           United States Court of Appeals
                       For the First Circuit

No. 14-1500

                  T G PLASTICS TRADING CO., INC.,
                d/b/a NATIONAL PLASTICS TRADING CO.,

                        Plaintiff, Appellee,

                                 v.

                  TORAY PLASTICS (AMERICA), INC.,

                       Defendant, Appellant.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF RHODE ISLAND

         [Hon. John J. McConnell, Jr., U.S. District Judge]


                               Before

                         Lynch, Chief Judge,
                       Howard, Circuit Judge,
                    and Saylor,* District Judge.


          Sanford I. Weisburst, with whom Ryan S. Goldstein, Daniel
H. Bromberg, Quinn Emanuel Urquhart & Sullivan, LLP, Jeffrey S.
Brenner, and Nixon Peabody LLP were on brief, for appellant.

          James Ratzel, with whom Michael J. Daly, Pierce Atwood
LLP, and Ratzel, Pytlik & Pezze, LLC were on brief, for appellee.


                         December 22, 2014




     *
           Of the District of Massachusetts, sitting by designation.
             LYNCH, Chief Judge.      In 2007, Toray Plastics (America),

Inc. ("Toray") of Rhode Island, a manufacturer of plastic film

products, and T G Plastics Trading Co., Inc. ("National Plastics"),

a Colorado-based broker of plastic film products, entered into a

Settlement Agreement to resolve a pending lawsuit.              As part of the

Settlement    Agreement,   Toray     agreed   to    sell   certain   materials

exclusively through National Plastics and to pay National Plastics

a twelve percent commission on all sales of the materials thereby

generated. National Plastics, believing that Toray had not held up

its end of the bargain, sued Toray for breach of the Settlement

Agreement. A jury found Toray liable and awarded National Plastics

over $2 million in damages.         Toray appeals, arguing that National

Plastics had waived its right to a jury trial by a belated demand,

and that the evidence was insufficient as a matter of law to

support the jury's finding of liability or its calculation of

damages.      We affirm, sounding a cautionary note as to delayed

demands for jury trials.

                                      I.

             Toray is a manufacturer of plastic films which are used

in various food packaging and industrial applications.                 Toray's

manufacturing processes produce excess materials, such as scrap

left   over    after   rolls   of     film    are   cut    to   a    customer's

specifications, and film that is damaged or otherwise rendered

unusable during the manufacturing process.           Toray has historically


                                      -2-
sold this material to plastics brokers.    The brokers then resell

the materials, often to businesses abroad or to customers in

"secondary" or "commodities" markets, such as the floral industry.

          National Plastics is a plastics broker that has purchased

excess materials from Toray since 1988. In the mid-2000s, National

Plastics allegedly fell behind on payments owed to Toray, and in

May 2006, Toray filed a lawsuit to recover approximately $1.5

million in outstanding payments ("the First Lawsuit").     National

Plastics counterclaimed, alleging, among other things, that Toray

had committed breach of contract and tortious interference with a

business relationship.

          After conducting "months of discovery," the parties

eventually settled the First Lawsuit.   The terms of the settlement

were memorialized in a "Settlement Agreement and Release," signed

on October 15-16, 2007, which provided that, "[i]n full and final

settlement of the [First Lawsuit] . . . Toray and National Plastics

will enter into a long term business relationship . . . and

National Plastics will pay Toray $1.5 million."    As part of that

"long term business relationship," Toray agreed that, for a period

of seventeen years beginning on October 22, 2007, it would

          exclusively sell to National Plastics one
          hundred percent (100%) of all scrap plastic,
          other   scrap,   second   quality   materials,
          downgraded materials, recyclable materials not
          reused internally and aged film.       Because
          Toray does not have direct control over the
          end use or applications of these items . . .,
          Toray cannot guarantee performance of this

                               -3-
             film in any application.     During the Term,
             Toray   will   also   regularly    share   all
             information with National Plastics on all
             persons or entities approaching Toray for
             purchase of Toray's scrap plastic, other
             scrap, second quality materials, downgraded
             materials, recyclable materials and aged film.
             National Plastics will be responsible for
             contacting all of these possible leads and
             following up with Toray on the outcome.

