United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-1794
___________
WWP, Inc., *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District of
* Nebraska.
Wounded Warriors Family Support, *
Inc., *
*
Appellant. *
__________
Submitted: November 18, 2010
Filed: January 12, 2011
___________
Before RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.
___________
RILEY, Chief Judge.
WWP, Inc. d/b/a Wounded Warrior Project (WWP) and Wounded Warriors
Family Support, Inc. f/k/a Wounded Warriors, Inc. f/k/a Wounded Warriors Hospital
Fund (WWFS) are two distinct charities that assist injured veterans and their families.
WWP alleges WWFS sowed confusion on the Internet by using a website to solicit
donations intended for WWP, in violation of Nebraska law. After a jury trial, the
district court1 awarded WWP approximately $1.7 million and entered a permanent
injunction against WWFS. WWFS appeals. We dismiss in part and affirm in part.
I. BACKGROUND2
A. WWP
John Melia founded WWP. Melia is a former Green Beret and member of the
20th Special Forces Group (Airborne). In 1992, Melia was a passenger in a CH-46
helicopter that caught fire and exploded over the Red Sea off the coast of Somalia.
Melia suffered burns over 20% of his body. While recovering in military hospitals
around the world, Melia noticed that, although he was receiving first-rate medical
treatment, there were “gaps” in the services the armed forces provided to wounded
veterans. In 1995, Melia left the military.
In 2002, as wounded veterans began returning to the United States from the
Afghanistan War, Melia decided to help. Melia “just wanted to provide something
simple, the things that I didn’t have when I came back . . . like underwear and socks
and a calling card and a backpack to carry my stuff in.” Melia founded WWP in the
basement of his Virginia home and, with the donations he collected, delivered
backpacks stocked with care and comfort items to nearby military hospitals.
In the ensuing years, WWP has greatly expanded its offerings to wounded
veterans from the Afghanistan and Iraq Wars. Today WWP provides bedside training
about veterans’ and social security disability benefits, an adaptive sports program,
college preparatory courses, and small group combat stress counseling. In partnership
1
The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
2
We present the facts in the light most favorable to WWP, affording WWP all
reasonable inferences from the jury’s verdicts. See Jones v. Nat’l Am. Univ., 608
F.3d 1039, 1046 (8th Cir. 2010).
-2-
with Trek Bicycle Corp., which donates custom-made bicycles to disabled veterans,
WWP sponsors Soldier Ride.
WWP employs over 100 people and spends 75% to 82% of donations directly
on wounded soldiers and their families. In 2008, WWP spent $39 million.
Advertising, marketing, and other public relations activities allow WWP “to tell
stories of wounded warriors and the way that [WWP] has helped them in order to
drive up an interest and a public awareness about [WWP’s] cause.” WWP sends over
ten million mailers annually and appears on a “massive amount” of television and
radio shows.3 WWP has “become synonymous with veteran service to this generation
of wounded veterans and their families.”
WWP operates two websites, woundedwarrior.org and
woundedwarriorproject.org, which were first registered in January 2003 and March
2004, respectively. In 2005, WWP registered its now famous trademark, which
depicts one soldier carrying another soldier on his back.
B. WWFS
In 2003, Colonel John Folsom founded the Wounded Warriors Hospital Fund
during his military service in Germany. Folsom is a resident of Omaha, Nebraska, a
Marine helicopter pilot, and a veteran of Operation Desert Storm. He is also a
licensed realtor and a former stockbroker.
Folsom believed the military was ill-prepared to help wounded soldiers
returning from combat concerning “morale and comfort items.” In early 2003,
Folsom organized small fundraising events in Germany, such as “brat sales,”
3
Many celebrities and well known organizations have supported WWP over the
years, including Bob Costas, Sean Hannity, Bill O’Reilly, Gary Sinise, Jimmy Buffett,
the late Tony Snow, the National Football League, and HBO.
-3-
ultimately raising $1,500 under the Wounded Warrior Hospital Fund moniker.
