FDIC v. Chicago Title Insurance Compa ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1572
FEDERAL DEPOSIT INSURANCE CORPORATION,
as Receiver for Founders Bank,
Plaintiff-Appellant,
v.
CHICAGO TITLE INSURANCE COMPANY and
CHICAGO TITLE AND TRUST COMPANY,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:12-cv-05198 — Andrea R. Wood, Judge.
____________________
ARGUED APRIL 2, 2021 — DECIDED AUGUST 31, 2021
____________________
Before WOOD, HAMILTON, and KIRSCH, Circuit Judges.
HAMILTON, Circuit Judge. This case arose from the fraudu-
lent financing of purchases of four properties in Chicago back
in 2006. The borrowers concealed their lack of equity from the
lender. All defaulted, and the lending bank later went into re-
ceivership. As receiver for that bank, the FDIC brought this
suit against the title insurance company that conducted the
2 No. 20-1572
fraudulent closings and an appraisal company that aided the
transactions.
The FDIC settled with the appraisal company and went to
trial against the title insurance company, winning a verdict
but for less than the FDIC believes was warranted. The FDIC’s
appeal raises three issues. The first is whether the district
court erred by denying prejudgment interest to the FDIC.
That issue requires us to address a somewhat Delphic statu-
tory provision telling courts to award “appropriate” prejudg-
ment interest in FDIC receivership cases that blend federal
and state law. See 12 U.S.C. § 1821(l). We conclude that the
statute gave the district court authority to exercise its discre-
tion and to look to state law for guidance, and we find no legal
error or abuse of discretion in denying prejudgment interest.
The second and third issues are narrower and more specific
to this case. Our second conclusion is that, because of difficult
causation issues, the district court did not abuse its discretion
in refusing to amend the jury verdict to add more damages.
Our third, however, is that the district court erred in giving
the title company a $500,000 setoff for the appraisal com-
pany’s settlement. We affirm the judgment for the FDIC as far
as it went but remand with instructions to add the setoff
amount back into the judgment.
I. Factual and Procedural History
A. The Ill-Fated Loans
In 2006, Founders Bank made loans to finance four pur-
chases of Chicago properties that the buyers planned to
No. 20-1572 3
convert into condominiums. 1 In making the loans, Founders
relied on real estate appraisals by Jo Jo Real Estate Enter-
prises, which did business as Property Valuation Services
LLC (“PVS”). Chicago Title, acting as escrow trustee, con-
ducted the closings and reported the transactions to Found-
ers. 2
But the loans had been obtained by deception, leading
Founders to lend money to buyers who had little or no real
equity in the properties. The scheme worked this way. For
each purchase financed by Founders, the same property had
changed hands earlier the same day at a much lower price
paid to the original owner. When Founders funded its loan
later the same day, it had been misled to understand that the
buyer/borrower was putting in substantial equity, but there
was only phantom equity.
For example, on February 13, 2006, the North LaSalle
property first sold for $2.4 million. One hour later, it was re-
sold for $3.1 million. The second transaction was the only one
reported to Founders. Because Founders had agreed to fi-
nance 80 percent of the purchase price and 100 percent of
budgeted construction costs to convert each apartment build-
ing into condominiums, the double sale allowed the pur-
chaser to use the funds from the higher-priced transactions to
pay off the (very) short-term loan for the first purchase and
1 The property addresses were: 2218–24 North Bissell Street; 851 North
LaSalle Street; 5408-10 North Campbell Street; and 5412–14 North Camp-
bell Street.
2 The FDIC’s suit named two seemingly distinct entities, Chicago Title
Insurance Company and Chicago Title and Trust Company, but our rec-
ord and the parties’ briefs do not distinguish between the two. We refer to
them jointly as “Chicago Title” and also do not distinguish between them.
4 No. 20-1572
thus to fund the actual purchase without investing real equity
in the property. Chicago Title conducted all of the closings. It
reported only the second transactions to Founders, hiding
from Founders the scheme to use phantom equity.
The buyers never completed the proposed condominium
conversions and soon defaulted on their loans. In 2008,
Founders foreclosed on the four properties, then purchased
them with “partial credit bids” at foreclosure sales based on
new appraisals by PVS. Founders later obtained deficiency
judgments against the borrowers and their guarantors.
Only after it obtained the deficiency judgments did
Founders learn about the secret double sales and the phantom
equity. Founders also discovered that PVS’s appraisals at both
the time of funding and the later foreclosures overstated the
values of the properties.
B. Procedural History
Founders then ran into broader problems and was closed
by its state regulator on July 2, 2009. The Federal Deposit In-
surance Corporation (“FDIC”) was appointed receiver under
12 U.S.C. § 1821(d)(2)(A). In 2012, the FDIC filed this suit
against Chicago Title for breaches of contract, breaches of fi-
duciary duty, negligence, and negligent misrepresentations,
and against PVS for separate breaches of contract and negli-
gent misrepresentations.
Before trial, the district court granted Chicago Title’s mo-
tion for partial summary judgment, concluding that the
“credit bid rule” capped damages at the sum of deficiency
No. 20-1572 5
judgments obtained by Founders after the foreclosure sales. 3
The FDIC then reached a settlement with PVS, which agreed
to pay the FDIC $500,000. The FDIC’s case went to trial
against Chicago Title. In a pretrial order, Chicago Title argued
that it was entitled to a setoff based on the settlement between
the FDIC and PVS. The FDIC filed a motion in limine to bar
Chicago Title from arguing for a setoff at trial, which the court
granted.
At trial, the FDIC presented evidence of the amounts it
lost, net of its credit bids, totaling $3,790,695. 4 Chicago Title
argued that its conduct in the double transactions was not a
proximate cause of Founders’ and the FDIC’s losses, which it
argued were caused instead by intervening events like unex-
pected rising construction costs and a broader downturn in
the condominium market in the Great Recession of 2008–09.
3 A deficiency judgment should be for the difference between the fore-
closure sale price and the debt owed. As the district court explained in this
case, the “credit bid rule” limits the measure of loss of a mortgagee that
obtains the mortgaged property in a foreclosure sale to the deficiency
judgment. F.D.I.C. v. Chicago Title Ins. Co., 2015 WL 5276346, at *4 (N.D. Ill.
Sept. 9, 2015). Where, as here, the property is obtained for a partial credit
bid (less than the full value of the debt owed), and “there is no fraud or
irregularity in the foreclosure proceeding, the amount of the lender’s suc-
cessful credit bid is deemed to be the conclusive measure of the property’s
value for purposes of determining the value of any deficiency.” Id. (quo-
tation and citation omitted). The lender is then “limited to recovering the
sum of the deficiency judgment and collaterally estopped from claiming
greater losses.” Id. (citation omitted).
4 The FDIC was not allowed to present the deficiency judgments
themselves at trial, so it proved the losses through testimony and other
evidence. The total loss figure here is approximately $90,000 less than the
sum of the judgments because the FDIC voluntarily reduced the amount
to reflect the amount above its credit bids realized on final sales.