The Settlement Agreement further provided that, "[i]n order to

insure that Toray is receiving competitive market pricing, National

Plastics will work on a straight twelve percent (12%) of all sales

generated by National Plastics."             It also contained a provision

giving each party the right to audit the other on an annual basis

in order to ensure compliance.

             The parties refer to the list of items Toray agreed to

sell exclusively to National Plastics -- "scrap plastic, other

scrap, second quality materials, downgraded materials, recyclable

materials not reused internally and aged film" -- as the "agreed

materials."         The   principals    who    negotiated    the   Settlement

Agreement, Toray Chief Financial Officer David Jose and National

Plastics owner Torge Goderstad, did not discuss the precise meaning

of the words describing the agreed materials.           In particular, the

term "aged film" was added to the Settlement Agreement near the end

of settlement negotiations and is not defined elsewhere in the

agreement.

             Soon   after   executing    the    Settlement   Agreement,   the

parties began to dispute several aspects of its application,

                                       -4-
including, as relevant here, Toray's duty to sell aged film

exclusively to National Plastics.            In July 2009, National Plastics

sued Toray in federal court in Rhode Island, claiming damages

stemming from Toray's alleged failure to sell 100 percent of the

agreed materials to National Plastics and requesting specific

performance of the Settlement Agreement's auditing provisions. The

original complaint did not contain a jury demand.

          After     two   years   of    settlement     negotiations,   which

ultimately proved fruitless, National Plastics moved to amend its

complaint in June 2011 to add three additional claims and a request

for a jury trial.    The district court granted the motion for leave

to amend over Toray's objection.             Toray counterclaimed, alleging

breach of the Settlement Agreement.            However, by the time the case

was submitted to the jury in January 2014 -- roughly thirty months

after National Plastics filed its amended complaint -- the dispute

had, for all practical purposes, been narrowed to a single issue:

whether Toray had breached its duty under the Settlement Agreement

to sell aged film exclusively to National Plastics.1               National

Plastics' claim of damages was based solely on this alleged "aged

film" breach; it did not request damages based on Toray's sales of

any of the other "agreed materials."




     1
          The parties' other claims had either been withdrawn or
dismissed.

                                       -5-
            At trial, a primary issue in contention was whether there

had been any meeting of the minds as to the meaning of the term

"aged film."    There was conflicting evidence presented regarding

that issue.    Toray CEO Richard Schloesser and CFO Jose testified

that, "[f]rom an accounting standpoint," material is considered

"aged" one year after its manufacture, at which point Toray takes

a reserve against the material for financial accounting purposes.

Schloesser admitted that, in a deposition in the First Lawsuit (in

which the meaning of the term "aged material" was at issue) he had

defined "aged material" as "film generally that reaches one year"

and is "written down by the Finance Department."    This description

is also consistent with e-mails Schloesser sent to Goderstad after

execution of the Settlement Agreement, in which Schloesser wrote

that "each month a report is generated that targets film that is 11

months old and will go aged in the next month."    Toray's policy is

in accordance with Generally Accepted Accounting Principles, under

which companies are required to value their assets in a manner

"grounded in reality" in order to prepare accurate financial

statements.    According to National Plastics' expert accountant,

Catherine      Parente,    Toray's     inventory   reserve    policy

"indicat[ed] . . . that the age of the inventory significantly

affects the value of that inventory . . . . [b]y reducing it."

Schloesser also testified, however, that "from an operational stand

point, [plastic film] does not age; it's inert. . . .        [Toray]


                                 -6-
could sell that film that we produced today three years from today

and it would work perfectly."

              Matthew Brown, a General Manager at Toray, testified in

his deposition that, in his view, aged film was a "generalization"

that "specifie[d] film that [he] want[ed] the sales folks to focus

on because it's been around for a while." Like Schloesser, he also

stated   at    trial    that      "from    a   sales    and     operations    point   of

view . . . there is no aged film."                  National Plastics' Goderstad

testified     that     he    understood        "aged    film"    to   mean    generally

"material that they made and didn't go out right away, so they put

it in inventory, they held it for one reason or another."                       He said

he wasn't "sure" about the physical age of "aged film," but thought

it could be anywhere between three and eighteen months old.