Folsom used the funds he raised to purchase electronic equipment, sweat suits, and
chewing tobacco for wounded soldiers in Germany. Folsom also developed a website
to solicit donations, woundedwarriorhospitalfund.org.
In 2004, Folsom incorporated Wounded Warriors Hospital Fund as Wounded
Warriors, Inc. and started a new website, woundedwarriors.org. Folsom
contemporaneously moved the charity’s operations to the United States. WWFS used
incoming donations to buy computers, which Folsom shipped to military hospitals
throughout the United States. At all relevant times, WWFS conducted little to no
advertising, fundraising, or marketing, instead relying on networking and its websites
to receive donations.
Donations to WWFS increased dramatically upon the launch of the
woundedwarriors.org website. In 2006, WWFS bought condominiums in Florida and
Texas with the donations. WWFS offers the condominiums to wounded veterans and
their families for vacations. The condominiums’ occupancy rate for soldiers and
others staying for free is only approximately 30%, so WWFS rents the condominiums
to others at a profit when wounded veterans, their families, or WWFS’s employees are
not staying in them.
C. Dispute
By 2004, Melia discovered Wounded Warrior Hospital Fund on the Internet.
Melia sent Folsom an email, in which Melia pointed out the two charities were
engaging in similar work, but said, “You’re in Germany, I’m here.” Melia was not
concerned about potential confusion between the two charities in the public eye,
because he “didn’t think that we were in any way crossing each other.” Melia offered
to help Folsom in his fundraising efforts, although Folsom declined. WWFS later
listed WWP on its woundedwarriorhospitalfund.org website, as one of its “pass-
through” charities, and twice donated to WWP.
-4-
Melia became concerned about confusion in 2004, when Folsom renamed his
charity “Wounded Warrior, Inc.,” moved its operations to the United States, and
established the woundedwarriors.org website. The website was very similar to
WWP’s website, woundedwarrior.org. Folsom changed the website’s color scheme
and font and the text phraseology to mimic WWP’s website. Folsom placed a
disclaimer at the bottom of WWFS’s new homepage in a difficult-to-read typeface
with cream on white coloring.
When giving money to WWP, donors would often write checks in shorthand
to “Wounded Warriors.” Melia feared Folsom’s actions would engender “major
confusion” among potential donors.
D. Misdirected Donations
After Folsom launched the woundedwarriors.org website, WWP was “contacted
by individuals indicating there was some confusion and that people were trying to
reach [WWP] and instead reaching [WWFS].” Years later, during discovery in the
instant lawsuit, WWP learned WWFS was receiving and cashing a large number of
checks intended for WWP. Some checks were made payable to “Wounded Warriors
Project”; other checks were accompanied by correspondence indicating support for
WWP or mentioning one of WWP’s marketing or fundraising efforts. For example,
in 2007, WWFS received a $100 donation “For Jerrod’s week in Alaska” immediately
after WWP had publicized providing an Alaskan rehabilitation trip for a wounded
veteran named Jerrod. WWFS simply cashed and deposited every check sent to
WWFS’s address.4
4
By contrast, WWP did not cash a check unless the check was made payable to
“Wounded Warriors Project” or the donor clearly informed WWP that the donor
intended to donate to WWP.
-5-
After subpoenaing WWFS’s financial records, WWP hired a forensic
accountant from Omaha, Robert L. Kirchner. Kirchner reviewed approximately 7,500
checks sent to WWFS between November 1, 2004, and July 1, 2008, roughly when
WWFS operated the woundedwarriors.org website. In his analysis, Kirchner
determined WWFS received donations intended for WWP.
To determine the amount of donations misdirected from WWP to WWFS,
Kirchner compared the amount of donations WWFS received immediately before and
after operating the woundedwarriors.org website with the amount of donations WWFS
received while such website was operational. Kirchner found that, in mid- to late-
2004, WWFS received an average of $1,337 per month in donations. When the
woundedwarriors.org website went “live,” WWFS’s receipts spiked to $87,895 per
month. After WWFS shut down the website, donations immediately decreased
56.2%.5 Using the more conservative (latter) valuation, Kirchner calculated the
amount of misdirected donations to be $1,267,729. Using the former valuation, the
calculated amount of misdirected donations exceeded $2 million.