6 No. 20-1572
The jury found Chicago Title liable for breach of contract,
breach of fiduciary duty, negligence, and negligent misrepre-
sentation. The jury verdict included a finding that Chicago Ti-
tle’s misconduct was a proximate cause of Founders’ injuries.
The jury awarded the FDIC approximately the same amount
of the established deficiency losses for the two North Camp-
bell property loans, but it awarded less for the other two
loans, for a total verdict of $1,450,000 for the four properties. 5
The FDIC’s appeal challenges three post-verdict decisions
by the district court. First, the FDIC asked the court to award
prejudgment interest under 12 U.S.C. § 1821(l) and Illinois
law, which the court denied. Second, the FDIC asked the court
to amend the judgment to award it the full amount of all four
deficiency judgments, which the court also denied. Third, de-
spite the pretrial rulings, Chicago Title asked the court to
grant it a setoff, deducting $500,000 from the jury verdict to
account for the money the FDIC received from its settlement
with PVS. The court granted that setoff.
II. Jurisdiction
Founders’ claims originally arose under state law, but the
district court properly exercised federal-question jurisdiction
pursuant to 12 U.S.C. § 1819(b)(2)(A) and 28 U.S.C. § 1331 be-
cause the FDIC stepped into the shoes of Founders as its re-
ceiver. The FDIC timely appealed the district court’s partial
5 The jury found that Founders was 50 percent contributorily negli-
gent but also found that Chicago Title’s conduct was willful and wanton,
which negated the contributory negligence finding under the court’s in-
structions. The district court ultimately resolved a dispute over the rele-
vant jury instructions on this point. The parties have not presented any of
those issues on appeal.
No. 20-1572 7
final judgment of March 10, 2020. We exercise jurisdiction un-
der 28 U.S.C. § 1291, with an assist from Rule 54(b). 6
III. Prejudgment Interest
More than ten years passed between the fraudulent trans-
actions and the district court’s entry of judgment against Chi-
cago Title. The FDIC sought prejudgment interest under both
federal law, 12 U.S.C. § 1821(l) (for all claims), and Illinois law
(for the fiduciary duty claim). The district court denied pre-
judgment interest based on its interpretation of the federal
statute and Illinois law.
Whether § 1821(l) mandates a grant of prejudgment inter-
est is a question of law that we review de novo. Joseph v. Sasa-
frasnet, LLC, 734 F.3d 745, 747 (7th Cir. 2013). The district court
said it does not, and the court then exercised its discretion un-
der § 1821(l) and state law to deny prejudgment interest. We
review that decision for an abuse of discretion. E.g., Shott v.
Rush-Presbyterian-St. Luke’s Medical Ctr., 338 F.3d 736, 745 (7th
Cir. 2003), citing McRoberts Software, Inc. v. Media 100, Inc., 329
F.3d 557, 572 (7th Cir. 2003).
When the FDIC steps in to pursue claims as receiver for a
financial institution, federal courts confront an unusual blend
of federal and state law. We consider first whether the district
court correctly interpreted the federal statute to allow it dis-
cretion to deny prejudgment interest. We then turn to Illinois
6 When the FDIC filed its notice of appeal, Chicago Title still had a
claim pending against a third-party defendant. Under Federal Rule of
Civil Procedure 54(b), the district court entered a partial final judgment in
favor of the FDIC in the amount of $945,643.56. While this appeal was
pending, that remaining third-party claim was dismissed, resolving all
claims by all parties.
8 No. 20-1572
law of prejudgment interest, particularly as it applies to the
claim against Chicago Title for breach of fiduciary duty.
A. Prejudgment Interest Under 12 U.S.C. § 1821(l)
The Financial Institutions Reform, Recovery, and Enforce-
ment Act of 1989, known as FIRREA, authorizes the FDIC to
act as receiver for failing insured depository institutions and
prescribes the damages that may be available to it when, as a
receiver, it pursues claims against other parties. FIRREA in-
cludes this instruction: “In any proceeding related to any
claim against an insured depository institution’s director, of-
ficer, employee, agent, attorney, accountant, appraiser, or any
other party employed by or providing services to an insured
depository institution, recoverable damages determined to
result from the improvident or otherwise improper use or in-
vestment of any insured depository institution’s assets shall
include principal losses and appropriate interest.” 12 U.S.C.
§ 1821(l).
1. “Appropriate” Prejudgment Interest
The FDIC argues that the phrase “shall include principal
losses and appropriate interest” mandates some award of pre-
judgment interest, even if it leaves some room for case-by-
case adjustments for rates and time periods. Chicago Title ar-
gues that “appropriate” gave the district court discretion to
decide whether prejudgment interest should be awarded at
all. The district court agreed with Chicago Title, and so do we.
As in any statutory construction case, we start with the
text and, unless otherwise indicated, assume that statutory
terms are generally interpreted in accordance with their ordi-
nary meaning. Sebelius v. Cloer, 569 U.S. 369, 376 (2013), quot-
ing BP America Prod. Co. v. Burton, 549 U.S. 84, 91 (2006); see
No. 20-1572 9
also 1 William Blackstone, Commentaries on the Laws of Eng-
land § 2, p. 44 [*59] (Wayne Morrison ed, 2001) (“Words are
generally to be understood in their usual and most known sig-
nification.”). The text of the statute instructs that “damages …
shall include … appropriate interest.” 12 U.S.C. § 1821(l). The
words “shall include” generally indicate a mandatory instruc-
tion: a court shall include something. But the word “appropri-
ate” is a deliberately vague indication that some degree of dis-
cretion and judgment is called for. Read together, the words
“shall include … appropriate interest” do not provide a clear
answer for our question about whether interest was required
in this case.
Blackstone provided instructive commentary on this stat-
utory interpretation issue:
The fairest and most rational method to inter-
pret the will of the legislator, is by exploring his
intentions at the time when the law was made,
by signs the most natural and probable. And
these signs are either the words, the context, the
subject matter, the effects and consequence, or
the spirit and reason of the law.
Blackstone, § 2, p. 43 [*59]. When the statutory text does not
provide a definitive answer, careful application of this “all-of-
the-above” approach to statutory interpretation may help
produce the best-informed interpretation. A judge who seeks
guidance from every reliable source has less discretion than
one who insists on focusing only on statutory text. Aharon
Barak, Judicial Discretion 62 (Y. Kaufmann transl. 1989) (Jus-
tice of Supreme Court of Israel), quoted in Circuit City Stores,
Inc. v. Adams, 532 U.S. 105, 133 (2001) (Stevens, J., dissenting).
10 No. 20-1572
“It is a fundamental canon of statutory construction that
the words of a statute must be read in their context and with
a view to their place in the overall statutory scheme.” Gundy v.
United States, 139 S. Ct. 2116, 2126 (2019), quoting National
Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 666
(2007) (quotation omitted); see also Utility Air Regulatory
Group v. EPA, 573 U.S. 302, 321 (2014) (“[R]easonable statutory
interpretation must account for both the specific context in
which … language is used and the broader context of the stat-
ute as a whole.”) (quotation omitted); Blackstone, § 2,
p. 44 [*60] (“If words happen to be still dubious, we may es-
tablish their meaning from the context. … Of the same nature
and use is the comparison of a law with other laws … that
have some affinity with the subject, or that expressly relate to
the same point.”).
