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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                           United States Court of Appeals

                                No. 16-41261
                                                                    Fifth Circuit

                                                                  FILED
                                                            March 20, 2018

BEAR RANCH, L.L.C.,                                          Lyle W. Cayce
                                                                  Clerk
             Plaintiff - Appellant Cross-Appellee

v.

HEARTBRAND BEEF, INCORPORATED; RONALD BEEMAN; AMERICAN
AKAUSHI ASSOCIATION, INCORPORATED,

             Defendants - Appellees Cross-Appellants




                Appeals from the United States District Court
                     for the Southern District of Texas


Before REAVLEY, SOUTHWICK, and HAYNES, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      This appeal arises after more than five years of litigation between Bear
Ranch, a cattle ranch in Colorado, and HeartBrand Beef, a cattle ranch and
beef production company in Flatonia, Texas. We AFFIRM the district court’s
judgment in all respects except its decision to grant punitive damages to
HeartBrand. We conclude punitive damages are not justified under Texas law.
We REVERSE that award.
              FACTUAL AND PROCEDURAL BACKGROUND
      This appeal stems from a long-running dispute between HeartBrand
Beef, Incorporated, and Bear Ranch, LLC.       The subject of the contract is
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                                   No. 16-41261
Akaushi cattle, a specialty breed from Japan known for producing beef with
rich flavor, tenderness, and health benefits. Japanese laws protect Akaushi
cattle as a national treasure and restrict their export, which results in a limited
supply of the cattle in the United States.
      In the 1990s, HeartBrand’s predecessor imported 11 head of Akaushi
cattle from Japan to New York and eventually to Texas. In 2006, HeartBrand
acquired its predecessor’s assets and began “selling Akaushi cattle to a group
of producers pursuant to contracts” known as Full-Blood and F1 Program
Contracts. 1 The purpose was to “promote the raising of Akaushi cattle and the
marketing of meat from such cattle outside of Japan so that the Akaushi breed
may grow in stature and number to the mutual economic benefit” of
HeartBrand and the contracted producers.              The Full-Blood Contracts
contained provisions governing, among other things, (1) “the sale of breeding
stock;” (2) “registration with the American Akaushi Association, Inc.;” (3)
“restrictions on sale of full-blood offspring;” and (4) marketing of the cattle.
      In July 2010, Bear Ranch purchased 424 head of cattle and 10,000 units
of Akaushi genetic material from HeartBrand (the “HeartBrand Cattle”) for
$2.4 million, subject to a Full-Blood Contract and an F1 Program Contract. A
provision in the Full-Blood Contract was that, “if any legal action is brought to
enforce this Agreement . . . , it is expressly agreed that the prevailing party . . .
shall be entitled to recover from the other party reasonable attorney’s fees,
expenses, and costs.” If Bear Ranch breached, HeartBrand was also entitled
to injunctive relief ensuring that it obtained possession of all the cattle
identified in the agreement.
      Subsequently, Bear Ranch bought more Akaushi cattle from other



