Charles Hess v. Biomet, Inc.

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 23-1555 and 23-1556

CHARLES HESS, et al.,

Plaintiffs-Appellees, Cross-Appellants,

v.

BIOMET, INC. and ZIMMER BIOMET HOLDINGS, INC.,

Defendants-Appellants, Cross-Appellees.

____________________

Appeals from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 3:16-cv-00208-JD-MGG — Jon E. DeGuilio, Chief Judge.

____________________

ARGUED DECEMBER 4, 2023 — DECIDED JUNE 25, 2024

____________________

Before ROVNER, SCUDDER, and PRYOR, Circuit Judges.

SCUDDER, Circuit Judge. When medical-device manufac-

turer Zimmer Biomet was still in its infancy, it signed a gen-

erous compensation agreement with six leading sales

distributors, guaranteeing them a lifetime of long-term

commissions on all sales “made within the subject distribu-

torship” after their retirement. The company proceeded to

grow exponentially, acquiring half a dozen competitors,

expanding its product lines, and branching into new medical

2 Nos. 23-1555 & 23-1556

specialties. Biomet’s growth generated a dispute regarding

which categories of products fell “within the subject distribu-

torship” such that the company must continue to pay long-

term commissions on their sale. The district court determined

that the agreement was ambiguous on the point and sent the

case to trial. The jury returned a split verdict, finding that

Biomet owed long-term commissions on some products but

not others. Biomet then appealed the denials of its motions for

summary judgment and judgment as a matter of law, and the

distributors cross-appealed the dismissal of two counts of

their complaint.

We affirm across the board. The district court was right to

dismiss the two counts in the distributors’ complaint. It also

correctly determined that the distributorship agreement was

ambiguous regarding the particular categories of products it

covered. And we have little difficulty concluding that the trial

record supports the jury’s verdict in favor of the distributors

on their Indiana breach-of-contract claim.

I

Zimmer Biomet is one of the world’s largest medical-

device manufacturers, surpassing $7 billion in annual sales.

But it did not start out that way.

In the early 1980s, Biomet was a small startup with a lim-

ited catalog of joint-replacement products. Seeking to expand,

the company approached a handful of well-connected sales

representatives and offered them generous compensation to

join its fledgling operation. The strategy worked. From 1980

to 1983, Biomet successfully poached six high-earning sales-

people from competitors, including lead plaintiff Charles

Hess.

Nos. 23-1555 & 23-1556 3

Hess and his colleagues signed an identical distributor-

ship agreement with Biomet. The agreement guaranteed

exclusive rights to sell “Biomet products” within specific

regions and receive commissions up to 30%. To further

sweeten the deal, Biomet enrolled the distributors in a “long-

term commission program,” under which they would con-

tinue to receive a specified fraction of the company’s “net

sales” after retirement. The agreement defined “net sales” as

follows: “gross sales made within the subject distributorship

at the time this program is initiated and actually collected by

Biomet.”

Biomet grew rapidly in subsequent years. By 1990 the

company had acquired three of its former competitors. These

acquisitions allowed Biomet to expand its existing suite of

orthopedic products while also branching into new specialties

like sports medicine.

Biomet allowed the distributors to sell new product lines

on a case-by-case basis. The company gave Hess and his col-

leagues unfettered access to reconstructive products, includ-

ing joint-replacement products. But it prohibited them from

selling electro-stimulation devices, deciding to retain the

salesforce of an acquired company instead. For sports medi-

cine, Biomet took a hybrid approach. It allowed the distribu-

tors to sell products marketed through its subsidiary

Arthrotek but only if they executed a new distributorship

agreement. Unlike the original distributorship agreement, the

Arthrotek contract did not provide long-term commissions.

These restrictions did not sit well with the distributors.

One, Frank Shera, sued Biomet for breach of contract. He later

reversed course, conceding in a settlement that his distribu-

torship agreement had “not contractually grant[ed] [] the

4 Nos. 23-1555 & 23-1556

right to sell the products of Biomet’s present subsidiaries or

companies which Biomet may acquire in the future.” The

other five distributors did not participate in Shera’s lawsuit or

settlement.

Between 1995 and 1999, each of the six distributors retired.

Pursuant to the distributorship agreement, Biomet began pay-

ing long-term commissions on its sales of reconstructive

products. But the company excluded all other product lines

when making payments.

Biomet’s expansion continued. In 2012 the company ac-

quired DePuy Trauma, substantially increasing its previously

small selection of trauma-related products. Biomet added

other product lines as well, including dental, spinal, and

biopharmaceutical.

