Quad/graphics, Inc. v. One2one Communications, LLC

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 25, 2013
Decided September 4, 2013
Before
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
JOHN Z. LEE, District Judge*
Nos. 12‐2558 & 12‐2620
QUAD/GRAPHICS, INC.,
Plaintiff‐Appellee/Cross Appellant,
v.
ONE2ONE COMMUNICATIONS, LLC,
et al.,
Defendants/Third Party Plaintiff‐
Appellant/Cross‐Appellee,
and
BRUCE HEVERLY,
Defendant/Third‐Party Plaintiff‐Appellant,
v.
OPENFIRST, LLC, et al.,
Third‐Party Defendants‐Appellees.
Appeals from the United States District
Court for the Eastern District of
Wisconsin.
No. 09‐CV‐00099
J. P. Stadtmueller, Judge.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
* John Z. Lee, District Judge for the Northern District of Illinois, sitting by designation.

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O R D E R
I. Background
Since the 1980s, Bruce Heverly worked with or headed companies that processed
and provided billing statements for cable television companies. He founded his own
company in the 1990s called Comtec, Inc., which offered both billing services and call
center services to cable companies. In 2000, Heverly sold his interest in Comtec. Later
that year or in early 2001, Robert Kraft, who at the time was president of Openfirst, Inc.,
a company that specialized in printing billing statements for various companies, asked
Heverly about representing Openfirst to cable companies. Openfirst sought out Heverly
because the company wished to break into the billing services market for cable
companies.
Openfirst and Heverly reached an agreement in 2001, and Heverly began
“representing” Openfirst on a commission basis. Whether or not Heverly ever actually
became an agent of Openfirst was a hotly contested issue at trial, but the jury found that
there was an agency relationship between Heverly and Openfirst. The finding was
based on Heverly’s course of conduct (explained in more detail below), as there was no
written agreement between Heverly and Openfirst.
In 2002, Heverly spoke to Kraft about receiving an official title from Openfirst to
assist his sales efforts. In March 2002, Kraft named Heverly CEO of Openfirst’s
statement processing division, called Openfirst Communications. In May 2002, Heverly
incorporated his own company called Openfirst Communications, Inc., headquartered
in Madison, Wisconsin, and set himself up as CEO of this corporation as well. Heverly
claims this was done with Kraft’s knowledge, but Kraft and Openfirst insist they were
unaware Heverly had done this, especially since Heverly used the Openfirst name.
Nonetheless, the relationship between Heverly and Openfirst continued, with
Heverly bringing in several contracts with various cable companies for Openfirst1 (or
rather, contracts that were assumed to be with Openfirst), until Kraft and his
1 The companies were Seren, Time Warner – Central Florida, Time Warner – Kansas City, Pencor
(later known as Bright House) and Insight Communications. Each of the contracts were signed with a
single entity, variously called “Openfirst, Inc. DBA Openfirst Communications, Inc.,” Openfirst
Communications, Inc., DBA Openfirst, Inc.,” or “Openfirst Communications, Inc., DBA Openfirst.”