E. Prior Proceedings
In September 2007, WWP filed the instant lawsuit against WWFS. As relevant
here, WWP’s amended complaint alleged three state law claims. First, WWP claimed
WWFS violated the Nebraska Deceptive Trade Practices Act (NDTPA), Neb. Rev.
Stat. § 87-302, by “[(1)] passing off its services as those of WWP; [(2)] causing
likelihood of confusion or misunderstanding as to the source, sponsorship, approval
or certification of goods or services; [(3)] causing likelihood of confusion or
misunderstanding as to affiliation, connection or association with, or certification by,
WWP; and/or [(4)] disparaging the goods, services, or business of WWP by false or
misleading representations of fact.” Second, WWP claimed WWFS violated the
Nebraska Consumer Protection Act (NCPA), Neb. Rev. Stat. § 59-1602 et seq.,
5
When WWFS’s website closed, donations to WWP increased 29%.
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insofar as WWFS’s use of the name “Wounded Warriors” (1) was “likely to confuse
the public and thus constituted an unfair method of competition or an unfair and
deceptive act or practice in the conduct of trade or commerce”; and (2) was “an unfair
and deceptive act or practice which has occurred in trade and commerce, that impacts
the public interest, which has caused injury to WWP in its business or property and
which injury is causally linked to [WWFS’s] unfair and deceptive act.” Third, WWP
claimed unjust enrichment, in violation of Nebraska common law. WWP alleged
WWFS knowingly received donations intended for WWP.
In July 2008, the district court entered a preliminary injunction against WWFS.
The district court held WWP was likely to succeed on its NDTPA claim and ordered
WWFS to shut down the woundedwarriors.org website.6 WWFS did not appeal the
entry of the preliminary injunction and shut down the website.
In September 2009, the matter proceeded to trial on WWP’s NDTPA, NCPA,
and unjust enrichment claims. After a four-day trial, a jury returned verdicts in
WWP’s favor on the NCPA and unjust enrichment claims. The jury awarded WWP
$425,000 on its NCPA claim (for loss to WWP’s reputation and goodwill) and
$1,267,719 on WWP’s unjust enrichment claim (for misdirected donations). The
district court entered judgment on the jury’s verdicts, but did not rule on WWP’s
NDTPA claim.
The district court denied a series of post-trial motions filed by the parties, with
one exception. In January 2010, the district court granted in part WWP’s motion to
alter or amend the judgment to the extent WWP sought (1) entry of judgment on its
NDTPA claim, and (2) conversion of the preliminary injunction into a permanent
injunction.
6
The district court did not analyze WWP’s NCPA or unjust enrichment claims.
-7-
II.DISCUSSION
WWFS argues the district court erred in six respects. We consider each of
WWFS’s arguments, in turn.
A. Preliminary Injunction
WWFS argues the district court abused its discretion in issuing the preliminary
injunction. With the entry of the permanent injunction, this portion of WWFS’s
appeal is moot and must be dismissed. See Grupo Mexicano de Desarrollo, S.A. v.
Alliance Bond Fund, Inc., 527 U.S. 308, 314 (1999) (“Generally, an appeal from the
grant of a preliminary injunction becomes moot when the trial court enters a
permanent injunction, because the former merges into the latter. We have dismissed
appeals in such circumstances.”).
B. Motion to Compel
WWFS argues the district court abused its discretion in overruling WWFS’s
motion to compel. See Duffy v. Wolle, 123 F.3d 1026, 1040 (8th Cir. 1997)
(reviewing denial of motion to compel for “gross abuse of discretion”). We disagree.