      1  The F1 Program Contract governs the breeding program HeartBrand offers to
producers such as Bear Ranch.
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                                No. 16-41261
HeartBrand producers in a series of “handshake” transactions: (1) in December
2010, Bear Ranch purchased 50 cattle from Tony Spears; (2) in June 2011, Bear
Ranch purchased approximately 500 cattle from Ronald Beeman; and (3) from
July-September 2011, Bear Ranch purchased 195 cattle from Twinwood Cattle.
At some point after the cattle purchases, disputes arose between HeartBrand
and Bear Ranch regarding the contractual restrictions placed on the Akaushi
cattle. HeartBrand claimed the Full-Blood contractual restrictions for the
HeartBrand Cattle from the HeartBrand contract also applied to the later
purchases of cattle from Spears, Beeman, and Twinwood.
      In March 2012, Bear Ranch sued HeartBrand, Beeman, and the
American Akaushi Association, Incorporated, alleging that HeartBrand
violated the Sherman Antitrust Act and other laws aimed at curbing
anticompetitive conduct by “engaging in unfair practices in the livestock
industry.” Bear Ranch sought declaratory relief to prevent HeartBrand from
monopolizing the Akaushi beef product market in the United States.
Alternatively, Bear Ranch sought a declaration that the Full-Blood contractual
restrictions were unenforceable and that Bear Ranch was fraudulently induced
into executing the contracts because HeartBrand represented “that it was the
only source of full-blood Akaushi cattle in the United States,” which Bear
Ranch claims was knowingly false.
      During pre-trial proceedings, HeartBrand moved for judgment on the
pleadings, which the district court denied, and Bear Ranch moved to amend its
complaint, which the district court allowed. In the amended complaint, Bear
Ranch dropped its competition-law claims and instead raised breach of
contract and fraudulent-inducement claims.        HeartBrand and Beeman
responded with two counterclaims against Bear Ranch for fraudulent
inducement and three for fraud.      HeartBrand alleged that Bear Ranch
fraudulently induced the original purchase by falsely representing that it
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would comply with the Full-Blood contractual restrictions. Beeman made
similar allegations relating to the 2011 sale of the Beeman Cattle. HeartBrand
and Beeman both sought rescission of their respective sales to Bear Ranch. As
to its common-law fraud claim, HeartBrand argued “that Bear Ranch had
represented that it only intended to produce beef for personal use and that it
would comply with the 2010 contractual obligations.” HeartBrand claimed this
was a knowingly “empty promise[]” because Bear Ranch’s alleged intent was
to become its rival and avoid complying with the contractual restrictions.
      After the parties filed cross-motions for summary judgment, the district
court held that the Full-Blood contractual restrictions for the 2010 HeartBrand
Cattle purchase did not extend, with certain irrelevant exceptions, to the cattle
Bear Ranch subsequently purchased from Spears, Beeman, and Twinwood.
The court also determined that “any oral agreement to apply the Full-Blood
Contract restrictions would be barred by the statute of frauds[.]” This ruling
resulted in the dismissal of Beeman’s fraudulent-inducement claim. The court
also dismissed HeartBrand’s and Beeman’s claim for rescission of the Bear
Ranch purchases.
      The district court determined that the partial summary judgment it
granted “changed the complexion of the case.” The cattle Bear Ranch had
purchased from Spears, Beeman, and Twinwood “were suddenly legally
unrestricted.” According to HeartBrand, this ruling allowed Bear Ranch to act
as its direct competitor in the Akaushi market and “undermin[ed]
HeartBrand’s investment in a uniquely refined and documented breeding
nucleus.”   In its ruling, the court did permit HeartBrand’s fraud-based
counterclaims, among others, to proceed to trial. Cognizant of the “major shift
in the landscape of the case,” the district court granted a continuance, which
allowed HeartBrand time to submit a revised expert report from Jeffrey S.
Andrien, its valuation expert, that would “value the equitable remedy of unjust
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enrichment on its fraud claims[.]” In his supplemental report, Andrien opined
that Bear Ranch’s unjust enrichment from the unrestricted cattle would be
$89.8 million — $76.7 million of which was associated with the Beeman Cattle.
     After taking Andrien’s deposition, Bear Ranch objected to his report and
sought   to    exclude    his   testimony   under     Daubert    v.   Merrell   Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). Bear Ranch argued that admitting
Andrien’s opinion and testimony would risk “inflaming jury passions” and “the
sudden transformation of what has been around a $1 million case . . . into a
$90 million case will only confuse the jury and . . . unfairly prejudice Bear
Ranch[.]” The court ultimately permitted Andrien’s testimony at trial and
allowed Bear Ranch to put on four rebuttal witnesses, including its own
valuation expert.
     The trial began on May 16, 2014.            On May 29, the jury found for
HeartBrand on two counterclaims: (1) fraud regarding the 2011 sale of the
Beeman Cattle; and (2) breach of the 2010 Full-Blood and F1 Program
Contracts governing the HeartBrand Cattle purchase. The advisory jury found
that Bear Ranch was unjustly enriched by $23,199,000 because of its
fraudulent behavior in the Beeman Cattle purchase. The jury also assessed
against Bear Ranch $1,825,000 in exemplary damages on the Beeman Cattle
fraud claim.
     After denying multiple post-trial motions, the district court entered an
Amended Final Judgment on August 11, 2016. Relevant to this appeal, the
court ordered the following: (1) Bear Ranch would take nothing in its suit
against the defendants; (2) the provisions of the 2010 contract with
HeartBrand did not apply to the Beeman, Spears, or Twinwood Cattle; (3) Bear
Ranch was liable for fraudulent inducement committed against HeartBrand
based on the 2011 Beeman Cattle purchase; (4) Bear Ranch would hold the
Beeman Cattle in a constructive trust for HeartBrand; (4) Bear Ranch would
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                                  No. 16-41261
pay $1,825,000 in exemplary damages to HeartBrand; (5) Bear Ranch was
liable for breach of contract from the original HeartBrand Cattle purchase; (6)
Bear Ranch was ordered to comply with a multi-faceted permanent injunction
on the Twinwood/Spears Cattle; and (7) Bear Ranch would pay HeartBrand
$3.2 million in attorney’s fees. Bear Ranch timely appealed, and HeartBrand
cross-appealed.