Looking to similar federal statutes, we find it instructive
that other statutes providing that interest “shall” be an ele-
ment of damages do not include the limitation “appropriate.”
See, e.g., 28 U.S.C. § 1961(a) (post-judgment interest “shall be
allowed on any money judgment in a civil case recovered in a
district court”); 7 U.S.C. § 2564 (in infringement of plant vari-
ety protection, the court “shall award damages adequate to
compensate for the infringement but in no event less than a
reasonable royalty for the use made of the variety by the in-
fringer, together with interest and costs as fixed by the
court”). And, as the Fourth Circuit noted in a case on § 1821(l),
“Congress knows how to specify rates of interest.” Grant
Thornton, LLP v. F.D.I.C., 435 F. App’x 188, 208 (4th Cir. 2011),
citing 42 U.S.C. § 9607(a)(4) (setting forth damages in
CERCLA cases and explaining what damages the interest ap-
plies to and the dates of accrual, and referring to specific rates
of interest). In context, and in comparison with other similar
No. 20-1572 11
laws, it is clear that Congress could have omitted the word
“appropriate” from § 1821(l) if it actually intended for an
award of prejudgment interest to be mandatory.
We may also consider the “effects and consequence” of the
interpretation of the statute. Blackstone, § 2, p. 44 [*60]. See,
e.g., King v. Burwell, 576 U.S. 473, 492 (2015) (examining text
within broader “statutory scheme” and concluding that “only
one of the permissible meanings produces a substantive effect
that is compatible with the rest of the law”) (quotation omit-
ted). If we read “shall include … appropriate interest” to
mean that it is mandatory for courts to award prejudgment in-
terest, the obvious consequence would be that every damages
award under § 1821(l) would have to include prejudgment in-
terest. This seems improbable: we can imagine situations
where it would not be reasonable or equitable to award pre-
judgment interest. See Gorenstein Enters., Inc. v. Quality Care-
USA, Inc., 874 F.2d 431, 439 (7th Cir. 1989) (Ripple, J., concur-
ring), citing General Motors, 461 U.S. at 656–57 (sometimes ap-
propriate to limit or deny prejudgment interest). Further-
more, a “mandatory” reading essentially reads the word “ap-
propriate” out of the statute.
As a matter of federal law, this court has long applied a
presumption in favor of awarding prejudgment interest to
victims of federal law violations. Gorenstein Enters., 874 F.2d
at 436 (opinion for court) (“Without it, compensation of the
plaintiff is incomplete and the defendant has an incentive to
delay.”); see also Matter of Milwaukee Cheese Wisconsin, Inc., 112
F.3d 845, 849 (7th Cir. 1997) (“Doubtless judges have discre-
tion to exercise when deciding whether to award prejudg-
ment interest … . Discretion must be exercised according to
law, which means that prejudgment interest should be
12 No. 20-1572
awarded unless there is a sound reason not to do so.”). This is
because “[c]ompensation deferred is compensation reduced
by the time value of money,” so prejudgment interest is usu-
ally an ingredient of full compensation.
But presumptive does not mean mandatory, and here we
apply not a general principle but a directly applicable statute
using the slippery phrase “appropriate interest.” Case law
provides only limited guidance on this question under
§ 1821(l). The FDIC’s argument stretches beyond its limits
General Motors Corp. v. Devex Corp., 461 U.S. 648, 654 (1983),
where the Court held that prejudgment interest is presump-
tively available under a different statute, 35 U.S.C. § 284, re-
garding patent infringement and concluded that in such
cases, interest “should ordinarily be awarded.” See also Gyro-
mat Corp. v. Champion Spark Plug Co., 735 F.2d 549, 555 (Fed.
Cir. 1984) (explaining that General Motors confirmed that “pre-
judgment interest ‘should ordinarily be awarded’”). Similarly,
United States v. Monsanto, 491 U.S. 600, 607 (1989), applied a
different statute addressing criminal forfeiture, 21 U.S.C.
§ 853, which instructed that the court “shall order” forfeiture
and did not include the ambiguous qualifier “appropriate.”
The court in F.D.I.C. v. Ching, 2017 WL 2225094, at *3–5 (E.D.
Cal. May 22, 2017), found that § 1821(l) authorizes an award
of prejudgment interest at the court’s discretion: “Even
though the statutory language of section 1821(l) permits the
inclusion of pre-judgment interest, whether to actually award
such interest under this section remains a matter of judicial
discretion.” And the court in F.D.I.C. v. Moll, 848 F. Supp. 145,
148 (D. Colo. 1993), only asserted with no explanation that the
FDIC was entitled to prejudgment interest under § 1821(l) and
turned directly to a discussion of the appropriate interest rate.
No. 20-1572 13
As the Fourth Circuit noted in Grant Thornton, “[t]here is a
dearth of case law applying this statute.” 435 F. App’x at 206.
We agree with the Fourth Circuit’s assessment in Grant
Thornton that the word “appropriate” “is best read as a limi-
tation as to when prejudgment interest should be provided.”
Id. at 208. “[W]hile Congress used the language ‘shall,’ it also
included the word ‘appropriate’ for a purpose.” Id. at 207.
Even if federal law presumes prejudgment interest should
be awarded for financial damages in most situations, § 1821(l)
addresses an unusual situation that makes it easy to under-
stand why Congress added the “appropriate” qualifier. The
statute applies when the FDIC steps into the shoes of a failed
bank as receiver. But for the FDIC’s role under FIRREA, the
bank that would have been the proper plaintiff in such cases
would often have pursued relief under state law. That’s true
in this case, with claims for breach of contract, negligence, and
breach of fiduciary duty. Congress could easily have con-
cluded that in such cases arising all over the nation under the
law of every state, one size would not comfortably fit all. The
types and merits of different cases and significant variation in
states’ laws governing prejudgment interest defy an attempt
to write a precise but generally applicable rule. “Appropriate”
makes for a workable delegation to courts to exercise sound
discretion. Accordingly, we read the words “shall” and “ap-
propriate” to give effect to both: the district court shall con-
sider only that interest which is appropriate, leaving courts to
consider all relevant circumstances, which may include the
state law that would have governed the case but for the
FDIC’s role as a receiver. 7
7 The partial dissent proposes a different interpretation for FIRREA’s
instruction that, in such receivership cases, damages “shall include …
14 No. 20-1572
2. Reliance on State Law
Saying that the court has discretion does not decide how
the court should go about exercising it. The district court
looked to Illinois law to determine whether prejudgment in-
terest was appropriate, noting that the claims against Chicago
Title are all state-law claims brought under federal jurisdic-
tion because the FDIC stepped in as receiver. The FDIC argues
that the court erred in relying on state law.
Where the FDIC steps in as a receiver to pursue in federal
court claims that first arose under state law, FIRREA instructs
courts to apply an unusual blend of state and federal law. The
Supreme Court has explained generally that FIRREA leaves
the FDIC “to work out its claims under state law, except
where some provision in the extensive framework of FIRREA
provides otherwise.” O’Melveny & Myers v. F.D.I.C., 512 U.S.
