IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION





ASA-BRANDT, INC. a/k/a ASA-BRANDT PARTNERSHIP; PHILLIP ASA; KEITH BRANDT; ROBERT BECKER; DENNIS CINK; DUANE DEWAARD; BEVERLY EVERETT; RICHARD GARDNER; EDWARD A. OTIS; JIM OTIS; RONALD SCHMIDT; and DEBRA SCHMIDT,
Plaintiffs,

No. C01-3021-MWB

vs.

PRELIMINARY AND FINAL INSTRUCTIONS TO THE JURY

FARMERS CO-OPERATIVE SOCIETY,
Defendant.

____________________



TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS 1

NO. 1 - PRELIMINARY INSTRUCTIONS 1

NO. 2 - STATEMENT OF THE CASE 2

NO. 3 - MULTIPLE PLAINTIFFS 4

NO. 4 - DEFENDANTS NO LONGER
PARTIES TO THIS LITIGATION 5

NO. 5 - BURDENS OF PROOF 6

NO. 6 - ELEMENTS OF THE CLAIMS 7

NO. 7 - DUTY OF JURORS 10

NO. 8 - ORDER OF TRIAL 12

NO. 9 - DEFINITION OF EVIDENCE 13

NO. 10 - CONSIDERATION OF EVIDENCE 14

NO. 11 - CREDIBILITY OF WITNESSES 15

NO. 12 - STIPULATED FACTS 16

NO. 13 - DEPOSITIONS 17

NO. 14 - INTERROGATORIES 18

NO. 15 - OBJECTIONS 19

NO. 16 - BENCH CONFERENCES 20

NO. 17 - NOTE-TAKING 21

NO. 18 - CONDUCT OF JURORS
DURING TRIAL 22

FINAL INSTRUCTIONS 24

NO. 1 - INTRODUCTION 24

NO. 2 - IMPEACHMENT OF WITNESSES 25

NO. 3 - FAILURE TO PRODUCE
AVAILABLE EVIDENCE 26

NO. 4 - CHARTS AND SUMMARIES 27

NO. 5 - LEGALITY OF THE CONTRACTS 28

NO. 6 - PLAINTIFFS' CLAIM
OF BREACH OF CONTRACT 29

NO. 7 - PLAINTIFFS' CLAIM
OF BREACH OF FIDUCIARY DUTY 32

NO. 8 - WESLEY'S COUNTERCLAIM
OF BREACH OF CONTRACT 35

NO. 9 - DAMAGES--IN GENERAL 37

NO. 10 - DAMAGES--PUNITIVE 38

NO. 11 - DAMAGES--SPECIFIC 39

NO. 12 - DELIBERATIONS 42



VERDICT FORMS

PRELIMINARY INSTRUCTION NO. 1 - PRELIMINARY INSTRUCTIONS



Members of the jury, before the lawyers make their opening statements, I give you these preliminary instructions to help you better understand the trial and your role in it. Consider these instructions, together with any oral instructions given to you during the trial and the written final instructions given at the end of the trial, and apply them as a whole to the facts of the case. In considering these instructions, the order in which they are given is not important.



PRELIMINARY INSTRUCTION NO. 2 - STATEMENT OF THE CASE



The following brief summary of the case is not to be considered evidence or proof of any facts or events in the case. It simply informs you of the factual disputes between the parties.

This is a civil case brought by plaintiffs Asa-Brandt, Inc., a/k/a Asa-Brandt, a general partnership, Phillip Asa, Keith Brandt, Robert Becker, Dennis Cink, Duane DeWaard, Beverly Everett, Richard Gardner, Edward Otis, James Otis, and Ronald and Debra Schmidt, all farmers from either Kossuth or Hancock County, against defendant Farmers Cooperative Society of Wesley, Iowa. In these instructions, I will refer to the defendant as "Wesley."

This case involves several contracts, called flex-hedge contracts, that each plaintiff entered into with Wesley. Each plaintiff contends that Wesley breached these contracts, and seeks damages for the resulting injuries. Each plaintiff also contends that defendant Wesley improperly advised them with respect to the flex-hedge contracts, and that it failed to adequately disclose the risks inherent in the flex-hedge contracts and other material facts regarding those contracts, which Wesley had a fiduciary duty to disclose under the circumstances, and that Wesley breached its fiduciary duties to plaintiffs in other respects regarding the flex-hedge program. On their claim for breach of fiduciary duty, plaintiffs claim that Wesley is responsible for the acts and omissions of Wesley's employees, such as its manager at the time, Art Beenken, and individuals such as Dennis Hofmeister who plaintiffs contend was acting as the agent of defendant Wesley for purposes of its flex-hedge program. Defendant Wesley disputes these claims.

Defendant Wesley has also brought its own claims, called "counterclaims," in this lawsuit. Defendant Wesley asserts its own breach-of-contract claim against each plaintiff, in which it claims that each plaintiff breached his or her flex-hedge contracts with Wesley. Each plaintiff denies Wesley's counterclaims and asserts as affirmative defenses the following: (1) that Wesley anticipatorily breached the contracts by refusing to let the plaintiff roll the contract at his or her option; and (2) that Wesley lacked the financial capacity to perform its obligations under the flex-hedge contracts at the time it sent purported demands for adequate assurance of performance to each plaintiff.

You will be asked to resolve these disputes between the parties.



PRELIMINARY INSTRUCTION NO. 3 - MULTIPLE PLAINTIFFS



Although there is more than one plaintiff (there are twelve plaintiffs) in this action, it does not follow from that fact alone that if one is entitled to recover, all are entitled to recover. Defendant Wesley is entitled to a fair consideration of the defense as to each plaintiff, just as each plaintiff is entitled to a fair consideration of his or her claim against defendant Wesley and to a fair consideration of his or her defense to defendant Wesley's counterclaim against him or her. Unless otherwise stated, all instructions given you govern the case as to each plaintiff.





PRELIMINARY INSTRUCTION NO. 4 - DEFENDANTS NO LONGER

PARTIES TO THIS LITIGATION





Defendant ADM Investor Services, Inc., FAC-MARC, Inc. and Agri-Plan, Inc. and Competitive Strategies for Agriculture, Ltd. are no longer involved in this case. You should not concern yourself with the disposition as to them, but should consider the issues between the plaintiffs and the remaining defendant in accordance with my instructions and the evidence in the case.





