                                                                         F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         April 26, 2007
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court


 K LESC H & C O MPA N Y LIM ITED,

               Plaintiff-Counter-                        No. 05-1206
               Defendant - Appellant,
          v.                                             (D. Colorado)
 LIBER TY M ED IA CO RPO RA TION;                (D.C. No. 01-D-1456 (CBS))
 JOHN C. M ALONE; ROBERT R.
 BENNETT,

               Defendants-Counter-
               Claimants - Appellees.



                           OR D ER AND JUDGM ENT *


Before HA RTZ, O’BRIEN, and M cCO NNELL, Circuit Judges.


      Claiming that Liberty M edia Corp. expropriated a valuable business

opportunity, Klesch & Company, Ltd., brought a diversity action in the United

States District Court for the District of Colorado. Klesch lost at trial and now

appeals, challenging the court’s instructions (1) that the jury could not award

damages to Klesch under the last of several successive written agreements signed



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
by Klesch and Liberty M edia; (2) that Klesch’s misappropriation claim required

proof that Liberty M edia had profited from the misappropriation; and (3) that

Liberty M edia would be liable for damages only if it was a but-for cause of those

damages. W e have jurisdiction under 28 U.S.C. § 1291 and affirm.

I.    B ACKGR OU N D

      A.    The Parties’ R elationship

      The claims in this case arise out of separate, successive agreements whose

force the parties disputed at trial. The agreements concern the parties’ potential

acquisition of G erman cable companies.

      In 1999 Deutsche Telekom, which owned the cable infrastructure in

Germany, planned to split responsibility for this infrastructure among nine new

regional companies to be auctioned to third parties. Klesch, a private-equity firm,

bought one regional company in August 2000. Earlier that year it had also

acquired the exclusive right to negotiate for two other regional companies. To

solicit funds to invest in these companies, Klesch took steps to form Capital

Communications Partners (CCP).

      In October 2000 Klesch met with Liberty, which held interests in various

communications, internet, and video-programming companies, to discuss

investing in the regional companies; but Liberty did not comm it to any

investments at that time. Despite some uncertainty about the investors it might be

able to line up, Klesch bid for the two regional companies in January 2001. By

                                          -2-
then it had become aware that Telekom might be willing to sell all six yet-unsold

regional companies to a single buyer. This possibility appears to have sparked

Liberty’s interest in the deal. At a m eeting in February 2001 Klesch told Liberty

that it expected that a 55% interest in the remaining six regional companies would

be sufficient to exercise control of them. Klesch and Liberty began discussing the

acquisition of the German companies, and they agreed to explore the possibility

of jointly acquiring all remaining companies.

      On February 11 Liberty sent an email to Klesch to the effect that the

law yers should start drafting a written contract. Two days later Liberty sent a

letter proposing its involvement in CCP, describing anticipated agreements, and

conditioning future involvement on such things as regulatory approval, financial

due diligence, and Liberty’s future acceptance of “definitive documentation.”

Aplee. Supp. App. Vol. IV at 1168.

      On February 16 Klesch and Liberty entered into a confidentiality agreement

preventing Liberty for two years from using Klesch’s private information to seek

its own deal with Telekom for the six remaining regional companies. A second

agreement on February 21 imposed two obligations through June 30, 2001: (1)

Liberty could not contact Telekom w ithout Klesch’s written permission; and (2)

neither party could seek without the other a deal concerning the six regional

companies. In addition, Liberty agreed to notify Klesch if it decided not to




                                         -3-
pursue the six companies through CCP, upon which notification the agreement

would terminate.

      The parties signed a letter of intent the next day, February 22. That letter

outlined the proposed deal, under which CCP w ould acquire a 55% interest in the

six regional companies and an option to acquire additional interests. The letter

stated that there was still no definitive agreement between the parties. Klesch

soon began to share with Liberty confidential information relating to the deal.

      On M arch 16 the parties signed a document (the Term Sheet) setting forth

their “understanding of the business arrangement.” Aplt. A pp. Vol. V I at 1705.