              The parties stipulated that between November 1, 2007, and

August 31, 2012, Toray sold approximately 9.2 million pounds of

film older than twelve months to entities other than National

Plastics      and    had     earned       revenue      on   those     sales    totaling

$16,836,907.91.         In his closing argument, counsel for National

Plastics argued to the jury that, if the jury found that Toray had

breached the Settlement Agreement by selling aged film to entities

other than National Plastics, the jury should calculate damages by

multiplying Toray's revenue by National Plastics' twelve percent

commission      under       the   Settlement      Agreement,        for   a   total   of

$2,020,428.70.         Counsel for Toray contended in his closing that


                                            -7-
this   damages    figure   was   "pure    speculation"   because   National

Plastics had failed to show that it "could have sold [the aged

film] at the same prices in the same marketplace [as Toray]."

           The jury found Toray liable for breach of the Settlement

Agreement and awarded National Plastics $2,020,428.95 in damages.

Since that figure is equal to twelve percent of $16,836,907.91, it

is apparent that the jury adopted National Plastics' proposed

method of calculating damages.           After the verdict, Toray renewed

its earlier motion for judgment as a matter of law.            The motion

rested on two grounds: (1) National Plastics failed to present

sufficient evidence that the parties intended the term "aged film"

to mean all film thirteen or more months old, and (2) the jury's

damages   award   was   impermissibly      speculative   because   National

Plastics failed to present evidence that it would have generated

the same revenue from selling aged film as Toray did. The district

court summarily denied the motion, finding that the jury's verdict

was "a rational determination of the credibility of the witnesses

and the facts as derived from the evidence" and "a reasonable

application of the facts to the law."            The court entered final

judgment in favor of National Plastics.          This appeal followed.

                                    II.

           We first address Toray's claim that the district court

erred in allowing National Plastics to amend its complaint to add

a jury demand.


                                    -8-
           Under Federal Rule of Civil Procedure 38(b), "a party may

demand a jury trial by . . . serving the other parties with a

written demand . . . no later than 14 days after the last pleading

directed to the issue is served."     "A party waives a jury trial

unless its demand is properly served and filed."    Fed. R. Civ. P.

38(d).   However, the district court may, in its discretion, excuse

a party's waiver of a jury trial.      See Fed. R. Civ. P. 39(b);

Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194, 199-200 (1st Cir.

1987), abrogated on other grounds by Iacobucci v. Boulter, 193 F.3d

14 (1st Cir. 1999).    "[T]he discretion under Rule 39(b) is very

broad and . . . the case would be very rare indeed where a district

court abused its discretion in denying or granting a Rule 39(b)

motion."   Rowlett, 832 F.2d at 200; see also Moores v. Greenberg,

834 F.2d 1105, 1109 (1st Cir. 1987); 9 Wright & Miller, Federal

Practice and Procedure § 2334 (3d ed.) (explaining that "the

appellate courts ordinarily will not intervene or overturn the

action taken by the trial judge" on a Rule 39(b) motion).   Indeed,

Toray admits in its reply brief that it can cite to no case in

which a district court's allowance of a Rule 39(b) motion "was

grounds for reversal of a jury verdict on appeal."

           In deciding Rule 39(b) motions, courts have considered

various factors, such as

           (1) whether the case involves issues which are
           best tried to a jury; (2) whether granting the
           motion would result in a disruption of the
           court's schedule or that of the adverse party;

                                -9-
            (3) the degree of prejudice to the adverse
            party; (4) the length of the delay in having
            requested a jury trial; and (5) the reason for
            the movant's tardiness in requesting a jury
            trial.

Parrott v. Wilson, 707 F.2d 1262, 1267 (11th Cir. 1983); accord

Daniel Int'l Corp. v. Fischbach & Moore, Inc., 916 F.2d 1061, 1064

(5th Cir. 1990).     Any inquiry into the propriety of a Rule 39(b)

motion is thus a highly fact-specific endeavor.                 See 9 Wright &

Miller, supra, § 2334 ("The trial court ought to approach each

application under Rule 39(b) with an open mind and an eye to the

factual situation in that particular case . . . .").