Around 2015 Biomet entered merger negotiations with its

main competitor Zimmer. In preparation, Biomet approached

Hess and fellow distributors with an offer to buy out their

rights to receive long-term commissions.

The buyout proposition quickly fell apart. In talking with

Biomet, the distributors learned for the first time that the com-

pany had not been paying long-term commissions on any

products other than reconstructive surgical items. Viewing

this as a breach of the distributorship agreement, the six re-

tired distributors sued Biomet in federal court in Indiana, in-

voking diversity jurisdiction.

The distributors’ complaint contained six counts—three of

which remain relevant on appeal. Count 1 alleged that Biomet

breached the distributorship agreement by failing to pay

long-term commissions on “all Biomet products sold in the

distributors’ respective territories.” Count 2 presented a

Nos. 23-1555 & 23-1556 5

different theory of breach, claiming that Biomet violated the

agreement by rebranding products under Zimmer’s name.

Finally, Count 3 asserted that Biomet refused to honor its ob-

ligation to pay long-term commissions on “all products sold

by Biomet or Zimmer Biomet in the [] Distributors’ former

territories.”

Biomet moved to dismiss the complaint under

Rule 12(b)(6). The district court granted the motion in part,

dismissing Counts 2 and 3 while permitting Count 1 to pro-

ceed. The court determined that the second count failed to

properly allege a breach of contract because no provision of

the distributorship agreement prohibited Biomet from re-

branding products. Similarly, the court determined that the

agreement did not require Biomet to pay long-term commis-

sions on products belonging to Zimmer or Zimmer Biomet,

largely undermining the basis for Count 3. But Count 1 sur-

vived and discovery ensued.

In time both parties moved for summary judgment. Hess

argued that the distributorship agreement required Biomet to

pay long-term commissions on all products regardless of the

category they fell into, when Biomet added them to its prod-

uct line, or whether they belonged to a subsidiary. Biomet re-

sponded that the agreement applied only to reconstructive

surgical products—the primary type that the distributors had

been permitted to sell during their tenure (without executing

an additional contract).

The district court denied both motions. It concluded that

the plain language of the distributorship agreement was am-

biguous regarding whether long-term commissions applied

only to certain product types. The district court then observed

that under Indiana law, the meaning of an ambiguous

6 Nos. 23-1555 & 23-1556

contract depends on the parties’ intent at the time of signing—

a question of fact to be informed by extrinsic evidence. So the

district court ordered a jury trial to determine which catego-

ries other than reconstructive products—if any—fell within

the long-term-commission clause.

At the close of the distributors’ case in chief, Biomet

moved for judgment as a matter of law under Rule 50(a), con-

tending that the evidence was insufficient to establish that the

parties originally intended for the distributorship agreement

to apply without product limitations. The district court took

the motion under advisement and proceeded with jury

instructions.

The district court provided jurors with a two-part special

verdict form. For each distributor, the form asked whether

Biomet had breached a contractual obligation to pay long-

term commissions. If so, the form then asked jurors to specify

the particular categories of products from which Biomet had

wrongfully withheld commissions. It listed seven: trauma,

biologics, sports medicine, micro-fixation, spine, dental, and

electrical stimulation.

The jury found Biomet liable for breaching its agreement

with each of the six distributors. For five, the jury concluded

that the company owed long-term commissions on all sports-

medicine and trauma products. For Frank Shera, the jury

awarded damages only for unpaid commissions on trauma

products.

Biomet reacted to the verdict by renewing its Rule 50 mo-

tion. The company insisted that no reasonable jury could have

found that Biomet owed long-term commissions on products

it sold only through subsidiaries or on products acquired only

Nos. 23-1555 & 23-1556 7

after the distributors retired. The district court denied the mo-

tion, determining the evidence sufficient to support the

verdict.

Biomet appealed the denial of summary judgment, claim-

ing that the distributorship agreement unambiguously lim-

ited long-term commissions to reconstructive products. The

company also appealed the denial of its Rule 50 motion, con-

tending that the evidence fell short of establishing that the

agreement extended to sports-medicine or trauma products.

Hess defended the judgment on both fronts while also cross-

appealing the dismissal of Counts 2 and 3. We address each

contention in turn.

