Minnesota Supply Co. v. Raymond Corp.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

Nos. 04-1416/1850/2168/2169
___________

Minnesota Supply Company, *
a Minnesota Corporation, *
*
Plaintiff-Appellee/ *
Cross-Appellant, * Appeal from the United States
* District Court for the
v. * District of Minnesota.
*
The Raymond Corporation, a *
New York Corporation, *
*
Defendant-Appellant/ *
Cross-Appellee. *
___________

Submitted: February 14, 2005
Filed: December 28, 2006
___________

Before ARNOLD, BOWMAN, and GRUENDER, Circuit Judges.
___________

BOWMAN, Circuit Judge.

In this diversity action, a jury returned a verdict in favor of Minnesota Supply
Company (MN Supply) against The Raymond Corporation (Raymond) on three
claims arising under the Minnesota Heavy and Utility Equipment Manufacturers and
Dealers Act (HUEMDA), Minn. Stat. §§ 325E.068–325E.0684, and awarded MN
Supply over $14 million in damages. The District Court entered judgment for MN
Supply but reduced the damages award. The court then awarded MN Supply attorney
fees and actual costs, but in an amount less than that requested by MN Supply.
Raymond appeals, raising several allegations of error. MN Supply cross-appeals the
reduction of damages and the amount of costs awarded. We affirm in part, reverse in
part, and remand the case to the District Court for a new calculation of attorney fees
and costs to be awarded MN Supply.

I.

Raymond and MN Supply entered into a dealership agreement in 1947 whereby
MN Supply would act as a dealership for lift trucks, i.e., forklifts, manufactured by
Raymond. MN Supply was located in Eden Prairie, Minnesota, and its territory under
the dealership agreement included Minnesota, North Dakota, South Dakota, and the
western counties of Wisconsin. MN Supply sold only lift trucks manufactured by
Raymond until 1989, when MN Supply also began selling lift trucks manufactured by
Caterpillar. These Caterpillar lift trucks were designed and classified differently from
the Raymond lift trucks and because of market conditions and customer preferences,
generally did not compete with the Raymond lift trucks.

Also in 1989, the Minnesota legislature passed HUEMDA. HUEMDA
specified that a heavy-equipment manufacturer must have good cause to terminate,
cancel, or fail to renew a dealership agreement or to change the competitive
circumstances of the agreement. The statute gave examples of what would constitute
such good cause and specified certain actions that would amount to violations of
HUEMDA. In particular, HUEMDA made it a violation for a manufacturer to "coerce
an equipment dealer into a refusal to purchase the equipment manufactured by another
equipment manufacturer." Id. § 325E.0682(b)(2). HUEMDA also gave equipment
dealers the right to seek damages from or an injunction against manufacturers for any
violation of the statute. Id. § 325E.0684.

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 In 1990, MN Supply and Raymond updated their dealership agreement. One
provision (Paragraph 18) of the updated agreement gave Raymond the right to
terminate the agreement if MN Supply sold lift trucks that competed directly with
Raymond lift trucks without first obtaining Raymond's written consent. Again, the
Caterpillar trucks sold by MN Supply at the time were considered noncompeting
because of their different design and target customer. In 1992, however, Raymond
began producing narrow-aisle lift trucks for Caterpillar that did compete directly with
the Raymond brand of lift trucks.1 MN Supply elected to sell the new Caterpillar
narrow-aisle lift trucks even though Raymond asserted that doing so would run afoul
of Paragraph 18.

Raymond was concerned about MN Supply's diversion of time and attention
from representing Raymond lift trucks, and Raymond wanted to ensure that MN
Supply would maintain Raymond's market share in MN Supply's territory. For this
reason, Raymond negotiated changes to the dealership agreement before giving MN
Supply consent to sell the competing Caterpillar lift trucks. The primary factor
driving these negotiations was the threat that Raymond would terminate the dealership
agreement pursuant to Paragraph 18 if MN Supply did not agree to amend the terms.
By 1993, the parties had negotiated an amendment (the 1993 Amendment) under
which MN Supply agreed to create a separate and independent division for the sale of
Caterpillar narrow-aisle lift trucks. The 1993 Amendment also required MN Supply
to maintain the market share for Raymond lift trucks that MN Supply had achieved
in 1992, and it gave Raymond the right to terminate the dealership agreement if these

1
The Caterpillar lift trucks were manufactured by Raymond but were marketed
and sold under the Caterpillar brand by Mitsubishi Caterpillar Forklift America. The
District Court ruled that Raymond should not be considered the manufacturer of the
Caterpillar trucks for purposes of MN Supply's claims. See Trial Tr. at 1705; Mem.
Op. & Order of Sept. 26, 2003, at 13 n.7. Neither party has challenged this ruling on
appeal.

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conditions were not met. After the parties executed the 1993 Amendment, MN
Supply began selling the competing line of Caterpillar lift trucks.

By 1995, Raymond's market share in MN Supply's territory had diminished
substantially. Raymond expressed its concern to MN Supply, and MN Supply asked
for a year's time to improve. In addition, MN Supply submitted to Raymond a
business plan and performance objectives but nevertheless failed to reach the required
performance levels over the next year. Raymond served notice to MN Supply on
December 31, 1996, that it wished to terminate the dealership agreement, and
Raymond denied MN Supply's request to provide a further extension to the agreement.
The parties then began the process of terminating their fifty-year relationship.

The 1990 dealership agreement provided that as part of the termination process,
Raymond would repurchase certain parts and inventory from MN Supply. The parties
met in April 1997 to discuss this repurchase and other transitional issues. After the
meeting, Raymond sent MN Supply a document entitled Termination by Mutual
Consent (TMC) to spell out some of the termination issues. This document included
a release of any claims by MN Supply against Raymond. The parties had several
conversations regarding the TMC, and during the process of negotiating, Raymond
informed MN Supply that Raymond would not move forward with the parts
repurchase unless the TMC was finalized.

Further negotiations ensued, and MN Supply returned to Raymond a modified
draft of the TMC it had received from Raymond. The modified draft included a
release of any claims by Raymond against MN Supply similar to the release MN
Supply had been asked to sign. MN Supply's modified draft of the TMC also declared
Minnesota law as controlling the agreement, which was contrary to Raymond's
original draft declaring New York law as controlling. MN Supply's president had
signed the modified draft of the TMC before sending it to Raymond, but MN Supply
never received a signed copy of the modified draft back from Raymond. In fact, MN

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Supply heard nothing more about the TMC until after the termination. Raymond
claims its vice president of sales received the modified draft, signed it, and placed it
in Raymond's file without sending a signed copy back to MN Supply. In any event,
the parties moved forward with the inventory and parts repurchase, and they
eventually terminated their relationship. Raymond immediately awarded MN
Supply's former territory to a newly formed dealership that was a subsidiary of
Raymond.