                                 DISCUSSION
      We will address the issues in the following order. Bear Ranch contests
the jury’s finding of fraud on the Beeman Cattle contract, the court’s decision
to admit the expert Andrien’s testimony, the injunction requiring Bear Ranch
to abide by the HeartBrand contract restrictions on the Twinwood and Spears
cattle, the court’s decision to grant $3.2 million in attorney’s fees to
HeartBrand as the prevailing party, and the grant of exemplary damages.
HeartBrand cross-appeals that the monetary threshold for the constructive
trust on the Beeman Cattle was too high. It also argues we should remand for
a new trial if the fraud verdict is vacated.


I.    Sufficiency of evidence for jury’s fraud verdict
      We review de novo the denial of a motion for judgment as a matter of
law, with our review being particularly deferential to a jury verdict. SMI Owen
Steel Co. v. Marsh USA, Inc., 520 F.3d 432, 437 (5th Cir. 2008). We will affirm
a jury verdict unless the jury lacked “a legally sufficient evidentiary basis to
find for” the prevailing party. FED R. CIV. P. 50(a). The record and all of the
evidence is reviewed “in the light most favorable to the non-movant.” Omnitech
Int’l, Inc. v. Clorox Co., 11 F.3d 1316, 1323 (5th Cir. 1994). Under Texas law,
the elements for fraud are: (1) a material representation; (2) that was false; (3)
with a knowing or reckless disregard for the truth; (4) intent that the other
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party act upon the misrepresentation; (5) action in reliance on the
representation; and (6) damages. See In re FirstMerit Bank, N.A., 52 S.W.3d
749, 758 (Tex. 2001).
      The jury found that Bear Ranch committed fraud by misrepresenting
“that it intended to sell to HeartBrand 30% of its calves and that it would
comply with the restrictions in the 2010” Full-Blood Contracts for the Beeman
Cattle. In denying Bear Ranch’s motion for judgment as a matter of law, the
district court stated, “there’s clearly sufficient evidence to find” that “Calles
actually assented to Fielding’s comment that the full-blood contract” applied
to the Beeman cattle. The district court also held that “Mr. Gill’s comment was
also an actionable misrepresentation.” 2 The court found that Gill was in Texas
negotiating the Beeman contract, and there was testimony that Gill agreed to
the same terms as the HeartBrand Cattle contract. Alternatively, the district
court found that Bear Reach misrepresented its intent to sell 30% of its calves
back to HeartBrand. As the district court stated, “the 30 percent sell back is
just a far more specific statement to support a misrepresentation finding than
things like promises to, quote, receive business which have been found to be
insufficient in the cases Bear Ranch cites[.]”
      Given our standard of review, we agree with the district court’s holding
that sufficient evidence supported the jury’s verdict finding that Bear Ranch
committed fraud by misrepresenting its intention to sell HeartBrand 30% of
its calves and that it would “comply with the restrictions in the 2010” Full-
Blood Contracts for the Beeman Cattle. Texas courts have upheld fraud claims
based on representation with less specificity than the ones made by Bear
Ranch. See Anderson, Greenwood & Co. v. Martin, 44 S.W.3d 200, 214–15 (Tex.



      2 Bill Fielding is HeartBrand’s CEO. Antonio Calles was a contractor that provided
breeding services for Bear Ranch. Rob Gill worked as a manager for Bear Ranch.
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App.—Houston [14th Dist.] 2001, pet. denied); Burleson State Bank v.
Plunkett, 27 S.W.3d 605, 614 (Tex. App.—Waco 2000, pet. denied).
       As to whether HeartBrand suffered an injury, we have previously
determined a plaintiff was injured when it entered into a commercial
transaction based on misrepresentations by the defendants on which the
plaintiff relied. Olney Sav. & Loan Ass’n v. Trinity Banc Sav. Ass’n, 885 F.2d
266, 273 (5th Cir. 1989). “Under Texas law, lost profits are a cognizable
injury.” Bohnsack v. Varco, L.P., 668 F.3d 262, 275 (5th Cir. 2012).
       Here, HeartBrand gave up a commercial opportunity to purchase the
Beeman Cattle for which it would have realized profits under its closed-
business model for Akaushi Cattle. At trial, Bill Fielding, HeartBrand’s CEO,
testified that without calf deliveries from Beeman — who typically sold 40%-
50% of his calves to the company — HeartBrand would lose a dependable
supply of calves for which it had a track record of making substantial profit
margins over the prior four to five years. Thus, sufficient evidence existed for
the jury to find that HeartBrand suffered a cognizable injury from Bear
Ranch’s misrepresentation. As we are affirming on this issue, we do not reach
HeartBrand’s conditional cross-appeal.


