David Schwartz v. Rent A Wreck of America Incorporated

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2114
DAVID SCHWARTZ, d/b/a Rent A Wreck; RENT A WRECK
INCORPORATED, d/b/a Bundy Auto Sales,
Plaintiffs - Appellees,
v.
RENT A WRECK OF AMERICA INCORPORATED; BUNDY AMERICAN LLC,
Defendants – Appellants,
and
J.J.F. MANAGEMENT SERVICES INCORPORATED,
Defendant.
No. 10-2260
DAVID SCHWARTZ, d/b/a Rent A Wreck; RENT A WRECK
INCORPORATED, d/b/a Bundy Auto Sales,
Plaintiffs - Appellants,
v.
RENT A WRECK OF AMERICA INCORPORATED; BUNDY AMERICAN LLC,
Defendants – Appellees,
and
J.J.F. MANAGEMENT SERVICES INCORPORATED,
Defendant.
No. 11-1561
DAVID SCHWARTZ, d/b/a Rent A Wreck; RENT A WRECK
INCORPORATED, d/b/a Bundy Auto Sales,
Plaintiffs - Appellees,
v.
RENT A WRECK OF AMERICA INCORPORATED; BUNDY AMERICAN LLC,
Defendants – Appellants,
and
J.J.F. MANAGEMENT SERVICES INCORPORATED,
Defendant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. Peter J. Messitte, Senior District
Judge. (1:07-cv-01679-PJM)
Argued: January 26, 2012 Decided: March 9, 2012
Before KING and DUNCAN, Circuit Judges, and J. Michelle CHILDS,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed in part, vacated in part, reversed in part, and
remanded by unpublished opinion. Judge Duncan wrote the
opinion, in which Judge King and Judge Childs joined.
ARGUED: Daniel Janssen, QUARLES & BRADY, Milwaukee, Wisconsin,
for Rent A Wreck of America Incorporated and Bundy American LLC.
Jacob Ira Weddle, GORDON & SIMMONS, LLC, Frederick, Maryland,
for David Schwartz and Rent A Wreck Incorporated. ON BRIEF:
Leah J. Stoecker, QUARLES & BRADY, Milwaukee, Wisconsin, for
2
Rent A Wreck of America Incorporated and Bundy American LLC.
Roger C. Simmons, GORDON & SIMMONS, LLC, Frederick, Maryland,
for David Schwartz and Rent A Wreck Incorporated.
Unpublished opinions are not binding precedent in this circuit.
3
DUNCAN, Circuit Judge:
These consolidated appeals arise out of a jury verdict that
a contract arose based upon a course of dealing between
appellants/cross-appellees Rent-A-Wreck of America, Inc.
(“RAWA”) and Bundy American, LLC (“Bundy”) on the one hand, and
appellees/cross-appellants David Schwartz and Rent-A-Wreck, Inc.
(“RAWI”), on the other, with respect to RAWI’s and Schwartz’s
operation of a used car rental business in West Los Angeles,
California. Both sets of parties moved to set aside certain
portions of the jury verdict under Rule 50(b). The district
court granted in part and denied in part these motions. The
district court then entered a partial judgment in favor of RAWI
and Schwartz, from which both sets of parties appeal.
Subsequently, upon motion by RAWI and Schwartz, the district
court ordered RAWA and Bundy to comply with certain directives.
RAWA and Bundy appealed from that order. 1 For the reasons that
follow, we affirm in part, vacate in part, reverse in part, and
remand for further proceedings.
1
The appeal from the district court’s first order, dated
September 23, 2010, was docketed as No. 10-2114. The appeal
from the district court’s second order, dated May 11, 2011, was
docketed as No. 11-1561. By order of this court, the two
appeals were consolidated.
4
I.
A.
We begin by setting forth the facts relevant to this
appeal. In 1962, Schwartz began operating a used car lot under
the name of Bundy Auto Sales. In 1973, Schwartz began using the
name Rent-A-Wreck. Schwartz painted a sign with the name “Bundy
Rent-A-Wreck” and placed it outside his business. Two years
later, in 1975, Schwartz incorporated under the name Rent-A-
Wreck, Inc. On May 13, 1977, Schwartz formed another new
company with an investor named Geoffrey Nathanson. The name of
the new company, owned equally between Schwartz and Nathanson,
was Bundy American Corporation (“Bundy”). Bundy was formed for
the purpose of offering Rent-A-Wreck brand auto rental
franchises.
In March and April of 1977, shortly before Schwartz and
Nathanson formed Bundy, they had entered into an agreement that
provided that all of Schwartz’s and RAWI’s interests in the
Rent-A-Wreck name and marks would be assigned to Bundy; that
Schwartz would assign to Bundy his and RAWI’s rights to the
Rent-A-Wreck name; that the territory of Los Angeles County was
excepted from this assignment; and that the agreement would be
binding upon both parties and their respective heirs, executors,
administrators, and permitted assigns (the “1977 Agreement”).
5
On May 13, 1977, Schwartz, for himself and RAWI, executed a
written assignment of the Rent-A-Wreck service mark to Bundy
(the “1977 Assignment”).
In 1985, Schwartz and Nathanson, with the agreement of
Bundy’s franchisees, decided to take Bundy public under the name
Rent-A-Wreck of America, Inc. For this purpose, they entered
into an agreement (the “1985 Agreement”). Pursuant to the 1985
Agreement, Schwartz agreed that “I shall not engage in any
activities that compete with the business of [RAWA], except
activities in the protected territory described below, including
the running of my Bundy Rent-A-Wreck operation in West Los
Angeles.” J.A. 2939 (¶ 3). The 1985 Agreement further
identified a defined territory--located within Los Angeles--
within which Schwartz could continue operating a single car
rental location (called Bundy Rent-A-Wreck). RAWA agreed that
it would grant no franchises, nor open any RAWA-owned or
affiliated operations in Schwartz’s protected territory. The
1985 Agreement further provided that it would terminate on June
30, 1985, except that the exclusivity provision would continue
in full force and effect after that date.
On August 12, 1985, RAWA’s offering prospectus was issued
(the “Prospectus”). It stated, in relevant part, that “[i]n
connection with the formation of Bundy, Schwartz assigned all of
his right, title and interest in and to the trade name and
6
trademark ‘Rent-A-Wreck’ to Bundy, retaining the right to the
concurrent use of the trade name and trademark at the original
Rent-A-Wreck facility owned by him in West Los Angeles.” J.A.