In 1999, MN Supply brought this diversity action in federal court, claiming
three violations of HUEMDA. MN Supply first claimed that Raymond had
unlawfully coerced MN Supply into agreeing to the 1993 Amendment by threatening
to terminate the dealership agreement if MN Supply sold the Caterpillar narrow-aisle
lift trucks. MN Supply next claimed that the 1993 Amendment constituted a change
in competitive circumstances imposed by Raymond without good cause. Finally, MN
Supply claimed that Raymond's termination of the dealership agreement in 1997 was
without good cause because it was based on MN Supply's failure to meet unreasonable
terms set forth in the 1993 Amendment. Each party moved for summary judgment,
with Raymond arguing, inter alia, that the suit was barred by the release of claims
contained in the TMC and with MN Supply countering that the TMC was never
formed. The court granted MN Supply's motion in part, finding that because
Raymond never sent a signed copy of the TMC back to MN Supply, the release of
claims contained in the TMC was not enforceable. The court denied Raymond's
motion for summary judgment and the remainder of MN Supply's motion, and the
parties prepared for a jury trial.

Prior to trial, the District Court held a jury-instruction conference at which
Raymond sought to have the jury instructed that the TMC's release provision was an
affirmative defense to MN Supply's claims, notwithstanding the partial grant of
summary judgment in favor of MN Supply on the issue. MN Supply filed a motion
in limine arguing that any evidence of the TMC should be suppressed pursuant to the

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District Court's summary judgment order. In response to MN Supply's motion in
limine, Raymond brought forward alleged new evidence that it had indemnified MN
Supply in a product-liability suit in 1997 and that this indemnification was pursuant
to the terms of the TMC. This evidence, Raymond claimed, indicated that the TMC
had indeed been formed. The District Court agreed with MN Supply, ruling that the
evidence of indemnification should have been produced at the summary judgment
stage and that no evidence of the TMC could be produced to the jury.

At trial, as evidence of damages, MN Supply produced an expert who testified
that MN Supply had lost more than $14 million as a result of the 1997 termination of
the dealership agreement. In reaching the amount of lost profits occurring before and
after trial, the expert had present-valued certain portions of the actual losses claimed.
Raymond objected, arguing that MN Supply's expert had included prejudgment
interest in his estimate of damages, which by statute was to be calculated by the court,
not the jury. See Minn. Stat. § 549.09. The District Court allowed the expert's
testimony and proposed to resolve the issue of prejudgment interest after the verdict.

After MN Supply finished presenting its case, Raymond moved for judgment
as a matter of law (JAML) pursuant to Rule 50(a) of the Federal Rules of Civil
Procedure. The District Court denied Raymond's motion for JAML, stating that there
were issues to be decided by the jury. Raymond failed to renew its motion for JAML
at the close of all evidence, and the District Court submitted MN Supply's claims to
the jury. The jury returned verdicts in favor of MN Supply on all of its claims and
awarded damages in the exact amount to which MN Supply's expert had testified.

After the verdicts were returned, Raymond again moved for JAML on all of
MN Supply's claims or, in the alternative, for a new trial. MN Supply countered that
Raymond had waived the opportunity to argue for JAML by not renewing its motion
at the close of all evidence. The District Court disagreed with MN Supply on the
waiver issue and went on to deny most of Raymond's motion for JAML on the merits.

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The District Court partially granted Raymond's motion by ruling that the damages
award, based as it was on the testimony of MN Supply's expert, included prejudgment
interest, and the court reduced the award by almost $1.7 million. The District Court
denied Raymond's alternative motion for a new trial. MN Supply then moved to
amend the judgment by adding statutory prejudgment interest, and the District Court
granted MN Supply's motion. As the prevailing party, MN Supply moved for an
award of attorney fees and costs as provided in HUEMDA. The District Court granted
MN Supply's motion, but awarded MN Supply an amount less than what MN Supply
had requested—most significantly discounting the amount requested for MN Supply's
damages expert.

Raymond appeals the partial grant of summary judgment barring its defense
based on the release-of-claims provision in the TMC, appeals the denial of its motions
for JAML or a new trial, appeals the award of damages, and appeals the award of
certain attorney fees. MN Supply cross-appeals the reduction of the damages award
and the amount awarded in expert witness fees.

II.

A.

The first question Raymond has raised for our review is whether the District
Court erred in its partial grant of summary judgment to MN Supply by determining
that, as a matter of law, the TMC was never formed. We review a grant of summary
judgment de novo, viewing the evidence in the light most favorable to the non-moving
party. Cameo Homes v. Kraus-Anderson Constr. Co., 394 F.3d 1084, 1087 (8th Cir.
2005). We will affirm if there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law. Id. (citing Fed. R. Civ. P.
56(c)). Our review of the evidence includes only the record that was before the
District Court when it ruled on the summary judgment motion. Id. at 1088 n.2 (citing

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Amerinet, Inc. v. Xerox Corp., 972 F.2d 1483, 1489–90 (8th Cir. 1992), cert. denied,
506 U.S. 1080 (1993)).

Under Minnesota law, the existence of a contract is a question of fact ordinarily
decided by the jury. Herron v. Green Tree Acceptance, Inc., 411 N.W.2d 192, 195
(Minn. Ct. App. 1987). Delivery of a written contract is usually an essential element
of execution because it provides "an overt, objective manifestation" of a party's intent
to enter the contract. Nodland v. Chirpich, 240 N.W.2d 513, 517 (Minn. 1976). But
"where one to whom an offer is made goes ahead and performs in accordance with the
offer," that performance constitutes acceptance of the offer. Johnson v. M.J. O'Neil,
Inc., 234 N.W. 16, 17 (Minn. 1931). If reasonable minds could differ as to whether
Raymond performed the terms of the TMC, and thereby accepted the TMC as
modified by MN Supply, then summary judgment was improper.

It is undisputed that Raymond failed to send a signed copy of the modified
TMC back to MN Supply. Given that the TMC made no reference to the equipment
repurchase, Raymond argues, in effect, that Raymond made the execution of the TMC
a condition precedent to moving forward with the equipment repurchase. Because
Raymond repurchased the equipment, Raymond contends that this condition precedent
was satisfied. By extension, Raymond asks us to infer that by repurchasing the
equipment from MN Supply, Raymond communicated its acceptance of the TMC,
thus forming the agreement that would bar MN Supply's claims.

