author: DIANA GRIBBON MOTZ, Circuit Judge:

text:
    IN RE: JEMSEK CLINIC, P.A.; Joseph Jemsek, Debtors. Blue Cross Blue Shield of North Carolina, Plaintiff-Appellant, v. Jemsek Clinic, P.A.; Joseph G. Jemsek, M.D., an individual, Defendants-Appellees.
    No. 16-1030
    United States Court of Appeals, Fourth Circuit.
    Argued: December 7, 2016
    Decided: March 3, 2017

      ARGUED: Christopher Grafflin Browning, Jr., TROUTMAN SANDERS LLP, Raleigh, North Carolina, for Appellant. William D. Blakely, POLSINELLI PC, Washington, D.C., for Appellees. ON BRIEF: J. Nick Phillips, TROUTMAN SANDERS LLP, Atlanta, Georgia, for Appellant. Lauren P. Desantis-Then, Washington, D.C., Mit S. Winter, POLSI-NELLI PC, Kansas City, Missouri, for Appellees.
    Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.
   DIANA GRIBBON MOTZ, Circuit Judge:

In this case, the bankruptcy court imposed staggering sanctions on a creditor. It dismissed with prejudice claims that the creditor valued at over $10 million, and it ordered the creditor to pay the debtor $1.29 million in attorneys’ fees and costs. Although the bankruptcy court did not clearly err in finding that the creditor acted in bad faith, these sanctions were excessive. We therefore vacate the judgment, of the district court adopting the bankruptcy court’s sanctions order and remand for further proceedings consistent with this opinion.

I.

In May 2003, a group of doctors filed a nationwide class action against the Blue Cross and Blue Shield Association and its member entities, including Blue Cross Blue Shield of North Carolina (“Blue Cross NC”). The doctors brought the case — styled Love v. Blue Cross and Blue Shield Ass’n, No. 03-21296-CIV (S.D. Fla. filed May 22, 2003) — in the Southern District of Florida.

In their complaint, the doctors alleged that the Blue Cross companies used several underhanded business practices to deny, delay, and reduce payments for medical treatments based solely on considerations of cost. The doctors alleged that, as part of the scheme, the Blue Cross companies refused to pay for covered and medically necessary treatments, misrepresented the criteria used to determine payments, and unlawfully terminated provider agreements.

In September 2006, three years after the initiation of the Love case in Florida, Blue Cross NC sued Dr. Joseph Jemsek and the Jemsek Clinic in North Carolina state court. In its complaint, Blue Cross NC asserted several state-law claims, including breach of contract and fraud. At the time, Jemsek ran a clinic in Hunters-ville, North Carolina that specialized in the treatment of Lyme disease. According to Blue Cross NC, Jemsek improperly billed it for hundreds of Lyme disease treatments that were medically unnecessary or not covered by the parties’ provider agreement. Blue Cross NC also alleged that Jemsek fraudulently “upcoded” many of his treatments, assigning them a billing code corresponding to treatments that were more expensive than those he actually provided. Blue Cross NC estimates that from 2000 to 2005, Jemsek received more than $10 million in improper payments.

Jemsek responded by filing for Chapter 11 bankruptcy for himself and on behalf of his clinic. He then removed Blue Cross NC’s suit to the bankruptcy court, where it continued as an adversary proceeding. On January 24, 2007, Jemsek filed his answer, affirmative defenses, and nine counterclaims.

Seven of Jemsek’s counterclaims alleged essentially the same underhanded practices at issue in Love. Jemsek claimed that Blue Cross NC denied claims for reimbursement; terminated the parties’ provider agreement “not based upon medical evidence, but upon a desire to limit its costs”; and misrepresented whether Jemsek’s treatments were covered or medically necessary. The remaining two counterclaims, asserting defamation and tortious interference with a business relationship, related to statements Blue Cross NC allegedly made about Jemsek’s practice to the North Carolina Medical Board and the Centers for Disease Control and Prevention. In total, Jemsek claimed he suffered at least $20 million in damages.

On April 27, 2007, a few days before discovery began in the North Carolina bankruptcy proceedings, the Love parties reached a tentative settlement in Florida. Under the terms of the settlement agreement, the Blue Cross companies agreed to pay $130 million and change their business practices. In exchange, the Love plaintiffs released their claims against the Blue Cross companies.

On May 31, 2007, the Love court preliminarily approved the settlement and enjoined the plaintiffs from litigating any released claims pending final approval. Specifically, the Love court enjoined plaintiffs from pursuing “any aspect of any fee for service claim” that

are, were or could have been asserted ... by reason of, arising out of, or in any way related to any of the facts, acts, events, transactions, occurrences, courses of conduct, business practices, representations, omissions, circumstances or other matters referenced in the [ajction....

It is now undisputed that Jemsek was a putative member of the Love class and that this injunction applied to his first seven counterclaims.

In July 2007, the Love court mailed a notice of the class settlement to putative class members and published the notice in several major news and trade publications. The notice informed putative class members of their right to opt out of the Love settlement. The deadline to opt out was September 14, 2007. Although Jemsek received the notice, he apparently did not understand its significance and never told his counsel about it. As a result, Jemsek never opted out of the Love settlement.

In the meantime, the bankruptcy court in North Carolina continued to referee the parties’ “extensive and rancorous discovery efforts.” By the bankruptcy court’s reckoning, this involved “multiple sets of discovery, motions to compel, several hearings and a lengthy in camera document review” by the court.

On March 31, 2008 — ten months after the Love court had issued its May 31 injunction — Blue Cross NC informed the bankruptcy court about the Love injunction. At that point, the bankruptcy court had stayed discovery pending the district court’s resolution of yet another discovery dispute. After receiving an adverse ruling, Blue Cross NC moved to amend that stay order. In its motion, Blue Cross NC’s local counsel reported that it had just learned that Jemsek’s counterclaims had been enjoined by the Love court.

The bankruptcy court granted Blue Cross NC’s motion to amend the stay order, and the parties repaired to the Southern District of Florida. Blue Cross NC moved the Love court to enforce its injunction against Jemsek and order Jemsek to withdraw his counterclaims. The Love court agreed that its injunction applied to Jemsek’s first seven counterclaims and granted the motion. Love v. Blue Cross & Blue Shield Ass’n, No. 03-21296-CIV, 2008 WL 4097607, at *1 (S.D. Fla. Sept. 4, 2008). Jemsek appealed to the Eleventh Circuit, which affirmed. Thomas v. Blue Cross & Blue Shield Ass’n, 333 Fed.Appx. 414, 415 (11th Cir. 2009) (per curiam). He then withdrew the seven enjoined counterclaims.

In November 2009, after a nearly two-year hiatus in the North Carolina bankruptcy proceedings, Jemsek filed a motion for sanctions against Blue Cross NC. The bankruptcy court granted the motion. In a lengthy and strongly worded opinion, it found that Blue Cross NC purposefully avoided informing the court and Jemsek about the Love settlement and the May 31 injunction. “As a result,” the bankruptcy court concluded, “counterclaims worth potentially millions of dollars were lost, this litigation was delayed for more than two years, sizeable attorneys fees and costs were necessitated for [Blue Cross NC’s] opponents and an inordinate amount of court time was needlessly consumed.”

The bankruptcy court dismissed Blue Cross NC’s claims with prejudice and ordered it to pay Jemsek a total of $1.29 million in attorneys’ fees and costs. This included nearly all of the attorneys’ fees and costs Jemsek incurred in the bankruptcy proceedings and while defending against Blue Cross NC in Florida, including the appellate litigation.

Blue Cross NC sought interlocutory review of the sanctions order, but the district court denied the request. In January 2014, Jemsek amended his remaining counterclaims for defamation and tortious interference. Blue Cross NC filed a motion with the Love court to enjoin these amended counterclaims. The Love court granted the motion and ordered Jemsek to withdraw those remaining counterclaims, which he did.

The bankruptcy court then issued its proposed findings of fact and conclusions of law and recommended entry of final judgment. Blue Cross NC filed a motion with the district court to vacate the bankruptcy court’s sanctions order. The district court denied Blue Cross NC’s motion and entered final judgment, adopting the bankruptcy court’s proposed findings of fact and conclusions of law. Blue Cross NC timely noted this appeal.

II.

We first consider whether the bankruptcy court erred when it decided to sanction Blue Cross NC. We review the bankruptcy court’s sanctions order for abuse of discretion. McGahren v. First Citizens Banks & Tr. Co. (In re Weiss), 111 F.3d 1159, 1169 (4th Cir. 1997). A court abuses its discretion when its conclusion is “guided by erroneous legal principles” or “rests upon a clearly erroneous factual finding.” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999).

The bankruptcy court gave several reasons for imposing sanctions. It explained that, in its view, Blue Cross NC violated discovery rules by failing to mention the Love case as part of its initial disclosures, failing to amend its initial disclosures after the Love court issued its May 31 injunction, and failing to disclose the Love case in response to an interrogatory. The court also concluded that Blue Cross NC violated the Love court’s preliminary injunction, its local rules, and the disclosure rules of the Judicial Panel on Multidistrict Litigation. Finally, the bankruptcy court found that Blue Cross NC acted in bad faith by intentionally withholding information about the Love case.

On appeal, Blue Cross NC contends that it had no duty under the rules of discovery to disclose the Love settlement or preliminary injunction. It also contends that the Love court’s injunction did not apply to its claims and that the bankruptcy court lacked the power to sanction it for violating the rules and orders of courts in other jurisdictions.

We agree that Blue Cross NC did not violate the Love court’s injunction. The Love court enjoined only the “Releasing Parties” from litigating any of their released claims against the defendant “Blue Parties.” The settlement agreement defines “Releasing Parties” as the class member doctors and certain “Signatory Medical Societies,” who all agreed to release their claims against the Blue Parties, including Blue Cross NC. The bankruptcy court erred in finding that Blue Cross NC was one of these Signatory Medical Societies. As Jemsek conceded in the bankruptcy court, Blue Cross NC was not a Signatory Medical Society and thus was not one of the releasing parties covered by the injunction. Accordingly, Blue Cross NC did not violate the Love court’s May 31 injunction by pursuing its claims against Jemsek after that date.

We need not consider most of Blue Cross NC’s other contentions because bankruptcy courts have the inherent power to sanction parties who abuse the litigation process in bad faith. In re Weiss, 111 F.3d at 1171; see Law v. Siegel, — U.S. —, 134 S.Ct. 1188, 1194, 188 L.Ed.2d 146 (2014); Marrama v. Citizens Bank of Mass., 549 U.S. 365, 375-76, 127 S.Ct. 1105, 166 L.Ed.2d 956 (2007). Here, the bankruptcy court found that Blue Cross NC kept mum about the Love court’s injunction and thus allowed the bankruptcy court to continue adjudicating counterclaims that had already been enjoined. The court found that by litigating various discovery disputes as though the Love court’s injunction did not exist, Blue Cross NC, among other things, prolonged the proceedings in the bankruptcy court and thereby wasted “an inordinate amount of court time.”

