07-3408 PAUL M. PRUSKY, individually v. RELIASTAR LIFE INSURANCE COMPANY On Appeal from the United States District Court for…

PRECEDENTIAL
UNITED STATES COURT OF APPEAL
FOR THE THIRD CIRCUIT
Nos. 07-1691; 07-1901; 07-3408
PAUL M. PRUSKY, individually and as trustee,
Windsor Securities, Inc. Profit Sharing Plan;
STEVEN G. PRUSKY, as trustee,
Windsor Securities, Inc. Profit Sharing Plan,
Appellants
v.
RELIASTAR LIFE INSURANCE COMPANY
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Nos. 03-cv-06196; and 07-cv-01335)
District Judge: Hon. Stewart Dalzell
Argued April 8, 2008
BEFORE: SMITH, HARDIMAN and COWEN,
Circuit Judges
(Filed : July 10, 2008)

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2
Arlin M. Adams, Esq.
Bruce P. Merenstein, Esq. (Argued)
Dennis R. Suplee, Esq.
Schnader, Harrison, Segal & Lewis
1600 Market Street, Rm. 3600
Philadelphia, PA 19103-0000
David H. Weinstein, Esq.
Andrea L. Wilson, Esq.
Weinstein, Kitchenoff & Asher
1845 Walnut Street, Suite 1100
Philadelphia, PA 19103-0000
Counsel for Appellants
Joseph P. Moodhe, Esq. (Argued)
Debevoise & Plimpton
919 Third Avenue
New York, NY 10022-0000
Mathieu J. Shapiro, Esq.
Obermayer, Rebmann, Maxwell & Hippel
1617 John F. Kennedy Boulevard
One Penn Center, 19 Floorth
Philadelphia, PA 19103-0000
Counsel for Appellee

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1 The MFI Associates, Ltd. Profit Sharing Plan was formerly
the Windsor Securities, Inc. Profit Sharing Plan.
2 Throughout this opinion, the briefs and accompanying
appendices pertaining to the damages and summary judgment
3
OPINION
COWEN, Circuit Judge.
Before us are two appeals from two breach of contract
actions arising out of a single set of insurance contracts.
Plaintiffs-Appellants Paul and Steven Prusky are a father-and-
son team of investment advisors, and the trustees of the MFI
Associates, Ltd. Profit Sharing Plan (collectively “the1
Pruskys”). Defendant-Appellee is ReliaStar Life Insurance
Company (“ReliaStar” or “RLIC”). In both actions, Plaintiffs
alleged that ReliaStar breached their insurance contracts by
refusing to allow them to engage in the frequent trading of
various mutual funds. The Pruskys appeal from the damages
award in the first action, and from the grant of summary
judgment for ReliaStar in the second action. For the reasons set
forth below, we will affirm both judgments.
I. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY2

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appeals will be designated “I” and “II” respectively.
4
In 1998, the Pruskys paid several million dollars to
purchase seven variable life insurance policies from ReliaStar.
The policies insured Paul Prusky and his wife, and in all
provided for over $42 million in death benefits. The cash values
of the policies were placed in a variable account and divided
into a number of sub-accounts. The Pruskys used those funds to
invest in a variety of mutual funds offered through ReliaStar by
a number of mutual fund sponsors.
The Pruskys are successful money managers with some
35 combined years of asset management experience. Together,
they manage approximately $200 million of client assets. The
Pruskys specialize in “market-timing,” an investment strategy
that capitalizes on short-term anomalies in the pricing of mutual
funds. This practice entails daily risk and performance
assessments of mutual funds, and requires frequent asset re-
allocations. While market-timing has been the subject of
increasing regulatory scrutiny in recent years, it is not illegal.
The standard terms of the instant insurance policies
allowed only four sub-account transfers per year. However,
prior to purchasing the policies, the Pruskys negotiated a
supplemental agreement with ReliaStar, the terms of which were
set forth in a series of memos executed by a ReliaStar
representative and by Paul Prusky (the “Sierk Memos”). The
Sierk Memos provided that the Pruskys would be allowed to
trade “via telephone, fax or other electronic substitute” “as often
as once per day.” JA II at 97a. ReliaStar further agreed to
“accept and effectuate all transfers to and from all sub-accounts

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5
available to any other [variable life insurance] policyholder
(without limitation, except as noted herein), with no restriction
as to the dollar amount of the transfer.” JA II at 97a.
All was well from the policies’ inception in 1998 to the
fall of 2003; the Pruskys carried out their investment strategy as
desired. However, on October 8, 2003, a representative of ING,
ReliaStar’s parent company, wrote to the Pruskys:
You have recently been identified as
participating in excessive fund timing activities in
several Fund groups ... Most recently, you made
several fund transfers into Pioneer Mid Cap Fund
from September 19 through September 24 ,th th
October 2 and October 8 2003. Thesend th
transactions resulted in the Pioneer Fund Manager
contacting ING and informing us of a no market
timing policy on this Fund.
Consequently ... based on this recent
activity and our excessive trading policy outlined
in your policy’s prospectus ... [b]eginning on
[October 9 , 2003], we will no longer accept anyth
trades via facsimile, phone or internet in Pioneer
funds sub accounts. All trades or fund transfers
regarding Pioneer Funds will have to be submitted
by U.S. mail ... Please be aware that excessive
fund trading in any other fund will result in our
requiring that all fund transfers regarding these
contracts be submitted via U.S. mail only. This
restriction will facilitate a more normal level of
transfer activity for these contracts (such as

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6
monthly or quarterly).
JA I at 568a. The Pruskys immediately responded in objection:
[It is our] position that, should ING not
honor our fax exchanges, we believe they are
violating our contracts, and we will hold ING
liable for any losses or foregone gains. Should
that be the case, please move all of our policies so
they are allocated 100% in money market ...
... [W]e will continue to fax exchanges
daily, basing each day’s decision on the
presumption we had the sub-account allocation
stated in our previous (to that day) fax ...
Under the conditions outlined, we are
moving to money market and will remain in
money market so as to mitigate our damages
while minimizing risk; were we to be invested in
a sub-account that declined in value, our policy
value would decrease accordingly. If ING would
rather we take a different approach to mitigating
our damages while minimizing risk, please inform
us of any such procedure immediately.
JA I at 570a (October 9, 2003 letter to ING) (emphasis in
original).
Notwithstanding the ING letter, the Pruskys continued to
trade in non-Pioneer mutual funds via fax. Less than a month
later, ING again wrote to Plaintiffs and stated that going
forward, all of their sub-account trades would have to be