II.    Admitting Andrien’s expert testimony
       We review the admissibility of expert testimony for abuse of discretion.
Guy v. Crown Equip. Corp., 394 F.3d 320, 324–25 (5th Cir. 2004). A trial court
has broad discretion to admit expert opinion evidence, and we will affirm
unless the admission of expert opinion evidence was manifestly erroneous.
Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987). “’Manifest error’
is one that is ‘plain and indisputable, and that amounts to a complete disregard
of the controlling law.’” SEC v. Life Partners Holdings, Inc., 854 F.3d 765, 775
(5th Cir. 2017) (quoting Guy, 394 F.3d at 325). If we determine the trial court
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abused its discretion, then we “review the error under the harmless error
doctrine, affirming the judgment, unless the ruling affected substantial rights
of the complaining party.” Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584
(5th Cir. 2003).
      The Daubert gatekeeping function “imposes a special obligation upon a
trial judge to ‘ensure that any and all scientific testimony . . . is not only
relevant, but reliable.’” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147
(1999) (citing Daubert, 509 U.S. at 589). This obligation requires a district
court to make a “preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid and of whether
that reasoning or methodology properly can be applied to the facts in issue.”
Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002) (quoting Daubert,
509 U.S. at 592–93); see also FED. R. EVID. 702.
       After Andrien testified, the district court noted that Bear Ranch’s lead
counsel “was able to conduct a skillful cross-examination despite” Bear Ranch’s
concern about its limited time to prepare for Andrien’s new valuation
testimony.   Bear Ranch also put on four rebuttal witnesses, three who
specifically testified on the damages issues, including Bear Ranch’s own
valuation expert, Scott Bayley. Daubert recognizes that a “[v]igorous cross-
examination, presentation of contrary evidence, and careful instruction on the
burden of proof are the traditional and appropriate means of attacking shaky
but admissible evidence.” 509 U.S. at 596.
      Bear Ranch’s objection to this expert opinion evidence is more of a
disagreement about the reasonableness of Andrien’s valuation than the rigor
of the district court’s preliminary assessment.     The record indicates that
Andrien’s valuation opinions were not so unreliable as to warrant exclusion
under Daubert and Federal Rule of Evidence 702. Furthermore, any error the
court made in admitting Andrien’s testimony, which is not an error that could
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be described as “plain and indisputable,” is tempered by the fact that the jury’s
damages award was merely advisory to the court. See Guy, 394 F.3d at 325.
Thus, we conclude that the district court did not abuse its discretion when it
exercised its “wide latitude in determining the admissibility” of Andrien’s
testimony. Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir. 1997).


III.     Modifying injunction relating to the Twinwood/Spears cattle
         A district court’s decision to modify an injunction is reviewed for abuse
of discretion. ICEE Distribs., Inc. v. J&J Snack Foods Corp., 445 F.3d 841,
850 (5th Cir. 2006). “Modification of an injunction is appropriate when the
legal or factual circumstances justifying the injunction have changed.” Id. The
party seeking to modify the injunction has the burden to show “that changed
circumstances warrant relief[.]” Horne v. Flores, 557 U.S. 433, 447 (2009).
         In February 2016, the district court entered an injunction that required
Bear Ranch to comply with the restrictions imposed in the 2010 HeartBrand
contract. On appeal, Bear Ranch argues that the rationale for this injunction
no longer applies and should be vacated. When requiring Bear Ranch to abide
permanently by any restrictions included in the 2010 Full-Blood and F1
Program Contracts, the district court found that “unrestricted sales” of the
Twinwood/Spears Cattle would “undermine the integrity of HeartBrand’s
Akaushi program, caus[e] irreparable injury to HeartBrand, and would also
result in” Bear Ranch’s unjust enrichment. As the district court correctly
determined when denying Bear Ranch’s Rule 59(e) motion, even if HeartBrand
“abandoned” its closed-business model with regard to one producer, that does
not vitiate the harm it suffered through Bear Ranch’s fraudulent actions.
         The district court did not abuse its discretion when it chose not to modify
the injunction in April 2016 as there is no showing of a significant change in
circumstances. ICEE, 445 F.3d at 850. We also are not persuaded that a
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change occurred between that ruling and when the district court entered its
Amended Final Judgment on August 11, 2016.


