# PARAMOUNT FINANCIAL COMMUNICATIONS, INC. v. BROADRIDGE INVESTOR COMMUNICATION SOLUTIONS, INC.

> District Court, E.D. Pennsylvania · July 26, 2023

URL: https://www.frixlaw.com/law-library/cases/10405641

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** July 26, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10405641

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PARAMOUNT FINANCIAL : CIVIL ACTION
COMMUNICATIONS, INC., et al., :
: NO. 15-405
Plaintiffs :
v. :
:
BROADRIDGE INVESTOR :
COMMUNICATIONS SOLUTIONS, INC.:
:
Defendant. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. JULY 26, 2023

CONTENTS
I. Introduction .............................................. 2
II. Factual Background ........................................ 4
III. Motions as to Liability ................................. 8
A. Broadridge’s Motion for Judgment as a Matter of Law ..... 8
1. Legal Standard ......................................... 8
2. Analysis .............................................. 11
B. Motion for a New Trial ................................. 29
1. Legal Standard ........................................ 30
2. Broadridge’s Motion for New Trial ..................... 31
3. Plaintiff Jonathan Miller’s Motion for New Trial ...... 36
IV. Motions as to Damages .................................... 40
A. Motion to Strike Expert Report ......................... 41
1. Legal Standard ........................................ 43
2. Analysis .............................................. 45
B. Broadridge’s Motion for Judgment as a Matter of Law as to
Damages or in the Alternative for a New Trial ............... 53
C. Broadridge’s Motion to Amend the Judgment .............. 56
D. Plan Management’s Motion to Award Interest ............. 58
V. Stay of Execution ........................................ 59
VI. Conclusion ............................................... 59
I. INTRODUCTION
Paramount Financial Communications (d/b/a Plan Management)
and Jonathan Miller (collectively, “Plaintiffs”) brought this
action against Broadridge Investor Communications Solutions,
Inc. (“Broadridge”) for fraudulent inducement and breach of
contract. A nine-day jury trial was held. Following the close of
Plaintiffs’ case, Broadridge moved for judgment as a matter of

law. The Court granted the motion as to Jonathan Miller’s claim
for fraudulent inducement, but denied the motion as to Plan
Management’s breach of contract claim. After the close of all
the evidence, Broadridge again moved for judgment as a matter of
law. The Court took the motion under advisement and charged the
jury. The jury returned a verdict in favor of Plan Management,
finding that Broadridge acted with willful misconduct and gross
negligence in its breach of the contract.1 Following a short

1 Ordinarily, in a contract action, there is no jury question as
to gross negligence or willful misconduct. Such standards are
related to tort actions, where intent is at issue. See, e.g.,
Pittsburgh, Cincinnati & St. Louis Ry. Co. v. Lyon, 16 A. 607,
609 (Pa. 1889) (In actions in contract . . . the amount
recoverable is limited to the actual damages caused by the
breach; the measure being the same whether the defendant fails
to comply with his contract through inability, or willfully
refuses to perform it. But in torts the rule is different; the
motive of the defendant becomes material.”); John B. Conomos,
Inc. v. Sun Co., Inc., 831 A.2d 696, 707 n.6 (Pa. Super. Ct.
2003) (“[T]he motivation itself for Sun’s breach is not
controlling in causes of action under contract law.”). Here,
however, the parties agreed in their contract that a heightened
standard of care would be applicable to the determination of
damages in the event of breach.
damages phase of trial, the jury awarded Plan Management
$25,000,000 in compensatory damages for breach of contract.
Before the Court are several post-trial motions by all

parties to the case. Plaintiff Jonathan Miller has moved for a
new trial as to his fraudulent inducement claim. Plaintiff Plan
Management has moved to alter the judgment to award post-
judgment interest. Broadridge has moved for judgment as a matter
of law as to both liability and damages and seeks a stay of
execution of the judgment. In addition, Broadridge has moved to
strike the expert report of Michael Molder.2

2 The parties initially filed these motions before the trial
transcripts were finalized. By stipulation, the parties then had
an opportunity to amend their briefing in the event the final
trial transcripts differed from the daily transcripts obtained
during the course of trial. The final versions of the motions
were docketed as follows:
1. Def’s Renewed Mot for J. as a Matter of Law (ECF No.
256) and Pls.’ Opp’n (ECF No. 249)
2. Def.’s Mot. for J. as a Matter of Law as to Damages
(ECF No. 257) and Pls.’ Opp’n (ECF No. 250)
3. Def.’s Mot to Strike Expert Materials (ECF No. 255)
and Pls.’ Opp’n (ECF No. 268)
4. Def.’s Mot. for New Trial or to Amend J. (ECF No.
258), Pls.’ Opp’n (ECF No. 269), and Def.’s Reply (ECF
No. 259)
5. Pl. Jonathan Miller’s Mot. for New Trial (ECF No.
266), Def.’s Resp. in Opp’n (ECF No. 251), and Pl.’s
Reply (ECF No. 267)
6. Def.’s Mot. to Stay Execution (ECF No. 246) and Pls.’
Resp. (ECF No. 252)
7. Pl.’s Mot. to award Post-J. Interest (ECF No. 227) and
Def.’s Resp. (ECF No. 234).
II. FACTUAL BACKGROUND
Plaintiffs and Broadridge entered into seven agreements on
March 8, 2010. Two of those agreements are relevant to this
case: the Stock Purchase Agreement of one of Mr. Miller’s
companies, StockTrans, Inc., and the Marketing Agreement. The

Stock Purchase Agreement provided, in part, that Mr. Miller
would sell StockTrans to Broadridge, and Broadridge would
perform the Marketing Agreement by referring clients to one of
Mr. Miller’s businesses, Plan Management.
The Marketing Agreement commenced on March 8, 2010 and ran
for an initial Term of five (5) years. Under the Agreement,
By the date that is twelve (12) months from the Effective
Date, Broadridge will use commercially reasonable
efforts to refer at least 200 Viable Clients to Plan
Management, (as adjusted, the “Referral Target”). During
each twelve (12) month period thereafter during the
Term, Broadridge will use commercially reasonable
efforts to refer such number of Viable Clients as equals
or exceeds the Referral Target applicable to the
previous twelve month period multiplied by one hundred
and ten (110%) percent. As used here in, a “Viable
Client” is a corporate issuer that has any type of
securities or securities-related incentive plan or that
expresses an interest in implementing such a plan and
expresses to Plan Management or Broadridge an interest
in learning about Plan Management’s services and which
observes a demonstration of Plan Management’s Option
Trax® system.
Plan Management would then pay Broadridge a $1,000.00 referral
fee for each client referred by Broadridge and closed by Plan
Management. The Marketing Agreement could be terminated during
the initial term if a material breach went uncured for sixty
days after the nonbreaching party provided notice, or upon
mutual consent of the parties.
The Marketing Agreement also included a limitation of

liability clause. This provision stated, in relevant part:
Notwithstanding anything else in this Agreement to the
contrary, in the absence of a party’s gross negligence
or willful misconduct, the aggregate liability of any
party in connection with any breach of this Agreement
shall be limited to the amount of fees paid or payable
to Broadridge by Plan Management during the twelve month
period preceding the date of such breach. EXCEPT WITH
RESPECT TO . . . EITHER PARTY’S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE
RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES WHICH THE OTHER PARTY MAY INCUR OR
EXPERIENCE ON ACCOUNT OF ENTERING INTO OR RELYING ON
THIS AGREEMENT (INCLUDING LOST PROFITS OR LOST SAVINGS),
EVEN IF FORESEEABLE OR EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES . . . .
The Marketing Agreement was fully integrated.
Plan Management received only a few referrals from
Broadridge in the initial year of the Marketing Agreement. In
that first year--and in subsequent years--Mr. Miller and other
Plan Management representatives reached out to Broadridge
representatives, asking for more referrals. Plan Management also
created a referral form in 2011 to help facilitate referrals by
Broadridge salespeople.
Plan Management ultimately sent a notice of breach to
Broadridge in the summer of 2014, after having received only a
small fraction of the expected referrals, approximately four
years into the contract. Plan Management and Mr. Miller then
brought this suit in 2015, alleging breach of contract (Count
I), fraudulent inducement (Count II), constructive/equitable
fraud (Count III), and negligent misrepresentation (Count IV).

Broadridge filed a partial motion to dismiss, and the Court
granted the motion in part, dismissing the claims in Count II as
they pertained to the Marketing Agreement, and dismissing
Counts III and IV entirely. See Paramount Fin. Commc’ns, Inc. v.
Broadridge Inv. Commc’n Sols., Inc., No. 15-405, No. 2015 WL
4093932 (E.D. Pa. July 7, 2015) (DuBois, J.).
Following a lengthy and contentious discovery period,
Broadridge filed a motion to exclude Plan Management’s expert
reports and a motion for summary judgment. Plan Management had
proffered two damages experts to estimate lost profits, Joseph
Potenza and Michael Molder. The Court granted in part and denied
in part Broadridge’s motion to exclude the expert reports,

finding that Mr. Potenza’s report must be excluded because it
was not reliable, and in turn excluding those portions of Mr.
Molder’s report that relied on Mr. Potenza’s report. Mr.
Molder’s calculation that relied on internal data provided by
Plan Management was found sufficiently reliable, and could be
admissible at trial so long as the factual assumptions of the
calculation had a reasonable basis in the trial record. See
Paramount Fin. Commc’ns, Inc. v. Broadridge Inv. Commc’n Sols.,
Inc., No. 15-405, 2018 WL 7815202 (E.D. Pa. Dec. 13, 2018)
(DuBois, J.)
The Court subsequently denied Broadridge’s motion for

summary judgment, reasoning that a genuine dispute of material
fact existed as to (1) the meaning of commercially reasonable
efforts; (2) the number of clients required to be referred over
the term of the contract; (3) whether or not Broadridge breached
the contract, in light of the meaning of the disputed
contractual terms; (4) whether or not Broadridge acted with
gross negligence or willful misconduct; (5) when Mr. Miller was
on inquiry notice of a potential fraud claim; and (6) whether
Broadridge fraudulently induced Mr. Miller into signing the
Stock Purchase Agreement. See Paramount Fin. Commc’ns, Inc. v.
Broadridge Inv. Commc’n Sols., Inc., No. 15-405, 2019 WL 3022346
(E.D. Pa. May 23, 2019) (DuBois, J.).