79, 86–87 (1994). The FIRREA provision on interest, § 1821(l),
offers little substantive guidance on prejudgment interest.
With the guidance of O’Melveny, it is natural for federal courts
addressing FIRREA claims that originally arose under state
law to turn, at least for guidance in exercising discretion, to
the state law that would have applied absent the FDIC receiv-
ership. Accordingly, the district court properly looked to
appropriate interest.” The dissent ultimately proposes to require or at least
allow a district court to look to state law to decide how much prejudgment
interest to award, but to treat some amount of prejudgment interest by
definition as always “appropriate,” so that an award of zero should be pro-
hibited. See post at 32–33. That would be an odd rule, at least where state
law would direct that zero prejudgment interest is appropriate. More fun-
damental, though, as a matter of statutory interpretation, if that rather
complex rule were what Congress had intended, “shall include … appro-
priate interest” is neither a clear nor a likely way to have expressed it.
No. 20-1572 15
Illinois state law for guidance on whether prejudgment inter-
est was appropriate here. 8
The district court explained:
This Court therefore looks to Illinois law for
guidance in exercising its discretion to award
prejudgment interest. In Illinois, “prejudgment
interest is generally recoverable only when an
express agreement between the parties exists or
if it is authorized by statute.” Movitz v. First Nat’l
Bank of Chi., 982 F. Supp. 566, 568 (N.D. Ill. 1997).
However, in proceedings brought in equity “a
court may be justified in awarding interest
based on equitable grounds.” Kouzoukas v. Ret.
Bd. of Policemen’s Annuity & Benefit Fund of City
of Chi., 917 N.E.2d 999, 1015 (Ill. 2009). The FDIC
does not assert that there is any contractual or
statutory basis for the award of prejudgment in-
terest here. Thus, the Court confines its inquiry
8 When exercising diversity jurisdiction or supplemental jurisdiction
over state-law claims, of course, federal courts routinely look to state law
to determine whether prejudgment interest is appropriate and if so, at
what rates and for what time. E.g., BRC Rubber & Plastics, Inc. v. Continental
Carbon Co., 981 F.3d 618, 634–35 (7th Cir. 2020) (applying Indiana law);
Medcom Holding Co. v. Baxter Travenol Labs., Inc., 106 F.3d 1388, 1405 (7th
Cir. 1997) (“In diversity cases governed by Erie, federal courts look to state
law to determine the availability of (and the rules for computing) prejudg-
ment interest.”) (quotation and citation omitted); Movitz v. First Nat’l Bank
of Chicago, 982 F. Supp. 566, 568 (N.D. Ill. 1997) (“This … is a diversity case,
controlled by Illinois law.”), rev’d on other grounds, 148 F.3d 760 (7th Cir.
1998).
16 No. 20-1572
to possible equitable bases for awarding pre-
judgment interest.
F.D.I.C. v. Chicago Title Ins. Co., 2019 WL 1437873, *10 (March
31, 2019). We agree, so we turn to possible equitable bases for
prejudgment interest.
B. Equitable Bases for Prejudgment Interest
The FDIC contends that Illinois law calls for prejudgment
interest on its claims against Chicago Title for breach of fidu-
ciary duty. Illinois law treats a claim for breach of fiduciary
duty as an equitable claim, and Illinois law allows for an eq-
uitable award of prejudgment interest in such cases. E.g.,
Prignano v. Prignano, 934 N.E.2d 89, 109 (Ill. App. 2010) (“[F]or
causes of action sounding in equity, ‘the allowance of interest
lies within the sound discretion of the judge and is allowed
where warranted by equitable considerations.’”), quoting Tri-
G, Inc. v. Burke, Bosselman & Weaver, 222 Ill. 2d 218, 257, 856
N.E.2d 389, 412 (2006).
The rationale for awarding prejudgment interest in such
cases is to “make the injured party complete by forcing the
fiduciary to account for profits and interest he gained by the
use of the injured party’s money.” In re Estate of Wernick, 127
Ill. 2d 61, 87, 535 N.E.2d 876, 888 (1989). The district court re-
viewed Illinois cases on equitable awards of prejudgment in-
terest for breach of fiduciary duty. The court concluded that
the “common thread” is that prejudgment interest is available
when “the fiduciary wrongfully withheld money from the in-
jured party.” The court ultimately found that Chicago Title it-
self did not wrongfully withhold money from Founders, the
injured party here, so the court did not award prejudgment
interest. The FDIC argues that there is no “wrongful
No. 20-1572 17
withholding” requirement for prejudgment interest awards
under Illinois law.
There is no express requirement that the unfaithful fiduci-
ary have wrongfully withheld money from the plaintiff, but
the district court correctly observed that it is a nearly univer-
sal feature in the Illinois fiduciary cases awarding prejudg-
ment interest. The Illinois Supreme Court in Wernick reversed
a denial of prejudgment interest where the defendant de-
prived the plaintiff use of funds for a time. Wernick, 127 Ill. 2d
at 87, 535 N.E.2d at 888 (victim should receive interest “when
money has been wrongfully withheld”). In DiMucci, the court
found bad faith where the defendant had withheld money for
a time. The court acknowledged that while “bad conduct is
not a precise requirement” for an award of prejudgment in-
terest, “the cases suggest that some element of bad conduct
must be present.” National Union Fire Ins. Co. of Pittsburgh v.
DiMucci, 34 N.E.3d 1023, 1048 (Ill. App. 2015) (affirming
award of prejudgment interest “for the deprivation of the
funds all these years”) (cleaned up).
In Wolinsky v. Kadison, 987 N.E.2d 971, 990 (Ill. App. 2013),
the Illinois Appellate Court concluded that the defendant was
not entitled to summary judgment on prejudgment interest
because the plaintiff claimed the defendant’s breach of fiduci-
ary duty had deprived her of the use of her money. The court
remanded for the trial court to determine whether to award
interest. And in Wilson v. Cherry, 612 N.E.2d 953, 958 (Ill. App.
1993), the court ultimately denied prejudgment interest be-
cause the case was a negligence action but acknowledged that
even where the wrongdoer does not explicitly benefit, the in-
jured party “suffers detriment from the lack of use of the
18 No. 20-1572
money … because of the inability to use the money … until
the day compensation is paid.” 9
While the relevant Illinois cases do not include an explicit
“wrongfully withheld” requirement, wrongful withholdings
are generally present where Illinois courts award prejudg-
ment interest on fiduciary duty claims. No showing was made
here of a withholding of funds. We do not read Illinois cases
as requiring prejudgment interest in a fiduciary case like this
one, where the fiduciary enabled others to defraud the victim.
While we can imagine that Illinois courts may choose to move
in that direction, they have not done so yet. The district court
did not abuse its discretion in denying the FDIC’s request for
prejudgment interest.