IV.     The award of $3.2 million to HeartBrand in attorney’s fees
        We review an award of attorney’s fees for abuse of discretion; findings of
fact supporting the award are reviewed for clear error. Mathis v. Exxon Corp.,
302 F.3d 448, 461–62 (5th Cir. 2002). As it supplied the rule of decision, Texas
law “controls both the award of and the reasonableness of fees awarded[.]” Id.
at 461. Texas law instructs the factfinder, judge or jury, to consider eight
factors when determining the reasonableness of a fee award, including “the
amount involved and the results obtained[.]” Arthur Andersen & Co. v. Perry
Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (citation omitted). The most
important factor “is the degree of success obtained.” Hensley v. Eckerhart, 461
U.S. 424, 436 (1983).       An award is not excessive simply because it is
disproportionate to the results obtained.       Northwinds Abatement, Inc. v.
Emp’rs Ins. of Wausau, 258 F.3d 345, 355 (5th Cir. 2001).
        Initially, HeartBrand requested approximately $5 million in attorney’s
fees, expenses, and costs. Before considering the motion, the district court
ordered HeartBrand to submit a revised fee request eliminating any fees for
“work on the nonrecoverable fraud claims.” In a thorough opinion, the district
court then observed that HeartBrand began this case on the defensive and
“successfully establish[ed] the enforceability of its contractual restrictions,”
which was the primary focus for both sides throughout the case. The district
court did not abuse its discretion in awarding $3.2 million in attorney’s fees.


V.      Exemplary damages
        The district court also ordered Bear Ranch to pay $1,825,000 in
exemplary damages to HeartBrand. The decision to grant exemplary damages
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is a question of law that we review de novo. See Wal-Mart Stores, Inc. v.
McKenzie, 997 S.W.2d 278, 280 (Tex. 1999). This case arises under diversity
jurisdiction with Texas law supplying the rule of decision on exemplary or
punitive damages. In the absence of controlling precedent, we must make an
Erie guess about whether the Texas Supreme Court would award punitive
damages on these facts. Our effort is an “attempt to predict state law, not to
create or modify it.” United Parcel Serv., Inc. v. Weben Indus., Inc., 794 F.2d
1005, 1008 (5th Cir. 1986).
      Under Texas law, punitive damages are not available without proof of
actual damages: “The mere availability of a tort-based theory of recovery is not
sufficient; actual damages sustained from a tort must be proven before
punitive damages are available.” Twin City Fire Ins. Co. v. Davis, 904 S.W.2d
663, 665 (Tex. 1995).
      As the relief granted consisted of a constructive trust and equitable
relief, we must consider whether or to what extent equitable relief can satisfy
the requirements for obtaining punitive damages in Texas. In 1985, the Texas
Supreme Court observed that it followed the minority rule in allowing
exemplary damages following equitable relief and then stated in dicta that the
return of property can “serve as a basis for the recovery of exemplary damages.”
Nabours v. Longview Sav. & Loan Ass’n, 700 S.W.2d 901, 904 (Tex. 1985)
(quoting Int’l Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567, 583 (Tex.
1963)). The Nabours court held, however, that an award of punitive damages
was not justified on the facts before it because the plaintiff did not prove any
actual damages. Id. at 905.
      In 1987, the Texas legislature changed the requirements for obtaining
exemplary damages when it passed a statute, the current version of which
provides that “exemplary damages may be awarded only if damages other than
nominal damages are awarded.” TEX. CIV. PRAC. & REM. CODE § 41.004(a)
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(2003). The legislature clearly provided that “the provisions of this chapter
prevail over all other law to the extent of any conflict.” § 41.002(c).
      The briefing directs us to caselaw containing different interpretations of
possible changes in Texas law resulting from this legislation. Ultimately, the
details of the differences do not affect this case. The law remains that the party
seeking punitive damages must first prove actual damages. A 2016 decision
paraphrased Chapter 41 and said it “precludes an award of exemplary
damages unless other damages, besides nominal damages, are awarded.” Wal-
Mart Stores, Inc. v. Forte, 497 S.W.3d 460, 466 (Tex. 2016), reh’g denied, (Sept.
23, 2016). Therefore, Texas law requires, at the very least, that HeartBrand
must show actual damages even if only nonmonetary relief is awarded.
      The important point for us is that the proof necessary to show actual
damages requires more than presumed harm. In Nabours, despite stating that
equitable relief such as the return of property can justify punitive damages,
the Texas Supreme Court ultimately held that punitive damages were not
justified because an injunction prevented the forced sale of Nabours’ home and
only “presumed harm” could be shown. 700 S.W.2d at 903. Presumed harm is
not sufficient to show actual damages. Id.
      Here, the district court’s equitable remedy protected HeartBrand from
actual harm. HeartBrand’s harm is limited to presumed harm, and that is
insufficient under Texas law to justify an award of punitive damages. As the
district court wrote, “the surefire way to prevent Bear Ranch from being
unjustly enriched as a result of obtaining the unrestricted use of the cattle
under false pretenses is to keep that unjust enrichment from happening in the
first place.” The district court also wrote that because “Bear Ranch has not yet
realized any of the gains from its theoretical unjust enrichment,” this case
“presents a sharp contrast with the classic cases of unjust enrichment.” On
this record, HeartBrand has only shown presumed harm, which prevents an
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award of punitive damages. Therefore, we need not decide whether equitable
relief could ever support punitive damages under Texas law; we simply decide
that under these facts and this remedy, punitive damages are unavailable.
        We reverse the district court’s award of $1,825,000 in exemplary
damages to HeartBrand.


