Toyo Tire & Rubber Co., Ltd. et al v. Atturo Tire Corporation et al.
MEMORANDUM Opinion and Order: Toyo's motion for judgment or alternatively a new trial 751 is granted in part and denied in part and Atturo's motion for injunctive relief and other corrective actions 753 is denied. Judgment shall enter in Toyo's favor on Atturo's Count I (tortious interference with contract), Count III (defamation), Count VI (IDTPA) and Count VII (Lanham Act). Judgment shall enter in Atturo's favor on Atturo's Count II (tortious interference wi th prospective business expectancy), Count IV (unfair competition), and Count V (unjust enrichment). Accordingly, judgment shall enter in favor of Atturo Tire Corporation and against Toyo Tire Corporation and Toyo Tire U.S.A. Corp. in the amount of $10,000,000 in compensatory damages and $100,000 in punitive damages. Civil case terminated. Signed by the Honorable Mary M. Rowland on 5/10/2022. (See attached Order for further detail.)Mailed notice. (dm, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
ATTURO TIRE CORPORATION,
Case No. 14-cv-0206
TOYO TIRE CORPORATION, et al.,
Judge Mary M. Rowland
MEMORANDUM OPINION AND ORDER
Toyo brought this lawsuit alleging that Defendant Atturo Tire Corporation
infringed Toyo’s Open Country Mountain Tires trade dress. Atturo responded with
seven counterclaims based on an action Toyo brought in 2013 before the United
States International Trade Commission (ITC). With only Atturo’s counterclaims
remaining, the case proceeded to a jury trial in September 2021. Before the Court are
the parties’ post-trial motions. For the reasons stated below, Toyo’s motion for
judgment or alternatively a new trial  is granted in part and denied in part and
Atturo’s motion for injunctive relief and other corrective actions  is denied.
The following summarizes the background relevant to the present motions. 1 In
2016, Toyo moved for summary judgment on all of Atturo’s counterclaims, arguing
that the counterclaims arose out of Toyo’s actions before the ITC (ITC Investigation
No. 337-TA-894) and were protected from suit by the Noerr-Pennington doctrine.
This order assumes familiarity with the long procedural history of this case filed in January 2014.
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Atturo bases its counterclaims on provisions in settlement agreements that Toyo
negotiated restricting the ITC respondents’ ability to purchase and distribute
Atturo’s tire, the Trail Blade M/T (hereinafter, “Atturo Provisions”). On March 30,
2017, the Court denied Toyo’s summary judgment motion finding that the NoerrPennington doctrine did not immunize its conduct. (Dkt. 362, “Noerr-Pennington
Order”). The Court explained that Atturo was not among the named respondents in
the ITC Action, nor were any Atturo tires listed among the allegedly infringing tires
in Toyo’s complaint. Id. On February 9, 2021, the Court entered summary judgment
dismissing Toyo’s claims for Lanham Act trade dress infringement and violation of
the Illinois Deceptive Trade Practices Act, 815 Ill. Comp. Stat. 510/2 (IDTPA). (Dkt.
661). The Court ruled that Toyo’s asserted trade dress is functional and Toyo failed
to establish secondary meaning. The Court also denied in large part Toyo’s motion for
summary judgment on Atturo’s counterclaims. (Dkt. 660).
The Court scheduled a jury trial on Atturo’s counterclaims for September 2021.
Before trial the Court ruled on three Daubert motions and numerous motions in
limine. Trial began September 16, 2021 and the jury entered a verdict on September
22, finding in favor of Atturo on six claims and in favor of Toyo on the Lanham Act
claim. (Dkts. 740, 744). 2 The jury awarded Atturo $10 million in compensatory
damages and $100 million in punitive damages.
Toyo orally moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(a). The
Court deferred consideration of that motion pending submission of the case to the jury under Rule
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At issue in the post-trial motions are Atturo’s counterclaims under Illinois state
law for: tortious interference with contract (Count I), tortious interference with
prospective business expectancy (Count II), defamation (Count III), unfair
competition (Count IV), unjust enrichment (Count V), and violation of the IDTPA
Absolute Litigation Privilege and Noerr-Pennington Doctrine
Toyo seeks judgment in its favor based on the absolute litigation privilege and
a. Absolute Litigation Privilege
The Court finds that judgment is warranted in Toyo’s favor on Counts III
(defamation) and VI (IDTPA) because the Illinois absolute litigation privilege bars
The Court first briefly recounts the procedural history relevant to this defense. In
March 2015, Judge Lee denied Toyo’s motion to dismiss Atturo’s defamation
counterclaim . In response to Toyo raising the absolute litigation privilege, the
Judge explained that the privilege is an affirmative defense and he could not rule
that the defamation claim was barred at the pleading stage. 3 In August 2020, Toyo
The Court rejects Atturo’s argument that Toyo waived this defense. Toyo raised the absolute
litigation privilege in March 2014 and again on summary judgment in 2020 (see Dkts. 29, 606). Atturo
has been on notice that Toyo was relying on this defense since the start of this litigation. See Garofalo
v. Village of Hazel Crest, 754 F.3d 428, 436 (7th Cir. 2014) (“[T]he failure to plead an affirmative
defense in the answer works a forfeiture only if the plaintiff is harmed by the defendant's delay in
asserting it.”) (cleaned up). In addition, Toyo raised the absolute litigation privilege in its oral Rule 50
motion (see Dkt. 736).
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moved for partial summary judgment, in part based on the absolute litigation
privilege. (Dkt. 611). Toyo argued that the Court should grant it summary judgment
on Atturo’s defamation counterclaim as well as its other counterclaims to the extent
they stemmed from the statements in the ITC settlement agreements. (Id. at 14–15). 4
In declining summary judgment based on the absolute litigation privilege, the Court
relied too heavily on the Noerr-Pennington Order’s finding that the agreement
between Toyo and the ITC respondents with regard to Atturo was an action taken by
the parties themselves, unrelated to the ITC proceeding. (Dkt. 660 at 12—13). On
further consideration, the Court finds that the absolute litigation privilege protects
Toyo’s conduct from Atturo’s defamation and IDTPA claims.
