his own to
disgorge. See Restatement (Third) of Unfair Competition § 45 cmt. g
(commending use of reasonable royalty measure of damages “when the plaintiff’s
loss . . . is . . . greater than any gain acquired by the defendant”). Though what
the Utah statute calls the “actual loss” measure of damages doesn’t suffer from
this particular problem, it may invite practical difficulties of its own. In cases
like ours the best evidence about the extent of the plaintiff’s lost sales isn’t
readily available from the defendant before the court but resides instead in the
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hands of far-flung third parties like NetJapan. Proving a causal connection
between the plaintiff’s claimed lost profits and the defendant’s conduct might be
difficult, too, in these circumstances. Complexities like these may be
surmountable, but the cost of doing so may be enough to explain why a state
would wish to make reasonable royalty awards generally available to
misappropriation plaintiffs. After all, it is hardly unknown for the law to resolve
ambiguities about the appropriate quantity of damages against the proven
wrongdoer rather than his victim. See, e.g., Russo v. Ballard Med. Prods., 550
F.3d 1004, 1021 (10th Cir. 2008).
In recognizing this much we don’t mean to suggest that the reasonable
royalty measure of damages is always the most sensible remedy. Or that every
state must be as solicitous to it as Utah. Rather than follow the Uniform Trade
Secrets Act and deem the reasonable royalty remedy a “general option” for
disclosure cases, some states allow the remedy only when the plaintiff is unable
to prove the amount of its actual losses or the misappropriator’s unjust gains. See
Cacique, Inc. v. Robert Reiser & Co., 169 F.3d 619, 623 (9th Cir. 1999). We can
imagine arguments that might lead reasonable lawmakers in that direction as well,
including worries that hypothetical royalty negotiation exercises themselves might
be difficult to administer in certain circumstances or might yield damages in
excess of the plaintiff’s actual losses. Cf. Rite-Hite Corp. v. Kelley Co., 56 F.3d
1538, 1554 n.13 (Fed. Cir. 1995) (en banc) (finding in a patent case that the
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“willing licensor/willing licensee” description is “an inaccurate, and even absurd,
characterization when . . . the patentee does not wish to grant a license”); Mark A.
Lemley, Distinguishing Lost Profits from Reasonable Royalties, 51 Wm. & Mary
L. Rev. 655, 667 (2009) (worrying that “some patentees who can prove lost
profits elect instead to seek a ‘reasonable’ royalty that is far in excess both of
what the parties would have negotiated and of the actual losses the patentee
suffered”).
In the end, though, arguments like these are more appropriately directed to
those charged with writing Utah’s trade secret statute than those charged with
applying it. To decide this case it’s enough for this court to recognize and respect
Utah’s policy choice to permit “reasonable royalty” awards as a “general option”
in “disclosure” cases. We are in no position to override that legislative choice
simply because we might prefer another. Neither does Mr. Kirby suggest Utah’s
legislative choice offends any higher principle of law that we do have the power
to enforce. He does not, for example, suggest that the use of the reasonable
royalty measure of damages in his case or more generally is so speculative that it
offends the Federal Constitution’s due process guarantee.
Instead, Mr. Kirby replies a good deal more modestly by directing our
attention to University Computing Co. v. Lykes-Youngstown Corp. and citing it for
the proposition that at common law a misappropriation defendant generally had to
“put the trade secret to some commercial use” before a reasonable royalty award
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was allowed. 504 F.2d 518, 539 (5th Cir. 1974). The problem is, University
Computing offered its view of the common law’s requirements well before Utah
passed the statute we are called upon to apply and well before the adoption of the
Uniform Trade Secrets Act on which the Utah statute is modeled. What’s more,
University Computing proceeded to hold that the defendant there engaged in “a
clear commercial use” of the trade secret merely by displaying it to a third party
who could use the secret to the owner’s disadvantage. See id. at 542; see also
Metallurgical Indus. Inc. v. Fourtek, Inc., 790 F.2d 1195, 1205 (5th Cir. 1986)
(noting the breadth of University Computing’s definition of commercial use). As
we’ve seen, the same description could easily be applied to our case — so even
taking University Computing and its description of the common law at full value
does nothing to help Mr. Kirby’s cause.