PRELIMINARY INSTRUCTION NO. 5 - BURDENS OF PROOF



In these instructions, you are told that your verdict depends on whether you find certain facts have been proved. The burden of proving a fact is upon the party whose claim, or counterclaim depends upon that fact. In this case, claims of "breach of contract," and "breach of fiduciary duty" must be proved "by the greater weight of the evidence." To prove something "by the greater weight of the evidence" is to prove that it is more likely true than not true. The "greater weight of the evidence" is determined by considering all of the evidence and deciding which evidence is more believable. If, on any issue in the case, the evidence is equally balanced, you cannot find that issue has been proved.

The "greater weight" of the evidence is not necessarily determined by the greater number of witnesses or exhibits a party has presented. The testimony of a single witness that produces in your mind a belief in the likelihood of truth is sufficient for proof of any fact and would justify a verdict in accordance with such testimony. This is so, even though a number of witnesses may have testified to the contrary, if after consideration of all of the evidence in the case, you hold a greater belief in the accuracy and reliability of that one witness.

You may have heard of the term "proof beyond a reasonable doubt." That is a stricter standard, which applies in criminal cases. It does not apply in civil cases such as this. You should, therefore, put it out of your minds.

PRELIMINARY INSTRUCTION NO. 6 - ELEMENTS OF THE CLAIMS





To help you follow the evidence, here is a brief summary of the elements of plaintiffs' claims and defendant Wesley's counterclaims. You must give separate consideration to each plaintiff's claim against defendant Wesley. Likewise, you must consider separately each of defendant Wesley's counterclaims against each plaintiff.

Plaintiffs' claims for breach of contract

For each plaintiff to prevail on his or her claim of breach of contract against defendant Wesley, each plaintiff must prove the following five elements by the greater weight of the evidence as to defendant Wesley:

One, the existence of a contract;

Two, the terms of that contract,

Three, the plaintiff stood ready, willing and able to perform his or her own obligations under the contract and either has done what the contract requires or has been excused from doing what the contract requires,

Four, defendant Wesley has breached the contract, and

Five, the amount of any damages defendant Wesley caused by its breach of the contract. If any plaintiff fails to prove all of the above elements by the greater weight of the evidence as to defendant Wesley, your verdict must be for defendant Wesley on that plaintiff's claim of breach of contract. You may find that any, all or none of the plaintiffs have proved their breach of contract claim against defendant Wesley.

Plaintiffs' claims for breach of fiduciary duty

In addition to their claims for breach of contract, plaintiffs assert claims for breach of fiduciary duty. Specifically, plaintiffs contend that: (1) defendant Wesley advised them to enter into flex-hedge contracts and to sell their 1995 grain crop to defendant Wesley on the cash market and roll their flex-hedge contracts forward to the future; (2) that defendant Wesley failed to disclose adequately the riskiness of the flex-hedge contracts and the rolling of such contracts, which defendant Wesley had a duty to do under the circumstances. To prevail on his or her claim of breach of fiduciary duty against defendant Wesley, each plaintiff must prove the following four elements by the greater weight of the evidence,

One, Wesley owed a fiduciary duty to the plaintiff,

Two, Wesley breached the fiduciary duty it owed to plaintiff,

Three, the breach of fiduciary duty was a substantial contributing cause of damage to plaintiff, and

Four, the amount of damages, if any.

If any plaintiff fails to prove all of the above elements by the greater weight of the evidence as to defendant Wesley, your verdict must be for defendant Wesley on that plaintiff's claim of breach of fiduciary duty. You may find that any or all plaintiffs have proved their breach of fiduciary duty claim against defendant Wesley.

Wesley's counterclaims for breach of contract

To prevail on its claims for breach of contract against each plaintiff, defendant Wesley must prove the following five elements by the greater weight of the evidence as to each plaintiff:

One, the existence of a contract;

Two, the terms of that contract,

Three, Wesley stood ready, willing and able to perform its own obligations under the contract and either has done what the contract requires or has been excused from doing what the contract requires,

Four, the plaintiff has breached the contract, and

Five, the amount of any damages the plaintiff caused by its breach of the contract.

If Wesley fails to prove all of the above elements by the greater weight of the evidence as to any plaintiff, your verdict must be for that plaintiff on Wesley's claim of breach of contract. You may find that Wesley has proved its breach of contract claim against any, all or none of the plaintiffs.





PRELIMINARY INSTRUCTION NO. 7 - DUTY OF JURORS



It will be your duty to decide from the evidence what the facts are. You, and you alone, are the judges of the facts. You will hear the evidence, decide what the facts are and then apply those facts to the law which I will give you in these preliminary instructions, any instructions given during the trial, and in the final instructions at the conclusion of the case. You will then deliberate and reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not.

You have been chosen and sworn as jurors in this case to try the issues of fact presented by the parties. Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I will give it to you.

This case should be considered and decided by you as an action between persons of equal standing in the community, of equal worth, and holding the same or similar stations in life. In this case, one of the plaintiffs is a corporation and defendant Wesley is an agricultural cooperative (a corporation). The mere fact that a party is a corporation or agricultural cooperative does not mean that it is entitled to any greater or lesser consideration by you. All persons, including individuals, corporations and agricultural cooperatives, stand equal before the law, and are entitled to the same fair consideration by you.

When a corporation or an agricultural cooperative is involved, of course, it may act only through natural persons as its agents or employees; and, in general, any agent or employee of a corporation or agricultural cooperative may bind the corporation or agricultural cooperative by the acts and declarations made while acting within the scope of the authority delegated to the employee or agent by the corporation or agricultural cooperative, or within the scope of the employee's or agent's duties as an employee or agent of the corporation or agricultural cooperative. The corporation or agricultural cooperative is therefore responsible for any act or omission of its employee or agent while that employee or agent is acting within the scope of his authority or duties.

You should not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.