This document set forth the basic terms of the proposed deal, in which Klesch and

Liberty would become equal partners in CCP, which would be the general partner

of another entity formed to acquire the German companies. But the acquisition

was still premised on the condition that all its aspects “will be acceptable to both

Klesch and Liberty.” Id. at 1706.

      The first signs of trouble seem to have come shortly thereafter. Liberty

asserts that it had signed the Term Sheet based on the assumption that a 55%

interest w ould provide adequate control of the regional companies. Through its

own investigations, however, it found that this was not the case under German

law. Liberty contends that the deal was not worthwhile without a controlling

interest and that it had determined that it would be necessary to purchase at least

75% of the equity interest in the regional companies for the level of control it

                                         -4-
sought. During negotiations on April 17 such a purchase apparently was not

acceptable to Telekom. But on April 25 Telekom agreed to sell 75% if Liberty

agreed to a put that would require it to buy the remaining 25% at the same price

upon Telekom’s demand. Klesch was later to argue that Liberty unfairly accepted

this proposal on its own, without consulting Klesch.

      Contending that it had substantially increased its commitment and risk in

the deal, Liberty sought to change its relationship with Klesch. Klesch consented

to revise their agreement in M ay 2001. To allay Klesch’s concern about repeated

revisions, Liberty’s president stated that no further changes in the deal between

Liberty and Klesch were anticipated absent further changes in the deal with

Telekom.

      Later in M ay Liberty’s executive committee decided that the deal was

unfair to Liberty, given that Liberty’s comm itments had risen substantially but

Klesch’s had not. Liberty’s president notified Klesch that “no transaction . . .

would be acceptable [to us] w ithout a lower level of guaranteed payments to

you.” Aplee. Supp. App. Vol. IV at 1179. It wished to characterize payments to

Klesch as a finder’s fee or as consulting payments, rather than as payments to an

equity partner, and insisted that Klesch would “not participate in governance.”

Id. In a later phone call the parties appear to have been unable to reach an

agreement, and Liberty insisted that it could not proceed with the deal on the




                                         -5-
terms Klesch demanded. W hen Klesch suggested that it might raise further funds

to support the transaction, Liberty agreed that that might be acceptable.

      Before this phone call Liberty had begun to comm unicate with Telekom

directly, putatively for the purpose of retaining Telekom’s good will and giving it

updated information. At trial Liberty’s intent in these discussions was disputed.

      Liberty and Klesch continued their negotiations, and on M ay 17, 2001,

K lesch appears to have agreed in principle to substantially changed terms. On

M ay 24 Klesch’s investment banker sent Klesch a letter suggesting that the value

to Klesch of the M arch 16 terms and the new terms were comparable. Klesch and

Liberty negotiated and signed a new agreement on June 7. One of the final

disagreements before the agreement w as signed was whether it w as to be binding.

Liberty appears initially to have wanted flexibility and not to be bound by the

new agreement; Klesch wanted the agreement to be binding and advised Liberty

that it would consider court action if the parties could not reach a binding

agreement. The final agreement contained a provision requiring good-faith

negotiations to reach a definitive agreement; if these negotiations did not lead to a

deal and Liberty were to purchase the six Telekom regional companies by itself

before June 7, 2003, Liberty promised to pay Klesch 3% of the value of the

acquired assets, up to 165 million euro. The new agreement explicitly superseded

the M arch 16 agreement “in its entirety,” Aplt. App. Vol. IV at 1712, but it stated




                                         -6-
that nothing else in it was binding except the provision requiring good-faith

negotiation to reach a definitive agreement.

      The negotiations between Klesch and Liberty called for by the June 7

agreement did not succeed. On June 21, 2001, Liberty agreed with Telekom on

terms by which it would acquire the six regional companies directly from

Telekom. On July 24 Liberty sent a letter to Klesch stating that “Liberty M edia is

not now, and has never been, a partner with you or your company.” Aplt. App.