As a preliminary matter, the Court rejects Atturo’s contention that the NoerrPennington Order is the “law of the case” and the Court must continue to find that
the absolute litigation privilege does not apply. (Dkt. 754 at 39—40). The law of the
case doctrine is “not hard and fast.” Kathrein v. City of Evanston, 752 F.3d 680, 685
(7th Cir. 2014) (quoting Tice v. Am. Airlines, Inc., 373 F.3d 851, 854 (7th Cir. 2004)). 5
Both the February 2021 and Noerr-Pennington orders were denials of summary
judgment. Generally such denials mean only “that the case should go to trial.” See
In the summary judgment briefing, none of the case law cited by Toyo applied the absolute litigation
privilege to the claims at issue in this case other than defamation. See Malevitis v. Friedman, 753
N.E.2d 404, 407 (Ill. App. Ct. 2001) (addressing defamation and false light claims); Johnson v. Johnson
& Bell, Ltd., 7 N.E.3d 52, 56 (Ill. App. Ct. 2014) (finding privilege applied to claims of invasion of
privacy, negligent infliction of emotional distress, and breach of contract); O’Callaghan v. Satherlie,
36 N.E.3d 999, 1002 (Ill. App. Ct. 2015) (intentional infliction of emotional distress and strictly liability
for ultrahazardous activity); Krueger v. Lewis, 834 N.E.2d 457, 459 (Ill. App. Ct. 2005) (defamation).
In Curran v. Kwon, cited by Atturo, the Seventh Circuit ruled that “the denial of summary judgment
. . . was not the law of the case.” 153 F.3d 481, 487 (7th Cir. 1998) (emphasis added).
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Switzerland Cheese Ass’n, Inc. v. E. Horne’s Mkt., Inc., 385 U.S. 23, 25 (1966). The
Seventh Circuit has distinguished summary judgment motions raising factual
questions based on the sufficiency of the evidence from those raising a question of
law. Chemetall GMBH v. ZR Energy, Inc., 320 F.3d 714, 719 (7th Cir. 2003). See also
Young v. Ill. Dep’t of Revenue, 601 F. Supp. 2d 1055, 1057 (C.D. Ill. 2009) (explaining
that after trial “courts are free to review questions of law addressed in pre-trial
motions”); Thompson v. Frank, 730 N.E.2d 143, 145 (Ill. App. Ct. 2000) (“Whether an
allegedly defamatory statement is subject to an absolute privilege is a question of
In Illinois an attorney or private party to litigation is “absolutely privileged to
publish defamatory matter concerning another in communications preliminary to a
proposed judicial proceeding, or in the institution of, or during the course and as a
part of, a judicial proceeding in which he participates as counsel, if it has some
relation to the proceeding.” Bedin v. Nw. Mem’l Hosp., 2021 IL App (1st) 190723, ¶
39, appeal denied, No. 127257, 2022 WL 803425 (Ill. Jan. 26, 2022) (quoting
Restatement (Second) of Torts § 586 (1977)). Although the privilege applies to a
narrow class of communications, the defamatory matter in the proposed or pending
proceeding need only have “some relation to the proceeding.” Kurczaba v. Pollock, 742
N.E.2d 425, 438 (Ill. App. Ct. 2000) (emphasis added); Johnson, 7 N.E.3d at 56. “[T]he
pertinency requirement is not strictly applied.” Bedin, 2021 IL App (1st) 190723, at
¶ 40 (citation omitted).
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Here the defamatory matter was contained in settlement agreements between
Toyo and ITC respondents which were submitted to the ITC. Atturo does not argue
that there were any defamatory statements beyond those in the settlement
agreements or that Toyo disseminated these statements outside of the ITC Action.
Toyo also argues, and Atturo does not dispute, that the statements were preliminary
to and relate to this litigation, in which Toyo sued Atturo for trade dress
Thus given that the statements need only have some relation to the proceeding
and courts “resolve all doubts in favor of pertinency,” Jackson v. Walgreens Co., 2021
IL App (1st) 201261-U, ¶ 32, the Court finds that Toyo’s statements in the ITC
settlement agreements that it believed that Atturo was infringing had some relation
to the ITC Action and to the 2014 complaint in this case.
i. Defamation and IDTPA claims (Counts III and VI)
In light of the above, the absolute litigation privilege bars Atturo’s defamation
claim. It is well-settled in Illinois that the privilege applies to defamation claims. See
Johnson, 7 N.E.3d 52. Courts have also applied the absolute litigation privilege to
deceptive trade practices claims. See PSN Ill., Inc. v. Ivoclar Vivadent, Inc., No. 04 C
7232, 2005 WL 2347209, at *6 (N.D. Ill. Sept. 21, 2005) (finding that privilege
precluded deceptive trade practices claim based on statements made in the course of
litigation); PolyOne Corp. v. Lu, No. 14 CV 10369, 2018 WL 4679577, at *15 (N.D. Ill.
Sept. 28, 2018) (applying privilege to commercial disparagement and IDTPA claims).
Similar to the defamation claim, as seen in the Jury Instruction in this case (Dkt.
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741), the IDTPA claim required that Toyo made “false and misleading statements.”
(Id. at 23). 6
Applying the privilege to Atturo’s defamation and IDTPA claims furthers the
purpose of the privilege: “Free access to the courts as a means of settling private
claims or disputes is a fundamental component of our judicial system, and ‘ * * *
courts should be open to litigants for the settlement of their rights without fear of
prosecution for calling upon the courts to determine such rights.’” Lyddon v. Shaw,
372 N.E.2d 685, 690 (Ill. App. Ct. 1978) (citation omitted). 7
ii. Other claims (Counts I, II, IV, and V)
The absolute litigation privilege does not bar Atturo’s four other claims. On Count
I, tortious interference with contract, a court from this district recently observed that
no Illinois court had “weighed in on whether the absolute litigation privilege applies
to claims for tortious interference with contract.” GC Am. Inc. v. Hood, No. 20-CV03045, 2022 WL 910556, at *6 (N.D. Ill. Mar. 29, 2022). See also Act II Jewelry, LLC
v. Wooten, No. 15 C 6950, 2016 WL 4011233, at *6 (N.D. Ill. July 27, 2016) (declining
to extend the absolute litigation privilege to bar tortious interference with contract
and with prospective economic advantage claims). For Count II, Illinois courts “have
not extended the [absolute litigation] privilege to claims for intentional interference
Atturo itself proposed this jury instruction language for the IDTPA claim. (Dkt. 685 at 59).
