229 F.3d 617 (7th Cir. 2000)
Eastern Trading Company, et al., Plaintiffs-Appellants, Cross-Appellees,v.Refco, Inc., and Refco Capital Corporation, Defendants-Appellees, Cross-Appellants.
Nos. 99-2362 & 99-3053
In the  United States Court of Appeals  For the Seventh Circuit
Argued February 24, 2000Decided October 10, 2000

Appeals from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 97 C 6815--Suzanne B. Conlon, Judge.[Copyrighted Material Omitted]
Before Cudahy, Posner, and Evans, Circuit Judges.
Posner, Circuit Judge.


1
Eastern Trading Company,  a partnership located in Dubai that trades gold  and silver bullion in large quantities, brought  this suit against two commonly owned  corporations--Refco, Inc., a Chicago commodities  broker, and Refco Capital Corporation-- charging  fraud and related misconduct in violation of the  Commodity Exchange Act, 7 U.S.C. sec.sec. 1a et  seq., and the common law of Illinois. The  defendants counterclaimed for breach of contract.  The jury brought in a verdict for the defendants  on the main claim and a judgment for Refco, Inc.  of $14 million on the counterclaim, the judge  having dismissed Refco Capital Corporation as a  counterclaimant before the trial. Eastern  appeals. Refco (as we'll refer to Refco, Inc.,  the broker, except when discussing its affiliate)  cross-appeals, seeking an award of attorneys'  fees, as provided for in its commodity trading  contract with Eastern, the basis for the  successful counterclaim. The issues that we need  to resolve are primarily ones of general law  rather than of anything peculiar to the Commodity  Exchange Act or Illinois law. In view of the jury  verdict, Refco gets the benefit of the doubt on  disputable facts.


2
The partners in Eastern are Haji Ashraf and his  four eldest sons. They are equal partners in the  sense of sharing the profits of the partnership  equally. Although the firm does a substantial  business, its offices consist of a single large  room partitioned into separate cubicles for the  partners by means of sliding glass doors. The  partnership agreement authorizes each partner to  sign contracts on behalf of the firm. The father  is the chairman of the firm but during the period  relevant to this case his eldest son, Zahid  Ashraf, was the managing partner. Refco is  represented in Dubai by a commodities broker  called Ramada Financial Consultants that is owned  and operated by a distant cousin of the Ashrafs  named Zaheer Khawaja. Although Ramada is a  "foreign correspondent" of Refco (the meaning of  the term in this context is unclear), the  contract between the two firms disclaims any  intention of making Ramada an agent of Refco.


3
In January 1992 Eastern and Refco entered into  a customer agreement by which Refco was to broker  trades on U.S. commodities exchanges for Eastern.  Eastern's trading account with Refco established  pursuant to the agreement was nondiscretionary,  meaning that Eastern was to make all the  decisions on what trades to make and Refco was  merely to execute them. The agreement authorized  Zahid and two of his brothers (the three being  identified as "general partners" in Eastern with  Zahid also being designated "Managing Director")  to act for Eastern and provided that "Refco may  assume conclusively that all actions taken by and  instructions from any one of the . . . named  general partners have been properly taken or  given pursuant to authority invested in them by  all the partners in the Partnership."


4
At first the trades that Refco executed for  Eastern involved options and futures contracts  designed to hedge Eastern against unexpected  changes in gold and silver prices between the  time that it bought gold and silver and the time  that it sold them. But after three years Zahid  Ashraf began placing orders with Refco through  Khawaja on behalf of Eastern for options and  futures contracts in much greater quantities than  required to hedge Eastern's bullion trading; in  fact he was speculating, which is the opposite of  hedging. And not for the first time. In 1994 he  had opened a personal trading account (not an  Eastern account) with another U.S. commodities  broker, Republic Securities New York, through  Khawaja. In March of the following year, at about  the time that he started speculative trading  through Khawaja and Refco, Zahid lost millions of  dollars in his Republic account, which Republic  liquidated. Zahid had funded that account from  Eastern funds, and when his father got wind of  this he forced Zahid to repay the money to  Eastern and to promise never again to use  Eastern's funds for commodities trading without  the permission of the other partners.