Federal courts have the inherent power to sanction this type of conduct. The courts’ inherent powers exist to preserve the integrity of the judicial process and the resources needed to resolve disputes in an orderly and expeditious manner — two indispensable assets in any nation dedicated to the rule of law. See Chambers v. NASCO, Inc., 501 U.S. 32, 43-46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); United States v. Shaffer Equip. Co., 11 F.3d 450, 457-59 (4th Cir. 1993). And it is well established that a federal court may wield its inherent sanctioning powers “when a party ‘shows bad faith by delaying or disrupting the litigation or by hampering enforcement of a court order.’ ” Chambers, 501 U.S. at 46, 111 S.Ct. 2123 (quoting Hutto v. Finney, 437 U.S. 678, 689 n.14, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978)).

A party undermines the integrity of the judicial process by using a court’s resources to litigate claims that it knows or suspects another court has already resolved or enjoined, and it quite obviously wastes scarce judicial'resources. Accordingly, it is an abuse of the litigation process for a client to conceal from the court the fact that its opponents’ claims have been enjoined. Blue Cross NC had no duty to remind Jemsek about the Love court’s injunction or the opt-out deadline. But it did have a duty not to waste the bankruptcy court’s time and resources by litigating against counterclaims it knew or suspected had been enjoined in light of the pending Love settlement agreement. Cf. In re Cellular 101, Inc., 539 F.3d 1150, 1154 (9th Cir. 2008) (“The obligation to inform the court of a potential settlement is of such-critical importance to the maintenance of orderly proceedings and to the prevention of needless delay that a lawyer who fails to fulfill that obligation may be personally subject to sanctions.”); Gould v. Bowyer, 11 F.3d 82, 84 (7th Cir. 1993) (“[I]n order to spare busy courts unnecessary work, parties must advise a court when settlement is imminent.”).

The bankruptcy court found that Blue Cross NC did just this, and its finding was not clearly erroneous. First, notwithstanding its lawyers’ lack of knowledge, it seems highly likely that Blue Cross NC knew about the Love court’s injunction well before its lawyers informed the bankruptcy court about it on March 31, 2008. Second, although Blue Cross NC might not have known exactly which counterclaims the Love court’s injunction covered, it seems likely that Blue Cross NC knew or suspected that several of Jem-sek’s counterclaims shared a common nucleus of operative fact and asserted many of the same legal theories as the Love complaint. Finally, Blue Cross NC offered no credible, good-faith explanation for why it kept silent until Jemsek’s deadline to opt out of the Love settlement had long passed. It contends only that it could not reasonably have known that Jemsek’s counterclaims had been enjoined. But for the reasons already discussed, that appears not to be so. Insofar as there was some doubt about the scope of the Love court’s injunction, Blue Cross NC never explains why it waited so long to inform the bankruptcy court about this potential development.

On this evidence, the bankruptcy court could reasonably infer that Blue Cross NC acted in bad faith in failing to inform the court of the Love court’s injunction earlier. Under our deferential standard of review, we have no basis to conclude that this finding constituted error. See Easley v. Cromartie, 532 U.S. 234, 242, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001) (explaining that a court reviewing for clear error will not reverse simply because the reviewing court “would have decided the case differently”).

III.

Although the bankruptcy court did not clearly err in invoking its inherent powers, our review is not yet complete. Even when a court properly concludes that sanctions are warranted, it abuses its discretion when it imposes sanctions disproportionate to the severity of a party’s misconduct. United States v. Rhynes, 218 F.3d 310, 321-22 (4th Cir. 2000) (en banc); see Chambers, 501 U.S. at 44-45, 111 S.Ct. 2123. We consider in turn whether dismissal with prejudice or an award of $1.29 million in attorneys’ fees and costs were excessive under the circumstances:

A.

Federal courts have the inherent power to dismiss an action with prejudice as a sanction. Shaffer, 11 F.3d at 462. But because it is “the most extreme sanction,” dismissal with prejudice is appropriate only in the most egregious cases. See id. Even then, a court must first weigh several factors:

(1) the degree of the wrongdoer’s culpability; (2) the extent of the client’s blameworthiness if the wrongful conduct is committed by its attorney, recognizing that we seldom dismiss claims against blameless clients; (3) the prejudice to the judicial process and the administration of justice; (4) the prejudice to the victim; (5) the availability of other sanctions to rectify the wrong by punishing culpable persons, compensating harmed persons, and deterring similar conduct in the future; and (6) the public interest.

Id. at 462-63.

We do not think Blue Cross NC’s conduct called for the most extreme sanction available. The bankruptcy court’s conclusion to the contrary rests primarily on its belief that Blue Cross NC bears responsibility for Jemsek’s failure to opt out of the Love settlement.

Blue Cross NC certainly wasted the time and resources of Jemsek and, most importantly, the bankruptcy court. But the only party responsible for the loss of Jem-sek’s counterclaims is Jemsek himself. It is undisputed that Jemsek received adequate notice of the Love settlement in July 2007 and that he had the benefit of counsel at the time. As the Eleventh Circuit noted when it considered the issue, “[i]f Jemsek wished to preserve his counterclaims, he could have done so quite easily by opting out of the Love action.” Thomas, 333 Fed. Appx. at 422. Jemsek simply did not appreciate the significance of the notice and so never told his lawyers about it.

This decision was unwise, of course, and it led Jemsek to commit a critical error in this litigation. But the error is Jemsek’s, and Blue Cross NC had no duty to correct it. Under our adversarial system, litigants are not their opponents’ keepers. They have no duty to help their opponents maximize their recovery or prevent them from losing their claims. Therefore, the bankruptcy court erred when it determined that it could sanction Blue Cross NC for Jemsek’s loss of his counterclaims.

Once we remove this error, it becomes apparent that the Shaffer factors do not favor dismissal with prejudice. Aside from the second factor — culpability of the client — none of the six Shaffer factors favor the bankruptcy court’s decision to impose the most extreme sanction available.

The first and third factors — the degree of Blue Cross NC’s culpability and the prejudice to the judicial process arising from its delay — -weigh against dismissal with prejudice. Although the bankruptcy court wasted some of its resources dealing with Jemsek’s enjoined counterclaims, Blue Cross NC’s claims were still properly before the bankruptcy court. Blue Cross NC’s did not impair the court’s ability to adjudicate those claims.

The fourth factor — prejudice to the victim — similarly disfavors dismissal with prejudice. As discussed above, and contrary to the bankruptcy court’s conclusion, Blue Cross NC did not cause Jemsek to lose his counterclaims. And Blue Cross NC’s reticence did not affect Jemsek’s ability to defend against Blue Cross NC’s claims against him. Accordingly, we fail to see how Blue Cross NC prejudiced Jemsek in this case.

As for the fifth factor — the availability of less severe sanctions — the bankruptcy court concluded that no lesser sanction would suffice because Blue Cross NC caused “extreme prejudice” to Jemsek by “managing] to bar [Jemsek’s] compulsory counterclaims even as it seeks recovery on its own claims.” This conclusion is mistaken, and once corrected, we see no reason why a lesser sanction could not adequately compensate for any actual harm Blue Cross NC caused and deter similar misconduct in the future.

Finally, regarding the sixth factor, public policy strongly favors deciding cases on the merits. Shaffer, 11 F.3d at 462. That preference has not been, overcome here, given the absence of prejudice to Jemsek or any connection between Blue Cross NC’s misconduct and its claims against Jemsek.

Under these circumstances, dismissal with prejudice was unduly severe.

B.

Of course, a federal court may also order a party to pay an opponent’s attorneys’ fees as a sanction for bad-faith conduct. See Chambers, 501 U.S. at 45-46, 111 S.Ct. 2123. Here, the bankruptcy court’s award included the expenses Jem-sek incurred: “1) in connection with this Adversary Proceeding from May 31, 2007 forward, 2) pursuing discovery responses prior to May 31, 2007, and 3) defending against [Blue Cross NC] after March 31, 2008 in the Florida Court and on appeal during the Love injunction proceedings.”

We take no issue with the first component of this award. Blue Cross NC should have informed the bankruptcy court about the Love court’s injunction on May 31, 2007 or shortly thereafter. However, for the reasons already discussed, the bankruptcy court abused its discretion when it awarded the second and third components, which represent a sizable portion of the total award. The court abused its discretion by awarding fees related to discovery before May 31, 2007 because Jem-sek incurred these expenses before the Love court preliminarily approved the settlement and enjoined litigation of the released claims. Until then, Blue Cross NC had every right to defend against Jemsek’s counterclaims.

With respect to the expenses related to the Florida and Eleventh Circuit litigation, Jemsek incurred these expenses because he failed to opt out of the Love settlement. He could have easily avoided this error by telling his lawyers about the notice he received. Because Jemsek’s expenses are not fairly attributable to Blue Cross NC’s misconduct, the bankruptcy court exceeded its sanctioning powers by taxing Blue ■Cross NC with them.

We recognize that a bankruptcy court has considerable leeway to fashion an appropriate sanction. But in this case, those sanctions were excessive and based on a faulty premise: that Blue Cross NC bore the responsibility for Jemsek’s lack of diligence.

IV.

For the foregoing reasons, we vacate the judgment of the district court and remand the case for further proceedings consistent with this opinion.