PRELIMINARY INSTRUCTION NO. 8 - ORDER OF TRIAL



The trial will proceed in the following order:

After I conclude these preliminary instructions, the plaintiffs' lawyer may make an opening statement. Next, defendant Wesley's lawyer may make an opening statement. An opening statement is not evidence, but is simply a summary of what the lawyers expect the evidence to be.

The plaintiffs will then present evidence and witnesses and defendant Wesley may cross-examine. Following the plaintiffs' case, defendant Wesley may present evidence and witnesses and the plaintiff may cross-examine. Following defendant Wesley's case, the plaintiffs may take a further opportunity to present additional evidence.

After the evidence is concluded, I will give you the final instructions on the law that you are to apply in reaching your verdict. The lawyers will then make their closing arguments to summarize and interpret the evidence for you. As with opening statements, closing arguments are not evidence. I will then give you some final instructions on deliberations, and you will retire to deliberate on your verdict.

PRELIMINARY INSTRUCTION NO. 9 - DEFINITION OF EVIDENCE



You shall base your verdict only upon the evidence, these instructions, and other instructions that I may give you during the trial.

Evidence is:

1. Testimony in person, including testimony using teleconferencing technology, or testimony previously given, which includes depositions or videotaped depositions.

2. Exhibits admitted into evidence by the court.

3. Stipulations, which are agreements between the parties.

4. Any other matter admitted into evidence.

Evidence may be direct or circumstantial. You should not be concerned with these terms since the law makes no distinction between the weight to be given to direct and circumstantial evidence. The weight to be given any evidence is for you to decide.

The following are not evidence:

1. Statements, arguments, questions, and comments by the lawyers.

2. Objections and rulings on objections.

3. Testimony I tell you to disregard.

4. Anything you saw or heard about this case outside the courtroom.

You should not take anything I may say or do during the trial as indicating what I think of the evidence.

PRELIMINARY INSTRUCTION NO. 10 - CONSIDERATION OF EVIDENCE



You will decide what facts have been proven. Facts may be proven by evidence or by reasonable inferences drawn from the evidence. Evidence consists of the testimony of the witnesses and of exhibits admitted by the court. In determining whether any proposition has been proved, you should consider all of the evidence bearing on the question without regard to which party produced it. You may use common sense gained from your experiences in life in evaluating what you see and hear during trial.



PRELIMINARY INSTRUCTION NO. 11 - CREDIBILITY OF WITNESSES



In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness says, or only part of it, or none of it.

In deciding what testimony to believe, consider the witnesses' intelligence, their opportunity to have seen or heard the things they testify about, their memories, the motives they may have for testifying a certain way, their manner while testifying, whether they said something different at an earlier time, the general reasonableness of their testimony, and the extent to which their testimony is consistent with other evidence that you believe.

In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see things differently and sometimes forget things. You need to consider therefore whether a contradiction is an innocent misrecollection or lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or only a small detail.

You may hear testimony from persons described as experts. Persons who have become experts in a field because of their education and experience may give their opinions on matters in that field and the reasons for their opinions. Consider expert testimony just like any other testimony. You may accept it or reject it. You may give it as much weight as you think it deserves, considering the witness's education and experience, the reasons given for the opinion, and all the other evidence in the case.

Also, an expert witness may be asked to assume certain facts are true and to give an opinion based on that assumption. This is called a hypothetical question. If any facts assumed in the question are not proved by the evidence, you should decide if that omission affects the value of the expert's opinion.

PRELIMINARY INSTRUCTION NO. 12 - STIPULATED FACTS



The plaintiffs and defendant Wesley have agreed, or "stipulated," or may agree or stipulate to certain facts and have reduced these facts to a written agreement or stipulation. Any counsel may, throughout the trial, read to you all or a portion of the stipulated facts. You should treat these stipulated facts as having been proved.

PRELIMINARY INSTRUCTION NO. 13 - DEPOSITIONS



Certain testimony from a deposition may be read into evidence or played from a videotape. A deposition is testimony taken under oath before the trial and preserved in writing or on videotape. Consider that testimony as if it had been given in court.

PRELIMINARY INSTRUCTION NO. 14 - INTERROGATORIES



During this trial, you may hear the word "interrogatory." An interrogatory is a written question asked by one party of another, who must answer it under oath in writing. Consider interrogatories and the answers to them as if the questions had been asked and answered here in court.

PRELIMINARY INSTRUCTION NO. 15 - OBJECTIONS



From time to time during the trial I may be called upon to make rulings of law on objections or motions made by the lawyers. It is the duty of the lawyer for each party to object when another party offers testimony or other evidence that the lawyer believes is not properly admissible. You should not show prejudice against a lawyer or the party the lawyer represents because the lawyer has made objections. You should not infer or conclude from any ruling or other comment I may make that I have any opinions on the merits of the case favoring one side or the other. Also, if I sustain an objection to a question that goes unanswered by the witness, you should not draw any inferences or conclusions from the question itself.

PRELIMINARY INSTRUCTION NO. 16 - BENCH CONFERENCES



During the trial it may be necessary for me to talk with the lawyers out of your hearing, either by having a bench conference here while you are present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is to decide how certain evidence is to be treated under the rules of evidence, and to avoid confusion and error. We will, of course, do what we can to keep the number and length of these conferences to a minimum.

PRELIMINARY INSTRUCTION NO. 17 - NOTE-TAKING



If you want to take notes during the trial, you may. However, it is difficult to take detailed notes and pay attention to what the witnesses are saying. If you do take notes, be sure that your note-taking does not interfere with listening to and considering all of the evidence. Also, if you take notes, do not discuss them with anyone before you begin your deliberations. Do not take your notes with you at the end of the day. Be sure to leave them on your chair in the courtroom. The court attendant will safeguard the notes. No one will read them. The notes will remain confidential throughout the trial and will be destroyed at the conclusion of the trial.

If you choose not to take notes, remember it is your own individual responsibility to listen carefully to the evidence. You cannot give this responsibility to someone who is taking notes. We depend on the judgment of all members of the jury; you must all remember and consider the evidence in this case.

Whether or not you take notes, you should rely on your own memory regarding what was said. Your notes are not evidence. A juror's notes are not more reliable than the memory of another juror who chooses to consider the evidence carefully without taking notes. You should not be overly influenced by the notes.