The case then proceeded to trial. Mr. Miller argued that he
was fraudulently induced into signing the Stock Purchase
Agreement by Broadridge’s representations in the Marketing
Agreement. Plan Management contended that Broadridge breached
the Marketing Agreement with gross negligence and or willful
misconduct, entitling it to special, indirect, incidental, and
consequential damages. Broadridge argued that it did not
fraudulently induce Mr. Miller into signing the Stock Purchase
Agreement, and that it fulfilled its contractual obligations
under the Marketing Agreement. Following a nine-day trial, the
jury found in favor of Plan Management as to liability--that
Broadridge breached the contract and did so with gross
negligence and willful misconduct.3 After the completion of a

brief damages phase of trial, the jury returned a $25,000,000.00
verdict for Plan Management.
III. MOTIONS AS TO LIABILITY
Broadridge has moved for judgment as a matter of law, or,
in the alternative, for a new trial. Mr. Miller has moved for
judgment as a matter of law as to his fraudulent inducement
claim. These motions will be addressed in turn.

A. Broadridge’s Motion for Judgment as a Matter of Law4
1. Legal Standard
Under Federal Rule of Civil Procedure 50,
If a party has been fully heard on an issue during a
jury trial and the court finds that a reasonable jury
would not have a legally sufficient evidentiary basis to
find for the party on that issue, the court may[] (A)
resolve the issue against the party; and (B) grant a
motion for judgment as a matter of law against the party
on a claim or defense that, under controlling law, can

3 At the close of Plaintiffs’ case, Broadridge moved for judgment
as a matter of law as to Mr. Miller’s fraudulent inducement
claim. The Court granted the motion. See Order, ECF No. 215.

4 As Plaintiffs notes in response to Broadridge’s renewed motion
for judgment as a matter of law, their substantive response is
the same as the response to Broadridge’s motion for a new trial.
See Resp. to Renewed Mot. for J. as a Matter of Law at 3 & n.1,
ECF No. 249. Accordingly, the Court looks to Plaintiffs’
response to the new trial motion for substantive argument.
be maintained or defeated only with a favorable finding
on that issue.

Fed. R. Civ. P. 50(a). “[I]n considering a motion for a directed
verdict, the court does not weigh the evidence, but draws all
factual inferences in favor of the nonmoving party.” Lytle v.
Household Mfg., Inc., 494 U.S. 545, 554 (1990); see also Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000)
(“Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the facts are jury
functions, not those of a judge. Thus, although the court should
review the record as a whole, it must disregard all evidence
favorable to the moving party that the jury is not required to
believe.” (citations and quotation marks omitted)).
“If the court does not grant a motion for judgment as a
matter of law under Rule 50(a), . . . . the movant may file a
renewed motion for judgment as a matter of law . . . .” Fed. R.
Civ. P. 50(b). “[A] post-trial Rule 50 motion can only be made
on grounds specifically advanced in a motion for a directed
verdict at the end of plaintiff's case.” Kars 4 Kids Inc. v. Am.
Can!, 8 F.4th 209, 220 (3d Cir. 2021) (quoting Kutner Buick,
Inc. v. Am. Motors Corp., 868 F.2d 614, 617 (3d Cir. 1989)). The

Court has the discretion to uphold the jury’s verdict, order a
new trial, or direct the entry of judgment as a matter of law.
Fed. R. Civ. P. 50(b).
As with a Rule 50(a) motion, a Rule 50(b) motion should
only be granted where “there is insufficient evidence from which
a jury reasonably could find liability.” Avaya Inc., RP v.

Telecom Labs, Inc., 838 F.3d 354, 373 (3d Cir. 2016) (quoting
Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir.
1993)); Jaasma v. Shell Oil Co., 412 F.3d 501, 503 (3d Cir.
2005) (“The question is not whether there is literally no
evidence supporting the party against whom the motion is
directed but whether there is evidence upon which the jury could
properly find a verdict for that party.” (quoting Wright &
Miller, Fed. Prac. & Proc. § 2524 (1971))); Goodman, 293 F.3d at
665 (requiring a “legally sufficient evidentiary basis” for a
verdict to stand).
“Although judgment as a matter of law should be granted
sparingly, a scintilla of evidence is not enough to sustain a

verdict of liability.” Lightning Lube, 4 F.3d at 1166 (citing
Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir.
1992)); see also Galena v. Leone, 638 F.3d 186, 196 (3d Cir.
2011) (stating that a motion for judgment as a matter of law
“should be granted only if, viewing the evidence in the light
most favorable to the nonmoving party, there is no question of
material fact for the jury and any verdict other than the one
directed would be erroneous under the governing law” and that “a
directed verdict is mandated where the facts and law will
reasonably support only one conclusion” (quoting Beck v. City of
Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) and McDermott Int’l,
Inc. v. Wilander, 498 U.S. 337, 356 (1991))).

“If the court grants a renewed motion for judgment as a
matter of law, it must also conditionally rule on a motion for a
new trial by determining whether a new trial should be granted
if the judgment is later vacated or reversed.” Fed. R. Civ. P.
50(c).
2. Analysis
The issues before the jury during the liability phase of
the trial which Broadridge now contests were whether Broadridge
breached the Marketing Agreement and whether it did so with
gross negligence or willful misconduct. To succeed on the breach
of contract claim, Plan Management was required to prove
“(1) the existence of a contract, including its essential terms,

(2) a breach of the contract; and, (3) resultant damages.”
Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of
Malone Middleman, P.C., 137 A.3d 1247, 1258 (Pa. 2016) (citing
J.F. Walker Co., Inc. v. Excalibur Oil Grp., Inc., 792 A.2d
1269, 1272 (Pa. Super. Ct. 2002)).
To succeed on its claim that Broadridge breached the
Marketing Agreement with gross negligence, Plan Management was
required to prove that Broadridge acted with “a want of scant
care, but something less than intentional indifference to
consequences of acts.” Fid. Leasing Corp. v. Dun & Bradstreet,
Inc., 494 F. Supp. 786, 790 (E.D. Pa. 1980). Thus, “[t]o find
gross negligence, there must be ‘an extreme departure from

ordinary care.’” Royal Indem. Co. v. Sec. Guards, Inc., 255 F.
Supp. 2d 497, 505 (E.D. Pa. 2003) (quoting Douglas W. Randall,
Inc. v. AFA Protective Sys., Inc., 516 F. Supp. 1122, 1126 (E.D.
Pa. 1981)); cf. Bloom v. Dubois Reg’l Med. Ctr., 597 A.2d 671,
679 (Pa. Super. Ct. 1991) (“We hold that the legislature
intended the term gross negligence [under the Mental Health
Procedures Act] to mean a form of negligence where the facts
support substantially more than ordinary carelessness,
inadvertence, laxity, or indifference. The behavior of the
defendant must be flagrant, grossly deviating from the ordinary
standard of care.”).5 To show that Broadridge acted with willful

5 The Court instructed the jury as to gross negligence as
follows:
Gross negligence is significantly worse than ordinary
negligence. It is defined as “conduct more egregious
than ordinary negligence but [that] does not rise to the
level of intentional indifference to the consequences of
one’s acts.” Put differently, gross negligence “may be
deemed to be a lack of slight diligence or care
comprising a conscious, voluntary at or omission” when
a party knows they have a legal duty to act. To prove
that Broadridge’s conduct was grossly negligent, Plan
Management must prove, by a preponderance of the
evidence, that Broadridge’s conduct significantly
departed from how a reasonable person would have acted
under the circumstances.
Day 8 Tr. at 21:15-22:1, ECF No. 243.
misconduct, on the other hand, Plan Management needed to show
that Broadridge “desired to bring about the result that
followed, or at least . . . was aware that it was substantially

certain to ensue.” Evans v. Phila. Transp. Co., 212 A.2d 440,
443 (Pa. 1965).6
Here, although Broadridge has shown that there was
insufficient evidence for a jury to find that Broadridge acted
with willful misconduct in breaching the Marketing Agreement,
Broadridge has not shown that the evidence presented at trial
could only reasonably support a finding that Broadridge did not
breach the Marketing Agreement and did not do so with gross
negligence. Thus, Broadridge’s motion for judgment as a matter
of law will be denied in part and granted in part. Given that
the Court will grant the motion for judgment as a matter of law
only as to willful misconduct but not gross negligence, and the

limitation of liability clause only applies if there is neither
gross negligence nor willful misconduct, the Court need not

6 The Court instructed the jury as to willful misconduct that
Willful misconduct means conduct whereby the actor
desired to bring about the result that followed or at
least was aware that it was substantially certain to
follow, so that such desire can be implied. “Willful
misconduct” is synonymous with intentional misconduct.
Thus, in order to find that Broadridge engaged in willful
misconduct, you must find that Broadridge was aware that
its failure to use commercially reasonable efforts to
refer viable clients would cause harm to Plan Management
and intended to cause such harm.
Day 8 Tr. at 22:24-23:8, ECF No. 243.
conditionally rule on a new trial motion pursuant to Federal
Rule of Civil Procedure 50(c)(1).
a. Breach