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3 Of particular concern to the parties was the then-recent
promulgation of a SEC rule which imposed restrictions on the
ability of mutual funds to allow redemptions in the cases of
short-term fund trades, see 27 C.F.R. § 270.22c-2(a)(1), and
7
submitted via U.S. mail. The Pruskys again objected, and
continued to send daily hypothetical trades via fax. ReliaStar
placed the balance of all policies in money market accounts as
directed.
A week later, the Pruskys initiated a breach of contract
action against ReliaStar, seeking legal and equitable remedies
(“First Action”). ReliaStar defended by arguing, inter alia, that
(1) the late trading clause of the Sierk Memos was illegal,
unseverable, and rendered the contracts void in their entireties;
(2) increased regulatory scrutiny of frequent mutual fund trading
constituted changed circumstances and rendered the market
timing provisions impracticable; and (3) the market timing
provisions, although not illegal, were unenforceable on public
policy grounds. The Pruskys moved for partial summary
judgment on liability, but the District Court sua sponte granted
judgment in favor of ReliaStar, finding the late trading argument
dispositive. Prusky v. ReliaStar Life Ins. Co., 2004 WL
2827049 (E.D. Pa. Dec. 7, 2004) (Hutton, J.). A prior panel of
this Court reversed, concluding (1) the illegal late trading
clauses were severable; (2) the record did not establish
impracticability; and (3) the market timing provisions did not
violate public policy. Prusky v. ReliaStar Life Ins. Co., 445
F.3d 695 (3d Cir. 2006).
On remand, after some additional discovery , the Pruskys3

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which may have required financial intermediaries like ReliaStar
to agree to prohibit the execution of short-term trades by
individuals whom the funds identified as violators of market
timing policies, § 270.22c-2(a)(2).
4 ReliaStar initially had also appealed from the damages
determination, but has subsequently withdrawn its appeal; it
now only seeks an affirmance of the damages award.
Appellee’s Brief I, at 28 n.9.
8
once again moved for summary judgment, seeking damages,
declaratory relief, and an order of specific performance. The
District Court granted summary judgment for Plaintiffs on the
issue of liability, and specifically ordered ReliaStar to resume
accepting electronic trades “so long as those transfers are not
explicitly barred by a specific condition imposed by the fund in
which a sub-account is invested.” Prusky v. ReliaStar Life Ins.
Co., 474 F. Supp. 2d 695, 702 (E.D. Pa. 2007) (Dalzell, J.)
(“Prusky I”). No appeal was taken from this decision.
Concluding that questions of fact precluded summary
judgment on damages, the District Court ordered a hearing.
Following a one-day damages trial, the District Court concluded
the Pruskys failed to reasonably mitigate their damages and
reduced damages accordingly. See Prusky v. ReliaStar Life Ins.
Co., 474 F. Supp. 2d 703 (E.D. Pa. 2007) (“Prusky II”).
Plaintiffs timely appealed from the damages award.4
The Pruskys resumed their trading activities with the
entry of the District Court’s January 2007 Order, and ReliaStar
accepted and processed the requested transfers without incident,

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9
for a short period, at least. On February 15 and March 30, 2007,
ReliaStar notified Plaintiffs that Fidelity and ING mutual funds,
respectively, had restricted their trades, thereby eliminating 57
of the 63 total sub-accounts available for investment. Then, on
April 2, 2007, ReliaStar relayed that American Funds had also
restricted the Pruskys’ trades, the result being that Plaintiffs’
choice of mutual fund investments was whittled to one.
Two days later, Plaintiffs filed another breach of contract
action against ReliaStar (“Second Action”). ReliaStar moved
for summary judgment, and the District Court entered judgment
for ReliaStar. See Prusky v. ReliaStar Life Ins. Co., 502 F.
Supp. 2d 422 (E.D. Pa. 2007) (“Prusky III”). The Pruskys
timely appealed.
II. DISCUSSION
The District Court exercised jurisdiction over the instant
diversity actions pursuant to 28 U.S.C. § 1332. We have
jurisdiction over the two pending appeals as they were timely
taken from the final damages award in the First Action, and
from the grant of summary judgment in the Second Action. 28
U.S.C. § 1291.
A.Damages Award (First Action)
The District Court’s determination that the Pruskys did
not adequately mitigate losses and that reasonable efforts would
have reduced their damages are findings of fact reviewed for
clear error. See, e.g., Windsor Sec., Inc. v. Hartford Life Ins.
Co., 986 F.2d 655, 668 (3d Cir. 1993) (district court’s
conclusion that plaintiff could have done more to mitigate
damages without incurring undue risk and expense were “not

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5 The Pruskys cite to two Third Circuit cases for the
proposition that “review of a district court’s decision involving
the interpretation of state law, including the issue of mitigation
of damages, is plenary.” Appellants’ Brief I, at 18 (citing
Dillinger v. Caterpillar, Inc., 959 F.2d 430, 434-35 (3d Cir.
1992) and Fiat Motors of N. Am., Inc. v. Mellon Bank, N.A.,
827 F.2d 924, 930 (3d Cir. 1987)). However, neither of these
cases lends support for their contention. Dillinger is entirely
inapposite authority for the instant case because the issue there
pertained to the admissibility of certain evidence in a products
liability trial for purposes of establishing mitigation. 959 F.2d
at 434-35 (“The propriety of the district court’s admission of
evidence concerning Dillinger’s non-use of the available seat
belt to mitigate his damages is a question of Pennsylvania law.
Accordingly, our review is plenary.”) (internal footnote
omitted). On the other hand, Fiat Motors merely reviewed the
trial court’s determination of whether mitigation was warranted
at all; since that question turned on state contract law principles,
plenary review was thus clearly appropriate. 827 F.2d at 930-
31 (finding no duty to mitigate).
In this case, neither side disputes that Plaintiffs were
required to mitigate their damages. The only disagreements
10
clearly erroneous”); 24 Richard A. Lord, WILLISTON ON
CONTRACTS § 64:27, at 195 (4th ed. 1999) (“What is a
reasonable effort to avoid the injurious consequences of a
breach is a question of fact. So, too, is what is undue risk and
expense.”) (internal citations omitted); Ram Constr. Co., Inc. v.
Am. States Ins. Co., 749 F.2d 1049, 1053 (3d Cir. 1984) (factual
issues reviewed for clear error). This is a highly deferential5