During discovery, WWFS requested WWP produce “[a]ll documents relating
to or evidencing any donations received by [WWP] from January 1, 2002 to the
present.” WWP refused, and WWFS moved to compel. The district court denied
WWFS’s motion for a number of reasons. The district court found, among other
things, WWFS’s motion to compel was (1) “temporally overbroad” because WWFS
was not operating in the United States in 2002; (2) “overbroad in scope” because
WWFS was seeking donor information without regard to source or location;
(3) unduly burdensome because WWFS was requesting production of all documents
relating “to tens [of] thousands (or more) of donors”; and (4) “not reasonably
calculated to lead to the discovery of admissible evidence,” because WWFS had not
asserted a counterclaim for unjust enrichment seeking the return of any misdirected
donations. The district court concluded “the discovery of some donations intended
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for [WWFS] but instead retained by WWP . . . [is] not relevant to the calculation of
damages here,” recognizing WWP’s expert, Kirchner, did not rely on WWP’s donor
information in reaching his opinion regarding WWP’s damages.
“Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). Broad discovery
is an important tool for the litigant, and so “[r]elevant information need not be
admissible at the trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.” Id. That said,
the [district] court must limit the frequency or extent of discovery
otherwise allowed . . . if it determines that . . . the burden or expense of
the proposed discovery outweighs its likely benefit, considering the
needs of the case, the amount in controversy, the parties’ resources, the
importance of the issues at stake in the action, and the importance of the
discovery in resolving the issues.
Id. at (b)(2)(C)(iii).
WWFS asserts WWP’s donation records are “relevant in determining whether
. . . confusion exist[ed] and to what extent WWP profited from the confusion[,]
thereby affecting [Kirchner’s] damage calculation.” Even if we grant WWFS this
premise, the district court nonetheless did not err in finding WWFS’s request was
overly broad and unduly burdensome. WWFS’s request was excessively broad, and
WWFS never attempted to narrow the scope of its request. See McGowan v. Gen.
Dynamics Corp., 794 F.2d 361, 363-64 (8th Cir. 1986) (holding the district court did
not abuse its discretion in denying a broad discovery request in part because the
movant “made no effort to limit the scope of her requests even after the trial court’s
denial of her initial motion to compel”). WWP did produce its tax returns, audited
financial statements, and monthly contribution summaries to WWFS, which totaled
the donations to WWP for the relevant time periods. See id. (identifying other
relevant evidence was available to the plaintiff, thereby justifying the denial of her
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broad discovery request). The district court did not abuse its discretion in refusing to
require WWP to “dump” all of its donation records on WWFS.
C. Motion in Limine: Expert Testimony
In a motion in limine, WWFS asked the district court to bar Kirchner from
testifying at trial. WWFS argued Kirchner’s testimony did “not meet the helpful
requirement of Fed. R. Evid. 702 and Daubert [v. Merrell Dow Pharm., Inc., 509 U.S.
579 (1993)], and therefore, should be excluded.” WWFS stressed Kirchner made only
simple mathematical calculations to arrive at his damages calculation, and “his
determinations with respect to misdirected donations [were] speculative at best,
fail[ed] to rule out other alternative explanations[,] and fail[ed] to connect with the
facts of the case.”
The district court denied WWFS’s motion, finding Kirchner relied on his
experience as a forensic accountant, “analyz[ed] a substantial amount of financial
data,” and applied reliable methods in forming opinions that would help the jury
understand the evidence. The district court averred WWFS’s “challenges
to[]Kirchner’s failure to consider and account for certain factors goes to the weight
of his testimony rather than admissibility.”
WWFS reasserts its arguments on appeal. WWP responds that WWFS waived
its arguments by failing to renew its objections to Kirchner’s testimony at trial.
The district court’s denial of WWFS’s motion in limine was sufficient to
preserve error, see Fed. R. Evid. 103(a); Shelton v. Kennedy Funding, Inc., 622 F.3d
943, 958-59 & n.14 (8th Cir. 2010) (discussing the most recent iteration of Rule
103(a)), but we hold the district court did not abuse its broad discretion in permitting
Kirchner’s testimony, see Khoury v. Philips Med. Sys., 614 F.3d 888, 891-92 (8th Cir.