Broadridge contends that it is entitled to judgment as a
matter of law on the issue of breach of the Marketing Agreement
because (1) Plan Management did not produce evidence indicating
that the Marketing Agreement required a specific number of
referrals; (2) Plan Management failed to demonstrate that
Broadridge did not use commercially reasonable efforts to refer
Viable Clients; and (3) the heading “Referral Obligation” has no
meaning and cannot alter the meaning of the referral clause
given Paragraph 15(e) of the Marketing Agreement. Broadridge
makes this argument despite the Court’s prior finding that
Agreement was ambiguous, and the jury would determine its
meaning. Plan Management argues that there was more than enough

evidence for the jury to find in Plan Management’s favor and
that the jury was reasonable in finding that Broadridge breached
the Marketing Agreement.
The Court disagrees with Broadridge. The jury could have
reasonably concluded that Broadridge breached the Marketing
Agreement because it (1) did not use commercially reasonable
efforts and failed to meet the referral target,7 or (2) that it

7 The testimony at trial conflicted as to whether the Referral
Target was a “goal” or a “requirement.” Compare, e.g., Day 2
did use commercially reasonable efforts but still failed to meet
the referral target, or (3) that there was no required number of
referrals but Broadridge still failed to use commercially

reasonable efforts to refer Viable Clients. In other words, it
was reasonable for the jury to find that referring 20 Viable
Clients over 5 years, out of a “target” 1221 Viable Clients,
constituted a breach of the Agreement, even if Broadridge used
commercially reasonable efforts to refer clients and even if
precisely 1221 Viable Clients were not required.
On direct examination, Mr. Miller explained that
“commercially reasonable efforts” would obligate Broadridge to
do for Plan Management what Broadridge would do for itself,
including but not limited to (1) creating a web portal;
(2) using search engine optimization; (3) tracking “clicks”
online; (4) inviting Plan Management representatives to

networking opportunities; (5) naming a designated liaison;
(6) checking in with Broadridge representatives frequently to
ensure performance in line with the Marketing Agreement;
(7) communicating with Plan Management more frequently regarding

Tr., 95:25-96:1, ECF No. 237 (testimony of Jonathan Miller)
(“[T]hat’s the minimum amount they’re supposed to try and
reach.”) with Day 4 Tr. at 66:1, ECF No. 239 (testimony of Mark
Kopelman) (“There’s no formula, no guarantee.”). But, the
uncontroverted evidence showed that, regardless, Broadridge came
nowhere close to meeting the Referral Target in any year of the
term of the Marketing Agreement.
the referral process; and (8) following up more frequently with
prospects. Day 2 Tr. 92:20-95:16, ECF No. 237.8 Mr. Miller did
not offer any testimony as to an industry-wide understanding of

“commercially reasonable efforts” for referrals.
When discussing the course of performance of the Marketing
Agreement, also on direct examination, Mr. Miller stated that
he, among others at Plan Management (Laura Abarca, Christina
Miller, Jen Levine, and Lisa Fidaleo), noticed the lack of
referrals and made efforts to address Broadridge’s failure to
refer 200 Viable Clients in the first year of the contract.
These attempts to get more referrals from Broadridge continued
throughout the term of the Agreement: Mr. Miller testified that
Plan Management continued to seek more referrals from Broadridge
in 2011. Day 2 Tr. at 133:8-13, ECF No. 237. Plan Management
eventually created a referral form to facilitate the referral

process, “[b]ecause we were getting nowhere with the referrals
from the people, the Broadridge salespeople.” Id. at 136:2-3.
The evidence at trial, viewed in the light most favorable
to Plan Management, indicated that despite Plan Management’s
attempts to improve the referral relationship, Broadridge did
not improve its performance over time. For instance, Miriam

8 This testimony was not objected to by Broadridge; however, the
Court precluded later testimony by nonparties to the contract,
namely Mark Kopelman, about their understanding of commercially
reasonable efforts.
Felix, a Broadridge employee familiar with the Salesforce
database used by Broadridge to track contacts with corporate
issuer clients, testified that there was a significant decrease

in contacts from 2010 to 2015. See Day 4 Tr. at 134:17-137:20,
ECF No. 239.9 The jury could have reasonably believed this
testimony and found that the decrease in Salesforce activity was
indicative of Broadridge’s failure to refer clients.
Moreover, the testimony at trial, viewed most favorably to
Plan Management, indicated that Broadridge did not have
sufficient mechanisms in place to manage and track referrals. It
was Mr. Miller’s impression that “[n]obody seemed to be really
in charge of” the agreed-upon referrals. Day 2 Tr. 131:24-133:4,
ECF No. 237. Jen Levine, who was employed by Broadridge and Plan
Management at different times, also testified that there was not
a process in place nor a particular point person at Broadridge

for referrals and demonstrations. Day 5 Tr. at 26:23-27:12, ECF
No. 240. Broadridge had no tracking mechanism for referrals. Id.
at 27:17-20.10 At some point, Ms. Levine noted, Plan Management

9 Ms. Felix did testify, however, that some of the contacts
needed to be manually entered into the database; thus, it is
possible that not all contacts with clients were recorded if a
sales representative of Broadridge intentionally or
unintentionally did not create a record of the contact. Day 4
Tr. at 146:20-147:10, ECF No. 239.

10 Although Broadridge presented competing testimony that there
were designated liaisons from time to time, it is the province
of the jury to weigh the evidence. See Day 4 Tr. at 32:3-10,
itself created a spreadsheet or other record of referrals and
demonstrations. See Day 5 Tr. at 46:1-20, ECF No. 240 (cross-
examination of Jen Levine). Although there was no contractual

obligation for either party to track the number of referrals,
the jury could have reasonably found that it would have been
commercially reasonable for Broadridge to track referrals.
This is not to say that the testimony was unequivocally in
Plan Management’s favor. The evidence indicated that Broadridge
sales representatives took at least some efforts to refer
clients under the Marketing Agreement.
For instance, the testimony at trial indicated that
Broadridge salespeople understood that they would need multiple
points of contact with a company to get the company interested
in Plan Management’s services--and Broadridge representatives
often did make multiple contacts. Matthew Criscenzo, a

Broadridge sales representative, described the sales process: “I
typically would have to send three emails before I got a
response. So I know as a process I would send multiple times
similar types of emails to get them to respond to me.” Day 6 Tr.
at 75:12-14, ECF No. 241. As did Amy Pavich. See Id. at 157:15-

76:18-20, ECF No. 239 (testimony of Mark Kopelman stating that
Marlayna Jeanclerc and John Weidman served as liaisons). This is
especially the case where, as here, the alleged designated
liaisons did not testify at trial. A missing witness instruction
was not given to the jury.
158:12 (describing why it would take a Broadridge sales
representative years or more to close a new prospect).11
Broadridge representatives also testified that there were a

number of hurdles that arose during the term of the Agreement.
First, Broadridge representatives had difficulty finding
clients which were actually interested in Plan Management’s
services. Not all companies that otherwise met the definition of
“viable client” were interested in switching from their existing
plan administrator to Plan Management. See Day 4 Tr. at 92:9-
93:15, ECF No. 239 (testimony of Mark Kopelman) (describing an
email chain with John Weidman in which a prospective client who

11 Elena Thomas, Jonathan Miller’s daughter and a Plan Management
employee, similarly described the sales process:
Often we do what’s called consultative selling. So
you’re asking questions to understand what they’re doing
today, what their needs are, and then having a discussion
with them about here’s what we can do to help solve that
problem. A lot of times, particularly when you’re
talking B2B sales, it can be a longer sales process
because they have a lot of other things on their plate
to do. There might be multiple decision-makers involved.
So, you know, I think they say on average for kind
of B2B software, it’s seven or ten touch points before
you often get real engagement. And then for us, they
would see a platform demonstration where we would focus
that demonstration based on what we’ve learned about
them and their needs and then provide them with a
proposal, see if there’s any blocking hazards between us
and them feeling that it’s a good fit and help them
together, work through those to see if it’s the right
solution.
Day 5 Tr. at 152:8-24, ECF No. 240 (direct examination of Elena
Thomas). Her testimony thus reflects an understanding that
“commercially reasonable efforts” would involve several contacts
with a prospect over a period of time.
had used Merrill Lynch for plan administration declined to
switch to Plan Management after receiving information about its
services from Broadridge).12

Second, Broadridge representatives testified that their
contacts with corporate issuer clients were not the proper
person to talk to at the company regarding equity compensation
plans. Amy Pavich, a former Broadridge sales representative,
expressed difficulty in referring prospects to Plan Management.
In particular, she testified that “[t]here was some difficulty
because . . . my contacts would not know the information that I
was trying to ask who their plan administrator was or if there
was a need on that side of things,” because her contacts with
corporate issuer clients were “usually the decision makers for

12 In addition, it appeared that Plan Management did not
necessarily expect to close on many referrals:
There were just very few, as we just saw on the list,
who really were a good fit for us and really wanted our
product. I think at times the salespeople were just
trying to add it in to maybe get the commission added
into their list of products they were trying to sell,
but the client wasn’t really a fit for what we had to
offer. So, providing the name wasn’t necessarily an
interested client, it was just a reference.
Day 5 Tr. at 106:1-8, ECF No. 240 (redirect of Jen Levine).
This evidence indicated that the Referral Target may have
been ambitious, but, Broadridge has not specifically argued that
the number was impossible, impracticable, unconscionable, or
that any of Plan Management’s actions in connection with the
referral process could have frustrated the purpose of the
contract. Sophisticated parties, with assistance of counsel,
formed this agreement among numerous others. Plaintiff
acknowledges as much in its response in opposition. See ECF No.
269 at 10 n.2.
transfer agent services.” Day 6 Tr. at 159:5-12, 159:21-160:3,
ECF No. 241.
Third, an apparent lack of prompt communication between

Plan Management and Broadridge created obstacles in the referral
relationship. Mr. Kopelman testified that Plan Management was
not diligent in responding to client inquiries from Broadridge
representatives, which made it more difficult to make referrals.
Day 4 Tr. at 26:2-13, ECF No. 239. “[I]f it takes 24 or 48, 36
hours to get back to the client, the client sees that as an
indication that perhaps the ongoing service experience won’t be
right.” Id. at 31:4-7. Mr. Kopelman also testified that Plan
Management provided Broadridge marketing materials at some point
within the first year of the contract, but “it took a while.”
Id. at 36:7-15.
Despite these difficulties mentioned by certain Broadridge

representatives who testified, the evidence was uncontroverted
that Individual Broadridge sales representatives were not made
aware of any requirement to refer a particular number of
clients. Day 6 Tr. at 49:18-20, ECF No. 241 (direct examination
of Matthew Criscenzo); id. at 146:25-147:1 (direct examination
of Amy Pavich); Day 7 Tr. at 52:11-13, ECF No. 242 (direct
examination of Megan Flemming). Given that Broadridge
representatives would receive a bonus for referring clients, Day
6 Tr. at 51:6–54:7, ECF No. 241, the jury could have found that
it was not commercially reasonable for Broadridge to fail to
make its representatives more aware of the Marketing Agreement
and accompanying financial incentives.