Even viewing the evidence in the light most favorable to Raymond, we cannot
draw the requested inference. MN Supply's modification of the TMC added a broadly
worded release of claims by Raymond that mirrored the release Raymond was seeking
from MN Supply. The modified draft also differed from Raymond's proposed draft
in its declaration as to which state's law would govern the agreement. Thus, the
modified draft MN Supply signed and sent to Raymond was a substantially different
document than the draft MN Supply had received from Raymond. Without any other

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expressed assent or performance of the agreement, we cannot infer a meeting of the
minds, given Raymond's silence and lack of further negotiation.

Nor can we infer that the equipment repurchase, which we reiterate was not
required by the TMC, communicated an acceptance of that agreement. Raymond,
when faced with a new draft of the TMC releasing all claims against MN Supply, may
have abandoned its own desire for a release of claims, instead deciding to move
forward with the equipment repurchase as planned. Further, MN Supply produced
evidence that the equipment repurchase was already required by the dealership
agreement, which would have prevented Raymond from making the TMC a condition
precedent to the repurchase. In any event, we simply cannot make the inference of
acceptance Raymond requests without some evidence that Raymond performed under
the TMC as modified by MN Supply. Such evidence was missing from the record
before the District Court when it granted MN Supply's motion. We therefore affirm
the District Court's partial grant of summary judgment to MN Supply.

B.

We next must decide whether the District Court erred by refusing to reconsider
its partial grant of summary judgment to MN Supply when faced with Raymond's
alleged newly discovered evidence. A threshold question is whether the District
Court's "refusal" is properly before this Court on review. It is undisputed that
Raymond failed to file a motion for relief from the District Court's partial summary
judgment order. See Fed. R. Civ. P. 60(b). Instead, it appears Raymond first argued
for effective reconsideration in its request for jury instructions and then again in
opposition to MN Supply's motion in limine, which sought to limit any reference to
the TMC in accordance with the summary judgment order. Raymond again argued
for effective reconsideration in its post-verdict motion for JAML. Because the District
Court considered Raymond's alleged new evidence in the context of its rulings on
these other motions, we will, out of an abundance of caution, treat the District Court's

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rulings as reconsideration of its partial summary judgment order pursuant to Rule
60(b)(2) (newly discovered evidence).2

We review for abuse of discretion the denial of a Rule 60(b) motion for relief
from a summary judgment order. Broadway v. Norris, 193 F.3d 987, 989 (8th Cir.
1999). Such a motion is to be granted only in exceptional circumstances requiring
extraordinary relief. Callanan v. Runyun, 75 F.3d 1293, 1296–97 (8th Cir. 1996). To
be granted relief based on newly discovered evidence, the moving party must show
that: 1) the evidence was only discovered after the summary judgment hearing, 2) the
moving party exercised due diligence before the hearing, 3) the evidence is material
and not merely cumulative or impeaching, and 4) consideration of the new evidence
would likely produce a different result. Id. at 1297 (citation to quoted case omitted).

Raymond realized during depositions taken after the summary judgment order
that it had defended and indemnified MN Supply against a product-liability claim in
1997. According to Raymond, this was new evidence that Raymond had performed
the TMC, which, if formed, would have required the defense and indemnification that
Raymond provided. The District Court twice denied effective reconsideration of its
order based on this evidence, finding that Raymond should have been aware of the
defense and indemnification at the summary judgment stage. In so ruling, the District
Court did not abuse its discretion.

We have no doubt that the TMC, if formed, would have precluded MN Supply
from bringing any of its claims against Raymond. Raymond, however, was aware of
the provisions of the TMC and, when faced with a summary judgment motion
challenging the agreement's formation, could have scoured its records for evidence of
having performed the terms of the agreement. Had Raymond done so, it likely would

2
We express no opinion about whether a party who failed to file a motion for
relief from a summary judgment order under Rule 60(b) is precluded from petitioning
for reconsideration of the order in the context of a different motion.

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have discovered (or recalled) that it had defended and indemnified MN Supply only
a few years earlier. More importantly, Raymond has offered no reason why this
evidence could not have been discovered with due diligence before the summary
judgment hearing. That Raymond failed to exercise due diligence does not make the
evidence new, nor does its failure justify extraordinary relief from judgment under
Rule 60(b). Insofar as the District Court denied Raymond's motion for relief from the
partial summary judgment order, we affirm.

III.

Raymond next claims that the District Court erred by allocating to Raymond the
burden of showing that it had good cause to terminate the dealership agreement. See
Minn. Stat. § 325E.0681 subd. 1 (requiring good cause for an equipment manufacturer
to terminate a dealership agreement). After de novo review, we sustain the District
Court's reading of state law on this point. See Eichenwald v. Small, 321 F.3d 733,
736 (8th Cir. 2003) (standard of review). In interpreting state law, "we are bound by
the decisions of the state's highest court." Id. "When a state's highest court has not
decided an issue, it is up to this court to predict how the state's highest court would
resolve that issue." Continental Cas. Co. v. Advance Terrazzo & Tile Co., 462 F.3d
1002, 1007 (8th Cir. 2006). Decisions of intermediate state appellate courts are
persuasive authority that we follow when they are the best evidence of what state law
is. Id.

To our knowledge, the question of who has the burden of proof under
HUEMDA has not been litigated in the Supreme Court of Minnesota. The Minnesota
Court of Appeals, however, squarely placed the burden of showing good cause on the
equipment manufacturer in River Valley Truck Ctr., Inc. v. Interstate Cos., 680
N.W.2d 99, 104 (Minn. Ct. App. 2004) ("The equipment manufacturer has the burden
of proving the existence of good cause to not renew a dealership agreement."). On
appeal, the Minnesota Supreme Court affirmed this opinion and while it is unclear

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whether allocation of the burden of proof was at issue on appeal, stated that
HUEMDA "requires an 'equipment manufacturer' . . . to demonstrate 'good cause.'"
River Valley Truck Ctr., Inc. v. Interstate Cos., 704 N.W.2d 154, 158 (Minn. 2005)
(quoting Minn. Stat. § 325E.0681 subd. 1). In view of this statement by the Supreme
Court of Minnesota, we cannot say that the District Court erred when it allocated the
burden of proof to Raymond.

IV.

Raymond further claims that the District Court erred by denying its post-verdict
motion for JAML under Rule 50(b). In response, MN Supply argues that having only
moved for JAML at the close of plaintiff's evidence and failing to renew its motion
at the close of all evidence, Raymond waived the right to argue for JAML. See Fed.
R. Civ. P. 50(b). MN Supply made this argument to the District Court but the court
disagreed, ruling that Raymond fell within the exception to the renewal requirement
applied in BE & K Constr. Co. v. United Bhd. of Carpenters, 90 F.3d 1318 (8th Cir.
1996). The standard of review to be applied to the District Court's decision is not
evident from our prior cases, but given that the decision involved an exercise of the
District Court's discretion, we review for abuse of that discretion.