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Nos. 12‐2558 & 12‐2620 Page 3
management team sold their interests to an investment firm in Chicago in late 2002.
During the due diligence portion of the transaction, it was discovered that Heverly had
created the separate company with the same name as Openfirst’s billing division.
Heverly claimed that Kraft had given him permission to form the company, but Kraft
denied ever doing so.
Initially Heverly claimed that the contracts he brought in were actually between
his own company and the cable companies, and that his company had merely
subcontracted the production work to Openfirst. After a meeting between Kraft,
Heverly, and others in August 2003, Heverly agreed to change the name of his
company. They also agreed that Heverly could continue to work for his own company,
which he renamed One2One Communications, LLC. During the negotiations with
Heverly, Kraft sought a so‐called “evergreen agreement” with Heverly that would
provide that the existing contracts between Openfirst and the cable companies would
be renewed when they expired, but the agreement was never finalized.
In 2006, Openfirst was sold to Quad/Graphics, Inc. (“Quad”). Quad continued to
pay commissions to Heverly and Heverly’s company, One2One. Quad was aware that
Heverly was conducting his separate business, but also that Heverly was continuing to
market the billing statement business for Openfirst under Openfirst’s name. In June
2006, Heverly informed Quad that his company One2One had purchased its own
printing facility in Bolingbrook, Illinois. Heverly reassured Quad that the acquisition
would not affect his “commitment to Openfirst per the term of the business we have
placed with you.”
In early 2007, an employee of Openfirst named Chuck Olszewski received a
phone call from a Time Warner Cable subsidiary. The caller had a technical question
about an Openfirst product called “Power View.” The call confused Olszewski because
Olszewski had been told by Heverly that Openfirst had lost the Time Warner subsidiary
as a client. The caller stated that he was working with the Openfirst facility in Illinois
and that he could not reach Heverly and so decided to contact Openfirst directly.
Olszewski notified Kraft of the call because Openfirst had no facility in Illinois
(Heverly’s company One2One did, however).
An investigation revealed that Heverly and his company had been soliciting
customers away from Openfirst and to their own facility in Illinois. Emails Heverly sent
to Openfirst’s clients characterized the switch as a change in facilities and gave the

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Nos. 12‐2558 & 12‐2620 Page 4
impression that the billing processing work was simply being moved from one
Openfirst facility in Milwaukee to a facility in Bolingbrook, Illinois, but the companies
were in fact contracting with Heverly’s company One2One. Heverly continued to
represent himself as CEO of both Openfirst Communications, Inc. (Openfirst’s billing
statements division) and his own company One2One during these transactions. This left
Openfirst’s clients believing that they were still contracted with Openfirst when in fact
their contracts were now with One2One. And internal emails between Heverly and his
One2One employee Rick Brammer showed that Heverly debated disclosing his
activities to Kraft, but decided against it after Brammer advised him against it and to
“stick to the plan.”
Quad decided to terminate its relationship with Heverly entirely. James Nash, a
former ComTec employee who had worked with Heverly in the past and was now with
Quad, was in charge of executing the strategy to sever the relationship with Heverly. In
an email to his colleagues, Nash stated the following: “I am a former lineman and
football is usually how I think. I would like to do a nice chop block on [Bruce Heverly]
and sew this thing up for us.” On March 1, 2007, Quad (which now wholly owned
Openfirst) sent a Notice of Termination to Heverly and One2One indicating that Quad
was severing all business relations with One2One.
On the same day, Quad employees (including Kraft) attempted to place phone
calls to each of Quad’s billing customers. During the calls, Kraft told the customers that
Heverly had misrepresented his relationship with Openfirst and that Heverly was
“merely a sales agent” for Openfirst. Several of the clients with whom Kraft spoke
indicated that they did not know that Heverly’s company and Openfirst were different
entities. One client stated that she believed that her business was being transferred to
“Openfirst South” in Illinois. Needless to say, there was no “Openfirst South” in
Illinois—the clients’ bills were now being processed at One2One’s Bolingbrook facility.
Ultimately, One2One and Heverly retained most of the billing statement
customers’ contracts. Pencor, for example, convened a meeting with in‐house counsel
and executives to examine the contract it had signed with Heverly. The company
determined that the contract with Heverly was valid and binding, and that if Pencor did
not honor the contract, Pencor would be in breach. Other clients such as Bright House
and Insight did not renew their existing contracts with either Openfirst or Heverly, and
subsequently put out Requests for Proposals to solicit bids.