VACATED AND REMANDED

       Jemsek suggests that Blue Cross NC delayed* revealing the Love injunction because it wanted to avoid reminding Jemsek about the opt-out deadline. Jemsek’s failure to opt out apparently limited his recovery to an amount less than what he sought as damages in the bankruptcy proceedings. Blue Cross NC contends that its North Carolina lawyers did not know about the Love injunction until March 2008 and that Blue Cross NC could not reasonably have known that the Love injunction applied to Jemsek’s counterclaims. The district court appears to have agreed with Jem-sek's view. The record itself yields no definitive answer as to the reason for the delay^ — it may have been a litigation strategy, or it may have been negligence. Under our deferential standard of review, however, we cannot say the bankruptcy court erred in finding that Blue Cross NC lacked a good-faith reason for failing to inform the court about the Love injunction for ten months.


source: Caselaw Access Project

author: WILKINSON, Circuit Judge:

license: Public Domain

text:
    Christopher A. IAMES, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 16-1154
    United States Court of Appeals, Fourth Circuit.
    Argued: January 25, 2017
    Decided: March 7, 2017

      ARGUED: Alvah Lavar Taylor, LAW OFFICES OF A. LAVAR TAYLOR, LLP, Santa Ana, California, for Appellant. Jennifer Marie Rubin, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Jonathan T. Amitrano, LAW OFFICES OF A. LAVAR TAYLOR, LLP, Santa Ana, California; William Wise, WISE & STRACKS, Chicago, Illinois, for Appellant. Caroline D. Ciraolo, Principal Deputy Assistant Attorney General, Diana L. Erbsen, Deputy Assistant Attorney General, Gilbert S. Rothenberg, Michael J. Haungs, Tax Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Ap-pellee.
    Before WILKINSON, MOTZ, and DIAZ, Circuit Judges.
   WILKINSON, Circuit Judge:

This tax administration case presents the question of whether the appellant, Christopher lames, may contest his tax liability in a collection due process (CDP) hearing under Section 6330 of the Internal Revenue Code. lames unsuccessfully challenged his liability in a preassessment hearing before the Office of Appeals of the Internal Revenue Service (IRS). He later sought to raise the same issue before the same administrative unit in his CDP hearing. The Office of Appeals concluded that Section 6330 prohibited him from disputing his liability a second time, and the Tax Court agreed. For the reasons that follow, we affirm the judgment of the Tax Court and hold that lames is barred from contesting the issue of his tax liability in the CDP hearing.

I.

We first set forth the statutory framework on CDP hearings before turning to the particulars of this case!

A.

Section 6330 provides a set of procedural safeguards for taxpayers facing a potential levy action by the IRS: notice, an administrative hearing, and judicial review. 26 U.S.C. § 6330; see Goza v. Comm’r, 114 T.C. 176, 179-80 (2000). Congress enacted Section 6330 as part of its broader efforts to reform the IRS’s tax collection process and to protect taxpayers from abusive or arbitrary collection practices. See Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. No. 105-206, § 3401(b), 112 Stat. 685, 747-49.

Before collecting a delinquent tax through a levy on a taxpayer’s property, the Commissioner must notify the taxpayer of his right to a hearing at least thirty days in advance. 26 U.S.C. § 6330(a). The taxpayer may then contest the levy in an administrative forum known as a “collection due process” hearing. § 6330(b)(1). At the taxpayer’s request, the Office of Appeals is obligated to furnish an “[ijmpartial officer” to hear the taxpayer’s challenge. § 6330(b)(3). The officer must verify that “the requirements of any applicable law or administrative procedure have been met.” § 6330(c)(1). The hearing itself is informal: it may consist of “written or oral communications,” and a transcript is not required. 26 C.F.R. § 301.6330-l(d)(2), Q&A-D6. After the Office of Appeals makes its determination, the taxpayer may petition the Tax Court for judicial review. 26 U.S.C. § 6330(d)(1).

In general, CDP hearings may address a broad array of challenges. The taxpayer may raise “any relevant issue relating to the' unpaid tax or the proposed levy.” § 6330(c)(2)(A). Permissible issues, the statute notes, include classic collection-related matters such as “spousal defenses,” “challenges to the appropriateness of collection actions,” and “offers of collection alternatives.” Id.

Section 6330 also limits the consideration of certain topics. Two restrictions— on tax liability challenges and issues already raised in prior proceedings — are relevant here. Section 6330(c)(2)(B) authorizes a taxpayer to challenge “the existence or amount of the underlying tax liability” so long as the taxpayer “did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability.” § 6330(c)(2)(B). This case involves the “opportunity to dispute” portion of the provision. The statute does not define this term, but the IRS has interpreted it to include “a prior opportunity for a conference with Appeals that was offered either before or after the assessment of the liability.” 26 C.F.R. § 301.6330-1(e)(3), Q&A-E2. In other words, according to the IRS, a taxpayer who could have appealed to the Office of Appeals cannot later challenge his tax liability in a CDP hearing. The Tax Court upheld the IRS’s regulation as a reasonable interpretation of Section 6330 in Lewis v. Commissioner, 128 T.C. 48, 61 (2007).

Section 6330(c)(4) bars review of any issue that was “raised and considered” in any “previous administrative or judicial proceeding” if “the person seeking to raise the issue participated meaningfully” in the proceeding. 26 U.S.C. § 6330(c)(4). The Commissioner formerly interpreted the provision not to apply to liability issues in light of Section 6330(c)(2)(B)’s explicit discussion on that point. See Office of Chief Counsel, Internal Revenue Serv., Notice CC-2003-016, at 20 (2003). But the Commissioner’s current interpretation simply restates the statutory language. See Office of Chief Counsel, Internal Revenue Serv., Notice CC-2006-019, at 33 (2006).

B.

Although the record in this case is sparse, the relevant facts are undisputed. The Commissioner proposed a civil penalty of approximately $61,000 against lames for a reporting violation. Before the Commissioner assessed the tax, however, lames pursued an administrative appeal. He filed a protest with the Office of Appeals, challenging the imposition and amount of the penalty. The Appeals Officer reviewed the file and conducted a telephone conference with Iames’s counsel. During the call, Iames’s counsel requested particular documents; the officer agreed to look into the request and hold another conference. The officer followed up by letter a month later to schedule a second phone call. Hearing nothing in reply for three weeks, the officer sustained the penalty and closed the case.

The Commissioner initiated its administrative collection process and proceeded to assess the penalty. The Commissioner also notified lames of the IRS’s intent to levy and informed him of his right to a CDP hearing under Section 6330.

lames requested a CDP hearing to challenge his tax liability. He did not request or propose an' alternative collection method in lieu of the levy. Following two telephone conferences with Iames’s counsel, the Office of Appeals sustained the Commissioner’s collection action. The Notice of Determination explained that lames was barred from disputing his tax liability in the CDP proceeding because he “was given the opportunity to raise any relevant issues relating to the unpaid tax” in the earlier hearing. J.A. 51.

Undeterred, lames petitioned the Tax Court to review the Notice of Determination. The Commissioner moved for summary judgment, arguing that Section 6330(c)(2)(B) and (c)(4) barred lames from disputing his underlying liability in light of his first appeal. The Tax Court agreed that liability was off-limits and granted summary judgment in the Commissioner’s favor. Relying on the text of Section 6330(c)(2)(B), the associated regulation, and the Lewis decision, the court concluded that lames “had a prior opportunity to challenge the existence [and] the amount of the underlying liability and he may not do so here.” J.A. 148. After two unsuccessful motions for reconsideration, lames now appeals.

II.

Courts of appeals review decisions of the Tax Court “in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury.” 26 U.S.C. § 7482(a)(1). Accordingly, we review de novo the Tax Court’s grant of summary judgment. Ripley v. Comm’r, 103 F.3d 332, 334 n.3 (4th Cir. 1996). Summary judgment is appropriate only where, as here, no material facts are disputed and the moving party is entitled to judgment as a matter of law. Dreamstreet Investments, Inc. v. Mid-Country Bank, 842 F.3d 825, 829 (4th Cir. 2016).

III.

This case implicates both subsections (c)(2)(B) and (c)(4) of Section 6330: lames seeks to dispute his tax liability in a CDP proceeding despite having already raised the issue in an earlier administrative appeal. Because the Tax Court grounded its decision in Section 6330(c)(2)(B), we begin with that provision and then consider Section 6330(c)(4). Both subsections, we hold, preclude'CDP review of Iames’s tax liability.

Section 6330(c)(2)(B), titled “Underlying-liability,” allows a taxpayer to challenge his tax liability unless one of two exceptions applies. As noted, the statute provides that the “person may ... raise at the hearing challenges to the existence or amount of the underlying tax liability for any tax period if the person did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability.” 26 U.S.C § 6330(c)(2)(B). There is no sug-gestión that lames received a notice of deficiency.

Whether Section 6330(c)(2)(B) bars lames from disputing his tax liability in his CDP hearing thus depends on whether his chance to request an administrative hearing before the Office of Appeals qualifies as an “opportunity to dispute [his] tax liability.” lames interprets the statute to preclude CDP review only where the taxpayer had a chance to contest his liability in court. He claims that an administrative opportunity (such as a hearing before the Office of Appeals) does not activate the bar on CDP liability review. The pertinent regulation, as mentioned above, provides that the availability of a preassessment conference with the Office of Appeals qualifies as an “opportunity to dispute” one’s tax liability. See 26 C.F.R. § 301.6330-1(e)(3), Q&A-E2. Considering the text and structure of Section 6330(c)(2)(B) as well as the purpose of the CDP provisions more generally, we conclude that such hearings activate Section 6330’s prohibition. The fact that the IRS, through its regulation, interprets Section 6330(c)(2)(B) as we do reinforces our conviction that preassessment hearings before the Office of Appeals qualify as “opportunities] to dispute” tax liability. lames, therefore, is precluded from raising his tax liability in his CDP hearing.

In light of Section 6330(e)(2)(B)’s unqualified language, an administrative hearing is not categorically excluded from qualifying as “an opportunity to dispute” tax liability solely because it is administrative in nature. The statute unambiguously provides that a taxpayer may raise the issue of his liability in a CDP hearing if he has not yet had “an opportunity” to do so. By its own terms, then, Section 6330(c)(2)(B) does not specify “a judicial opportunity,” but merely “an opportunity.” The right to an administrative hearing may qualify as such “an opportunity.” Iames’s interpretation, by contrast, would add an adjective, “judicial,” to the statute that Congress did not put there.

The portion of Section 6330(c)(2)(B) on notices of deficiency supports this interpretation. Courts must determine the meaning of statutory language “[not only] by reference to the language itself, [but as well by] the specific context in which that language is used.” Yates v. United States, — U.S. -, 135 S.Ct. 1074, 1082, 191 L.Ed.2d 64 (2015) (plurality opinion) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)). As the Tax Court has emphasized, “receipt of a notice of deficiency serves as a taxpayer’s ticket to the Tax Court.” Lewis, 128 T.C. at 55. The resulting chance to litigate one’s liability negates any need for an additional challenge in the CDP context. Accordingly, Section 6330(c)(2)(B) provides that taxpayers who are given a notice of deficiency are barred from raising the issue in a CDP hearing. The provision then extends this bar to anyone who “otherwise” had the chance to dispute liability. 26 U.S.C. § 6330(c)(2)(B). The term “otherwise” suggests that the same principle animates both parts of Section 6330(c)(2)(B): taxpayers do not get an additional bite at the apple.