5
The promise was not kept. In fact the trades  that Zahid began making on Eastern's behalf after  the Republic fiasco were ten times as large as  any of the previous trades that Eastern had made.  They were very risky; in three days in March,  Eastern lost $22 million in trades at Zahid's  direction executed by Refco. Refco was of course  aware of the sudden and substantial increase in  the scale and riskiness of Eastern's commodities  trading and it also learned from Khawaja of  Zahid's disastrous experience with Republic. But  as the increase in scale translated into much  larger commissions for Refco, and Eastern was a  substantial and reputable firm and Zahid its  managing partner, Refco was content.


6
Refco mailed Eastern daily statements of the  trading results of the previous day, and Ramada  faxed similar statements ("recaps") to Eastern.  Zahid's partners did not read any of these  documents, however; they left everything to do  with commodities trading to Zahid. At his  request, Ramada began sending Eastern two sets of  recaps, one reflecting routine hedging  transactions and the other the new, speculative  trading by Zahid. Zahid did not show these recaps  to his partners--in fact he destroyed them. When  one of Zahid's brothers visited Refco's chief  operating officer, the latter didn't tell him  about the dramatic change in the amount of  trading in Eastern's account.


7
Zahid informed Refco of a change in the mailing  address of Eastern's account and also opened a  separate account with Refco at the new address in  Eastern's name and switched his speculative  trading to that account. He did not consult his  partners about either the change of the mailing  address or the opening of the new account. He  later opened still another account with Refco and  switched his speculative trading to that account,  again without consulting his partners. And he was  no longer trading gold and silver futures and  options. He was speculating in foreign  currencies, at one point obtaining an exposure in  British pound futures and options that exceeded  $3 billion. Refco did not inform Zahid's partners  of any of these developments.


8
Beginning in May 1996, the account (Zahid's  third Eastern account) began experiencing large  trading losses which caused it to become  undermargined; nevertheless Refco continued  executing trades in it at Zahid's direction.  Refco also allowed him to withdraw money from the  other accounts, even though the third was now  undermargined. When finally liquidated in July of  1996, that account had a debit balance of $28  million, which Refco, Inc., as a clearing broker,  had to make good to the people on the other side  of Eastern's commodities trades. To eliminate the  debit, Refco Capital, without advising Eastern,  Zahid, or Khawaja, lent Eastern that amount,  which was deposited in Eastern's account with  Refco, Inc. Although the loan was from Refco  Capital, Eastern was asked to give, and gave, a  promissory note for the amount of the loan to  Refco, Inc., which assigned the note to Refco  Capital. Eastern repaid half the borrowed amount  to Refco, Inc., not to Refco Capital, the  assignee, but refused to repay the rest, and  Refco's counterclaim is for the remaining debit  balance. As a result of the losses, Zahid was  stripped of his partnership interest in Eastern.


9
So far as its own claim, that of fraud, is  concerned, Eastern argues only that the judge  should not have instructed the jury on Refco's  defenses of ratification, estoppel, and  mitigation (the parties focus on the first of  these, and we can ignore the others, which the  parties treat as synonyms for ratification),  because there was no evidence of ratification and  so the jury was confused. Eastern is right of  course that a jury should not be instructed on a  defense for which there is so little evidentiary  support that no rational jury could accept the  defense. E.g., United States v. Perez, 86 F.3d  735, 736 (7th Cir. 1996); Aerotronics, Inc. v.  Pneumo Abex Corp., 62 F.3d 1053, 1065-66 (8th  Cir. 1995); Farrell v. Klein Tools, Inc., 866  F.2d 1294, 1297 (10th Cir. 1989). Such a defense  should be excluded from the case altogether by a  grant of partial summary judgment or by a partial  directed verdict. Letting the jury consider it is  just an invitation to jury lawlessness. But it  doesn't follow from this that the jury's verdict  must be set aside. The invitation isn't always  taken. It cannot just be assumed that the jury  must have been confused and therefore that the  verdict is tainted, unreliable. It's not as if,  here, the judge had failed to give an instruction  to which Eastern was entitled, or had given an  erroneous instruction. This is just a case of  surplusage, where the only danger is confusion,  and reversal requires a showing that the jury  probably was confused. Griffin v. United States,  502 U.S. 46 (1991); Buhrmaster v. Overnite  Transportation Co., 61 F.3d 461, 463-64 (6th Cir.  1995); Free v. Peters, 12 F.3d 700, 703 (7th Cir.  1993); Dwoskin v. Rollins, Inc., 634 F.2d 285,  292-95 (5th Cir. 1981); cf. Gile v. United  Airlines, Inc., 213 F.3d 365, 374-75 (7th Cir.  2000); McCarthy v. Pennsylvania R.R., 156 F.2d  877, 882 (7th Cir. 1946); Lattimore v. Polaroid  Corp., 99 F.3d 456, 468 (1st Cir. 1996).  Buhrmaster suggests that such an error is  harmless as a matter of law, 61 F.3d at 463-64,  implying that there is to be no inquiry into the  likelihood that the jury was confused; that may  go too far.