You will notice that we do have an official court reporter making a record of the trial. However, we will not have typewritten transcripts of this record available for your use in reaching your verdict.



PRELIMINARY INSTRUCTION NO. 18 - CONDUCT OF JURORS

DURING TRIAL





You will not be required to remain together while court is in recess. However, to ensure fairness, you, as jurors, must obey the following rules:

First, do not talk among yourselves about this case, or about anyone involved with it, until the end of the case when you go to the jury room to decide on your verdict.

Second, do not talk with anyone else about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors.

Third, when you are outside the courtroom, do not let anyone tell you anything about the case, or about anyone involved with it until the trial has ended and your verdict has been accepted by me. If someone should try to talk to you about the case during the trial, please report it to me.

Fourth, during the trial you should not talk with or speak to any of the parties, lawyers or witnesses involved in this case--you should not even pass the time of day with any of them. It is important not only that you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the case sees you talking to a person from the other side--even if it is simply to pass the time of day--an unwarranted and unnecessary suspicion about your fairness might be aroused. If any lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator, or the like, remember it is because they are not supposed to talk or visit with you either.

Fifth, do not read any news stories or articles about the case, or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it.

Sixth, do not do any research or make any investigation about the case on your own.

Seventh, do not make up your mind during the trial about what the verdict should be. Keep an open mind until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence.

DATED this 11th day of June, 2001.











FINAL INSTRUCTION NO. 1 - INTRODUCTION



Members of the jury, the instructions I gave you at the beginning of the trial and any oral or written instructions I gave you during the trial remain in effect. I now give you some additional instructions.

You must, of course, continue to follow the instructions I gave you earlier, as well as those I give you now. You must not single out some instructions and ignore others, because all are important. The instructions I am about to give you now, as well as the preliminary instructions given to you at the beginning of the trial, are in writing and will be available to you in the jury room. I emphasize, however, that the final instructions are not more important than the preliminary instructions, nor are written instructions more important than oral ones. Again, all instructions, whenever given and whether in writing or not, must be followed. This is true even though some of the instructions I gave you at the beginning of the trial are not repeated here.

In considering these instructions, the order in which they are given is not important.

Neither in these instructions nor in any ruling, action, or remark that I have made during the course of this trial have I intended to give any opinion or suggestion as to what your verdict should be.

FINAL INSTRUCTION NO. 2 - IMPEACHMENT OF WITNESSES



In Preliminary Instruction No. 11, I instructed you on the credibility of witnesses. I now give you this further instruction on how the credibility of a witness can be "impeached."

A witness may be discredited or "impeached" by contradictory evidence, or by evidence that at some time the witness has said or done something, or has failed to say or do something, that is inconsistent with the witness's present testimony. If you believe any witness has been impeached and thus discredited, it is your exclusive province to give the testimony of that witness such credibility, if any, as you may think it deserves.

FINAL INSTRUCTION NO. 3 - FAILURE TO PRODUCE

AVAILABLE EVIDENCE



If a party fails to produce evidence that is under that party's control and reasonably available to that party and not reasonably available to the adverse party, then you may infer that the evidence is unfavorable to the party who could have produced it and did not.

FINAL INSTRUCTION NO. 4 - CHARTS AND SUMMARIES



Certain charts and summaries have been shown to you in order to help explain the facts disclosed by the books, records, and other documents which are in evidence in the case. However, such charts or summaries are not in and of themselves evidence or proof of any facts. If such charts or summaries do not correctly reflect facts or figures shown by the evidence in the case, you should disregard them.

In other words, such charts or summaries are used only as a matter of convenience; so if, and to the extent that you find they are not in truth summaries of facts or figures shown by the evidence in the case, you are to disregard them entirely.



FINAL INSTRUCTION NO. 5 - LEGALITY OF THE CONTRACTS





You have heard evidence in this case that may suggest that the flex-hedge contracts in question are or were somehow illegal, or that one of the parties questioned their legality. However, after this suit was filed, I determined that the flex-hedge contracts in question here are legal. Therefore, the only remaining questions for you to decide are the terms and conditions of the contracts and whether or not any party breached the contracts or breached a fiduciary duty concerning the contracts.



FINAL INSTRUCTION NO. 6 - PLAINTIFFS' CLAIM

OF BREACH OF CONTRACT





Each plaintiff claims that Wesley breached the flex-hedge contracts with him or her by, in May and June 1996, repudiating its future obligation to roll the flex-hedge contracts past the July 1996 futures contract month for corn flex-hedges and past the August 1996 futures contract month for soybean flex-hedges. Defendant Wesley denies these claims.

Remember that you must give separate consideration to each plaintiff's claim against Wesley. In other words, you may find that any, all or none of the plaintiffs have proved their breach of contract claim against defendant Wesley. For each plaintiff to win his or her claim of breach of contract, each plaintiff must prove the following five elements by the greater weight of the evidence:

One, the existence of a contract.

"Contract" means the total legal obligation that results from the parties' agreement. "Agreement" means the bargain of the parties in fact as found in their language or by implication from other circumstances, including course of dealing or course of performance, as defined below. The existence of a contract requires a meeting of the minds on the material terms. This means the parties must agree upon the same things in the same sense. You are to determine the terms and conditions of the contract from the words and acts of the parties, together with all reasonable inferences you may draw from the surrounding circumstances.



Two, the terms of the contract.

A writing signed by the parties need not contain all the material terms of the contract and such material terms as are stated need not be precisely stated. All that is required is that the writing afford a basis for believing that oral evidence of an agreement rests on a real transaction. The only term that must appear in the writing is the quantity of goods involved in the agreement. A contract that is not ambiguous is to be interpreted as it is written. Where there are ambiguities in a contract, those ambiguities are to be resolved in favor of the party that did not draft the written contract. Terms in a writing that is intended by the parties as a final expression of their agreement with respect to such terms as are included in it may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement, but may be explained or supplemented. "Supplement" means "to add to."

Terms of the writing may be supplemented by a course of dealing. A "course of dealing" is a sequence of previous conduct between the parties to a particular transaction that is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct. A course of dealing can give particular meaning to and can supplement or explain terms of an agreement.