In holding that the prohibition on CDP liability review is not limited to prior judicial challenges, we need not specify what types of administrative hearings may or may not activate the bar. It is clear that the option to request a hearing with the Office of Appeals before the Commissioner assesses the tax counts as “an opportunity to dispute [one’s] tax liability.” First, taxpayers in these hearings have a genuine chance to explain why they should not be held to the amount requested by the Commissioner. Second, the Office of Appeals is an independent decisionmaker. As the Tax Court noted in Lewis, the law establishing Section 6330 also “mandate[d] that an independent appeals function exist within the IRS,” Lewis, 128 T.C. at 59, suggesting that the Office of Appeals is “more' than just a rubber stamp for the Commissioner’s determinations,” id. at 60. Finally, the Office of Appeals conducts both the preassessment hearing and the CDP hearing. We conclude that the former precludes the latter when it comes to tax liability.

This straightforward interpretation of Section 6330(c)(2)(B) also accords with the general focus of Section 6330 on the Commissioner’s collection of a predetermined liability, not the merits of that liability. As the Supreme Court has observed, “the words of a statute must be read ... with a view to their place in the overall statutory scheme.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (quoting Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989)). Congress enacted Section 6330 to make the collection process less onerous, to encourage negotiation between taxpayers and the Commissioner, and to impose a measure of procedural regularity and oversight on the Commissioner’s significant and previously unfettered power to levy. Against this backdrop, Congress envisioned only limited CDP review of the taxpayer’s underlying liability.

The scheme Congress devised reflects the problem — abusive collection practices^ — Congress sought to remedy. The statute provides that “[n]o levy may be made on any property or right to property of any person unless the Secretary has notified such person in writing of their right to a hearing.” 26 U.S.C. § 6330(a)(1). This notice must describe “the proposed [collection'] action ... and the rights of the person with respect to such action,” including “the alternatives available to taxpayers which could prevent levy on property” and “procedures relating to redemption of property.” § 6330(a)(3)(C). The CDP hearing officer must verify that “the requirements of any applicable law or administrative procedure have been met.” § 6330(c)(1). In addition to authorizing tax-. payers to raise “any relevant issue relating to the unpaid tax or the proposed levy,” Congress took care to green-light specific collection-related arguments. § 6330(c)(2)(A) (listing “appropriate spousal defenses,” “challenges to the appropriateness of collection actions,” and “offers of collection alternatives”). Finally, the hearing officer must consider “whether any proposed collection action balances the need for the efficient collection of taxes with the legitimate concern of the person that any collection action be no more intrusive than necessary.” § 6330(c)(3)(C). Administrative appeals under Section 6330 are called “collection due process” hearings for a reason.

Within this collection-focused framework, liability review plays no more than a minor part: Section 6330(c)(2)(B) catches taxpayers who would otherwise fall through the cracks. After declaring broadly that a taxpayer may raise “any relevant issue,” the statute mentions that the taxpayer can “also” bring up liability if he did not receive an earlier chance to do so. § 6330(c)(2)(B). The text of the provision accentuates the peripheral role Congress accorded to liability challenges at the CDP stage.

It is unsurprising that Congress prescribed such a narrow window for CDP liability review. As lames himself explains in detail, taxpayers have “multiple opportunities to administratively challenge virtually every type of disputed tax liability” prior to a CDP hearing and well before any payment. Br. of Appellant at 12-13. These prepayment administrative avenues include preassessment hearings with the Office of Appeals (an option that lames pursued), offers in compromise based on doubt as to liability, requests for audit reconsideration, and requests for abatement. See id. at 27-36.

This variety of administrative options suggests that Congress did not intend for CDP proceedings, which concern tax collections, to become the primary vehicle for liability challenges. Instead of throwing open the door to such arguments, Congress left it but slightly ajar. Section 6330(c)(2)(B) strikes ' a balance between giving taxpayers at least one opportunity to dispute their tax liability and ensuring that prepayment liability challenges do not frustrate the process of revenue collection.

Here, lames was afforded a meaningful opportunity to challenge the imposition and amount of the reporting penalty: he had the ability to request a preassessment hearing before the Office of Appeals. This was sufficient under Section 6330(c)(2)(B). Moreover, lames took advantage of the hearing. He was represented by counsel, who filed his initial protest with the Office of Appeals. Prior to the hearing, the officer reviewed the revenue agent’s report, the protest, and other documentation. The officer also conferred with a technical specialist. At the hearing, Iames’s counsel actually contested Iames’s liability and asked for additional documents. The officer followed up on this request, but Iames’s counsel failed to respond. Plainly, then, lames enjoyed “an opportunity to dispute [his] tax liability.”

IV.

Although the Tax Court did not address Section 6330(c)(4), the Commissioner contends that provision also prohibits Iames’s liability challenge. The provision, titled “Certain issues precluded,” states that “[a]n issue may not be raised at the [CDP] hearing if ... the issue was raised and considered at a previous hearing under section 6320 or in any other previous administrative or judicial proceeding; and ... the person seeking to raise the issue participated meaningfully in such hearing or proceeding.” 26 U.S.C. § 6330(c)(4).

lames does not dispute any of the operative facts. The tax liability issue was raised in a “previous administrative ... proceeding,” his hearing with the Office of Appeals. The hearing officer considered — and ultimately rejected — his arguments. And lames was represented at the hearing by counsel. We therefore agree with the Commissioner and hold that Section 6330(c)(4) bars lames from challenging his liability in the CDP context.

Attempting to evade this straightforward application of clear statutory text, lames suggests that Section 6330(c)(4) applies only to collection issues and not to liability issues, which are addressed exclusively in Section 6330(c)(2)(B). We cannot discern any limitation of this sort in the text of Section 6330(c)(4). Congress emphatically expressed its view that Section 6330(c)(4) has broad preclusive scope. The word “issue” is unqualified; it is not confined to collection matters. And “any” earlier proceeding suffices to knock an already-raised matter out of the CDP hearing. Once again, as with subsection (c)(2)(B), lames is trying to add qualifying adjectival language to the statute that is simply not there.

Much of our explanation in the preceding section applies here. Section 6330(c)(2)(B) and (c)(4) share much in common. Both provisions incorporate the principles of claim preclusion and issue preclusion, respectively, into the CDP context. They are motivated by the same idea: CDP hearings do not afford taxpayers a chance to relitigate questions that have already been settled or should have been. Subsection (c)(2)(B) concerns liability challenges that a taxpayer had a chance to raise, while (c)(4) applies to all issues that were actually disputed. Because lames had an earlier opportunity to challenge his underlying tax liability and in fact took advantage of this opportunity, both provisions prevent him from contesting the same issue a second time in his CDP proceeding. Construing Section 6330’s prohibitions on liability review in the narrow way lames urges would wholly undermine Congress’s efforts to fashion a limited window for liability challenges in the CDP context and to foreclose repetitive arguments. The Commissioner is entitled to judgment as a matter of law, and the Tax Court is accordingly

AFFIRMED.

      . Although lames argues that he was also entitled to challenge his tax liability in the Tax Court, we discuss here his foundational contention: whether he was barred from bringing up the topic in his CDP hearing. Section 6330 prescribes the issues that may be raised "at the hearing." 26 U.S.C. § 6330(c)(2)(A), (c)(2)(B), (c)(4). The IRS correctly notes the Tax Court may review only “an issue, including a challenge to the underlying tax liability, that was properly raised in the taxpayer’s CDP hearing.” 26 C.F.R. § 301.6330-1(f)(2), Q&A-F3.

      . The Commissioner also urges that this appeal be resolved as a matter of privity issue preclusion. Issue preclusion, as an affirmative defense, goes to the merits of a dispute, not mootness or jurisdiction as the Commissioner appears to believe. Fed. R. Civ. P. 8(c)(1); see Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 350, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). Given the reasoning set forth herein,' we have no need to address the additional question of issue preclusion.

      . Lacking a tenable textual argument, lames resorts to the interpretive maxim noscitur a sociis, which counsels that "words grouped in a list should be given related meaning.” Dole v. United Steelworkers of Am., 494 U.S. 26, 36, 110 S.Ct. 929, 108 L.Ed.2d 23 (1990). The canon, lames argues, implies that only judicial opportunities qualify under Section 6330(c)(2)(B) because notices of deficiency enable taxpayers to litigate liability in court. But Section 6330(c)(2)(B), with just two parts, is no list. See Graham Cty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 559 U.S. 280, 289, 130 S.Ct. 1396, 176 L.Ed.2d 225 (2010) ("[T]hese [three] items are too few and too disparate to qualify as a string of statutory terms ... or items in a list.” (internal quotation marks and citations omitted)). Not only does the maxim not suffice, then, to override the clear text of the statute; it is wholly inapplicable.


author: DUNCAN, Circuit Judge:

text:
    Xochitl Jazmin Velasco PADILLA, Petitioner-Appellant, v. Joe Richard TROXELL, Respondent-Appellee.
    No. 16-1979
    United States Court of Appeals, Fourth Circuit.
    Argued: January 24, 2017
    Decided: March 8, 2017

      ARGUED: Kelly Ann Powers, MILES & STOCKBRIDGE P.C., Washington, D.C., for Appellant. Christopher George Michel, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellee. ON BRIEF: Stephen J. Cullen, Leah M. Hau-ser, Rachel N. Mech, MILES & STOCK-BRIDGE P.C., Washington, D.C., for Appellant. Erin E. Murphy, KIRKLAND & ELLIS LLP, Washington, D.C., for Appel-lee.
    Before MOTZ, DUNCAN, and HARRIS, Circuit Judges.
   DUNCAN, Circuit Judge:

Petitioner-Appellant Xóchitl Jazmín Ve-lasco Padilla (“Petitioner”) appeals the district court’s denial of her petition for the return of her now five-year-old child J.V. (“Child”), after Respondent-Appellee Joe Richard Troxell (“Respondent”) took Child to the United States. Petitioner filed her petition under the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”), Oct. 25, 1980, T.I.A.S. No. 11,670, 19 I.L.M. 1501, as implemented by the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001 et seq. The district court denied the petition, finding that Petitioner had established that Child was wrongfully removed but that Respondent had adequately shown at least one defense under the Hague Convention — that is, that Petitioner had consented to Child’s removal from Mexico. For the reasons that follow, wé affirm.

I.

A.

1.

Petitioner gave birth to Child on May 27, 2011 in the state of Oaxaca, Mexico. Child’s biological father is unconfirmed. However, the parties believe Respondent is the paternal grandfather. Respondent— a U.S. citizen residing in Mexico at the time — offered to provide support for Child. In January 2012, when Child was about eight months old, Petitioner and Respondent agreed that Respondent would serve as Child’s legal father. Accordingly, Respondent registered himself as Child’s father, and his name appears on the birth certificate. As stipulatéd by the parties, Respondent is the legal father and has parental rights under Mexican law.