10
It is different when, as in Sunkist Growers,  Inc. v. Winckler & Smith Citrus Products Co., 370  U.S. 19, 29-30 (1962), the jury is instructed on  an erroneous theory of liability and there is no  basis for determining whether it relied on that  theory. Since the jury is to take the law as the  judge instructs it, however erroneous the  instruction is, an erroneous theory of liability  supported by the facts is quite likely to commend  itself to the jury. The presumption is reversed  when, as in this case, the jury is instructed on  a theory (here of defense, but that is  immaterial) for which there is no evidence and  which probably, therefore, it rejected.


11
Eastern argues that the jury was confused. The  verdict states that Eastern first had notice of  Zahid's fraud in July 1995, which is incorrect--  that was the date of the discovery of his fraud  against Republic Securities. But if this shows  confusion, still it is hard to see how it could  be due to the erroneous instruction, which is  about ratification rather than about notice.  Anyway, since by July 1995 all of Zahid's trading  was in Eastern's account in Refco, the jury may  simply have determined that by then Eastern must  (or should) have known about Zahid's unauthorized  speculations.


12
We add that if Eastern had asked the district  judge to submit to the jury an interrogatory on  ratification, and the jury had checked the box  for that defense, indicating that it agreed that  Eastern had ratified the fraud committed by  Refco, Eastern would then have had a solid basis  for seeking a new trial (or further deliberations  by the jury) if indeed there was no evidence of  ratification. See Fed. R. Civ. P. 49; Abou-Khadra  v. Mahshie, 4 F.3d 1071, 1082-83 (2d Cir. 1993);  Chaney v. Falling Creek Metal Products, Inc., 906  F.2d 1304, 1308 (8th Cir. 1990); Foster v. Moore-  McCormack Lines, Inc., 131 F.2d 907, 908 (2d Cir.  1942). Eastern did not do this, and so has only  itself to blame for its inability to demonstrate  that the jury was confused by the instruction.


13
In any event there was enough evidence to  justify submitting a defense of ratification to  the jury after all, although actually the case  involves, as we'll see, a mixture of consent and  ratification.


14
It is helpful to step back a bit and consider in  commonsensical rather than technical legal terms  the situation disclosed by the trial record.  Zahid Ashraf had speculative fever, and although  he was speculating for the Eastern partnership  rather than on his own account (as he had been  doing through Republic Securities) he knew that  his partners would disapprove and so he took  steps with the aid of Ramada to conceal his  speculative trades from them. This was a breach  of his fiduciary duties to his partners,  Restatement of Agency (Second) sec.sec. 381, 383,  385 (1957), and hence a fraud. In re Gerard, 548  N.E.2d 1051, 1059 (Ill. 1989); Doner v. Phoenix  Joint Stock Land Bank, 45 N.E.2d 20, 24 (Ill.  1942); Conway v. Conners, 427 N.E.2d 1015, 1020  (Ill. App. 1981). True, he hoped that his  partners, members of his family, would benefit  along with himself (he would be entitled to one  fifth of the partnership's profits from his  trading). But what he did was still fraud, just  as it is fraud to embezzle money from your  employer for the purpose of gambling at the  racetrack even though you expect to win and you  intend when you do win to return to your employer  more than you had "borrowed" from him. In other  words, deliberately imposing risk can be a breach  of fiduciary duty or a fraud. United States v.  Catalfo, 64 F.3d 1070, 1077 (7th Cir. 1995);  United States v. Schneider, 930 F.2d 555, 558  (7th Cir. 1991); United States v. Dial, 757 F.2d  163, 170 (7th Cir. 1985). More fundamentally,  motive does not equal intent; fraud, larceny,  embezzlement, and the other financial crimes and  their tort equivalents are actionable even when  the motive for the wrongful conduct is benign.  E.g., United States v. Kenrick, 221 F.3d 19, 28  (1st Cir. 2000); Reddy v. CFTC, 191 F.3d 109, 119  (2d Cir. 1999); United States v. Simpson, 950  F.2d 1519, 1524-25 (10th Cir. 1991); Buechin v.  Ogden Chrysler-Plymouth, Inc., 511 N.E.2d 1330,  1336 (Ill. App. 1987).