Vol. I at 33. Klesch filed suit on July 27, 2001, contending that Liberty had

“utterly failed and refused to negotiate with Klesch in good faith” toward a final

agreement. Id. at 49.

      On September 3, 2001, Liberty and Telekom signed an agreement for

Liberty to acquire the six regional companies. But the German Cartel Office

quashed the deal on February 28, 2002, and Liberty and Telekom abandoned the

acquisition shortly thereafter.

      B.     Litigation

      Klesch’s complaint set forth a number of claims under Colorado law :

breach of contract, promissory estoppel, breach of fiduciary duty, fraud, negligent

misrepresentation, misappropriation of business value, tortious interference with

economic advantage, and unjust enrichment. The gist of the complaint was that

Liberty pursued negotiations w ith Telekom in violation of its agreements w ith

Klesch and unilaterally changed the terms of those agreements. Klesch claimed

                                         -7-
that after using Klesch’s unique skills and information related to the deal, Liberty

seized the opportunity to acquire the six regional companies for itself, thereby

freezing Klesch out of the deal and failing to treat Klesch as an equal partner

despite prior agreements and fiduciary duties.

      Liberty’s first amended answer and counterclaim, dated October 23, 2002,

contended that Klesch’s claims were barred by the terms of the June 7 agreement

and sought a declaratory judgment that Liberty was relieved of any duties under

the agreement because Klesch had breached and repudiated it. The counterclaim

also sought damages for fraud and negligent misrepresentation based on the

allegation that Klesch falsely stated during the negotiations for the June 7

agreement that it intended to honor its obligation under that agreement to

negotiate in good faith.

      The jury rejected Klesch’s claims of breach of fiduciary duty, fraud,

negligent misrepresentation, tortious interference with economic advantage, and

misappropriation. It found in favor of Klesch on its claims that Liberty breached

its contract by contacting Telekom before June 30, 2001, and by negotiating with

Telekom toward the acquisition of the six regional companies; but it accepted

Liberty’s affirmative defenses of estoppel, impossibility and frustration, waiver,

and accord and satisfaction with respect to these claims. The district court later

rejected Klesch’s equitable claims for promissory estoppel and unjust enrichment.

II.   ANALYSIS

                                         -8-
      Klesch’s appeal rests on challenges to three jury instructions: (1) an

instruction that the jury could not award damages to Klesch under the June 7

agreement, (2) a misappropriation instruction, and (3) a causation instruction.

      A.     Excluding Damages Under the June 7 Agreement

      Klesch’s first challenge is to the district court’s instruction to the jury that

Klesch “cannot recover damages under the June 7, 2001 agreement.” Aplt. App.

Vol. V at 1600. This instruction followed from the court’s ruling on a motion

Liberty presented under Fed. R. Civ. P. 50 after the close of evidence to preclude

Klesch from recovering such damages. The court granted the motion on three

grounds: (1) that Klesch had not pleaded a claim for damages under the June 7

agreement in either its complaint or the pretrial order; (2) that Klesch had

presented no evidence that it had suffered damages from breach of the June 7

agreement; and (3) that Klesch could not both argue that the June 7 agreement

was invalid and seek damages under that same agreement. W e need not consider

the latter two grounds because we affirm on the first.

      W e note at the outset that Klesch made no motion at trial to amend its

complaint or the pretrial order. Its contention is simply that the existing pretrial

order permitted it to claim damages under the June 7 agreement. W e review the

district court’s interpretation of the pretrial order for abuse of discretion. See

Koch v. Koch Indus., Inc., 203 F.3d 1202, 1219 (10th Cir. 2000) (“This court

reviews for abuse of discretion a district court’s exclusion of evidence or issues

                                          -9-
from trial on the basis of a properly-drawn, detailed pretrial order.”); Tyler v. City

of M anhattan, 118 F.3d 1400, 1403 (10th Cir. 1997) (“[T]he district court is in

the best position to interpret its pretrial order.”).