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Shortly after learning what Heverly had done, Quad suspended all commission
payments to Heverly and One2One. Kraft indicated that it was a collective decision
between Quad and its subsidiary Openfirst, and that the decision was motivated by
Quad’s belief that it had been wronged by Heverly. Openfirst accrued the expense of
the commissions on its books with the understanding that if the dispute was resolved in
Quad’s favor, the commissions would not be paid.
On December 26, 2008, Quad filed suit against One2One and Heverly in
Milwaukee County Circuit Court. Quad’s claims against both defendants included
breach of contract, breach of fiduciary duty, tortious interference with existing and
prospective contractual relations, and a state‐law fraud claim. Quad also alleged that it
had taken an assignment of rights from Openfirst as its parent company to sue on its
behalf. Heverly removed the case to the Eastern District of Wisconsin in January 2009
on diversity grounds. After removal, Heverly filed an answer and a counterclaim
against Quad in February 2009, as well as a third‐party complaint against Kraft and
other members of Openfirst’s management team
The countersuit included claims for tortious interference with existing and
prospective contracts, conspiracy to injure business, and conversion. The third‐party
suit brought individual claims of defamation against members of Openfirst’s
management team, including Kraft. A jury trial was set to begin on December 12, 2011.
Prior to trial, the parties filed a joint pretrial report which specified the issues to be
resolved at trial. Initially One2One and Heverly had disputed that Quad had taken an
assignment of rights from Openfirst, but they did not list it as an issue to be tried before
the jury in the pretrial report. Additionally, they did not provide jury instructions or
verdict form questions on the assignment, and they did approve a joint statement of the
case that included language that Quad “has been” assigned Openfirst’s rights. Finally,
One2One and Heverly did not object to a statement that Quad read to the jury which
stated that Quad was standing in place of Openfirst for purposes of the claims in the
case.
The case proceeded to a two‐week jury trial. At the close of evidence, both
parties brought various Rule 50 motions, including a motion by Heverly to dismiss the
case in its entirety based on lack of standing because Quad had not put forth any
evidence of its alleged assignment of Openfirst’s rights. The district court took the
motions under advisement and submitted the case to the jury without ruling on the
motions.

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On December 23, 2011, the jury returned verdicts in both Quad’s favor and in
Heverly’s favor. Specifically, the jury found that One2One and Heverly were agents of
Openfirst and breached their fiduciary duties to Openfirst, breached the parties’
contract, and tortiously interfered with Openfirst’s existing and prospective contracts.
The jury also found that Heverly and One2One had acted intentionally and maliciously
in doing so. The jury awarded $8 million in compensatory damages to Quad and
assessed punitive damages in the amount of $3 million each against Heverly and
One2One. The jury rejected most of Heverly’s counterclaims, but did find that Quad
was liable for conversion for failure to pay Heverly’s commissions. It awarded Heverly
$410,000 in compensatory damages and assessed punitive damages in the amount of $1
million against Quad.
The parties renewed their post‐trial motions, and in January 2012 the district
court denied One2One’s and Heverly’s Rule 50(a) motion seeking to dismiss the case
and entered judgment on the verdict. Shortly after judgment was entered, both parties
filed additional post‐verdict motions, including a motion by Quad seeking to vacate the
punitive damages award to Heverly and One2One. In June 2012, the district court
issued its order and opinion addressing all of the remaining post‐verdict motions
brought by the parties. The court remitted Quad’s compensatory damages by $272,718,
which Quad accepted. The parties then filed cross‐appeals.
On appeal, both parties challenge the district court’s order denying their various
motions. Heverly and One2One seek to vacate the judgments against them and dismiss
Quad’s claims because, first, Quad lacks standing to bring a claim for damages against
Heverly because it never proved a valid assignment of rights from Openfirst. Second,
Heverly and One2One contend that all of Quad’s damages claims should have been
dismissed because the evidence submitted at trial was insufficient to prove the existence
of an agency relationship between Openfirst and Heverly. Third, Heverly and One2One
contend that the jury’s damage award relating to lost profits should be set aside because
Heverly and One2One had no evergreen agreement with Openfirst. Finally, Heverly
and One2One contend that the punitive damages claims against himself and his
company should have been dismissed because there was insufficient evidence of malice
toward, and intentional disregard of, Openfirst’s rights. Quad, for its part, asserts that
the district court erred when it refused to amend the judgment and vacate the awards of
compensatory and punitive damages to Heverly and One2One. We consider each
argument in turn.