II

Denials of summary judgment on the grounds of factual

sufficiency are unreviewable on appeal, given that the record

developed at trial “supersedes the record existing at the time

of the summary-judgment motion.” See Dupree v. Younger,

143 S. Ct. 1382, 1388–89 (2023) (citing Ortiz v. Jordan, 562 U.S.

180, 184 (2011)). But unsuccessful summary-judgment mo-

vants remain free to appeal a “purely legal” basis for denial

that “can be resolved without reference to any disputed

facts.” Id. at 1389. This includes questions of contract interpre-

tation. See Lawson v. Sun Microsystems, Inc., 791 F.3d 754, 761

(7th Cir. 2015).

Federal courts sitting in diversity interpret contracts ac-

cording to the law the forum state would apply to the dispute.

See Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487, 497 (1941).

Indiana, the forum state here, generally defers to contract

provisions specifying the law that should guide a court’s in-

terpretation. See Allen v. Great Am. Reserve Ins. Co., 766 N.E.2d

8 Nos. 23-1555 & 23-1556

1157, 1162 (Ind. 2002). So our analysis is governed by Indiana

law—the jurisdiction named in the distributorship agree-

ment’s choice-of-law provision.

Under Indiana law, the “goal in contract interpretation is

to determine the intent of the parties at the time that they

made the agreement.” Care Grp. Heart Hosp., LLC v. Sawyer, 93

N.E.3d 745, 752 (Ind. 2018) (internal quotation marks omit-

ted). When the language is clear, courts confine themselves to

the “four corners” of the agreement and apply “its plain and

ordinary meaning in view of the whole contract, without sub-

stitution or addition.” Id. at 752, 756. If contract language is

ambiguous, however, Indiana courts move beyond the con-

tract’s text, viewing the parties’ intent as a question of fact to

be informed by extrinsic evidence. See First Fed. Sav. Bank of

Indiana v. Key Markets, Inc., 559 N.E.2d 600, 604 (Ind. 1990);

Celadon Trucking Serv., Inc. v. Wilmoth, 70 N.E.3d 833, 842 (Ind.

Ct. App. 2017). A contract is ambiguous where “reasonable

people could come to different conclusions as to its meaning.”

Univ. of S. Ind. Found. v. Baker, 843 N.E.2d 528, 532 (Ind. 2006).

Both sides insist that the language of the distributorship

agreement unambiguously supports their position. Accord-

ing to Biomet, the agreement clearly limits long-term commis-

sions to the primary category of product that the distributors

sold during their tenure: reconstructive devices. Hess con-

tends that the agreement plainly sweeps more broadly, cov-

ering all products sold by Biomet, Zimmer Biomet, and its

subsidiaries. Both sides are mistaken.

Contrary to Hess’s position, the distributorship agreement

contains clear product-based limitations. Section 9(e) prom-

ises long-term commissions only on “sales made within the

subject distributorship at the time this program is initiated.”

Nos. 23-1555 & 23-1556 9

If the long-term-commission program extended to all prod-

ucts sold by Biomet, the phrase “within the subject distribu-

torship” would serve no purpose. By including it, the parties

evidenced their intent for long-term commissions to extend

only to products falling within the scope of the distributor-

ships as originally conceived.

Hess disagrees with the interpretation that “within the

subject distributorship” imposes product-based limitations

on the long-term-commission program. He insists that that

phrase creates merely a geographic limitation by referencing

the regions established for each respective distributor. But

that interpretation conflicts with the language of both § 9(e)

and the broader contract.

Common dictionaries define “distributorship” as “a fran-

chise held by a distributor.” Distributorship, WEBSTER’S NEW

TWENTIETH CENTURY DICTIONARY (2d ed. 1983); see also Dis-

tributorship, THE RANDOM HOUSE COLLEGE DICTIONARY (rev.

ed. 1980) (same). Hess provides no authority—nor have we

found any—that supports his contrary interpretation, under

which “distributorship” refers not to the franchise itself but

only to the geographic region where it operates. So we as-

sume, absent some textual indication to the contrary, that

§ 9(e) carries that term’s established common meaning: a dis-

tribution franchise.