2010) (standard of review). Fed. R. Evid. 702 provides:
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If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience, training,
or education, may testify thereto in the form of an opinion or otherwise,
if (1) the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably to the facts of the
case.
There is not, as WWFS suggests, an implicit requirement in Fed. R. Evid. 702 for the
proffered expert to make complicated mathematical calculations. See In re Prempro
Prods. Liab. Litig., 514 F.3d 825, 831 (8th Cir. 2008) (holding district court did not
abuse its discretion in failing to exclude expert testimony that represented “an exercise
in basic math using simple deductive reasoning”). Forensic accountants routinely
rely, “surely to no one’s surprise, on the books and records and financial information
. . . provided.” Forklifts of St. Louis, Inc. v. Komatsu Forklift, USA, Inc., 178 F.3d
1030, 1035 (8th Cir. 1999).7 WWFS’s attacks on Kirchner’s methodology lack merit.
7
Responding to a similar argument, in which a party argued proffered expert
testimony was inadmissible under Fed. R. Evid. 702 because the expert “merely
perform[ed] ‘simple math calculations . . . which the average sixth-grader would be
able to perform when equipped with a calculator, pencil and paper,’” one federal judge
aptly observed:
[W]hat is a simple mathematical computation to one person may be
mind-numbingly complicated to another. [I]f these calculations are as
simple as defendants suggest they are . . . , then those jurors who are
mathematically knowledgeable will immediately so recognize and
wonder why the plaintiffs utilized a CPA to prove the obvious.
Arnold v. Ambulance Serv. of Bristol, Inc., No. 2:06-CV-105, 2007 WL 5117409, *1
(E.D. Tenn. Aug. 21, 2007).
And even if Kirchner’s testimony were inadmissible under Fed. R. Evid. 702
because it was too straightforward, it was admissible under the purpose and rationale
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D. Motion in Limine: Preliminary Injunction Evidence
WWFS argues the district court abused its discretion in allowing WWP to
introduce evidence of the district court’s pre-trial decision to enter a preliminary
injunction shutting down the woundedwarriors.org website. WWFS opines that, by
allowing the jury to speculate as to the reasons why the district court enjoined WWFS,
the district court “improperly influence[d] [the] jury’s impartiality from the outset of
trial” and “effectively eviscerate[d] [WWFS’s] constitutional right to a jury trial.”
WWP responds we should only review for plain error, because “the first mention of
the preliminary injunction and WWFS’s actions post-injunction came without
objection from Folsom’s own testimony.”
We disagree with WWP’s characterization of the sequence of events in the
district court and will review WWFS’s argument under the familiar abuse-of-
discretion standard. WWFS filed a motion in limine seeking to exclude any mention
of the preliminary injunction, which the district court denied on the condition that it
would issue a cautionary instruction to the jury. During its case-in-chief, absent an
objection from WWFS, WWP introduced into evidence a videotaped deposition of
Folsom, in which WWP’s attorney asked Folsom if WWFS had “ceased use of
woundedwarriors.org web site pursuant to the [district court’s] order in this case.”
Folsom answered, “Yes.” In filing its motion in limine and receiving a definitive
answer, WWFS preserved its objection to the mention of the preliminary injunction
at trial and was not required to reassert an objection to the introduction of the
deposition. See Fed. R. Evid. 103(a); Shelton, 622 F.3d at 958-59 & n.14.
With respect to the merits of WWFS’s argument, WWP rejoins the district
court’s granting of the preliminary injunction was “admissible and relevant” evidence
and, in any event, WWFS suffered no “unfair prejudice” because Kirchner’s
of Fed. R. Evid. 1006 (summaries of voluminous writings). See SEC v. Amazon
Natural Treasures, Inc., 132 F. App’x 701, 703 (9th Cir. 2005) (unpub. mem. op.); cf.
