                                                              FILED
                                                  United States Court of Appeals
                   UNITED STATES COURT OF APPEALS         Tenth Circuit

                           FOR THE TENTH CIRCUIT                              March 7, 2019
                           _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
 BLACK CARD, LLC,

          Plaintiff - Appellant,

 v.                                                        No. 17-8040
                                                  (D.C. No. 2:15-CV-00027-SWS)
 VISA U.S.A., INC.,                                          (D. Wyo.)

          Defendant - Appellee.

                           _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BRISCOE, BALDOCK, and EID, Circuit Judges.
                  _________________________________

      On December 31, 2013, a five-year contract—called the Promotional

Agreement—between the luxury credit card company Black Card, LLC (Black Card)

and the credit network Visa U.S.A. (Visa) expired. Under the terms of the

Promotional Agreement, Black Card agreed to develop and promote its credit card on

the Visa network in exchange for annual payments by Visa. After the expiration of

the Promotional Agreement, the parties attempted to negotiate a new contract over




      *
          This order and judgment is not binding precedent, except under the doctrines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.
the course of several months in 2014. Negotiations broke down, however, and Black

Card eventually switched to the MasterCard payment network.

      Black Card sued Visa under several contract and tort theories, including breach

of contract, breach of implied contract, promissory estoppel, equitable estoppel, and

unjust enrichment. Black Card also sought punitive damages. The district court

granted summary judgment to Visa on all claims. We reverse on the breach of

implied contract, unjust enrichment, and punitive damages claims, and affirm on the

breach of contract and estoppel claims.

                                          I.
      Visa is a technology company that enables consumers and businesses to make

and receive payments using credit cards through the company’s electronic payment

network. Visa is a payment network, not a bank, so it does not issue credit cards or

have a direct relationship with cardholders. Rather, it partners with banks that issue

credit cards, allowing the banks to use Visa’s payment network. Visa processes the

transactions made by cardholders, while the issuing bank extends credit, pays sellers,

and bills cardholders. To use the payment network, issuing banks must agree to

comply with Visa’s regulations and brand standards.

      Banks often contract with third parties called “co-brand partners” to market

cards to the co-brand partner’s customers. A familiar example is an airline credit

card, which offers rewards to cardholders like frequent-user points or free checked

bags. Co-brand partners typically do not have a contractual relationship with the

payment network. Instead, the payment network will contract directly (and only)


                                           2
with the issuing bank and give that bank the right to issue cards with access to the

payment network. The issuing bank is then free to make its own arrangement with

co-brand partners to promote and market those cards.

      Black Card is a co-brand partner that develops and markets luxury credit cards

for affluent individuals. In 2008, Black Card partnered with Barclays Bank Delaware

(Barclays). Barclays agreed to be the issuing bank for the Black Card credit card,

while Black Card marketed the credit card to new cardholders and provided

cardholders with exclusive benefits. Barclays and Black Card decided to issue the

card on the Visa network.

      Because Barclays was already an approved card issuer on the Visa network,

Visa’s approval or involvement was not required. However, in this instance, Visa

decided to contract directly with Black Card. On November 20, 2008, Visa and

Black Card signed the Promotional Agreement, under which Black Card would

develop and promote the Barclays-issued Black Card credit card exclusively on the

Visa network in exchange for annual payments by Visa. Black Card was obligated to

use these payments solely to market and promote the Black Card credit card. Visa

had the right to review and approve “[a]ll written and broadcast materials” created by

Black Card, provided such approval “will not be unreasonably withheld.” The

Agreement further stipulated that “[e]ach party will allow the other party at least ten

(10) business days from receipt to review such materials. If for any reason the

reviewing party does not respond within ten (10) business days, such materials will




                                           3
be deemed approved.” The Agreement was to last five years, expiring by its terms on

December 31, 2013.

      Over the course of the contractual relationship, Visa and Black Card often

disputed the use of the word “Visa” in Black Card advertisements. Visa was

concerned about potential consumer confusion that the Black Card credit card was a

Visa product. As such, Visa objected to marketing materials that referred to the card

as the “Visa Black Card,” instead preferring the term “Black Card Visa Card” or

simply “Black Card.” Despite these objections, Visa sometimes approved the release

of marketing materials that contained the “Visa Black Card” phrase.

      On December 11, 2013, Black Card sent Barclays the proposed designs for its

January direct mail marketing campaign, which Barclays forwarded to Visa on

December 16 for approval. That same day, Visa responded to Barclays via email:

“Please hold the presses . . . will give you a shout.” Four days later, on December

20, Black Card resubmitted the direct mail materials with a number of amendments,

including removal of the phrase “Visa Black Card” in several places.

      Over the course of the next four weeks, Visa delayed providing an answer

regarding approval of the marketing materials, despite inquiries from Barclays. On

January 15, Black Card CEO Scott Blum (Blum) emailed Visa asking for an update

on the approval of the marketing materials. On January 17, 2014, Visa approved the

amended marketing materials on a “one-time only basis.” Black Card claims this

delay cost them significant marketing momentum.