Toyo’s ITC complaint, which sought redress from a number of companies for infringement of its
intellectual property in its tires, did not specifically name Atturo or its tires. Atturo says this conduct
is anticompetitive. The litigation privilege in Illinois, however, permits publishing defamatory matter
in a proposed or pending judicial proceeding if it bears some relation to the proceeding without regard
for the party’s motive or the unreasonableness of its conduct. Bedin, 2021 IL App (1st) 190723, ¶¶ 39,
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with prospective economic advantage.” Zdeb v. Baxter Int’l, Inc., 697 N.E.2d 425, 430
(Ill. App. Ct. 1998) (emphasis added); see also Act II Jewelry, LLC, 2016 WL 4011233,
at *6 (rejecting argument that privilege should bar tortious interference with
prospective economic advantage claim). No Illinois court has applied the privilege to
tortious interference claims.
Nor has Toyo cited any Illinois case law applying this privilege to unfair
competition or unjust enrichment. To the contrary, Illinois courts have cautioned that
because the privilege is absolute, its scope is “necessarily narrow,” Stein v. Krislov,
999 N.E.2d 345, 356 (Ill. App. Ct. 2013), and district courts generally have declined
to extend the privilege absent Illinois authority, see Del. Motel Assocs., Inc. v. Cap.
Crossing Servicing Co. LLC, No. 17 C 1715, 2019 WL 1932586, at *4 (N.D. Ill. May 1,
2019) (declining to extend Illinois’ absolute litigation privilege to fraud claims);
Sanders v. JGWPT Holdings, Inc., No. 14 C 9188, 2016 WL 4009941, at *11 (N.D. Ill.
July 26, 2016) (same).
Indeed this is not a case in which these other claims merely recast the defamation
claim. The tortious interference, unfair competition, and unjust enrichment claims
are not directed only at the allegedly defamatory statements Toyo made; they are
based on Toyo’s conduct as it relates to Atturo’s customer Dunlap & Kyle (D&K) and
Toyo’s requirement that it never sell, import, or manufacture the Atturo tire.
Because the absolute litigation privilege bars Atturo’s defamation and IDTPA
claims, judgment will enter in Toyo’s favor on those claims. However the Court finds
that the privilege does not bar the four other claims (Counts I, II, IV, and V).
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b. Noerr-Pennington Doctrine
Next the Court addresses Toyo’s argument that the Noerr-Pennington doctrine
immunizes it from liability. That doctrine “extends absolute immunity under the
antitrust laws to businesses and other associations when they join together to petition
legislative bodies, administrative agencies, or courts for action that may have
anticompetitive effects.” Mercatus Grp., LLC v. Lake Forest Hosp., 641 F.3d 834, 841
(7th Cir. 2011) (cleaned up). “Noerr–Pennington has been extended beyond the
antitrust laws, where it originated, and is today understood as an application of the
first amendment’s speech and petitioning clauses.” New W., L.P. v. City of Joliet, 491
F.3d 717, 722 (7th Cir. 2007). The scope of Noerr–Pennington immunity depends on
the “source, context, and nature of the competitive restraint at issue.” Allied Tube &
Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499 (1988). See also Indian Head,
Inc. v. Allied Tube & Conduit Corp., 817 F.2d 938, 945 (2d Cir. 1987) (citing the
maxim that exemptions from the antitrust laws must be construed narrowly), aff’d,
486 U.S. 492 (1988).
Toyo argues its statements in the ITC settlement agreements are immune because
Noerr-Pennington protects not only statements in litigation, “but also statements and
actions taken in enforcing legal rights, such as pre-litigation assertions of intellectual
property rights.” (Dkt. 752 at 17). In the Noerr-Pennington Order, the Court focused
on the Atturo Provisions, ruling that Toyo’s submission of those provisions “as
attachments to its motions to terminate the ITC proceedings did not constitute core
petitioning activity,” and also “were not incidental to Toyo’s petitioning activity before
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the ITC.” (Noerr-Pennington Order at 13, 14). The Court relied on In re Brand Name
Prescription Drugs Antitrust Litig., which explained that the “doctrine does not
authorize anticompetitive action in advance of government’s adopting the industry’s
anticompetitive proposal. The doctrine applies when such action is the consequence
of legislation or other governmental action, not when it is the means for obtaining
such action.” 186 F.3d 781, 789 (7th Cir. 1999). In United Airlines, Inc. v. U.S. Bank
N.A., the Seventh Circuit explained that “the Noerr–Pennington doctrine cannot be
used to shelter joint activity . . . independent of any decision by a court or agency.”
406 F.3d 918, 925 (7th Cir. 2005) (emphasis added). See also A.D. Bedell Wholesale
Co. v. Philip Morris Inc., 263 F.3d 239, 251 (3d Cir. 2001) (“Passive government
approval is insufficient.”).
Toyo criticizes the Noerr-Pennington Order for focusing on the Atturo Provisions
when the entire settlement agreements should be viewed as legitimate petitioning
activity. (Dkt. 752 at 19). However, “because immunized conduct cannot be
aggregated with nonimmunized conduct without nullifying the immunity, it is
necessary to identify protected and unprotected conduct.” In re Humira
(Adalimumab) Antitrust Litig., 465 F. Supp. 3d 811, 828 (N.D. Ill. 2020) (citing
Mercatus Grp., 641 F.3d at 839); see also Allied Tube, 486 U.S. at 499 (explaining that
the validity of efforts to influence governmental action “varies with the context and
nature of the activity.”).