United States v. Jennings, 724 F.2d 436, 441-43 & n.8 (5th Cir. 1984).
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conservative theory of damages required a comparison of the amount of donations
WWFS received before and after the district court shut down the woundedwarriors.org
website.
We agree with WWFS that it would have been preferable had the district court
excluded express evidence of the preliminary injunction. For example, the district
court could have accepted a stipulation from the parties that, in 2008, WWFS shut
down the woundedwarriors.org website. Such a stipulation would have allowed
WWP to present one of its theories of damages (comparing the amount of donations
WWFS received immediately before and after WWFS shut down its website) yet
minimized any prejudice WWFS might suffer when the jury learned the court had
entered an injunction against WWFS in WWP’s favor shutting down the WWFS
website. Cf. Tamko Roofing Prods., Inc. v. Ideal Roofing Co., 282 F.3d 23, 39-40
(1st Cir. 2002) (discussing a stipulation and the prejudice a party suffers when the jury
learns of a preliminary injunction). WWFS did not suggest this alternative treatment
or any other similar option.
That said, we believe WWFS’s allegations of prejudice are too speculative to
warrant reversal. The references at trial to the district court’s granting of the
preliminary injunction were isolated. Critically, the district court issued a cautionary
instruction immediately prior to the submission of the case to the jury. The district
court ordered:
You have heard evidence that the Court granted a preliminary
injunction on July 14, 2008, and ordered the defendant to discontinue use
of the www.woundedwarriors.org Website. The fact that the Court
granted a preliminary injunction should not affect your decision as to
who should prevail on the issues presented to you in this case.
Elsewhere in the final jury instructions, the district court stated:
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In the trial of this case and in this charge, I have in no way
attempted to express my opinion as to who should prevail upon the
issues submitted to you. You must not construe any statement, action,
or ruling on my part in the trial of this case as an indication of any
opinion on my part respecting the proper course of your verdict.
A jury is presumed to follow its instructions, and because we do not detect “‘an
overwhelming probability’ that [the jury] was unable” to follow the district court’s
cautionary instruction, we will affirm. United States v. Uphoff, 232 F.3d 624, 626
(8th Cir. 2000) (quoting Greer v. Miller, 483 U.S. 756, 766 n.8 (1987)).
E. Motion for Judgment as a Matter of Law
After trial, WWFS filed a renewed motion for judgment as a matter of law
under Fed. R. Civ. P. 50(b). WWFS argued there was insufficient evidence in the
record upon which a reasonable jury could find in WWP’s favor on WWP’s NCPA
and unjust enrichment claims. The gravamen of WWFS’s argument was that there
was insufficient evidence WWFS knowingly profited from confusion and kept
misdirected funds or WWP otherwise was not injured.
The district court denied WWFS’s post-trial motion in a written order, and
WWFS reasserts its arguments on appeal. We review de novo, reversing only if no
reasonable juror could have found in WWP’s favor. See Mason v. Corr. Med. Servs.,
Inc., 559 F.3d 880, 885 (8th Cir. 2009).
The parties agree that, to prove a violation of the NCPA, WWP needed to show:
(1) WWFS “engaged in an act or practice that constitutes an unfair method of
competition or a deceptive trade practice in the conduct of any trade or commerce”;
(2) WWFS’s “conduct affect[ed] the public interest”; (3) WWP “was injured in its
business or property by [WWFS]’s unfair method of competition or deceptive trade
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practice”; and (4) damages.8 To prove unjust enrichment, WWP was required to prove
WWFS (1) received money, (2) “retained possession of the money,” and (3) “in
justice and fairness ought to pay the money to [WWP].” See Kanne v. Visa U.S.A.
Inc., 723 N.W.2d 293, 302 (Neb. 2006).