A broader look at the distributorship agreement supports

this interpretation. When the agreement refers to a geo-

graphic area, it does so explicitly by using the word “terri-

tory.” See § 4(b) (referencing the “territory(s) [that] exist

within such distributorships”); § 5(b) (describing the “subject

territory(s)”); § 9(h)(1) (mentioning “the territory(s) then as-

signed to distributor”). In sharp contrast, the agreement

10 Nos. 23-1555 & 23-1556

reserves the word “distributorship” to refer to the franchise

as a whole rather than its territorial boundaries. Section 3(a),

for instance, states that “Biomet agrees not to terminate the

distributorship during the first twelve [] months.” Similarly,

§ 4(a) provides that Biomet may “not [] reduce the territory(s)

of a distributorship,” and § 9(d) describes how to calculate

“‘[t]he long-term commission’ … for the distributorship.” The

last example is particularly salient. Section 9(d) immediately

precedes the key language we are interpreting in § 9(e). And

§ 9(e) refers back to § 9(d) by referencing “the subject distrib-

utorship” (emphasis added). Given this express cross-

reference—and the assumption that a contract term carries a

single consistent meaning across provisions—we see no rea-

son to read “distributorship” any differently in § 9(e) than in

the rest of the agreement.

Having taken our own hard look at the agreement, we

conclude that the plain language of § 9(e) unambiguously ob-

ligates Biomet to pay long-term commissions only on prod-

ucts that fell “within the subject distributorship” as the parties

originally conceived it—not all products sold in the geo-

graphic boundaries assigned to the distributors.

But our analysis does not end there. Although we agree

with Biomet that the distributorship agreement unambigu-

ously imposes product-based limitations on long-term com-

missions, the company asks us to go one step further. It urges

us to conclude that the agreement’s plain language extends to

only one type of product: reconstructive items. This is where

we part ways.

The agreement itself sheds little light on what products or

product lines fell “within the subject distributorships.” No

provision, when read in isolation or together with other

Nos. 23-1555 & 23-1556 11

language, lists the specific products subject to long-term com-

missions. Nor does the agreement provide any criteria to de-

termine whether the “subject distributorship” extends to a

given product category. Biomet’s contention that the distrib-

utorships were limited to reconstructive products—the cate-

gory from which the distributors made the overwhelming

bulk of their sales—is plausible. But it is equally plausible that

the “subject distributorship” extended to all categories from

which the distributors sold at least one product, including

trauma and sports-medicine items. The text alone does not

obviously preclude either view.

Biomet maintains that non-reconstructive products fall

outside the scope of the distributorships because the company

did not offer them when the parties executed the agreement.

But § 9(e), by its terms, looks not to the time of contracting but

to the moment when “this [long-term-commission] program

is initiated” upon the distributors’ retirement. Even more, the

agreement does not limit the scope of the distributorships to

the products offered at the time of its execution. To the con-

trary, § 2(b) contemplates future expansions of Biomet’s port-

folio, providing that the company must pay actual sales com-

missions “[s]hould items be added to the Biomet standard

product line that are not covered by an existing [product] cat-

egory.” This language is clear and important: it suggests that,

so long as an item belonged to Biomet’s “standard product

line” when the distributors retired, the item falls within the

scope of the distributorship and is thus subject to long-term

commissions.

Perhaps recognizing the same point, Biomet backpedals

and contends that, at a minimum, sports-medicine items can-

not be considered part of Biomet’s standard product line

12 Nos. 23-1555 & 23-1556

because at all relevant times they were sold only through a

subsidiary (Arthrotek) and the distributors had to sign a sep-

arate contract to market them. As a matter of fact, that may

well be true, and we will return to this contention when re-

viewing Biomet’s sufficiency-of-the-evidence challenge to the

jury’s verdict. But as a question of what the agreement

unambiguously means as a legal matter, Biomet’s position

does not persuade us.

Nothing in the distributorship agreement suggests

—much less requires—that items marketed through subsidi-

aries fall outside Biomet’s standard product line. Nor does

any provision indicate that what separates nonstandard from

standard products is whether distributors must sign a new

contract before selling them. If that were so, Biomet could uni-

laterally extinguish its duty to pay long-term commissions

simply by demanding that its sales team submit to new

contracts—an outcome at stark odds with the overarching

purpose of the distributorship agreement.

Biomet also contends that the agreement cannot reach any

items marketed solely through subsidiaries because those

items are not “Biomet products” within the meaning of the

contract. That is far from obvious, however. While defining

Biomet as “Biomet, Inc.,” the agreement does not describe

what relationship a product must have with the company to

be considered a “Biomet product.” More to the point, the

agreement provides no indication that the term “Biomet

product” excludes products that happen to be sold by a Bi-

omet subsidiary. In fact, § 2(b) hints at just the opposite, stat-

ing that distributors shall receive sales commissions on cer-

tain types of reconstructive products without qualifying that

those products must be sold through Biomet directly.

Nos. 23-1555 & 23-1556 13

Biomet’s contrary interpretation would all but nullify its

contractual obligations, allowing it to avoid paying commis-

sions just by reassigning products to corporate subsidiaries.