2883 (“Background”). It further stated, in relevant part, that
Schwartz was “the originator of the Rent-A-Wreck concept and has
operated Bundy Rent-A-Wreck, his West Los Angeles based Rent-A-
Wreck facility, the nation’s first, since 1973. Bundy Rent-A-
Wreck operates independently of, and not under a license
agreement from [RAWA].” J.A. 2889. The Prospectus further
noted the existence and terms of the 1985 Agreement.
On August 11, 1987, the RAWA board unanimously approved a
proposal that RAWA would lease and operate Schwartz’s business
and territory in West Los Angeles beginning for an initial term
of one year, with the option for four additional one year lease
terms. In an agreement executed on September 1, 1987, RAWA
agreed to lease and operate Schwartz’s car rental business (the
“1987 Lease Agreement”). During the lease period, RAWA replaced
Schwartz’s original Bundy Rent-A-Wreck sign with a stylized
Rent-A-Wreck sign and logo identical to the ones used by RAWA
franchisees. On May 20, 1988, RAWI assigned the Rent-A-Wreck
mark in the State of California to Bundy (the “1988
Assignment”). Schwartz signed the 1988 Assignment, in his
capacity as the President of RAWI. In 1990, Schwartz sold his
controlling interest in RAWA.
7
In September 1990, RAWA terminated the lease on Schwartz’s
car rental location, and Schwartz resumed operating an
independent rental car business at the same location. Schwartz
continued using the signage and business forms that RAWA had
left behind at the end of the lease term. RAWA tolerated
Schwartz’s use of its marks for the next sixteen years. 2 Over
time, new employees of RAWA even began including his location on
Uniform Franchise Offering Circulars (“UFOC”) 3 and, when RAWA
established an internet page, it included reference to his
location. The 2001 and 2002 UFOCs state that Schwartz “has
operated a vehicle rental business under the Rent-A-Wreck name
since 1973. This business is located in Los Angeles, California
and operates under a royalty-free agreement.” J.A. 1544
(Information for Prospective Franchisees, July 1, 2001); J.A.
1744 (Information for Prospective Franchisees, July 1, 2002).
Each UFOC attached as an exhibit a “List of Current
Franchisees,” which included Schwartz. J.A. 1676-77; J.A. 1823-
24. Nonetheless, there has never been a formal franchise
agreement executed between RAWA and Schwartz. The relationship
2
In 1993, RAWA relocated its headquarters from California
to Maryland.
3
A UFOC is a document that contains information franchisors
must provide to franchisees by law. The Federal Trade
Commission regulates the contents of a UFOC.
8
between the two is therefore somewhat unorthodox. RAWA imposes
certain requirements upon its franchisees, including ongoing
training; compliance with standards and policies; restrictions
on products and services offered; warrant and customer service
requirements; sales quotas; maintenance, appearing, and
remodeling requirements; insurance; and advertising. Schwartz’s
rental location does not abide by such requirements.
In 2001, Bundy, now operating as a wholly owned subsidiary
of RAWA, began to operate auto rental businesses within the Los
Angeles area under the name “Priceless.” There are currently
Priceless brand franchises operating in Los Angeles and West
Hollywood.
In 2005, RAWA entered into negotiations with J.J.F.
Management Services, Inc. (“JJFM”) to sell itself. That sale
was completed in 2006. While the sale was pending, Schwartz
filed two lawsuits against RAWA, challenging the sale. On
October 28, 2006, RAWA wrote to him, asking that he either
provide evidence of any agreement to use the Rent-A-Wreck name,
or to stop holding himself out to the public as a RAWA
franchisee (the “October 2006 letter”). In June 2007, RAWA
removed Schwartz from its website.
9
B.
On June 25, 2007, Schwartz and RAWI filed an action against
RAWA, Bundy, and JJFM 4 in the United States District Court for
the District of Maryland. 5 RAWI and Schwartz 6 sought a
declaratory judgment in their favor pursuant to the terms of the
1985 Agreement, which they alleged gave them a royalty-free
franchise; specific performance of the 1985 Agreement; and
breach of an implied-in-fact contract, which appellees alleged
arose from the parties’ course of dealings between 1977 and
2007. RAWA and Bundy 7 filed an answer and counterclaims. As
relevant here, appellants’ counterclaims included a request for
a declaration that the exclusive franchise sought by appellees
4
JJFM was dismissed from the action on March 25, 2009, and
is not a party to this appeal.
5
On September 7, 2007, RAWI and Schwartz filed a First
Amended Complaint, alleging, inter alia, violations of the
Lanham Act and seeking cancellation of RAWA’s marks. The
district court dismissed both of those claims. The operative
complaint in this action is the Second Amended Complaint, filed
on October 9, 2008.
6
As already noted, RAWI and Schwartz are appellees in both
appeals before us, but they are also cross-appellees in the
first appeal. For ease of readability, we will refer to them as
“appellees” throughout our opinion, unless specifically noted
otherwise.
7
As already noted, RAWA and Bundy are appellants in both
appeals before us, but they are also cross-appellants in the
first appeal. For ease of readability, we will refer to them,
unless otherwise specifically noted, as “appellants” throughout
our opinion.
10
was unenforceable as an unlawful restraint on trade. They
further sought a declaration that the 1985 Agreement could be
terminated by appellants, or in the alternative, that appellants
had already terminated all of appellees’ rights in the October
2006 letter.
The parties’ claims were tried to a jury from April 1, 2010
through April 13, 2010. At the close of evidence, the district
court instructed the jury regarding applicable legal principles,
including breach of contract and duration of contracts.
Appellants requested that the district court instruct the jury
with respect to the law of assignment. Appellants’ proposed
instruction stated that an assignor may not maintain an action
upon a claim after making an absolute assignment of the claim to
another, and that if the jury found that appellees assigned to
appellants the right to use the Rent-A-Wreck name or associated
marks in 1988, it should reject appellees’ claim that the 1985
Agreement grants them the right to use the Rent-A-Wreck name and
also reject appellees’ claim that an implied contract grants
them that right. Appellants further requested an instruction
regarding the law of warranties of assignment. Finally,
appellants requested an instruction regarding the law of
contract termination, which would have required the jury, in the
event it found that a contract existed, to examine whether the
contract had an express, or implied, term of duration. If the
11
jury were to find that no term was agreed upon, appellants’
proposed instruction was that the term of such a contract is a
reasonable time given the circumstances and purpose under which
the contract arose. The district court declined to give
appellants’ proposed instructions.
