Karma International, LLC v. Indianapolis Motor Speedway, L ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 18-2583 & 18-3487
KARMA INTERNATIONAL, LLC,
Plaintiff-Appellant,
v.
INDIANAPOLIS MOTOR SPEEDWAY, LLC,
Defendant-Appellee.
____________________
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:16-cv-02182 — William T. Lawrence, Judge.
____________________
ARGUED APRIL 12, 2019 — DECIDED SEPTEMBER 18, 2019
____________________
Before FLAUM, EASTERBROOK, and SYKES, Circuit Judges.
SYKES, Circuit Judge. The Indianapolis 500 race has been a
fixture of American life since 1911, interrupted only by
world war. So when its 100th running arrived in 2016,
organizers wanted to shift the race-weekend entertainment
into high gear. They engaged Karma International, LLC, an
event-planning company, to host a ticketed party.
2 Nos. 18-2583 & 18-3487
Unlike the Indianapolis 500 itself—which sold out for the
first time in history—the Karma party was a disappoint-
ment. Poor ticket sales prevented Karma from covering its
expenses. Karma sued the racetrack for breach of contract,
accusing it of failing to adequately promote the party. The
racetrack counterclaimed, alleging that Karma ignored its
own advertising obligations. The district judge rejected
Karma’s claim at summary judgment, ruling that the dam-
ages theory rested on speculation. A jury found Karma liable
on the counterclaim, awarding $75,000 in damages. Karma
appeals, seeking review of the summary-judgment ruling
and the denial of its posttrial motions for judgment as a
matter of law or a new trial.
We affirm. Karma’s evidence of damages is indeed specu-
lative, so its claim fails under Indiana law. And we see no
reason to second-guess the jury’s determination that Karma
breached the parties’ contract by failing to fulfill its promises
to advertise the event online.
I. Background
The Indianapolis Motor Speedway, LLC, sponsors the
annual Indianapolis 500 race and associated race-weekend
events, which include musical acts and other festivities. In
2015 Karma International became a licensee of Maxim, a
men’s magazine. Karma has hosted Maxim-branded enter-
tainment at large sporting events, including a party prior to
the 2016 Super Bowl in San Francisco.
In early 2016 Karma began negotiations with the Speed-
way to host a Maxim-branded event at that year’s 100th-
running of the race. The parties eventually agreed on terms
memorialized in a March 2016 agreement. The Speedway
Nos. 18-2583 & 18-3487 3
promised to provide “marketing support via [its] social
channels and … dedicated e-mail to [its] database.” In return
Karma pledged to promote race-weekend activities with a
“banner ad on Maxim.com (minimum 1 million impres-
sions).” It also promised to provide “marketing support via
Maxim social channels for [the Indy 500] [m]usic events
(Carb Day, Legend’s Day and Indy 500 Snake Pit).”
To fulfill its advertising obligations under the contract,
the Speedway sent four promotional e-mails in May 2016
promoting the Maxim party:
• May 9: A dedicated e-mail to 334 sponsors and
suite ticketholders
• May 20: A dedicated e-mail to 13,824 fans
• May 21: A cross-promotional e-mail to 89,979 fans
• May 25: A dedicated e-mail to 149,430 “Wing and
Wheel Newsletter” subscribers
Karma, for its part, never ran the promised banner adver-
tisement on Maxim.com. Nor did it use Maxim’s social-
media channels to promote race-weekend events.
The Maxim party took place as scheduled on May 27.
Karma spent $635,855.71 on the event but generated only
$215,690.39 in revenue. While 1,787 guests attended the
party, Karma sold just 92 full-price tickets. Some of the
remaining guests bought reduced-price tickets, but most
received complimentary admission.
In August 2016 Karma sued the Speedway for breach of
contract, alleging that it failed to promote the Maxim party
as agreed under the terms of the contract. Karma sought
$817,500 in damages, a figure apparently gleaned from
4 Nos. 18-2583 & 18-3487
conversations with Speedway officials who speculated that
the party would generate $1 million in gross revenue “from
ticket and table sales only.” 1 The Speedway filed a counter-
claim alleging that Karma failed to place the promised
banner advertisement on Maxim’s website or provide mar-
keting support on Maxim’s social-media channels.