IV. The Motion to Amend the Judgment
The district court also denied the FDIC’s motion under
Federal Rule of Civil Procedure 59(e) to amend the judgment
to increase the damages awarded by the jury verdict. The
FDIC argued that if it proved liability, as it did, its damages
should be for the full amount of the deficiency judgments es-
tablished at trial. Recall that the jury awarded the full
9See also Movitz, 982 F. Supp. at 570 (“Generally, courts grant an eq-
uitable award of prejudgment interest when they find that the fiduciary
has wrongfully withheld money from the injured party.”); Wehrs v. Benson
York Grp., Inc., 2011 WL 4435609, at *8 (N.D. Ill. Sept. 23, 2011) (declining
to award prejudgment interest because fiduciary “received no financial
benefit from his wrongdoing”). The FDIC also relies on Prignano, where
the defendant held the plaintiff’s money for a time and the court noted
that “the evidence at trial supported the award of prejudgment interest”
because of the presence of wrongful withholding. 934 N.E.2d at 110. Be-
cause such wrongful withholding was not shown here, however, Prignano
does not help the FDIC.
No. 20-1572 19
deficiency judgment amounts for two properties but substan-
tially lesser amounts for the other two. The district court de-
nied the motion, reasoning that the jury may have determined
that some events after the transaction closings warranted a re-
duction in the damages. “There was sufficient evidence pre-
sented by Chicago Title for the jury to have concluded that
unforeseeable acts following the close of the transactions im-
paired two of the properties’ value.” The FDIC argues that be-
cause the jury found that Chicago Title’s conduct was a prox-
imate cause of the FDIC’s injuries, the district court erred in
concluding that evidence of intervening or superseding
causes could have supported the jury’s reduction in damages.
The standard of review is abuse of discretion: “The deci-
sion whether to grant or deny a Rule 59(e) motion is entrusted
to the sound judgment of the district court, and we will re-
verse only for an abuse of discretion.” Matter of Prince, 85 F.3d
314, 324 (7th Cir. 1996). The issues of causation were murky
enough in this case to persuade us to leave this question to the
sound discretion of the district court. The Founders loans
blew up in the midst of the Great Recession, and significant
construction costs interfered with the intended plans to con-
vert the properties into condominiums, leaving room for fair
debate and for the jury’s exercise of common sense in decid-
ing how to assess loss and causation. We find no abuse of dis-
cretion on this question.
The court instructed the jury on proximate cause: “It need
not be the only cause, nor the last or nearest cause. It is suffi-
cient if it combines with another cause resulting in the injury.”
Concluding that a defendant’s action was a proximate cause
does not foreclose additional or combined causes. “There may
be more than one proximate cause of an injury.” Bentley v.
20 No. 20-1572
Saunemin Township, 83 Ill. 2d 10, 17, 413 N.E.2d 1242, 1246
(1980); see also Lipke v. Celotex Corp., 505 N.E.2d 1213, 1221 (Ill.
App. 1987) (“Illinois courts have long recognized that there
can be more than one proximate cause of an injury.”). 10
The FDIC relies on Chapman, where the Illinois appellate
court remarked: “The existence of proximate cause precludes
the possibility of superseding cause.” Chapman v. Baltimore &
Ohio R.R. Co., 92 N.E.2d 466, 473 (Ill. App. 1950). But there, the
court was discussing when intervening causes may entirely
relieve a defendant of wrongdoing: “An intervening cause, if
it is to be sufficient in law to relieve the original wrongdoer,
is inadequate when it merely combines or concurs with the
operation of such negligence to produce a joint effect.” Id. A
defendant may thus be held responsible as a proximate cause
of damages even if a later intervening cause produces a joint
effect with the negligence of the defendant. The Chapman
court clarified: “To constitute proximate cause, a negligent act
or omission need not be the sole cause … even though other
causes … combined with such negligence to produce the ulti-
mate result.” Id. at 471–72 (citation omitted).
The combination of the specific transactions in this case
and larger events in the regional, national, and global
10 In Movitz, we addressed a similar issue, the difference between
transaction causation and loss causation. “Transaction causation” refers to
the loss from the transaction itself, and “loss causation” refers to the total
loss including even losses that may not have been in defendant’s control
to cause in the first place. We concluded that the plaintiff was not neces-
sarily entitled to all damages even if a defendant was a proximate cause
of the transaction loss because the defendant did not proximately cause
the portion of loss resulting from a more general market turndown and
other external forces. 148 F.3d at 763.
No. 20-1572 21
economies made measurement of damages a complex factual
issue. The district court did not abuse its discretion in con-
cluding there was sufficient evidence for the jury to conclude
that unforeseeable events after the transaction closings im-
paired two of the properties’ values, so that the jury could find
both that Chicago Title proximately caused Founders’ injuries
but that the FDIC was not entitled to recover every penny it
lost from Chicago Title. The district court also did not abuse
its discretion in concluding that the jury could not award
damages in excess of the respective deficiency judgments.
F.D.I.C. v. Chicago Title Ins. Co., 2015 WL 5276346 (N.D. Ill.
Sept. 9, 2015).
V. Granting the Setoff
We disagree, however, with the district court’s handling
of one issue. The district court found that Chicago Title was
entitled to a setoff of $500,000 from the total verdict, reflecting
the amount that former co-defendant PVS agreed to pay the
FDIC in a settlement. The FDIC argues that Chicago Title was
not entitled to this setoff because it failed to carry the burden
of proving that any portion of the settlement sum was at-
tributable to the same injuries for which Chicago Title was
found liable. We agree with the FDIC on this issue.
Whether defendant is entitled to a setoff is a question of
law that we review de novo. Thornton v. Garcini, 237 Ill. 2d
100, 115–16, 928 N.E.2d 804, 813 (2010). When an appellate
court turns to the details of attributing damages to different
injuries, the standard of review relaxes to look for only an
abuse of discretion. Pasquale v. Speed Prods. Engineering, 166 Ill.
2d 337, 369, 654 N.E.2d 1365, 1382 (1995).
22 No. 20-1572
The question of setoffs in Illinois is governed by Section
2(c) of the Illinois Joint Tortfeasor Contribution Act:
When a release or covenant not to sue or not to
enforce judgment is given in good faith to one
or more persons liable in tort arising out of the
same injury or the same wrongful death, it does
not discharge any of the other tortfeasors from
liability for the injury or wrongful death unless
its terms so provide but it reduces the recovery
on any claim against the others to the extent of
any amount stated in the release or the cove-
nant, or in the amount of the consideration ac-
tually paid for it, whichever is greater.
740 ILCS 100/2(c). Section 2(c) “ensures that a nonsettling
party will not be required to pay more than its pro rata share
of the shared liability.” Pasquale, 116 Ill. 2d at 368, 654 N.E.2d
at 1382. “[W]hen a settlement release is given in good faith to
one tortfeasor … it … reduces ‘the recovery’ on any claim
against them to the extent of the amount stated in the release
or actually paid for it.” Id. at 367–68, 1381.
Because a setoff is intended to prevent double recovery, a
full setoff may be awarded only where the settlement covers
the same injury as that for which the non-settling defendant
was found responsible. A full setoff may not be awarded
where a settlement covers multiple injuries, for at least one of
which both defendants are jointly responsible, but for at least
one of which the non-settling defendant is not responsible.