After the jury was unable to reach a unanimous verdict, the
parties agreed to accept a majority verdict. The jury’s verdict
was in the form of answers to questions on a verdict form. In
relevant part, the jury responded to those questions as follows:
[Question No. 1]: Do you find that [appellees], based
on a course of dealing, have an express or implied
contract, written or oral, with [appellants], with
respect to [appellees’] operation of a used car rental
business in West Los Angeles
[Answer to Question No. 1]: Yes
[Question No. 3]: If your answer to Question 1 is
‘yes,’ check which, if any, of the following are
features of such contract:
[First subpart of Question No. 3]: RAWA Franchise in
favor of [appellees]
[Answer to first subpart of Question No. 3]: Yes
[Second subpart of Question No. 3]: Exclusive RAWA
franchise in favor of [appellees] in West Los Angeles
as delineated in or after 1985.
[Answer to second subpart of Question No. 3]: Yes
[Third subpart of Question No. 3]: Whether or not as
a franchisee, the right of [appellees] to use trade
name and trademark Rent-A-Wreck, and receive same
benefits as franchisees without the obligations
[Answer to third subpart of Question No. 3]: No
12
[Fourth subpart of Question No. 3]: Rights of
[appellees] to any of the foregoing without paying
fees or royalty to RAWA
[Answer to fourth subpart of Question No. 3]: No
[Fifth subpart of Question No. 3]: Existence of any
of the foregoing rights in favor of [appellees] in
perpetuity
[Answer to fifth subpart of Question No. 3]: No
[Question No. 4]: If these rights were not in
perpetuity, what would be a reasonable time for the
rights to last? (indicate duration)
[Answer to Question No. 4]: Rest of his life
J.A. 3108a-b.
The remaining questions on the verdict form concerned the
appellants’ counterclaims:
[Question No. 5]: Did [appellants] or their
predecesors in interest ever expressly authorize
[appellees] to use the Rent-A-Wreck trade name and
trademark?
[Answer to Question No. 5]: Yes
[Question No. 6]: With reference to the foregoing
question, did the [appellants] or their predecessors
in interest ever implicitly authorize [appellees] to
use the Rent-A-Wreck trade name and trademark?
[Answer to Question No. 6]: Yes
[Question No. 7]: If you find that [appellants] or
their predecessors in interest either expressly or
implicitly authorized [appellees] to use the Rent-A-
Wreck trade name and trademarks, did [appellants]
expressly or implicitly reserve the right to terminate
that use by [appellees]?
13
[Answer to Question No. 7]: No
[Question No. 10]: Do you find that the [appellees]
and [appellants], or [appellants’] predecessors in
interest, entered into a written contract or contracts
in 1977 and 1988, which [appellees] have breached?
[Answer to Question No. 10]: No
J.A. 3108b-c.
Following the verdict, appellees filed a Rule 50(b) motion.
Specifically, appellees requested that a judgment
notwithstanding the verdict be entered as follows: (1) appellees
were entitled to the same benefits as other RAWA franchisees,
but were not required to fulfill the franchise obligations of
other RAWA franchisees; (2) appellees had no obligation to pay
royalties or fees to RAWA; and (3) appellees had perpetual
rights under the contract. Appellants also filed a Rule 50(b)
motion. Appellants requested that a judgment notwithstanding
the verdict be entered rejecting all of appellees’ claims. They
further requested a judgment notwithstanding the verdict on
their counterclaims.
On September 23, 2010, the district court granted a partial
judgment notwithstanding the verdict under Rule 50(b) in favor
of appellees and denied appellants’ Rule 50(b) motion. In
making its ruling on the parties’ motions, the district court
first noted that “[o]ne prominent issue in this case has been
whether the jury’s responses to the Special Interrogatories
14
submitted at the close of trial are binding upon the Court or
merely advisory.” J.A. 3247. The district court then attempted
to dispose of this issue as follows: “First, insofar as the
[jury’s] findings are merely advisory, the Court reaches
contrary conclusions based on its own consideration of the
evidence. Alternatively, insofar as those jury[] findings are
binding, the Court grants Plaintiff’s Renewed Motion for
Judgment and their Motion for Judgment Notwithstanding the
Verdict as to those particular findings.” J.A. 3249.
The district court went on to hold that appellees were
entitled to a royalty-free franchise with an exclusive territory
in West Los Angeles, California, for the duration of Schwartz’s
life. The district court further held that appellees were not
subject to any of the same franchise obligations as other
franchisees operating in the RAWA network of franchises were.
Appellants filed a notice of appeal on September 29, 2010.
Appellees filed a notice of cross-appeal on October 23, 2010.
On November 30, 2010, the district court clarified that
appellees’ territory was exclusive not only as to other Rent-A-
Wreck franchises, but also franchises operating under the
Priceless name and marks, for which, as discussed above, Bundy,
a wholly owned subsidiary of RAWA, is franchisor.
While the cross-appeals were pending before us, appellees
moved, in relevant part, to enforce the district court’s final
15
order of declaratory judgment. Specifically, they sought
certain directives from the court regarding the presentation of
appellees on appellants’ website. The district court treated
the motion as one for clarification of the district court’s
final order of declaratory judgment. On May 11, 2011, the
district court issued a memorandum opinion, ordering appellants
to make certain alterations to their website pursuant to the
district court’s September 23, 2010 order. RAWA and Bundy filed
an additional notice of appeal, including their objections to
this order, on May 25, 2011.
II.
On appeal, the parties raise a plethora of arguments. At
the outset, appellants contend that we must vacate and remand
because the district court treated the jury’s verdict as
advisory and was required to make specific findings under Rule
52(a), which it failed to do.