The Speedway moved for summary judgment on
Karma’s claim. The judge discerned a factual dispute regard-
ing the alleged breach of contract. While the Speedway
insisted it hadn’t promised to e-mail its entire database to
promote the party, the evidentiary record—construed in
Karma’s favor—permitted an inference that it had. But
Karma’s damages theory was entirely speculative. Karma
claimed that Speedway officials gave assurances that its
e-mails would generate the sale of at least 1,500 tickets. The
judge held that those comments, without more, could not
establish how many additional ticket sales an e-mail to its
entire database would have generated. Because Karma had
no nonspeculative evidence of damages, the judge entered
summary judgment for the Speedway.
The counterclaim proceeded to trial, and Speedway em-
ployees testified that no banner advertisement appeared on
Maxim.com and that Karma failed to provide the promised
marketing support on Maxim’s social-media channels.
Karma’s CEO Dylan Marer admitted that he didn’t know
1 Long after the deadline to amend the pleadings expired, Karma moved
to add allegations of additional contract terms not in the written agree-
ment. A magistrate judge denied the motion, and Karma never objected
to that ruling in the district court. On appeal Karma faults the district
judge for not sua sponte conforming the pleadings to later-introduced
evidence. The judge had no obligation to do so.
Nos. 18-2583 & 18-3487 5
whether these marketing efforts had occurred. Jonathan
Faber, a damages expert, estimated that the Speedway’s lost-
value damages for the nonexistent Maxim.com ad were
approximately $15,000–$75,000. And he pegged the lost-
value damages for the nonexistent social-media promotion
at $90,000–$105,000.
The jury found Karma liable and awarded $75,000 in
damages. Karma moved for judgment as a matter of law,
and alternatively for a new trial, under Rule 50 of the Feder-
al Rules of Civil Procedure. The judge denied both motions
and entered judgment on the jury’s verdict.
II. Discussion
Karma challenges the judge’s summary-judgment ruling
and the denial of its posttrial motions. “We review a sum-
mary judgment de novo, asking whether the movant has
shown that there is no genuine dispute as to any material
fact.” Kopplin v. Wis. Cent. Ltd., 914 F.3d 1099, 1102 (7th Cir.
2019) (quotation marks omitted). Summary judgment is
appropriate if Karma “failed to make a sufficient showing on
an essential element of [its] case with respect to which [it]
has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986).
“We review the denial of a Rule 50 motion for judgment
as a matter of law de novo” and “consider whether the
evidence presented, combined with all reasonable inferences
permissibly drawn therefrom, is sufficient to support the
verdict when viewed in the light most favorable to the party
against whom the motion is directed.” Martin v. Milwaukee
County, 904 F.3d 544, 550 (7th Cir. 2018) (quotation marks
omitted). “Judgment as a matter of law is proper ‘if a rea-
6 Nos. 18-2583 & 18-3487
sonable jury would not have a legally sufficient evidentiary
basis to find for the party on that issue.’” Lawson v. Sun
Microsystems, Inc., 791 F.3d 754, 761 (7th Cir. 2015) (quoting
FED. R. CIV. P. 50(a)(1)). Finally, we review the denial of a
motion for a new trial for abuse of discretion. Clarett v.
Roberts, 657 F.3d 664, 674 (7th Cir. 2011). “A verdict will be
set aside as contrary to the manifest weight of the evidence
only if ‘no rational jury’ could have rendered the verdict.”
Moore ex rel. Estate of Grady v. Tuleja, 546 F.3d 423, 427 (7th
Cir. 2008).
Indiana law governs the dueling contract claims in this
diversity suit. In Indiana “the essential elements of a contrac-
tual action” are “(1) a valid and binding contract; (2) perfor-
mance by the complaining party; (3) non-performance or
defective performance by the defendant; and (4) damages
arising from defendant’s breach.” U.S. Research Consultants,
Inc. v. County of Lake, 89 N.E.3d 1076, 1086 (Ind. Ct. App.
2017) (quotation marks omitted). No one disputes that the
parties had a valid contract.