Beyond even these problems lurks still another. To the extent University
Computing or similar cases cited by Mr. Kirby happen to emphasize commercial
use apart from disclosure, it’s noteworthy that they tend to borrow generously
from patent law’s approach to reasonable royalty damages. See, e.g., Univ.
Computing, 504 F.2d at 535, 536-37; Olson v. Nieman’s, Ltd., 579 N.W.2d 299,
310 (Iowa 1998). Under the terms of the federal patent statute (unlike those of
the Uniform Trade Secrets Act), a reasonable royalty award does depend on “the
use made of the invention by the infringer.” 35 U.S.C. § 284. But the difference
between the Patent Act and Uniform Trade Secrets Act on this score is hardly
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surprising given basic differences between patents and trade secrets. Sharing
information about another’s patented invention is generally not the injury
disclosing a trade secret is. After all, patentees aren’t allowed to keep their
innovations entirely to themselves; telling us how to practice their invention is the
price they must pay for their patent. Universal Oil Prods. Co. v. Globe Oil & Ref.
Co., 322 U.S. 471, 484 (1944); see also 35 U.S.C. § 112(a). Because the crucial
information about patented inventions is already a matter of public record, patent
cases on reasonable royalties have had no cause to address unauthorized
disclosure. Their focus has been and must be on authorized uses. To be sure,
patent cases still provide useful instruction for courts considering damages for
trade secret misappropriation, as we have noted before. See, e.g., Telex Corp. v.
Int’l Bus. Machs. Corp., 510 F.2d 894, 930 (10th Cir. 1975). But in light of the
differences between the patent and trade secret statutes — and between patents
and trade secrets themselves — patent law’s treatment of reasonable royalties
can’t be read to suggest that a reasonable royalty award in trade secret cases must
always and as a matter of logical necessity require commercial use. 1
1
Mr. Kirby relies on various Utah cases which say a precondition for trade
secret misappropriation liability is the “use of the secret that injures” its owner.
See, e.g., USA Power, LLC v. PacifiCorp, 235 P.3d 749, 758 (Utah 2010); Water
& Energy Sys. Tech., Inc. v. Keil, 974 P.2d 821, 822 (Utah 1999). But these
decisions also rely on a standard that predates the enactment of Utah’s Uniform
Trade Secrets Act. Microbiological Research Corp. v. Muna, 625 P.2d 690, 697-
98 (Utah 1981). Because we are told elsewhere to make the Utah Uniform Trade
Secrets Act’s “plain language” our first source of guidance, Water & Energy Sys.
(continued...)
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II
Even if reasonable royalty damages are permissible in principle for
disclosure cases like his, Mr. Kirby insists the damages assigned by the jury in his
case are still too much. If the animating idea behind the reasonable royalty
exercise is to fix a price the parties would have agreed upon for a license, Mr.
Kirby insists a court must ask, a license for what purpose? And because the trial
record shows he did nothing much with the trade secret he stole, Mr. Kirby insists
that the jury’s $2.92 million award represents anything but a reasonable royalty.
For this reason and yet again he insists he is entitled to judgment as a matter of
law or a new trial.
Our earlier disagreement with Mr. Kirby was about the law. This time it is
about the facts. As we’ve seen, a reasonable royalty award seeks to estimate the
fee the defendant would have had to pay, after negotiation, to secure a lawful
license for the trade secret he unlawfully assumed for himself. And in any
licensing negotiation it’s surely true that many considerations can come into play
when setting a price, considerations ranging from the duration and scope of the
1
(...continued)
Tech., Inc. v. Keil, 48 P.3d 888, 894 (Utah 2002), and because that statute clearly
finds misappropriation in improper “disclosure or use of a trade secret,” Utah
Code Ann. § 13-24-2(2)(b) (emphasis added), we’re confident that “use” in these
cases should be understood at least today in the broad sense we’ve identified.