As an alternative to their Rule 52 argument, appellants
argue that the district court erred in denying their Rule 50(b)
motion pertaining to the jury’s finding of the existence of a
contract, as well as its specific features. Specifically,
appellants contend that the district court should have set aside
the jury’s verdict that appellees have a contract based on a
course of dealing with appellants, that appellants had not
16
reserved the right to terminate their relationship with
appellees, and that appellees had an exclusive territory. As to
the exclusivity provision, appellants contend that it is void ab
initio under California law. Appellants further contend that
the district court erred in setting aside the jury’s verdict
that appellees’ contract entitled them neither to receive the
same benefits as franchisees without the obligations of
franchisees, nor to receive such benefits without paying fees or
royalties to appellants. On cross-appeal, appellees contend
that the district court should have granted their Rule 50(b)
motion to set aside the jury’s verdict that appellees’ rights
under the contract exist for the duration of Schwartz’s life,
and that the court should instead have ruled that those rights
are perpetual.
Turning to the remaining issues on appeal, appellants make
three additional arguments. They contend that the district
court improperly held that the implied contract found by the
jury gave appellees the right to operate exclusively within West
Los Angeles, not only of other Rent-A-Wreck franchises, but also
of auto rental franchises operated by appellants under a
different trade name, including the Priceless franchises that
have coexisted with Schwartz’s rental location for over a
decade. They further challenge certain jury instructions given
17
by the district court. 8 Also, on cross-appeal, appellees assert
that the district court erred in denying their request for
attorneys’ fees. We address each issue in turn.
A.
We first address appellants’ challenge under Federal Rule
of Civil Procedure 52. Appellants argue that the district court
treated the jury’s findings as advisory, and was therefore
required to “find the facts specially and state its conclusions
of law separately.” Fed. R. Civ. P. 52(a)(1). They further
contend that the district court failed to do so here.
In relevant part, Rule 52(a) provides that:
In an action tried on the facts without a jury or with
an advisory jury, the court must find the facts
specially and state its conclusions of law separately.
The findings and conclusions may be stated on the
record after the close of the evidence or may appear
in an opinion or a memorandum of decision filed by the
court.
It is well established that “[t]he Federal Rule 52(a)
requirement that the trial court find the facts specially and
state separately its conclusions of law is mandatory and must be
fairly observed by district judges.” 9 C. Wright & A. Miller,
8
Finally, appellants challenge the district court’s May 11,
2011 order directing them to modify their website. We vacate
the May 11, 2011 order in light of our ruling on the appeal from
the September 23, 2010 order. We remand to the district court
for reexamination of the May 11, 2011 order in light of this
decision.
18
Federal Practice and Procedure § 2574 (3d ed. 2008). By
contrast, Rule 50(b) does not require the district court to make
specific findings of fact or law. If a district court tries an
action with an advisory jury, and the parties nonetheless file
motions under Rule 50(b), the proper course of action for the
district court is to decline to adjudicate the Rule 50(b)
motions, and instead consider the arguments in the context of
the court’s determination of whether to adopt the advisory
jury’s findings. As an example, in Wooten v. Lightburn, 579 F.
Supp. 2d 769 (W.D. Va. 2008), although the defendant had filed a
Rule 50(b) motion, the court declined to rule on that motion
because the case was tried before an advisory jury, with the
ultimate decision left to the district court. Id. at 772.
Instead, the Wooten court considered the parties’ arguments
under Rule 52(a). Id.Here, in contrast, the district court did not determine
that the action was tried with an advisory jury, and did not
make the specific findings of fact or law required by Rule 52.
Instead, the district court adjudicated the parties’ Rule 50(b)
motions. To the extent it denied the parties’ Rule 50(b)
motions, it held that there was a legally sufficient evidentiary
basis for the jury’s verdict. To the extent it granted the
parties’ Rule 50(b) motions, it held that there was not a
legally sufficient evidentiary basis for the jury’s verdict. In
19
either event, the district court was treating the jury’s
findings as binding. Therefore, we reject appellants’ argument,
and proceed to address the remaining issues on appeal.
B.
Both parties challenge the district court’s denial of their
Rule 50(b) motions. We review the denial of a Rule 50(b) motion
de novo. First Union Commercial Corp. v. GATX Capital Corp.,
411 F.3d 551, 556 (4th Cir. 2005). We affirm, “[i]f, viewing
the facts in the light most favorable to the non-moving party,
there is sufficient evidence for a reasonable jury to have found
in the [non-moving party’s] favor.” Id. (alteration in
original) (citation omitted). We address the district court’s
Rule 50(b) rulings in the following order: (1) the sufficiency
of the jury finding of an implied contract between the parties;
(2) the sufficiency of the jury finding that appellants did not
reserve their right to terminate; (3) whether the exclusivity
provision is void ab initio under California law; (4) the
sufficiency of the jury finding with respect to franchise
obligations; and (5) the sufficiency of the jury finding with
respect to royalties and fees.
1.
Appellants argue that as a matter of law, there is no
contract, express or implied, between the parties. Schwartz
could not possibly have been a party to an exclusive franchise
20
agreement with RAWA, they contend, because he had signed away
any and all of his interest in the Rent-A-Wreck name by virtue
of the 1977 Assignment and the 1988 Assignment.
Under California law, 9 the interpretation of a contract
presents an issue of law when the language of the contract is
unambiguous, i.e., “clear and explicit.” F.B.T. Prods., LLC v.
Aftermath Records, 621 F.3d 958, 963-64 (9th Cir. 2010); accord
Porkert v. Chevron Corp., No. 10-1384, 2012 WL 90142, at *4 (4th
Cir. Jan. 12, 2012) (“Under California law, the interpretation
of a contract presents an issue of law when the language of a
contract is unambiguous.”). Parol evidence is properly admitted
to construe a contract only when its language is ambiguous.
F.B.T. Prods., 621 F.3d at 963. “When the contract is
unambiguous, ‘[n]o obligation can be implied, which would result
9
We are a federal court sitting in diversity, and must
apply the substantive law of the state in which the district
court sits, which in this case is Maryland. “Under Maryland
choice-of-law rules, a contractual claim (including a claim for
an implied contract) is governed by the law of the place where
the contract is made, which is the place where the last act
required to make a contract binding occurs.” Harte-Hanks Direct
Mktg./Baltimore, Inc. v. Varilease Techn. Fin. Gr., Inc., 299 F.
Supp. 2d 505, 518 n.13 (D. Md. 2004). As we discuss herein, the
jury found a contract based on a course of dealing between the
parties that began no later than 1985. Neither party has
pointed to any conduct post-dating 1993 (the year in which RAWA
relocated its corporate headquarters to Maryland) that was
required to make the contract binding. In view of these facts,
we hold that the last act required to make the contract, based
on the course of dealing, binding occurred prior to 1993. As
such, California law governs the contract.