In addition, there was no testimony from Broadridge senior
executives about what would be commercially reasonable for its
representatives to do. There was no testimony as to Broadridge’s
“economic interests” including but not limited to marketing
costs, the time spent by Broadridge representatives in making
referral efforts, any efforts by Broadridge to seek new clients
and market Plan Management’s services to such new clients, or
Broadridge’s use of search engine optimization or other wide-
ranging or non-targeted marketing efforts. Without this
testimony, the jury was only faced with testimony regarding
Broadridge’s lack of diligence in its performance of the
Marketing Agreement. Thus, it was reasonable for the jury to

rely on the testimony regarding the contractual language and
performance of the contract in determining that Broadridge was
in breach.
Viewing all the evidence in the light most favorable to
Plan Management, it was reasonable for the jury to conclude that
Broadridge’s efforts were insufficient to meet the terms of the
Marketing Agreement.
b. Gross Negligence or Willful Misconduct
Following a verdict in favor of Plan Management as to both
gross negligence and willful misconduct, Broadridge argues that

the evidence was insufficient to find that it acted with gross
negligence or willful misconduct in its performance of the
Marketing Agreement. Broadridge points to testimony at trial
indicating that its representatives intended to perform the
Marketing Agreement (and wanted Plan Management to succeed).
Broadridge also points to testimony from both Plan Management
and Broadridge witnesses indicating that it often took a number
of contacts, over a number of years, to get a client interested
in additional services.13
On the other hand, Plan Management argues that the jury
reasonably found that Broadridge acted with gross negligence or
willful misconduct in breaching the Marketing Agreement because

(1) Broadridge’s referral efforts were too generic;
(2) Broadridge lacked any system to track referrals or request
referral fees; (3) Broadridge failed to use the referral forms
provided by Plan Management to facilitate referrals; and (4) no

13 Again, however, Broadridge does not now, nor has it
previously, argued that the length of time that it would take
for its representatives to successfully refer a Viable Client to
Plan Management would have exceeded the Term of the Marketing
Agreement, making performance impracticable or impossible.
representative of Broadridge ever reached out to Plan Management
regarding referral difficulties.
The evidence produced at trial, viewed in the light most

favorable to Plan Management, did not show that Broadridge
breached the Marketing Agreement willfully. However, there was
sufficient evidence produced at trial for a reasonable jury to
find that Broadridge was grossly negligent in performing the
Marketing Agreement.
As discussed in subsection III.A.2.a. above, the evidence
at trial showed that Broadridge representatives took some steps
to refer leads to Plan Management. But, the testimony tended to
indicate that Broadridge’s failure to refer Viable Clients
resulted from more than mere negligence, by means of
(1) Broadridge’s failure to track referrals; (2) Broadridge’s
failure to send more personalized, detailed correspondence to

prospects; and (3) Broadridge’s general apathy to Plan
Management’s requests for additional referrals.
First, the evidence indicated that it would have been
prudent for Broadridge to track referrals, despite not being
contractually obligated to do so. This is especially so in light
of the testimony that Broadridge representatives were aware of
Plan Management’s dissatisfaction with the referral numbers
throughout the term of the contract: although Mr. Miller did not
write a formal letter of breach until 2014, he repeatedly
reached out to Broadridge representatives seeking additional
referrals. See Day 3 Tr. at 66:8-10, ECF No. 238 (“We sent
numerous messages to various people, contacts, saying, where are

the referrals we’ve [been] promised? Why are we not getting
referrals?”); id. at 96:8-10 (“[T]here are numerous emails from
us to Broadridge saying . . . [w]hy are we not getting referrals
to me? Why is this arrangement [] not working.”); see also Day 2
Tr. at 136:2-3, ECF No. 237 (stating that Plan Management
created the referral form “[b]ecause we were getting nowhere
with the referrals from the people, the Broadridge
salespeople”). Broadridge employees thus were, or should have
been, on notice that their conduct departed from the standard of
care established by the Marketing Agreement.14 The jury could
have reasonably found that Broadridge was grossly negligent for
failing to improve its performance.

Second, as Plan Management argues, the emails memorialized
in the Salesforce database excerpt (Broadridge’s Exhibit
5/Plaintiffs’ Exhibit 349) indicate that the quantity of

14 There was no testimony as to the industry standard of care in
interacting with clients and referring clients. But, such
testimony is not required to establish the standard of care.
See, e.g., Moushey v. U.S. Steel Corp., 374 F.2d 561, 567 (3d
Cir. 1967); see also Bourgeois v. Snow Time, Inc., 242 A.3d 637,
659 (Pa. 2020) (holding that it was error for the Superior Court
to reject an expert report for failing to set forth a standard
of care where the report created an issue of fact as to whether
a party was on notice of a risk of harm).
contacts overrepresents the efforts taken by Broadridge sales
representatives. Plan Management argues that Broadridge cannot
claim that it made a significant effort to comply with the

contract where at least 500 of the 2000 recorded contacts were
mass-marketing emails that did not specifically discuss Plan
Management’s services.15 See Pl.’s Resp. at 24, ECF No. 248.
These emails were not individually tailored to each client. Yet,
Broadridge representatives testified that not all contacts with
clients would be memorialized in Salesforce--only if follow up
was required. See Day 6 Tr. at 65:14-66:6, 68:6-8, ECF No. 241
(testimony of Matthew Criscenzo); id. at 130:5-7 (“[I]f I sent
an email out to an issuer and they didn’t respond, I would not
certainly enter that into Broadforce of Salesforce because
there’s no follow-up required on that email.”). A reasonable
jury could have believed this evidence, or decided that it was a

poor excuse for a failure to make greater referral efforts, or

15 Plan Management also focuses on the use of “plan management”
as a general term rather than a company name, and the lack of
references to OptionTrax in Broadridge’s recorded contacts to
show that Broadridge was grossly negligent or willful in failing
to meet the referral obligation. But Plan Management witness
Elena Thomas testified that it would take several contacts with
a prospect in order to get a client interested in additional
services. Thus, the fact that Broadridge used general terms in
its contacts with clients, especially in the mass-marketing
email blasts, is not necessarily probative of the quantity or
quality of efforts that Broadridge used. Moreover, it is likely
that Broadridge’s clients were not particularly familiar with
Plan Management or OptionTrax, and so these terms could have
created confusion.
instead believed that it was grossly negligent for Broadridge
not to record all communications with potential referrals.
Third, the testimony at trial indicated that Broadridge

representatives were not overly concerned with increasing
referrals or improving the referral process--despite having a
contractual obligation and financial incentive to do so.
Although the representatives experienced certain hurdles--not
knowing the right contacts with a client or learning that the
client did not need additional services--there was no evidence
indicating that Broadridge representatives tried to find
additional clients who could be Viable Clients or otherwise
tried to get the contact information of the appropriate
corporate representatives. Nor was there evidence that
Broadridge representatives contacted Plan Management about these
difficulties or sought to discuss a new strategy for referrals.

Day 2 Tr. at 136:14-24, ECF No. 237 (direct examination of
Jonathan Miller).
Yet, there was no evidence produced at trial that indicated
that Broadridge willfully breached the Marketing Agreement or
acted in bad faith. Testimony from Broadridge sales
representatives indicated that they would only intentionally not
mention Plan Management or make a referral effort when
communicating with existing corporate issuer clients when doing
so would be commercially inappropriate, such as (1) during proxy
season and (2) before a representative had ascertained the needs
of the particular client. See, e.g., Day 6 Tr. at 74:9-16, ECF
No. 241 (testimony of Matthew Criscenzo); id. at 156:16-20

(testimony of Amy Pavich). This testimony, uncontroverted, thus
set some boundaries on what would be considered “commercially
reasonable” in the context of the Marketing Agreement. To the
extent that the jury disregarded this testimony, it was not
reasonable to do so.
Ms. Pavich, another Broadridge sales representative,
understood that the Marketing Agreement created a synergistic
partnership. Day 6 Tr. at 145:5-7, ECF No. 241 (“My
understanding was that it was a referral partnership and that we
were to refer any leads that we would uncover to PMC for plan
administration services.”). See note 12, supra. As did Matthew
Criscenzo, who described the Marketing Agreement as a “win-win”

because it allowed him “opportunities to get into the client and
offer more services.” Day 6 Tr. at 51:2-5, ECF No. 241. Thus,
there was testimony from Broadridge witnesses that they intended
to perform under the Marketing Agreement.
For the jury to have found that Broadridge acted willfully,
the jury must have disregarded the testimony of Broadridge’s
witnesses entirely and assumed that if Broadridge referred so
few clients, it must have done so willfully. But, even if the
testimony of the Broadridge witnesses was not believed, Plan
Management failed to introduce sufficient evidence of willful
breach: the evidence only supports the conclusion that
Broadridge was grossly negligent, not willful, in its breach of

the Marketing Agreement. There was no evidence indicating that
Broadridge was aware that its failure to use commercially
reasonable efforts to refer viable clients would cause harm to
Plan Management, and intended to cause such harm, as the jury
was instructed. In the absence of such evidence regarding the
intent to cause harm, the jury had no reasonable basis upon
which to find that Broadridge had breached the Marketing
Agreement willfully.
Thus, the motion for judgment as a matter of law will be
denied as to breach and gross negligence, but granted as to
willful misconduct. The Court need not conditionally rule on a
motion for a new trial, however, because the jury only need have

found either gross negligence or willful misconduct in order to
award consequential damages.
B. Motion for a New Trial
Broadridge moves for a new trial, generally asserting the
same grounds as contained in its motion for judgment as a matter
of law. Mr. Miller also moves for a new trial, his fraudulent
inducement claim having been disposed of at the close of
Plaintiffs’ case. The Court addresses these motions in turn.
1. Legal Standard
Under Federal Rule of Civil Procedure 59, “[t]he court may,
on motion, grant a new trial on all or some of the issues--and

to any party . . . after a jury trial, for any reason for which
a new trial has heretofore been granted in an action at law in
federal court.” Fed. R. Civ. P. 59(a)(1)(A). When ruling on a
motion for a new trial, as with a motion for judgment as a
matter of law, the Court “does not substitute its ‘judgment of
the facts and the credibility of the witnesses for that of the
jury.’” Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061,
1076 (3d Cir. 1996) (quoting Fineman v. Armstrong World Indus.,
Inc., 980 F.2d 171, 211 (3d Cir. 1992)). However, when ruling on
a motion for a new trial, the Court need not view the evidence
in the light most favorable to the verdict-winner. Taha v. Bucks
County Pennsylvania, 408 F. Supp. 3d 628, 643 (E.D. Pa. 2019)

