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

                             FOR THE TENTH CIRCUIT                           July 25, 2014

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
EARTHGRAINS BAKING
COMPANIES INC.,

              Plaintiff–Appellee,
                                                             No. 12-4146
v.                                                 (D.C. No. 2:09-CV-00523-DAK)
                                                              (D. Utah)
SYCAMORE FAMILY BAKERY, INC.;
LELAND SYCAMORE,

              Defendants–Appellants.


                             ORDER AND JUDGMENT*


Before LUCERO, HOLLOWAY,** and GORSUCH, Circuit Judges.




       *
         This order and judgment is not binding precedent, except under the doctrines of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 late Honorable William J. Holloway, Jr., United States Senior Circuit
Judge, participated as a panel member when this case was heard, but passed away before
final disposition. “The practice of this court permits the remaining two panel judges if in
agreement to act as a quorum in resolving the appeal.” United States v. Wiles, 106 F.3d
1516, 1516 n.* (10th Cir. 1997); see also 28 U.S.C. § 46(d) (noting circuit court may
adopt procedure permitting disposition of an appeal where remaining quorum of panel
agrees on the disposition). The remaining panel members have acted as a quorum with
respect to this Order and Judgment.
       Leland Sycamore appeals following a partial grant of summary judgment and a

jury verdict in favor of EarthGrains Baking Companies, Inc. (“EarthGrains”). Exercising

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

                                             I

                                            A

       Sycamore developed a commercially successful line of “homemade bread” at a

bakery in Orem, Utah. The product eventually became known as “Grandma Sycamore’s

Home Maid Bread.” In 1998, as part of an asset purchase agreement, Sycamore and his

bakery sold to Metz Baking Company (“Metz”) “[a]ll registered, unregistered and

common law trademarks, service marks, logos, trade names, trade dress and other

trademark rights, including without limitation all Grandma Sycamore’s trademarks (the

‘Sycamore Trademarks’).”

       Concurrent with the asset purchase agreement, Metz and Sycamore executed a

Trademark License Agreement (“TLA”), which granted Sycamore a “perpetual, royalty

free, exclusive license” to use the Sycamore Trademarks in the “Licensed Territory,”

consisting of Arizona, Nevada, and Southern California with the exception of several

specified cities.1 Sycamore was not permitted to “assign, license, sublicense, or

otherwise convey” his rights pursuant to the TLA except “to a permitted assign” (defined

to include “Sycamore’s Family” and entities in which at least a seventy-five percent




       1
       At issue are two trademarks associated with Grandma Sycamore’s Home Maid
Bread. One of those trademarks was pending at the time the TLA was executed.
                                            -2-
ownership interest is held by “Sycamore or a member of the Sycamore Family”) without

Metz’s written permission. The TLA also provided for a “Nonuse Forfeiture”:

       In the event that, as of January 1, 2010, Sycamore and/or his permitted
       assigns have not commenced and do not regularly distribute products under
       the Sycamore Trademarks within any State within the Licensed Territory,
       then the License granted by Metz for any State within the Licensed
       Territory in which such products are not then distributed by Sycamore
       and/or his permitted assigns shall be terminated (the “Forfeited Territory”)
       and all rights therein for such State shall revert back to Metz.

       Sara Lee Corporation subsequently acquired Metz’s assets, including its rights

under the asset purchase agreement. EarthGrains acquired Sara Lee’s interest in the

Sycamore Trademarks and its rights under the contracts at issue, and replaced Sara Lee as

the plaintiff after this litigation commenced.

       Without obtaining the permission required by the TLA, Sycamore entered into an

agreement in 2005 with Holsum Bakery, Inc., purporting to sublicense his right to use the

Sycamore Trademarks in the Licensed Territory. Sycamore terminated that sublicense in

2009. In 2008, Sycamore formed a corporation to acquire a bakery in Utah, which he

renamed the Sycamore Family Bakery (“SFB”). SFB began producing bread which it

marketed as “The Original Granny Bread.” Sara Lee sent cease-and-desist letters to

Sycamore beginning in December 2008. The first “request[ed] that [Sycamore] confirm

that [he] will refrain from using Sycamore or any trademark containing the component

Sycamore in connection with bread or bakery products except as expressly permitted by

license from Sara Lee.” Sycamore never responded to the letters.