The Court explained before and Toyo does not dispute that the settlement
agreements were private agreements effective upon execution and that the ITC did
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not participate in their drafting or negotiation. (Noerr-Pennington Order at 12, 14).
Judge Lee noted that the court was not commenting on the propriety of Toyo’s ITC
action as a whole. (Id. at 11, n.6). Toyo points to the ITC Section 337 Mediation
Program brochure (PX-19) but there is no evidence that Toyo and the respondents
participated in the ITC Mediation Program. 8 And Toyo does not argue that including
Atturo, its tire, or the Atturo Provisions in Toyo’s motions to terminate were
necessary to terminate the ITC Action. That is the basis for Judge Lee’s
determination that the restraint on Atturo here resulted from Toyo’s private action.
See Garmon Corp. v. Vetnique Labs, LLC, No. 19 C 8251, 2020 WL 3414983, at *3
(N.D. Ill. June 22, 2020) (explaining that Noerr-Pennington immunity does not apply
“where a restraint on trade ‘has resulted from private action’”) (quoting Allied Tube,
486 U.S. at 499); Rubloff Dev. Grp., Inc. v. SuperValu, Inc., 863 F. Supp. 2d 732, 743
(N.D. Ill. 2012) (“Noerr–Pennington does not apply when conduct is not geared toward
the petitioning of government.”) (citing Mercatus, 641 F.3d at 850–851). 9
Toyo also contends that the ITC judge “wrote an opinion about” the Atturo provisions. (Dkt. 752 at
19). The Court acknowledges that the settlement agreements are approved by an administrative law
judge (ALJ) at the ITC. However, it is a stretch to characterize the ALJ’s approval as an opinion
regarding the Atturo provisions. The ALJ’s December 13, 2013 “Initial Determination Granting Motion
to Terminate Investigation as to Respondents Omni and D&K” referred to the settlement agreements
and the ITC staff response letter (which addressed Atturo’s November 20, 2013 Letter), but the ALJ
did not address Atturo’s concerns. Rather the ALJ found that terminating the investigation would not
unduly burden, among other things, “public health and welfare” and “competitive conditions in the
United States economy.” (DX-93).
This Court previously distinguished Toyo Tire & Rubber Co. v. CIA Wheel Grp., No.
SACV15246JLSDFMX, 2015 WL 4545187 (C.D. Cal. July 8, 2015). Importantly, the CIA court found
“CIA does not adequately allege that the [ITC] litigation by Toyo underlying CIA's … counterclaims
fall within the ‘sham exception’ to the Noerr–Pennington doctrine.” Id. at *3. This Court agrees with
Toyo’s discussion of the “sham” exception. The Court is not relying on the “sham” exception and finds
it does not apply here. Rather, the Court is not upsetting Judge Lee’s finding that the Atturo Provisions
“did not constitute core petitioning activity,” and “were not incidental to Toyo’s petitioning activity
before the ITC” (Noerr-Pennington Order at 13, 14). See also United Tactical Sys., LLC v. Real Action
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Judge Lee’s finding is a narrow understanding of the Noerr Pennington doctrine.
But the Court will not revisit its prior ruling that Atturo’s counterclaims are not
barred by the Noerr-Pennington doctrine.
Intellectual Property Privilege and Public Interest in Settlement
At trial, the Court reserved these equitable defenses for itself. (Dkts. 700, 746). In
considering whether these defenses require dismissal of Atturo’s claims, the Court is
bound by the jury’s explicit findings of fact and findings necessarily implicit in the
verdict. Sunny Handicraft (H.K.) Ltd. v. Envision This!, LLC, No. 14 C 1512, 2019
WL 4735459, at *2 (N.D. Ill. Sept. 27, 2019); LG Elecs. U.S.A., Inc. v. Whirlpool Corp.,
790 F. Supp. 2d 708, 722 (N.D. Ill. 2011).
a. Intellectual Property Privilege
Toyo argues that the intellectual property privilege applies to all of Atturo’s claims
and that the public interest favors dismissing those claims. In a motion in limine
ruling, this Court ruled that Toyo could rely on this privilege, described by courts as
a party’s ability to rely on its good faith belief in its intellectual property interest to
justify its tortious interference. (see Dkt. 711). Atturo contends that: (1) for Counts I–
II, the Court already applied this privilege by using burden-shifting language in
Toyo’s favor in the Jury Instructions; and (2) for Counts IV and V, the Court already
ruled that the privilege does not apply.
The Court first addresses whether the intellectual property privilege applies to
Counts IV and V (unfair competition and unjust enrichment). The Court previously
Paintball, Inc., No. 14-4050, slip. op. at 74 (N.D. Cal. July 2, 2018) (“Real Action fails to rebut CounterDefendants’ evidence that the Indiana Action was not a sham proceeding.”).
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ruled that Toyo had “not cited authority that this privilege applies in Illinois to claims
beyond tortious interference claims.” (Dkt. 738). The sole unfair competition case on
which Toyo now relies is Am. Broadcasting Co. v. Maljack Prods., 34 F. Supp. 2d 665
(N.D. Ill. 1998), where the court applied the privilege to tortious interference and
unfair competition claims. In the Illinois Supreme Court case discussing qualified
privilege generally, HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc., the
court explained that “[c]ourts will recognize a privilege in intentional interference
with contract cases where the defendant was acting to protect an interest which the
law deems to be of equal or greater value than the plaintiff’s contractual rights.” 131
545 N.E.2d 672, 677 (Ill. 1989) (emphasis added). Am. Broadcasting thus extended
As discussed above, however, this Court is not inclined to extend state law
privileges absent guidance from the Illinois Supreme Court or Illinois appellate
courts. See Gust K. Newberg Const. Co. v. E.H. Crump & Co., 818 F.2d 1363, 1368
(7th Cir. 1987) (“Respect for state courts as the primary expositors of state law
counsels restraint by federal court in announcing new state law principles”) (citation
omitted); Phillips v. WellPoint Inc., No. 10-CV-00357-JPG, 2012 WL 6111405, at *9
(S.D. Ill. Dec. 10, 2012) (“The Court is mindful that in applying state law, federal
courts must be conservative, not innovative.”), aff’d sub nom. Myrick v. WellPoint,
Inc., 764 F.3d 662 (7th Cir. 2014). Finally, Toyo does not cite any authority applying
this privilege to unjust enrichment claims.