(citing Wilson v. Philadelphia Det. Ctr., 986 F. Supp. 282, 287
(E.D. Pa. 1997)).
“A new trial may be granted ‘when the verdict is contrary
to the great weight of the evidence; that is where a miscarriage
of justice would result if the verdict were to stand’ or when
the court believes the verdict results from jury confusion.”
Brown v. Nutrition Mgmt. Servs. Co., 370 F. App’x 267, 269–70
(3d Cir. 2010) (quoting Pryer v. C.O. 3 Slavic, 251 F.3d 448,
453 (3d Cir. 2001)); accord Farra v. Stanley-Bostitch, Inc., 838
F. Supp. 1021, 1026 (E.D. Pa. 1993) (Robreno, J.). Or, a new
trial may be granted “where substantial errors occurred in
admission or rejection of evidence.” Goodman v. Pa. Turnpike

Comm’n, 293 F.3d 655 (3d Cir. 2002). But, “[u]nless justice
requires otherwise, no error in admitting or excluding evidence-
-or any other error by the court or a party--is ground for
granting a new trial [or] for setting aside a verdict . . . .”
Fed. R. Civ. P. 61.
In addition, the mere fact that a party presented witnesses
in support of its claim “sheds no light on the credibility or
weight the jury accorded such evidence”; thus, a new trial
cannot be granted solely on the basis that a party has presented
some evidence. Jester v. Hutt, 937 F.3d 233, 239–40 (3d Cir.
2019). In other words, “where the evidence is in conflict,
however, and subject to two or more interpretations, the trial

judge should be reluctant to grant a new trial.” Bender v.
Norfolk S. Corp., 31 F. Supp. 3d 659, 664–65 (M.D. Pa. 2014)
(citing Klein v. Hollings, 992 F.2d 1285, 1295 (3d Cir. 1993)).
2. Broadridge’s Motion for New Trial
Broadridge contends that “[t]he jury in this case
fundamentally misinterpreted the Marketing Agreement and failed
to appropriately apply the law as instructed.” Def.’s Mot. for
New Trial at 1, ECF No. 258. In support of this argument,
Broadridge points to the text of the Marketing Agreement
(including paragraph 15(e), which limits the function of
headings to “convenience”); testimony at trial regarding the
scope of the Marketing Agreement (i.e., that neither party to

the contract was required by the contract to track referrals);
and testimony at trial regarding Broadridge’s “commercially
reasonable efforts” to refer Viable Clients. Broadridge also
argues that whether or not a referred client viewed a
demonstration of OptionTrax--a requirement for a referred client
to become a “Viable Client” was out of its control; accordingly,
“Broadridge had no control over whether its efforts ultimately
resulted in a specific number of 1220 referrals of ‘viable
clients.’” Id. at 8.16
Broadridge further contends that it is entitled to a new
trial because the Court made of a number of prejudicial errors
in admitting evidence. Broadridge argues that the Court’s

rulings regarding pre-execution documents and Mr. Miller’s
subjective understanding of the Marketing Agreement were
prejudicial error. Before trial, Broadridge lodged boilerplate
objections as to many of Plaintiffs’ exhibits. See Def.’s
Pretrial Mem. App. H, ECF No. 202-8. Broadridge renews its

16 Although Broadridge argues that Plan Management had to take
action on referrals in order for them to meet the contractual
definition of “Viable Client,” Broadridge does not set forth any
argument as to a justification for nonperformance--such as
frustration of purpose by means of Plan Management’s failure to
timely capitalize on all referred clients.
objections as to certain of those documents (P-039, P-040, P-
042, P-047, P-052, P-184, P-331, P-344, and P-345). Broadridge
also argues that Mr. Miller’s direct testimony regarding his

understanding of the Marketing Agreement was improper.
Broadridge did not object to that testimony during trial.
Plan Management counters that there was sufficient evidence
for the jury to find in its favor; the verdict did not result in
a miscarriage of justice; the verdict does not shock the
conscience; and any trial error that may have occurred was
harmless. Pls.’ Resp. at 2, ECF No. 269.
“[A] party who fails to object to errors at trial waives
the right to complain about them following trial.” Waldorf v.
Shuta, 142 F.3d 601, 629 (3d Cir. 1998); see also State Farm
Mut. Auto Ins. Co. v. Lincow, 715 F. Supp. 2d 617, 635-36 & n.16
(E.D. Pa. 2010) (stating that a foundation objection not raised

at trial was waived for purposes of a motion for a new trial);
Wells v. Loizos, No. 06-2320, 2015 WL 685126, at *2 (E.D. Pa.
Feb. 18, 2015); Christine v. Davis, 600 F. App’x 47, 50 (3d Cir.
2015) (“[A]s Christine did not make a contemporaneous objection
to the introduction of [an exhibit], that issue is waived [in a
motion for a new trial].”). Because Broadridge did not object to
Mr. Miller’s testimony regarding his general understanding of
the contract and the meaning of “commercially reasonable
efforts,” the objection to Mr. Miller’s testimony was waived.
See Day 2 Tr. at 92:20-95:16, ECF No. 237.17
But, the Court may review a waived objection where counsel

“failed to object to a fundamental and highly prejudicial error
resulting in a miscarriage of justice.” Fleck v. KDI Sylvan
Pools, Inc., 981 F.2d 107, 116 (3d Cir. 1992). However, even if
Mr. Miller’s testimony and certain pre-execution documents were
erroneously admitted, Broadridge has not demonstrated that it
was prejudiced.
As to Mr. Miller’s testimony regarding “commercially
reasonable efforts,” Broadridge did not present any evidence
regarding the economic factors that would have determined the
breadth and depth of its referral efforts, nor testimony
concerning what was “commercially reasonable.” Instead,
Broadridge presented the jury with testimony regarding the

diligence of Broadridge and Plan Management representatives.
Therefore, Broadridge has not shown that any errors made by the
Court affected its substantial rights, requiring the Court to
consider its waived objections.
As to certain pre-execution documents to which Broadridge
objected prior to trial, Broadridge was also not prejudiced.

17 Broadridge did object at one point to Mr. Miller’s estimate of
some percentage of public companies. Day 2 Tr. at 93:20-21, ECF
No. 237. That objection is irrelevant for these purposes.
These documents do not provide substantial context as to the
interpretation of the contract. Rather, these documents tend to
describe the due diligence and acquisition process without

stating in any detail the meaning of “referral target” or
“commercially reasonable efforts.” In addition, at the close of
trial, the jury was instructed that “Plan Management and
Broadridge agree that the Marketing Agreement represents the
entire agreements between them because it is a written contract
fully executed by both parties.” Day 8 Tr. at 20:4-7, ECF No.
243. In light of the substance of these exhibits and the
limiting instruction to the jury, Broadridge cannot have been
prejudiced.
Broadridge has not shown that it is entitled to a new trial
as to liability. It has not pointed to any error that would
warrant disturbing the jury’s verdict. Nor has Broadridge shown

that the verdict was against the great weight of the evidence or
that allowing the verdict to stand would be a miscarriage of
justice. Rather, as discussed in section III.A.2 above, this is
a case where both parties presented evidence of their own
interpretation of the ambiguous Marketing Agreement and the
efforts that were made to refer clients, and the jury found the
evidence to weigh in favor of Plan Management. See Jester v.
Hutt, 937 F.3d at 239–40. Accordingly, Broadridge’s motion for a
new trial as to liability will be denied.
3. Plaintiff Jonathan Miller’s Motion for New Trial
To make out a claim for fraudulent inducement, Mr. Miller
must demonstrate that there was “(1) a representation; (2) which
is material to the transaction at hand; (3) made falsely, with
knowledge of its falsity or recklessness as to whether it is
true or false; (4) with the intent of misleading another into
relying on it; (5) justifiable reliance on the

misrepresentation; and (6) the resulting injury was proximately
caused by the reliance.” Eigen v. Textron Lycoming Reciprocating
Engine Div., 874 A.2d 1179, 1185 (Pa. Super. Ct. 2005). A
plaintiff bringing a fraudulent inducement claim typically must
show deception by the defendant, and must prove all six elements
of fraudulent inducement by clear and convincing evidence.
SodexoMAGIC, LLC v. Drexel Univ., 24 F.4th 183, 205, 217 (3d
Cir. 2022). A broken promise is not the same as a fraudulent
inducement claim; a plaintiff must demonstrate that the
defendant never intended to perform the contract. Ohama v.
Markowitz, 434 F. Supp. 3d 303, 317–18 (E.D. Pa. 2020).