For the first two years of Child’s life, although Respondent had little to no physical contact with Child, he did provide financial support. On December 17, 2014, Petitioner and Respondent traveled to Oaxaca to obtain a Mexican passport for Child. After they obtained Child’s passport together, Respondent took Child to his home in Acapulco until Child entered the United States.

The parties’ descriptions of the circumstances under which Child entered the United States vary dramatically. Although the district court was to find Petitioner’s version of events not credible, we nevertheless set out both versions for the sake of comprehensiveness.

2.

According to Respondent, Child spent his first two years not with Petitioner, but primarily in Petitioner’s mother’s care. In early 2014, Petitioner’s mother, called Respondent and stated that Child wanted to see Respondent. Respondent and his then-fianeée, now-wife Blanca Leyva (“Ms. Ley-va”) picked up Petitioner’s mother and Child from the bus station, and they stayed at Respondent’s home in Acapulco for several days. During the visit, Petitioner’s mother said she wanted help bringing Child to the United States and that Child would require a passport and visa to enter the country. Respondent was planning to move to the United States, both to marry Ms. Leyva and to undergo surgery. He obtained a “fiancée visa” authorizing Ms. Leyva to enter the country to get married, and he told Petitioner’s mother that he would also apply for a passport for Child. After this visit, Respondent began preparing for the move. When Respondent informed Petitioner’s mother that Child’s passport would require Petitioner’s signature, she confessed, “I don’t know where [Petitioner] is.” App. 578. Eventually, a friend helped Petitioner’s mother locate Petitioner in Zaachila, a town six hours north near the city of Oaxaca. In early December, Respondent and Ms. Leyva traveled to Rio Grande to pick up Child from Petitioner’s mother, then to Zaachila to pick up Petitioner, and finally to the passport office in the city of Oaxaca.

On December 17, 2014, Petitioner, Respondent, and Child — as well as Petitioner’s half-sister, Maria Luisa Banos Castillo (“Ms. Banos”), and her children — went to the passport office. Petitioner and Respondent jointly signed for Child’s passport, which they received later that day. The entire group stayed the night at the house where Petitioner was living. The next day, December 18, the group celebrated Ms. Leyva’s birthday. On the morning of December 19, Respondent and Ms. Leyva returned with Child to Respondent’s home in Acapulco, where they resided until leaving for the United States.

Respondent testified that Petitioner never told him that she wanted him to bring Child into the United States illegally without her. However, according to Respondent, during the visit to obtain Child’s passport, Petitioner “agreed to sign over custody” to Respondent, App. 583, because she believed he would be able to get Child on the “right track,” App. 584. Ms. Leyva later testified that Respondent and Petitioner specifically discussed taking Child to the United States so that Child could “have a better life.” App. 635. Although Ms. Leyva stated “there was no plan,” the prospect of moving to a U.S. city “was always on the table” between the parties. App. 634; see also App. 635.

3.

For her part, Petitioner contended that during Child’s first two years she had only been separated from Child for six weeks. Petitioner stated that she went to get a passport for Child because Respondent offered to “get papers for me and my child,” so that “perhaps I could have a vacation” in the-United States with Child. App. 536. According to Petitioner, Respondent took Child without her knowledge and consent. She stated that on the day of the visit to the passport office — December 17, 2014— Respondent and Ms. Leyva disappeared with Child.

4.

The parties’ stories converge again on February 17, 2015, when Border Patrol agents found Child near McAllen, Texas, along with several other undocumented individuals who had crossed the border illegally. The agents contacted Respondent, who had entered the United States with Ms. Leyva. Respondent acknowledged he had paid $1,200 to smuggle Child into the United States. Respondent testified that, because Ms. Leyva’s “fiancée visa” would expire before he could obtain Child’s visa, he “had no other choice.” App. 599. After determining that Respondent was Child’s father, that Respondent did not have a criminal history, and that Child was not the subject of missing child alerts, the agents released Child to Respondent’s custody.

Since living with Child in the United States, Respondent and Ms. Leyva maintained regular contact with Petitioner. As evidenced by text messages from September 2015 until January 2016, the tone of the initial correspondence was amicable and reflected Petitioner’s recognition that Child was better off with Respondent in the United States as long as she was allowed to see him. As late as January 13, 2016, nearly a year after Child entered the United States, Respondent asked, “what [do] you think is best for the life of [Child] and where is best for him to live[?]” Petitioner responded, “I know with you.” App. 477; see also App. 479.

Petitioner also repeatedly blamed her mother for any efforts to have child returned to Mexico and disavowed interest in doing so. For example, she told Ms. Leyva that if Respondent would help her she would “do everything to stop” the dispute. App. 383; see also 357, 385, 391.

Petitioner conditioned her support for Respondent, however, on Respondent’s continued financial assistance. Petitioner repeatedly assured Respondent and his new wife that Petitioner was “not going to fight for” Child, App. 353, and that she would stop efforts seeking return of Child as long as Respondent provided money. She stated: “you forward 3,000 please and I will give the guardian and custody,” App. 459, and “I will do everything for [Child] to be with you but I really need the money,” App. 475. The text messages indicate Respondent provided such support. See App. 459 (responding to Petitioner’s request for “3,000” by sending more than $3,000 later that same day); see also App. 425 (sending over $1,500 to Petitioner). Respondent testified that Petitioner and her family asked him for money “[m]ore [times] than [he could] count.” App. 592.

By February 2016, however, Petitioner’s position had changed. She now stated that “I don’t care about the money.” App. 443. She cared about “getting my son back.” App. 443.

B.

1.

On May 23, 2016, Petitioner filed the instant petition under the Hague Convention in federal district court, and a bench trial was held on July 25, 2016. The court accepted the parties’ joint stipulation, heard testimony from Petitioner, Respondent, Petitioner’s sister, and Ms. Leyva, and admitted a number of documentary exhibits.

During the trial, several inconsistencies in Petitioner’s" version of events became apparent. Petitioner testified (1) that Child was her firstborn; (2) that she had' only been separated from Child for six weeks; (3) that she had never asked Respondent for money; and (4) that in her communications with Respondent after his move to the United States she had only sought Child’s return. On cross-examination, however, Petitioner admitted (1) that she had previously given birth to another child; (2) that she had lived at least four or five months apart from Child; and (3) that she had asked Respondent for money several times, including in (4) text messages she sent after Child’s move to the United States that did not seek Child’s return. As for the alleged abduction, Petitioner also testified that Respondent took Child while she was going to the bathroom, which conflicted with her prior account that Respondent disappeared with Child while she was buying ice cream. Although Petitioner’s sister, Maria Candelaria Velasco Padilla, testified that Petitioner “was always with her baby” before the birth of her third child in 2013, App. 569, she said nothing to support Petitioner’s narrative of the day of the alleged abduction in December 2014.

Respondent testified as to his version of events, and Ms. Leyva confirmed his account. Respondent also introduced a sworn affidavit from Ms. Banos, Petitioner’s half-sister who was present during the visit to the passport office. In the affidavit, Ms. Banos stated that Respondent had not abducted Child. Respondent argued that the district court should admit the document as self-authenticating both because it was “lawfully executed by a notary public” under Federal Rule of Evidence 902(8) and because it “relate[d] to the application or petition” and was therefore “admissible” under Article 30 of the Hague Convention and the implementing provision of ICARA, 22 U.S.C. § 9005. Petitioner argued that the document was not self-authenticating because it did not contain certification from a foreign government official as required under Federal Rule of Evidence 902(3). More than once, counsel for Petitioner stated that the “basis” for the objection was Federal Rule of Evidence 902(3). App. 639; see also App. 641. The district court took the affidavit under advisement and promised an expedited written opinion on the petition.

2.

On July 28, 2016, the district court denied the petition. In its opinion, the district court found Petitioner had established, “by a preponderance of the evidence, that [Child] was wrongfully removed (or retained) from [Child’s] habitual residence in violation of [Petitioner’s] custody rights.” App. 651. Nevertheless, the district court found that Respondent had “adequately shown” that Petitioner consented to Child’s removal from Mexico, a defense under the Hague Convention. App. 651. The court further noted the “evidence established that Petitioner ... had no objections to [Child] remaining in Respondent’s care so long as Respondent supported her financially.” App. 655.

In reaching these conclusions, the district court made an express credibility determination. The court stated that “Petitioner’s testimony raised serious doubts about her credibility,” and that the “ease with which she misl[e]d the court” on at least one issue — -the number and birth order of her children — “calls into question all of her factual testimony.” App. 655. Accordingly, the district court found that there was “only one credible version of events: Respondent’s.” App. 655.

As for the sworn statement of Ms. Ba-nos, the district court admitted the affidavit into evidence as “self-authenticating under Federal Rule of Evidence 902(8).” App. 653 n.7. The court referenced it once in a footnote, observing that it “supported” Respondent’s “version of events.” App. 653 n.7.

Petitioner timely appealed. This court considered the case under an expedited schedule in accordance with Article 11 of the Hague Convention. Hague Convention art. 11, 19 I.L.M. at 1502; see also Chafin v. Chafin, — U.S. -, 133 S.Ct. 1017, 1021, 185 L.Ed.2d 1 (2013).

II.

On appeal, Petitioner argues that the district court erred in (1) finding that she consented to or acquiesced in Child’s removal to and retention in the United States; (2) admitting into evidence the sworn affidavit of Ms. Banos, thereby prejudicing her case; and (3) not ordering the return of Child under its discretionary authority pursuant to Article 18 of the Convention. Respondent counters that the district court correctly determined that Petitioner consented to the removal, and that additional grounds also support denial of the petition.

“We review ■ the district court’s findings of fact for clear error and review its construction and application of the Hague Convention de novo.” Alcala v. Hernandez, 826 F.3d 161, 168 (4th Cir. 2016) (citing Maxwell v. Maxwell, 588 F.3d 245, 250 (4th Cir. 2009)). “Under the clearly erroneous standard, a district court’s determination should be affirmed unless the Court is ‘left with the definite and firm conviction that a mistake has been committed.’” Andrews v. Am.’s Living Ctrs., LLC, 827 F.3d 306, 312 (4th Cir. 2016) (quoting Mallory v. Booth Refrig. Supply Co., 882 F.2d 908, 909 (4th Cir. 1989)). Where, as here, “a district court’s factual findings turn on assessments of witness credibility or the weighing of conflicting evidence during a bench trial, such findings are entitled to even greater deference.” FTC v. Ross, 743 F.3d 886, 894 (4th Cir. 2014) (quoting Helton v. AT&T, Inc., 709 F.3d 343, 351 (4th Cir. 2013)). We review the district court’s evidentiary rulings under the Federal Rules of Evidence for abuse of discretion and its interpretations of such rules de novo. In re C.R. Bard, Inc., MDL No. 2187, Pelvic Repair Sys. Prod. Liab. Litig., 810 F.3d 913, 923 (4th Cir. 2016).