Ordinarily, a party who fails to renew a Rule 50(a) motion at the close of all
evidence may not argue for JAML after a jury verdict has been rendered. See Mathieu
v. Gopher News Co., 273 F.3d 769, 776 (8th Cir. 2001). "The language and
traditional application" of Rule 50(b) are both clear and clearly established in this
Circuit. Id. at 777. The exception applied in BE & K, however, allows a party to
argue there was insufficient evidence to support the verdict if the party made its Rule
50(a) motion shortly before the close of all evidence and the court indicated in some
way that the motion need not be renewed at the close of all the evidence to preserve
the party's right to challenge the verdict. BE & K, 90 F.3d at 1325; Douglas County
Bank & Trust Co. v. United Fin. Inc., 207 F.3d 473, 477 (8th Cir. 2000). The District

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Court ruled that both of these elements were satisfied as to Raymond's post-verdict
motion for JAML. Although the question is a close call, we cannot say that the
District Court abused its discretion in holding that Raymond qualified for the BE & K
exception.

For scheduling reasons, the District Court deferred argument and ruling on
Raymond's Rule 50(a) motion—made at the close of MN Supply's evidence—until
later in the trial, after the majority of Raymond's live witnesses had been presented.
Although the District Court flatly denied Raymond's Rule 50(a) motion without taking
"any portion of the motion under advisement," Mem. Op. & Order of Sept. 26, 2003,
at 5, the court ruled that its failure to take the motion under advisement was "not
significant" given its "unequivocal statement that [MN Supply] had presented issues
that had to be determined by a jury," id. at 6. The District Court was in the best
position to interpret the proceedings and its own statement as indicating that Raymond
need not renew its Rule 50(a) motion at the close of all evidence.

Further, during the one-day period between the hearing of Raymond's motion
and the close of all evidence, Raymond presented only two more witnesses and MN
Supply did not present any rebuttal witnesses. While the parties dispute the quantity
and quality of evidence produced between the hearing of Raymond's motion and the
close of all evidence, the District Court heard these arguments and held that Raymond
qualified for the BE & K exception. The court then proceeded to address the merits
of Raymond's motion for JAML. Finding no reason to disturb the District Court's
decision regarding the exception, we turn to the merits of Raymond's motion for
JAML.

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 V.

The District Court's denial of Raymond's motion for JAML is a matter of law
that we review de novo, applying the same standards as the District Court. Douglas
County Bank, 207 F.3d at 477. We ask whether sufficient evidence supports the jury's
verdict, viewing the evidence in the light most favorable to the party who prevailed
at trial. Id. "We will uphold the jury's verdict unless we conclude a reasonable jury
could not have found for [MN Supply.]" Pittari v. Am. Eagle Airlines, Inc., 468 F.3d
1056, 1061 (8th Cir. 2006).

The jury determined that MN Supply prevailed on each of its three HUEMDA
claims. We address whether judgment as a matter of law should have been granted
on each claim in turn.

A.

MN Supply's first claim arises from HUEMDA § 325E.0682(b)(2), which
makes it illegal for a manufacturer to coerce a dealer into refusing to purchase
equipment manufactured by another manufacturer. MN Supply alleges that Raymond
coerced it into executing the 1993 Amendment by demanding that MN Supply not
carry the Caterpillar narrow-aisle line of lift trucks. Raymond's primary argument in
support of its motion for JAML is that this claim necessarily fails because the
evidence at trial established that MN Supply never refused to purchase Caterpillar
narrow-aisle lift trucks and HUEMDA does not prohibit attempted coercion that has
no result. Raymond also asserts that it did not attempt to keep MN Supply from
carrying the competing Caterpillar trucks, but simply exercised its right under
Paragraph 18 of the dealership agreement and put legitimate pressure on MN Supply
to remain focused on selling Raymond trucks. We agree with MN Supply that
Raymond threatened to terminate the dealership agreement before negotiating the
1993 Amendment. See Letter from Dinn to Koch of Apr. 22, 1993 (invoking

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Raymond's right to terminate the dealership agreement pursuant to Paragraph 18
unless MN Supply agreed to new conditions); Letter from Dinn to Koch of Oct. 27,
1993 (same). The question, however, is whether this threat was coercion within the
ambit of HUEMDA.

Prior to trial, Raymond argued that the jury would need guidance as to whether,
in order to constitute a violation of the statute, the result of the coercion must be a
refusal to purchase the equipment of another manufacturer. The District Court chose
to instruct the jury that coercion is "conduct that constitutes the improper use of
economic power to compel another to submit to the wishes of one who wields it."
Trial Tr. at 1908. The court then instructed the jury that in order for MN Supply to
prevail, the jury had to find, inter alia, that Raymond "sought to coerce" MN Supply
into refusing to carry the competing Caterpillar line. Id. It was thus left to the jury
to decide whether Raymond's threat to terminate the dealership agreement under
Paragraph 18 equated with coercion of MN Supply to refuse to purchase another
manufacturer's equipment. In ruling on Raymond's post-verdict motion for JAML, the
District Court interpreted HUEMDA to prohibit attempted coercion by a manufacturer
as well as actual coercion. The court then held that Raymond "coerced [MN Supply],
in violation of the statute, when [Raymond] attempted to force [MN Supply] into a
refusal to carry the CAT line." Mem. Op. & Order of Sept. 26, 2003, at 15–16. Thus,
only after interpreting the statute as encompassing attempted coercion did the court
hold that the evidence was sufficient to support the jury's verdict of a HUEMDA
violation.

Because our review of Raymond's motion for JAML requires a review of the
District Court's post-verdict interpretation of HUEMDA, our review exceeds the scope
of a typical Rule 50 review of the sufficiency of the evidence. See Fed. R. Civ. P.
50(a)(1). We believe that our review of the District Court's post-verdict interpretation
of HUEMDA is proper because it was necessary for the District Court to interpret
HUEMDA in ruling on Raymond's motion for JAML, and the court's

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interpretation—that HUEMDA prohibited attempted coercion—was a decisive factor
in its denial of Raymond's motion. See Mem. Op. & Order of Sept. 26, 2003, at 12-
16. Raymond argues that the District Court's post-verdict interpretation of HUEMDA
as including attempted coercion is erroneous and that under a correct
interpretation—which would require a showing that a dealer refused to purchase a
competitive product—the evidence is insufficient to support a finding of coercion.
MN Supply counters that the evidence supports the verdict given the District Court's
jury instructions and post-verdict interpretation of HUEMDA.