                                          4
      The Promotional Agreement expired on December 31, 2013. Earlier, on

December 2, Visa reached out to Black Card about signing a new contract and

anticipated having a formal offer by December 16. Blum asserts that he was assured

by a Visa executive that a new agreement was “going through legal” and the parties

should continue “business as usual.” The expiration date on the Promotional

Agreement was fast approaching, but Visa informed Black Card that “if we can target

signing a new contract by March 31, 2014, we will not have any interruption in

payments to Black Card,” because Visa could back-date the agreement to the

beginning of the quarter. In other words, the parties did not need to immediately sign

a new agreement, but if they delayed too long, accounting concerns might disrupt the

annual incentive payments.

      Black Card signed a new five-year contract with Barclays on January 1, 2014,

meaning Barclays would continue issuing the Black Card credit card. Though the

Visa/Black Card written contract had expired, Barclays and Black Card could and did

still use the Visa payment network without a contract between Visa and Black Card.

Following the expiration of the contract, Black Card continued to market its credit

card, and Barclays continued to submit those marketing materials to Visa for

approval—the same process under which the parties operated while the Promotional

Agreement was in effect. While Visa approved the marketing campaigns in early

2014, it expressed reservations about the “Visa Black Card” phrase that Black Card

continued applying.




                                          5
      On January 27, 2014, Blum emailed Visa regarding a major branding overhaul

of the Black Card brand. Black Card intended to change its company name to

Luxury Card,1 revise its packaging and card designs, and issue two new credit cards

(the “Titanium” and “Gold” cards). On February 10, Visa replied: “Please proceed in

marketing ‘business as usual’ until we have the opportunity to discuss. Continue to

run materials past Barclays for their review and approval.”

      On February 18, Visa emailed Black Card informing Black Card that Visa had

processed “the final payment owed to Black Card under the terms of our expired

agreement.”

      Negotiations for a new contract between Visa and Black Card dragged on

through 2014. At one point, Visa offered a financial package to Black Card worth up

to $55 million. At this juncture, Black Card claims it was operating under the

assumption that an implied contract existed, extending the terms of the expired

Promotional Agreement until a new deal was signed. However, negotiations stalled

and no new contract materialized.

      During 2014, Visa withheld approval of Black Card marketing materials three

times—in May, June, and July. Black Card claims the ensuing delays to revise the

materials were financially harmful and they negatively affected the performance of

the company. Black Card was in the process of debuting the new Gold and Titanium




      1
          For continuity’s sake, we will continue to refer to the company as “Black Card.”

                                             6
Cards and claims to have been forced to stall the rollout until Visa’s concerns were

addressed.

      In the summer of 2014, apparently frustrated with its relationship with Visa,

Black Card began negotiating with MasterCard, a rival payment network, about

moving Black Card onto the MasterCard payment network. Black Card and

MasterCard signed an agreement in November 2014, and Black Card stopped

marketing the Visa-branded credit card in April 2015. Existing Black Card credit

cards moved to MasterCard’s network and new customers could apply for a

MasterCard Black Card in January 2016. The terms of the Black Card/MasterCard

agreement are similar to the expired Black Card/Visa agreement: Black Card would

exclusively use the MasterCard network and obtain approval before sending out

marketing materials, and MasterCard would pay Black Card fees based on transaction

volume.

      Black Card claims it was forced to “abandon” hundreds of millions of dollars

it invested in marketing the Visa Black Card after it switched to MasterCard. It

asserts that it lost a significant percentage of its cardholder population by switching.

      Black Card filed suit against Visa in February 2015. The district court had

diversity jurisdiction under 28 U.S.C. § 1332. Black Card alleged nine claims for

relief against Visa: (1) breach of implied duty of good faith and fair dealing; (2)

breach of contract; (3) breach of implied-in-fact contract; (4) equitable estoppel; (5)

promissory estoppel; (6) interference with a contractual relationship; (7) interference

with a prospective economic advantage; (8) unjust enrichment; and (9) punitive


                                            7
damages. Black Card conceded summary judgment for claims six (interference with

a contractual relationship) and seven (interference with a prospective economic

advantage). After discovery, Visa moved for, and the district court granted, summary

judgment on all remaining claims. Black Card appeals that judgment. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm in part and reverse in part.

                                           II.

      A “court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). This court reviews grants of summary

judgment de novo, drawing all reasonable inferences and resolving all factual

disputes in favor of the non-moving party. Cerveny v. Aventis, Inc., 855 F.3d 1091,

1095 (10th Cir. 2017). Summary judgment is inappropriate if “there are any genuine

factual issues that properly can be resolved only by a finder of fact because they may

reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 250 (1986). But “[t]he mere existence of a scintilla of evidence in

support of the plaintiff’s position will be insufficient; there must be evidence on

which the jury could reasonably find for the plaintiff.” Id. at 252. A grant of

summary judgment will be upheld if “the evidence is so one-sided that one party

must prevail as a matter of law.” SEC v. Thompson, 732 F.3d 1151, 1157 (10th Cir.