15
It appears that Zahid was aided and abetted in  his fraud by Ramada, although this is unclear and  Ramada is not a party. Eastern claims that Zahid  was also aided and abetted by Refco. We have said  that there is no tort of aiding and abetting,  Renovitch v. Kaufman, 905 F.2d 1040, 1049 (7th  Cir. 1990); Cenco, Inc. v. Seidman & Seidman, 686  F.2d 449, 452 (7th Cir. 1982), but of course  without meaning that one who aids and abets a  tort has no liability. The distinction is between  a separate tort of aiding and abetting, and  aiding and abetting as a basis for imposing tort  liability. Although a number of cases do speak of  a "tort of aiding and abetting," e.g., Hurley v.  Atlantic City Police Dept., 174 F.3d 95, 127 (3d  Cir. 1999); Rice v. Paladin Enterprises, Inc.,  128 F.3d 233, 251 (4th Cir. 1997); GCM, Inc. v.  Kentucky Central Life Ins. Co., 947 P.2d 143, 146  (N.M. 1997); Halberstam v. Welch, 705 F.2d 472,  479 (D.C. Cir. 1983), most of them also contain  language suggesting that aiding and abetting is a  basis for imposing liability for the tort aided  and abetted rather than being a separate tort.  E.g., id. at 481; Hurley v. Atlantic City Police  Dept., supra, 174 F.3d at 126; GCM, Inc. v.  Kentucky Central Life Ins. Co., supra, 947 P.2d  at 148. That is the approach taken by the  Commodity Exchange Act and the cases interpreting  it, 7 U.S.C. sec. 25(a)(1); Damato v. Hermanson,  153 F.3d 464, 470, 473 (7th Cir. 1998); Nicholas  v. Saul Stone & Co., 224 F.3d 179, 184-89 (3d  Cir. Aug. 7, 2000); Tatum v. Legg Mason Wood  Walker, Inc., 83 F.3d 121, 123 n. 3 (5th Cir.  1996) (per curiam), and it is also the dominant  approach in Illinois, see, e.g., Congregation of  the Passion v. Touche Ross & Co., 636 N.E.2d 503,  508 (Ill. 1994); Freese v. Buoy, 576 N.E.2d 1176,  1182 (Ill. App. 1991); Sklan v. Smolla, 420  N.E.2d 575, 578 (Ill. App. 1981), although a  couple of cases have language (weakly) consistent  with the separate-tort idea. Carter Coal Co. v.  Human Rights Comm'n, 633 N.E.2d 202, 205 (Ill.  App. 1994); Wolf v. Liberis, 505 N.E.2d 1202,  1208 (Ill. App. 1987).


16
The dominant approach is also the better  approach. There is nothing to be gained by  multiplying the number of torts, and specifically  by allowing a tort of aiding and abetting a fraud  to emerge by mitosis from the tort of fraud,  since it is apparent that one who aids and abets  a fraud, in the sense of assisting the fraud and  wanting it to succeed, is himself guilty of  fraud, McClellan v. Cantrell, 217 F.3d 890, 894-  95 (7th Cir. 2000); Cenco, Inc. v. Seidman &  Seidman, supra, 686 F.2d at 452-53, in just the  same way that the criminal law treats an aider  and abettor as a principal. E.g., 18 U.S.C. sec.  2; United States v. Loscalzo, 18 F.3d 374, 383  (7th Cir. 1994); United States v. Hodge, 211 F.3d  74, 77 (3d Cir. 2000). Law should be kept as  simple as possible. One who aids and abets a  fraud is guilty of the tort of fraud (sometimes  called deceit); nothing is added by saying that  he is guilty of the tort of aiding and abetting  as well or instead.