Statutory interpretation is a question of law that we review de novo. Metro
Motors v. Nissan Motor Corp., 339 F.3d 746, 749 (8th Cir. 2003). Under HUEMDA
§ 325E.0682(b)(2), an equipment manufacturer may not "coerce an equipment dealer
into a refusal to purchase the equipment manufactured by another equipment
manufacturer." No variation of the words "attempt" or "seek to" are used in
connection with HUEMDA's prohibition on coercion. In contrast, other subdivisions
of § 325E.0682(b) do reference "attempt." See Minn. Stat. § 325E.0682(b)(1)
(making it a violation of HUEMDA to "condition or attempt to condition" the sale of
equipment on the purchase of other goods (emphasis added)), (b)(4) (making it a
violation of HUEMDA to "attempt or threaten to terminate" the dealership agreement
if the attempt or threat is based on certain circumstances beyond the dealer's control)
(emphasis added)).

We are satisfied that HUEMDA does not prohibit a manufacturer's efforts to
persuade a dealer not to purchase equipment from a rival manufacturer. In reaching
this conclusion, we are not swayed by MN Supply's efforts to analogize HUEMDA
with the Minnesota Motor Vehicle Sale and Distribution Act (MVSDA), see id.
§§ 80E.01–80E.18, to equate Raymond's threat of termination with unlawful coercion.
The statutes contain materially different language, and the attempt to analogize the
two statutes overlooks those differences. MVSDA specifically prohibits a
manufacturer from "threatening to cancel a franchise or any contractual agreement,"

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id. § 80E.12(e) (emphasis added), and from "us[ing] any written instrument . . . to
attempt to nullify or modify any provision" in the Act, id. § 80E.135 (emphasis
added), including the provision that prohibits a manufacturer from terminating a
dealer solely for breaching an exclusivity agreement, see id. § 80E.07 subd. 1(c). By
contrast, the HUEMDA coercion provision does not use the word "attempt," nor does
it mention termination, either threatened or actual. We conclude that to be prohibited
by HUEMDA § 325E.0682(b)(2), a manufacturer's action must be coercive and its
result must be a dealer's refusal to purchase another manufacturer's equipment. The
District Court erred in ruling otherwise.

There is no evidence that MN Supply refused to purchase another
manufacturer's equipment. Having discovered that MN Supply planned to sell the
competing Caterpillar line, Raymond sought to "ensure the continued competitive
presence of Raymond products in the markets [served by MN Supply]." Letter from
Colquhoun to Koch of Aug. 6, 1992, at 1 (internal quotes and capitalization omitted).
Raymond also sought to ensure that MN Supply did not "divert time and attention
from the agressive representation of [Raymond's] products in the marketplace." Id.
Accordingly, Raymond gave MN Supply the option of either terminating the
dealership agreement or changing MN Supply's obligations under the agreement. By
negotiating the 1993 Amendment, Raymond consented to MN Supply's purchasing
of the competing Caterpillar narrow-aisle lift trucks, consistent with Paragraph 18 of
the dealership agreement. There is no evidence that MN Supply was coerced into
accepting Paragraph 18, nor that MN Supply ever challenged the legality of Paragraph
18 while enjoying the benefits of the agreement. We hold that Raymond's threatened
exercise of its right under Paragraph 18 to terminate the dealership agreement did not
coerce MN Supply into refusing to purchase another manufacturer's equipment.

Implicit in this holding is our conclusion that Paragraph 18 was not voided by
HUEMDA. We do not believe that HUEMDA prohibits a manufacturer from
terminating a dealership agreement with a dealer who chooses to offer competing

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equipment where that termination was expressly provided for in the agreement.
HUEMDA specifies that a manufacturer may terminate a dealership agreement for
"good cause." Minn. Stat. § 325E.0681 subd. 1. The statute also contains a section
specifying HUEMDA violations. See id. § 325E.0682. Notably absent from
HUEMDA is any prohibition on terminating a dealership agreement based on the
violation of an exclusivity provision. If the Minnesota legislature had wanted to limit
the use of exclusivity provisions in the heavy and utility equipment industry, it could
have done so explicitly, as it has done in the automotive industry, id. § 80E.07 subd.
1(c). MVSDA, unlike HUEMDA, specifically prohibits the termination of a
dealership agreement based solely on a dealer's sale of another manufacturer's
vehicles, regardless of any contractual provisions to the contrary. See id.; see also
Metro Motors, 339 F.3d at 752 (ruling that MVSDA does not prohibit exclusivity
provisions in dealership agreements but does limit how manufacturers may enforce
those provisions). The fact that HUEMDA was enacted eight years after MVSDA
suggests that the Minnesota legislature was aware of MVSDA's language and chose
different language for HUEMDA. In the absence of such explicit language, we will
not read a prohibition against exclusivity provisions into HUEMDA.3

Because § 325E.0682(b)(2) only prohibits coercion that results in a dealer's
refusal to purchase equipment manufactured by another manufacturer and it is
undisputed that MN Supply did not refuse to purchase the Caterpillar lift trucks, we
reverse the denial of Raymond's motion for JAML on this claim.

3
MN Supply's interpretation of HUEMDA would effectively render exclusivity
provisions ineffectual because any provision allowing a manufacturer to terminate an
agreement once it became nonexclusive would be deemed coercive, void, and
unenforceable. Further, any attempt to bargain for an exclusivity provision or to sue
for its breach would not only be futile but could also be deemed coercive inasmuch
as it would seek to prevent the purchase of another manufacturer's equipment.

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 B.

MN Supply's second claim was that Raymond violated HUEMDA by
substantially changing the competitive circumstances of the dealership agreement
without good cause. See Minn. Stat. § 325E.0681 subd. 1. MN Supply alleged that
the 1993 Amendment imposed substantial and costly changes to the dealership
agreement that were not founded on good cause because Paragraph 18, the authority
relied upon by Raymond for implementing the amendment, was invalid. In support
of its motion for JAML, Raymond argues that the 1993 Amendment did not change
the competitive circumstances and, in any event, Paragraph 18 was valid and
permitted Raymond to impose conditions upon MN Supply when MN Supply chose
to sell a competing product. We conclude that while the evidence supports the jury's
finding that the 1993 Amendment imposed a change of competitive circumstances that
adversely affected MN Supply, see Astleford Equip. Co. v. Navistar Int'l Transp.
Corp., 632 N.W.2d 182, 191 (Minn. 2001) (defining change in competitive
circumstances), Raymond succeeded in proving that it had good cause to implement
the change, and JAML should have been granted on this basis.