21
in the obliteration of a right expressly given under a written
contract.’ ” Thrifty Payless, Inc. v. Mariners Mile Gateway,
LLC, 111 Cal. Rptr. 3d 173, 182 (Cal. Ct. App. 2010) (quoting
Gerlund v. Elec. Dispensers Int’l, 235 Cal. Rptr. 279, 286 (Cal.
Ct. App. 1987)).
In addition to express contracts, California law also
recognizes implied contracts. Retired Emps. Ass’n of Orange
Cnty., Inc. v. County of Orange, No. S184059, 2011 WL 5829598,
at *2 (Cal. Nov. 21, 2011).
The terms of an express contract are stated in words.
The existence and terms of an implied contract are
manifested by conduct. The distinction reflects no
difference in legal effect but merely in the mode of
manifesting assent. Accordingly, a contract implied
in fact consists of obligations from a mutual
agreement and intent to promise where the agreement
and promise have not been expressed in words.
Even when a written contract exists, evidence derived
from experience and practice can now trigger the
incorporation of additional, implied terms. Implied
contractual terms ordinarily stand on equal footing
with express terms provided that, as a general matter,
implied terms should never be read to vary express
terms.
Id. (citations and quotation marks omitted). “Whether the
parties’ conduct creates such implied agreements is generally a
question of fact.” Scott v. Pac. Gas & Elec. Co., 904 P.2d 834,
839 (Cal. 1995) (quotation marks omitted). However, “the law
does not recognize implied contract terms that are at variance
with the terms of the contract as expressly agreed or as
22
prescribed by statute.” County of Orange, 2011 WL 5829598, at
*4 (quotation marks omitted).
Turning to the facts before us, we must first determine
whether a reasonable jury could have found that an implied
contract existed based on a course of dealing between appellants
and appellees. If we answer that question in the affirmative,
we must proceed to analyze whether the terms of the implied
contract found by the jury are at variance with the terms of any
preexisting contract between the parties.
First, viewing the facts in the light most favorable to
appellees, we conclude that there was sufficient evidence for a
reasonable jury to have found in appellees’ favor as to the
existence of an implied contract. Notably, the record is
replete with evidence that appellants treated appellee Schwartz
as a de facto franchisee between 1990 (when RAWA terminated its
lease of Schwartz’s rental location) and 2005 (when Schwartz
began acting in an adverse manner toward RAWA). As already
noted, appellants stated in official company documents that
Schwartz was operating under the Rent-A-Wreck name pursuant to a
royalty-free agreement and listed Schwartz as one of their
current franchisees. Under our deferential standard of review,
this evidence creates sufficient factual basis for the jury’s
finding of an implied contract.
23
Second, we hold that the terms of the implied contract
found by the jury are not at variance with the terms of any
preexisting contract between the parties. Notably, the jury did
not make any specific finding regarding whether the implied
contract constituted additional terms in a preexisting express
contract between the parties, or whether it was an independent
implied contract. Under either construction, however, we
believe the jury’s verdict passes muster. Appellants point to
the 1977 Assignment and 1988 Assignment as extinguishing all of
appellees’ rights to use the Rent-A-Wreck mark. However,
neither of those agreements contains any language regarding
whether appellees could continue to use the trade name and
trademark at the original Rent-A-Wreck facility. The 1985
Agreement, on the other hand, postdates the 1977 Assignment, and
specifically provides that Schwartz retains, for an indefinite
period, the right to the concurrent use of the trade name and
trademark at the original Rent-A-Wreck facility owned by him in
West Los Angeles. Thus, nothing in either the 1977 Assignment
or 1988 Assignment specifically precludes Schwartz from
continuing to use the Rent-A-Wreck mark at his West Los Angeles
location, and the 1985 Agreement gives him precisely that right
for an indefinite period.
In sum, we hold that a reasonable jury could have concluded
that appellees had an implied contract with appellants with
24
respect to appellees’ operation of a used car rental business in
West Los Angeles.
2.
Appellants contend that, as a matter of law, any franchise
agreement between the parties ended in 2006 and could not have
continued to exist thereafter. California courts engage in a
three-stage inquiry to determine the duration of a contract.
McCaskey v. California State Auto. Ass’n., 118 Cal. Rptr. 3d 34(Cal. Ct. App. 2010), provides that:
[T]he court first consults the terms of the contract;
then the circumstances and other indicia of intent;
and only when those steps fail to establish a
durational term does the court impose a judicially
determined “reasonable time” limitation on the duty at
issue. This last step is a manifestation of the
broader principle that when any essential term has
been omitted from the contract, and the parties’
intent concerning that term cannot otherwise be
ascertained, the law will supply a reasonable term.
Id. at 49-50 (emphasis omitted). Here, the first step is not
applicable because the jury found an implied contract. The
second step seeks to ascertain the parties’ intent from
circumstantial evidence. Here, the jury did just that, and
determined that the duration of the contract is the remainder of
Schwartz’s life. As already noted, the jury had a great deal of
evidence to rely upon in determining the terms of the implied
contract, including its duration. Notably, the 1985 Agreement
contains a provision permitting Schwartz to continue to operate
25
his car rental business at the West Los Angeles location. It
was not unreasonable for the jury to have concluded that the
parties’ conduct subsequent to the 1985 Agreement was consistent
with this provision, and that the parties’ intent was to
preserve Schwartz’s right to use the Rent-A-Wreck name for the
duration of his life. 10
Appellants’ argument that the duration shall be a
“reasonable time” fails. Because the first two steps have
prescribed a durational term under California law, there is no
need to impose a judicially determined “reasonable time”
limitation on the parties’ rights under the contract.
3.
Appellants next contend that, as a matter of law, any
implied provision giving Schwartz and RAWI the right to operate
exclusively within the territory delineated in the 1985
Agreement is void ab initio under California Business and
Professions Code § 16600.
Section 16600 prescribes that “[e]xcept as provided in this
chapter, every contract by which anyone is restrained from
10
It therefore follows that the district court did not err
in denying appellees’ Rule 50(b) motion in this regard. There
was sufficient evidence for the jury to conclude that the course
of the dealings between the parties created an implied contract
that gave Schwartz rights for the duration of his lifetime,
rather than an indefinite duration.
26
engaging in a lawful profession, trade or business of any kind
is to that extent void.” This is a codification of the “general
rule in California [that] covenants not to compete are void.”