Thornton, 237 Ill. 2d at 116–17, 928 N.E.2d at 813–14 (settle-
ment covered a greater subset of injuries than the jury award
did, so allocation was needed between joint and non-joint in-
juries among defendants).
No. 20-1572 23
The critical point in this case is that, where there may ar-
guably be both joint and non-joint injuries, the non-settling
defendant bears the burden of proving the allocation of settle-
ment proceeds between them. Id. at 117, 814. Chicago Title
failed to meet that burden.
Chicago Title argues there was only one joint injury, the
injury that arose from Founders’ losses from the loans. Yet the
district court’s pretrial decision limiting damages against Chi-
cago Title to the amounts of the deficiency judgments held in
effect that the FDIC was asserting both joint and non-joint in-
juries. The court distinguished between the foreclosure defi-
ciency judgments, which could be deemed joint injuries
caused by both Chicago Title and PVS, and the post-foreclo-
sure construction costs and net losses on final sales, which
could have been caused only by PVS.
We must acknowledge that the district court said that the
FDIC “misconstrue[d] the Court’s ruling” limiting damages
to the deficiency judgments and asserted that it “did not hold
that there were two injuries.” Instead, the district court wrote
that it “addressed and rejected the FDIC’s arguments that
Chicago Title was responsible for losses attributable to PVS’s
second set of appraisals” but “never adopted a two-injury
framework.” The court expressed then “no opinion regarding
whether the full credit bid rule bars recovery in excess of the
deficiency judgments from PVS” and said that it “did not bi-
furcate Founders Bank’s injury.”
After the trial, when Chicago Title asked for the setoff, the
district court concluded that no allocation was required, “not-
withstanding the plaintiff’s assertion of two distinct theories
of recovery.” See also Pasquale, 116 Ill. 2d at 368–69, 654 N.E.2d
at 1382. The district court found at that point that the
24 No. 20-1572
settlement with PVS and the jury’s damage awards against
Chicago Title involved the same injuries, and that the FDIC’s
negligent misrepresentation and contract claims against both
PVS and Chicago Title rendered both potentially liable in tort
under the Illinois statute.
We are not convinced that the district court’s two deci-
sions can be reconciled with each other. Illinois cases across a
range of settings show that the Illinois statute applies broadly
to joint tortfeasors and that the burden is on the defendant
seeking setoff to establish allocation where there are joint and
non-joint injuries or theories of recovery. “Generally, a non-
settling party seeking a setoff bears the burden of proving
what portion of a prior settlement was allocated or attributa-
ble to its share of the liability.” Thornton, 237 Ill. 2d at 116, 928
N.E.2d at 813; see also Pasquale, 166 Ill. 2d at 369, 654 N.E.2d
at 1382 (same); Muro v. Abel Freight Lines, Inc., 669 N.E.2d
1217, 1218 (Ill. App. 1996) (“A defendant seeking a set off bears
the burden of establishing the exact amount of the settlement
the plaintiff received.”) (citation omitted). 11 “If a defendant is
unable to establish the amount allocated to a plaintiff’s indi-
vidual theories of recovery, he will not receive a set off.”
Muro, 669 N.E.2d at 1218, citing Dolan v. Gawlicki, 628 N.E.2d
1188, 1190 (Ill. App. 1994) (“We conclude that Barkei and Kip-
nis stand for the proposition that a court may not set off
11See also Valley Air Serv., Inc. v. Southaire, Inc., 432 F. App’x 602, 606
(7th Cir. 2011). The case is non-precedential, but we agree with its reason-
ing on this point. Valley Air affirmed denial of a setoff where the defendant
made no effort to apportion the settlement between injuries in a case with
multiple theories (tort and contract, as here). We said the “burden is on
the defendant seeking set-off to establish the amount that should be allo-
cated to each individual theory of recovery.”
No. 20-1572 25
settlement amounts unless the court has made a previous al-
location of the damages for particular claims.”), and Barkei v.
Delnor Hospital, 565 N.E.2d 708, 715 (Ill. App. 1990) (conclud-
ing that because the party seeking a setoff failed to demon-
strate apportionment of the settlement between joint tortfea-
sors, the trial court properly refused to grant a setoff).
The district court’s post-trial rejection of the existence of
both joint and non-joint injuries in this case made its two de-
cisions inconsistent. We think the district court was right in its
pretrial decision to limit the FDIC’s recovery from Chicago
Title under the credit bid rule. That ruling had the effect of
cutting off potential Chicago Title liability for post-foreclo-
sure losses. And that logic effectively created categories of
joint and non-joint injuries as between Chicago Title and PVS.
The parties did not contribute in the same way to the loan
losses before and after the foreclosures. Chicago Title bore the
burden of establishing the amount that should be allocated to
each type of injury. It made no effort to meet that burden, so
the setoff was not appropriate.
* * *
To sum up, we AFFIRM the district court’s denial of pre-
judgment interest and its denial of the FDIC’s motion to
amend the judgment, but we REVERSE the grant of a setoff to
Chicago Title. We REMAND the case to the district court for
modification of the judgment to eliminate the $500,000 setoff.
26 No. 20-1572
KIRSCH, Circuit Judge, concurring in part and dissenting in
part. I agree with the majority on the motion to amend and
setoff issues. I therefore concur in affirming the district court’s
denial of the FDIC’s motion to amend the judgment, and in
reversing and remanding the district court’s grant of a setoff
to Chicago Title. I write separately on the statutory interpre-
tation question. The majority concludes that 12 U.S.C.
§ 1821(l), a damages provision in the Financial Institutions Re-
form, Recovery, and Enforcement Act of 1989 (FIRREA), gave
the district court discretion to deny prejudgment interest to
the FDIC, effectively changing “shall include” in the statute
to “may include.” I disagree.
It is well established that when interpreting a statute, “we
look first to its language.” United States v. Monsanto, 491 U.S.
600, 606 (1989) (quotation omitted). When the language’s
“plain meaning is unambiguous, our inquiry ends there.”
United States v. Melvin, 948 F.3d 848, 852 (7th Cir. 2020). Sec-
tion 1821(l) states that in a suit like this, where it has been de-
termined that damages resulted from the improvident or oth-
erwise improper use or investment of an insured depository
institution’s assets, the aggrieved party’s “recoverable dam-
ages … shall include principal losses and appropriate inter-
est.” The plain meaning of § 1821(l) is unambiguous: since
damages “shall include” interest, an award of prejudgment
interest is mandatory, not discretionary, under FIRREA.1 Cf.
1Everyone apparently agrees that the statute’s reference to “interest”
includes prejudgment interest even though the statute doesn’t specifically
say so. See Grant Thornton, LLP v. FDIC, 435 F. App’x 188, 206–07 (4th Cir.