2013) (quotations omitted). We apply these standards to each of Black Card’s

claims.




                                           8
                                           A.

        We turn first to Black Card’s breach of contract claim.

        Under the Promotional Agreement, Visa had the right to review and approve

“[a]ll written and broadcast materials” created by Black Card, provided such

approval “will not be unreasonably withheld.” The Agreement further stipulated that

“[e]ach party will allow the other party at least ten (10) business days from receipt to

review such materials. If for any reason the reviewing party does not respond within

ten (10) business days, such materials will be deemed approved.” A411.

        Black Card argues that Visa unreasonably withheld approval of marketing

materials in December 2013—the last month in which the Promotional Agreement

was operative. On December 11, Black Card emailed the marketing materials for the

January marketing campaign to Barclays, and on December 16, Barclays forwarded

the materials to Visa. Visa responded four minutes later: “Please hold the presses . . .

will give you a shout.” A278 (ellipsis in original). Black Card “updated” the

materials to remove several uses of the phrase “Visa Black Card” and sent them to

Barclays on December 20, who sent them on to Visa for approval. A284. Email

chains between Barclays and Visa from late December and early January indicate that

Barclays was pushing Visa for its response—approve or disapprove—to the amended

materials. See, e.g., A283. On January 17, Visa approved the marketing materials.

A287.

        Black Card contends that Visa’s instruction to “hold the presses” constituted a

rejection of the marketing materials, and because the materials were “substantially


                                            9
identical to previous mailings,” Visa’s rejection was unreasonable, in violation of the

Agreement. See Aplt. Br. at 28. Visa points out that the amended materials were

eventually approved, but Black Card argues that is irrelevant. According to Black

Card, the amended materials have no bearing on the matter, because the purported

rejection of the original materials, sent to Visa on December 16, is the foundation of

its claim. See Reply Br. at 2–5.

      Black Card, however, failed to present this theory to the district court. Instead,

it argued that Visa exhibited a “pattern of delaying and stalling” which ultimately

constituted a rejection. See A108. Nowhere did it argue that the December 16 “hold

the presses” email constituted a rejection in and of itself, even when prompted to do

so by the district court.2 Its argument that it preserved the “hold the presses”

argument hinges on a single citation in its statement of facts in its summary judgment

response brief. Black Card stated that: “In December, 2013, Visa—for the first

time—would not approve Black Card’s January direct marketing campaign. (Ex. 35,

Barclays 107-108.)” A103. Exhibit 35 was the “hold the presses” email. The next

paragraph refers to Visa’s ultimate approval of the amended marketing materials on

January 17—but did not inform the district court that the materials eventually

approved were different from the original materials. A104 ¶ 26.


      2
         At the summary judgment hearing, the district court asked: “And there was an
express rejection to [] Black Card’s material [in December 2013], or was there just a
delay in responding to it?” Counsel for Black Card replied: “Your Honor, to—I know we
attached that communication, and I—I admit I do not have that specific communication
in front of me, Your Honor.” SA1415. Again, rather than squarely presenting the district
court with its argument, Black Card referred the court to the record.

                                           10
       Black Card’s singular reference in the fact section of its brief to the “hold the

presses” email was insufficient to alert the district court that the email was the basis

of its breach of contract claim. “It is the general rule, of course, that a federal

appellate court does not consider an issue not passed upon below.” Singleton v. Wulff,

428 U.S. 106, 120 (1976). Furthermore, when “an issue is raised but not pursued in

the trial court, it cannot be the basis for the appeal.” Lyons v. Jefferson Bank & Tr.,

994 F.2d 716, 722 (10th Cir. 1993). “Where a litigant changes to a new theory on

appeal that falls under the same general category as an argument presented to the trial

court or presents a theory that was discussed in a vague and ambiguous way, the

theory will not be considered on appeal.” S. Hosp., Inc. v. Zurich Am. Ins. Co., 393

F.3d 1137, 1142 (10th Cir. 2004) (quotations and brackets omitted). Parties cannot

present one version of an argument and then, when that fails, try a different version

on appeal. S. Hosp, 393 F.3d at 1142. Further, we have held that an “argument that

could be inferred from a trial exhibit, but was not otherwise discussed, could not be

argued on appeal.” Lyons, 994 F.2d at 722 (referencing N. Nat. Gas Co. v. Hegler,

818 F.2d 730, 734 (10th Cir. 1987)). In this case, Black Card never argued to the

district court that the “hold the presses” email constituted a rejection, so the argument

is waived on appeal.

       Considering the argument that Black Card did pursue before the district

court—that Visa’s “pattern of delaying and stalling” constituted a rejection of the

marketing materials—we agree with the district court that there was no rejection

here, and therefore no breach of contract. It is true that Visa told Black Card to “hold


                                            11
the presses” on December 16 after receiving the original materials, and delayed in

providing its response to the amended materials until January 17. But a delay is not a

rejection. To the contrary, under the terms of the Promotional Agreement, a delay is

an acceptance. Per the Agreement, “[i]f for any reason the reviewing party does not

respond within ten (10) business days, such materials will be deemed approved.”