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relate to whether the Pruskys’ actual efforts were reasonable
under the circumstances, and whether they could have, without
undue risk and expense, undertaken other measures to minimize
economic loss. These are precisely the findings that we have
reviewed for clear error on a prior occasion. See Windsor Sec.,
Inc. v. Hartford Life Ins. Co., 986 F.2d 655, 668 (3d Cir. 1993).
6 This figure was calculated by taking the difference between
the hypothetical cash value of the insurance policies had
ReliaStar carried out the Pruskys’ trades as they were required
to under the contracts (“no-breach balance”), and the policies’
actual cash value (“100% money market balance”) as of January
11
standard of review. Factual findings are clearly erroneous only
where the appellate court is “left with the definite and firm
conviction that a mistake has been committed.” Frett-Smith v.
Vanterpool, 511 F.3d 396, 399 (3d Cir. 2008). It is not enough
that we would have reached a different conclusion as the trier of
fact; as long as the district court’s factual findings are
“plausible” when viewed in light of the entirety of the record,
we must affirm. Brisbin v. Superior Valve Co., 398 F.3d 279,
285 (3d Cir. 2005) (quoting Anderson v. City of Bessemer, 470
U.S. 564, 573-74 (1985)).
The District Court concluded that ReliaStar breached its
contractual obligations when it refused to process the Pruskys’
faxed trade requests. The parties do not take issue with this
liability determination, nor do they dispute that ReliaStar’s
breach resulted in $1,019,293.28 of foregone gains to
Plaintiffs. The sole questions before us are: (1) whether, in6

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31, 2007.
7 As the District Court noted, there is an unavoidable
imprecision in the final damages calculation because the values
each party proffered for the account balances were from
different dates. In particular, the figure the parties stipulated to
as the foregone gains, see supra n.6, was as of January 31,
2007; whereas the figures provided by ReliaStar’s expert
witness were as of January 12, 2007 and were rounded to the
nearest $1,000. Prusky v. ReliaStar Life Ins. Co., 474 F. Supp.
2d 703, 707 n.9 (E.D. Pa. 2007). The District Court calculated
damages by taking the difference between the no-breach and
100% money market balances on January 31, 2007, and
subtracting from that, the difference between the third
alternative strategy and 100% money market balances as of
January 12, 2007. Id. at 707, 711-12. But, it may have been
12
light of ReliaStar’s breach, the Pruskys undertook reasonable
efforts to mitigate damages; and if not, (2) the extent to which
their recovery should be reduced. On these points, the District
Court found the Pruskys: (1) did not act reasonably to mitigate
by placing and keeping their entire cash balance in a money
market fund for more than three years; and (2) a reasonable
alternative mitigation strategy would have decreased their losses
by $912,000. Accordingly, the Court awarded the Pruskys
damages of $107,293.28 ($1,019,293.28 – $912,000).
This is a close case with a unique set of facts. After
much careful consideration, however, we conclude that the
District Court’s findings on mitigation were not clearly
erroneous. Therefore, we will affirm the damages award.7

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simpler (and potentially more precise) to have just awarded
damages of $148,000 since, as of January 12, 2007, ReliaStar’s
data showed that its third proposed alternative would have
underperformed the Pruskys’ desired trades by $148,000. JA I
at 1000a. Nevertheless, because the District Court’s general
methodology (i.e., no-breach losses less what reasonable
mitigation would have produced) was correct, we cannot say
that the imprecision in the calculation resulting from the use of
the parties’ temporally discordant figures arose to a clearly
erroneous damages award.
13
1.Reasonableness of the Pruskys’ mitigation efforts
Mitigation is an affirmative defense, for which the
breaching party bears the burden of proof. Koppers Co., Inc. v.
Aetna Cas. & Sur. Co., 98 F.3d 1440, 1448 (3d Cir. 1996);
Williams v. Masters, Mates & Pilots of Am., 120 A.2d 896, 901
(Pa. 1956). To prove a failure to mitigate, one must show: “(1)
what reasonable actions the plaintiff ought to have taken, (2)
that those actions would have reduced the damages, and (3) the
amount by which the damages would have been reduced.”
Koppers, 98 F.3d at 1448. Damages that could have been
“avoided with reasonable effort without undue risk, expense,
burden, or humiliation will be considered ... as not being
chargeable against the defendant.” WILLISTON ON CONTRACTS
§ 64:27, at 195. Reasonableness “is to be determined from all
the facts and circumstances of each case, and must be judged in
the light of one viewing the situation at the time the problem
was presented.” In re Kellett Aircraft Corp., 186 F.2d 197, 198
(3d Cir. 1950).

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14
When a party breaches a contract by failing to perform,
the injured party should make reasonable efforts to avoid loss by
arranging a substitute transaction. RESTATEMENT (SECOND) OF
CONTRACTS § 350 cmt. b, at 127 (1981). Where no well-
established market for the particular type of performance is
available, the breaching party generally bears the burden “to
show that a substitute transaction was available.” Id. § 350 cmt.
c, at 128. “Whether an available alternative transaction is a
suitable substitute depends on all the circumstances, including
the similarity of the performance.” Id. § 350 cmt. e, at 130.
The issue here is whether the Pruskys, when they became
unable to trade via fax on a daily basis, were required to do more
than simply placing their $7 million balance in a money market
fund for the three-year pendency of the litigation. Plaintiffs
argue that because their only area of niche expertise is market-
timing, forcing them to engage in any sort of a buy-and-hold
strategy in the alternative would have required them to
undertake undue risk. ReliaStar responds that keeping the entire
balance idle in a low-yield, no-risk vehicle was not a reasonable
substitute for the risky market-timing strategy in which the
Pruskys were engaged prior to the breach.
ReliaStar cites to Teachers Insurance and Annuity
Association of America v. Ormesa Geothermal, 791 F. Supp.
401 (S.D.N.Y. 1991) for the proposition that a reasonable
substitute must be one with a similar risk-reward profile to that
of the opportunity lost as a result of the breach. In Ormesa
Geothermal, a lender sued a prospective borrower who reneged
on a commitment to borrow $25 million. There, the court held
that the injured lender was entitled to damages as measured
between the interest income it would have earned under the