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II. Discussion
A. The district court did not err when it ruled that Heverly waived any challenge to
Quad’s assignment of rights.
While Article III standing is a question of law and is thus reviewed de novo, see
Plotkin v. Ryan, 239 F.3d 882, 884 (7th Cir. 2001), the issue we consider here is not the
legal question of whether Quad had standing. Rather, we must determine whether the
district court correctly ruled in its Order denying Heverly’s motion to dismiss that
Heverly had admitted the assignment of rights and therefore waived any challenge to it.
Indeed, there is no question that an assignment of rights from Openfirst to Quad would
give Quad standing to pursue its claim, see Spring Commc’ns Co., L.P. v. APCC Servs., 554
U.S. 269, 286 (2008). The determination that Heverly admitted to the assignment of
rights in a pretrial report is a case management issue, and is reviewed for abuse of
discretion. Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1206 (7th Cir. 1989) (holding
that a district court has “broad discretion” in case management matters).
This “broad discretion” extends to holding parties to representations made in
pretrial orders and other pretrial filings. Ashland Oil, Inc. v. Arnett, 875 F.2d 1271, 1283
(7th Cir. 1989). Heverly raised Quadʹs alleged lack of standing as an affirmative defense
in his counterclaim, but in the joint final pretrial report the parties submitted, Heverly
did not list the validity of the assignment or Quadʹs standing to sue as an issue to be
tried in the case. In fact, the pretrial report (the purpose of which is to narrow and
clarify the issues to be tried) states “Quad (which has been assigned Openfirst’s rights
in this matter) brought suit against One2One and Heverly.”
Furthermore, the “Statement of the Issues” section of the pretrial report makes no
mention of trying the issue of whether Quad received a valid assignment of rights from
Openfirst. Likewise, the jury instructions and verdict form Heverly submitted do not
ask the jurors to consider the validity of Quad’s assignment. The final jury instructions,
which were approved by both parties, identified that Quad/Graphics was “standing in
place of Openfirst, LLC.” Also, in emails exchanged by the parties’ attorneys, Heverly’s
attorney acknowledged that Quad was standing in place of Openfirst.
These facts support the district courtʹs ruling that Heverly waived any argument
that Quad needed to prove a valid assignment of rights from Openfirst. See Fajardo
Shopping Ctr., S.E. v. Sun Alliance Ins. Co. of Puerto Rico, Inc., 167 F.3d 1, 12 (1st Cir. 1999)

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Nos. 12‐2558 & 12‐2620 Page 8
(holding that where a joint pretrial report contained an undisputed fact contradicting a
partyʹs argument raised only on appeal, the appellant had waived the argument by not
disputing the fact in the pretrial report). The purpose of a pretrial report is to determine
the issues to be tried before the jury, and Heverly explicitly agreed to include language
in that report (and in the jury instructions) assuming that Quad stood in place of
Openfirst for purposes of the litigation. As the district court correctly noted, it would
“fly in the face of the purpose of pretrial proceedings … to hold that Quad failed to
prove standing where it clearly operated under the understanding that One2One did
not dispute the assignment of claims, would in fact create unfair surprise” (emphasis in
original). Heverly assented to the presumption that Quad received a valid assignment
of rights from its subsidiary Openfirst, and we affirm the district courtʹs order denying
Heverlyʹs motion to vacate the judgment. 2
B. A reasonable jury could have found that Heverly acted as Quadʹs agent.
Heverly and One2One next argue that the district court erred by not granting
their Rule 50(a) motion with respect to Heverly’s acting as an agent on behalf of
Openfirst. We review the denial of a Rule 50(a) motion de novo, and review the record
“to determine whether the evidence presented, combined with all reasonable inferences
permissibly drawn therefrom, is sufficient to support the verdict in the light most
favorable to the party against whom the motion is directed.” Clarett v. Roberts, 657 F.3d
664, 674 (7th Cir. 2011). We do not reweigh the evidence or substitute our own
credibility determinations for that of the jury. Gentry v. Export Packaging Co., 238 F.3d
842, 847 (7th Cir. 2001).
Wisconsin state law governs the agency issue in this diversity action, and
Wisconsin has defined an agency relationship as “the fiduciary relation which results
from the manifestation of consent by one person to another that the other shall act on
his behalf and subject to his control, and consent by the other so to act.” Troy Co. v.
Perry, 228 N.W.2d 169, 171 (Wis. 1975). To determine if an agency relationship existed
between parties, courts look to three elements: “(1) conduct of the principal showing
that the agent is to act for him or her; (2) conduct of the agent showing that he or she
2 Even if the district court erred on the assignment issue, the appropriate remedy would be to
allow Quad the opportunity to cure any deficiency in its showing by presenting evidence that it received
a valid assignment of rights from Openfirst. See Echeverria v. Chevron USA Inc., 391 F.3d 607, 611 (5th Cir.
2004). Given that Openfirst is a wholly‐owned subsidiary of Quad, we are satisfied that Quad would have
no difficulty curing any alleged deficiency here.