17
Eastern argues that Refco knew that Zahid was  acting without authority in making these huge  speculative trades and that it turned a blind eye  because huge trades generate huge commissions. If  this is the correct description of the situation  (a big if, however), Refco was guilty of  participating in Zahid's fraud. The point is not  that Refco failed to blow the whistle on Zahid;  there is no general duty in tort law, a variant  of a "good Samaritan" duty, to report someone  else's fraud or other misconduct to the victim of  it, IIT v. Cornfeld, 619 F.2d 909, 927 (2d Cir.  1980); cf. Chiarella v. United States, 445 U.S.  222, 234-35 (1980); Lightning Lube, Inc. v. Witco  Corp., 4 F.3d 1153, 1185 (3d Cir. 1993); National  Union Fire Ins. Co. v. Woodhead, 917 F.2d 752,  757 (2d Cir. 1990), any more than there is a  general duty to warn or otherwise assist a victim  or potential victim of an injury tortious or  otherwise. Gust K. Newberg Construction Co. v.  E.H. Crump & Co., 818 F.2d 1363, 1367 (7th Cir.  1987); see generally Richard A. Epstein, Torts  sec. 11.2 (1999); W. Page Keeton et al., Prosser  and Keeton on the Law of Torts sec. 56, pp. 375-  76 (5th ed. 1984). But that's a rule about the  duty, or rather lack of duty, of a bystander. If  Refco was the paid executant of the fraud, it  could not describe itself as a bystander. Indeed,  as the agent of the partnership, Refco, if it  knew of Zahid's unfaithful dealing with his  partners, had a duty to inform those partners.  See Rookard v. Mexicoach, 680 F.2d 1257, 1262  (9th Cir. 1982); Charlotte Aircraft Corp. v.  Purdue Airlines, Inc., 498 F.2d 152, 156 (8th  Cir. 1974); Restatement of Agency (Second) sec.  381 and comment a (1957). It could not hide  behind the customer agreement, which authorized  it to execute trades ordered by any of the  general partners, including Zahid. That was not  authorization to connive with one of the partners  to defraud the partnership.


18
We may assume, therefore, that Eastern made out  a prima facie case of fraud (if not, its claim  should have been dismissed before trial). It was  not a strong case, so it is unlikely that, in  finding that Refco did not in fact commit fraud,  the jury was confused by the instruction on  ratification. But in any event, as we have said  and must now explain, there was enough evidence  of ratification to justify the giving of such an  instruction, though not for two of the three  reasons given by Refco. The first is that Zahid's  knowledge is imputed to the partnership and so  his partners necessarily approved of his  speculative trading; that is, the partnership was  doing the trading, and it couldn't defraud  itself. This reasoning obviously is wrong, Ash v.  Georgia-Pacific Corp., 957 F.2d 432, 436 (7th  Cir. 1992); Marine Midland Bank v. John E. Russo  Produce Co., Inc., 405 N.E.2d 205, 212-13 (N.Y.  1980); Restatement of Agency, supra, sec. 282(1),  as it would provide a legal immunity for anyone  who assisted one partner to defraud another.


19
The second bad ground for ratification is the  carelessness of Zahid's partners in failing to  monitor his activities, especially after the  Republic episode. Their carelessness would be a  defense had Zahid been defrauding a third party,  such as customers of Eastern, on behalf of  Eastern, as in our Cenco case, 686 F.2d at 454-  56; see also Restatement of Agency, supra,  sec.sec. 282(2)(a), (c) and comment h; cf. In re  Bonnanzio, 91 F.3d 296, 303 (2d Cir. 1996); New  England Tank Industries of New Hampshire, Inc. v.  United States, 861 F.2d 685, 693 n. 16 (Fed. Cir.  1988); but cf. Prudential-Bache Securities, Inc.  v. Citibank, N.A., 536 N.E.2d 1118, 1125-26 (N.Y.  1989). They would then be the beneficiaries of a  successful fraud suit against Refco and would  thus be seeking to profit from a fraud that they  could have prevented had they exercised due care.  But Zahid was defrauding his partners, and  contributory negligence is not a defense to  fraud. E.g., Dexter Corp. v. Whittaker Corp., 926  F.2d 617, 620 (7th Cir. 1991); Astor Chauffeured  Limousine Co. v. Runnfeldt Investment Corp., 910  F.2d 1540, 1546 (7th Cir. 1990); Douglas County  Bank & Trust Co. v. United Financial Inc., 207  F.3d 473, 479 (8th Cir. 2000).