Neither does Mr. Kirby contest his liability for misappropriation (only the scope
of the damages he must pay) and formally at least liability is the only subject of
these cases.
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license to market prices paid for similar licenses. One court has claimed to
identify no fewer than fifteen factors that may enter into the mix when attempting
to fix a reasonable royalty award. Another has generated a different but in some
ways overlapping list. Compare Ga.-Pac. Corp. v. U.S. Plywood Corp., 318 F.
Supp. 1116, 1120 (S.D.N.Y. 1970), modified in part sub nom. Ga.-Pac. Corp. v.
U.S. Plywood-Champion Papers, Inc., 446 F.2d 295 (2d Cir. 1971), with Univ.
Computing, 504 F.2d at 539. Because some of these factors aren’t relevant to
every case, those tasked with estimating a reasonable royalty bear the
considerable burden of identifying the ones that are most pertinent in the
particular circumstances at hand before attempting to assign each an appropriate
weight. In this way, reasonable royalty calculations demand no small measure of
judgment — perhaps like damages calculations in nearly every complex business
dispute where courts are called on to imagine a “but for” world that should have
been but isn’t.
Having said all that, we don’t doubt the breadth of a trade secret license
can have a significant effect on price, just as Mr. Kirby suggests. No one doubts
that a trade secret holder and licensee might agree to one price for a highly
restrictive license and an entirely different price for an unrestricted license in the
very same secret. For this reason, it is surely important when setting a reasonable
royalty award to account for the scope of the license the defendant assumed for
himself, to aim at a price that reflects the particular “use of the trade secret made
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by the defendant.” Restatement (Third) of Unfair Competition § 45 cmt. g; see
also Ga.-Pac. Corp., 318 F. Supp. at 1120; Univ. Computing, 504 F.2d at 539. At
least in this very broad sense of the word, then, the nature of the defendant’s
“use” of the trade secret matters a great deal in the reasonable royalty analysis.
While a defendant in Utah can’t avoid reasonable royalty damages because he
disclosed the trade secret to others without anyone making commercial use of it,
the amount of reasonable royalty damages he must pay undoubtedly depends on
what he did with the secret — what uses he made of it.
Even acknowledging all this, however, still does nothing to help Mr. Kirby.
And here his problem lies in the record. He would have us equate him with a
hypothetical misappropriator who stole a trade secret and then disclosed it only to
his long since retired, seriously aged, and tight-lipped great-grandfather, someone
who didn’t and couldn’t make use of the secret and who therefore couldn’t do
serious damage to the trade secret or its rightful holder. Were these the facts of
our case, we might agree with Mr. Kirby that the jury’s $2.92 million award was
unreasonable as a matter of law. But those aren’t the facts of this case. Instead,
the evidence at trial showed that Mr. Kirby took StorageCraft’s trade secret and
intentionally disclosed it to NetJapan, aware that NetJapan was an able
competitor, and aware that NetJapan could well use the secret to compete with
StorageCraft. Mr. Kirby may have acted for no personal gain save the
satisfaction of revenge. StorageCraft may not have sought to prove to the jury
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that NetJapan’s coincidentally timed product actually depended on its trade
secret. But the facts all the same permitted the jury to issue an award premised
on an understanding that the license Mr. Kirby assumed allowed him the right to
share the trade secret with a rival and permit (if not compel) its commercial
exploitation by that rival, leaving the remaining financial value of the (former)
secret seriously compromised. That set of facts — that particular kind of use —
is precisely the basis on which StorageCraft’s expert reached his damages
estimate and the jury reached its award. Mr. Kirby does not suggest before us
that an award of $2.92 million is unreasonable as a matter of law when premised
on facts like these, nor does he dispute that the value of a trade secret is seriously
diminished when it is no longer a secret from a trading rival. And we are hardly
permitted to accept his invitation to substitute his alternative and self-serving
version of the facts for those the jury reasonably found at trial. See, e.g., Escue v.