                                             -3-
                                              B

       Sara Lee brought suit against Sycamore and SFB in June 2009. The operative

complaint alleged trademark infringement, unfair competition, cybersquatting, and

breach of contract. The district court preliminarily enjoined the defendants from

“[u]sing . . . SYCAMORE FAMILY BAKERY or any other designation, trademark,

service mark, or trade dress containing the component SYCAMORE” in packaging,

written materials viewed by customers, or even “in any other written or verbal manner

that serves to identify the source of Defendants’ products.” Following discovery, both

parties moved for summary adjudication of specific issues and for partial summary

judgment. The district court granted summary judgment to Sara Lee on its breach of

contract, Lanham Act, and common law trademark infringement and unfair competition

claims. It also concluded that Sycamore forfeited his license in Arizona, Nevada, and

Sothern California by failing to distribute products in those territories.

       A limited jury trial followed. The jury was tasked with (1) deciding whether

defendants’ unlawful conduct was intentional and (2) determining and allocating

damages. Although Sycamore filed objections to certain proposed jury instructions, both

parties stipulated to instructions stating that if the jury found the trademark infringement

was intentional, “EarthGrains is entitled to any profits earned by the defendants or

Holsum Bakery that are attributable to the infringement” or “unfair competition.”

       Both Sycamore and SFB, the jury concluded, “intentionally infringed the Grandma

Sycamore trademarks, knowing it was infringement.” It awarded $206,000 against

Sycamore for trademark infringement, $0 against SFB for trademark infringement,

                                             -4-
$2,118,429 against Sycamore for unfair competition, and $8,700 against SFB for unfair

competition. Following the verdict, EarthGrains moved for treble damages. See 15

U.S.C. § 1117(a) (“In assessing damages the court may enter judgment, according to the

circumstances of the case, for any sum above the amount found as actual damages, not

exceeding three times such amount.”). The district court doubled the damage awards

against Sycamore and tripled the award against SFB. Sycamore appeals, but SFB does

not.

                                              II

       Sycamore raises three issues in his opening brief on appeal. First, he argues that

the district court misinterpreted the nonuse forfeiture provision of the TLA when it

deemed his license in Arizona and Nevada forfeited. Second, he argues that EarthGrains

was allowed to recover damages beyond those allowed by law. Third, he claims that the

district court abused its discretion by doubling the verdict against him.

                                              A

       We review the district court’s interpretation of a contract de novo under applicable

law. Level 3 Commc’ns, LLC v. Liebert Corp., 535 F.3d 1146, 1154 (10th Cir. 2008).

The TLA provides, and the parties do not dispute, that Arizona law governs its

interpretation. Arizona law disfavors contract interpretations that result in forfeiture.

Schaeffer v. Chapman, 861 P.2d 611, 614 (Ariz. 1993) (en banc) (“We repeatedly have

held that contracts will be strictly construed to avoid forfeitures.”); Harford v. Nat’l Life

& Cas. Ins. Co., 299 P.2d 635, 637 (Ariz. 1956) (“[F]orfeitures are not favored by law,



                                             -5-
and if an agreement providing for forfeiture is capable of two constructions, that against

forfeiture should be followed.”).

       The relevant language in the TLA is hardly a model of clarity:

       In the event that, as of January 1, 2010, Sycamore and/or his permitted
       assigns have not commenced and do not regularly distribute products under
       the Sycamore Trademarks within any State within the Licensed Territory,
       then the License granted by Metz for any State within the Licensed
       Territory in which such products are not then distributed by Sycamore
       and/or his permitted assigns shall be terminated (the “Forfeited Territory”)
       and all rights therein for such State shall revert back to Metz.

There is no dispute that Sycamore commenced product distribution in Arizona and

Nevada. And both parties agree that he was not regularly distributing on January

1, 2010.2 Accordingly, we must decide whether the contract provides for

forfeiture under these circumstances.

       Because Sycamore could not “regularly distribute products under the Sycamore

Trademarks” unless he previously “commence[d]” doing so, we cannot construe the

contract without reading one of the conditions out of the contract. If, as Sycamore

contends, he needed only to commence distribution to avoid forfeiture, then the regular

distribution requirement becomes a nullity. But if the contract requires that Sycamore be

regularly distributing products as of January 1, 2010, the requirement that he have

“commenced” doing so is simply extra verbiage.