The original materials were superseded by the amended materials on December 20,

and once ten business days elapsed, the amended materials were deemed approved.

We therefore affirm the district court’s grant of summary judgment on Black Card’s

breach of contract claim.

                                          B.

      We next examine Black Card’s claim that the parties formed an implied

contract extending the Promotional Agreement. Black Card asserts that the conduct

and communications of both Black Card and Visa demonstrate that both parties were

continuing to operate under the terms of the Promotional Agreement until they agreed

to a new written contract, or until negotiations were abandoned. The district court

concluded the evidence showed that mutual assent to a new agreement was absent,

and therefore the parties were not subject to an implied contract. After reviewing the

record and the parties’ submissions, we conclude a genuine factual dispute exists as

to whether the parties agreed to be bound by an implied contract. Accordingly, we

reverse.




                                          12
       The existence and terms of an implied contract are manifested by conduct.

Cal. Civ. Code § 1621.3 “[A] contract implied in fact consists of obligations arising

from a mutual agreement and intent to promise where the agreement and promise

have not been expressed in words.” Retired Emps. Ass’n of Orange Cty., Inc. v. Cty.

of Orange, 266 P.3d 287, 290 (Cal. 2011) (quotation omitted). The terms of an

implied contract “ordinarily stand on equal footing with express terms.” Foley v.

Interactive Data Corp., 765 P.2d 373, 385 (Cal. 1988). “A commonly cited example

[of an implied contract] is where parties continue to perform under the terms of their

agreement after the written contract expires.” Telecom Asset Mgmt., LLC v.

Fiberlight, LLC, 203 F. Supp. 3d 1013, 1020 (N.D. Cal. 2016) (applying California

law); see also 17A Am. Jur. 2d Contracts § 17 (“If, after the expiration of a contract,

the parties to the contract continue to perform under the contract’s terms, the parties’

relationship is generally governed by a new, implied in fact contract that incorporates

the terms, or substantially the same terms, of the expired contract.”) (footnotes

omitted).




       3
         The Promotional Agreement included a choice of law provision that selected
California law in the event of litigation. The district court determined that California law
governs the implied contract claim. See Black Card, LLC v. Visa U.S.A., Inc., No. 2:15-
CV-00027, 2017 WL 3600721, at *3–4 (D. Wyo. Apr. 11, 2017). Neither party
challenged the district court’s choice of law analysis regarding this claim on appeal, so
we also apply California law. See, e.g., Strickland Tower Maint., Inc. v. AT&T Comm.,
Inc., 128 F.3d 1422, 1426 (10th Cir. 1997) (“The district court applied Oklahoma law to
this case and neither party challenges that finding on appeal. Therefore, we accept the
view of the district court that Oklahoma law applies.”).

                                            13
       Black Card argues that the conduct and communications of Black Card and

Visa demonstrate that the two parties formed an implied contract after the expiration

of the Promotional Agreement. Specifically, Black Card contends there was an

accepted agreement between the two parties, not expressed in writing, that they

would continue “business as usual” while negotiations for a new written contract

were being conducted. According to Black Card, the parties had agreed to continue

to be bound by the terms of the Promotional Agreement in the interim between the

expiration of the first contract and the execution of the second—until it became

obvious that agreement to a second contract would not be forthcoming.4

       After resolving all factual disputes in Black Card’s favor, as we must when

reviewing a grant of summary judgment, we conclude the evidence raises a genuine

issue of fact whether the implied contract existed. Based on the following record

evidence, a reasonable factfinder could determine that Visa performed either under

an alleged implied contract with Black Card, or for some other reason. Summary

judgment is therefore improper.




       4
          Visa contends that Black Card argued below that the implied contract was a
renewal of the entirety of the Promotional Agreement, whereas here Black Card argues
for the first time that the implied contract covers only the period between the expiration
of the first written contract and the execution of the second. We disagree with Visa’s
characterization. Black Card argued that the parties “were acting under an implied
continuation of the Promotional Agreement,” and the “implied contract [was] similar to
that created in a ‘hold-over’ situation.” A109, 111, Black Card’s Resp. to Visa Mot.
Summ. J. at 14, 16. Given the context of the case, we think it clear that Black Card was
arguing below that the purported implied contract was a stopgap between written
agreements.

                                            14
        On December 2, 2013, Visa informed Black Card via email that a proposal for

a new contract was in the works at Visa. A277. Visa stated that “if we can target

signing a new contract by March 31, 2014, we will not have any interruption in

payments to Black Card” because the contract could be backdated to the beginning of

the year. Id. Black Card CEO Scott Blum stated in a deposition that he was assured

via phone call with a Visa executive in December 2013 that the parties would

continue “business as usual”:

        Well, I called [the Visa executive] saying, “Hey, our agreement’s about
        to end,” and he says, “Well, we’ve already got it approved, it’s just” –you
        know, “just going through legal. Don’t worry about it. It’s on its way.
        It’s business as usual.[”] So I said, “Okay, I don’t like doing business
        without having an agreement in place, but I’ll—I trust you on this,” and
        that was basically the conversation.