The judge concluded at summary judgment that Karma
offered only speculative evidence of its damages, an essen-
tial element of the claim. Under Indiana law “a factfinder
may not award damages on the mere basis of conjecture or
speculation.” Noble Roman’s, Inc. v. Ward, 760 N.E.2d 1132,
1140 (Ind. Ct. App. 2002). “Although mathematical certainty
is not required, the amount awarded must be supported by
evidence in the record.” Country Contractors, Inc. v. A
Westside Storage of Indianapolis, Inc., 4 N.E.3d 677, 694 (Ind.
Ct. App. 2014). Moreover, any “damages claimed for a
breach of contract must be the natural, foreseeable, and
proximate consequence of the breach.” Masonic Temple Ass'n
Nos. 18-2583 & 18-3487 7
of Crawfordsville v. Ind. Farmers Mut. Ins. Co., 837 N.E.2d 1032,
1037 (Ind. Ct. App. 2005).
Karma’s damages theory rested on its contention that
Speedway officials guaranteed sales of at least 1,500 tickets,
a promise somehow premised on their characterization of
the Speedway’s e-mail database. Because the Speedway
didn’t e-mail its entire database, the theory goes, the Maxim
party attracted far fewer than 1,500 paying customers.
To begin, the evidence of a 1,500-ticket guarantee is quite
sparse. It consists of Karma CEO Marer’s deposition testi-
mony that Speedway employees Kyle and Jarrod Krisiloff
“asked me how many [tickets] I would need to—to sell to
make this worthwhile, and I said a minimum of 1,500, and
they said, ‘No problem. We sell all of our events out. We’ll
sell it out, no problem, with our database.’”
This testimony perhaps sheds light on the parties’ expec-
tations, and if Karma had proof of damages, it might be
relevant to the question of foreseeability. But it is not evi-
dence of harm caused by the alleged breach—namely, the
Speedway’s decision to promote the event through certain
subsets of its e-mail database rather than the whole thing.
Karma offered no expert testimony or other evidence of
harm proximately caused by the allegedly insufficient e-mail
promotion. Three words of Marer’s deposition testimony—
“with our database”—provide the only link between the
alleged breach and the alleged harm.
We cannot attribute low ticket sales to the Speedway’s
alleged promotional breach merely because its employees
predicted success. Karma blames the party’s disappointing
performance on the Speedway’s e-mail strategy, but that
8 Nos. 18-2583 & 18-3487
claim doesn’t rise above the level of speculation. Karma has
no evidence indicating that the Speedway’s promotional
choices were the sole or even primary driver of the lacklus-
ter ticket sales. And the sheer number of alternative explana-
tions fatally undermines that assumption. Indiana law
doesn’t require mathematical certainty, but it does require
more than bare assertions. See Noble Roman’s, 760 N.E.2d at
1140 (explaining that proof of contract damages requires
more than “mere … conjecture”).
At bottom, Karma is making a reliance argument: be-
cause it expected the Speedway’s advertising efforts to
generate 1,500 ticket sales and relied on that expectation, the
Speedway should be forced to cover the shortfall. That
sounds like promissory estoppel, not breach of contract. But
in Indiana the existence of an “express contract” precludes
recovery under a “theory implied in law.” Keystone Carbon
Co. v. Black, 599 N.E.2d 213, 216 (Ind. Ct. App. 1992); see also
Fiederlein v. Boutselis, 952 N.E.2d 847, 857 (Ind. Ct. App. 2011)
(explaining that promissory estoppel “permit[s] recovery
where no express contract … exists”) (emphasis added). Here,
the existence of an express contract is undisputed.
Karma also relies on a strained analogy to the Maxim-
branded Super Bowl party, which brought in over $1 mil-
lion. But the fact that the Indy 500 party generated less
revenue than its Super Bowl counterpart tells us nothing
about the harm caused by the Speedway’s alleged breach.
Without more information about how the Super Bowl party
was promoted, we have no relevant point of comparison.
Even when viewed in the light most favorable to Karma,
this record at best contains only speculative evidence of
Nos. 18-2583 & 18-3487 9
damages. The judge was right to grant summary judgment
in favor of the Speedway on Karma’s claim.
Turning now to the posttrial motions on the counter-
claim, Karma argues that no reasonable jury could conclude
that Speedway officials actually anticipated that the race-
track would suffer damages if Karma failed to deliver on the
promised online advertising. The judge thought this argu-
ment rested on a fundamental misunderstanding of contract
law, and we agree. Indiana courts follow the familiar horn-
book rule that damages may not exceed the harm foreseea-
ble to the parties at the time of drafting. See Hadley v.