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15
breached agreement and that it “would be deemed to have
earned by timely mitigating its damages – i.e., by making an
investment with similar characteristics at the time of the
breach.” Id. at 416. The court emphasized that in the mitigation
context, an alternate investment “should have investment
characteristics as close as possible to the original investment” in
terms of principal, interest rate, borrower credit rating, and
intended duration. Id. at 416; see also Teachers Ins. & Annuity
Ass'n of Am. v. Coaxial Communications of Cent. Ohio, Inc.,
799 F. Supp. 16, 18-19 (S.D.N.Y. 1992) (following Ormesa
Geothermal).
What constitutes a reasonable substitute for mitigation
purposes in the context of the breach of an investment contract
is largely an issue of first impression for us. However, careful
study of analogous authorities leads us to conclude that the view
espoused by the Ormesa Geothermal court – that courts should
consider the specific nature and characteristics of the
performance lost as a result of the breach in determining
whether a proposed substitute was in fact reasonable – is a well-
reasoned one.
While there is admittedly a dearth of authorities on the
precise issue at hand, we find the Seventh Circuit’s decision in
Fishman v. Estate of Wirtz, 807 F.2d 520 (7 Cir. 1986) to beth
particularly helpful. In Fishman, an unsuccessful bidder for the
Chicago Bulls claimed that the actual purchaser violated
antitrust laws in acquiring the franchise. Finding liability, the
district court calculated damages by subtracting from the
undisputed antitrust damages a figure representing plaintiff’s
“opportunity cost,” an amount which the court equated to what
plaintiff would have earned had he placed the idle capital in

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8 The relevant distinction is of course that equity investments
entail more risk and thus offer a commensurately greater rate of
return than that which one would expect from a lower-risk debt
investment. Because treasury bills are the prototypical example
of a risk-free investment, their yields are also correspondingly
low.
16
three-month treasury bills during the ten-year pendency of the
dispute. Id. at 556. The Seventh Circuit upheld this
methodology in principle; but, defining “opportunity cost” as
“the return on the most lucrative alternative investment, that is,
the return on the ‘next-best’ investment,” id. at 556, the panel
reversed on the grounds that a three-month treasury rate of
return was not the “next-best” alternative to the particular equity
investment at issue, id. at 558-59.
Applying “opportunity cost” principles to the mitigation
context, the Fishman court held that the proper alternative
investment would be one yielding a similar return as might be
expected for equity investments, “albeit not necessarily the
highest and riskiest one available.” Id. at 559. In particular, the8
court reasoned:
On the one hand, we agree with the district court
that while a plaintiff has a duty to mitigate
damages, he should not be required to take undue
risks. On the other hand, we cannot adopt a
measure of opportunity cost which would reward
a plaintiff for letting his capital lie fallow while
he waited passively for many years to collect his
[] damage[s] award. While, as we have noted, an

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17
investor of risk capital may have no duty of
“cover” in the same sense as a commodity trader’s
duty, the loss of one investment opportunity does
not negate the assumption that the capital will
seek out some comparable opportunity.
Id. at 558 (internal citation omitted).
The Seventh Circuit remanded for the district court to
reconsider the question of the appropriate opportunity cost. Id.
at 559. In doing so, however, the court did not preclude the use
of the treasury rate altogether; it merely opined that it was
unreasonable to use the T-bills rate for the entire ten-year
damages period. Id. at 559-60 (“while undue risk may not be
forced on a victim of wrongdoing, leaving equity funds
indefinitely in treasury bills could discourage enterprise and
would not be a proper assumption for the computation of the
opportunity cost of equity in the long run”) (emphasis added).
Indeed, the court expressly acknowledged that given the nature
and complexity of the particular lost investment opportunity at
issue, it may have been entirely reasonable to place the unused
funds in treasuries for some initial period of time while plaintiffs
sought out and structured alternative investments. Id. at 559.
Similarly, the Court of Federal Claims’ mitigation
decision in Koby v. United States, 53 Fed. Cl. 493 (2002), a
breach of contract case, also lends support to the Ormesa
Geothermal view. In Koby, plaintiff purchased an apartment
building at an Internal Revenue Service (“IRS”) auction, but the
IRS unilaterally rescinded the sales agreement and subsequently
put the property up for auction again. There, the court rejected
the IRS’s argument that plaintiff’s failure to participate in the

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9 Plaintiffs rely on Scully v. US WATS, Inc. for their
argument that mitigation principles did not require them to re-
enter the market to make substitute investments. 238 F.3d 497
(3d Cir. 2001). However, Scully is readily distinguishable. At
issue in Scully was the proper calculation of damages for an
employee who was wrongfully prevented from exercising
certain stock options. There, the district court used a blend of
conversion and breach of contract principles, and calculated
damages by multiplying the number of options by the difference
between the options’ strike price and the stock’s open market
price on the date of the employee’s attempted exercise. Id. at
508. The employer objected that because the options required
the employee to hold the purchased shares for at least one year
after the date of exercise, the court should have discounted the
18
second auction constituted a failure to mitigate because “[t]he
latter transaction [] did not involve remotely the same type of
performance owed under the prior contract.” Id. at 498. In
particular, the court found: the second auction was merely an
open-ended offer of sale to the public, whereas plaintiff
previously had a contract to buy at a fixed price; the second
auction’s minimum sales price was nearly four times the original
minimum; and the second auction’s owner redemption period
would have occurred at a time when real estate prices were
increasing, thereby increasing the likelihood of redemption. Id.
at 498 n.4.
These cases are persuasive support for the District
Court’s conclusion that the Pruskys did not adequately and
reasonably mitigate their damages. In particular, the District9

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open market price to account for the restricted nature of the
shares, and plaintiff should not be able to recover “beyond that
computed using the discount unless he actually covered by
entering the market to mitigate his losses.” Id. at 514 (emphasis
added).
The court rejected the idea that plaintiff was required to
actually purchase the stocks as a “cover” in a case involving lost
stock options; instead, it stated that in the conversion context,
the “cover/mitigation principle ... is merely a method of
establishing ‘the outer time limit of a reasonable period during
which the highest intermediate value of the lost stock can be
ascertained.’” Id. (quoting Schultz v. Commodity Futures
Trading Comm’n, 716 F.2d 136, 140 (2d Cir. 1983) (wrongful
stock conversion case)). Furthermore, the Scully court
concluded that the proposed “cover” was inappropriate because
it would have required plaintiff to risk substantially more
money in the market in order to obtain the same potential profit
than he would have had to by exercising the options (i.e., to get
100 shares through options, plaintiff only had to pay the strike
price times 100, whereas to “cover” the same 100 shares on the
open market, plaintiff would have had to pay the higher open
market price times 100). Id.
19
Court found as follows: “The Pruskys had previously invested
[the insurance policy] funds in vehicles with substantial
exposure to the equity markets and had produced double-digit
returns”, whereas money market funds have “often
underperformed inflation.” Prusky II, 474 F. Supp. 2d at 709.
These findings are supported by the record. See JA I at 283a-
284a (Steven Prusky’s testimony that market-timing is not