            On these facts, it was not an abuse of discretion for the

district court to allow National Plastics to amend its complaint to

add a jury demand.       The district court found, and Toray does not

contest,    that   the   issues    in    this   case   were    suited      to    jury

determination.      The allowance of the motion to amend did not

disrupt    the   schedule   of    the   litigation;    at     the   time    of   the

amendment, discovery was still in its early stages due to the

parties' earlier efforts "to resolv[e] the matter as opposed to

litigat[e] it."     Moreover, Toray has conceded that it suffered no

prejudice as a result of the amendment in terms of its ability to

prepare for trial, since it had two and a half years after the

amended complaint was filed to ready its case.2                Cf. Rowlett, 832


     2
          This case is a far cry from Ypsilanti Community Utilities
Authority v. Meadwestvaco Air Systems, LLC, No. 07-CV-15280, 2010
WL 1644058 (E.D. Mich. Apr. 22, 2010), which Toray cites in its

                                        -10-
F.2d at 200 (affirming district court's grant of a Rule 39(b)

motion after finding that defendant "was not prejudiced" because

"the trial was not delayed or extended, nor was there any unfair

surprise").

              The time period that elapsed between National Plastics'

filing of the initial complaint and its demand for a jury trial was

significant, to be sure, and such a long delay would ordinarily

counsel against excusing a jury waiver.           But we agree with the

district court that the reason offered for the delay -- emphasis on

settlement negotiations -- was valid in the context of this case.

In June 2010, the Magistrate Judge, sensing that the parties were

progressing     toward   settlement,   had   imposed   a   "moratorium"   on

discovery with the goal of further facilitating negotiations, and

the   judge    lifted    the   discovery   stay   in   July   2010   on   the



brief. There, the district court denied a Rule 39(b) motion that
defendants filed "just two days before the final pre-trial
conference," after the court had denied defendants' motion for
summary judgment, and after the plaintiffs had "made several
strategic decisions in the course of preparing th[e] case for trial
based upon the belief that th[e] case would be tried to the bench."
Id. at *2-3. Here, the Rule 39(b) motion was filed two and a half
years before trial, long before any major strategic decisions had
been made.
     This case is likewise distinguishable from Olympia Express,
Inc. v. Linee Aeree Italiane, S.P.A., 509 F.3d 347 (7th Cir. 2007),
also relied on by Toray. In Olympia Express, the Seventh Circuit
held that it would not excuse plaintiffs' four-year delay in
requesting a jury trial in a suit brought under the Foreign
Sovereign Immunities Act, in view of the "practical concerns of
preparation and predictability" and "[t]he purpose of foreign
sovereign immunity."     Id. at 352.     The doctrine of foreign
sovereign immunity is not implicated in this case, nor is there any
suggestion that the amendment disrupted Toray's preparation for
trial.

                                    -11-
understanding   that   the   parties    would   not   take   any   steps   to

"interfere with settlement negotiations."         It was thus reasonable

for National Plastics to delay its request for a jury trial until

it became clear that settlement would not be forthcoming. This was

not, as Toray would have it, simply a case of an unexplained last-

minute change in tactics.

           In view of these considerations, this is not one of the

"very rare" cases in which a district court abused its discretion

by granting a Rule 39(b) motion.       See Rowlett, 832 F.2d at 200.       We

stress, though, that a party takes a considerable risk in delaying

the making of a jury demand.

                                  III.

           In its second claim of error, Toray argues that National

Plastics' claim for breach of the Settlement Agreement should not

have gone to the jury because National Plastics failed to present

sufficient evidence to establish that the parties had a mutual

understanding of the term "aged film" as all film older than one

year.   We are not persuaded.

           Under Federal Rule of Civil Procedure 50, the court may

grant judgment as a matter of law to a party on an issue if "the

court finds that a reasonable jury would not have a legally

sufficient evidentiary basis to find for the [nonmoving] party on

that issue."    We review a district court's denial of a Rule 50

motion de novo, "viewing the evidence in the light most favorable


                                  -12-
to the nonmoving party." Monteagudo v. Asociación de Empleados del

Estado Libre Asociado de P.R., 554 F.3d 164, 170 (1st Cir. 2009)

(quoting Marcano Rivera v. Turabo Med. Ctr. P'ship, 415 F.3d 162,

167 (1st Cir. 2005)) (internal quotation marks omitted).                        "[A]

party seeking to overturn a jury verdict faces an uphill battle,"

since "[c]ourts may only grant a judgment contravening a jury's

determination        when   the       evidence    points      so    strongly     and

overwhelmingly in favor of the moving party that no reasonable jury

could   have    returned    a   verdict     adverse    to    that   party."      Id.