Mr. Miller contends that the Court improperly dismissed his
fraudulent inducement claim at the close of Plaintiffs’ case.
Broadridge argues that the Court properly dismissed the claim as
Mr. Miller has failed to prove all six elements of a fraudulent
inducement claim by clear and convincing evidence.18 Mr. Miller
has not made the requisite showing as to all six elements of
fraudulent inducement.

On one hand, Mr. Miller did show that there was a material
representation regarding the number of Viable Clients that
Broadridge would refer. Mr. Miller also demonstrated by clear
and convincing evidence that a failure of Broadridge to live up
to that representation would have caused and did cause harm--for
example, the exclusivity clause in the Marketing Agreement
prevented Plan Management from building relationships with other
firms during the five-year term of the contract.

18 Broadridge also contends that Mr. Miller’s fraud claims are
time-barred; Mr. Miller argues that his claim is not. As an
affirmative defense, Broadridge bears the burden of proving that
the claim is time-barred. See Fed. R. Civ. P. 8(c)(1).
Pennsylvania has a two-year statute of limitations on fraud
claims. 42 Pa. Cons. Stat. § 5524(7). Plaintiffs filed this
lawsuit on January 28, 2015; thus, for the claim to be time-
barred, Broadridge must have proved that Mr. Miller knew or had
constructive knowledge of the alleged fraud on or before January
28, 2013.
Broadridge failed to meet this burden. Mr. Miller
acknowledged that Broadridge’s performance was deficient under
the Marketing Agreement, and stated that he did not send a
notice of breach early in the contract term because “I hoped
that they were really going to try to do it, that they intended
to try.” See Day 3 Tr. at 127:8-9, ECF No. 238 (redirect of
Jonathan Miller). The jury could have reasonably concluded that
this testimony indicated that Broadridge was not performing as
it should have been under the Agreement, but that Mr. Miller
genuinely believed that Broadridge would improve its performance
throughout the life of the Marketing Agreement.
On the other hand, however, a reasonable jury could not
have found, by clear and convincing evidence, that Broadridge’s
statements in the Marketing Agreement were “made falsely, with

knowledge of its falsity or recklessness as to whether it is
true or false.” Although Plaintiffs point to statements by Mr.
Kopelman describing his understanding of Broadridge’s
obligations under the contract, a person’s understanding of
their duty to perform a contract is not the same as their intent
to perform the contract at the time it is executed. Moreover,
Broadridge points to certain admitted documents that demonstrate
that it did make some efforts under the Marketing Agreement to
refer clients. See Def.’s Ex. 62; Pls.’ Ex. 128. Plaintiffs also
adduced no evidence regarding Broadridge’s intent to perform at
the time of contracting; rather, Plaintiffs have only provided
evidence that their interpretation of the contract and

Broadridge’s interpretation of the contract differed.
Even if a jury could find that the statements were made
falsely, a reasonable jury could not find by clear and
convincing evidence that Broadridge did so “with the intent of
misleading another into relying on it.” Plaintiff Jonathan
Miller testified at trial that he was not forced to sell
StockTrans. Day 3 Tr. at 43:2, ECF No. 238. As Broadridge notes,
“[a]bsent from the record is any testimony or documentary
evidence showing that Broadridge sought to acquire Mr. Miller’s
company with fraudulent intent.” Instead, the record indicated
that, while an acquisition would certainly be lucrative for
Broadridge, Broadridge and Miller sought to maintain a healthy

working relationship. See Pl.’s Ex. 345 at 4; Day 3 Tr. 46:16-
17, ECF No. 238 (“Why would I [send a notice of breach] when I
wanted them to continue, when I was hoping they would do what
they actually promised to do.”); Day 4 Tr. 27:3-9, ECF No. 239
(“[W]e needed Mr. Miller. . . . He knows the market well. He was
a good advisor. He was the expert on plan management. We had a
three-year consulting agreement where we were counting on his
expertise. We had a five-year agreement at the time with Plan
Management and it was part of a long-term relationship we were
trying to build.”).
Broadridge was aware of Mr. Miller’s attachment to his
companies and took care to make an offer that was fair and

reasonable. Mark Kopelman, on examination by Plan Management,
noted that Broadridge representatives were aware “that Mr.
Miller has shown an emotional attachment to his business.” Day 3
Tr. at 148:19-21, ECF No. 238. Further, Broadridge
representatives “believe[d] it [was] essential to provide a
serious, thoughtful offer. We believe the perception of ‘bargain
hunting’ would be poorly received and hurt the prospects for a
deal.” Id. at 156:17-20.
Finally, the record does indicate that the purchase of
StockTrans would be profitable for Broadridge. See Pl.’s Ex.
345. But, that Broadridge wanted to purchase StockTrans because

of the potentially profitable business opportunity does not,
without further evidence of motive, show by clear and convincing
evidence that Broadridge intended to mislead Mr. Miller into
relying on the representations made in the Marketing Agreement.
This is especially true where the trial testimony indicated that
Broadridge knew of Mr. Miller’s desire to have a marketing
alliance for a number of months before the contracts were
finalized, and that “Broadridge was not going to commit to a
particular number of either referrals or nor certainly sales.
And that was a clear point of discussion over many months.” Day
4 Tr. at 22:20-24, 66:4-7, ECF No. 239.
Accordingly, because there was insufficient evidence for

Mr. Miller to sustain his claim, by clear and convincing
evidence, that Broadridge acted with fraudulent intent in
promising that it would perform the Marketing Agreement in
exchange, in part, for the sale of StockTrans, there is no
miscarriage of justice in allowing the Court’s prior ruling to
stand. Mr. Miller’s motion for a new trial will be denied.
IV. MOTIONS AS TO DAMAGES
Having found for Plan Management as to liability, the jury
awarded Plan Management $25,000,000.00 in compensatory damages.
Broadridge challenges the damages award on the grounds that Mr.
Molder’s expert report was not sufficiently based in the trial
record. Broadridge seeks first to strike Mr. Molder’s expert

report, which it argues must result in judgment as a matter of
law in its favor or a granting of a new trial. In the
alternative, Broadridge seeks remittitur of the damage award. On
the other hand, Plan Management argues that the damage award was
proper and seeks post-judgment interest. These motions will be
addressed in turn.
A. Motion to Strike Expert Report
The Court first addresses Broadridge’s motion to strike the
report and testimony of Mr. Molder, as “erroneously admitted
evidence should not be considered when ruling on motions for
judgment as a matter of law.” Goodman, 293 F.3d at 665 (citing
Lightning Lube, 4 F.3d at 1199-1200). Plan Management called Mr.

Molder to testify as to Plan Management’s projected lost profits
caused by Broadridge’s failure to refer clients under the
Marketing Agreement.
Broadridge seeks to strike the expert report of Michael
Molder on the grounds that (1) Plan Management did not introduce
any evidence of the facts underlying Mr. Molder’s assumptions;
(2) Mr. Molder did not independently investigate any of the data
provided to him or consult any materials other than those
provided by Plan Management; and (3) Mr. Molder did not use
complete data in his report. More specifically, Broadridge
contends that Plan Management failed to introduce evidence to
demonstrate the key factors comprising Mr. Molder’s lost profits

calculation: (1) a conversion rate; (2) a retention rate; (3) a
“license fee”; and (4) pricing. Accordingly, Broadridge argues,
the expert testimony was not based on sufficient facts nor was
it helpful, making such testimony inadmissible under Federal
Rule of Evidence 702. See Def.’s Suppl. Mot. to Strike 2-3, ECF
No. 255.
Plan Management contends, on the other hand, (1) that the
trial record contains sufficient evidence to establish the facts
underlying the expert testimony and (2) that there is no duty
for an expert witness to independently investigate “a company’s
routine pricing when calculating lost profits.” Pl.’s Resp. to
Mot. to Strike 1-2, ECF No. 268. Plan Management further argues

that the sidebar discussion with the Court prior to the direct
examination of Mr. Molder indicates that Broadridge conceded
admissibility and would only challenge the weight of the
evidence on cross examination. Id. at 14-15, ECF No. 268.
Moreover, Plan Management argues that Broadridge had a full and
fair opportunity to cross examine Mr. Molder, and the Court
should respect the jury’s verdict in light of such cross
examination. Id. at 6.
Given that, at trial, there was insufficient evidentiary
support for Mr. Molder’s conclusions regarding Plan Management’s
fees for the clients that Broadridge failed to refer, his

calculation was not helpful and should have been stricken.
1. Legal Standard
Under Federal Rule of Evidence 702,
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or
data;
(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the principles
and methods to the facts of the case.

Fed. R. Evid. 702.
In determining whether a witness may testify as an expert,
the Court makes “a preliminary assessment of whether the
reasoning or methodology underlying the testimony is
scientifically valid and of whether that reasoning or
methodology properly can be applied to the facts in issue.”
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93
(1993). After the Court determines that an expert’s opinion is
sufficiently reliable, the jury assesses the sufficiency and
credibility of the expert testimony. Brill v. Marandola, 540 F.
Supp. 2d 563, 568 (E.D. Pa. 2008) (“Questions as to the
sufficiency of an expert’s factual basis are generally left to
the jury.” (quoting JMJ Enters. V. Via Veneto Italian Ice, No.
97-0652, 1998 WL 175888, at *6 (E.D. Pa. Apr. 15, 1998))).

Expert witnesses have broader latitude in their testimony
than lay witnesses:
An expert may base an opinion on facts or data in the
case that the expert has been made aware of or personally
observed. If experts in the particular field would
reasonably rely on those kinds of facts or data in
forming an opinion on the subject, they need not be
admissible for the opinion to be admitted. But if the
facts or data would otherwise be inadmissible, the
proponent of the opinion may disclose them to the jury
only if their probative value in helping the jury
evaluate the opinion substantially outweighs their
prejudicial effect.