A251.

        By the end of 2013 and the beginning of 2014, the parties were bogged down

in their dispute over approval of the January marketing materials, but no mention was

made of the expired Promotional Agreement. See A278–87. On January 27, Black

Card emailed Visa detailing Black Card’s rebranding to Luxury Card, and the

introduction of two new cards to complement the Black Card credit card. SA416.

Visa responded on February 10: “Please proceed in marketing ‘business as usual’

until we have the opportunity to discuss. Continue to run materials past Barclays for

their review and approval.” Id.

        Throughout 2014, Black Card continued to submit marketing materials to

Barclays, who submitted them to Visa for approval. See A231–244. Black Card



                                            15
remained on the Visa network during 2014. Visa continued to process transactions

made by Black Card credit cards, and charged its customary fees on each card swipe.

      On these facts a reasonable factfinder could conclude that the parties were

operating under an implied contract. Visa made assurances to Black Card that it was

“business as usual” despite the expiration of the Promotional Agreement.

Additionally, the parties continued performing under the terms of the Agreement:

before each marketing campaign in 2014, Black Card submitted its marketing

materials to Visa for approval or disapproval before publishing them, and Visa

continued to exercise those approval rights. Black Card also continued to use the

Visa payment network. It is true that Black Card could have used the Visa network

without any contract with Visa, but that is an issue for a factfinder to resolve. A

reasonable jury could find that Visa’s assurances and the parties’ conduct were

evidence of an implied contract.

      Visa, of course, sees the evidence in a different light, and asserts that a

reasonable jury could not find the existence of an implied contract. But when

determining whether an implied contract exists, reasonable competing interpretations

of the evidence should be resolved by a jury. Anderson, 477 U.S. at 254 (“[T]he

weighing of the evidence, and the drawing of legitimate inferences from the facts are

jury functions, not those of a judge.”). For example, regarding the February 10

“business as usual” email, Visa contends that its response was an encouragement for

Black Card to continue running marketing materials through Barclays for approval,

pending a Visa/Black Card discussion of Black Card’s rebranding plan. SA416. In


                                           16
other words, Visa claims the email was unrelated to an extension of the Promotional

Agreement. This is a factual disagreement that is most appropriately resolved by a

jury.

        Visa also points to its February 18 email to Black Card, which stated that

Visa’s February 2014 payment “represents the final payment owed to Black Card

under the terms of our expired agreement.” SA338. According to Visa, this email

represents a clear expression that the parties’ contractual relationship was finished.

Black Card, though, views the email as mere confirmation that the written agreement

had expired, with no bearing on whether the parties were operating under an implied

agreement. Again, we find that a reasonable dispute exists about the meaning of the

evidence, rendering summary judgment inappropriate.

        Visa also argues that Black Card’s continued submission of marketing

materials for Visa’s review is equally consistent with the absence of a contractual

arrangement. For example, Visa asserts that Black Card was obligated to present its

marketing materials to Barclays for Visa approval, because Visa had the right to

review products that display the Visa brand. Additionally, Visa claims that, because

Black Card had executed a new five-year deal with Barclays in January 2014, Black

Card was bound to continue marketing its cards anyway. Regardless of the merits of




                                           17
these arguments,5 they suffer from the same deficiency: they are competing, but not

dispositive, interpretations of the behaviors of the parties.

       Finally, Visa argues that the terms of the supposed implied contract were too

vague and indefinite to support its existence. “In order for a contact to be formed,

the contract terms must be clear enough that the parties can understand what each is

required to do.” Hynix Semiconductor Inc. v. Rambus Inc., 441 F. Supp. 2d 1066,

1073 (N.D. Cal. 2006) (citing Restatement (2d) of Contracts § 33(1) (1981)).

“Where a contract is so uncertain and indefinite that the intention of the parties in

material particulars cannot be ascertained, the contract is void and unenforceable.”

Ladas v. Cal. State Auto. Ass’n., 23 Cal. Rptr. 2d 810, 814 (Cal. Ct. App. 1993)

(quotation omitted). Visa claims that the duration, financial terms, and other

necessary provisions of the supposed implied agreement were undecided. But if

Black Card is right and the parties agreed to continue operating under the

Promotional Agreement, then the terms are simply those of the Agreement. The only

change would be the duration, which, according to Black Card, would be until the

new contract was signed or negotiations proved fruitless.

       Based on the foregoing, we reverse the district court’s grant of summary

judgment on Black Card’s implied-contract claim. Additionally, because the district

court determined no implied contract existed, it also granted summary judgment for



       5
         We note that the record provides thin support for Visa’s claim that it possesses
the right of prior review of marketing materials for every co-brand credit card that uses
its network. Again, however, that is an issue to present to the jury.