HUEMDA defines "good cause" as the "failure by an equipment dealer to
substantially comply with essential and reasonable requirements imposed upon the
dealer by the dealership agreement, if the requirements are not different from those
requirements imposed on other similarly situated dealers by their terms." Minn. Stat.
§ 325E.0681 subd. 1. The exclusivity provision found in Paragraph 18 of the
dealership agreement was an essential and reasonable requirement imposed upon MN
Supply. Ordinarily, a manufacturer behaves reasonably in selling equipment only to
dealers who in return promise to focus exclusively on the manufacturer's products.
The exclusive dealership that results from such an agreement, in the absence of any
controlling legislation to the contrary, may reasonably be deemed essential by
manufacturers in their quest to maintain a profitable share of a competitive market.
As we determined above, HUEMDA did not invalidate Paragraph 18. Thus, when

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MN Supply sought to sell Caterpillar lift trucks that directly competed with Raymond
lift trucks, Raymond could lawfully have terminated the dealership agreement under
Paragraph 18 and proceeded with naming a new dealer in the territory. MN Supply
accepted the requirements of the 1993 Amendment as a cost of continuing to represent
Raymond's products while simultaneously representing Caterpillar's products. Given
our reading of HUEMDA, there was no evidence to support the jury's finding that
Raymond imposed a change in the competitive circumstances of the Dealership
agreement without good cause.4 Consequently, we reverse the denial of Raymond's
motion for JAML on this claim.5

4
Raymond further argues that the changed market-share standards imposed by
the 1993 Amendment could not have been used to support a finding that Raymond
violated § 325E.0681 subd. 1 because § 325E.0681 subd. 1(h) recognizes a
manufacturer's right to unilaterally impose reasonable market-penetration
requirements upon dealers. We reject this argument because, as we discuss in detail
infra, the market-penetration requirements imposed by the 1993 Amendment were not
reasonable. Nonetheless, because § 325E.0681 subd. 1 does not state that the changed
competitive circumstances must be reasonable, but only requires that the provision of
the dealership agreement that the manufacturer is enforcing (here, Paragraph 18) be
reasonable, Raymond should have succeeded on its motion as it relates to this claim.
5
In its brief, MN Supply states that Raymond created the overall "conflict" by
manufacturing the new line of competitive equipment under the Caterpillar label. Br.
of MN Supply at 11. In so doing, MN Supply implies that this alleged conflict created
by Raymond changed the competitive circumstances of the dealership agreement. To
the extent that MN Supply advances this argument, we find it without merit. As
previously noted, supra note 1, the District Court rejected the claim that Raymond
should be considered the manufacturer of Caterpillar lift trucks for purposes of this
litigation, and that decision has not been appealed.

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 C.

MN Supply's third claim was that Raymond terminated the dealership
agreement in 1997 without good cause in violation of HUEMDA § 325E.0681
subd. 1. MN Supply asserted that Raymond terminated the agreement due to MN
Supply's failure to meet requirements imposed in the 1993 Amendment, which
requirements were unreasonable and different than those imposed upon similarly
situated dealers. We conclude that the evidence supports the jury's verdict for MN
Supply on this claim.

HUEMDA states that "[n]o equipment manufacturer . . . may terminate . . . a
dealership agreement without good cause." Minn. Stat. § 325E.0681 subd. 1. As
discussed above, "good cause" is defined as the "failure by an equipment dealer to
substantially comply with essential and reasonable requirements imposed upon the
dealer by the dealership agreement, if the requirements are not different from those
requirements imposed on other similarly situated dealers by their terms." Id.
(emphasis added). In addition, good cause exists when the "dealer, after receiving
notice from the manufacturer of its requirements for reasonable market penetration
based on the manufacturer's experience in comparable market areas, consistently fails
to meet the manufacturer's market penetration requirements." Id. subd. 1(h) (emphasis
added).6 Raymond argues that because it had a right to negotiate the 1993
Amendment when MN Supply began selling the competing Caterpillar line, it
necessarily had good cause to terminate the dealership agreement when MN Supply
"consistently fail[ed] to meet th[e] market penetration requirements" imposed in the

6
Although the statute provides other means for a manufacturer to establish good
cause, none are relevant here.

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amendment. Br. of Raymond at 48.7 We believe that Raymond's argument reflects
an incorrect understanding of HUEMDA on two levels. First, under the "good cause"
analysis, whether a manufacturer has a right to impose—and a dealer has agreed
to—the requirements in the dealership agreement is not a consideration. Second, a
dealer's failure to meet the requirements in a dealership agreement does not by itself
give a manufacturer good cause to terminate. Rather, the manufacturer must also
prove that the requirements with which the dealer is not complying are reasonable
(and if proceeding under the introductory language to subdivision 1, "essential" and
"not different from those requirements imposed on other similarly situated dealers").
Minn. Stat. § 325E.0681 subd. 1.

The jury determined that Raymond terminated the dealership agreement without
good cause. Because there is evidence in the record that the requirements imposed in
the 1993 Amendment were not reasonable, we cannot say that a reasonable jury could
not have found in favor of MN Supply.8 Under the 1993 Amendment, MN Supply
was required to "improve, or at least maintain, its Raymond market share" for three
classes of trucks. Letter from Dinn to Koch of Oct. 27, 1993, at 1. At trial, Robert

7
Raymond did not directly challenge—either before the District Court or on
appeal—the verdict in favor of MN Supply on MN Supply's wrongful termination
claim. Rather, Raymond's position appears to be that if the 1993 Amendment was
validly entered, then Raymond had good cause to terminate MN Supply when MN
Supply did not meet the requirements imposed therein. Without deciding whether
Raymond waived the right to challenge the denial of JAML on this third claim, we
address Raymond's argument.
8
There is also ample evidence to support the jury's finding that Raymond
terminated the dealership agreement without the consent of MN Supply. See Letter
from Bennett to Stromsness and Koch of Dec. 31, 1996 ("In view of the Dealership
performance and your Management's inability to stop the trend towards lower market
share, The Raymond Corporation will exercise it's [sic] right to terminate the Dealer
Sales Agreement in accordance with its provisions."); Letter from Bennett to Koch of
Jan. 16, 1997 ("Raymond will terminate our agreement effective April 30, 1997.").