Fed. R. Evid. 703; see also Williams v. Illinois, 567 U.S. 50,
57 (2012) (“Under settled evidence law, an expert may express an
opinion that is based on facts that the expert assumes, but does
not know, to be true. It is then up to the party who calls the
expert to introduce other evidence establishing the facts
assumed by the expert.”). Thus, although the data or facts
underlying an expert’s opinion need not be admissible, the
expert opinion must have some basis in the record; otherwise, it
is neither helpful nor relevant to the issues in the case.
Evidence is considered “helpful,” in part, if there is a
“connection between the expert opinion offered and the
particular disputed factual issues in the case.” In re TMI
Litig., 193 F.3d 613, 670 (3d Cir. 1999). The Third Circuit has
a “presumption of helpfulness” regarding expert testimony.
United States v. Downing, 753 F.2d 1224, 1241 (3d Cir. 1985).
But, in order for expert testimony to be “helpful,” as

previously noted, it must be supported by the record. E.g.,
Elcock v. Kmart Corp., 233 F.3d 734, 755-56 (3d Cir. 2000);
Meadows v. Anchor Longwall & Rebuild, Inc., 306 F. App’x 781,
790 (3d Cir. 2009) (“[E]xpert testimony based on assumptions
lacking factual foundation in the record is properly
excluded.”).
“The ‘ultimate touchstone is helpfulness to the trier of
fact, and with regard to reliability, helpfulness turns on
whether the expert’s technique or principle [is] sufficiently
reliable so that it will aid the jury in reaching accurate
results.’” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744
(3d Cir. 1994) (quoting DeLuca ex rel. DeLuca v. Merrell Dow

Pharms., Inc., 911 F.2d 941, 956 (3d Cir. 1990)). Therefore,
“any step that renders the analysis unreliable under the Daubert
factors renders the expert’s testimony inadmissible.” Id. at 745
(emphasis omitted).
2. Analysis
The Court previously held that Mr. Molder’s calculations
were admissible so long as the factual assumptions underlying
his calculations were adduced at trial, given that he was
qualified to render an opinion, and used reliable methods (i.e.,
arithmetic) to reach his conclusions. Paramount Fin. Commc’ns,
Inc., 2018 WL 7815202, at *9-10. The factual assumptions
underlying Mr. Molder’s opinions included “(1) that plaintiffs

will prevail on issues of liability, (2) the numbers by which
Broadridge fell short of 200 Viable Client referrals annually,
(3) Plan Management’s conversion rate of 27.5%, (4) a typical
client retention period of 4 years, (5) various fees charged by
Plan Management in exchange for services, and (6) various costs
incurred by Plan Management in rendering its services.” Id. at
*8 n.10.
Mr. Molder’s general theory of the calculation was to “look
at the difference between what would have happened had the
transaction gone as anticipated versus what happened if it
didn’t” based on the “understanding” that “Broadridge was to
refer over the course of five years approximately 1200 potential

customers for Plan Management.” Day 8 Tr. at 139:23-140:3, ECF
No. 243. From that calculation, Mr. Molder “deducted the
additional cost that Plan Management would have incurred had
they actually had all of those additional customers.” Id. at
140:10-12. He explained the lost profits calculation as follows:
So the general formula for calculating lost profits in
this situation is the number of referrals that
Broadridge would send to Plan Management for which there
were presentations made. That had to get reduced to the
number of actual referrals that turned into customers,
which gets back to the conversion rate or close rate,
whatever you want to call it. And then because it’s not
a one-time transaction, these are relationship driven
customers. And so in order to find out how much revenue
that referral that customer, that new customer was going
to generate, I needed to have an idea of how long they
would last and continue to subscribe to Plan Management
services.

Day 8 Tr. at 143:6-17, ECF No. 243. The logic and arithmetic
underlying Mr. Molder’s calculations appear correct and
reasonable. At issue, thus, is whether there was a sufficient
factual basis at trial for the numbers upon which he relied for
his calculations.
Mr. Molder testified that the conversion rate was
“approximately one in three,” and arrived at this rate by
looking at “the number of customers [Plan Management] got from
presentations to publicly traded companies in the time period.”
Id. at 141:7-23.19 Mr. Molder focused on publicly traded
companies because those were “the majority of referrals
[Broadridge was] making . . . .” Id. at 142:7. Mr. Miller
described the conversion rate, or closing rate, as of “how many
of the prospects that you know are viable prospects, how many
did you actually sign up as clients,” and stated that the rate
with regard to viable clients referred by Broadridge “was five

19 The Conversion Rate that Mr. Molder used in his calculation
pertained solely to Plan Management’s ability to close clients
that were referred by Broadridge. The Conversion Rate
calculation was not derived from the general closing rate during
the term of the Marketing Agreement. It was thus not clear how
many clients Plan Management would stand to gain in a given year
aside from any referral efforts by Broadridge.
out of 18, which I believe is about 27, 28 percent.” Day 2 Tr.
at 103:1-19, ECF No. 237. Mr. Miller further recalled that “our
general range of clients closing was from 27 to 35 percent at

the time.” Id. at 103:12-14. Mr. Miller testified that “over the
life of the marketing agreement,” only “eighteen to twenty”
viable clients were referred to Plan Management by Broadridge.
Id. at 102:7-10. This testimony provided a sufficient
evidentiary basis for Mr. Molder’s conversion rate calculation.
To determine the retention rate, Mr. Molder looked to the
list of closed accounts, reasoning that it would otherwise be
too speculative to derive an average period of time that a Plan
Management client remained a client from customer accounts that
were still active. Day 8 Tr. at 143:20-144:7, ECF No. 243.20 Mr.
Molder only looked at data for public companies, as the
Marketing Agreement specified that Broadridge would refer public

companies.
For pricing, Mr. Molder relied on internal Plan Management
price matrices provided by Mr. Miller and Ms. Thomas. Id. at
144:14-18. Given that pricing is highly individualized, Mr.
Molder “could only look at the setup fee, which was bringing the

20 As Broadridge notes, Mr. Molder did not provide a detailed
explanation for making this assumption other than to state that
the sample could be “biased” by including newer (and older)
customers who maintained an active relationship with Plan
Management.
customer on board and setting up the plan in Plan Management’s
system and the annual licensing fee that Plan Management charged
for access to the software.” Id. at 145:13-16. During the

liability phase of trial, Mr. Miller testified that Plan
Management clients can license their software to administer
employee benefit plans, or that Plan Management can administer
the plans for the clients. Day 2 Tr. 40:15-21, ECF No. 237.
Mr. Molder created his own sampling of potential Viable
Clients from a total client list provided by Broadridge. He
looked to SEC filings for those companies in the selected sample
to determine the number of participants in an employee stock
purchase plan and thus ascertain the “typical Broadridge
customer.” Mr. Molder then asked Ms. Thomas what Plan
Management’s fee would be, for a customer of that size, and used
that fee in his calculations. Day 8 Tr. at 146:1-16, ECF No.

243. Of note, Mr. Molder was only able to determine the number
of employees at a given public company, and did not have any
data as to the number of plan participants. Without explanation,
he assumed that the number of plan participants was equal to the
number of employees. Mr. Molder observed that the median number
of employees in the companies sampled increased over time, and
assumed that the number of employee participants in a plan also
increased over time. Id. at 150:6-15.21 Elena Thomas testified
that “our bell curve has always been about 50 to 150”
participants in a client’s plan. Id. at 125:25-127:6 (cross-

examination of Elena Thomas).
Mr. Molder then multiplied the licensing fee and setup fee
by the number of clients that should have been closed to
ascertain the lost revenue for each year. Id. at 150:22-152:14.
Then, for each subsequent year that a closed client was a
client--determined by multiplying the number of clients by the
retention rate--Mr. Molder applied the yearly license fee. Id.
at 152:14-23.
Mr. Molder next subtracted the costs avoided. From
reviewing Plan Management’s financial statements, Mr. Molder
concluded that the costs to be deducted from the revenue related
to additional employees or computer facilities--factors that

would vary with revenue and the number of clients. Id. at
146:24-147:5. He enumerated the costs as: (1) the $1,000
referral fee payable to Broadridge per closed Viable Client;
(2) debt from unpaid client invoices, determined by reference to
Plan Management financial statements; (3) information technology

21 According to Plaintiff’s Exhibit 302, the generic pricing
matrix, the pricing would be the same for 301 to 500 plan
participants.
costs; (4) staffing, sales, and marketing; and (5) customer
support. See id. at 153:21-155:25.
Ultimately, Mr. Molder concluded that the lost profits over

the term of the contract would have been approximately
$24,500,000. Id. at 156:22-23.
Significant flaws in Mr. Molder’s opinion were exposed upon
cross examination: (1) he did not explain his assumption
regarding the connection between the number of employees and the
number of plan participants and (2) he did not try to determine
the median number of plan participants. In addition, as
Broadridge pointed out a number of times, Mr. Molder did not
verify that the information provided to him by Plan Management
was accurate. Id. at 158:4-7.22
First, and most significantly, Mr. Molder did not know the
exact number of plan participants in his sample: he used the

number of employees of a given company as “the best proxy I had
for the number of participants.” Id. at 161:23-162:3. Given that
the number of plan participants was a major determinant of the
pricing, it was error for the Court to have admitted Mr.