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Nos. 12‐2558 & 12‐2620 Page 9
accepts the undertaking; and (3) the parties’ understanding that the principal is to
control the undertaking.” County of Adams v. McCarthy, 816 N.W.2d 352 (Wis. Ct. App.
2012) (unpublished) (citing Wisconsin Jury Instruction 4000). The emphasis is on the
conduct of the parties: “[a] principal‐agent relationship may be created or exist between
the parties as a result of their acts and conduct, with or without their knowledge or
intent that the relationship was, or is being, created.” Arsand v. City of Franklin, 264
N.W.2d 579, 581 (Wis. 1978).
At the close of evidence, Heverly and One2One moved to dismiss Quad’s claims
on the basis, inter alia, that Heverly and One2One were not agents of Openfirst as a
matter of law. They rest their argument on the fact that neither Heverly nor his
company ever actually consented to be agents of Openfirst. Kraft himself admitted that
there was no express agreement between them, and Heverly characterizes their
relationship as an oral agreement in which Heverly would acquire contracts for his
company and Openfirst would provide printing services on behalf of those contracts.
Heverly also points to what he views as the lack of evidence that Openfirst actually
controlled Heverly’s actions in going out to the marketplace and obtaining contracts,
and the fact that the contracts were signed by Heverly on behalf of his own company
(his “Openfirst Communications,” later renamed One2One after the original Openfirst
discovered the second company).
The jury rejected these arguments, and we see no reason to disturb their
determinations. As the district court ruled, Quad presented sufficient evidence at trial
for the jury to find that an agency relationship existed between Openfirst and Heverly.
Specifically, the district court noted the following facts that support the jury’s finding:
Kraft testified that he had asked Heverly to represent Openfirst and provided him with
a title (CEO of Openfirst Communications), as well as a company email address,
business cards, and an office; Kraft specifically told Heverly that “[a]s long as you
represent Openfirst, you can use the name. You can enter into deals for us;” Quad
produced an email from 2006 in which Heverly used Openfirst’s name to solicit
business; customers such as Bright House believed that Openfirst and Heverly were
part of the same company; and other testimony and documents showing that Heverly
acted on Quad’s behalf in soliciting business.
These facts, taken together, are more than sufficient for a jury to find that an
agency relationship existed between Openfirst and Heverly. Heverly and One2One
spend a great deal of effort trying to recast this evidence, but viewed in the light most