       W e hold that the district court acted well within its discretion in ruling that

the pretrial order did not include any claim by Klesch for damages under the

June 7 agreement. Indeed, Klesch’s consistent position had been that the

agreement was unenforceable.

       The sole mention in the complaint of the June 7 agreement is in the

following paragraph:

       In the evening of June 7, 2001, after considerable but futile efforts to
       convince Liberty M edia to act in good faith and to honor its fiduciary
       obligations, [Klesch] signed a “non-binding” term sheet which set
       forth the terms dictated by Liberty M edia (the “June 7 Term Sheet”)
       in an effort to avoid losing all of the benefits of the partnership
       opportunity Klesch had devoted so much effort to acquiring. The
       June 7 Term Sheet, which Klesch signed under threats from Liberty
       M edia, provided that Liberty M edia would negotiate in good faith the
       terms of a final agreement between Klesch and Liberty M edia and,
       failing such agreement, would pay Klesch, upon consummation of the
       Six Regions acquisition, an amount far less than its rightful share.
       Liberty M edia has utterly failed and refused to negotiate with Klesch
       in good faith.

Aplt. App. Vol. I at 48–49. To be sure, the final sentence might be read to

suggest that Klesch is claiming damages for breach of the June 7 agreement; but

the force of the paragraph is to undermine the agreement by asserting that

Klesch’s consent to it was coerced. This assertion anticipated Liberty’s defense

that the June 7 agreement freed it from obligations under preceding agreements.

                                           -10-
Indeed, Klesch’s reply to Liberty’s counterclaim denied Liberty’s allegation that

“the June 7 Letter A greement is a valid and enforceable contract between Liberty

M edia and Klesch & Company, and is binding in accordance with its terms,” id.

at 82, and its ninth affirmative defense was, “Liberty M edia fraudulently induced

Klesch to sign the June 7 Term Sheet,” id. at 94.

      In any event, the complaint was superseded by the pretrial order. “[T]he

pretrial order is the controlling document at trial.” Smith v. Aztec Well Servicing

Co., 462 F.3d 1274, 1285 (10th Cir. 2006); see Fed. R. Civ. P. 16(e). And the

pretrial order certainly includes no claim for damages under the June 7

agreement. In a section entitled “Plaintiff Klesch’s Statement of Claims and

Defenses,” the order states that Klesch claims that its agreement with Liberty

entitled it to participate as an “equal partner” rather than “merely an investor” in

the acquisition of the German companies. Aplt. App. Vol. I at 98. It then

characterizes the partnership as follow s:

      The partnership and its terms are evidenced in the conduct of the
      parties and in numerous communications and agreements between
      Klesch and Liberty M edia during the winter and early spring of
      2001, including, but not limited to a February 11, 2001 email from
      Liberty M edia president Robert Bennett to M r. Klesch, a February
      21, 2001 confidentiality agreement between Klesch and Liberty
      M edia, a February 22, 2001 letter of intent (“LO I”) among K lesch,
      Liberty M edia and Telekom, and a M arch 16 letter agreement and
      term sheet between Klesch and Liberty M edia.

Id. (emphasis added). The list of “communications and agreements” does not

include the June 7 agreement; and June 7, 2001, is well outside the stated time

                                         -11-
period: “the winter and early spring of 2001.” Id. Nor is there any mention

elsewhere in this section of a possible claim by Klesch for damages under the

June 7 agreement. On the contrary, the sole mention of that agreement is in the

penultimate sentence, which states: “The June 7 term sheet was the product of

Liberty M edia’s fraudulent and fiduciary misconduct and therefore Liberty M edia

has no right to recover any amounts with respect to that misconduct.” Id. at 102.

As the district court observed in support of its ruling, “[I]f Klesch was taking the

position that somehow it reserved the right to seek damages under the June 7

agreement, it would have to somehow affirmatively say that in the final pretrial

order because in other portions, it’s saying that the June 7 agreement in effect was

entered under duress.” Aplt. App. Vol. V at 1583.

