Charles Hess v. BIOMET , INC. and ZIMMER BIOMET HOLDINGS , 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.
B IOMET , INC. and Z IMMER B IOMET 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 R OVNER , SCUDDER , and P RYOR , 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

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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.

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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

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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

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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

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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

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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

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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.”

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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, W EBSTER ’S NEW
T WENTIETH CENTURY DICTIONARY (2d ed. 1983); see also Dis-
tributorship, T HE R ANDOM 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

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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

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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

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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.

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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.

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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-

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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,

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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

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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

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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.

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