Terms of the writing may also be supplemented by a course of performance. A "course of performance" can exist where a contract involves repeated occasions for performance by either party with knowledge of the nature of the performance and an opportunity for objection to it by the other. A course of performance accepted or acquiesced in without objection can be used to determine the meaning of the agreement.

Whenever it is reasonable to do so, the written terms of the agreement and any course of performance or course of dealing must be construed as consistent with each other. However, when it is unreasonable to do so, the written terms shall control over course of performance or course of dealing.

Terms of the writing may also be supplemented by evidence of consistent additional terms.



Three, the plaintiff has done what the contract requires or has been excused from doing what the contract requires.

A party's performance is excused by the other party's prior breach of the contract, such as by renouncing or repudiating the contract, as "renunciation" and "repudiation" are defined in the explanation to element four.



Four, that Wesley breached the contract.



Each plaintiff claims that Wesley breached the flex-hedge contracts by, in May and June 1996, repudiating its future obligation to roll the flex-hedge contracts past the July 1996 futures contract month for corn flex-hedges and past the August 1996 futures contract month for soybean flex-hedges. Plaintiffs filed this lawsuit on June 5, 1996. Accordingly, any conduct by Wesley on or after June 5, 1996, cannot constitute a breach of contract.

Five, the amount of any damage to the plaintiff caused by Wesley's breach of the contract.

If any plaintiff fails to prove all of the above elements by the greater weight of the evidence as to Wesley, then your verdict must be for Wesley on that plaintiff's claim of breach of contract. However, if any plaintiff has proved all of these elements by the greater weight of the evidence, then that plaintiff is entitled to damages in some amount from Wesley for breach of contract. Remember that the burden of proof on plaintiffs' claim was explained to you in Preliminary Jury Instruction No. 5.



FINAL INSTRUCTION NO. 7 - PLAINTIFFS' CLAIM

OF BREACH OF FIDUCIARY DUTY





Plaintiffs' second claim is for breach of fiduciary duty. Defendant Wesley also denies this claim. Remember that you must give separate consideration to each plaintiff's claim against Wesley. In other words, you may find that any, all or none of the plaintiffs have proved their breach of fiduciary claim against defendant Wesley. To win his or her claim of breach of fiduciary duty against Wesley, each plaintiff must prove the following four elements by the greater weight of the evidence:

One, that Wesley owed a fiduciary duty to the plaintiff.



A "fiduciary relationship" is a relationship of trust and confidence on a subject between two persons. One of the persons is under a duty to act for or give advice to the other on that subject. Confidence is placed on one side, and domination and influence result on the other. The mere existence of a producer-agricultural cooperative business relationship alone does not establish the existence of a fiduciary relationship between the two. Circumstances that may indicate the existence of a fiduciary relationship include the acting of one person for another, the having and exercising of influence over one person by another, the placing of confidence by one person in another, the dominance of one person by another, the inequality of the parties, and the dependence of one person upon another. None of these circumstances is more important than another. It is for you to determine from the evidence whether a fiduciary relationship existed between the parties.

If a fiduciary relationship exists, a fiduciary has a duty to disclose all material facts in dealing with the other party to permit the other party to make an intelligent, knowing decision in such dealings. A fact is material if a reasonable person would consider it to be important in making a decision.



Two, that Wesley breached the fiduciary duty it owed to the plaintiff.

Plaintiffs contend that Wesley breached its fiduciary duty to plaintiffs when it committed one or more of the following acts and/or omissions: (A) failing to inform plaintiffs of Wesley's need of a source of unlimited funds to maintain the flex-hedge program and that it had not obtained prior approval of its lender; (B) misrepresenting to plaintiffs that the flex-hedge program allowed plaintiffs to "capture the carry" as Wesley itself did in hedging its grain; (C) failing to adopt a set of internal controls that would allow Wesley to adequately monitor the flex-hedge program and to contend with adverse market conditions; (D) writing more flex-hedge programs than Wesley knew could be margined through adverse market conditions; (E) failing to adequately warn plaintiffs of all the material risks inherent in the flex-hedge program; (F) encouraging plaintiffs to deliver on the cash market and roll the flex-hedge contracts when Wesley knew it was against plaintiffs' economic interests to do so; (G) taking the "other side" of plaintiffs' July 1996 flex-hedge positions and using the plaintiffs' flex-hedge positions to conceal Wesley's speculative trading losses: (H) conspiring with other cooperatives to make unreasonable demands on plaintiffs to pay Wesley's margin and deliver grain in an attempt to conceal Wesley's inability to fund the flex-hedge program; (I) as part of a conspiracy with other cooperatives, using false and misleading comments to turn the community against plaintiffs as a means to force plaintiffs to pay margin money they did not owe. It is not necessary for any plaintiff to prove that Wesley breached a fiduciary duty in all of the ways alleged in order for that plaintiff to win his or her claim of breach of fiduciary duty; rather, it is enough if that plaintiff proves, by the greater weight of the evidence, that Wesley breached a fiduciary duty owed to that plaintiff in any one or more of these ways, although you must unanimously agree on the way or ways in which Wesley breached a fiduciary duty. You as the jury must determine whether or not those acts and omissions were, in fact, proven and constitute a breach of fiduciary duty.

Three, the breach of fiduciary duty was a proximate cause of damage to the plaintiff.

The conduct of a party is a proximate cause of damage when it is a substantial factor in producing damage and when the damage would not have happened except for the conduct. "Substantial" means the party's conduct has such an effect in producing damage as to lead a reasonable person to regard it as a cause.



Four, the amount of damages, if any.



If any plaintiff fails to prove all of the above elements by the greater weight of the evidence as to Wesley, then your verdict must be for Wesley on that plaintiff's claim of breach of fiduciary duty. However, if any plaintiff has proved all of these elements by the greater weight of the evidence, then that plaintiff is entitled to damages in some amount from Wesley for breach of fiduciary duty. Remember that the burden of proof on the plaintiffs' claim was explained to you in Preliminary Jury Instruction No. 5.