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As for Counts I–II, Toyo contends that this privilege should defeat Atturo’s claims
for interference with contract. However, the Court already applied the intellectual
property privilege to these claims by using burden-shifting language in Toyo’s favor
in the Jury Instructions. The instructions required the jury to find that the
interference was “intentional and unjustified,” and defined those terms. Toyo relies
on Act II Jewelry, LLC v. Wooten, in which the undisputed facts showed that Act II’s
communications related to protecting a legitimate litigation-related interest and
defendants made no showing that the privilege was abused, so the court granted
summary judgment in Act II’s favor. 318 F. Supp. 3d 1073, 1084–85 (N.D. Ill. 2018).
Here, Toyo did not raise the intellectual property privilege when it moved for
summary judgment in 2020. And as the court in Act II acknowledged, generally abuse
of privilege presents a fact question. Id. at 1084. The Court finds no reason to reverse
the jury’s finding that Toyo’s interference was not justified. As Atturo points out, the
jury found Toyo’s conduct was “intentional,” “unjustified,” and “deceptive,” “shock[ed]
judicial sensibilities or violate[d] standards of commercial morality” and “violated
fundamental principles of justice, equity, and good conscience.” (Jury Instructions at
pp. 17, 18, 20–22). Thus considering this privilege as an equitable defense, consistent
with the jury’s verdict, the Court cannot find that Toyo’s belief in its intellectual
property justified its interference with Atturo’s business.
For these reasons the Court finds that the intellectual property privilege does not
require dismissal of Atturo’s remaining claims.
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b. Public Interest in Settlement
Toyo argues that the affirmative defense of the public interest in promoting ITC
settlements requires judgment in its favor. Illinois’s public policy does “favor
settlement prior to trial.” King Koil Licensing Co. v. Harris, 84 N.E.3d 457, 472 (Ill.
App. Ct. 2017). However the cases cited by Toyo discussed, for example, the
admissibility of evidence of settlement offers or circumstances under which a court
can enforce a settlement agreement. (Dkt. 752 at 12–14). They did not rule that the
defense barred or required dismissal of a claim. 10 Accordingly the Court will not
dismiss Atturo’s claims on this basis.
Motion for JMOL
Toyo seeks judgment as a matter of law arguing that Atturo failed to submit
substantial evidence supporting both liability and damages. Under Rule 50, judgment
as a matter of law is proper only if “a reasonable jury would not have a legally
sufficient evidentiary basis to find as the actual jury did.” Ruiz-Cortez v. City of
Chicago, 931 F.3d 592, 601 (7th Cir. 2019) (internal quotation marks omitted)
(quoting Fed. R. Civ. P. 50(a)). “This is a high bar.” Id. The court must “give the
nonmovant the benefit of every inference while refraining from weighing . . . the
credibility of the evidence and testimony.” Id. In ruling on a Rule 50 motion following
a jury verdict, a court reviews the entire record and “disregard[s] all evidence
In addition, at trial the jury heard significant testimony about ITC procedure and settlements.
Indeed in response to Atturo’s Daubert motion seeking to completely bar Toyo’s ITC expert from
testifying, this Court ruled in Toyo’s favor that testimony about ITC practice and procedure was
relevant and would provide the jury needed context and information to understand the evidence or
determine a factual issue. (Dkt. 690).
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favorable to the movant that the jury is not required to believe.” Id. It is appropriate
to overturn a jury verdict only if “no rational jury could have found for the
Courts construe “the trial evidence strictly in favor of the party who prevailed
before the jury.” Roberts v. Alexandria Transportation, Inc., 968 F.3d 794, 798 (7th
Cir. 2020) (cleaned up). “It takes a lot to set aside a jury verdict.” Valdivia v. Twp.
High School Dist. 214, 942 F.3d 395, 396 (7th Cir. 2019).
i. Count I – tortious interference with contract
In Illinois tortious interference with contract requires: “(1) the existence of a valid
and enforceable contract between the plaintiff and another; (2) the defendant’s
awareness of this contractual relation; (3) the defendant’s intentional and unjustified
inducement of a breach of the contract; (4) a subsequent breach by the other, caused
by the defendant's wrongful conduct; and (5) damages.” HPI Health Care Servs., 545
N.E.2d at 677 (internal citations and quotations omitted). Atturo argues that it had
contracts with D&K in the dealer agreements (PX4 and PX5). Toyo contends that
there was no breach because the agreements could be cancelled before shipment.
Atturo does not dispute that the agreements were terminable at will.
Under Illinois law, “where the contract is one that can be terminated at-will by
either party, the cause of action is classified as one for tortious interference with a
Bommiasamy v. Conway, 2020 IL App (1st) 190339-U, ¶ 37 (collecting cases). As an
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Illinois appellate court explained, “[a] relationship created by a contract that is
terminable at will is sufficient to support a claim of interference with prospective
economic advantage because such a relationship ‘will presumptively continue in effect
so long as the parties are satisfied.’” The Film & Tape Works, Inc. v. Junetwenty
Films, Inc., 856 N.E.2d 612, 619 (Ill. App. Ct. 2006); see also Ctr. for Dermatology &
Skin Cancer, Ltd. v. Humana Ins. Co., No. 11 C 6837, 2012 WL 473133, at *3 (N.D.