VI.     Price set for each head of Beeman cattle
        A district court’s grant of equitable relief on a disgorgement order is
reviewed for abuse of discretion. SEC v. AMX, Int’l, Inc., 7 F.3d 71, 73 (5th
Cir. 1993). Discretion is abused if the district court “misapplies the law or
bases its decision upon erroneous findings of fact.” RSR Corp. v. Int’l Ins. Co.,
612 F.3d 851, 859 (5th Cir. 2010). We review legal conclusions de novo and
factual findings for clear error. SEC v. Gann, 565 F.3d 932, 936 (5th Cir. 2009).
        In exercising its broad discretion, a district court is not required to make
a precise calculation of the amount of ill-gotten profits. See SEC v. Huffman,
996 F.2d 800, 802 (5th Cir. 1993). Instead, a district court must make a
“reasonable approximation of profits causally connected to the violation.”
Allstate Ins. Co. v. Receivable Fin. Co., 501 F.3d 398, 413 (5th Cir. 2007)
(quoting SEC v. First City Fin. Corp., 890 F.2d 1215, 1231 (D.C. Cir. 1989)).
After all, “flexibility [is] inherent in equitable remedies[.]” Kansas v. Nebraska,
135 S. Ct. 1042, 1058 (2015) (quoting Brown v. Plata, 563 U.S. 493, 538 (2011)).
        Here, the district court’s factual findings do not amount to clear error.
They were “plausible in light of the record viewed as a whole[.]” 3 Bertucci


        3 The advisory jury found “that Bear Ranch was unjustly enriched by $23,199,000[.]”
The district court found Bear Ranch had not yet realized any of the gains, however, which
“present[ed] a sharp contrast from the classic cases of unjust enrichment.” The district court
then crafted an equitable remedy and constructive trust designed to prevent HeartBrand
from being injured. Under this remedy, Bear Ranch would hold the cattle in trust for
HeartBrand, who would have an equitable claim on the cattle. If HeartBrand claimed the
cattle from the 2010 sale, it had to reimburse Bear Ranch for the acquisition, production, and
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Contracting Corp. v. M/V ANTWERPEN, 465 F.3d 254, 258 (5th Cir. 2006).
HeartBrand’s legal challenge to the Constructive Trust Threshold fares no
better. In arguing that the district court is enabling unjust enrichment rather
than preventing it, HeartBrand misinterprets the purpose of the law of
disgorgement under which “a disgorgement order might be for an amount more
or less than that required to make the victims whole.” Huffman, 996 F.2d at
802. The district court did not abuse its discretion when it set the Constructive
Trust Threshold at $3,796 per head.
       AFFIRMED in part and REVERSED in part.




maintenance costs. To claim any offspring of the 2010 cattle born since the trial, HeartBrand
would have to pay $3,898 per head of cattle along with reasonable maintenance costs.
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