Hill Med. Corp. v. Wycoff, 103 Cal. Rptr. 2d 779, 784 (Cal. Ct.
App. 2001). 11 The California Supreme Court has held that
“[s]ection 16600 is unambiguous, and if the Legislature intended
the statute to apply only to restraints that were unreasonable
or overbroad, it would have included language to that effect.”
Edwards v. Arthur Andersen LLP, 189 P.3d 285, 293 (Cal. 2008).
At the same time, as the Ninth Circuit recently noted,
California courts construing § 16600 have differentiated between
“post-contract” covenants and “in-term” covenants. See Comedy
Club, Inc. v. Improv West Assocs., 553 F.3d 1277, 1291 (9th Cir.
2009) (discussing California case law). In Dayton Time Lock
Serv., Inc. v. Silent Watchman Corp., 124 Cal. Rptr. 678 (Cal.
Ct. App. 1975), for example, a California appellate court
addressed an in-term “exclusive dealing clause” in a franchise
11
There are two statutory exceptions to § 16600. Sections
16601 and 16602 permit broad covenants not to compete in two
situations: where a person sells the goodwill of a business and
where a partner agrees not to compete in anticipation of
dissolution of a partnership. Appellees argue that § 16601 is
applicable here because the 1985 Agreement “was by definition a
sale”--a contention in support of which they offer no supporting
authority. Appellees’ Br. 53. We note that the jury found an
implied franchise agreement, which would not constitute a sale
under any definition. We therefore conclude that neither of the
statutory exceptions is applicable here.
27
agreement, and held that “[e]xclusive dealing contracts are not
necessarily invalid,” but “[t]hey are proscribed when it is
probable that performance of the contract will foreclose
competition in a substantial share of the affected line of
commerce. A determination of illegality requires knowledge and
analysis of the line of commerce, the market area, and the
affected share of the market.” Id. at 682 (emphasis added)
(citation omitted). Under California law, this is a question of
fact. See Fisherman’s Wharf Bay Cruise Corp. v. Superior Court,
7 Cal. Rptr. 3d 628, 649-52 (Cal. Ct. App. 2003) (reversing
grant of summary judgment because a triable issue of fact
existed as to whether exclusive dealing foreclosed competition
in a substantial share of the affected market). A California
appellate court recently noted that Dayton’s conclusion that
exclusive dealing contracts were sometimes permissible in the
context of a franchise relationship was based on the
franchisor’s need to “maintain some control over the
franchisee.” Kelton v. Stravinski, 41 Cal. Rptr. 3d 877, 882
(Cal. Ct. App. 2006). The Ninth Circuit has construed Dayton
and Kelton as follows:
Dayton Time Lock and Kelton make evident that under []
§ 16600 an in-term covenant not to compete in a
franchise-like agreement will be void if it
“foreclose[s] competition in a substantial share” of a
business, trade, or market. Also, California courts
are less willing to approve in-term covenants not to
compete outside a franchise context because there is
28
not a need to protect and maintain [the franchisor's]
trademark, trade name and goodwill.
Comedy Club, Inc., 553 F.3d at 1292 (alteration in original)
(emphasis added) (citations and quotations omitted).
Interpreting § 16600 in light of the case law yields the
conclusion that an in-term exclusive dealing agreement in the
context of a franchising agreement does not run afoul of §
16600, provided that it does not foreclose competition in a
substantial share of the market. In applying Dayton 12 and Kelton
to this case, we conclude that appellees are entitled to the
exclusive territory provision if two circumstances can be met:
(1) the implied contract found by the jury is a franchising
agreement, whereby RAWA can maintain some control as is
necessary to protect its trademark, trade name, and goodwill;
and (2) the exclusivity arrangement does not foreclose
12
Appellants urge us to read Arthur Andersen as overruling
Dayton, arguing that Arthur Andersen’s reasoning precludes the
creation or application of judicially created exceptions to §
16600. Although that argument is not without merit, Arthur
Andersen did not specifically overrule Dayton or Kelton, nor has
it been so construed by any California court. Additionally, the
Ninth Circuit’s decision in Comedy Club postdates Arthur
Andersen. In sum, we do not believe that the Ninth Circuit
“disregarded clear signals emanating” from the California
Supreme Court “pointing to a different rule,” and therefore
defer to its interpretation of California law. Mellon Bank,
N.A. v. Ternisky, 999 F.2d 791, 796 (4th Cir. 1993) (quoting
Factors Etc., Inc. v. Pro Arts, Inc., 652 F.3d 278, 283 (2d Cir.
1981)); see id. (deferring to Third Circuit’s interpretation of
Pennsylvania law).
29
competition in a substantial share of the affected line of
commerce.
Appellants contend that the first requirement is not met
here to the extent the district court ruled that appellees do
not have to comply with any franchisee obligations. We agree.
However, because, as discussed below, we reverse the district
court’s grant of appellees’ Rule 50(b) motion with regard to
that issue, we proceed to the second requirement.
Following Fisherman’s Wharf, we conclude that the question
of whether the exclusive territory at issue would foreclose
competition in a substantial share of the market for rental cars
is a question of fact for the jury. This issue was not
presented to the jury. Accordingly, we vacate the district
court’s denial of appellants’ Rule 50(b) motion in this regard,
and instruct the district court to submit to a jury the question
of whether the exclusive territory provision forecloses
competition in a substantial share of the market for rental
cars. 13
13
Appellees argue that even if they are not entitled to the
exclusivity provision under California law, they have an
implied-in-fact contract under Maryland law. Because RAWA
relocated its headquarters to Maryland in 1993, they contend,
any course of dealing between the parties thereafter giving rise
to a contract implied in fact occurred in Maryland. We are not
persuaded by this argument. As already noted, we believe
California law applies to the implied contract found by the
jury. It bears further note that the exclusivity provision is
(Continued)
30
4.
We next turn to the district court’s grant of appellees’
Rule 50(b) motion requesting a judgment that although they are
entitled to the benefits afforded to other RAWA franchisees,
they do not have the obligations of other RAWA franchisees. On
appeal, we must determine whether, viewing the facts in the
light most favorable to appellants, there was sufficient
evidence for the jury to conclude that appellees were required
to fulfill the same obligations as other RAWA franchisees. We
conclude that there was such a basis for the jury’s finding
because appellants listed Schwartz as a current franchisee on
the UFOCs. It was reasonable for the jury to conclude that the
implied agreement was a franchise agreement, with the attendant
benefits and obligations, whether or not appellees were actually
in compliance with their franchisee obligations. The jury was
also free to draw a contrary inference, of course; however, we
do not believe the district court was correct to hold that this
was only permissible inference. 14
derived from the 1985 Agreement, which was made in California.