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20
without risk). Thus, prior to ReliaStar’s breach, the Pruskys
were clearly engaged in an active investment strategy that
entailed a degree of risk, but one which commensurately had
historically yielded handsome returns. As such, the passive,
post-breach allocation of Plaintiffs’ funds to a risk-free, low-
return money market fund is decidedly not a comparable
alternative investment opportunity. The District Court’s finding
on this point is not clearly erroneous.
The Pruskys implicitly contend that because their market-
timing strategy is so unique, no comparable investment
opportunities exist for them. While this argument admittedly
has some intuitive appeal, we nevertheless fear that its
wholesale adoption would leave us teetering on the edge of the
proverbial slippery slope. Our concern with the Pruskys’
position is that under it, few, if any, injured investors will have
to mitigate damages because nearly all investment opportunities
are unique in some aspects. Not surprisingly, we are not alone
in our concern, as other courts have also declined such
arguments and require mitigation regardless of the particular lost
opportunity at issue. See, e.g., Fishman, 807 F.2d at 559
(unsuccessful purchaser of Chicago Bulls was expected to seek
out alternative equity investment); McGrath v. McGrath, No.
0202753H, 2007 WL 738697, *5-*8 (Mass. Super. Ct. Feb. 12,
2007) (rejecting argument that no substitute existed when
defendants were forced out of an ownership stake in an
apartment complex; acknowledging that investment in real
estate mutual funds or REITs could have been reasonable
alternatives). We see no reason to depart from this well-trodden
path.
Certainly, investing in mutual funds entails a degree of

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10 Notwithstanding the plain language of the ING letters that
trades by U.S. mail would be accepted, Plaintiffs suggest
ReliaStar would not have processed the trades more frequently
than monthly or quarterly. However, there is no evidence that
this would have been the case; the Pruskys never attempted to
submit any trades by U.S. mail.
21
risk, and it would likely be improper to force such investments
upon laypersons if their prior investments were exclusively in
low- to no-risk vehicles like certificates of deposits or treasuries.
But that was not the case with the Pruskys. Paul and Steven
Prusky had a long track record – indeed, over three decades
worth, combined – as successful money managers. See Ormesa
Geothermal, 791 F. Supp. at 417 (“although it may not be
appropriate to force unsophisticated individuals to assume risks
in investing monetary rewards, those same concerns do not
apply to sophisticated investors”). Thus, their portrayal of
themselves as entirely clueless about general equity and bond
mutual fund investments once taken out of their market-timing
niche strains credulity.
Furthermore, it bears noting that ReliaStar’s breach only
prevented the Pruskys from trading by electronic means; they
were expressly permitted to engage in frequent trading as long
as the trades were submitted by U.S. mail. Nothing in the10
record supports the Pruskys’ implicit suggestion that they would
have been required to blindly pick at various “volatile” equity
and bond funds and sit idly by in the face of significant fund
declines. On the contrary, they possessed the ability to modify

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11 Additionally, we note that although much emphasis is
placed on the ability to place daily trades, Plaintiffs did not
historically trade in and out of all of their desired funds with
such frequency. Steven Prusky’s testimony indicated that while
their equity holdings were generally of a very short duration (a
day to a few days), their bond positions sometimes had longer
hold horizons (a week). JA I at 232a; 282a-283a.
22
their allocations as necessary, albeit with a day or more lag.11
Considered alongside the well-known fact, which Steven Prusky
himself acknowledged at trial, see JA I at 280a, that mutual fund
investments by their very nature are less likely to be susceptible
to dramatic changes in value on a day-to-day basis relative to
direct individual equity investments, it is clear that Plaintiffs’
suggested doomsday scenario – that their fund values would
decline so significantly as to cause the policies to lapse – was
but a remote possibility.
Moreover, as the Seventh Circuit indicated, the duration
of the mitigation period is also an important consideration in the
reasonableness inquiry. See Fishman, 807 F.2d at 559
(unreasonable to place funds that would have been used for an
equity investment in no-risk treasuries for ten years). Here, the
District Court found that notwithstanding Steven Prusky’s
testimony that he had hoped the dispute with ReliaStar would be
resolved in a matter of weeks, no reasonable person, especially
not one assisted by “able and seasoned counsel,” could have
harbored such illusions about the nature of federal litigation.
Prusky II, 474 F. Supp. 2d at 709 n.14. This is a sensible
conclusion, especially in light of the fact that the Pruskys are

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23
clearly no strangers to litigating in the federal courts. See, e.g.,
Windsor Sec., Inc. v. Hartford Life Ins. Co., 986 F.2d 655 (3d
Cir. 1993) (plaintiff Paul Prusky alleged insurer’s transfer
restrictions constituted breach of contract); Prusky v. Aetna Life
Ins. & Ann. Co., 2006 WL 952320 (3d Cir. April 13, 2006)
(plaintiffs Paul and Steven Prusky appealed in breach of contract
action); Prusky v. Prudential Ins. Co. of Am., 44 Fed. Appx. 545
(3d Cir. Aug. 1, 2002) (Paul Prusky sued for breach of contract).
Indeed, even if Steven Prusky’s belief was reasonable at the
outset of the litigation, it would have become decidedly
unreasonable as the case progressed on with no end in sight; at
that point, Plaintiffs should have adjusted their mitigation
strategy accordingly.
On the other hand, we acknowledge that the Pruskys’
position is not without support. First, as a practical matter, had
the breach period coincided with a widespread market decline,
it is possible that any form of a buy-and-hold strategy would
have underperformed money market returns. However, in such
a case, as Defendant’s counsel explicitly acknowledged during
oral arguments, ReliaStar would also have been liable for the
losses, so long as the investment strategy was, and continued to
be, reasonable. See RESTATEMENT (SECOND) OF CONTRACTS
§ 350 cmt. h, at 132-33 (injured party who makes reasonable but
unsuccessful efforts to avoid additional loss not precluded from
recovery); id. § 347 cmt. c, at 114 (injured party may recover for
incidental and consequential costs/damages incurred as a result
of reasonable efforts at mitigation, even if efforts proved
unsuccessful).
Second, that the Pruskys did have all of their money in
money market funds for periods of time prior to the breach is