This would generate bizarre results elsewhere in the agree-

ment. For instance, defining “Biomet products” to preclude

those offered through subsidiaries might dramatically nar-

row the plaintiffs’ noncompete obligations under § 6, which

prohibits selling products for Biomet’s competitors so long as

those products were also offered “by Biomet.” Id. (emphasis

added). Under Biomet’s reading, the distributors would be

free to sell any products that competed only with ones sold

by its subsidiaries. We are disinclined to conclude that the

contracting parties intended to define “Biomet products” in a

manner that functionally extinguishes both sides’ principal

obligations. See USA Life One Ins. Co. of Indiana v. Nuckolls, 682

N.E.2d 534, 539 (Ind. 1997) (“[I]f the plain and ordinary mean-

ing would lead to some absurdity, or some repugnance or in-

consistency with the rest of the instrument, then the grammat-

ical and ordinary sense of the words may be modified, so as

to avoid that absurdity and inconsistency.” (quotations omit-

ted)). At the very least, the agreement’s text does not unam-

biguously require such a result as a matter of law.

In the final analysis, then, the distributorship agreement

does not provide unambiguous guidance regarding whether

“Biomet products” in the “standard product line” could in-

clude a subsidiary’s products subject to a separate contractual

arrangement. So the district court properly concluded that a

jury should decide whether specific categories of products

—including those marketed by a subsidiary—were subject to

long-term commissions.

14 Nos. 23-1555 & 23-1556

III

Biomet separately challenges the district court’s denial of

its motion for judgment as a matter of law. Rule 50 permits

trial courts to order a directed finding on an issue if “a rea-

sonable jury would not have a legally sufficient evidentiary

basis to find for the [nonmoving] party.” Fed R. Civ. P.

50(a)(1). On appeal, we review Rule 50 denials without any

deference to the district court’s ruling. See Thorne v. Member

Select Ins. Co., 882 F.3d 642, 644 (7th Cir. 2018). In doing so, we

interpret the facts and draw all reasonable inferences in favor

of the nonmoving party who prevailed before the jury. See

Passananti v. Cook County, 689 F.3d 655, 659 (7th Cir. 2012).

“Overturning a jury verdict is not something that we do

lightly.” Massey v. Blue Cross-Blue Shield of Illinois, 226 F.3d

922, 925 (7th Cir. 2000). We reverse “[o]nly if no rational jury

could have found for the nonmovant.” Ruiz-Cortez v. City of

Chicago, 931 F.3d 592, 601 (7th Cir. 2019).

Our review of the trial transcript leaves us of the firm

mind that the jury acted rationally in finding that Biomet

owed long-term commissions on its sales of trauma and

sports-medicine products. The distributors sold products be-

longing to both categories during their careers with Biomet.

That factual reality is significant, for it allowed the jury to rea-

sonably conclude that sports-medicine and trauma products

fell “within the subject distributorship” at the time the

distributors retired.

In its Rule 50 motion, Biomet argued otherwise, stressing

its view that the distributorship agreement excludes sports-

medicine products because they were sold pursuant to a dif-

ferent contract. We have no doubt that Biomet believed that

its existing distributorship agreement did not cover sports-

Nos. 23-1555 & 23-1556 15

medicine products when it acquired Arthrotek in 1990;

otherwise it would not have required the execution of a new

agreement. But that observation does not resolve the issue be-

fore us. What matters is not what Biomet believed in 1990 but

what the company intended when it executed the original dis-

tributorship agreement approximately ten years earlier.

The jury had enough evidence to conclude that Biomet in-

tended for the distributorship agreement to cover later-

acquired product lines like sports medicine. Multiple

distributors testified that Biomet’s stated intent at the time the

parties executed the agreement was for the company to pro-

vide long-term commissions on all future sales. In an inter-

rogatory response admitted into evidence, Biomet essentially

conceded as much, stating that long-term commissions ex-

tended to both trauma and sports-medicine items. While

Biomet later amended that response, jurors remained free to

consider it when evaluating the parties’ intent.

The trial evidence also permitted the jury to conclude that

the parties never planned to exclude subsidiaries’ products

from the distributorship agreement. Jurors reviewed financial

statements illustrating how Biomet consistently disregarded

subsidiary status when calculating long-term commissions on

reconstructive products. They also heard testimony from the

company’s former general counsel, who conceded that in his

view Biomet’s obligation to pay long-term commissions ex-

tended to parent and subsidiary alike.