      Only after the district court asked for supplemental briefing on

September 8, 2005, about two w eeks into the four-week trial, did Klesch suggest

that it might have a claim under the June 7 agreement. The court had apparently

requested “a memorandum and jury instructions clarifying the parties’ positions

on (I) the June 7 Letter Agreement as a defense for [Liberty] . . . and (ii) the

interaction of [Klesch’s] defenses to the June 7 Letter Agreement.” Aplee. Supp.

App. Vol. I at 84–85 (Def.’s Supp. M em. Concerning the June 7 Letter Agreement

as a Defense, Sept. 13, 2004). Both Liberty and Klesch responded to this request

on September 10. Klesch’s memorandum reiterated its position that the evidence

would “permit a jury to conclude that defendants are wrong that the June 7 letter

                                         -12-
agreement is a defense to any part of Klesch’s claims.” Id. at 80. But it also

contained a paragraph suggesting that the jury could conclude that the June 7

agreement was binding and contained obligations upon Liberty that “provide[d] a

basis for recovery for Klesch.” Id. at 81. Liberty promptly filed a memorandum

opposing such a claim for recovery, setting forth the three grounds upon which

the district court later relied in granting Liberty’s Rule 50 motion to reject the

claim.

         Strangely, even in closing argument to the jury, Klesch did not claim that

it was entitled to damages under the June 7 agreement. Thus, it is understandable

that when Liberty moved under Rule 50 to preclude Klesch from recovering under

the June 7 agreement, the district court initially expressed surprise, stating that it

had “absolutely heard nothing, particularly since [hearing Klesch’s] closing, that

suggests that [Klesch] is seeking damages based on the June 7 agreement.” A plt.

App. Vol. V at 1575.

         Accordingly, we see no abuse of discretion here. The district court could

properly have decided that the pretrial order did not include a claim by Klesch for

damages under the June 7 agreement. Klesch argued in its reply brief in this

court that Liberty would not have been prejudiced by trying that claim, but that

was too late to raise this argument. We do not ordinarily consider arguments

raised for the first time in a reply brief. See United States v. Hall, 473 F.3d 1295,

1301 n.1 (10th Cir. 2007). And we can hardly infer that Liberty would not have

                                         -13-
been prejudiced when it has had no occasion to proffer evidence regarding the

alleged damages from breach of the June 7 agreement.

      Klesch also appears to contend that the district court’s instruction

prevented the jury from any consideration of the June 7 agreement in assessing

Klesch’s claims. For instance, it seems to argue that the instruction precluded the

jury from finding that Liberty had fraudulently induced Klesch to sign the June 7

agreement. But the court’s instruction was not so broad. It said: “[Klesch]

cannot recover damages under the June 7, 2001 agreement.” Aplt. App. Vol. V at

1600. The instruction precluded the jury only from awarding Klesch contractual

damages under the June 7 agreement. It did not preclude Klesch’s fraud claim or

reference to the agreement in assessing that claim. W e presume that juries follow

the court’s instructions as given. See Questar Pipeline Co. v. Grynberg, 201 F.3d

1277, 1287 (10th Cir. 2000). W e find no error in the instruction.

      B.     M isappropriation

      The district court instructed the jury on Klesch’s misappropriation claim as

follows: “A misappropriation has occurred when one either w rongfully profits

from another’s expenditure of labor, skill or money, or capitalizes wrongfully on

commercial values earned over a period of time.” Aplt. A pp. Vol. V I at 1790.

Klesch objected at trial and proposed an alternative instruction that did not

require Liberty to have benefitted from the misappropriation: “A

misappropriation has occurred if a party uses the business value created by

                                        -14-
another to profit itself or if it intentionally exercised dominion or control over an

opportunity created or obtained by another through the expenditure of the other’s

own time, labor, skill, or money.” Aplt. A pp. Vol. I at 151.22 (emphasis added).