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24
some support that their actual mitigation strategy – 100%
allocation to money market – wasn’t as incomparable to their
desired strategy as ReliaStar suggests. However, using the
trades the Pruskys requested during the breach period as a proxy,
where on average only 44% of their money was in money
market, see JA I at 28a, a 100% money market allocation would
appear to be the exception rather than the rule. Furthermore, it
obviously would have been impossible to even come close to
achieving the double-digit returns to which Plaintiffs were
accustomed with a pure money market allocation. Therefore, on
the whole, it is hard to conceive of the two different strategies
– one active and weighted towards equity and high yield, and the
other passive and without any risk exposure – as comparable.
We recognize that the Pruskys were confronted with a
difficult mitigation decision, and are not unsympathetic to their
claim that the inability to execute immediate trades eroded much
of their market expertise and advantage. Ultimately, however,
the crux of this case turns on whether, putting aside any prospect
of future legal recovery, an experienced investor would have
been content to leave $7 million of capital entirely invested in
money market for a multi-year, and potentially indefinite,
period. We think the answer is a decided “no.” In light of all
the circumstances, we do not think it unreasonable, as the
District Court concluded, to expect intelligent individuals like
the Pruskys, indeed, individuals who invest money for a living,
to position their investments for higher returns than that which
could have been expected from a certificate of deposit. On
balance, the fixed money market allocation was not the “next-
best” alternative to Plaintiffs’ favored market-timing strategy.
Accordingly, the District Court’s conclusion that the Pruskys did

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25
not reasonably mitigate their damages was not clearly erroneous.
2. Availability of other reasonable alternative methods
of mitigation
A failure to mitigate, however, does not preclude
wholesale recovery. Rather, in such a case, the defendant is
merely entitled to offset his damages payment by the amount he
can prove could have been avoided through plaintiff’s
reasonable efforts. E.g., Koppers, 98 F.3d at 1448; State Pub.
Sch. Bldg. Auth. v. W.M. Anderson Co., 410 A.2d 1329, 1331
(Pa. Cmwlth. 1980). The reasonableness determination “must
be judged in the light of one viewing the situation at the time the
problem was presented.” Kellett Aircraft, 186 F.2d at 198.
Here, ReliaStar offered three alternative mitigation
strategies through the testimony of its expert witness, Dr.
Vincent Warther. The first strategy proposed maintaining the
Pruskys’ portfolio exactly as it existed on November 5, 2003,
the date ReliaStar breached the contracts by revoking their
electronic trading privileges. Over the breach period, this
hypothetical allocation would have outperformed Plaintiffs’
desired trades by over $1.3 million.
The second proposal was more complex. Analyzing the
desired trades, Dr. Warther determined that the Pruskys, on
average and on an aggregate basis, had 44% of their money in
money market over the three-year breach period. As such, he
proposed a fixed distribution of 44% in money market, and 56%
in mutual funds. The 56% would have duplicated the Pruskys’
mutual fund portfolio as it existed on the date of the breach.
This strategy would have yielded $264,000 more than did the

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12 As Dr. Warther further elaborated at trial:
Dr. Warther: The third strategy ... invests in
exactly the same funds at the same time in the
same proportion that the [Pruskys’ desired]
trading strategy was invested ... It holds [the
funds] as long as the [Pruskys were] holding
them. So, if [the Pruskys] invested in a given
fund for a 12 month period, this [strategy] also
invests in a 12 month[] period.
The Court: Even though in the [Pruskys’] trading
it was moving in and out?
Dr. Warther: Exactly. What it does, it takes the
average dollar balance that the [Pruskys] had over
that period and smooths it out and so it does it in
a buy and hold way.
JA I at 360a-361a.
26
desired trades.
The third proposal replicated a buy-and-hold allocation
based on Plaintiffs’ requested trades. In this scenario, Dr.
Warther gathered all of the Pruskys’ desired trades for the same
three years following the breach and “held the funds in which
the [Pruskys] invested in the same proportions and during the
same time periods as the Pruskys’ desired trades.” Prusky II,12
474 F. Supp. 2d at 711. This last proposal produced $148,000
less than Plaintiffs’ desired trades would have, but outperformed
the pure money market allocation by $912,000.
The District Court rejected the first strategy, reasoning
that basing a long-term hold position on allocations Plaintiffs

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27
just happened to have held on a particular day was “arbitrary at
best.” Id. Insofar as the second strategy was also partly
premised on holding the portfolio fixed based on the Pruskys’
particular allocations on the date of the breach, the Court found
it to be similarly unreasonable. We cannot say that these
conclusions were clearly erroneous; it is certainly plausible that
a reasonable investor in the Pruskys’ position would not have
considered such a random portfolio allocation to be a sound
long-term investment strategy.
However, the District Court concluded the third proposed
strategy “represent[ed] a reasonable mitigation strategy that was
readily available to the Pruskys.” Id. at 711-12. To the extent
that this method was derived through an after-the-fact tabulation
of the desired trades during the breach period, we recognize that
it may seem somewhat counterintuitive to expect the Pruskys to
be able to carry out this precise asset allocation without
assuming some prescience on their part. Nevertheless, where,
as here, the lost performance implicates foregone investment
opportunities, and where mitigation efforts could have consisted
of any of countless permutations of investments held for varying
durations, we think that any legitimate attempt to demonstrate a
mitigation offset will invariably entail some degree of ex-post
reasoning. As such, insofar as this strategy attempted to mimic
the risk profile underlying the desired allocations, made buy-
and-hold investments in the same funds the Pruskys would have
bought absent the breach, and was active in its management of
the portfolio, we are satisfied there was no clear error in the
District Court’s conclusion that the strategy was one that was
both reasonable and readily available to the Pruskys.
Finally, we wish to conclude with the observation that for