2011); see also Appellant’s Reply Br. at 5 (noting “[a]ll courts to address
the issue—including Grant Thornton and the district court below—have
No. 20-1572 27
Monsanto, 491 U.S. at 607 (in 21 U.S.C. § 853(a), which states
that a convicted person “shall forfeit … any property” derived
from the person’s offenses of conviction, “Congress could not
have chosen stronger words to express its intent that forfei-
ture be mandatory”). Indeed, since the statute does not define
“shall,” we interpret the word based on its “ordinary, contem-
porary, [and] common meaning by looking at what [it] meant
when the statute was enacted, often by referencing contempo-
rary dictionaries.” Melvin, 948 F.3d at 852. And when “shall”
is used in both statutes and everyday language, it consistently
means that something “is required.” Shall, BLACK’S LAW
DICTIONARY (11th ed. 2019) (“This [definition] is the manda-
tory sense that drafters typically intend and that courts typi-
cally uphold.”); see Shall, MERRIAM-WEBSTER DICTIONARY,
https://www.merriam-webster.com/dictionary/shall (last vis-
ited Aug. 12, 2021) (“shall” is “used in laws, regulations, or
directives to express what is mandatory”); Shall, BALLENTINE’S
LAW DICTIONARY (3d ed. 2010) (“where appearing in a stat-
ute,” the word “shall” is “[o]rdinarily, a word of mandate, the
equivalent of ‘must’”); see also Lexecon Inc. v. Milberg Weiss
Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998) (recognizing that
“shall” is “mandatory” and “normally creates an obligation
impervious to judicial discretion”).
In holding that the district court could exercise its discre-
tion to deny interest under § 1821(l), the majority disregards
the plain meaning of “shall” and instead interprets the stat-
ute’s mandatory “shall” as a discretionary “may.” If Congress
wanted interest to be discretionary under the statute, it could
have said that damages “may” (instead of “shall”) include
concluded that Section 1821(l)’s reference to interest addresses prejudg-
ment interest,” and neither party denies this).
28 No. 20-1572
interest. See Kingdomware Techs., Inc. v. United States, 136 S. Ct.
1969, 1977 (2016) (“Unlike the word ‘may,’ which implies dis-
cretion, the word ‘shall’ usually connotes a requirement.”).
Alternatively, it could have remained silent on the matter of
prejudgment interest. But that’s not how Congress wrote the
statute.
In addition to dictionary definitions, we often consult
grammar to discern a statute’s plain meaning. See Niz-Chavez
v. Garland, 141 S. Ct. 1474, 1484–85 (2021). Under the major-
ity’s reading, not only does “shall” not mean “shall,” but the
term “appropriate” is no longer an adjective. By immediately
preceding the word “interest,” the term “appropriate” is used
as an adjective to describe what kind of interest is mandatory
under the statute (“appropriate interest”)—just as the adjec-
tive “principal” describes what kind of losses are mandatory
(“principal losses”). In other words, the statute’s use of
“shall” tells us when interest must be included under the stat-
ute (always, because “shall” means that it’s mandatory),
whereas “appropriate” tells us what interest is required
(again, “appropriate interest”). Yet the majority concludes—
relying on an unpublished Fourth Circuit opinion, see Grant
Thornton, LLP v. FDIC, 435 F. App’x 188 (4th Cir. 2011) 2—that
2This is the only other federal appellate case to directly address
whether § 1821(l) makes an award of prejudgment interest mandatory or
discretionary. But two published cases from the Fifth and Tenth Circuits
that did not specifically analyze the issue seemed to assume that an award
of prejudgment interest was mandatory under § 1821(l). See FDIC v.
UMIC, Inc., 136 F.3d 1375, 1387–88 (10th Cir. 1998) (indicating that pre-
judgment interest is mandatory under FIRREA: “In the absence of
FIRREA, state law governs the availability of prejudgment interest on the
breach of fiduciary duty claim.” And “[b]ecause FIRREA is inapplicable,
the district court was charged with deciding whether prejudgment
No. 20-1572 29
“appropriate” tells us when and not what interest is required.
See supra, at 13 (“the word ‘appropriate’ ‘is best read as a lim-
itation as to when prejudgment interest should be provided’”)
(emphasis added) (quoting Grant Thornton, 435 F. App’x at
208). In so doing, the majority transforms “appropriate” from
an adjective that modifies the noun “interest” to an adverb
that modifies the verb “shall include,” and the majority con-
cludes that when the statute is read accordingly, § 1821(l) pro-
vides that the district court may in its discretion award inter-
est if it’s appropriate. The majority’s reading, however, di-
minishes instead of gives effect to the word “shall,” see Gade
v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 100 (1992) (courts
have a “duty to give effect, if possible, to every clause and
word of a statute”) (quotation omitted), and does not square
with the statute’s grammatical structure.
Nor can the majority’s speculations about “why Congress
added the ‘appropriate’ qualifier” in the statute, see supra, at
13, prevail over the plain meaning of § 1821(l)’s terms. The
“best evidence” of Congress’s purpose in enacting a statute
interest was available under pre-existing law.”); FDIC v. Mijalis, 15 F.3d
1314, 1326 (5th Cir. 1994) (indicating that “appropriate” in an adjective
modifying “interest” and not an adverb modifying “shall include”:
“[FIRREA] provides that the FDIC shall be able to recover ‘appropriate
interest’ as damages against liable directors and officers of insured depos-
itory institutions. 12 U.S.C. § 1821(l). Unfortunately, case law addressing
the appropriate rate of interest to be awarded is, to say the least, sparse.”)
(emphasis added); see also FDIC v. Moll, 848 F. Supp. 145, 148 (D. Colo.
1993) (concluding § 1821(l) “provides that the FDIC is entitled as a matter
of law to recover ‘appropriate interest’ on its losses,” and finding that
FDIC’s proposed rate of 8% interest was appropriate under that case’s
facts and also consistent with Colorado’s statutory prejudgment interest
rate).
30 No. 20-1572
“is the statutory text adopted by both Houses of Congress and
submitted to the President.” W. Va. Univ. Hosps., Inc. v. Casey,
499 U.S. 83, 98 (1991), superseded by statute on other grounds,
42 U.S.C. § 1988. Where, as here, the statute’s text is plain and
unambiguous, “the sole function of the court is to enforce it
according to its terms.” Id. at 99 (quotations omitted). The ma-
jority’s beliefs about what “Congress could easily have con-
cluded” in passing § 1821(l) are therefore immaterial. 3 See su-
pra, at 13. Whatever Congress might have concluded cannot
overcome what Congress in fact drafted in the statutory text.
See Walton v. United Consumers Club, Inc., 786 F.2d 303, 310
(7th Cir. 1986) (“Courts should confine their attention to the
purposes Congress sought to achieve by the words it used.
We interpret texts. The invocation of disembodied purposes,
reasons cut loose from language, is a sure way to frustrate ra-
ther than implement these texts.”). What Congress said in
§ 1821(l) is that a court “shall” award “appropriate” prejudg-
ment interest. The most natural conclusion about what Con-
gress meant in stating that a court must award “appropriate”
3 The majority opines that in FIRREA cases, where the FDIC steps into
the shoes of a failed bank as receiver to generally work out its claims under
state law, Congress could easily have concluded that since such cases arise
all over the nation under the laws of every state, a one-size-fits-all ap-
proach to awarding prejudgment interest would not be appropriate. Id.