       2
         The parties dispute when Sycamore ceased distribution, but the date is irrelevant
to our construction of the contract because it is clear that one condition was met and one
was not. Sycamore acknowledges that he never commenced distribution in Southern
California and does not challenge the district court’s ruling that he forfeited that territory.
                                              -6-
       Relying on the contract’s use of the word “and,” the district court held and

EarthGrains argues that both conditions must be met for Sycamore to avoid forfeiture.

The word “and” is, of course, a coordinating conjunction. See Bruesewitz v. Wyeth

LLC, 131 S. Ct. 1068, 1078 (2011). But the matter is not as simple as EarthGrains would

have it. The phrase “in the event that” means “if.” See Webster’s Third New

International Dictionary 1124 (1993) (“if” defined as “in the event that”); see also VII

Oxford English Dictionary 633-34 (2d ed. 1989). The two clauses connected by the word

“and” are both preceded by a negative (“have not commenced and do not regularly

distribute”). According to De Morgan’s laws, “not A and not B” is equivalent to “not (A

or B).” See Peter Smith, An Introduction to Formal Logic 61, 100 (2003); see also R.L.

Goodstein, Boolean Algebra 6-7 (2012). We thus conclude that the most appropriate

reading of the contract requires forfeiture only if Sycamore had not commenced and did

not regularly distribute products as of January 1, 2010. By meeting one condition—

commencing distribution—Sycamore avoids forfeiture. We are mindful that coordinating

conjunctions such as “and” generally “link[] independent ideas.” Bruesewitz, 131 S. Ct.

at 1078. That is not true in this case, because, as discussed above, the two conditions are

not independent.

       Having determined that the best reading of the contract supports Sycamore’s

position, we are confident that Sycamore must prevail under Arizona law’s presumption

against forfeiture. The most favorable thing that can be said (from EarthGrains’

perspective) about this poorly drafted section of the TLA is that it is “capable of two

constructions.” Harford, 299 P.2d at 637. The existence of such ambiguity mandates a

                                            -7-
finding in favor of Sycamore. See id. We therefore reverse the district court’s holding

that Sycamore forfeited his license in Arizona and Nevada.

                                              B

       Sycamore claims that the district court erred by allowing EarthGrains to pursue

damages against him for sales made by Holsum, particularly without a finding of liability

against Holsum. He also argues that EarthGrains should not be allowed to recover

damages for lost profits based on Holsum’s sales. Limitations on remedies in the TLA,

Sycamore argues, confirm that conclusion.

       These challenges are waived. Sycamore stipulated below to jury instructions

stating that, upon a determination of intentional infringement, “EarthGrains is entitled to

any profits earned by [Sycamore or SFB] or Holsum Bakery that are attributable to the

infringement” or “unfair competition.”3 In the present matter, Sycamore’s motion for

summary adjudication in the district court is insufficient to preserve the issue. See Abuan

v. Level 3 Commc’ns, Inc., 353 F.3d 1158, 1173 (10th Cir. 2003) (reiterating that

“futility exception” is a “rarely applied narrow exception” to Fed. R. Civ. P. 51

(quotations omitted)); cf. Whalen v. Unit Rig, Inc., 974 F.2d 1248, 1250 (10th Cir. 1992)

(“[E]ven if summary judgment was erroneously denied, the proper redress would not be

through appeal of that denial but through subsequent motions for judgment as a matter of

law . . . and appellate review of those motions if they were denied.”). We are particularly

       3
        Sycamore appeared to briefly challenge the jury instructions at oral argument,
but he did not do so in his briefs. “Issues raised for the first time at oral argument are
considered waived.” Fed. Ins. Co. v. Tri-State Ins. Co., 157 F.3d 800, 805 (10th Cir.
1998). Even if the issue were not waived below, we would likely deem it waived on
appeal.
                                             -8-
bound to apply the waiver rule in the case at bar, because by stipulating to the

instructions to which he now objects, Sycamore affirmatively assented to their being read

to the jury. “As a general rule, a stipulation is a judicial admission binding on the parties

making it, absent special considerations.” Vallejos v. C. E. Glass Co., 583 F.2d 507, 510

(10th Cir. 1978); cf. United States v. Koleski, 33 F. App’x 471, 472 (10th Cir. 2002)

(unpublished) (“A defendant’s stipulation waives any challenge contrary to the

stipulation.”).