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28
purposes of clear error review, it is irrelevant that we may not
view this strategy to be the most reasonable or the most
persuasive one, or even if we feel that we would have made
entirely different findings on the mitigation question had we
been sitting as the original triers of fact. Here, we must uphold
the trial court’s findings on the availability of alternative
mitigation strategies, and on the amount of the mitigation offset,
simply because they are not, in light of the whole record,
implausible. Therefore, we will affirm the judgment for the
Pruskys in the amount of $107,293.28.
B. Summary Judgment (Second Action)
In the Second Action, the District Court granted summary
judgment for ReliaStar. The Pruskys contend this was error,
arguing that neither issue nor claim preclusion bars their second
lawsuit, and that the District Court erred in interpreting the
contracts. Because we conclude that the application of collateral
estoppel here is dispositive, we need not consider the res
judicata or contract construction questions, and will affirm
solely on issue preclusion grounds.
We exercise plenary review over a grant of summary
judgment. Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d
Cir. 2007). Likewise, we review de novo a trial court’s
application of collateral estoppel. Jean Alexander Cosmetics,
Inc. v. L’Oreal USA, Inc., 458 F.3d 244, 249 (3d Cir. 2006).
There is no dispute that Pennsylvania preclusion law governs in
this diversity action. Riverside Mem. Mausoleum, Inc. v.
UMET Trust, 581 F.2d 62, 66 (3d Cir. 1978).
In Pennsylvania, application of collateral estoppel
requires (1) identity of issues, (2) a final judgment on the merits,

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29
(3) identity of parties, (4) that the party seeking relitigation had
a full and fair opportunity to argue the issue in the prior
proceeding, and (5) that the prior determination was essential to
the judgment. E.g., Yamulla Trucking & Excavating Co., Inc.
v. Justofin, 771 A.2d 782, 786 (Pa. Super. 2001). Only the first
and fifth elements are disputed here.
The Pruskys’ first argument that there is no identity of
issues is easily dispatched. Initially, it is simply not the case that
the First Action concerned the parties’ obligations under the
insurance prospectus, whereas the Second Action turned on the
terms of the insurance contracts. In Prusky I, the District Court
cited to a contract term that “[a]ll transfers are also subject to
any charges and conditions imposed by the Fund whose shares
are involved,” and opined based on this term that “the contract
allows ReliaStar to condition its performance on compliance
with [a fund’s instructions to prohibit or restrict trading.]”
Prusky I, 474 F. Supp. 2d at 700. As a factual matter, this same
language appears in both the policies’ prospectuses and the
insurance contracts themselves. Therefore, it is irrelevant that
the District Court cited the prospectus as the source of the
particular contractual term in Prusky I, because there is no
reason why this identical language should be susceptible to a
different construction in a subsequent action involving the same
contracts and parties.
Nor do we agree with the Pruskys’ overly-narrow
characterization of the particular legal questions at issue in the
two proceedings. That the two actions were precipitated by
distinct factual developments, i.e., ReliaStar’s refusal to allow
electronic trades versus its subsequent refusal to accept all
trades, does not detract from the fact that the same legal issue –

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30
the extent of ReliaStar’s contractual obligations under the
insurance contracts – was nevertheless at the heart of both
actions.
Furthermore, the Pruskys’ second point of contention –
that the District Court’s prior determinations were not “essential
to the judgment” – is also unavailing. The Pruskys argue that
the District Court never made any binding determination in the
First Action as to the extent of ReliaStar’s obligation to accept
trades in the event that the mutual funds actually restricted their
trades. They claim that because the sole issue in dispute in the
First Action was their right to execute trades through electronic
means, the District Court’s “comments” as to ReliaStar’s
performance obligations beyond this narrow issue were merely
advisory in nature, and thus could not have been appealed.
Plaintiffs are incorrect.
It is true that only legal or factual conclusions necessary
to a final valid judgment may be given preclusive effect.
RESTATEMENT (SECOND) OF JUDGMENTS § 27, at 250 (1982).
This necessity requirement is justified by concerns that the first
court “may not have taken sufficient care in determining an
issue that did not affect the result” and that “appellate review
may not be available to ensure the quality of the initial
decision.” 18 Charles A. Wright et al., FEDERAL PRACTICE &
PROCEDURE § 4421, at 539 (2d ed. 2002).
Here, the gist of Plaintiffs’ claims in the First Action was
that ReliaStar’s refusal to accept faxed trades constituted breach
of contract. However, because ReliaStar defended by arguing,
inter alia, that the mutual funds’ reluctance to process the trades
rendered its performance impracticable, the parties in fact

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13 In particular, as indicated by the Pruskys’ trial court
submissions, they argued below that even if the mutual funds
restricted their trades, ReliaStar was obligated to take
reasonable efforts to overcome such restrictions, by, inter alia,
negotiating with the funds to allow for market-timing,
subscribing to new funds that permitted market-timing, and
adjusting the cash value of the Pruskys’ policies as if the
restricted trades had been made. See Pls.’ Mot. for Summ. J., at
17-21 (Doc. No. 69, No. 03-CV-6196).
31
vigorously litigated the impact of fund restrictions on
ReliaStar’s contractual obligations. The District Court found13
that ReliaStar was in breach because it did not “demonstrate ...
that it ever received any instructions [from any mutual funds] to
restrict the [Pruskys’] trading.” Prusky I, 474 F. Supp. 2d at
700. However, the Court was explicit that “when ReliaStar has
received specific instructions from a fund to prohibit or restrict
trading, the contract allows ReliaStar to condition its
performance on compliance with those instructions.” Id.
Had the Pruskys simply sued for legal damages in the
First Action, they would be correct that this latter finding would
not have been essential to the Court’s ultimate judgment that
ReliaStar had breached the contract. But the problem is that
Plaintiffs sought damages as well as “injunctive, declaratory,
and/or specific-performance relief.” JA I at 67a (Compl., ¶ 88).
In particular, they asked the District Court to order ReliaStar “to
perform specifically its obligation under the Contracts to accept
and effect sub-account transfer instructions communicated ... by
fax, telephone, or other electronic means,” and “to undertake

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14 This proposed order was submitted to the District Court in
conjunction with Plaintiffs’ Motion for Summary Judgment in
the First Action. See supra n.13.
32
reasonable efforts to surmount any future obstacles to
performance of its obligations under the Contracts.” Pls.’
Proposed Order, ¶ 4 (emphasis added). This requested relief14
necessitated a determination as to whether ReliaStar was
contractually obligated to make reasonable efforts to continue to
perform once the trades were refused by the mutual funds. That
the funds had not actually restricted any trades at the time the
District Court granted injunctive relief does not render its
decision advisory; on the contrary, the legal impact of the
restrictions was essential to the question of the scope of the
Pruskys’ entitlement to relief.
Nor are Plaintiffs correct that they could not have
appealed from the decision merely because the District Court
entered judgment in their favor on the liability issue. Indeed,
since they asked for, but did not receive, an order compelling
ReliaStar to perform even in the face of actual fund resistence,
the Pruskys had standing to appeal. Cf. Watson v. City of
Newark, 746 F.2d 1008, 1010 (3d Cir. 1984) (“a party who
receives all of the relief which he sought is not aggrieved by the
judgment affording the relief and cannot appeal from it”)
(emphasis added); N.Y. Tel. Co. v. Maltbie, 291 U.S. 645, 646
(1934) (phone company that obtained unqualified and
permanent injunction against collection of rates did not have
standing to appeal the court’s conclusions as to the rates that
would have been collected under the enjoined practice). That