Baxendale (1854) 156 Eng. Rep. 145, 147–48; 9 Exch. 341. Put
differently, a “promisor is not required to compensate the
injured party for injuries which, when the contract was
made, the promisor had no reason to believe would be a
probable result of the breach.” Rogier v. Am. Testing & Eng’g
Corp., 734 N.E.2d 606, 614 (Ind. Ct. App. 2000).
Karma doesn’t argue that the Speedway’s damages were
objectively unforeseeable. It instead argues that Indiana’s
version of the Hadley rule requires at least one fact witness to
testify that he subjectively anticipated a precise sum of
damages at the time of drafting. That’s wrong on two fronts.
First, expert testimony is an accepted method for proving
contract damages. See Sony DADC U.S. Inc. v. Thompson,
56 N.E.3d 1171, 1181 (Ind. Ct. App. 2016). Second, Karma
mistakenly objects to a lack of subjective evidence when “the
test is an objective one.” Rogier, 734 N.E.2d at 614. A plaintiff
in a breach-of-contract suit doesn’t have to prove his state of
mind during contract negotiations to receive damages. He is
“entitled to present evidence of the breach and resulting
damages and have the trier of fact determine what was
10 Nos. 18-2583 & 18-3487
reasonably foreseeable at the time of contracting.” WESCO
Distrib., Inc. v. ArcelorMittal Ind. Harbor LLC, 23 N.E.3d 682,
710 (Ind. Ct. App. 2014).
The upshot is that the jury could award objectively fore-
seeable damages. Contrary to Karma’s argument, it didn’t
need to hear testimony on the subjective expectations of
Speedway officials before awarding damages. The judge
properly denied Karma’s motion for judgment as a matter of
law.
Finally, we see no abuse of discretion in the judge’s rul-
ing on Karma’s motion for a new trial. The jury had plenty
of evidence that the Speedway complied with its promise to
send a “dedicated email” to its database. Jarrod Krisiloff
testified that the database “is a collection of personal rec-
ords” and “is used for marketing efforts but is never solely
used in its entirety for any one specific cause.” He explained
that the Speedway targets its promotional messages strategi-
cally rather than sending every message to every subscriber.
And he testified that sending a dedicated promotional e-mail
to the entire “Wing and Wheel Newsletter” subscriber list
would have been an unprecedented step for the company.
Ryan Hollander, manager of direct marketing for the race-
track, testified that the Wing and Wheel Newsletter was the
“largest, most broadest reaching email … of the database.”
As the judge observed in denying the motion for a new
trial, “database” is a vague term, but the trial testimony
supplied the jury with additional context. A rational jury
could conclude that the Speedway complied with its contrac-
tual obligations by sending dedicated messages to multiple
subsets of its larger database.
Nos. 18-2583 & 18-3487 11
The record also contains sufficient evidence of Karma’s
breach. Hollander and the Krisiloff brothers testified that
Karma never ran the banner advertisement on Maxim.com
and failed to provide social-media support for the Indy 500’s
live music events. Even Karma’s CEO admitted that he
didn’t know whether this was done. Karma maintains that it
complied with the agreement by introducing Speedway
employees to personnel at Maxim who could assist in pre-
paring the promised promotional material. But Karma
agreed to deliver the advertisements, not to serve as a con-
duit between the Speedway and Maxim. What’s more, at
trial the Speedway rebutted Karma’s version of events.
When asked whether he was “ever introduced by Karma to
anyone at Maxim for social media channel postings,” Kyle
Krisiloff said, “No.” And Jared Krisiloff couldn’t recall any
introduction “for the purpose of this deliverable.” In short,
the jury’s liability verdict was adequately supported by trial
testimony.
Finally, Karma argues that it deserves either a new trial
or a remittitur because no Speedway official testified that he
actually anticipated damages stemming from the breach.
We’ve already addressed that argument’s legal shortcom-
ings. In any event, the jury’s damages award had sufficient
evidentiary support. Expert testimony valued the loss from
Karma’s failure to deliver the promised advertising at
between $115,500 and $198,000. The jury awarded less—
$75,000—and Karma hasn’t made a persuasive case for
retrial or remittitur.
AFFIRMED