N. Okla. Coll., 450 F.3d 1146, 1156-57 (10th Cir. 2006).
III
That takes us finally to Mr. Kirby’s challenge to StorageCraft’s expert.
Before admitting expert testimony at trial, a district court must assure that it is
both reliable and relevant. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,
589 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999).
When a party objects to proposed expert testimony, the court “must adequately
demonstrate by specific findings on the record” that it has taken these gate-
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keeping responsibilities seriously. Goebel v. Denver & Rio Grande W. R.R. Co.,
215 F.3d 1083, 1088 (10th Cir. 2000). This, Mr. Kirby says, the district court
failed to do.
We have yet to identify some unifying theory or principle for discerning the
precise point at which a district court’s gate-keeping findings prove sufficient.
But several lessons emerge from a review of our existing decisions.
First, it is not sufficient for a district court simply to say on the record that
it has decided to admit the expert testimony after due consideration. Instead, the
district court must furnish enough of a record to permit a reviewing court to say
with confidence that it “properly applied the relevant law.” United States v.
Avitia-Guillen, 680 F.3d 1253, 1259 (10th Cir. 2012); see also United States v.
Roach, 582 F.3d 1192, 1207 (10th Cir. 2009).
Second, the district court must reply in some meaningful way to the
Daubert concerns the objector has raised. So, for example, if the reliability of an
expert’s methodology is at issue, it’s not good enough for the district court to
stress the expert’s qualifications. See, e.g., Dodge v. Cotter Corp., 328 F.3d
1212, 1227 (10th Cir. 2003); Goebel, 215 F.3d at 1088. At the same time, a
district court doesn’t have to discuss in every case all of the reliability factors that
the Supreme Court identified in Daubert and Kuhmo. A district court’s gate-
keeping function is more flexible than that, requiring the court to focus its
attention on the specific factors implicated by the circumstances at hand. See
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Kuhmo, 526 U.S. at 141-42; Goebel, 215 F.3d at 1088. And, other things equal,
more complicated challenges demand lengthier discussions while less complicated
challenges require less discussion. See, e.g., Avitia-Guillen, 680 F.3d at 1259
(distinguishing between “a challenge to an expert’s methodology in a complicated
area of medical science” and a challenge to a fingerprint “expert’s qualifications
to testify to a commonly used method of identification”); Dodge, 328 F.3d at
1228 (stressing “the novelty of the [experts’] medical causation theory”); cf.
Charles Alan Wright & Victor James Gold, Federal Practice and Procedure
§ 6266 (1st ed. 1997 & Supp. 2013).
Third, a district court’s insufficient gate-keeping findings may not warrant
reversal if the appellee can persuade us the error was harmless. If, for example, it
is readily apparent from the record that the expert testimony was admissible, it
would be pointless to require a new trial at which the very same evidence can and
will be presented again. See, e.g., Kinser v. Gehl Co., 184 F.3d 1259, 1271-72
(10th Cir. 1999), abrogated in part on other grounds by Weisgram v. Marley Co.,
528 U.S. 440 (2000). 2 Even if this court concludes the expert’s testimony was
2
United States v. Roach denied that an appellate court could rely on the
record to make its own determination that an expert witness was qualified to
testify. 582 F.3d at 1207 n.7. “[T]hat determination,” we said, “is strictly
reserved for the district court.” Id. at 1208 n.7. But Roach did not seek to
explain how this statement could be squared with our earlier decision in Kinser
that did exactly what Roach suggested an appellate court may not do. Because
one panel of our court cannot overrule prior panel decisions and earlier panel
decisions control over later ones, Muskrat v. Deer Creek Pub. Schs., 715 F.3d
(continued...)
