Tuf, а dealer in motorcycles in DeKalb, Illinois, in 1987 signed a franchise contract with Suzuki that the latter terminated in 1994, precipitating this diversity suit by Tuf under the Illinois Motor Vehicle Franchise Act, 815 ILCS 710/1 et seq. Although Tuf carried other brands as well as Suzuki and so was able to survive the termination, it claims to have suffered damages of some $1.2 million from the alleged brеach. A jury agreed that the termination had been wrongful but awarded Tuf only $137,000, to which, however, the judge added $391,318 in attorneys’ fees under the franchise act’s fee-shifting provision, 815 ILCS 710/13, which requires such an award if the plaintiff “substantially prevails.”
Construed as favorably to Tuf as the record permits, which is the correct approach in light оf the verdict, the facts reveal that Suzuki became angry at Tuf for selling motorcycles outside the geographical area in which its dealership was located, some of these to other Suzuki dealers for resale. The franchise agreement did not forbid either practice (sales for resale are forbidden except to other Suzuki dealers), but apparently Suzuki received complaints from its other dealers about Tufs “poaching” on their markets, and so it wrote Tuf complaining about its conduct. The letter focused on sales for resale but Suzuki’s regional manager called Tufs owner and told him that Suzuki had been getting complaints about Tufs selling outside its immediate vicinity too and that it should not do that either. When Tuf did not desist from the practices complained of, Suzuki decided to precipitate a breach *589 of the franchise contract by Tuf, which it did by such tactics as denying standard credit terms and then accusing Tuf of failing to maintain a regular plan for salеs on credit, as required by the franchise agreement.
All the grounds Suzuki gave in its notice of termination — not only failure to maintain a regular credit plan, but also inadequate sales volume, insufficient inventory, and inadequate promotion — were pretextual, the real reason for termination being that Tuf had irritated Suzuki’s other dеalers by the two practices that Suzuki had asked it to desist from. The invocation of “pretext” in this context is puzzling. In the law of contracts, while procuring a breach by the other party to your contract would excuse the breach,
United States v. Peck,
But it is not; we are under the franchise act, which requires franchisors to deal with their franchisees in good faith. 815 ILCS 71074(b);
Kawasaki Shop of Aurora, Inc. v. Kawasaki Motors Corp., U.S.A.,
Its main argument for reversal is that the judge improperly allowed Tuf to inject a new ground at trial, what Suzuki calls *590 the “matсh-up” theory of a breach of the franchise agreement. To understand this argument requires us to delve into the agreement. Section 9.1 provides that if the dealer fails to conduct his business in conformity with the agreement, Suzuki may terminate him upon written notice. Section 9.2 lists 15 violations that Suzuki can base termination on with only 15 days’ nоtice to Tuf, and section 9.3 lists 11 more violations on which termination can be based provided that 60 days’ notice is given. The first list contains the more serious violations, like insolvency, and the second the lesser ones, such as failing to maintain the sales volume agreed upon with Suzuki. Suzuki terminated Tuf with 60 days’ notice, but the list of violations in the notice does not match up completely with the list in section 9.3. Suzuki argues that even so, given section 9.1, the termination could still be proper. The judge disagreed, and did not let Suzuki argue that, but instead allowed Tuf to argue that the failure of the notice to match the list of violations in section 9.3 showed that the termination wаs improper.
Read most naturally, section 9.1 does not create a separate basis for termination. All it says is that “if Dealer does not conduct its business in accordance with the requirements set forth herein, Suzuki may terminate this Agreement by giving Dealer written notice of termination,” and all this seems to mean is that Suzuki can terminate the franchise agreement if the dealer does not comply with it but that Suzuki must give written notice of the termination. The succeeding sections indicate how much written notice must be given, which depends on the gravity of the violation. If there are grounds for termination other than the 26 listed in sections 9.2 and 9.3, they do not apрear in the contract. Were they assumed to exist nevertheless, the contract would have a hole, since it doesn’t indicate how much written notice Suzuki must give if it wants to terminate on the basis of a ground for termination not stated in the contract. The contract contains no provision to the effect that “termination based on a violation of the franchise agreement that is not listed in sections 9.2 or 9.3 requires _ days’ written notice.” The 26 grounds taken as a whole seem pretty exhaustive, moreover; there is. no compelling reason to interpolate additional grounds and thus embrace the ambiguity just identified. The most plausible reading of the contract, therefore, is that a notice of termination that fails to specify any of the 26 listed grounds for violation violates the contract.