Viewing the trial record in the light most favorable to

Hess, we conclude that the evidence permitted the jury to find

that the parties originally intended for the distributorship

agreement to cover all categories of products that the distrib-

utors actually sold, regardless of subsidiary status. See Thorne,

16 Nos. 23-1555 & 23-1556

882 F.3d at 644 (denying a motion for judgment as a matter of

law where “more than a mere scintilla of evidence” supported

the verdict).

Biomet urges us to at least reverse the jury’s award to for-

mer distributor Frank Shera. The company emphasizes that,

while settling an unrelated lawsuit, Shera conceded that his

distributorship agreement did not give him the right to sell

products on behalf of Biomet’s subsidiaries without permis-

sion. That concession, the company contends, fatally

undermines the jury’s finding that Shera was entitled to long-

term commissions on trauma products. Biomet reasons that

because the overwhelming majority of its trauma portfolio

came from a subsidiary (DePuy), Shera would not have had a

right to market such products under the terms of the original

distributorship agreement and instead needed to execute a

new agreement before being entitled to receive any long-term

commissions on their sale.

But Biomet’s argument overlooks a key fact: at the point

Shera signed the settlement agreement, he had already been

selling trauma products on behalf of the company for over ten

years. He continued to do so after settling, marketing Bi-

omet’s limited selection of trauma offerings, and nowhere

does the company contend that those sales were unauthor-

ized. We recognize that the trauma items that Shera sold

represented only a fraction of those added after the DePuy ac-

quisition. But the jury reasonably found that, because Shera

sold trauma products—however few—directly on Biomet’s

behalf during his tenure, such products fell “within the sub-

ject distributorship” under § 9(e). Accordingly, we conclude

that the trial record provided a sufficient basis for a rational

jury to find that Shera’s distributorship agreement entitled

Nos. 23-1555 & 23-1556 17

him to long-term commissions on all sales of trauma prod-

ucts. While it would not surprise us if a different jury took the

opposite view, we cannot say that the jury’s finding here was

so beyond the pale as to require reversal.

IV

One final issue remains: Hess’s challenge to the district

court’s dismissal of Counts 2 and 3. In his cross-appeal, Hess

claims that the district court erred in holding that those claims

had no contractual basis and were otherwise duplicative of

Count 1. We disagree.

Count 2 alleged that Biomet breached the distributorship

agreement by “spinning off, re-branding, substituting and

otherwise discontinuing Biomet-branded products, in favor

of substantially similar, if not functionally identical” Zimmer-

branded products. But no provision of the agreement prohib-

ited such conduct. So, to the extent that Hess takes issue with

Biomet rebranding its product lines, it cannot be because the

act of rebranding independently violated the agreement. Yet

that is what Count 2 alleges—that Biomet’s mere decision to

rebrand breached the distributorship agreement. The district

court was correct to dismiss Count 2 on that basis.

Count 3 presents a more difficult question. That count al-

leged that Biomet violated its contractual duty “to pay the []

Distributors commissions on all products sold by Biomet or

Zimmer Biomet in the [] Distributors’ former territories, re-

gardless of whether such products are branded as Biomet,

Zimmer, or Zimmer Biomet products.” This allegation could

be interpreted in one of two ways—either as a contention that

Biomet owes long-term commissions on non-Biomet products

belonging to Zimmer/Zimmer Biomet or as a claim that

18 Nos. 23-1555 & 23-1556

Biomet used the merger as an excuse to not pay long-term

commissions on what were properly considered “Biomet

products.” Under the first interpretation, Count 3 fails for the

same reason as Count 2: no contract provision requires

Biomet to pay long-term commissions on products belonging

exclusively to other entities, including those marketed by

Zimmer before the merger. Under the second interpretation,

Count 3 is entirely duplicative of Count 1, which generally al-

leges that Biomet failed to pay long-term commissions on any

and all “Biomet products.” To the extent Biomet sought to

pierce the branding veil and claim that certain items remained

“Biomet products” subject to long-term commissions even af-

ter the merger, Count 1 provided a vehicle for it to do so.

Indeed, all indications are that the jury embraced this theory

at trial, awarding damages for unpaid long-term commis-

sions for all trauma and sports-medicine sales made under-

neath the Biomet/Zimmer Biomet corporate umbrella. So the

district court properly dismissed Count 3.

For these reasons, we AFFIRM the partial dismissal of

Hess’s complaint and AFFIRM the denials of Biomet’s mo-

tions for summary judgment and judgment as a matter of law.