(quoting Marcano Rivera, 415 F.3d at 167) (internal quotation marks

omitted).

            Toray cannot meet that stringent standard here.                   As the

jury was correctly instructed, its objective in construing the

terms of the Settlement Agreement was "to ascertain the intent of

the parties."        Haffenreffer v. Haffenreffer, 994 A.2d 1226, 1233

(R.I.   2010)    (citing    The    Elena    Carcieri     Trust-1988     v.    Enter.

Rent-A-Car Co. of R.I., 871 A.2d 944, 947 (R.I. 2005)).                  There is

sufficient evidence in the trial record upon which a reasonable

jury could have concluded that the parties intended the term "aged

film" to mean all film thirteen or more months old.

            First,     there    was    evidence   that      Toray   documents    and

testimony from the First Lawsuit had defined "aged film" in such a

manner.        For   example,     Toray's   Answer     to    National   Plastics'

counterclaim in that suit stated that "Excess Material means


                                        -13-
material that does not meet specification and includes material

that    is    aged    (over   12   months)      or    obsolete,"    and   Schloesser

testified that "aged material" is "film generally that reaches one

year."       These documents and testimony were available to National

Plastics prior to the execution of the Settlement Agreement. Thus,

contrary to Toray's argument, Toray's internal definition of the

term "aged," insofar as it became public record during the First

Lawsuit, could have influenced National Plastics' understanding of

the term "aged film" as it is used in the Settlement Agreement.

               Second, Toray CEO Schloesser equated the term "aged" with

"13 months [old]" in his trial testimony.                 And finally, Toray CFO

Jose testified that Toray took a financial reserve against film

older than one year, and Toray Demand Manager John Angelina stated

that "aged film" was "film that a financial reserve has been taken

against." Taken together, this evidence suggests that, at the time

Toray    and    National      Plastics    were       negotiating    the   Settlement

Agreement, both parties understood the term to mean film thirteen

months old or older -- or at least a reasonable jury could so

conclude.

                                         IV.

               Finally, Toray contends that National Plastics failed to

present sufficient evidence to allow a jury to conclude with

reasonable certainty that National Plastics suffered $2,020,428.95

in   damages     as   a   result   of    Toray's      breach   of   the   Settlement


                                         -14-
Agreement.       Toray   makes   two   arguments   in    support   of   this

contention: first, that National Plastics offered no evidence

tending to show that it would have been able to sell aged film for

the same price and to the same customers as Toray sold it; and

second, that National Plastics failed to present any evidence as to

the costs it would have incurred in selling aged film.

             We do not consider Toray's argument regarding National

Plastics' costs because it was not preserved.           At no point in the

trial did Toray argue that the proper measure of damages involved

deducting National Plastics' operating costs from its anticipated

revenues, nor did Toray ask for such an instruction to be given to

the jury.     The issue had not been raised at all, even in Toray's

motion for judgment as a matter of law under Rule 50.3             As Toray

admits, it made two, and only two, arguments in support of its Rule

50 motion: (1) National Plastics failed to present sufficient

evidence to show a mutual understanding of the meaning of the term

"aged film" and (2) National Plastics failed to present evidence

that would allow a reasonable jury to conclude that it would have

generated the same revenues from selling "aged film" as Toray did.4

     3
             Indeed, the parties did not even conduct discovery on
costs.
     4
          Toray's full argument in support of its motion for
judgment as a matter of law with respect to the damages issue, made
at the close of National Plastics' case, was as follows:

             There is no evidence whatsoever as to what Mr.
             Goderstad would have sold those products at,
             at what pricing and to whom.        He simply

                                   -15-
          Those contentions were not sufficient to preserve the

costs argument. A Rule 50 motion "must be sufficiently specific so

as to apprise the district court of the grounds relied on in

support of the motion."     Monteagudo, 554 F.3d at 170 (quoting

Parker v. Gerrish, 547 F.3d 1, 12 (1st Cir. 2008)) (internal

quotation marks omitted).    Arguments not "spell[ed] out . . .