Klesch noted that it was seeking an instruction “from conversion cases.” Aplt.

App. Vol. V at 1386.

      The district court based its instruction on Heller v. Lexton-Ancira Real

Estate Fund, Ltd., 809 P.2d 1016, 1021 (Colo. Ct. App. 1990), rev’d on other

grounds, 826 P.2d 819 (Colo. 1992), which stated, “W e view the tort of ‘unfair

misappropriation’ as occurring when one either w rongfully profits from another’s

expenditure of labor, skill or money, or capitalizes wrongfully on comm ercial

values earned over a period of time.” Klesch attempts to distinguish this case

from Heller by observing that “Heller involved profits allegedly gained and lost

through improper competition,” and is therefore not in point. Aplt. Reply Br. at

30. But Heller addresses “unfair misappropriation” generally. See Heller, 809

P.2d at 1020–21. The opinion in no way suggests that its description of the tort is

confined to a particular context. It is irrelevant that the facts in that case are not

identical to the facts here.

      In contrast, the opinion on which Klesch relies, Solar Systems &

Peripherals, Inc. v. Burress (In re Burress), 245 B.R. 871 (Bankr. D. Colo. 2000),

did not attempt in any way to define the tort of unfair misappropriation. The

issue before the court in Burress was w hether a debt was nondischargeable

                                          -15-
because it was incurred as a result of intentional wrongdoing. The court wrote:

“The facts admitted to by the D ebtor establish that he misappropriated business

opportunities for his benefit to the detriment of his employer, effectively a

conversion. W hat must now be determined by this Court, is whether it was done

with intent to injure the Plaintiff.” Id. at 880. But this sentence does not purport

to state the elements of misappropriation. Instead, it was merely a description of

the misconduct as an introduction to the analysis of the tortfeasor’s intent. Even

more clearly inapposite are Klesch’s citations to Restatement (Second) of Torts

§§ 222A and 227, which discuss the tort of conversion, not misappropriation.

        In essence, what Klesch sought was an instruction on conversion. But

because its claim was always for misappropriation, not conversion, this argument

is unavailing. There was no error in the misappropriation instruction.

        C.    Causation

        The theory of damages set forth by Klesch in the pretrial order w as that it

was entitled to the value of the opportunity that Liberty had wrongfully

expropriated when it pursued alone the acquisition of the German cable

companies. The pretrial order stated that Klesch would base its claim for

damages on the value of its opportunity at the time of the expropriation. In

closing argument Klesch alleged that the expropriation occurred in M ay or June

2001.




                                          -16-
      At trial Klesch’s expert testified to the price “a willing buyer would pay a

willing seller” for the right to Klesch’s share of the future Telekom deal as of

M ay 2001. Aplt. App. Vol. III at 931. The expert did not adjust his calculations

for the possibility that the deal might not conclude; instead, he stated that he had

assumed that the deal would be consummated and that the jury needed “to

recognize and to make an adjustment for the reality which is that as of M ay 2001,

nobody knew for sure whether the deal would have gone through.” Id. Thus,

Klesch’s computation of damages w ould not be affected by whether the deal with

Telekom w as ultimately approved by the German Cartel Office. Instead, the

possibility of the Cartel Office’s disapproving the acquisition would have been

factored into the assessment in M ay 2001 of the value of Klesch’s interest.

      Klesch nevertheless complains that the jury instruction on causation

required the jury to deny recovery on the ground that the deal later fell through.

The challenged instruction was as follow s:

             The word “cause” as used in these instructions means an act or
      failure to act that in natural and probable sequence produced the
      claimed injury. It is a cause without which the claimed injury would
      not have happened.
             If more than one act or failure to act contributed to the claimed
      injury, then each act or failure to act may have been a cause of the
      injury. A cause does not have to be the only cause or the last or
      nearest cause. It is enough if the act or failure to act joins in a
      natural and probable w ay with some other act or failure to act to
      cause some or all of the claimed injury. Thus, if the defendant’s act
      or failure to act substantially contributes to an injury, it is a cause of
      that injury, even though other factors, including factors beyond the
      defendant’s control, may also have contributed to the claimed injury.