FINAL INSTRUCTION NO. 8 - WESLEY'S COUNTERCLAIM

OF BREACH OF CONTRACT





In its counterclaim of breach of contract, Wesley contends that each plaintiff has repudiated or breached their respective flex-hedge contracts with Wesley. Each plaintiff denies Wesley's counterclaim of breach of contract. Again, remember that you must give separate consideration to Wesley's claim against each plaintiff. In other words, you may find that Wesley has proved its breach of contract counterclaim against any or all plaintiffs.

To win its counterclaim of breach of contract against each plaintiff, Wesley must prove the following five elements by the greater weight of the evidence:

One, the existence of a contract.

This element was explained to you in Final Jury Instruction No. 6.



Two, the terms of the contract.

This element was explained to you in Final Jury Instruction No. 6.



Three, Wesley has done what the contract requires or has been excused from doing what the contract requires.

This element was explained to you in Final Jury Instruction No. 6.



Four, the plaintiff breached the contract.

This element was explained to you in Final Jury Instruction No. 6. Wesley contends that plaintiffs breached the flex-hedge contracts in the following ways: (1) by filing their lawsuit in this case; and (2) by refusing to roll their contracts and take a negative spread (inverse) as an adjustment to their contract price. It is not necessary for Wesley to prove that any plaintiff breached the flex-hedge contracts in both of these ways in order for it to win its counterclaim of breach of contract as to that plaintiff; rather, it is enough if Wesley proves, by the greater weight of the evidence, that a particular plaintiff breached the flex-hedge contracts in any one or more of these ways, although you must unanimously agree on the way or ways in which that plaintiff breached the flex-hedge contracts.



Five, the amount of any damage to Wesley caused by the plaintiff's breach of the contract.

If Wesley has failed to prove all of the above elements by the greater weight of the evidence as to any plaintiff, then your verdict must be for that plaintiff on Wesley's counterclaim of breach of contract. However, if Wesley has proved all of these elements by the greater weight of the evidence as to any plaintiff, then Wesley is entitled to damages in some amount from that plaintiff for breach of contract. Remember that the burden of proof on Wesley's counterclaim was explained to you in Preliminary Jury Instruction No. 5.

FINAL INSTRUCTION NO. 9 - DAMAGES--IN GENERAL



If you find in favor of one of the parties on that party's claim or counterclaim, you must award that party such sum as you find will fairly and justly compensate that party for any damages you find that party sustained as a direct result of the other party's wrongful conduct. However, I must explain to you now some matters applicable to all of your determinations of damages.

In arriving at the amount of damages on a claim or counterclaim, you cannot establish a figure by taking down the estimate of each juror as to damages and agreeing in advance that the average of those estimates shall be your award of damages for that claim or counterclaim.

Remember, throughout your deliberations, you must not engage in any speculation, guess, or conjecture. Although the precise amount of a party's damages may be difficult to determine, that should not affect the party's recovery. On the other hand, a party is not to be awarded purely speculative damages. Damages may be awarded only when there is some reasonable basis in the evidence in the case for determining that the party has in fact suffered a loss, even though the amount of such loss is difficult to determine.

You must not award damages under any of these Instructions by way of punishment or through sympathy. Your judgment must not be exercised arbitrarily, or out of sympathy or prejudice, for or against any of the parties. The amount you assess for any item of damage must not exceed the amount caused by the wrongful conduct of a party as proved by the evidence.

The fact that I am instructing you on damages should not be considered as an indication that I have any view as to which party is entitled to your verdict. Instructions as to the measure of damages are given only for your guidance, in the event that you should find that a party is entitled to damages in accord with the other instructions.

FINAL INSTRUCTION NO. 10 - DAMAGES--PUNITIVE



You may also award "punitive" damages if a plaintiff has proved by the greater weight of clear, convincing, and satisfactory evidence that defendant Wesley's conduct constituted a willful and wanton disregard for the rights or safety of another and caused actual damage to that plaintiff.

Punitive damages are not intended to compensate for injury but are allowed to punish and discourage the defendant and others from like conduct in the future. There is no exact rule to determine the amount of punitive damages, if any, you should award. However, in fixing the amount of punitive damages, you may consider all the evidence including:

1. The nature of defendant's conduct.

2. The amount of punitive damages that will punish and discourage like conduct by the defendant in view of its financial condition.

3. The plaintiff's actual damages.

Again, you may award punitive damages if a plaintiff has proved by the greater weight of clear, convincing, and satisfactory evidence that defendant Wesley's conduct constituted a willful and wanton disregard for the rights or safety of another and caused actual damage to that plaintiff. An intentional breach of contract does not by itself give rise to the award of punitive damages. Evidence is "clear, convincing, and satisfactory" if there is no serious or substantial uncertainty about the conclusion to be drawn from it. Conduct is "willful and wanton" if a person intentionally does an act of an unreasonable character in disregard of a known or obvious risk that is so great as to make it highly probable that harm will follow. You may award punitive damages on plaintiffs' claim of breach of contract, plaintiffs' claim of breach of fiduciary duty, both claims or neither claim. However, any award of punitive damages must be based solely upon conduct that is connected to the particular claim for which the award of punitive damages is being made.

FINAL INSTRUCTION NO. 11 - DAMAGES--SPECIFIC



I will now explain the measure of damages on the parties' claims and counterclaims.

Breach of contract. The measure of damages for breach of contract is an amount that will reimburse the party making the claim or counterclaim for the loss caused by his, her, or its reliance on the contract and that will place him, her, or it in as good a position as if the other party had not breached the contract. The damages you award for breach of contract must be foreseeable or have been reasonably foreseen at the time the parties entered into the contract. This measure of damages applies to plaintiffs' claim of breach of contract, as explained in Final Jury Instruction No. 6, as well as to Wesley's counterclaim of breach of contract, as explained in Final Jury Instruction No. 8. I will now explain how this measure of damages applies to each of these claims.

Plaintiffs' claim. If you find that Wesley breached its contracts with any plaintiff in accordance with the five elements set forth in Final Jury Instruction No. 6, then the specific measure of that plaintiff's damages is the increased dollar value that plaintiff would have received from full performance of the contract by Wesley.