The record is replete with evidence upon which a reasonable jury could find
each of the foregoing elements to be met. With respect to the crux of WWFS’s
argument, i.e., that there is insufficient evidence WWFS knowingly kept donations
intended for WWP, a reasonable jury could credit the expert testimony of Kirchner,
a forensic accountant, that WWFS possessed misdirected funds. A reasonable jury
could also find WWFS’s conduct in changing the name and appearance of its website,
as well as placing an anemic disclaimer at the bottom, was designed to engender
confusion among donors and amounted to a deceptive and unfair trade practice. See,
e.g., Neb. Rev. Stat. § 87-302(a) (defining deceptive trade practices to include
“[p]ass[ing] off goods or services as those of another,” “[c]aus[ing] likelihood of
confusion or of misunderstanding as to the source, sponsorship, approval, or
8
In the district court, WWFS argued the district court, not a jury, was required
to rule on WWP’s NCPA claim. See State ex rel. Douglas v. Schroeder, 384 N.W.2d
626, 629-30 (Neb. 1986) (holding plaintiff was not entitled to a jury trial under the
NCPA); Hage v. Gen. Serv. Bureau, 306 F. Supp. 2d 883, 890 (D. Neb. 2003) (same).
See also In re Pharm. Indus. Avg. Wholesale Litig., MDL No. 1456, __ F. Supp. 2d
__, __, 2010 WL 3503986, *9 (D. Mass. Sept. 3, 2010) (adopting plaintiffs’
concession that “the consumer protection statutes of Illinois, Nebraska, and New
Hampshire do not provide a right to a jury trial”). But cf. Everest Capital Ltd. v.
Everest Funds Mgmt., LLC, 393 F.3d 755, 758 (8th Cir. 2005) (reflecting, without
discussion, that the district court permitted a jury to decide the plaintiff’s NCPA and
NDTPA claims). WWFS does not, however, reassert this argument on appeal, so we
do not rule upon it. We note that, except for the jury’s determination of the amount
of damages WWP suffered for loss to its reputation and goodwill, the district court
apparently agreed with the jury’s factual findings. See Reinbrecht v. Walgreen Co.,
742 N.W.2d 243, 247 (Neb. Ct. App. 2007) (stating, the NDTPA “does not provide
a private right of action for damages”); Triple 7, Inc. v. Intervet, Inc., 338 F. Supp. 2d
1082, 1087 (D. Neb. 2004) (same).
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certification of goods or service,” and “[c]aus[ing] likelihood of confusion or of
misunderstanding as to affiliation, connection, or association with, or certification by,
another”). As one of WWP’s executives testified at trial, “there was a correlation
between the money [WWFS was] receiving on their website and the activities [WWP
was] doing to raise public awareness about [WWP’s] cause and to raise funds in
support of it.” A reasonable juror might find the fact WWFS cashed checks that
clearly referenced WWP’s fundraising events as damning evidence against WWFS.
Even if WWFS did not know WWP had sponsored the event, WWFS certainly knew
WWFS had not done so.
WWFS stresses that, immediately before trial, WWFS returned over $18,000
in misdirected WWP donations. WWFS culled its financial records and determined
that 89 of the 7,500 donations sent to WWFS while the woundedwarriors.org website
was operational specifically referenced “Wounded Warriors Project” or certain of
WWP’s well-known marketing efforts. These 89 checks totaled over $18,000.
WWFS asserts a reasonable jury could not, therefore, find WWFS retained any
misdirected donations.
WWFS’s examination of the donations it received is self-serving. A reasonable
jury could infer that many of the 7,500 donations—even those lacking any specific
reference to WWP or its more well-known marketing efforts—were intended for
WWP in light of WWFS’s deceptive and unfair trade practices and WWFS’s lack of
advertising or promoting its own charitable work.
F. Motion for New Trial
Finally, WWFS argues the district court abused its discretion in denying its Fed.