Tuf has been shy about making this argument, maybe because a defect in notice would be a technical violation from which no damages could be shown to flow. In any event it argues merely that Suzuki’s failure to conform to the requirements of section 9.3 is further evidence of Suzuki’s bad faith in terminating the franchise agreement. But here Suzuki drops the ball, failing to argue that bad faith in the sense of bad motive is not a violation of the franchise act. Instead Suzuki contends that Tuf did argue in the district court that thе failure of the notice of termination to match the grounds for termination listed in the contract was an independent breach, and complains that the judge prevented it from meeting the argument by forbidding it to cite section 9.1 as an independent basis for termination. However this may be (as near as we can determinе, Tuf didn’t make the argument but the judge instructed the jury as if it had!), since Suzuki has never explained how its interpretation could be right given the hole in the contract that such an interpretation would create, no injustice was done by its being forbidden to present the interpretation to the jury. Probably no injustice was done by Tufs “bad faith” theory either (which may be why Suzuki has failed to oppose it), for remember that the jury was correctly instructed that Suzuki should prevail if it had a basis in the contract for terminating Tuf. Evidently the jury concluded that it did not; and Suzuki’s contention that it had a ground for *591 termination not stated in the contract is unsound for the reasons we’ve explained.
We move on to the issue of damages. Tuf presented its theory of damages by way of its accountant (a C.P.A.), and in the district court Suzuki argued that the accountant should not have been permitted to testify as an expert witness because he does not have a degree in economics or statistics or mathematics or some other “academic” field that might bear on the calculation of damages. The notion that
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
The accountant calculated Tufs damages at about $1.2 million, yet the jury awarded only a bit more than 10 percent of that — leading Suzuki to argue that the damagеs award should be set aside as “speculative,” since the jury of course did not explain the path that led to the award and it is unclear what that path may have been. We think it pointless, although it might assist defendants who seek to win by attrition, to credit a defendant’s complaint that an award of damages should be set aside
because it was too small to make sense,
which is at root what Suzuki is arguing. The argument implies that upon a retrial the plaintiff is likely to obtain a higher award (since the previous award was irrationally low) that the appellate court will sustain. In any event, such an argument is blocked by the principle that if the award is within the bounds of reason, the fact that the jury may not have used reason to arrive at it — may instead have negotiated an unprincipled compromise in order to avoid deadlock — will not prevent it from being upheld.
Kasper v. Saint Mary of Nazareth Hospital,
Suzuki’s other complaints about the award are niggling and we move
*592
on to the last issue, that of attorneys’ fees. Suzuki argues that Tuf did not prevail because it obtained so much less than it asked for. It prevailed in the literal sense, but did it
substantially
рrevail? We cannot find any cases that interpret this term in the franchise act. The parties assume as shall we that we can turn for guidance to the case law that has developed around the issue of when a plaintiff who has won much less than he sought is entitled to an award of attorneys’ fees under rales or statutes entitling prevailing parties to “reasonable” such fees. That case law indicates that had Tuf obtained merely nominal damages, it would not have been entitled to any award of fees,
Farrar v. Hobby,
Several cases in this circuit do suggest that a plaintiffs failure to obtain at least 10 percent of the damages it had sought will weigh heavily against any award of attorneys’ fees. Indeed,
Perlman v. Zell,
The fact that the attorneys’ fees awarded exceed the damages award is not decisive either. Because the cost of litigating a claim has a fixed component, a reasonable attorney’s fee in the sensе of the minimum required to establish a valid claim can exceed the value of the claim.
Hyde v. Small,
The cases we have cited on the issue of attorneys’ fees are cases interpreting federal fee-shifting statutes, but Tuf s entitlement is created by the law of Illinois. In default of relevant Illinois cases, however, the parties have cited to us federal cases, assuming, reasonably enough, that the common-sense principles that
*593
guide federal courts in determining attorneys’ fees issues would commend themselves to Illinois courts as well. But in addition we have found one Illinois case that makes the essential point that the damages award does not cap the fee award.
Pitts v. Holt,
Affirmed.