20
The good ground for a defense of ratification  (or, better, consent) here is that the  partnership, though warned of Zahid's speculative  propensities and unilateralism by the Republic  episode, decided to leave the management of the  commodities trading side of Eastern's business to  him. They gave him carte blanche, not only in the  terms of the customer agreement with Refco but  also in their refusal to review his transactions  or otherwise monitor or supervise, let alone  participate in, his trading activities. They  trusted him, and authorized him, to speculate  responsibly. Although in the end his speculative  trading was a flop, during much of the 18-month  period of his trading through Refco he made money  for the partnership. The partners were happy when  things were going well, and they cannot, by a  retroactive cancellation of his authority, shift  the cost when things went badly to Refco, which  in following Zahid's directions thought it was  doing what the partnership wanted it to do. The  partners were not defrauded if they authorized  the conduct that they now denounce as fraud,  either knowing exactly what Zahid was doing or  choosing to turn a blind eye to it, e.g.,  Chauffeured Limousine Co. v. Runnfeldt Investment  Corp., supra, 910 F.2d at 1547, or if they led  Refco to believe that Zahid's risky trades were  authorized. If the partners did not originally  authorize his speculations, they either ratified  them by failing to repudiate them upon discovery  of them, e.g., Progress Printing v. Jane Byrne  Political Committee, 601 N.E.2d 1055, 1067-68  (Ill. App. 1992); Chalet Ford, Inc. v. Red Top  Parking, Inc., 379 N.E.2d 88, 91 (Ill. App.  1978); Restatement of Agency, supra, sec. 82 and  comment b, or misled Refco into thinking they had  ratified them. If Refco was misled, it was not a  defrauder, since fraud is an intentional tort.


21
We turn now to Eastern's challenge to the  counterclaim. The counterclaim resulted in an  award of $14 million to Refco, Inc. for breach of  contract. The loan to Eastern giving rise to the  debt that precipitated the counterclaim was made  not by Refco, Inc., however, but by Refco  Capital, which was dismissed before trial on the  ground that there was no consideration for the  promissory note that Eastern had given Refco,  Inc. and the latter had assigned to Refco  Capital, furnishing the only basis for Refco  Capital's claim. Because the customer agreement  already obligated Eastern to repay any debit in  its account with Refco, Inc., the promissory note  that Eastern gave Refco, Inc. and the latter in  turn gave Refco Capital was not supported by  consideration. That is to say, there was no fresh  consideration for it; it was just a repetition of  an already existing obligation. It is true that  the doctrine of "moral consideration" makes  enforceable, without any fresh consideration, the  promise of a debtor to pay a debt that is no  longer enforceable (maybe because the statute of  limitations has run), E. Allan Farnsworth,  Contracts sec. 2.8, pp. 56-57 (3d ed. 1999), but  Refco never mentioned the doctrine; so it was  waived and Refco Capital was out as a  counterclaimant. But that left the customer  agreement, which Refco, Inc. did not assign to  Refco Capital. That agreement, as we said,  required Eastern to make good on its debit. But,  says Eastern, there was no debit; it was erased  by the loan from Refco Capital. The loan made  Refco, Inc. whole and Refco Capital the only  creditor. And Refco Capital is no longer a party.


22
Questions of "veil piercing" ordinarily arise  when a creditor is trying to go after a  shareholder or affiliate of his debtor, and when  that is so the veil can be pierced and the  shareholder or affiliate reached only in  circumstances not relevant to this case. Here we  have a case in which the creditor's affiliate  (Refco Capital is the creditor, and Refco, Inc.,  the only remaining counterclaimant, is the  affiliate) is trying to pierce the veil that  would ordinarily separate it from the creditor,  in order to defeat a defense to the creditor's  suit--the lack of consideration for the  promissory note, which, in the absence of any  invocation of the doctrine of moral  consideration, bars Refco Capital from suing to  collect the note. There is nothing to prevent  using the concept of piercing the corporate veil  in this way to accomplish elementary justice,  however. It isn't done very often, but there is  ample authority for doing it when appropriate.  United States v. Scherping, 187 F.3d 796, 801-04  (8th Cir. 1999); McCall Stock Farms v. United  States, 14 F.3d 1562, 1568 (Fed. Cir. 1993); Towe  Antique Ford Foundation v. IRS, 999 F.2d 1387,  1390-94 (9th Cir. 1993); Roepke v. Western  National Mutual Ins. Co., 302 N.W.2d 350, 352-53  (Minn. 1981); Olen v. Phelps, 546 N.W.2d 176,  180-81 (Wis. App. 1996); Crum v. Krol, 425 N.E.2d  1081, 1087-89 (Ill. App. 1981); Earp v. Schmitz,  79 N.E.2d 637, 639-40 (Ill. App. 1948). The  purpose of limited liability is to encourage  investment, Frank H. Easterbrook & Daniel R.  Fischel, The Economic Structure of Corporate Law,  ch. 2 (1991), and is not engaged by the effort of  an affiliate to collect a debt nominally owed  another affiliate. Eastern inflicted a loss of  $14 million on Refco which, the jury could and  did find, the contract between Eastern and Refco  made it the obligation of Eastern to bear. The  customer agreement gave Refco, Inc. a prima facie  claim that Eastern owed it $14 million. Eastern's  defense is that the money was paid--by Refco  Capital. To that, Refco, Inc. rebuts that Refco  Capital is as a practical matter the same entity  as Refco, Inc., and so the payment was illusory  and the defense fails. We agree.