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33
Plaintiffs failed to do so in error does not mitigate the preclusive
effect of that prior binding determination.
In sum, the Pruskys are collaterally estopped from
relitigating the question of the scope of ReliaStar’s contractual
obligations. ReliaStar was thus entitled to the entry of judgment
in its favor.
III. CONCLUSION
Upon careful consideration, we find no clear error in the
District Court’s conclusions that the Pruskys did not adequately
mitigate their damages and that reasonable efforts would have
reduced losses by $912,000. Additionally, the District Court did
not err in granting summary judgment for ReliaStar in the
Second Action on issue preclusion grounds. Therefore, we will
affirm the judgments of the District Court.

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15 See Br. of Appellant 18, 30, 37; Br. of Appellee 2, 9-12, 14-
15, 19, 20 n.6, 21-22, 24, 28; Reply Br. of Appellant 2-3.
34
HARDIMAN, Circuit Judge, concurring.
I agree with the result reached by the majority in all
respects. I write separately to opine that the District Court’s
finding that the Pruskys did not reasonably mitigate their
damages should be affirmed only because of our deferential
standard of review.
I.
The parties vigorously dispute the standard of review
applicable to the mitigation issue. The Pruskys argue for15
plenary review while ReliaStar asserts that the reasonableness
of mitigation efforts is a factual determination that we must
review for clear error. Like the majority, I believe ReliaStar’s
position is more persuasive, especially in light of our decision in
Windsor Securities, Inc. v. Hartford Life Insurance Co., 986
F.2d 655, 668 (3d Cir. 1993), where we applied the clear error
standard in affirming the district court’s finding that an investor
failed to mitigate his damages. Id. at 657-58. Under this
deferential standard of review, we may not overturn the District
Court’s “plausible” findings of fact even if we are “convinced
that had [we] been sitting as the trier of fact, [we] would have
weighed the evidence differently.” Brisbin v. Superior Valve
Co., 398 F.3d 279, 285 (3d Cir. 2005) (quoting Anderson v. City

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35
of Bessemer, 470 U.S. 564, 573-74 (1985)).
Had I been sitting as the trier of fact in this case, I
probably would have found that the Pruskys pursued a
reasonable mitigation strategy. In the typical case, an aggrieved
investor acts reasonably when he places his investment into a
low-risk interest-bearing account. In light of the “unique set of
facts” of this case, Maj. Op. § II.A, however, I cannot say that
the District Court’s contrary conclusion was implausible or
clearly erroneous. Accordingly, I disagree with the majority
only insofar as it suggests that had we evaluated the Pruskys’
actions de novo, we would have found them unreasonable. The
majority makes this suggestion in two ways.
First, the majority faults the Pruskys for failing to adopt
the “next-best” investment alternative to their favored market-
timing strategy. Maj. Op. § II.A.1; see also id. (adopting
Ormesa Geothermal rule that alternative investment should be
“as close as possible to the original investment” and citing with
approval the Fishman rule that substitute investment must be
the “most lucrative” alternative). The duty to mitigate, which
falls upon the non-breaching party, is not so onerous and does
not so narrowly limit the options available to aggrieved
investors. It requires merely “reasonable” conduct, not conduct
that is “next-best,” “as close as possible,” or “most lucrative.”
See In Re Kellett Aircraft Corp., 186 F.2d 197, 198-99 (3d Cir.
1950) (“The rule of mitigation of damages may not be invoked
. . . merely for the purpose of showing that the injured person
might have taken steps which seemed wiser or would have been
more advantageous to the defaulter.”) (emphasis added).

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36
Second, the majority deviates from our rule that
reasonableness must be determined from the perspective of the
non-breaching party at the time of the breach. Kellett, 186 F.2d
at 198. Contrary to the majority’s suggestion, Maj. Op. § II.A.1,
a mitigation strategy that is initially reasonable does not become
unreasonable because of subsequent events. Rather, subsequent
events effect only the amount of any “mitigation offset.” Maj.
Op. § II.A.2 (emphasis added); see also Br. of Appellee 23
(noting that Dr. Warther’s analysis was relevant to determining
“by what amount, if any, to reduce [the Pruskys’] damages in
connection with alternative strategies.”).
For example, subsequent market events are relevant to
determining the amount by which a non-breaching party’s award
will be reduced if a court first determines that the party failed to
reasonably mitigate. See, e.g., RESTATEMENT (2D) CONTRACTS
§ 350 cmt. f, illus. 16. Conversely, subsequent market events
may render a non-breaching party’s reasonable mitigation efforts
unsuccessful, in which case, the breaching party will be liable
for any additional loss incurred as a result of the non-breaching
party’s “reasonable but unsuccessful” efforts. RESTATEMENT
(2D) CONTRACTS § 350(2), and cmt. h.
Evaluating the options available to the Pruskys at the
point of ReliaStar’s breach, Kellett, 186 F.2d at 198, the money
market subaccount virtually guaranteed at least some profit and
was therefore at least a reasonable choice. As it turned out, the
bond and equity subaccounts outgained the money market
subaccount from 2003-2007, but the opposite result could just

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37
as easily have obtained, as it did from 2000-2003. Were I
considering these circumstances in the first instance, I would
have been inclined to conclude that the Pruskys pursued a
reasonable strategy that, in hindsight, proved to be less
“lucrative” than the similarly reasonable strategies proffered by
ReliaStar. On this basis, I likely would have concluded that the
Pruskys satisfied their duty to mitigate. Kellett, 186 F.2d at 198
(“Where a choice has been required between two reasonable
courses, the person whose wrong forced the choice can not
complain that one rather than the other was chosen.”).
Notwithstanding the foregoing observations, our standard
of review requires that we defer to the District Court’s
“plausible” findings of fact regarding the Pruskys’ mitigation
efforts. See Brisbin, 398 F.3d at 285. For that reason, I concur
in the result reached by the majority.

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