       Sycamore also contends, without citation to the record or any legal authority, that

EarthGrains “is precluded from recovering for lost profits based on sales made by

Holsum.” He concedes, however, that “[w]hile the instructions state that EarthGrains can

recover Defendants’ or Holsum’s profits from infringing sales if the conduct was

intentional, they make no mention of allowing any recovery for EarthGrains[’] theoretical

lost profits for sales in AZ or NV.” As Sycamore notes in his brief, “[a] central

assumption of our jurisprudence is that juries follow the instructions they receive.”

United States v. Castillo, 140 F.3d 874, 884 (10th Cir. 1998). We further remind

Sycamore that his argument is required to contain “contentions and the reasons for them,

with citations to the authorities and parts of the record on which the appellant relies.”

Fed. R. App. P. 28(a)(8)(A). “[W]e routinely have declined to consider arguments that

are not raised, or are inadequately presented, in an appellant’s opening brief.” Sunshine

Haven Nursing Operations, LLC v. U.S. Dep’t of Health & Human Servs., Ctrs. for

Medicare & Medicaid Servs., 742 F.3d 1239, 1256 (10th Cir. 2014) (quotation omitted).



                                             -9-
                                            C

       Under the Lanham Act, a district court may enter judgment of up to three times the

actual damages award. 15 U.S.C. § 1117(a). Following a request by EarthGrains, the

district court exercised this discretion and doubled the damages awarded against

Sycamore. Sycamore challenges that decision, which we review for abuse of discretion.

United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1236 (10th Cir.

2000). Under this deferential standard, we will reverse the lower court’s decision only if

we have “a definite and firm conviction that the lower court made a clear error of

judgment or exceeded the bounds of permissible choice in the circumstances.” FDIC v.

Rocket Oil Co., 865 F.2d 1158, 1160 n.1 (10th Cir. 1989). “An abuse of discretion will

be found only where the trial court makes an arbitrary, capricious, whimsical, or

manifestly unreasonable judgment.” Nalder v. W. Park Hosp., 254 F.3d 1168, 1174 (10th

Cir. 2001) (quotation omitted).

       In electing to double the damages against Sycamore, the district court discussed

several “categories of damages which make an award of enhanced damages appropriate.”

It cited EarthGrains’ introduction of “stipulated records demonstrating Holsum’s $4.9

million in revenue” and noted that “there was no evidence introduced as to Holsum’s

costs,” which the Lanham Act requires Sycamore to demonstrate, see § 1117(a).

Moreover, the court noted that EarthGrains had shown “uncompensated losses for

additional sales beyond those made by Holsum in Arizona and Nevada,” “damage to the

goodwill of the Grandma Sycamore’s trademarks,” and “losses of sales in Utah, which

totaled at least $480,000.” Noting that the jury had awarded less than half of the amount

                                           -10-
EarthGrains proved regarding Holsum’s sales alone, the district court doubled the award

against Sycamore.

       On our independent review of the record, we cannot say that the district court

made “an arbitrary, capricious, whimsical, or manifestly unreasonable judgment.”

Nalder, 254 F.3d at 1174. As noted above, Sycamore’s stipulation to the jury instructions

waived any argument he may have had that Holsum’s profits were an inappropriate basis

for awarding damages. It seems self-evident that, even lacking precise numbers, a

company that makes and sells bread would incur costs for each loaf sold, and that profits

must therefore be less than revenue. As Sycamore notes, EarthGrains submitted expert

testimony that the jury could have used to estimate the profit Holsum made in arriving at

its award. But it is not our place to second-guess Congress’ determination that the

defendant should bear the burden of proving that difference. § 1117(a) (“In assessing

profits the plaintiff shall be required to prove defendant’s sales only; defendant must

prove all elements of cost or deduction claimed.”). We are not convinced that the district

court abused its discretion in electing to double the award against Sycamore based on the

evidence presented at trial about the amount of Holsum’s sales. And because the district

court had sufficient basis to double the award on those grounds alone, we do not need to

address EarthGrains’ alternate arguments for affirming that decision.




                                            -11-
                                        III

      The judgment of the district court is AFFIRMED in part and REVERSED in

part. We REMAND for further proceedings consistent with this order and judgment.

                                               Entered for the Court




                                               Carlos F. Lucero
                                               Circuit Judge




                                        -12-