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Koch, the President of MN Supply from 1990 to 1997, testified extensively about the
"unrealistic" nature of these market-share requirements. Trial Tr. at 303. According
to Koch, the requirements were unreasonable because "although [MN Supply] had
achieved this level of performance in the past, the likelihood of being able to continue
at that level was not very good because of some significant changes in our
marketplace." Id. at 295. Koch explained that in early 1993, Supervalu, a customer
historically comprising ten to twenty-five percent of MN Supply's sales, became a
national account, thereby placing orders (if any) directly with Raymond rather than
going through the MN Supply dealership. Around the same time period, Target
Corporation, which purchased lift trucks from Raymond competitor Crown, began
aggressively expanding and became the single-largest purchaser of narrow-aisle lift
trucks in MN Supply's territory, thereby negatively impacting MN Supply's market
share. MN Supply expressed concern to Raymond that even if MN Supply increased
its lift truck sales, its market share would shrink in the face of the large Crown orders
projected for Target Corporation. Koch testified that given the changes with
Supervalu and Target Corporation, "there was virtually no way we were going to
achieve [the market-share] goals." Id. at 312; see also Letter from Koch to Dinn of
June 1, 1993 (expressing concern over the market-share benchmark for lift trucks set
in the 1993 Amendment because of the potential effect of Target Corporation's and
Supervalu's plans). Despite MN Supply's concerns about the market-share
requirements, Koch testified that he signed the 1993 Amendment because the MN
Supply board of directors "felt that we were under the gun. We really didn't have any
options." Trial Tr. at 321.

MN Supply's concerns were justified. Koch testified that MN Supply could not
achieve the market-share benchmarks because "[t]he market was in a very dynamic
state." Id. at 362. Despite selling 50% more trucks in 1994 than in 1992, for example,
MN Supply's market share dropped. Id. MN Supply presented evidence that
Raymond refused its requests to have purchases by the Target Corporation excluded
from the analysis of MN Supply's market share in order to arrive at a more realistic

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performance benchmark, even though Raymond excluded the purchases by other large
retailers (such as Wal-Mart and Home Depot) from the market-share calculations of
other dealers. Although it could not meet the market-share benchmarks in the
amendment, MN Supply received the "Dealer of Merit" award for being "one of
Raymond's better dealers" in three of the four years that the amendment was in
place—from which the jury could have inferred that the market-share benchmarks
were unreasonably high. Id. at 334.

In addition to setting market-share benchmarks, the 1993 Amendment required
MN Supply to "improve, or at least maintain, its dollar volume of parts per truck of
population" sales. Letter from Dinn to Koch of Oct. 27, 1993, at 1. Koch told the jury
that this parts-purchase requirement created "unachievable goals" because the
benchmark was based on inaccurate reports that overestimated the number of
Raymond trucks in use in MN Supply's territory. Trial Tr. at 304. This is further
evidence from which the jury could have found the conditions in the 1993
Amendment unreasonable.

After hearing all of Koch's testimony, a reasonable jury could have found the
performance requirements in the 1993 Amendment unreasonable and more stringent
than those imposed on similarly situated dealers. As such, MN Supply's failure to
comply with the requirements would have been insufficient under HUEMDA to give
Raymond good cause to terminate. The District Court properly upheld the jury's
verdict on this claim.

VI.

Because we have affirmed the District Court's entry of judgment on MN
Supply's wrongful termination claim, we must address the parties' arguments relating

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to the award of damages, attorney fees, and actual costs. HUEMDA permits the
successful dealer-plaintiff to collect "damages sustained by the dealer as a
consequence of the manufacturer's violation, together with the actual costs of the
action, including reasonable attorney's fees." Minn. Stat. § 325E.0684. Both parties
challenge aspects of the District Court's award of damages, fees, and costs. For the
reasons discussed below, we affirm the damages award, vacate the award of fees and
costs, and remand the case for a new calculation of fees and costs that considers the
outcome of this appeal.

A.

Both parties present challenges to the damages award. At trial, MN Supply
introduced the testimony of Frederic Lieber, a damages expert who calculated MN
Supply's total damages from the termination of the dealership agreement at
$14,076,784.9 In arriving at this total damages figure, Lieber calculated the profits
lost by MN Supply prior to trial at $4,196,271 and then present-valued that amount
to $5,886,819. Before the case was submitted to the jury, Raymond argued that the
difference between the two amounts—approximately $1.7 million—was prejudgment
interest that, by state statute, may only be calculated by the court. See Minn. Stat.
§ 549.09. MN Supply countered that the amount was not prejudgment interest but,
rather, was simply a component of the present-valuation of lost income. The District
Court decided that it would allow Lieber's calculations to go to the jury and, if
necessary, resolve the issue post-verdict. The jury returned a verdict for MN Supply

9
Raymond concedes that the damage amount calculated by Lieber was based
on damages caused by the termination of the dealership agreement and not by any
other violation of HUEMDA. Accordingly, our decision reversing the District Court's
denial of Raymond's motion for JAML on MN Supply's first claim (coercion) and
second claim (change of competitive circumstances) does not in itself invalidate the
award of damages.

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in the exact amount calculated by Lieber. Thereafter, the District Court determined
that the disputed $1.7 million was "best characterized as 'prejudgment interest'" and
reduced the jury award by that amount. Mem. Op. & Order of Sept. 26, 2003, at 19,
20. The District Court then performed its own calculation of prejudgment interest
pursuant to Minn. Stat. § 549.09 and arrived at an amount of $346,531.61, which it
added to the damages award. Mem. Op. & Order of January 7, 2004, at 4.

On appeal, Raymond argues that the District Court erred in allowing Lieber's
damages calculation including prejudgment interest to go to the jury. Raymond
asserts that Lieber's entire opinion and report should have been stricken and a directed
verdict entered for Raymond on all claims.10 MN Supply cross-appeals, arguing that
the District Court erred in deeming the $1.7 million prejudgment interest and in
decreasing the jury's award of damages.

Whether the District Court properly characterized the $1.7 million as
prejudgment interest rather than as part of the present-valuing calculation is a matter
of Minnesota law that we review de novo. See Conwed Corp. v. Union Carbide
Corp., 443 F.3d 1032, 1039 (8th Cir. 2006) (standard of review), citing Salve Regina
Coll. v. Russell, 499 U.S. 225, 231 (1991). As recognized by the District Court, no
Minnesota case discusses the interplay between Minnesota's prejudgment-interest
statute and the present-valuing of future or past damages from lost profits. Our Court
has recognized, however, that in Minnesota, prejudgment interest "is designed to
compensate the plaintiff for the loss of the use of the money owed." Simeone v. First
Bank Nat'l Assoc., 73 F.3d 184, 191 (8th Cir. 1996). Lieber testified that he arrived
at the $1.7 million figure by calculating the amount that MN Supply would have
earned had it invested the profits it lost from 1997 to 2002 at an eighteen percent rate