                                         -17-
      The defendants’ conduct is not a substantial contributing cause in
      bringing about harm to the plaintiff if the harm would have been
      sustained even if the defendant had not committed the wrongful act.
      The plaintiff must prove that the defendant’s conduct is a substantial
      contributing cause of the injury.
            One’s conduct is not a cause of another’s injuries, however, if
      in order to bring about such injuries, it was necessary that his or her
      conduct combine or join an intervening cause that also contributed to
      cause the injuries. An intervening cause is a cause that would not
      have been reasonably foreseen by a reasonably careful person under
      the same or similar circumstances.

Aplt. App. Vol. VI at 1795 (emphasis added).

      Klesch takes issue with the instruction’s statement that “[t]he defendants’

conduct is not a substantial contributing cause in bringing about harm to the

plaintiff if the harm would have been sustained even if the defendant had not

comm itted the wrongful act.” Id. This is a straightforward statement of but-for

causation. Klesch argues, however, that under Colorado law, “conduct can be a

substantial cause even where the harm would have happened anyway if the

defendant’s actions as well as the other causal forces would have each been

sufficient to bring about the harm.” A plt. Br. at 35. It points to a classic example

from tort law: when a negligently caused fire and a lightning-caused fire combine

and burn down a house, both are causes of damage to the house and the tortfeasor

who started one of the fires is liable, even if either fire would have been sufficient

to cause the same damage. See Restatement (Second) of Torts § 432 cmt. d, illus.

4.




                                         -18-
      W e understand Klesch to analogize the two fires to two causes of harm in

this case: (1) Liberty’s expropriation of Klesch’s opportunity for the deal with

Telekom, and (2) the German Cartel Office’s rejection of that deal. Klesch seems

to be suggesting that the causation instruction improperly told the jury to deny

recovery for the expropriation if the Cartel Office’s rejection meant that Klesch

would have gained nothing anyway. Perhaps this argument would have made

sense if Klesch had been seeking damages equal to what it would have gained had

the deal gone through. But that was not what Klesch sought. The argument is

inconsistent with Klesch’s damages theory, which was the theory conveyed by the

court’s unchallenged instructions to the jury on damages. In particular, the jury

was told that events after Liberty’s misconduct were irrelevant. Instruction No.

58 said:

             Any damages suffered by Klesch & Company became fixed at
      the time of Liberty M edia’s wrongful conduct. If you find for Klesch
      & Company on any of its claims, you must determine the amount of
      damages suffered by Klesch & Company as of the time of the breach
      or other misconduct. Events taking place subsequent to the time of
      the breach are not generally relevant to the calculation of dam ages.

Aplt. App. Vol. VI at 1794 (emphasis added). The jury was similarly instructed

that “Loss of [Klesch’s] property or assets caused by [Liberty’s] misconduct . . .

are determined by the fair market value of the asset at the time of the loss. The

fair market value is the price at which the property or asset would change hands

betw een a willing buyer and a willing seller.” Instruction No. 57, id. at 1793.



                                        -19-
       Klesch’s damages were thereby fixed as of M ay (or possibly June) 2001.

The Cartel Office’s rejection of the deal would have no effect on the damages

calculation. That rejection occurred well after June 2001, and the fact of the

rejection could not change the probability as of M ay or June 2001 of the deal’s

rejection. Accordingly, the jury, if it complied w ith the court’s instructions,

could not have denied Klesch recovery based on the action of the Cartel O ffice.

(No one has contended, or could contend, that the rejection was certain at the time

of the alleged expropriation.) Although the causation instruction may have been

flawed (we need not decide the issue), we are confident that the flaw alleged by

Klesch could not have affected the verdict.

III.   C ON CLU SIO N

       The district court’s judgment is AFFIRMED.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




                                         -20-