Ill. Feb. 8, 2012) (inducement of cancellation of terminable at will contracts did not
state a claim of tortious interference with contract in Illinois). 11
The Court therefore finds that overturning the jury’s verdict in favor of Atturo on
Count I is warranted.
ii. Count II – tortious interference with business expectancy
In Illinois, tortious interference with prospective business expectancy requires:
“(1) [plaintiff’s] reasonable expectation of entering into a valid business relationship;
(2) the defendant’s knowledge of the plaintiff’s expectancy, (3) purposeful
interference by the defendant that prevents the plaintiff’s legitimate expectancy
from ripening into a valid business relationship; and (4) damages to the plaintiff
resulting from such interference.” Bullet Express, Inc. v. New Way Logistics, Inc., 70
N.E.3d 251, 263 (Ill. App. Ct. 2016) (cleaned up). Toyo argues that there was no
evidence that it knew of Atturo’s expected business relationship with D&K or that
Atturo relies on Speakers of Sport, Inc. v. ProServ, Inc., 178 F.3d 862 (7th Cir. 1999), in which the
Seventh Circuit explained that in Illinois a tortious interference action can arise even if the contract
is at will. However that case pre-dates more recent Illinois case law as well as Cody v. Harris, 409 F.3d
853, 859 (7th Cir. 2005) (recognizing that inducing the cancellation of an at-will contract is at most
interference with a prospective economic advantage).
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the expectation was reasonable, and Atturo did not prove Toyo’s conduct was
Atturo responds that the jury had a sufficient basis to find the knowledge
element satisfied. Atturo points to the parties’ stipulation that in October 2013
Toyo’s ITC attorney, Dan Smith, and Atturo president Mathis had a telephone
conversation; Mathis’ testimony that he told Mr. Smith that Toyo’s settlement
agreements were interfering with Atturo’s business and business relationships; the
parties’ stipulation that Toyo’s attorney communicated with several Toyo employees
about this call including Toyo’s general counsel who was the lead in making
settlement decisions in Toyo’s ITC action; and that Toyo’s general counsel
subsequently signed the settlement agreements including the one with D&K (PX
26). Toyo points out that Mathis did not testify that he identified D&K specifically
in his conversation with Mr. Smith. Considering the record as a whole, however, and
giving Atturo “the benefit of every inference” without weighing “the credibility of
the evidence and testimony,” Ruiz-Cortez, 931 F.3d at 601, the Court finds that a
rational juror would have a legally sufficient basis to find that Toyo knew of Atturo’s
business expectancy with D&K.
As to the reasonableness of the expectation, Atturo argues that the evidence at
trial showed that Atturo expected D&K to become Atturo’s biggest customer and
Atturo’s Sales Director for North America, George Lugo, who already had a 12-year
relationship with D&K, intended for the Atturo Trail Blade M/T to be a core D&K
product. In addition D&K corporate representative Dennis King stated that D&K
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wanted to do business with Atturo and sell the Trail Blade M/T and if it was not for
the Toyo-D&K Settlement Agreement, D&K possibly would have sold the Trail Blade
M/T at more locations and would have sold other Atturo tires. Toyo points to other
portions of King’s testimony and contends that the evidence amounted to only a “onesided expectation of future sales.” (Dkt. 756 at 26). As to the element that Toyo’s
conduct was “unjustified,” Toyo contends that its “only conceivable motive” was
protecting its IP. But it was the jury’s role to weigh the evidence, and the Court
construes the evidence “strictly in favor of the party [Atturo] who prevailed before the
jury.” Roberts, 968 F.3d at 798. 12
Finally, Toyo argues that Atturo had to prove “bad faith” for each claim. But Toyo
cites no Illinois law indicating that tortious interference, unfair competition, or unjust
enrichment claims require proof of “bad faith.” 13 To the extent that Toyo contends
that the jury should have been instructed on the IP privilege, that argument is
addressed below. Accordingly, the jury had a legally sufficient evidentiary basis to
find for Atturo on Count II.
Toyo relies on cases such as Instant Tech., LLC v. DeFazio, 40 F. Supp. 3d 989 (N.D. Ill. 2014) and
CD Consortium Corp. v. Saint John Cap. Corp., 2021 IL App (1st) 201159-U, which were decided at
different procedural postures and not resolved by a jury.
To the contrary, when a privilege applies, case law indicates that “without justification” has the
same meaning as “actual malice.” J. Eck & Sons, Inc. v. Reuben H. Donnelley Corp., 572 N.E.2d 1090,
1093 (Ill. App. Ct. 1991). In Koehler v. Packer Grp., Inc., the court approved of the lower court’s decision
to reject defendants’ proposed jury instruction that would require the jury to find that defendants
“acted with actual malice”; instead the court instructed the jury that for tortious interference, the jury
needed to find defendants “intentionally and without justification induced a contractual breach.” 2016
IL App (1st) 142767, ¶ 48, 53 N.E.3d 218, 238.
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iii. Count IV – unfair competition
The Jury Instructions for the unfair competition claim explained that Atturo
asserted that Toyo conditioned the settlement of unrelated patent claims on
agreements by other companies in the tire industry to permanently cease and desist
from selling the Atturo Trail Blade M/T tire, and therefore required the jury to find
by a preponderance of the evidence that Toyo’s actions “shock judicial sensibilities or
violate standards of commercial morality.” (Jury Instructions at 20). See Wilson v.