squarely and distinctly" in the district court are waived.   United

States v. Samboy, 433 F.3d 154, 161 (1st Cir. 2005) (quoting

Rivera–Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988))

(internal quotation marks omitted); see also Monteagudo, 554 F.3d

at 170-71; Parker, 547 F.3d at 12 (noting that a Rule 50 motion

"preserves for review only those grounds specified at the time, and

no others" (quoting Zachar v. Lee, 363 F.3d 70, 73 (1st Cir. 2004))

(internal quotation marks omitted)).    Toray's argument that the

evidence did not show that National Plastics would have generated

the same revenues from selling "aged film" as Toray did was not

sufficient to put the district court on notice of its costs


          engaged in the pure speculation that he is
          entitled to 12 percent of what Toray sold
          those products to [sic] and its pricing to its
          customers and its marketplaces.    There's no
          connection here with any evidence as to what
          Mr. Goderstad's company actually could have
          sold the products for, to whom, when and in
          what amounts. His 12 percent is based on his
          figures under the contract, not ours.

This was not enough to make clear to the trial judge the theory
that Toray now advances about deduction of operating costs.
Toray's renewed motion for judgment as a matter of law simply
reiterated this argument.

                               -16-
argument.    Nor was Toray's general argument that the requested

damages award was speculative sufficient; that contention was too

vague to encompass the costs argument, especially since the issue

had not been raised to the court or to the jury at any earlier

point.   Toray simply did not "spell out its [costs] argument[]

squarely and distinctly" as is required to raise it on appeal. See

Samboy, 433 F.3d at 161 (internal quotation marks omitted).5

            We addressed Toray's first preserved argument above; we

now turn to the second.

            As the district court correctly instructed the jury,

under Rhode Island law, "'[t]he amount of damages sustained from a

breach of contract must be proven with a reasonable degree of

certainty, and the plaintiff must establish reasonably precise

figures and cannot rely upon speculation.'"      Guzman v. Jan-Pro

Cleaning Sys., Inc., 839 A.2d 504, 508 (R.I. 2003) (alteration in

original) (quoting Mktg. Design Source, Inc. v. Pranda N. Am.,

Inc., 799 A.2d 267, 273 (R.I. 2002)) (internal quotation marks

omitted).    "However, [p]laintiffs will not be denied recovery

merely because the damages . . . are difficult to ascertain, as

long as they prove damages with reasonable certainty."   Sophie F.

Bronowiski Mulligan Irrevocable Trust v. Bridges, 44 A.3d 116, 120



     5
          Ordinarily, to be clear, a plaintiff seeking damages for
breach of contract is required to show evidence of lost profits, as
opposed to lost revenues.    See, e.g., Troutbrook Farm, Inc. v.
DeWitt, 611 A.2d 820, 824 (R.I. 1992).

                                -17-
(R.I. 2012) (alterations in original) (citations omitted) (internal

quotation marks omitted); see also Smith Dev. Corp. v. Bilow

Enters.,   Inc.,   308   A.2d   477,   483   (R.I.     1973)    (noting      that

"'absolute certainty in proving . . . quantum [of damages] is not

required'" and that the jury need only "be guided by some rational

standard" (citations omitted)).

           There was evidence in the record upon which a reasonable

jury could conclude that National Plastics established the damages

from Toray's breach with reasonable certainty.            In an e-mail that

Toray CFO Jose sent to Goderstad after the execution of the

contract, Jose stated that he understood that National Plastics had

been buying the agreed materials from Toray, invoicing its own

customer   for   the   same   amount   as   it   had   paid    Toray   for    the

materials, then receiving its twelve percent commission based on

that amount. Jose proposed instead that Goderstad raise the prices

that National Plastics was charging to a level such that, after the

twelve percent commission was deducted, Toray would "receive the

same level of pricing (or pretty close to it) that [it] did prior

to [the Settlement Agreement]."        That suggests, at a minimum, that

National Plastics could in fact sell the product for prices similar

to those of Toray.        Moreover, Toray was obligated under the

Settlement Agreement to share sales leads regarding the agreed

materials with National Plastics, suggesting that the customer

bases and sales volumes of the two companies would be comparable.