We therefore reject appellees’ argument in this regard.
14
It bears note that if we were to uphold the district
court’s judgment that appellees were not required to fulfill the
same obligations as other RAWA franchisees, the grant of an
exclusive territory to appellees would be void ab initio under §
16600. As already discussed, appellees are entitled to the
(Continued)
31
5.
We now turn to appellants’ final Rule 50(b) challenge: that
the district court erred in setting aside the jury’s verdict
that the contract between the parties did not provide a royalty-
free franchise. On appeal, we must determine whether, viewing
the facts in the light most favorable to the nonmoving party,
there was sufficient evidence for the jury to conclude that
appellees were required to pay royalties pursuant to the implied
contract. We conclude that there was no such basis for the
jury’s finding because appellants specifically stated in their
UFOCs that Schwartz was operating under a royalty-free
agreement. Notably, appellants point to no evidence in the
record that could support a reasonable inference that appellants
ever asked appellees for any fees or royalties. Absent such
evidence, we conclude that a reasonable jury could not have
interpreted the course of dealing between the parties to require
exclusive territory provision under California law only if the
implied contract found by the jury is a franchising agreement,
whereby appellants can maintain some control as is necessary to
protect their trademark, trade name, and goodwill. Under the
district court’s order, appellants have no control over
appellees’ use of their trademark, trade name, or goodwill, and
appellees would therefore not be entitled to the exclusive
territory provision.
32
payment of fees or royalties. Therefore, we affirm the district
court’s grant of appellees’ Rule 50(b) motion on this ground.
C.
Having resolved the parties’ respective challenges to the
district court’s Rule 50(b) rulings, we turn to the remaining
issues on appeal, beginning with appellants’ contention that the
district court erred in precluding Priceless--a subsidiary of
RAWA that operates its own locations within Schwartz’s exclusive
territory--from operating within Schwartz’s territory.
Specifically, they argue that (1) there was no evidence
presented at trial to justify this outcome, and (2) that
Priceless and its franchisee were necessary and indispensable
parties under Rule 19. Because we are persuaded that the
contract implied by the jury could not have contained any terms
relating to Priceless or other auto rental businesses operating
under anything other than the Rent-A-Wreck name and marks, we
vacate the district court’s judgment in this regard, and order
the district court to enter a judgment that excludes Priceless.
As already discussed, the jury found a contract based on
the course of dealings between the parties with respect to
appellees’ operation of a used car rental business in West Los
Angeles. The jury further found an exclusive RAWA franchise in
favor of appellees in West Los Angeles as delineated in or after
1985. The jury did not find, nor was it asked to, whether the
33
contract between the parties precluded RAWA from opening any
RAWA-owned or affiliated operations in West Los Angeles that
were not operating under the “Rent-A-Wreck” name. Therefore,
any finding by the district court that RAWA or its affiliates
are bound by the specific provisions of the 1985 Agreement in
that regard cannot be supported by the jury verdict.
Moreover, the jury’s verdict was based on the course of
dealings between the parties. It is undisputed that this course
of dealing included the coexistence in West Los Angeles--for
over a decade--of both Schwartz’s business and the Priceless
franchises. As such, even if this question were before the
jury, it could not have concluded that the exclusivity provision
of the implied contract foreclosed the continued operation of
the Priceless franchises.
D.
We next address appellants’ contention that the district
court erred in failing to give certain jury instructions
proffered by them. Specifically, appellants contend that the
district court should have given its proffered instructions
regarding the law of assignment, the law of warranties of
assignment, and the law of termination of contracts of
indefinite duration. We review jury instructions under an abuse
of discretion standard, which we have explained as follows:
34
We review jury instructions holistically and through
the prism of the abuse of discretion standard. . . .
[A] single instruction to a jury may not be judged in
artificial isolation, but must be viewed in the
context of the overall charge. . . . Accordingly, we
simply determine whether the instructions construed as
a whole, and in light of the whole record, adequately
informed the jury of the controlling legal principles
without misleading or confusing the jury to the
prejudice of the objecting party.
The party challenging the jury instructions faces a
heavy burden, for we accord the district court much
discretion to fashion the charge. . . 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, 587 (4th Cir. 2011) (emphasis
added).
With respect to their proposed instruction on the law of
assignment, appellants argue that without instructing the jury
on the legal ramifications of the 1977 Assignment and the 1988
Assignment, the jury could not properly consider RAWA’s defense-
-that any contract, including the purported 1985 Agreement,
could not create a franchise relationship. We reject this
argument for two reasons. First, the district court instructed
the jury regarding appellants’ breach of contract claim, and
also permitted appellants to argue that the 1988 Assignment was
dispositive of Schwartz’s claims as a matter of law. More
significantly, however, the proposed instruction is incorrect:
35
as already discussed, the jury could have found an implied
franchise agreement notwithstanding the assignments.
Accordingly, the district court did not err in failing to give
the appellants’ proposed assignment instruction.
Appellants have also failed to demonstrate that their
proposed instruction with respect to the law of warranties of
assignment--based on the Restatement (Second) of Contracts §
333(1)--dealt with some point in the trial so important that
failure to give the requested instruction seriously impaired
their ability to make their case. 15 Appellants sought that
instruction to advance their allegation that Schwartz, in spite
of the assignments, repeatedly averred that RAWA did not own the
Rent-A—Wreck marks, and that these actions caused it to incur
attorneys’ fees that were properly an element of damages that
could have resulted from a breach of warranties. However, as
appellees point out, the Restatement (Second) of Contracts § 333
(1981), provides that “when a warranty of an assignor is broken,
the assignee is entitled to the usual remedies for breach of a
contract.” Id., cmt. d. Notably, California subscribes to the
American Rule, under which parties cannot generally recover
15
It is also doubtful whether the instruction is legally
correct. Appellants argue that it was legally correct because
it was based on the Restatement (Second) of Contracts § 333(1),
but they acknowledge that California has not yet accepted that
section of the Restatement.