If you find that Wesley breached its contracts with any plaintiff, and if you find that Wesley's breach of contract was accompanied by or resulted in conduct proven by the greater weight of clear, convincing and satisfactory evidence to constitute a willful and wanton disregard by Wesley for the rights or safety of another and that caused actual damage to that plaintiff, then you also may award that plaintiff punitive damages in addition to that plaintiff's actual damages, as explained in Final Jury Instruction No. 10.

Wesley's counterclaim. If you find that any plaintiff breached his or her contracts to deliver grain to Wesley, in accordance with the five elements set forth in Final Jury Instruction No. 8, then the specific measure of Wesley's damages is the difference between the market price of the grain at the time Wesley learned of the breach and the contract price of the grain. Market price is determined at the place where the grain was to be delivered.

Nominal damages. If you find that a breach of contract caused no loss, then you must award the party who has otherwise established a breach of contract "nominal damages" of $1.00. "Nominal damages" are allowed, not as an equivalent for the wrong, but in recognition of a technical injury, and by way of declaring or vindicating a legal right. Nominal damages are not the same as damages that are small in amount or too difficult to determine.

Remember that damages for breach of contract, like other elements of that claim or counterclaim, must be proved by the greater weight of the evidence.

Breach of fiduciary duty. The measure of damages for breach of fiduciary duty is an amount that will reimburse the plaintiff for the loss caused by Wesley's failure to fulfill its fiduciary duty. Therefore, if you find that Wesley breached its fiduciary duty to any plaintiff in accordance with the four elements set forth in Final Jury Instruction No. 7, then the measure of damages for breach of fiduciary duty may include the benefit of the bargain represented by the flex-hedge contracts to that particular plaintiff had he or she been properly advised by Wesley about the risks of the flex-hedge contracts. The "benefit of the bargain" is the sum necessary to place the plaintiff in the same financial position he or she would have enjoyed if he or she had been properly advised by Wesley about the risks of the flex-hedge contracts. A plaintiff may also recover other monetary losses he or she suffered as a consequence of his or her reliance upon Wesley's insufficient advice about the risks of the flex-hedge contracts.

If you find that Wesley breached its fiduciary duty to any plaintiff, and if you find that Wesley's breach of fiduciary duty was accompanied by, or resulted in, conduct proven by the greater weight of clear, convincing and satisfactory evidence to constitute a willful and wanton disregard by Wesley for the rights or safety of another and that caused actual damage to that plaintiff, then you also may award that plaintiff punitive damages in addition to that plaintiff's actual damages, as explained in Final Jury Instruction No. 10.

Nominal damages. If you find that a breach of fiduciary duty caused no loss, then, if any plaintiff has otherwise established a breach of fiduciary duty, you must award that plaintiff "nominal damages" of $1.00. "Nominal damages" are allowed, not as an equivalent for the wrong, but in recognition of a technical injury, and by way of declaring or vindicating a legal right. Nominal damages are not the same as damages that are small in amount or too difficult to determine.

Remember that damages for breach of fiduciary duty, like other elements of that claim, must be proved by the greater weight of the evidence.

FINAL INSTRUCTION NO. 12 - DELIBERATIONS



In conducting your deliberations and returning your verdict, there are certain rules you must follow.

First, when you go to the jury room, you must select one of your members as your foreperson. That person will preside over your discussions and speak for you here in court.

Second, it is your duty, as jurors, to discuss this case with one another in the jury room. You should try to reach agreement if you can do so without violence to individual judgment. Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors. Do not be afraid to change your opinions if the discussion persuades you that you should, but do not come to a decision simply because other jurors think it is right, or simply to reach a verdict. Remember at all times that you are not partisans. You are judges--judges of the facts. Your sole interest is to seek the truth from the evidence in the case.

Third, if you need to communicate with me during your deliberations, you may send a note to me through the Court Security Officer, signed by one or more jurors. I will respond as soon as possible either in writing or orally in open court. Remember that you should not tell anyone--including me--how your votes stand numerically.

Fourth, your verdict must be based solely on the evidence and on the law which I have given to you in my instructions. Nothing I have said or done is intended to suggest what your verdict should be--that is entirely for you to decide.

Finally, I am giving you the verdict form. A verdict form is simply the written notice of the decision that you reach in this case. You will take this form to the jury room, and complete it when you have reached a verdict. Your verdict must be unanimous and you must all sign the verdict form. When you have reached a verdict, the foreperson will advise the Court Security Officer that you are ready to return to the courtroom.

DATED this 11th day of July, 2001.



















IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION





ASA-BRANDT, INC. a/k/a ASA-BRANDT PARTNERSHIP; PHILLIP ASA; KEITH BRANDT; ROBERT BECKER; DENNIS CINK; DUANE DEWAARD; BEVERLY EVERETT; RICHARD GARDNER; EDWARD A. OTIS; JIM OTIS; RONALD SCHMIDT; and DEBRA SCHMIDT,
Plaintiffs,

No. C01-3021-MWB

vs.

VERDICT FORM

FARMERS CO-OPERATIVE SOCIETY,
Defendant.

____________________



As to plaintiffs Asa-Brandt, Inc. a/k/a Asa-Brandt Partnership, Phillip Asa and Keith Brandt, we, the jury, unanimously find as follows:



THE ASA-BRANDT PLAINTIFFS' CLAIM OF BREACH OF CONTRACT
1 On the Asa-Brandt plaintiffs' claim of breach of contract, as explained in Final Jury Instruction No. 6, in whose favor do you find? (If your answer is in favor of the Asa-Brandt plaintiffs, go on to line 2, but if your answer is in favor of defendant Wesley, go on to consider the plaintiffs' breach-of-fiduciary-duty claim.)

_____ Asa-Brandt Plaintiffs


_____ Defendant Wesley
2 If you found in favor of the Asa-Brandt plaintiffs, what damages do you award to these plaintiffs on this claim, as damages for defendant Wesley's breach of contract are explained in Final Jury Instruction No. 11?




____
The increased dollar value that these plaintiffs would have received had Wesley fully performed the contract, in the amount of $_______________, or
____ Nominal damages in the amount of $1.00.
3 Punitive Damages

(If you have found in favor of the Asa-Brandt plaintiffs, you may award punitive damages as punitive damages are explained in Final Instruction 10.