22 As Plan Management observes, Broadridge’s argument as to Mr.
Molder’s failure to independently verify the underlying data is
of little merit as Plan Management did not provide Mr. Molder
with projections as to lost profits. See ID Sec. Sys. Can., Inc.
v. Checkpoint Sys., Inc., 249 F. Supp. 2d 622, 695 (E.D. Pa.
2003); JMJ Enterprises, Inc., 1998 WL 175888, at *7 (E.D. Pa.
Apr. 15, 1998).
Molder’s assumption without any basis in the factual record. Mr.
Molder “was unable to locate any data” on whether “the number of
employees equal the number of plan participants.” Id. at 166:1-

3. Mr. Molder provided no testimony as to his belief that the
number of employees was the best proxy, at a one-to-one ratio,
for the number of plan participants. “[N]othing in either
Daubert or the Federal Rules of Evidence requires a district
court to admit opinion evidence that is connected to existing
data only by the ipse dixit of the expert. A court may conclude
that there is simply too great an analytical gap between the
data and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522
U.S. 136, 144 (1997).
Second, Mr. Molder did not try to determine the number of
plan participants for any given company. He did not examine any
data to determine the median percentage of employees of public

companies who participate in equity compensation plans. Day 9
Tr. at 7:5-18, ECF No. 244. Nor did he review any of the
discovery in the case that may have revealed the number of plan
participants. Id. at 10:8-12. His calculations also did not
specifically or intentionally include any of the data about the
companies that Broadridge actually referred to Plan Management.
Id. at 12:8-19:2. Mr. Molder was also unaware that the median
number of plan participants of the companies referred to Plan
Management by Broadridge was 98. Id. at 19:3-5. Mr. Molder noted
that “the record evidence of this case doesn’t include the
universe of potential referrals from Broadridge, and therefore
it would bias the sample [to only use the companies that were

actually referred].” Id. at 19:24-20:1.
An expert may make an assumption of fact “so long as such
assumptions have a reasonable basis in the available record.”
Brill, 540 F. Supp. at 568. Here, however, too many of Mr.
Molder’s assumptions were not reasonably based in the record.
There was no explanation for his assumption that the number of
plan participants is equal to the number of employees. This
assumption was especially crucial where, as here, the pricing
was dependent on the number of plan participants. Accordingly,
Mr. Molder’s calculation must be stricken given that one of the
crucial assumptions underlying his lost profits calculation of
approximately $25,000,000.00 was not based in the trial record.

Consequently, the damage award must be vacated in toto.
B. Broadridge’s Motion for Judgment as a Matter of Law as
to Damages or in the Alternative for a New Trial
Broadridge previously brought a motion for judgment as a
matter of law under Federal Rule of Civil Procedure 50(a)
following the close of Plan Management’s case in the damages
phase of trial. See Def.’s Mot., ECF No. 219. Broadridge now
renews its motion for judgment as a matter of law as to damages,
arguing that the expert testimony underlying the damages
calculation in this case was cherry-picked and not supported by
facts in the trial record. Broadridge further argues that the
evidence produced during the damages phase of trial was

insufficient to allow the jury to calculate Plan Management’s
damages to a reasonable degree of certainty.
In response, Plan Management argues that there was a
sufficient evidentiary basis for Mr. Molder’s opinion, and that
his opinion as to damages was within the range of “reasonable
certainty” permitted by Pennsylvania courts. Plan Management
also repeatedly points to Broadridge’s failure to present its
own damages expert. However, Plan Management bore the burden of
proof as to damages; Broadridge was under no obligation to
present any affirmative case as to damages. Plan Management
raised this issue at the start of its closing, and counsel for
Broadridge immediately objected. Day 9 Tr. at 71:13-23, ECF No.

244. The Court instructed the jury that Broadridge had “no
burden, no obligation, or requirement” to offer its own expert.
Id. at 71:24-72:2.
“Although mathematical certainty is not typically required,
the general rule in Pennsylvania, as in most jurisdictions, is
that if damages are difficult to establish, an injured party
need only prove damages with reasonable certainty.” ATACS Corp.
v. Trans World Commc’ns, Inc., 155 F.3d 659, 669 (3d Cir. 1998).
“At a minimum, reasonable certainty embraces a rough calculation
that is not ‘too speculative, vague or contingent’ upon some
unknown factor.” Id. at 669-70 (citing Spang & Co. v. U.S. Steel
Corp., 545 A.2d 861, 866 (Pa. 1988)). Thus, some uncertainty in

the amount of damages is permissible. Id. at 670.
Having found that Mr. Molder’s calculation was not
sufficiently based in the trial record and thus was erroneously
admitted, the Court finds that in the absence of his testimony,
there was insufficient evidence for the jury to reach a verdict
as to damages. Without the testimony of Mr. Molder, Plan
Management’s damages were entirely speculative: the jury only
had general information about pricing from the testimony of Ms.
Thomas, as well as testimony from Mr. Miller that only 18 to 20
Viable Clients were ever referred. Thus, without testimony
regarding the calculated retention rate, conversion rate, number
of plan participants, and estimated costs avoided, any amount

awarded by the jury would necessarily rely upon “some unknown
factor.” Id. at 669.
But, because there was some evidence of damages and Plan
Management prevailed in the liability phase of trial, the Court
finds that judgment as a matter of law in Broadridge’s favor as
to damages is inappropriate. See Cone v. West Va. Pulp & Paper
Co., 330 U.S. 212, 215 (1947) (“[T]here are circumstances which
might lead the trial court to believe that a new trial rather
than a final termination of the trial stage of the controversy
would better serve the ends of justice.”); Mondis Tech. Ltd. v.
LG Elecs., Inc., No. 15-4431, 2020 WL 1933979, at *2, *5 (D.N.J.
Apr. 22, 2020) (denying a motion for judgment as a matter of law

where there was some evidence “from which the jury could
reasonably award some amount of damages” but granting a motion
for a new trial as to damages). Instead, the Court will grant
Broadridge’s alternative motion for a new trial under Rule 59.
C. Broadridge’s Motion to Amend the Judgment
In the alternative to the new trial motion, Broadridge
seeks to have the Court alter or amend the judgment and reduce
the damage award to reflect the actual trial record. Def.’s Mot.
at 57, ECF No. 258. Broadridge argues that a damage award that
reflects the trial record would be 75 to 85% lower than the
$25,000,000.00 that the jury calculated (approximately
$3,750,000.00 to $6,250,000.00), “because that was the

difference between the numbers proffered by Mr. Molder, and the
numbers from the record.” Id. at 58.
Plan Management argues that Broadridge has not presented
the Court with a sufficient legal basis nor a sufficient
alternative damages calculation to grant the motion for
remittitur. See Pl.’s Resp. at 74-75, ECF No. 269. Plan
Management states that remittitur is only appropriate where
there is no clear error with the verdict, but the size of the
verdict shocks the conscience of the Court. Id. Given that there
is no error in the verdict, Plan Management argues, remittitur
is not appropriate.
“The rationalization for, and use of, the remittitur is

well established as a device employed when the trial judge finds
that a decision of the jury is clearly unsupported and/or
excessive.” Spence v. Bd. of Educ. of Christina Sch. Dist., 806
F.2d 1198, 1201 (3d Cir. 1986); cf. Linn v. United Plant Guard
Workers of Am., Local 114, 383 U.S. 53, 65-66 (1966) (“If the
amount of damages awarded is excessive, it is the duty of the
trial judge to require a remittitur or a new trial.”).
Remittitur may be proper where the district court concludes that
the evidence was too speculative to support the damages awarded
by the jury. Id. Remittitur is also appropriate where a damages
award “was contrary to all reason and . . . shock[s] the
conscience of the court.” Gumbs v. Pueblo Int’l, 823 F.2d 768,

771-72 (3d Cir. 1987). An award “shocks the conscience of the
court” where it bears no rational relationship to the evidence
presented at trial. Id. at 773.
Here, remittitur is not appropriate. Having concluded that
a new trial as to damages is warranted because the damages are
speculative in the absence of Mr. Molder’s report, the Court
cannot determine (1) whether the damages award was excessive,
contrary to reason, or shocking to the conscience, nor (2) the
appropriate measure of damages if in fact the award was
excessive, contrary to reason, or shocking to the conscience.
Thus, the motion for remittitur will be denied.
D. Plan Management’s Motion to Award Interest

Plan Management moves to alter or amend the judgment under
Federal Rule of Civil Procedure 59(e), requesting that the Court
add post-judgment interest at the rate of 4.73% on the judgment
total, computed daily until the date of payment, and compounded
annually, pursuant to 28 U.S.C. § 1961. See Pl.’s Mot. at 4-5,
ECF No. 227. Plan Management requests that post-judgment
interest be added to the judgment as it is statutorily mandated
for all judgments in federal court. See 28 U.S.C. § 1961; Est.
of Lieberman v. Playa Dulce Via, S.A., No. 14-3393, 2022 WL
2945247, at *14 (E.D. Pa. July 26, 2022) (“The award of post-
judgment interest is governed by the federal post-judgment
interest statute, 28 U.S.C. § 1961.”) (Robreno, J.). Broadridge

does not take a position on the propriety of post-judgment
interest nor the calculation of the interest rate. Rather,
Broadridge argues that because the judgment should be vacated or
set aside, as argued in its other motions as to liability and
damages, the Court should deny the motion for post-judgment
interest as moot.
Having found that a new trial is required as to damages,
the Court agrees with Broadridge. This motion will be denied as
moot.
V. STAY OF EXECUTION
Under Federal Rule of Civil Procedure 62, “at any time
after judgment is entered, a party may obtain a stay by

providing a bond or other security. The stay takes effect when
the court approves the bond or other security and remains in
effect for the time specified in the bond or other security.”
Fed. R. Civ. P. 62(b). Broadridge seeks a stay, agreeing to post
a supersedeas bond in the amount of $30,000,000.00. Plan
Management agrees that this amount is appropriate. However,
given that the Court grants Broadridge’s motions as to damages
and vacate the judgment, the Court denies this motion as moot.
VI. CONCLUSION
For the foregoing reasons, the Court will deny
(1) Plaintiff Jonathan Miller’s motion for a new trial as to the
fraudulent inducement claim; (2) Broadridge’s motion for

judgment as a matter of law as to liability and damages;
(3) Broadridge’s motion to amend the judgment; (4) Plan
Management’s motion to amend the judgment; and (5) Broadridge’s
motion for a stay of execution. The Court will grant
Broadridge’s motion to strike the expert report of Michael
Molder as well as Broadridge’s motion for a new trial as to
damages. Accordingly, the $25,000,000 damages award is vacated
and a new trial on damages only shall be held.
An appropriate Order follows.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10405641. Public record. Not legal advice.