Electro Marine Sys., Inc., 915 F.2d 1110, 1118 (7th Cir. 1990); see also Advanced
Physicians, S.C. v. ATI Holdings, LLC, 2015 IL App (1st) 141073-U, ¶ 36 (explaining
that in Illinois the “theory of common law unfair competition covers a wide range of
Toyo argues that Atturo’s failure to prove interference requires the Court to
overturn the jury’s verdict on this claim. As explained above the Court finds that the
jury had a legally sufficient evidentiary basis to find for Atturo on its claim for
tortious interference with business expectancy. Accordingly Toyo provides no reason
for the Court to overturn the jury’s verdict on Count IV.
iv. Count V – unjust enrichment
Finally, the Jury Instructions for the unjust enrichment claim explained that
Atturo asserted that Toyo conditioned the settlement of unrelated patent claims on
agreements by other companies in the tire industry to permanently cease and desist
from selling the Atturo Trail Blade M/T tire, so the jury was asked to decide if Atturo
proved by a preponderance of the evidence that Toyo was unjustly enriched. (Jury
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Instructions at 21). “To prevail on a claim for unjust enrichment, a plaintiff must
prove that the defendant retained a benefit to the plaintiff's detriment, and that
defendant’s retention of the benefit violates fundamental principles of justice, equity,
and good conscience.” Zahran v. Republic Bank of Chi., 2019 IL App (2d) 170648-U,
¶ 59 (cleaned up). Unjust enrichment “does not require fault or illegality on the part
of the defendant; the essence of the cause of action is that one party is enriched and
it would be unjust for that party to retain the enrichment.” Id.
Toyo argues that unjust enrichment is not an independent cause of action under
Illinois law. See Mashallah, Inc. v. W. Bend Mut. Ins. Co., 20 F.4th 311, 324 (7th Cir.
2021). Even so, here the underlying unlawful conduct is tortious interference and
unfair competition. Those claims survive this motion so that is not a reason to dismiss
the unjust enrichment claim.
Toyo also asks the Court to overturn the jury verdict because there was no
evidence that Atturo improperly retained any benefit. Not true. Toyo’s corporate
representative witness and former president, Roy Bromfield, testified that Toyo
“benefited” from including Atturo in the ITC settlement agreements. (Dkt. 736 at
696). Atturo president Mathis testified that the agreements benefited Toyo because
they permanently constrained competition in the market. (Dkt. 728 at 201). The jury
had a legally sufficient evidentiary basis to find for Atturo and Toyo has not met the
high bar to overturn the jury verdict on Count V.
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Having found the jury’s verdict stands as to the claims for tortious interference
with prospective business expectancy, unfair competition and unjust enrichment, the
Court turns to the question of damages.
The Court will not overturn the jury’s compensatory damages award. “The amount
of damages to be assessed is a question of fact for the jury to determine.” McIntyre v.
Balagani, 2019 IL App (3d) 140543-U, ¶ 81 (citation omitted). “[W]hen a federal jury
awards compensatory damages in a state-law claim, state law determines whether
that award is excessive.” Rainey v. Taylor, 941 F.3d 243, 253 (7th Cir. 2019) (citation
omitted). In Illinois, remittitur is appropriate “only when a jury's award falls outside
the range of fair and reasonable compensation, appears to be the result of passion or
prejudice, or is so large that it shocks the judicial conscience.” Id. (cleaned up).
Atturo’s expert Brian M. Daniel opined at trial that Atturo suffered lost profits in
the amount of approximately $11.5 million from the loss of its business relationship
with D&K. (Dkt. 733 at 588). Toyo argues that Mr. Daniel’s opinion on lost profits
cannot stand. The Court ruled on Toyo’s Daubert motion seeking to bar Mr. Daniel’s
testimony before trial, finding his opinion about lost profits reliable. (Dkt. 687). Many
of Toyo’s arguments rehash its Daubert motion. Toyo had the opportunity to, and did,
cross-examine Mr. Daniel at trial. Toyo also made the decision not to call its damages
expert at trial. (Dkt. 683 at 11). Further, as Atturo argues, in addition to Mr. Daniel,
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Atturo presented testimony about damages from other witnesses at trial. 14 Toyo’s
cited cases do not support striking the jury’s compensatory award in this case.
Haslund v. Simon Prop. Grp., Inc., 378 F.3d 653 (7th Cir. 2004), for example, involved
a bench trial and did not involve expert testimony.
The jury awarded Atturo $10 million in compensatory damages, lower than
Atturo’s expert’s damages estimate. Toyo argues that the fact that the jury did not go
with the $11.5 million number means there is “no basis for” the $10 million award.
This is not persuasive: “the court looks only at the ‘bottom line,’ to make sure [the
award is] reasonable, and doesn't worry about the mental process that led there.” Tuf
Racing Prod., Inc. v. Am. Suzuki Motor Corp., 223 F.3d 585, 591 (7th Cir. 2000). The
Court will not second-guess the jury’s compensatory damages award.
For punitive damages, however, other considerations come into play. Punitive
damages “are not awarded as compensation, but serve instead to punish the offender
and to deter that party and others from committing similar acts of wrongdoing in the
future. . . . Because punitive damages are penal in nature, they are not favored in the
law, and the courts must take caution to see that punitive damages are not
improperly or unwisely awarded.” Lawlor v. N. Am. Corp. of Ill., 983 N.E.2d 414, 430
(Ill. App. Ct. 2012) (cleaned up). “[S]ince a plaintiff is presumed to be made whole by
the compensatory award, punitive damages should be awarded only if the defendant's
conduct is ‘so reprehensible as to warrant the imposition of further sanctions to
As this Court previously noted (Dkt. 660), Illinois law does not even “require expressly expert
testimony to prove lost profits damages.” TAS Distrib. Co. v. Cummins Engine Co., 491 F.3d 625, 634
(7th Cir. 2007).
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achieve punishment or deterrence.’” Epic Sys. Corp. v. Tata Consultancy Servs. Ltd.,
980 F.3d 1117, 1141 (7th Cir. 2020) (citation omitted), cert. denied, 142 S. Ct. 1400
(2022). “Punitive damages may be awarded when the defendant’s tortious conduct
evinces a high degree of moral culpability, that is, when the tort is committed with
fraud, actual malice, deliberate violence or oppression, or when the defendant acts
willfully, or with such gross negligence as to indicate a wanton disregard of the rights
of others.” Slovinski v. Elliot, 927 N.E.2d 1221, 1225 (Ill. 2010). “A federal court,
however, can (and should) reduce a punitive damages award sometime before it
reaches the outermost limits of due process.” Saccameno v. U.S. Bank Nat’l Ass’n, 943
F.3d 1071, 1086 (7th Cir. 2019). The Court considers “the degree of reprehensibility,
the disparity between the harm suffered and the damages awarded, and the
difference between the award and comparable civil penalties.” Id.