36
attorneys’ fees. See Kim v. Euromotors West/The Auto Gallery,
56 Cal. Rptr. 3d 780, 785 (Cal. Ct. App. 2007). Thus, even if
the district court had provided the jury with appellants’
proposed instruction, it would not have aided appellants’ cause.
Finally, as to their proposed instruction on the law of
contract termination, appellants contend that the district
court’s actions meant that the jury could not have properly
considered RAWA’s affirmative defense--that any franchise
agreement between RAWA and Schwartz was terminable on reasonable
notice. Here, too, appellants’ argument fails. As already
discussed, the duration of an implied agreement is a question of
fact under California law, to be determined by a jury. The
district court properly instructed the jury, in relevant part,
that “[i]f you happen to find that there was an understanding,
but there was no understanding as to the duration, then you
would have to indicate what an appropriate duration was.” J.A.
1274. This instruction differed from appellants’ proposed
instruction only in that it did not use the “reasonable time”
language. Functionally, however, there is scant difference
between “appropriate duration” and “reasonable time.” Thus, the
appellant’s proposed instruction was substantially covered by
the district court’s charge to the jury.
37
In sum, the district court did not abuse its discretion in
refusing to provide any of the three instructions advanced by
appellants.
E.
Finally, we address appellees’ challenge to the district
court’s order denying their motion for attorneys’ fees under
section 35(a) of the Lanham Act. They argue that in so doing,
the district court incorrectly applied a bad faith standard.
Appellees further contend that the district court’s factual
findings were clearly erroneous because they were “spitefully
held hostage” by appellants’ trademark infringement
counterclaim. Appellees’ Br. 68. Appellants contend that the
district court applied the correct standard, and in the
alternative, that any error was harmless because appellees have
failed to meet the applicable standard.
“[I]n exceptional cases,” the Lanham Act permits the award
of “reasonable attorney fees to the prevailing party.” 15 U.S.C.
§ 1117(a). The statute does not define what qualifies as an
“exceptional case.” “We have defined the ‘exceptional case’ as
one in which ‘the defendant’s conduct was malicious, fraudulent,
willful or deliberate in nature.” Retail Servs., Inc. v.
Freebies Publ’g, 364 F.3d 535, 550 (4th Cir. 2004) (quoting
People for the Ethical Treatment of Animals v. Doughney, 263
F.3d 359, 370 (4th Cir. 2001)). In this circuit, we employ a
38
dual standard of proof upon prevailing plaintiffs and
defendants. A prevailing plaintiff seeking attorney
fees must demonstrate that the defendant acted in bad
faith. However, when an alleged infringer is the
prevailing party, he can qualify for an award of
attorney fees upon a showing of something less than
bad faith by the plaintiff.
Id. (citations and quotation marks omitted). “Some pertinent
considerations for judging a plaintiff’s (or counterclaim
plaintiff’s) conduct when the defendant prevails include
economic coercion, groundless arguments, and failure to cite
controlling law. Thus, the focus tends to be on the plaintiff’s
litigation conduct or pre-litigation assertion of rights.” Id.
at 550-51. “The question, however, is not whether snippets of
the record or isolated arguments clearly lack merit. We must
determine, in light of the entire case, whether defendants’
claims and assertions were so lacking in merit that the action
as a whole was ‘exceptional.’ ” Id. at 551.
Here, the district court stated, in relevant part: “I’m not
sure how I conclude that [appellants] acted in bad faith in any
way or otherwise . . . put forward a totally groundless claim.”
Supp. J.A. 59. It further stated that appellants were “entitled
to test the legitimacy of the [trademark infringement] claim,”
that appellants played “hard ball” with Schwartz, and that
“they’re entitled to do that. That’s what happens in the
commercial world.” Supp. J.A. 67-68.
39
We conclude that although the district court did not
specifically address the “something less than bad faith”
standard, its conclusions that appellants did not put forward a
totally groundless claim and that their actions were not beyond
the norm of commercial dealing satisfy the applicable legal
standard. Moreover, even under the lesser standard, we do not
believe that appellees have demonstrated clear error. Notably,
they have merely cited snippets of conversation in support of
their argument, see Appellees’ Br. 69 (describing a conversation
between Schwartz and the holder of a controlling interest in
RAWA), which we have specifically held insufficient under the
“something less” standard.
III.
For the foregoing reasons, we affirm the district court’s
judgment in part, vacate it in part, reverse it in part, and
remand for further proceedings. To summarize, we reject the
appellants’ Rule 52 challenge. With respect to the Rule 50(b)
challenges, we affirm the district court’s judgment that there
existed an implied contract based on a course of dealing between
the parties with respect to Schwartz and RAWI’s operation of a
used car rental business in West Los Angeles; that Schwartz and
RAWI are not required to pay royalties or fees to RAWA or Bundy;
and that the parties’ rights under the contract shall last for
40
the duration of Schwartz’s life. We vacate the district court’s
denial of RAWA and Bundy’s Rule 50(b) motion seeking judgment as
a matter of law that the grant of an exclusive franchise within
Los Angeles to Schwartz and RAWI is void ab initio under
California law. We hold that the question of whether an
exclusive territorial provision forecloses competition in a
substantial share of the market of the affected line of
commerce--which, if answered in the affirmative, would void the
exclusivity provision under California law--is a factual
question; therefore, remand is required to permit a factfinder
to make that factual finding. In the event that the exclusive
territory provision is valid, we nonetheless reverse the
district court’s judgment that the provision operates to
prohibit the Priceless entities from operating within Schwartz’s
and RAWI’s territory. We further reverse the district court’s
judgment that RAWI and Schwartz are entitled to the benefits of
other RAWA franchisees but do not have the same obligations as
those franchisees. Instead, we reinstate the jury’s verdict
that Schwartz and RAWI cannot obtain such benefits unless they
agree to fulfill the same obligations as other RAWA franchisees.
With regard to the remaining issues on appeal, we reverse the
district court’s judgment that the implied contract found by the
jury requires the Priceless entities to cease operations within
appellees’ exclusive territory. We affirm the district court’s
41
decision not to give appellant’s proposed jury instructions. We
also affirm the district court’s denial of appellees’ motion for
attorneys’ fees. Finally, we vacate the district court’s May
11, 2011 order in light of our decision today.
AFFIRMED IN PART,
VACATED IN PART,
REVERSED IN PART,
AND REMANDED
42