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favorable to Quad, a reasonable jury could find the existence of an agency relationship.
Thus, the district court did not err when it denied Heverly’s and One2One’s Rule 50(a)
motion to dismiss at the close of evidence.
C. Evidence supports the jury’s verdict for damages from Openfirst’s loss of
contracts.
Likewise, the district court did not err when it denied Heverly’s and One2One’s
motion to set aside the jury’s damage award relating to lost profits. Heverly and
One2One argue that there is insufficient evidence to support the jury’s finding that they
tortiously interfered with Quad’s prospective contract rights with its clients Insight and
Bright House. They rest their argument on the grounds that there was no evergreen
agreement between the parties and that once Bright House and Insight put out Requests
for Proposals (“RFPs”), both companies could (and did) compete for those contracts.
This shows, in their view, that the prospective contracts at issue between the two
companies were not sufficiently certain, concrete, and definite.
Heverly and One2One are correct that a prospective contract must be at least
sufficiently certain, concrete, and definite. Shank v. William R. Hague, Inc., 192 F.3d 675,
689 (7th Cir. 1999). But in this case, the lack of an evergreen agreement is immaterial.
The issue for the jury to consider was not whether the clients would have remained
with Openfirst in perpetuity but for Heverly’s conduct. Rather, the problem is that
Openfirst was unknowingly competing with Heverly for various contracts because
Heverly was using his position to solicit contracts away from Openfirst. The jury found
that Heverly used Openfirst’s name to solicit contracts for his own company and duped
the clients into believing that they were contracting with Openfirst when in fact they
were contracting with Heverly. The jury found that this conduct breached Heverly’s
duties to Openfirst and awarded Quad damages for the lost contracts.
Likewise, the fact that Insight and Bright House issued RFPs in the wake of
discovering what Heverly was up to does not overcome the legal sufficiency of the
prospective contracts with Openfirst. Based on the testimony of employees of Insight
and Bright House, both companies would likely have entered into renewal contracts
prior to Heverly’s conduct coming to light. The evidence submitted by Quad is
sufficient for a reasonable jury to find that Insight and Bright House were happy with
the existing billing statement arrangement and would have entered into contracts with
Openfirst without issuing RFPs but for Heverly’s and One2One’s conduct. The jury was

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instructed (sans objection) that Quad was entitled to recover all damages that were the
natural and probable consequences of Heverly’s and One2One’s actions, and the jury
awarded damages accordingly. Therefore, the district court did not err when it denied
Heverly’s and One2One’s motion to set aside damages relating to lost profits.3
D. The evidence supports the jury’s award of punitive damages against Heverly
and One2One.
Heverly and One2One argue that the district court should not have allowed the
jury to consider punitive damages against them for Quad’s claims of breach of fiduciary
duty and tortious interference with existing and prospective contracts. Their argument
rests on the contention that they presented “overwhelming” evidence at trial that
showed that Heverly reasonably believed he was not the agent of Openfirst, and
therefore he could not as a matter of law have maliciously or intentionally interfered
with Openfirst’s rights.
In this diversity action, the laws of Wisconsin determine whether a jury may
award punitive damages. In Wisconsin, punitive damages may be awarded “if evidence
is submitted showing that the defendant acted maliciously toward the plaintiff or in an
intentional disregard for the rights of the plaintiff.” Wis. Stat. §895.043(3). Wisconsin
courts, however, have “not required proof of an intentional desire to injure, vex, or
annoy, or proof of malice, in order to sustain an award for punitive damages.” Wangen
v. Ford Motor Co., 294 N.W.2d 437, 442 (Wis. 1980). In fact, “it is sufficient if the injured
party shows a reckless indifference to or disregard of the rights of others on the part of
the wrongdoer.” Id.
We have already held that there was sufficient evidence presented at trial for a
reasonable jury to find an agency relationship between Heverly and Openfirst. The only
question we need consider here is whether there was sufficient evidence presented at
trial for the jury to find that Heverly and One2One acted maliciously or with intentional
or reckless disregard for Quad’s rights. We hold that there was. Despite Heverly’s and
One2One’s multiple attempts to cast the evidence in a different light, there was
considerable evidence that Heverly and One2One acted with intentional disregard of
Openfirst’s rights. As we noted above, Quad submitted evidence that Heverly
fraudulently convinced Openfirst’s customers that they were contracting with Openfirst
3 The district court did, of course, remit a relatively small amount of the compensatory damages
awarded to Quad. Quad accepted the remittitur and does not challenge it on appeal.