The Court finds the $100 million in punitive damages to be excessive. Atturo “is
presumed to be made whole by the compensatory award,” so punitive damages are to
be awarded “only if [Toyo’s] conduct is ‘so reprehensible as to warrant the imposition
of further sanctions to achieve punishment or deterrence.’” Epic Sys. Corp., 980 F.3d
The jury’s verdict on the six claims against Toyo shows the jury found that Toyo’s
conduct was wrongful, deceptive, and violated principles of commercial morality,
justice, equity, and good conscience. On the other hand, considering the trial record
as a whole, the Court does not find the punitive damages award to be warranted. See
Epic Sys., 980 F.3d at 1145 (remanding the case to the district court to reduce
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punitive damages to, at most, a 1:1 ratio relative to the compensatory damages
awarded); Saccameno, 943 F.3d at 1086 (punitive damages awarded exceeded
constitutional limits and had to be reduced); Int’l Union of Operating Engineers, Loc.
150 v. Lowe Excavating Co., 870 N.E.2d 303, 324 (Ill. 2006) (reducing award of
punitive damages to $50,000).
Here, the conduct was not extreme and does not warrant a large punitive damages
award: the jury determined Toyo’s conduct was wrong and harmful but the Court is
certain the conduct was not so intentionally willful or wanton to warrant a severe
punishment. A punitive damages award ten times the compensatory damages award
is extreme and excessive. For these reasons, the Court reduces the punitive damages
award to $100,000.
Toyo’s Motion for a New Trial
In the alternative to its request for judgment as a matter of law, Toyo moves for a
new trial. This motion is denied. A new trial is appropriate under Rule 59(a) “if the
trial was in some way unfair to the moving party.” Martinez v. City of Chicago, 900
F.3d 838, 844 (7th Cir. 2018) (cleaned up). A court may grant a motion for a new trial
based on misconduct by the opposing party or counsel, but in order to obtain this
“dramatic relief,” the movant must demonstrate that the misconduct prejudiced him.
Brandt v. Vulcan, Inc., 30 F.3d 752, 758 (7th Cir. 1994). “A motion for a new trial can
be granted when the district court—in its own assessment of the evidence
presented—believes that the verdict went against [its] manifest weight.” Mejia v.
Cook County, 650 F.3d 631, 634 (7th Cir. 2011). Toyo presents a multitude of reasons
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arguing for a new trial, but this case does not meet the high standard warranting a
Toyo argues that the Court should have instructed the jury on the intellectual
property privilege. The Court decided, as a matter of law in Toyo’s favor and over
Atturo’s objection, that this privilege applied to the tortious interference claims. It
accordingly instructed the jury that these counts required the jury to find that Toyo’s
conduct was “intentional and unjustified.” (Jury Instructions at pp. 17–18). The Court
instructed that interference is “unjustifiable” if Toyo acted for the sole or primary
purpose of interfering with Atturo’s contract. (Id.). As already explained, Toyo does
not cite any case law extending this privilege to claims beyond the tortious
interference claims. Further, the Court does not believe Toyo’s cited case law requires
a new trial. Ray Dancer, Inc. v. DMC Corp., 594 N.E.2d 1344 (Ill. App. Ct. 1992), for
example, involved an intellectual property privilege on summary judgment, and did
not address jury instructions. Moreover, the Court reserved the intellectual property
privilege as a defense for itself to consider post-trial and as explained above, the Court
finds it does not require dismissal of Atturo’s claims.
The Court already addressed the compensatory and punitive damages awards and
is significantly reducing the punitive damages award. Toyo relies on another lostbusiness case but Illinois courts “traditionally decline to make such comparisons in
determining whether a particular award is excessive.” Richardson v. Chapman, 676
N.E.2d 621, 628 (Ill. 1997). Finally, Toyo argues that the Court’s evidentiary rulings
caused it prejudice and that Atturo’s counsel’s conduct at trial “tainted the outcome.”
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Atturo responds that Toyo waived a number of these arguments because did not raise
them at trial. The Court has reviewed Toyo’s arguments and finds they do not meet
the high bar for a new trial. See Whitehead v. Bond, 680 F.3d 919, 928 (7th Cir. 2012)
(explaining that “[a] new trial should be granted . . . only when the record shows that
the jury’s verdict resulted in a miscarriage of justice or where the verdict, on the
record, cries out to be overturned or shocks our conscience.”) (cleaned up); Plyler v.
Whirlpool Corp., 751 F.3d 509, 513 (7th Cir. 2014) (same).
Motion for Injunctive Relief and Other Corrective Actions
Atturo moves for permanent injunctive relief and other corrective actions “to
protect Atturo against Toyo’s continued disparagement of Atturo’s products and
business.” (Dkt. 753). Atturo directs its request for injunctive relief only at its IDTPA
claim. (Dkts. 753, 753-1). Because, as discussed above, the Court is entering judgment
in Toyo’s favor on the IDTPA claim, Atturo’s motion  is denied.
For these reasons, Toyo’s motion for judgment or alternatively a new trial  is
granted in part and denied in part and Atturo’s motion for injunctive relief and other
corrective actions  is denied.
Judgment shall enter in Toyo’s favor on Atturo’s Count I (tortious interference
with contract), Count III (defamation), Count VI (IDTPA) and Count VII (Lanham
Act). Judgment shall enter in Atturo’s favor on Atturo’s Count II (tortious
interference with prospective business expectancy), Count IV (unfair competition),
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and Count V (unjust enrichment). Accordingly, judgment shall enter in favor of
Atturo Tire Corporation and against Toyo Tire Corporation and Toyo Tire U.S.A.
Corp. in the amount of $10,000,000 in compensatory damages and $100,000 in
punitive damages. Civil case terminated.
E N T E R:
Dated: May 10, 2022
MARY M. ROWLAND
United States District Judge
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