                                            18
Visa regarding Black Card’s claim that Visa breached the duty of good faith and fair

dealing inherent in the implied contract. See Horn v. Cushman & Wakefield W., Inc.,

85 Cal. Rptr. 2d 459, 474 (Cal. Ct. App. 1999) (“Where there is no underlying

contract there can be no duty of good faith arising from the implied covenant.”).

That ruling depends on the now-reversed grant of summary judgment on the implied-

contract claim. Accordingly, we reverse the district court’s holding as to Black

Card’s claim of a breach of the duty of good faith and fair dealing as well.

                                             C.

       Black Card also presses claims of promissory and equitable estoppel against

Visa. On these claims, we affirm the district court’s grant of summary judgment.

       “Under California law, the elements of promissory estoppel are (1) a promise

clear and unambiguous in its terms; (2) reliance by the party to whom the promise is

made; (3) the reliance must be both reasonable and foreseeable; and (4) the party

asserting the estoppel must be injured by his reliance.”6 Sateriale v. R.J. Reynolds

Tobacco Co., 697 F.3d 777, 792 (9th Cir. 2012) (citing U.S. Ecology, Inc. v. State, 28

Cal. Rptr. 3d 894, 905 (Cal. Ct. App. 2005)). “Estoppel cannot be established from

preliminary discussions and negotiations.” Garcia v. World Sav., FSB, 107 Cal. Rptr.

3d 683, 695 (Cal. Ct. App. 2010) (quotations and ellipsis removed). To be

enforceable, a promise must be “definite enough that a court can determine the scope

of the duty[.]” Id. at 696.


       6
         Neither party disagrees with the district court’s decision to apply California law
to the promissory estoppel claim. See Aplt. Br. at 42 n.13; Aple. Br. at 40 n.11.

                                             19
      Black Card contends that all four elements of promissory estoppel are present

here. It claims that Visa’s encouragement to continue “business as usual” was a clear

and unambiguous promise; it relied on that promise by continuing to spend millions

of dollars on co-branded marketing materials; such reliance was reasonable and

foreseeable by Visa; and it was injured when Visa “drove Black Card off the Visa

network,” resulting in the loss of its marketing investments and a reduced subscriber

base. Aplt. Br. at 42.

      We agree with the district court that Visa made no clear and unambiguous

promise on which Black Card reasonably relied. Black Card bases its claim on the

email response from Visa stating: “Please proceed in marketing ‘business as usual’

until we have the opportunity to discuss. Continue to run materials past Barclays for

their review and approval.” SA416. This does not constitute a clear and

unambiguous promise. Visa did not tell Black Card that a long-term contract would

definitely be forthcoming, and it did not encourage Black Card to continue to spend

“millions of dollars” on marketing materials. Additionally, the email’s conditional

nature (“until we have the opportunity to discuss”) makes it even more ambiguous.

See Laks v. Coast Fed. Sav. & Loan Ass’n, 131 Cal. Rptr. 836, 839 (Cal. Ct. App.

1976) (“[A] conditional commitment . . . places the offeree on notice that finalization

of the terms will undoubtedly require further negotiations.”). The parties were

indisputably involved in negotiations to renew the written agreement, and at no point

did they come close to agreeing to terms. Because “[e]stoppel cannot be established

from preliminary discussions and negotiations,” Garcia, 107 Cal. Rptr. 3d at 695


                                          20
(quotations and ellipsis removed), the district court properly granted summary

judgment on Black Card’s claim.

       Black Card states that the district court erred by “conflating the ongoing

relationship between the parties during the interregnum with their negotiations over

their future relationship.” Aplt. Br. at 43–44. But even if that is the case, then Black

Card’s reliance on the promise would have been unreasonable or unforeseeable,

failing the third prong of promissory estoppel.7 If Visa’s promise was to continue

“business as usual” until either (1) a new agreement was signed or (2) the

negotiations broke down, Black Card should accordingly have been on notice that the

negotiations might fail. Visa never represented that a new contract was a certainty,

and Black Card’s expenditures on marketing materials was a gamble that such an

agreement would be reached. Black Card’s reliance would only be reasonable if Visa

promised that a long-term agreement would emerge, which Black Card does not

allege. Even if we consider the events as Black Card frames them, the elements of

promissory estoppel are absent here.

       Summary judgment on Black Card’s claim of equitable estoppel was also

appropriate. Under Wyoming law, equitable estoppel is a tort doctrine that gives rise

to relief “when a party, by acts, conduct, or acquiescence causes another to change

his position.” Birt v. Wells Fargo Home Mortg., Inc., 75 P.3d 640, 653 (Wyo. 2003)



       7
         While the district court made no findings on the reasonableness of Black Card’s
reliance, it is well settled that we may affirm the district court on any basis supported by
the record. Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011).