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wrongly admitted, the presentation of that evidence might still qualify as harmless
error “if other competent evidence is ‘sufficiently strong’ to permit the conclusion
that the improper evidence had no effect on the decision.” Goebel, 215 F.3d at
1089 (internal quotation mark omitted). Either way, we will not demand a new
trial when the existing one reached the right result.
Before the district court Mr. Kirby presented several objections to the
admission of StorageCraft’s damages expert, but before this court he continues to
press just two. The first pursues a familiar theme. He faults StorageCraft’s
expert for failing to adopt his legal theory that trade secret royalty damages
require proof of commercial use. Plainly, though, this objection has a good deal
less to do with the expert and his methodology than it does with Mr. Kirby’s view
of the law, amounting less to a Daubert objection than a sort of renewal of his
motion for judgment as a matter of law. Given that, it’s equally plain to us the
district court adequately discharged its duty to address this argument when it
analyzed the language of Utah’s trade secret statute and interpreted that language
as authorizing royalty damages for either commercial use or disclosure.
Mr. Kirby’s remaining objection focuses on various assumptions the expert
employed when seeking to quantify the costs StorageCraft incurred in developing
2
(...continued)
775, 792 (10th Cir. 2013), we must continue to treat Kinser as binding. In fact, it
seems Kinser simply wasn’t brought to the court’s attention in Roach; neither, for
that matter, was Roach’s statement even a part of the court’s holding in that case.
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its computer code. Mr. Kirby doesn’t dispute the principle that StorageCraft
could have sought to take into account its development costs when negotiating a
license for its intellectual property. Instead, he attacks the particular assumptions
the expert used to calculate those costs. For example, the expert assumed
developers worked 40-hour weeks over 15 to 20 months to develop the source
code and Mr. Kirby says this assumption is too high, unsupported by the
evidence. Mr. Kirby complains as well that the district court failed to discharge
its Daubert duties when it dismissed his complaints summarily, stating only that
they “raised great points for cross-examination.”
As we’ve seen, by their nature some objections to expert testimony don’t
require from the district court more than a brief reply, and Mr. Kirby’s objections
to the expert’s development cost assumptions may well fall into this category.
But even if we assume for argument’s sake that the district court’s exegesis
wasn’t detailed enough to discharge its gate-keeping duties, we are confident any
error here was harmless. Returning by way of example to the expert’s assumption
about the time required to develop the computer source code, Mr. Kirby’s own
deposition testimony confirms that he and three other engineers devoted a very
large number of hours to its creation over a 15 to 20 month period. The expert’s
assumption, then, was grounded in record evidence, Mr. Kirby’s own testimony
belies his methodological complaint, and we can rest assured that more words
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from the district court would not have altered the admissibility of the expert’s
evidence. 3
The judgment is affirmed.
3
Two housekeeping items. Besides attacking StorageCraft’s trade secret
verdict, Mr. Kirby also attacks its breach of contract verdict. But at this point
there’s nothing left for him to complain about. It’s a fact that StorageCraft sued
Mr. Kirby for breach of contract as well as trade secret misappropriation. The
company alleged that Mr. Kirby breached a promise to return the company’s
intellectual property when he quit. The jury accepted this theory in its verdict.
But because the parties stipulated that StorageCraft’s misappropriation and breach
of contract damages awards were duplicative, the district court entered judgment
only on the misappropriation claim. Because of that, and because we affirm the
judgment against Mr. Kirby for misappropriating StorageCraft’s trade secret,
there’s no need to address the contract claim here. See, e.g., Celeritas Techs.,
Ltd. v. Rockwell Int’l Corp., 150 F.3d 1354, 1361-62 (Fed. Cir. 1998). Mr.
Kirby’s challenge to the jury’s award of exemplary damages and the district
court’s award of attorneys’ fees likewise require no extended discussion. He
acknowledges that his arguments on these issues depend for their success on the
success of the arguments we’ve already addressed and rejected above.
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