10
MN Supply submitted no other evidence of damage.

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of return.11 Trial Tr. at 809–10. It appears to us that this figure therefore represents
"prejudgment interest" under Minnesota law. See ZumBerge v. N. States Power Co.,
481 N.W.2d 103, 110 (Minn. Ct. App. 1992) (interpreting expert's "calculation of the
time value of the losses, i.e., what the ZumBerges would have accrued in interest if
they would have put the loss amount in the bank each year earning 10% interest" as
"prejudgment interest" such that expert's calculation should not have been considered
by the jury); Security Prot. Servs., Ltd. v. Evenson, Nos. C4-92-556, C8-92-561, C6-
92-1336, 1993 WL 14338, *3 (Minn. Ct. App. Jan. 26, 1993) (holding that expert's
calculation of "amount which [plaintiff] would have earned had it invested all of the
money that it sought as damages" was evidence of prejudgment interest that should
not have been considered by the jury). We conclude that the District Court correctly
determined that Lieber's analysis improperly included prejudgment interest which
could only be calculated by the court. The District Court properly re-calculated the
prejudgment interest in accordance with Minnesota law and entered judgment for the
reduced sum.12 Thus, MN Supply's cross-appeal fails.

We do not agree with Raymond, however, that JAML must be granted in its
favor because the jury was allowed to consider Lieber's opinion including
prejudgment interest. When evidence of prejudgment interest is erroneously admitted
at trial, an appellant is not entitled to a new trial unless it proves that it was prejudiced
by the error. See ZumBerge, 481 N.W.2d at 110. Because the District Court reduced
the damages award by the $1.7 million improperly included in Lieber's calculation

11
Lieber's report indicates that the eighteen percent rate of return reflected
Lieber's determination of MN Supply's cost of capital for equity and borrowed debt.
12
Because the jury returned a verdict in the precise amount calculated by Lieber,
there was no difficulty separating from the award the portion comprising prejudgment
interest. See C.L. Maddox, Inc. v. Benham Group, Inc., 88 F.3d 592, 603 (8th Cir.
1996) ("When it is apparent as a matter of law that certain identifiable sums included
in the verdict should not have been there, district courts possess the power to reduce
the amount of the verdict accordingly.").

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before correctly calculating the prejudgment interest according to Minnesota statute,13
Raymond can establish no prejudice.

Raymond also argues that Lieber's opinion was not reliable and should have
been stricken because Lieber (1) incorrectly assumed that the termination of the
dealership agreement caused MN Supply to lose all income generated from the sale
of Raymond parts, service, and used equipment, (2) artificially inflated the amount
that MN Supply would have received in cash discounts for purchases from Raymond,
and (3) based his calculation of lost commissions to be paid by Raymond to MN
Supply on unsupported assumptions tying commissions to new equipment sales.
Raymond asserts that because of these alleged errors, Lieber's opinion cannot as a
matter of law support the jury's damages award. We review a district court's
admission of expert testimony for abuse of discretion. Children's Broad. Corp. v.
Walt Disney Co., 357 F.3d 860, 864 (8th Cir. 2004).

Raymond's objections to Lieber's opinion are more appropriately directed to the
weight of the testimony, not its admissibility:

As a general rule, the factual basis of an expert opinion goes to the
credibility of the testimony, not the admissibility, and it is up to the
opposing party to examine the factual basis for the opinion in cross-
examination. Only if the expert's opinion is so fundamentally
unsupported that it can offer no assistance to the jury must such
testimony be excluded.

Id. at 865 (internal quotation marks and citations to quoted cases omitted). Raymond
had an opportunity at trial to cross-examine Lieber regarding these matters, and it was

13
The parties do not take issue with the District Court's mathematical
computations performed in applying Minn. Stat. § 549.09.

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within the province of the jury to evaluate issues of fact and credibility. We have
examined the record and cannot say that Lieber's testimony was so unsupported that
it could offer no assistance to the jury. Accordingly, the District Court did not abuse
its discretion in refusing to strike the testimony.

We affirm the District Court's award of damages in all respects.

B.

Next, Raymond appeals the District Court's award of attorney fees and costs to
MN Supply. Raymond's first basis for this challenge is inextricably linked with its
argument on the merits: MN Supply should not have prevailed at trial and, therefore,
should not have been awarded fees and costs as a prevailing party. MN Supply
concedes that if it does not prevail on appeal, the District Court's judgment awarding
fees and costs may not be enforced. Neither party addressed, however, the situation
which we presently face: on appeal, we have concluded that MN Supply prevailed on
its third claim (termination without good cause), but not on its first claim (coercion)
or second claim (change of competitive circumstances). In Hensley v. Eckerhart, the
Supreme Court ruled that "[w]here the plaintiff has failed to prevail on a claim that is
distinct in all respects from his successful claims, the hours spent on the unsuccessful
claims should be excluded in considering the amount of a reasonable fee." 461 U.S.
424, 440 (1983). The Court recognized, however, that when a plaintiff's claims
"involve a common core of facts" or are "based on related legal theories . . . [m]uch
of counsel's time will be devoted generally to the litigation as a whole, making it
difficult to divide the hours expended on a claim-by-claim basis." Id. at 435. We
believe that the District Court should have the first opportunity to address whether
MN Supply's claims are distinct or whether they are related in such a way that much
of the time of counsel was devoted to the litigation as a whole. If the District Court
concludes that the claims are related, then it should go on to consider "the significance

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of the overall relief obtained by the plaintiff in relation to the hours reasonably
expended on the litigation." Id. We therefore vacate the District Court's award of
attorney fees and costs and remand the case for the District Court to address the issue
anew in light of our holdings on appeal. Given this order of remand, the parties'
remaining arguments related to fees and costs are moot.14

VII.

The judgment entered by the District Court on the jury verdict in favor of MN
Supply is reversed on MN Supply's first and second claims, and affirmed on MN
Supply's third claim. We remand the case and instruct the District Court to enter
judgment as a matter of law in favor of Raymond on MN Supply's first and second
claims, and to award damages, attorney fees, and costs to MN Supply consistent with
this opinion.
______________________________

14
Raymond argues that the District Court abused its discretion in awarding
attorney fees for partially redacted time entries that the court examined in camera but
did not disclose to Raymond because they were protected by the attorney-client
privilege or the attorney work-product doctrine. MN Supply cross-appeals, arguing
that the District Court abused its discretion by not awarding the full amount of
Lieber's expert witness fees. While it is, of course, within the parties' discretion to
raise these issues again on remand, we remind the parties that the District Court has
substantial discretion in awarding fees and costs. See Computrol, Inc. v. Newtrend,
L.P., 203 F.3d 1064, 1072 (8th Cir. 2000) (costs); Litton Microwave Cooking Prods.
v. Leviton Mfg. Co., 15 F.3d 790, 796 (8th Cir. 1994) (fees).

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