III.

A.

1.

The Hague Convention sets forth a detailed framework for addressing claims of international child abduction during domestic disputes between parties in signatory nations. See Lozano v. Montoya Alvarez, - U.S. -, 134 S.Ct. 1224, 1228, 188 L.Ed.2d 200 (2014). After the United States ratified the Convention, Congress implemented it through ICARA. Alcala, 826 F.3d at 169. As relevant here, the Convention provides that a child who was “wrongfully removed” from his place of habitual residence in violation of a person’s custody rights must be returned to that place unless certain “narrow exceptions” apply. Id.

The district court concluded that Respondent had wrongfully removed' Child from Mexico into the United States. The parties do not contest that determination on appeal. We therefore consider Petitioner’s arguments about Respondent’s applicable defenses.

2.

Once a petitioner has shown a wrongful removal occurred, the burden shifts to the respondent to establish that one of the exceptions in the Convention “excuses return” of the child. Lozano, 134 S.Ct. at 1229. These exceptions are limited and narrow. Alcala, 826 F.3d at 169. Among them, the Convention provides that a court “is not bound to order the return of the child,” if the petitioning parent either “consented to” or “subsequently acquiesced in the removal or retention” of the child. Hague Convention art. 13a, 19 I.L.M. at 1502. Respondent bears the burden of establishing consent or acquiescence by a preponderance of the evidence. See 22 U.S.C. § 9003(e)(2)(B).

Neither the Hague Convention nor its implementing statute, ICARA, define consent or acquiescence. Although construing this defense presents an issue of first impression in this circuit, oub sister circuits have experience distinguishing and applying the consent and acquiescence defenses.

Consent and acquiescence are two separate and “analytically distinct” affirmative defenses. Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir. 2005); see also Darin v. Olivero-Huffman, 746 F.3d 1, 14 (1st Cir. 2014). Whereas the consent defense concerns the petitioner’s conduct before the contested removal or retention, the acquiescence defense concerns whether the petitioner subsequently agreed to or accepted the removal or retention. Darin, 746 F.3d at 14; accord Baxter, 423 F.3d at 371; Gonzalez-Caballero v. Mena, 251 F.3d 789, 794 (9th Cir. 2001). Courts have explained that the acquiescence defense often requires more formality than consent; accordingly, to find acquiescence we look to evidence such as testimony in a judicial proceeding, a convincing renunciation of rights, or a consistent attitude over a significant period of time. See Darin, 746 F.3d at 16; accord Baxter, 423 F.3d at 371. By contrast, a petitioner’s statements or conduct-formal or informal — can manifest consent. We evaluate what the petitioner contemplated and agreed to, as well as the nature and scope of consent, including any conditions or limitations. Darin, 746 F.3d at 15; accord Baxter, 423 F.3d at 371. For both the consent and acquiescence defenses, the inquiry turns on the petitioner’s subjective intent. See Baxter, 423 F.3d at 371.

We affirm on the dispositive basis of the consent defense. We therefore decline to consider whether the record also supports a finding that Petitioner acquiesced in the removal or retention of Child.

To establish consent, we focus on the parties’ conduct prior to the removal or retention. See Darin, 746 F.3d at 15. However, a petitioner’s conduct after removal can further inform whether she consented at the time of removal. See Mena, 251 F.3d at 794. Determining whether the preponderance of the evidence supports a petitioner’s subjective intent to consent to removal is naturally “fact-intensive.” James D. Garbolino, Federal Judicial Center, The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges 102 (2d ed. 2015). Accordingly, this inquiry depends to a considerable extent on the district court’s factual and credibility determinations. See Nicolson v. Pappalardo, 605 F.3d 100, 105-06 (1st Cir. 2010). In these types of disputes, the district court often “facets] ... a choice as to whom it [finds] more believable.” Friedrich v. Friedrich, 78 F.3d 1060, 1069 (6th Cir. 1996); cf. Smedley v. Smedley, 772 F.3d 184, 190-91 (4th Cir. 2014) (not elaborating on the consent defense, but finding that district court properly extended comity to German court’s judgment, including its decision not to credit father’s version of events).

3.

Petitioner’s conflicting testimony about basic personal information led the district court to question “all of her factual testimony.” App. 655. The district court ultimately concluded Respondent’s version of events was the only credible one. We owe this express credibility determination substantial deference, and Petitioner, tellingly, does not challenge it on appeal. See Friedrich, 78 F.3d at 1069; see also Andrews, 827 F.3d at 312; Ross, 743 F.3d at 894.

Bolstered by the credibility determination, we agree with the district court’s legal conclusion that a preponderance of the evidence demonstrates Petitioner consented to Child’s removal to the United States. The district court found that Petitioner willingly accompanied Respondent to obtain Child’s passport and agreed to surrender custody to Respondent so that Child could have a better life. Ms. Leyva’s testimony and the sworn affidavit of Petitioner’s half-sister, Ms. Banos, corroborate Respondent’s story. The text messages— exchanged between September 2015 (a little more than six months after Child’s removal) and January 2016 — reinforce the conclusion that Petitioner consented to removal of Child to the United States. To be sure, Respondent acknowledged that Petitioner never told him she wanted him to bring Child into the United States illegally, and how a Child is removed is one factor to consider in assessing the scope of consent. Still, Petitioner repeatedly said that Child was better off with Respondent in the United States, thus suggesting that she did not view Respondent as an abductor. In the context of Respondent’s impending move to the United States, the combination of Petitioner’s conduct in signing for Child’s passport and her statements during the passport visit to Respondent that Child would be better off with him — as well as her subsequent text messages expressing same — all support the conclusion that she consented to Child’s relocation. See Mena, 251 F.3d at 793-95.

B.

Next, Petitioner argues that the district court improperly admitted the affidavit from her half-sister, Ms. Banos, because (1) it was inadmissible hearsay not subject to any exception and (2) the document unduly prejudiced her case. Respondent counters that Petitioner failed to raise the issue below and therefore may not do so here. We agree.

At trial, Petitioner failed to raise a hearsay objection to the affidavit. Although Petitioner objected to the affidavit, she only objected to the authentication of the document, not to its inadmissibility as hearsay. More than once, counsel for Petitioner explicitly stated that the “basis” for the objection was Federal Rule of Evidence 902(3), not Rules 803 and 804, which govern hearsay. App. 639; see also App. 641 (same). An evidentiary objection on one basis is insufficient to preserve an evidentiary objection on a different basis. See United States v. Cabrera-Beltran, 660 F.3d 742, 751 (4th Cir. 2011). Petitioner failed to make a hearsay objection below and therefore failed to preserve the issue for appeal. See Fed. R. Evid. 103(a) (requiring a “timely” and “specific” objection “on the record” to preserve evidentiary admissibility for appellate review); United States v. Parodi, 703 F.2d 768, 783 (4th Cir. 1983) (untimely or unspecific eviden-tiary objection is forfeited on appeal). At trial, Petitioner also did not object on the basis of Rule 403, and she does not explain on appeal how the district court’s minimal reliance on the affidavit in one footnote prejudiced her case. Petitioner has also forfeited this argument on appeal.

C.

Finally, Petitioner argues, also for the first time on appeal, that the district court erred in not exercising its discretion under Article 18 of the Convention to order the return of Child even though Respondent had established at least one valid defense. Petitioner did not raise this argument below, and we similarly consider it forfeited on appeal.

IV.

We recognize the unfortunate nature of this case for all involved, especially Child. However, the Hague Convention and ICARA do not empower us to address “the merits of any underlying child custody claims.” 22 U.S.C. § 9001(b)(4); Smedley, 772 F.3d at 186. The district court did not clearly err in finding that Respondent was “more believable,” Friedrich, 78 F.3d at 1069, and Petitioner does not challenge that determination. We agree with the district court that the preponderance of the evidence demonstrates that Petitioner consented to Respondent’s removal of Child to the United States. Accordingly, the judgment of the district court is

AFFIRMED.

      . Mexican law permits an unwed mother to register a person other than the biological father as the legal father of a child. App. 76, 178; see also Mex. Civ. Code Ann., tit. 4, art. 60.

      . Because Petitioner herself stated that she wanted a passport for Child, an apparent discrepancy between the district court's opinion and the record does not alter our analysis. With regard to Respondent’s account of events, the district court appears to have confused Petitioner with Petitioner’s mother. The district court stated that around January 2014 Petitioner contacted Respondent and stated that Child wanted to see him, and that Petitioner and Child stayed with Respondent and Ms. Leyva for several days at Respondent's home in Acapulco. App. 652-53. However, Respondent's testimony was that Petitioner’s mother did so. App. 576-77.

      . On December 11, 2015, Petitioner filed a petition for return of Child under the Hague Convention in Virginia state court. After the state court declined to adopt her proposed hearing schedule, on May 11, 2016, Petitioner submitted a voluntary nonsuit order dismissing the action.

      . Petitioner also conceded that she had obtained a federal identification card with an address in Zaachila six hours away from her hometown and the place where Child went to school, suggesting that she did not provide day-to-day care for Child.

      . The United States ratified the Convention in 1988, and Mexico did so in 1991. See In re B. Del C.S.B., 559 F.3d 999, 1002 n.1 (9th Cir. 2009).

      . We also need not consider whether the consent and acquiescence defenses are "mutually exclusive.” Appellant’s Br. at 19. For the same reason, we also decline to reach the defenses on which Respondent argues we can alternatively affirm.

      . ' Petitioner argues that the district court improperly shifted the burden of disproving consent to her. We disagree. The district court began by placing the burden of showing wrongful removal on Petitioner, as ICARA requires. See App. 651 ("Petitioner must show, by a preponderance of the evidence, that [Child] was wrongfully removed.”); 22 U.S.C. § 9003(e)(1)(A). After finding that Petitioner had "made this showing,” the district court then shifted the burden to Respondent, again as ICARA requires, holding that “Respondent has established ... that Petitioner consented to [Child] being brought into this country.” App. 651 (emphasis added); 22 U.S.C. § 9003(e)(2)(B). Later, the district court emphasized again that “because Respondent has adequately shown that Petitioner consented to [Child’s] removal from Mexico, I will not order [Child] returned to his home country.” App. 651-52 (emphasis added) (footnote omitted). Petitioner’s brief cites one sentence that she says indicates improper burden shifting: the district court’s finding that Petitioner "has offered no explanation why she would have consented to acquiring a passport for her [Child] unless there were plans for [Child] to travel to the United States.” Appellant’s Br. at 16-17 (quoting App. -654). But that sentence is simply part of the district court’s explanation for why "Respondent has adequately shown that Petitioner consented” to Child’s removal. App. 651-52.