                                             21
(quoting Roth v. First Sec. Bank, 684 P.2d 93, 96 (Wyo. 1984).8 “The elements of

equitable estoppel are a lack of knowledge, reliance in good faith, and action or

inaction that results in an injury.” Id. “Equitable estoppel is similar to promissory

estoppel, but equitable estoppel is a tort doctrine that requires proof of

misrepresentation.” Id.

       We agree with the district court that Black Card could not have reasonably

relied on Visa’s representations as a basis for its change of position. Black Card

claims that Visa represented “that it intended to renew the Promotional Agreement

and that the parties would continue to operate on a ‘business as usual’ basis until

reaching a new agreement.” Black Card asserts it would not have purchased Visa-

branded promotional materials without such representations. However, as discussed



       8
         The district court applied Wyoming law in reviewing this claim, because
equitable estoppel is considered a tort doctrine under Wyoming law, rather than a
contract doctrine. Black Card, 2017 WL 3600721 at *7 (citing Birt, 75 P.3d at 653). The
court concluded the alleged tort was committed in Wyoming and is therefore governed by
Wyoming law. Id.; see Duke v. Housen, 589 P.2d 334, 341 (Wyo. 1979); Jack v.
Enterprise Rent-A-Car Co. of Los Angeles, 899 P.2d 891, 894 (Wyo. 1995).
        Visa asserts in a footnote that California law should apply to the equitable estoppel
claim but hedges its bets by arguing the issue under both Wyoming and California law.
Visa’s cursory choice-of-law argument is not enough to count as proper presentation of
the issue on appeal. See Bronson v. Swenson, 500 F.3d 1099, 1104 (10th Cir. 2007)
(“[W]e routinely have declined to consider arguments that are not raised, or are
inadequately presented, in an appellant’s opening brief.”). But even assuming the
footnoted argument was sufficient to avoid waiver, we need not resolve the choice-of-law
question. Black Card loses under either Wyoming or California law. Black Card has not
established the requirements of Wyoming equitable estoppel, and under California law
there is no stand-alone cause of action for equitable estoppel. Moncada v. W. Coast
Quartz Corp., 164 Cal. Rptr. 3d 601, 632 (Cal. Ct. App. 2013); Behnke v. State Farm
Gen. Ins. Co., 127 Cal. Rptr. 3d 372, 387–88 (Cal. Ct. App. 2011); Money Store
Investment Corp. v. So. Cal. Bank, 120 Cal. Rptr. 2d 58, 65 (Cal. App. 2002).

                                             22
above, it would not have been reasonable for Black Card to rely on Visa’s “business

as usual” statement as an assurance that the parties would reach an agreement.

      Further dooming the equitable estoppel claim, there is no “proof of

misrepresentation” by Visa. See Birt, 75 P.3d at 653. Black Card claims that Visa

represented that it would continue “business as usual” while the parties negotiated—

and that is what occurred. Visa never represented that the negotiations would be

successful. Because no misrepresentation occurred here, and Black Card was never

misled into believing that a renewed Promotional Agreement was a certainty, the

district court properly granted summary judgment to Visa on the promissory and

equitable estoppel claims.

                                           D.

      Black Card’s final claim for relief is under the theory of unjust enrichment.

We conclude the evidence is sufficient for a reasonable factfinder to find that unjust

enrichment occurred here. Accordingly, we reverse the district court’s grant of

summary judgment for Visa.

      To prevail on a claim of unjust enrichment, a plaintiff must prove that: (1)

valuable services were rendered; (2) to the party to be charged; (3) which services

were accepted, used, and enjoyed by the party to be charged; and (4) that the services

were furnished under such circumstances as would reasonably notify the party to be

charged that the plaintiff, in rendering such services, expected to be paid by the party




                                           23
to be charged. Jacoby v. Jacoby, 100 P.3d 852, 855 (Wyo. 2004).9 The fourth

element is actually two elements: “[n]ot only must the proponent of the theory prove

that the circumstances were such that the other party was reasonably notified that the

proponent expected to be paid for services rendered or materials furnished, but the

proponent must prove that without such payment, the party would be unjustly

enriched.” Id. at 856 (quotation and brackets omitted).

      “Unjust enrichment is an equitable remedy that is appropriate only when the

party to be charged has received a benefit that in good conscience the party ought not

retain without compensation to the party providing the benefit.” Id. Unjust

enrichment is meant to prevent a person from “enrich[ing] himself at the expense of

another[.]” Boyce v. Freeman, 39 P.3d 1062, 1066 (Wyo. 2002) (quotation omitted).

      Black Card argues that the record supports its unjust enrichment claim, and

therefore the district court’s dismissal of that claim was in error. It claims to have

rendered valuable services by marketing the co-branded credit card, and that Visa

accepted those services by approving the marketing materials. Because Visa earned

fees each time a Black Card credit card was used, Visa enjoyed the benefit of those

services. And Black Card claims that Visa was clearly on notice that Black Card

expected payment for those services, because Visa had paid Black Card over the

course of their prior dealings.