23
Now it is true that for reasons having to do  with reporting requirements imposed by the  commodities exchanges, Refco did not want to  reveal the debit in Eastern's account, and that  is why it funded it with a loan from its  affiliate, with which it has a complete identity  of interest by virtue of the fact that both Refco  corporations are wholly owned by a third  corporation. Eastern points us to nothing  indicating that what Refco did was illegal,  however, and the jury was not required to find,  and did not find, that it was a fraud against  Eastern (which argues that the infusion of cash  into the account delayed the discovery by Zahid's  partners of his huge losses), for the jury  rejected Eastern's claim of fraud. Why Eastern  should escape its contractual obligation because  of intercorporate transactions that have no  economic significance or relation to Eastern's  rights escapes us.


24
All this rigamarole would have been avoided if  instead of arranging a loan to Eastern to cover  the deficit in Eastern's account, Refco, Inc.,  the creditor on the account, had gone after  Eastern directly, without bringing Refco Capital  into the picture. Although the rigamarole may  have been for the disreputable purpose of fooling  the Board of Trade or the Commodity Futures  Trading Commission, we do not think an  appropriate sanction is a forfeiture of Refco,  Inc.'s valid claim and a windfall to its  defaulting customer.


25
The last issue concerns the attorneys' fees that  the district court refused to award Refco,  precipitating the cross-appeal. The court refused  on the ground of waiver, the issue of attorneys'  fees not having been specified in the pretrial  order as an issue for trial. The refusal was  error, because the issue of attorneys' fees was  not a triable issue. The customer agreement  obligated Eastern to reimburse Refco for the cost  (including reasonable attorneys' fees) of  collecting any unpaid debit in the account. There  was no issue of entitlement to attorneys' fees to  submit to the jury. Compare McGuire v. Russell  Miller, Inc., 1 F.3d 1306, 1313-14 (2d Cir.  1993). Either Refco prevailed on its claim for  the unpaid debit of $14 million and was therefore  entitled to reasonable attorneys' fees, or  Eastern prevailed and Refco therefore was  entitled to no attorneys' fees. The issue of  attorneys' fees (including amount) was therefore  an issue to be resolved after the trial on the  basis of the judgment entered at the trial,  Rissman v. Rissman, No. 00-2141 (7th Cir. Oct. 2,  2000); Jannotta v. Subway Sandwich Shops, Inc.,  225 F.3d 815, 818 (7th Cir.2000);  Capital Asset Research Corp. v. Finnegan, 216  F.3d 1268 (11th Cir. 2000) (per curiam); Ideal  Electronic Security Co. v. International Fidelity  Ins. Co., 129 F.3d 143, 150 (D.C. Cir. 1997),  just as in cases in which statutory rather than  contractual entitlements to attorneys' fees are  involved. E.g., Hensley v. Eckerhart, 461 U.S.  424, 433 and n. 7 (1983); Hamilton v. Daley, 777  F.2d 1207, 1212 (7th Cir. 1985); MidAmerica  Federal Savings & Loan Ass'n v. Shearson/American  Express, Inc., 962 F.2d 1470, 1475 (10th Cir.  1992).


26
The judgment against Eastern on the main claim  and in favor of Refco, Inc. on the counterclaim  is affirmed, but the denial of attorneys' fees is  reversed with directions to the district court to  award Refco its attorneys' fees in accordance  with the terms of the customer agreement.


27
Affirmed in Part, Reversed in Part,  and Remanded with Directions.