      . Cf. Alcala, 826 F.3d at 165, 173-74 (noting that mother brought her child into the United States without legal authorization but concluding that mother could still establish a defense to wrongful removal under the Hague Convention).

      . To be sure, some evidence could be read to support Petitioner's version of events. For instance, in her text message from February 2016 Petitioner stated, “I don’t care about the money,” and instead “what I care about is getting my son back.” App. 443. This message could be interpreted as a mother protesting her child’s removal or trying to placate her child’s abductor. But when read in the context of Petitioner and Respondent’s ongoing dialogue months after Child’s removal to the United States, the message could also be viewed as Petitioner merely “regretting her decision,” Baxter, 423 F.3d at 372, or post-litigation posturing. In any event, it does not detract from the numerous other text messages in which Petitioner sought money — evidence that supports the inference she was using litigation as a bargaining chip — and agreed Child was better off in the United States with Respondent. The district court did not err in concluding that a preponderance of the evidence indicates Petitioner consented to Child’s removal.

      . To the extent Petitioner argues that the trial judge "prevented and impeded” her counsel from objecting on the basis of hearsay, Reply Br. at 3, that is not the case. Counsel for both parties engaged in an extended discussion with the trial judge about the affidavit, and counsel for Petitioner had ample opportunity to object on the basis of hearsay but failed to do so. Moreover, the record indicates counsel for Petitioner objected to other evidence on hearsay grounds.

      . In any event, the district court's admission of, and minimal reliance on, the affidavit was at most harmless error due to the otherwise strong factual support for Respondent's version of events. See Fed. R. Evid. 103(a) (evi-dentiary error must affect substantial rights); In re C.R. Bard, Inc., 810 F.3d at 923 (improperly admitting hearsay evidence was harmless error where result of proceeding would not have changed).

      .We therefore decline to decide what standard of review applies to a district court’s decision whether to exercise discretion under Article 18. See Alcala, 826 F.3d at 175 n.11.


author: PATRICK E. HIGGINBOTHAM, Circuit Judge:

text:
    Stacey VETTER, Plaintiff-Appellant v. Christine McATEE, Defendant-Appellee Insignia Marketing, Incorporated, Plaintiff-Counter Defendant-Appellee Cross-Appellant Christine McAtee, Counter Defendant-Appellee v. Stacey Vetter, Defendant-Counter Plaintiff-Appellant Cross-Appellee Larry Taylor; Nancy Sheppard; David Rappe; The Promo Agency Company; David Fechtman; AIA-LOGO Promotions, L.L.C., Defendants-Appellants Cross-Appellees
    No. 15-20575
    United States Court of Appeals, Fifth Circuit.
    FILED March 1, 2017

      Phillip Barengolts, I, Jessica Andrea Ekhoff, Pattishall, McAuliffe, Newbury, Hilliard, Chicago, IL, Douglas H. Elliott, Elliott Law Firm, P.L.L.C., Bellaire, TX, for Plaintiff-Counter Defendant-Appellee Cross-Appellant.
    Richard L. Arnold, Law Offices of Richard L. Arnold, Dallas, TX, for Defendant-Counter Plaintiff-Appellant Cross-Appel-lee and Defendants-Appellants Cross-Ap-pellees.
    Phillip Barengolts, I, Jessica Andrea Ekhoff, Pattishall, McAuliffe, Newbury, Hilliard, Chicago, IL, John Philip Griffis, Houston, TX, for Counter Defendant-Ap-pellee.
    Before JOLLY, HIGGINBOTHAM, and PRADO, Circuit Judges.
   PATRICK E. HIGGINBOTHAM, Circuit Judge:

A jury trial on several claims and counter-claims, including trademark infringement and breach of partnership agreement, resulted in judgments adverse to both parties. They have now appealed and cross-appealed citing several errors that they believe the trial court committed. We affirm.

I.

Plaintiff-Appellant Stacey Vetter (“Vet-ter”) is an individual who lives and works in Anchorage, Alaska. She owns AIA-LOGO! Promotions, LLC (“Logo Promotions”). Defendant-Appellee Christine McAtee is an individual who lives and works in Houston, Texas. She owns Insignia Marketing, Inc. (“Insignia”). Those two individuals and the entities they own are the primary parties to this dispute. They met because they were both franchisees of Adventures in Advertising (“AIA”), a franchisor of promotional products.

In 2011, Vetter and McAtee briefly entered into a partnership to market to hospitals a new kind of whiteboard that improved hospital staffs ability to communicate with patients. They dispute who came up with the idea for the product and when. No written partnership agreement was created. The whiteboard product that the partnership marketed came to be known as “Communieat-R.”

The partnership operated with the support of AIA. When the partnership received an order for a Communicat-R, the partnership would request that AIA fulfill the order through a pre-selected vendor that had been provided with the design. Upon construction of the ordered Commu-nicat-R, the vendor would ship the board to the customer, AIA would invoice the customer, and then AIA would cut the vendor and the partnership a commission from the proceeds. The partnership hired Vetter’s nephew, a web designer, to control the partnership’s web domains.

In December of 2011, the relationship between Vetter and McAtee soured. They both allege that the other engaged in self-dealing, misappropriated partnership property, and refused to reimburse for partnership expenses. Vetter allegedly instructed her nephew to hijack control of the Com-municat-R website. After the termination of the partnership, Vetter and McAtee both continued selling the whiteboards. They were unable to resolve many differences between them, including who owned the Communicab-R trademark and who was entitled to about $80,000 held by AIA and owed to the partnership. After Vetter had already filed the initial complaint of this lawsuit, McAtee’s company Insignia applied to the United States Patent & Trademark Office (“USPTO”) for registration of the trademark “Communicat-R” in connection with the whiteboard product.

Vetter initiated this lawsuit in the Southern District of Texas, claiming breach of the partnership agreement by McAtee. McAfee counter-claimed for breach of the same partnership agreement. Then McAtee’s corporation Insignia initiated a separate lawsuit against Vetter and Vetter’s company Logo Promotions for trademark infringement, copyright infringement, cyber piracy, false advertising, and civil conspiracy. The two suits were consolidated. Various claims, plaintiffs, and defendants were dismissed from the suit for various reasons, none of which comes to us on appeal. AIA intervened in the case for the sole purpose of interpleading $80,851.59 that it held in connection with the partnership’s sale of whiteboards. It deposited the money into the registry of the court, then was dismissed from the suit.

At trial, the jury considered Vetter’s and McAtee’s breach-of-partnership-agreement claims against each other, as well as Insignia’s trademark-infringement, cyber-pira-cy, false-advertising, and civil-conspiracy claims against Vetter and Logo Promotions. The jury found that Vetter, but not McAtee, had breached the partnership agreement, and awarded $60,000 in damages. However, it found that neither Vet-ter nor Logo Promotions had infringed Insignia’s trademark. In fact, it found that Insignia had obtained registration of the “Communicab-R” trademark through fraud, that the mark was not in use on the day it was registered, and that Insignia had abandoned the mark after registration, all supporting cancellation of the registration. The jury found Vetter and Logo Promotions liable for false advertising, but not cyber piracy or civil conspiracy. However, it awarded $0 in false-advertising damages.

The trial court entered judgment on the jury’s verdict. It also ordered that Insignia’s registration of the CommunicaUR mark be cancelled and that the interplead-ed funds be divided equally between Vet-ter and McAtee. Finally, it noted that both parties had waived any claim to attorneys’ fees by failing to request them in the Joint Pretrial Order. Notwithstanding the trial court’s finding of waiver, Vetter (as the prevailing party on the trademark claims) moved for statutory attorneys’ fees under the Lanham Act, arguing that there had been no waiver because the issue of attorneys’ fees is properly raised in a post-judgment motion rather than in a pre-trial order. The trial court again denied attorneys’ fees, reaffirming its finding of waiver and finding in the alternative that the case was not “exceptional” enough to warrant such an award under the Lanham Act. McAtee moved for a partial new trial and Vetter moved for renewed judgment as a matter of law. The trial court denied both motions.

Vetter timely appealed, and McAtee timely cross-appealed. McAtee seeks a new trial and a larger proportion of the inter-pleaded funds. Vetter asks us to reverse the $60,000 judgment entered against her and find that she is entitled to attorneys’ fees.

II.

We begin with McAtee’s request for a new trial. That request is founded on two distinct grounds, each requiring a distinct analysis: first, that trial errors warrant a new trial; and second, that the jury’s verdict was against the great weight of the evidence. We address these contentions in turn.

A.

First, McAtee argues that various errors in the admission of evidence, remarks of counsel, and jury instructions warrant a new trial. She admittedly failed to preserve all but one of these errors in the trial court. We first consider all of McA-tee’s unpreserved objections, then consider her sole preserved objection.

Unpreserved Objections

McAtee faults the trial court for the following errors that she admits are unpreserved: prejudicial arguments of counsel, admission of evidence in- violation of Fed. R. Evid. 408, lack of a. jury instruction on subjective intent in connection with fraud on the USPTO, lack of an instruction on common law trademark rights, lack of an instruction on a presumption of trademark abandonment, an erroneous instruction on trademark abandonment, and an erroneous instruction on trademark-infringement damages. Because these objections are unpreserved, we review for plain error.

[O]ur plain error analysis proceeds in four steps. First, we determine whether the district court’s conclusion was erroneous. Second, if the court erred, we determine whether the error was clear and obvious under the law as it exists at the time of the appeal. Third, we determine whether the error affects substantial rights. Finally, if all of these conditions are satisfied, we have discretion to reverse the trial court’s judgment based on a forfeited error if we conclude that the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

Upon inspection of the record and careful consideration of McAtee’s arguments, we do not believe that any of the unpre-served errors rise to the level of clear or obvious error. Additionally, we are not persuaded that any of those errors affected her substantial rights, and even if they did, we would not exercise our discretion to order a new trial. Accordingly, we deny relief based on any of the forfeited errors that McAtee raises on appeal.

Preserved Objection

McAtee complains that the trial court erred by declining to include a jury instruction on excusable trademark nonuse that she requested. McAtee preserved this objection in the trial court, so we review for abuse of discretion.