                                   -18-
          A reasonable jury could conclude from this evidence that

twelve percent of Toray's revenues from direct sales of aged film

to third parties -- sales that, under the Settlement Agreement,

should have been done through National Plastics -- was a rational

estimate of damages.

          Toray    resists   this    conclusion,   arguing   that   it

"routinely" sold film thirteen months old or older to its regular

customers without discount and including a warranty.          Because

National Plastics could not sell plastic film into primary markets

complete with warranty, Toray contends, it is not possible that

National Plastics could have earned the same revenues from sales of

the film as Toray did.   But this argument rests on the premise that

film thirteen months old or older had no operational difference

from film less than one year old and could be sold into prime

markets at the prime market price.     The jury did not have to accept

that premise or credit the testimony of the witnesses who testified

to its validity.   Instead, the jury could have inferred, based on

the evidence that Toray took an accounting reserve against film at

age thirteen months, that the film became less valuable at that

point and thus was likely to be moved to a broker for sale into a

secondary market without a warranty.

          George v. George F. Berkander, Inc., 169 A.2d 370 (R.I.

1961), the case upon which Toray places principal reliance, does

not compel a different result.         In George, the plaintiff had


                                -19-
licensed the defendant to use a manufacturing process invented by

the plaintiff.   Id. at 370-71.   The defendant agreed to pay the

plaintiff a royalty for items made and sold using the process and

to sell such items only outside of Rhode Island.     Id. at 371.    When

the defendant sold items in Rhode Island in contravention of the

agreement, the plaintiff sued and sought to recover the defendant's

profits as part of his damages.        Id.   The Rhode Island Supreme

Court, adhering to the traditional "expectation" measure of damages

famously articulated in Hadley v. Baxendale, 9 Exch. 341 (1854),

held that the plaintiff's request was impermissible because the

plaintiff had presented no evidence that it would have earned those

profits had the defendant fulfilled the terms of the contract. See

George, 169 A.2d at 372-73.   George simply stands for the familiar

proposition that the proper measure of damages in a breach of

contract action is that which "will serve to put the injured party

as close as is reasonably possible to the position he would have

been in had the contract been fully performed."       Id. at 372.     As

explained above, in this case, a reasonable jury could have

concluded that a damages award equal to Toray's revenues from

selling film older than one year accomplished that purpose.         Cf.

RBC Nice Bearings, Inc. v. SKF USA, Inc., 78 A.3d 195, 212 (Conn.

App. Ct. 2013) (holding that defendant alleging breach of a

contract under which it was the exclusive distributor of certain

products could use the plaintiffs' profits from sales of those


                                -20-
products to other parties as its measure of damages because "it

would be neither speculative nor too remote . . . to conclude that

the defendant, the exclusive distributor of [those products], would

have been in the position to sell the product[s] to the customers

who purchased directly from the plaintiffs").

            In further support of its argument that the jury's

damages award in this case was speculative, Toray cites several

antitrust   cases   applying   the   "yardstick"   method   of   damages

measurement, under which a plaintiff can "measure its damages with

reference to the performance of one or more closely comparable

firms in the same industry that, unburdened by the proscribed

anticompetitive activity, successfully managed to earn profits."

Home Placement Serv., Inc. v. Providence Journal Co., 819 F.2d

1199, 1205-06 (1st Cir. 1987).       We find these cases unhelpful in

the present context.     This is not an antitrust case; it is an

action for breach of contract, and a unique one at that.         In order

to settle pending claims against each other, Toray and National

Plastics agreed to do business together over a seventeen-year

period pursuant to the terms of a Settlement Agreement honed

through extensive negotiation.       And as described above, a jury

could reasonably conclude, based on evidence of the parties'

intent, that twelve percent of Toray's revenues from its breaching

the Settlement Agreement was a reasonable estimate of National

Plastics' loss as a result of Toray's refusal to do business


                                 -21-
according to the agreement's terms.    No more is required under

Rhode Island law.

                                V.

          We affirm the decision of the district court.   Costs are

awarded to National Plastics.




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