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when in fact they were contracting with Heverly and One2One; that Heverly called his
own plant “Openfirst South” in an attempt to convince customers that they were still
clients of Openfirst; that Heverly initially named his own company Openfirst
Communications in order to solicit contracts away from Openfirst and to himself; and
that Heverly deliberately hid his activities from Openfirst for as long as he could. This
evidence is sufficient for a reasonable jury to conclude that Heverly’s and One2One’s
actions merited punishment, and the district court did not err when it denied the Rule
50(a) motion.
E. The district court did not err when it denied Quad’s Rule 59 motion to set aside
the jury’s award of compensatory and punitive damages on Heverly and
One2One’s conversion counterclaim.
We next turn to consider whether a reasonable jury could have found that Quad
was liable for conversion of Heverlyʹs commissions and award compensatory and
punitive damages. In order to alter or amend a judgment under Rule 59(e), the court
must find a manifest error of law or fact. Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir.
1996). Quad must clearly establish that a manifest error was committed. Fed. Deposit Ins.
Corp. v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986). Quad contends that, as a matter of
law, Heverly and One2One were not entitled to receive payment because the jury found
that Heverly and One2One intentionally and maliciously breached its duties to Quad,
and also that the award of punitive damages should be vacated because Quad did not
act with reckless indifference toward Heverly’s and One2Oneʹs rights, but withheld
compensation for a legitimate reason.
In Wisconsin, “[t]he general rule is that an agent who is dishonest forfeits his or
her right to compensation for those duties.” Century Capital Group v. Barthels, 539
N.W.2d 691, 695 (Wis. Ct. App. 1995). However, the Wisconsin Supreme Court has
declined to “adopt the rigid, mechanical rule… that compensation is automatically
denied to the agent during the period in which he has committed a wilfull [sic] and
significant breach of [the] duty of loyalty.” Hartford Elevator, Inc. v. Lauer, 289 N.W.2d
280, 287 (Wis. 1980).
Essentially, Quad’s argument is that the jury made inconsistent findings. As
Quad would have it, the jury could not, as a matter of law, find that Heverly and
One2One breached their fiduciary duty to Quad and also find Quad liable for conversion
of Heverly’s commissions. As the district court correctly ruled, this rigid approach has

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been rejected in Wisconsin, and we decline to apply it here. While the jury did find that
Heverly acted dishonestly, the fact remains that Heverly still delivered contracts to
Quad that generated significant profits for Quad, and it was not unreasonable for the
jury to find that he was entitled to his commissions for those contracts. Viewing the
evidence in the light most favorable to Heverly, Quad cannot clearly establish that the
juryʹs award of compensatory damages was a manifest error of law.
The same holds true for the award of punitive damages. As we noted above,
punitive damages may be awarded “if evidence is submitted showing that the
defendant acted maliciously toward the plaintiff or in an intentional disregard for of the
rights of the plaintiff.” Wis. Stat. §895.043(3). Quad asserts that there was nothing
deceitful, dishonest, or reckless about their decision to withhold Heverly’s commissions
after they discovered his fraud. This may be true, but the jury was entitled to draw
inferences and make findings of fact on the evidence Heverly and One2One introduced
at trial, including emails regarding the withholding of the commissions as well as
circumstances surrounding the “blow‐up” plan. For example, the email referencing
Nash’s desire to do a “chop block” on Heverly could support an inference that Quad
acted recklessly with regard to Heverly’s rights. Also, internal emails between Quad
employees could support an inference that Quad retained the commissions to use them
as a kind of bargaining chip with Heverly. As one employee wrote, “We are holding
onto [Heverly’s] commission, and we will see out [sic] the dispute finishes out. Worse
case, we pay him. We are accruing the expense … best case, we gain sixteen % to
twenty‐two % margin pickup.” And Heverly and One2One introduced evidence at trial
showing that Quad took checks made out to Heverly’s company and deposited them
into its own accounts.
Ultimately, Quad’s argument boils down to a disagreement over the inferences
the jury drew from the evidence submitted at trial. But factual determinations and
inferences are the province of the jury, and we will not substitute our own credibility
determinations for theirs. See Gentry v. Export Packaging Co., 238 F.3d 842, 847 (7th Cir.
2001). Because Quad cannot clearly establish that the jury’s award of punitive damages
was manifest error, the district court did not err when it denied Quad’s Rule 59(e)
motion to vacate the award.

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Nos. 12‐2558 & 12‐2620 Page 14
III. Conclusion
For the foregoing reasons, the district court did not err when it refused to grant
either Quad’s or Heverly’s motions. AFFIRMED.

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