R. Civ. P. 59 motion for a new trial or to alter or amend judgment. See Wilson v. City
of Des Moines, 442 F.3d 637, 640 (8th Cir. 2006) (standard of review). As grounds
for reversal, WWFS reiterates many of the alleged errors discussed above, including
the district court’s failure to exclude Kirchner’s testimony and the evidence of the
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preliminary injunction. For the same reasons these alleged errors do not require
reversal, a new trial is not warranted. There was no miscarriage of justice here. See
PFS Distrib. Co. v. Raduechel, 574 F.3d 580, 589 (8th Cir. 2009) (“The crucial
determination ‘is whether a new trial should have been granted to avoid a miscarriage
of justice.’” (quoting Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997))).
The record justifies the jury’s award of $425,000 on WWP’s NCPA claim,
because a reasonable jury could find WWFS damaged WWP’s reputation and
goodwill.
The use by one organization of the name of another for the
purpose of appropriating the standing and good will which the other has
built up is a well recognized form of the wrong known to the law as
unfair competition . . . . The subsequent appropriator of the name or one
confusingly similar thereto usually seeks an unfair advantage, a free ride
on another’s established good will . . . . Usually his only purpose is to
create confusion as to source, and benefit by it.
Source, reputation and good will are as important to eleemosynary
institutions as they are to business organizations. Anything which tends
to divert membership or gifts of members from them injures them with
respect to their financial condition in the same way that a business
corporation is injured by diversion of trade or custom. Distinct identity
is just as important to such an organization, oftentimes, as it is to a
commercial company. Its financial credit—its ability to raise funds, its
general reputation, the reputation of those managing and supporting it,
are all at stake if its name is used by some other organization and the two
become confused in the minds of the public. Of course, the similar
names may be composed of descriptive terms which cannot, without
more, be made the subject of an exclusive right. Nevertheless, an action
may lie because of the attempt of the later corporation to palm itself off
as the prior one, whether expressly or by conspicuous failure to disclaim
identification with it.
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Am. Gold Star Mothers, Inc. v. Nat’l Gold Star Mothers, Inc., 191 F.2d 488, 489-90
(D.C. Cir. 1951) (footnotes and internal marks omitted).
For example, Libby Baker, Regent of the Enoch Crosby Chapter of the
Daughters of the American Revolution (DAR), testified her organization decided to
donate $198 to WWP after learning about WWP’s backpack program from one of
WWP’s executives. Intending to do so, Baker “googled” the phrase “Wounded
Warriors,” happened upon WWFS’s website, and mailed a check to an Omaha,
Nebraska, address listed thereon. Baker thought she had donated to WWP, but in
reality the DAR sent a check to WWFS. WWFS cashed the check, and months passed
without the DAR ever receiving a letter of confirmation or acknowledgment regarding
its donation. Members of the DAR thought the lack of courtesy was “odd” and
“decided . . . [the DAR] certainly wouldn’t donate again” to WWP.
We cannot say that the jury’s award of $425,000 is unreasonable. We agree
with the district court that “[t]he dollar amount of damages to reputation and good will
is generally difficult to ascertain.” See Ty, Inc. v. Jones Group, Inc., 237 F.3d 891,
902 (7th Cir. 2001) (recognizing “it is virtually impossible to ascertain the precise
economic consequences of intangible harms, such as damage to reputation and loss
of good will” (quoting Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 16 (7th Cir.
1992) (internal quotation marks omitted))). We decline to review the cold record and
substitute a different damages calculation for the jury’s determination. “Mere
difficulty in calculating damages is not sufficient reason to deny relief,” Willis v.
Watson Chapel Sch. Dist., 899 F.2d 745, 747 (8th Cir. 1990), as “we ‘have repeatedly
stressed that some uncertainty in damages should not work to bar a plaintiff from
recovering from a proved wrongdoer,’” Davis v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 906 F.2d 1206, 1218 (8th Cir. 1990) (quoting Miley v. Oppenheimer &
Co., 637 F.2d 318, 327 (5th Cir. 1981)).
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III. CONCLUSION
We dismiss the preliminary injunction appeal as moot and affirm the rest of the
judgment.
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