      9
        The parties and the district court agreed that Wyoming law applies to this claim.
Black Card, 2017 WL 3600721 at *4. Because neither party argued the issue on appeal
or before the district court, we apply Wyoming law.

                                           24
      The district court granted summary judgment by focusing on Black Card’s

claim in its Second Amended Complaint that it was entitled to “a percentage of the

revenue Visa received under the Black Card program.” A47–48. It noted that Black

Card could not claim such a percentage of revenues: even under the Promotional

Agreement, the incentive payments were based off year-over-year program sales

volume increase, not the revenues Visa obtained from each usage of the credit cards.

See SA152. The district court determined that because Visa’s revenue stream came

through Barclays—not Black Card—and because Visa earned those revenues by

processing credit card transactions, Visa was not unjustly enriched.

      The district court focused too narrowly on Black Card’s request for a

“percentage of revenue” in the Second Amended Complaint. The heart of Black

Card’s claim is that it rendered valuable services to Visa by marketing the co-

branded credit card, and it was entitled to, and expected to receive, payment for those

services. Black Card may have incorrectly characterized the expected payment in the

Second Amended Complaint as a “percentage of revenue Visa received under the

Black Card program,” but it later made clear that its expected payment would be

analogous to the incentive payments under the Promotional Agreement. See A145,

Black Card’s Resp. to Visa Mot. Summ. J. on Counts VIII and IX (“Visa accepted

Black Card’s valuable services under circumstances which reasonably notified it that

Black Card expected to be paid an incentive payment.”). The district court

incorrectly focused on the revenue model of the Visa/Barclays/Black Card

relationship without adequately addressing the substance of Black Card’s argument.


                                          25
      We conclude that Black Card has made out an unjust enrichment claim that

survives summary judgment. Black Card’s marketing of the co-branded credit card

could be considered a valuable service rendered to Visa, satisfying elements (1) and

(2) of Wyoming’s unjust enrichment framework. Visa appeared to accept the service

by approving the marketing materials throughout 2014, satisfying element (3). Based

on the parties’ prior course of business—which involved Visa paying Black Card—it

is possible that Visa was on notice that Black Card expected to be paid for the value

of its marketing efforts, satisfying element (4).

      Visa argues that Black Card could not have expected payment for the

marketing materials because of two email communications between the parties. The

first email, sent on December 2, 2013, stated: “From a contract perspective, if we can

target signing a new contract by March 31, 2014, we will not have any interruption in

payments to Black Card.” SA910. The second, sent on February 18, 2014, stated

that Visa had processed “the final payment owed to Black Card under the terms of

our expired agreement.” SA338. Visa contends that against the backdrop of these

communications, Black Card could not have a reasonable expectation of payment.

But this is a factual dilemma that should be decided by a factfinder.

      Visa also argues that because Black Card’s marketing efforts were primarily

for Black Card’s own benefit, its unjust enrichment claim should fail. In other

words, because the marketing materials’ primary purpose was enhancing Black

Card’s business, and Visa enjoyed only a “secondary” benefit, it would not be

equitable for Visa to compensate Black Card. However, Visa’s sole source of


                                           26
authority regarding this “primary” versus “secondary” distinction is a factually

dissimilar Utah case. See Aple. Br. at 50 (citing Jones v. Mackey Price Thomson &

Ostler, 355 P.3d 1000, 1018–19 (Utah 2015)). We are aware of no controlling rule of

law that the benefit conferred by the plaintiff must be wholly gratuitous.

      For the foregoing reasons, we reverse the district court’s grant of summary

judgment for Visa on Black Card’s unjust enrichment claim.

                                          E.

      Because it granted summary judgment for Visa on all of Black Card’s claims,

the district court also dismissed Black Card’s request for punitive damages. See

Cook v. Shoshone First Bank, 126 P.3d 886, 897 (Wyo. 2006) (“A claim for punitive

damages is an element of a cause of action; it does not constitute a separate claim or

cause of action. Summary judgment on the underlying claims effectively dispose[s]

of the punitive damages claim and no further discussion is necessary.” (citation

omitted)).10

      Our disposition revives Black Card’s claims for breach of implied contract and

unjust enrichment. Accordingly, on remand Black Card may proceed with its claim

for punitive damages based on these reinstated causes of action. We express no

opinion on the propriety of punitive damages; any arguments on the subject may be

brought before the district court on remand.



      10
          As with the unjust enrichment claim, the parties did not contest before the
district court that Wyoming law applies to the punitive damages claim. Black Card, 2017
WL 3600721, at *2. Both sides cite Wyoming law on appeal.

                                          27
                                         III.

      For these reasons, we REVERSE the district court’s grant of summary

judgment for Visa regarding Black Card’s claims for breach of implied contract,

unjust enrichment, and punitive damages. We AFFIRM the district court in all other

respects. The case is remanded for further proceedings consistent with this opinion.



                                                Entered for the Court


                                                Allison H. Eid
                                                Circuit Judge




                                         28