The trial court instructed the jury:

Trademarks can be abandoned through non-use. A trademark is abandoned if it is proven by a preponderance of the eiddence, that (1) the use of trademark was discontinued; and (2) an intent not to resume such use.

The jury found that Insignia had abandoned the trademark Communicat-R. McAtee complains that the instruction fails to mention that some trademark nonuse is excusable.

We do not believe that the trial court abused its discretion by declining to include the instruction that McAtee sought. The instruction as written correctly states the law. “Excusable nonuse,” as McAtee frames it, is captured by the instruction to the jury that an element of trademark abandonment is “intent not to resume use” because the additional language that McAtee seeks would only inform the jury that some nonuse does not indicate intent to abandon. Thus, an instruction that some trademark nonuse is excusable would have been redundant. Moreover, “excusable nonuse” as it is more commonly framed is a concept used to rebut the statutory presumption of trademark abandonment. But no such presumption of abandonment operated here, making “excusable nonuse” so framed irrelevant. We ■ also deny relief based on McAfee’s sole preserved error.

We' are not persuaded that the errors that McAtee raises justify a new trial, so we affirm the trial court’s denial of McA-tee’s motion for a new trial to the extent that the motion was based on errors in the trial and jury instructions.

B.

Second, McAtee argues that she deserves a new trial because the findings of the jury disfavoring her were against the great weight of the evidence. To prevail on this point, McAtee must demonstrate “an absolute absence of evidence to support the jury’s verdict,” an abuse of discretion in denying her motion for a new trial. McAtee complains about three of the jury’s findings: that she and her company Insignia defrauded the USPTO, that Insignia had not used the Communicat-R mark when it applied for registration of it, and that Insignia abandoned the mark.

At least some evidence was presented at trial that McAtee and Insignia defrauded the USPTO in connection with Insignia’s application for registration of the Communicat-R mark. Vetter testified that the partnership was the actual first user of the Communicat-R mark — a fact that McAtee and Insignia would have known about but represented otherwise in applying for registration of the mark. Of course, the jury was entitled to credit Vet-ter’s testimony over McAtee’s.

At least some evidence-was presented at trial that Insignia had not used the Com-municat-R mark when it applied for its registration. Vetter testified that the Com-municat-R mark had only been used by the partnership, not by Insignia, and offered evidence that McAtee acknowledged the same to others.

Finally, at least some evidence was presented at trial that Insignia abandoned the Communicat-R mark. Vetter offered evidence that McAtee stated in an e-mail: “I do not wish to use anything for the Communicat-R ever again.” That Insignia resumed use of the mark within nine months of stopping does not necessarily negate intent to abandon.

There was then at least some evidence at trial to support each of the jury findings of which McAtee complained. We also affirm the trial court’s denial of McAtee’s motion for a new trial to the extent that the motion challenged the jury’s verdict as against the great weight of the evidence.

III.

We turn to Vetter’s appeal of the $60,000 judgment entered against her. The jury found that Vetter .breached the partnership agreement and awarded $60,000 in damages for that breach. After the jury’s verdict, Vetter renewed her motion for judgment as a matter of law, arguing that there was no evidence to support the jury’s damages award. The thrust of Vetter’s argument was that all of McAtee’s trial evidence pointed toward damages suffered by Insignia, not by McAtee, so there was no evidence that McAtee individually suffered any damages. The trial court denied, the motion.

We review the denial of a re-, newed motion for judgment as a matter of law de novo, but our standard of review with respect to a jury verdict is especially deferential. A motion for judgment as a matter of law can be granted if the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable people could not arrive at a contrary verdict. The Court must draw all inferences in favor of the nonmoving party, but may not make credibility determinations or weigh the evidence.

A reasonable jury could have found that McAtee personally suffered damages as a result of Vetter’s breach of the partnership agreement. At trial, McAtee called a damages expert who was “asked to provide opinions as to the damages ... Insignia and Ms. McAtee had suffered in this matter.” He testified that “Insignia’s and Ms. McAtee’s lost profits [were] a total $882,464.” Though he did not separate damages sustained by Insignia from those sustained by McAtee, a reasonable jury could have found that McAtee personally suffered damages as a result' of Vetter’s breach. After all, McAtee was the party to the breached partnership agreement, not Insignia.

Moreover, the jury could have awarded damages based not on McAtee’s lost profits, but on the benefit Vetter received. Texas partnership law supports such an award. McAtee’s damages expert also testified that “[Vetter]’s profits [were] *$474,993.” A reasonable jury could have found that Vetter had derived a benefit from her breach of fiduciary duty and awarded damages based on that benefit.

We affirm the trial court’s denial of Vet-ter’s renewed motion for judgment as a matter of law.

IV.

McAtee complains that the trial court erred in its post-verdict distribution of the interpleaded funds. The partnership’s arrangement was supported by AIA, which controlled the manufacture of the patient boards and invoiced customers who purchased them, thereafter remitting the partnership’s cut. When Vetter’s and McA-tee’s relationship soured AIA held $80,851.59 awaiting the partnership. Though from the beginning AIA had distributed the sale proceeds equally between Vetter and McAtee, with legal proceedings, it became unsure of their proper distribution, so it briefly intervened in this lawsuit for the sole purpose of interplead-ing the funds. The trial court determined in its final judgment that the interpleaded funds were partnership funds that should be divided equally between Vetter and McAtee. McAtee now argues on appeal that the trial court should have awarded all of the interpleaded funds to her.

The disbursement of funds in-terpleaded into the registry of the court is “equitable in nature.” When both legal and equitable issues are presented in the same case, the trial court must allow determination of the legal claims first, by jury if demanded, then render judgment on the equitable claims, bound by relevant findings of the jury. The trial court did so here. After the jury’s verdict, it found that the interpleaded funds were best characterized as partnership funds, so they ought to be disbursed equally between the parties. That ruling is consistent with the jury’s verdict — indeed, nigh mandated by it because the jury’s findings that Insignia had not used the Communicaf-R mark and defrauded the USPTO by representing that it had strongly suggest that the jury found the partnership to have been the one using the mark rather than Insignia, which in turn suggests that the funds held by AIA were partnership funds.

In any event, we review the trial court’s subsidiary factual finding that the inter-pleaded funds were partnership funds for clear error, and there is nothing clearly erroneous about that finding. AIA’s chief financial officer testified at trial that both Vetter and McAtee had individual accounts in AIA’s accounting software, and that at the beginning of their partnership, a third account was set up for partnership purposes. His understanding was that the two women were to be joint owners of that account. Until the partnership broke up, AIA equally divided the sale- proceeds between Vetter and McAtee without any complaint. We are persuaded that the trial court’s finding is supported by the evidence and its handling of the funds was free of procedural error. We affirm the trial court’s equal division of the inter-pleaded funds.

V.

Finally, we address Vetter’s contentions that the trial court erred in any claim of attorneys’ fees by finding them waived and, alternatively, unwarranted. Even assuming that the trial court’s finding of waiver was erroneous, we affirm its alternate finding that attorneys’ fees are unwarranted in this unexceptional case.

As an initial matter, we decline Vetter’s invitation to hold that cases of fraud on the USPTO are exceptional as a matter of law. As with most statutes authorizing attorneys’ fees, the Lanham Act’s fee-shifting provision vests significant discretion in the district courts to grant or deny attorneys’ fees on a case-by-case basis depending on each’s particular facts. It would then be inappropriate to single out a broad swath of trademark cases in which attorneys’ fees must be awarded.

Turning to this particular case, Vetter presented to the trial court each and every argument that she now presents to us in support of an award of attorneys’ fees. The trial court rejected all of them. Vetter now argues that the trial court applied the wrong standard in light of this Court’s holding in Baker v. DeShong, which borrowed attorneys’ fees jurisprudence under the Patent Act for the Lanham Act. However, Vetter already urged the trial court to apply the standard required by Baker, and it is not clear to us that the trial court applied any different standard. Vetter has not articulated any facts or arguments in support of attorneys’ fees that we believe necessitate remand for additional consideration. We affirm the denial of attorneys’ fees.

Affirmed.

      .Weeks after argument in this case, McAtee submitted a letter pursuant to Fed. R. App. P. 28(j) in which she reversed course and instead asserted that she did preserve her Rule 408 objection, so abuse-of-discretion review applies. Even if we were persuaded, we would find any error in the admission of the e-mail in question harmless; not only was there significant other evidence from which the jury could have found trademark abandonment, it also made two findings other than trademark abandonment that supported cancellation of the registration of the Communicat-R mark: nonuse and fraud on the USPTO.

      . United States v. Avants, 278 F.3d 510, 520-21 (5th Cir. 2002); see also In re SeaQuest Diving, LP, 579 F.3d 411, 426 (5th Cir. 2009) (plain-error review applies in civil cases).

      . Avants, 278 F.3d at 521 (internal quotation marks, alterations, and citations omitted).

      . Price v. Rosiek Constr. Co., 509 F.3d 704, 707-08 (5th Cir. 2007).

      . See, e.g., Imperial Tobacco Ltd., Assignee of Imperial Grp. PLC v. Philip Morris Inc., 899 F.2d 1575, 1581 (Fed. Cir. 1990) ("If a registrant's nonuse is excusable, the registrant has overcome the presumption that its nonuse was coupled with an 'intent not to resume use,’ or, as Imperial would have it,, an 'intent to abandon.’ If the activities are insufficient to excuse nonuse, the presumption is not overcome.”).

        . Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1049 (5th Cir. 1998) (quoting Dawsey v. Olin Corp., 782 F.2d 1254, 1262 (5th Cir. 1986)).

      . She had orally moved for judgment as a matter of law before the case was submitted to the juiy.

      . Evans v. Ford Motor Co., 484 F.3d 329, 334 (5th Cir. 2007).

      . Id.

      . Id.

      . See Woodruff v. Bryant, 558 S.W.2d 535, 544 (Tex. Civ. App. — Corpus Christi 1977, writ ref'd n.r.e.).

      . United States v. Beach, 113 F.3d 188, 191 (11th Cir. 1997).

      . See Dairy Queen, Inc. v. Wood, 369 U.S. 469, 479-80, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962).

        . In re Mole, 822 F.3d 798, 804 (5th Cir. 2016).

      . See Octane Fitness, LLC v. ICON Health & Fitness, Inc., - U.S. -, 134 S.Ct. 1749, 1756, 188 L.Ed.2d 816 (2014); see also Baker v. DeShong, 821 F.3d 620, 624-25 (5th Cir. 2016) (applying the Octane Fitness standard to 15 U.S.C. § 1117(a), the Lanham Act’s fee-shifting provision).

      . See Baker, 821 F.3d at 624-25.