Thus, the majority reasons, Congress likely used the “appropriate” quali-
fier to provide “a workable delegation to courts to exercise sound discre-
tion” to determine whether it is appropriate for them to award prejudg-
ment interest in a given case after considering all relevant circumstances.
Id. Congress could just as easily have concluded that prejudgment interest
should be mandatory in FIRREA cases because if it wasn’t, the FDIC might
be denied prejudgment interest in some states depending on which state’s
law governs the case. Who’s to say Congress didn’t want to take away
courts’ discretion to deny prejudgment interest, to avoid such a result?
No. 20-1572 31
interest is that a court must include in the aggrieved party’s
damages an amount of prejudgment interest that is proper (or
“appropriate”) to fully compensate that party under the cir-
cumstances.
This makes sense: making sure that the aggrieved party is
wholly compensated is the purpose of prejudgment interest.
See, e.g., City of Milwaukee v. Cement Div., Nat’l Gypsum Co., 515
U.S. 189, 195 (1995) (the “rationale for awarding prejudgment
interest is to ensure that an injured party is fully compensated
for its loss”); West Virginia v. United States, 479 U.S. 305, 310
n.2 (1987) (“Prejudgment interest serves to compensate for the
loss of use of money due as damages from the time the claim
accrues until judgment is entered, thereby achieving full com-
pensation for the injury those damages are intended to re-
dress.”); see also supra, at 12 (agreeing that “prejudgment in-
terest is usually an ingredient of full compensation” “because
‘[c]ompensation deferred is compensation reduced by the
time value of money’”) (citation omitted). That’s why, as the
majority notes, “this court has long applied a presumption in
favor of awarding prejudgment interest” to victims of at least
federal law violations. Id. at 11. “‘Without it, compensation of
the [aggrieved] plaintiff is incomplete and the defendant has
an incentive to delay.’” Id. (quoting Gorenstein Enters. Inc. v.
Quality Care-USA, Inc., 874 F.2d 431, 436 (7th Cir. 1989)); see
also Matter of Oil Spill by the Amoco Cadiz, 954 F.2d 1279, 1331
(7th Cir. 1992) (per basic economic principles, “[m]oney today
is not a full substitute for the same sum that should have been
paid years ago”).
The purpose of prejudgment interest therefore demon-
strates that § 1821(l)—which is entitled “Damages” and states
an aggrieved party’s recoverable damages “shall” include not
32 No. 20-1572
just “principal losses” but also “appropriate interest”—is best
read as evincing a strong compensatory purpose, which fur-
ther confirms that § 1821(l) makes an award of prejudgment
interest mandatory. As such, it should not be read to grant
courts discretion to decide whether to award prejudgment in-
terest at all, as the majority holds. See NLRB v. Lion Oil Co.,
352 U.S. 282, 289 (1957) (a construction that does not serve a
statute’s purpose “is to be avoided unless the words Congress
has chosen clearly compel it”).
Though the statute clearly mandates that a proper amount
of prejudgment interest be included in an aggrieved party’s
compensatory award to make that party whole, the statute
leaves open how to calculate the amount of prejudgment in-
terest necessary to make the party whole. Since neither the
district court nor the majority determined that an award of
prejudgment interest to the FDIC was required, they did not
reach what rate of interest was “appropriate” to award the
FDIC. Although I likewise do not reach the issue, it may be
that it is within the district court’s discretion to look to multi-
ple sources, including state law, for guidance to determine the
prejudgment interest rate.
Indeed, nothing in § 1821(l) suggests that it would be im-
proper for district courts to look to state prejudgment interest
rates and accrual periods for guidance in computing a proper
amount of prejudgment interest to fully compensate the FDIC
for its losses. 4 In Gross v. Sun Life Assurance Co. of Canada, the
4Each state has its own law, usually a statute, indicating the interest
rate and accrual date the state uses to calculate prejudgment interest. See,
e.g., COZEN O’CONNOR, JURISDICTIONS COMPARATIVE CHART: PRE/POST
JUDGMENT INTEREST 1–10 (2015),
No. 20-1572 33
First Circuit held that in ERISA cases, 5 district courts have
broad discretion to select the rate of interest, “with the choice
to be guided by equitable factors” so as to identify “a fair per-
centage reflecting both the rationale of full compensation and
ERISA’s underlying goals.” 880 F.3d 1, 19–21 (1st Cir. 2018)
(quotations and citation omitted) (distinguishing between
proper and improper interest rate calculations). In exercising
this “broad discretion to select the rate,” the First Circuit en-
dorsed district courts looking “to outside sources, including
state law, for guidance.” Id. at 20 (quotations and citation
omitted). Similarly in Towerridge, Inc. v. T.A.O., Inc., the Tenth
Circuit explained that in cases arising under the federal Miller
Act, 6 the district court, in fixing a prejudgment interest award,
was “free to choose any interest rate which would fairly
https://www.cozen.com/admin/files/publications/pre_post_judgment_in-
terest_jurisidctional_chart.pdf (collecting states’ prejudgment interest
laws).
5 Unlike FIRREA, “ERISA does not specifically provide for pre-judg-
ment interest, and absent a statutory mandate the award of pre-judgment
interest is discretionary with the trial court.” Quesinberry v. Life Ins. Co. of
N. Am., 987 F.2d 1017, 1031 (4th Cir. 1993). In exercising its discretion over
whether (or when) to grant such interest in ERISA cases, the district court
applies federal common law. See Jones v. UNUM Life Ins. Co. of Am., 223
F.3d 130, 139 (2d Cir. 2000).
6 Like in ERISA cases, in cases under the Miller Act, “[t]he decision
whether … to allow prejudgment interests rests within the sound discre-
tion of the trial court.” Towerridge, Inc. v. T.A.O., Inc., 111 F.3d 758, 763
(10th Cir. 1997). The district court applies federal common law in exercis-
ing such discretion. See id. at 764 (the “allowance of prejudgment interest
in cases arising under the Miller Act is a matter of federal law,” deter-
mined by considering whether an award of prejudgment interest would
serve to compensate the injured party and whether the equities would
preclude prejudgment interest).
34 No. 20-1572
compensate the plaintiff for the delay in the receipt of pay-
ment,” including the state interest rate. 111 F.3d 758, 764 (10th
Cir. 1997) (quotation and citation omitted). So, in cases involv-
ing other federal statutory schemes, it is not unusual for dis-
trict courts to look to federal law to determine whether pre-
judgment interest should be awarded and to state law for
guidance in determining the appropriate rate of interest to
make the aggrieved party whole. Thus, in FIRREA cases,
while a district court might have discretion to consider state
law to determine what interest rate is equitable and in line
with the compensatory purposes of § 1821(l), that would not
impact the preliminary conclusion that the district court lacks
discretion to determine the permissibility of the prejudgment
interest award (or when prejudgment interest is appropri-
ate)—since, as discussed, FIRREA unambiguously resolves
that question.
I would hold that the district court erred in denying pre-
judgment interest to the FDIC, and I would remand to the dis-
trict court to determine the rate of prejudgment interest.