Do you find by the greater weight of clear, convincing, and satisfactory evidence that the conduct of defendant Wesley constituted willful and wanton disregard for the rights of another? (If your answer to this question is "No," do not answer the remaining questions in this section but go on to consider plaintiffs' breach-of-fiduciary-duty claim.) ____ Yes



____ No

What amount of punitive damages, if any do you award against defendant Wesley? $ ________
Was the conduct of defendant Wesley directed specifically at the Asa-Brandt plaintiffs? ____ Yes



____ No



THE ASA-BRANDT PLAINTIFFS' CLAIM OF BREACH OF FIDUCIARY DUTY
1 On the Asa-Brandt plaintiffs' claim of breach of fiduciary duty, as explained in Final Jury Instruction No. 7, do you find that Wesley owed a fiduciary duty to the Asa-Brandt plaintiffs? (If your answer is in favor of the Asa-Brandt plaintiffs, go on to line 2, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) _____ Yes



_____ No

2 As explained in Final Jury Instruction No. 7, do you find that Wesley breached the fiduciary duty owed to the Asa-Brandt plaintiffs? (If your answer is in favor of the Asa-Brandt plaintiffs, go on to line 3, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) ____ Yes





_____ No

3 As explained in Final Jury Instruction No. 7, do you find that the breach of the fiduciary duty Wesley owed to the Asa-Brandt plaintiffs was the proximate cause of damage to the Asa-Brandt plaintiffs? (If your answer is in favor of the Asa-Brandt plaintiffs, go on to line 4, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) _____ Yes





_____ No

4 If you found in favor of the plaintiffs on questions 1 through 3, in which of the following ways identified in Final Jury Instruction No. 7, beginning on page 33, do you find that defendant Wesley's breach of its fiduciary duty was a proximate cause of damage to the Asa-Brandt plaintiffs? (Please mark all that apply.)
A.



____

Wesley failed to inform plaintiffs of Wesley's need of a source of unlimited funds to maintain the flex-hedge program and that it had not obtained prior approval of its lender.
B.





____

Wesley misrepresented to plaintiffs that the flex-hedge program allowed plaintiffs to "capture the carry" as Wesley itself did in hedging its grain.
C.



____

Wesley failed to adopt a set of internal controls that would allow Wesley to adequately monitor the flex-hedge program and to contend with adverse market conditions.
D.

____

Wesley wrote more flex-hedge programs than Wesley knew could be margined through adverse market conditions.
E.

____

Wesley failed to adequately warn plaintiffs of all the material risks inherent in the flex-hedge program.
F.



____

Wesley encouraged plaintiffs to deliver on the cash market and roll the flex-hedge contracts when Wesley knew it was against plaintiffs' economic interests to do so.
G.



____

Wesley took the "other side" of plaintiffs' July 1996 flex-hedge positions and using the plaintiffs' flex-hedge positions to conceal Wesley's speculative trading losses.
H.





____

Wesley conspired with other cooperatives to make unreasonable demands on plaintiffs to pay Wesley's margin and deliver grain in an attempt to conceal Wesley's inability to fund the flex-hedge program.
I.





____

Wesley as part of a conspiracy with other cooperatives, used false and misleading comments to turn the community against plaintiffs as a means to force plaintiffs to pay margin money they did not owe.
5 If you found in favor of the Asa-Brandt plaintiffs, what damages do you award to these plaintiffs on this claim, as damages for defendant Wesley's breach of fiduciary duty are explained in Final Jury Instruction No. 11?
A.

____

Monetary losses, in the amount of $_______________, or
B.

____

"Benefit of the bargain" damages, in the amount of $_______________, or
C.

____

Nominal damages in the amount of $1.00.
D. Only answer this question if you awarded damages to these plaintiffs on this claim, and checked box "I" above as one of the ways that defendant Wesley breached its fiduciary duty to the Asa-Brandt plaintiffs. What amount of the total damages in box 5a or box 5b, if any, did you award against defendant Wesley based on the breach of fiduciary duty identified in box "I"? $_______________
6 Punitive Damages

(If you have found in favor of the Asa-Brandt plaintiffs, you may award punitive damages as punitive damages are explained in Final Instruction 10.

Do you find by the greater weight of clear, convincing, and satisfactory evidence that the conduct of defendant Wesley constituted willful and wanton disregard for the rights of another? (If your answer to this question is "No," do not answer the remaining questions in this section but go on to consider the defendant's counterclaim of breach of contract.)

____ Yes

____ No

What amount of punitive damages, if any do you award against defendant Wesley? $ _____
Was the conduct of defendant Wesley directed specifically at the Asa-Brandt plaintiffs? ____ Yes

____ No

Only answer this question if you awarded punitive damages to these plaintiffs on this claim, and checked box "I" above as one of the ways that defendant Wesley breached its fiduciary duty to the Asa-Brandt plaintiffs. What amount of the total punitive damages, if any, did you award against defendant Wesley based on the breach of fiduciary duty identified in box "I"? $_______________



DEFENDANT WESLEY'S COUNTERCLAIM OF BREACH OF CONTRACT
1 On defendant Wesley's counterclaim of breach of contract, as explained in Final Jury Instruction No. 8, in whose favor do you find? (If your answer is in favor of defendant Wesley, go on to line 2, but if your answer is in favor of the Asa-Brandt plaintiffs, go on to consider plaintiff Robert Becker's breach of contract claim.)

_____ Asa-Brandt Plaintiffs


_____ Defendant Wesley
2 If you found in favor of defendant Wesley, what damages do you award to defendant Wesley on this claim, as damages for the Asa-Brandt plaintiffs' breach of contract are explained in Final Jury Instruction No. 11?




____
The difference between the market price of the grain at the time Wesley learned of the breach and the contract price of the grain, in the amount of $_______________, or
____ Nominal damages in the amount of $1.00.






Date: ________________ Time: ________________



To be signed only if the verdict is unanimous.



____________________________ ____________________________

FOREPERSON JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR



As to plaintiff Robert Becker, we, the jury, unanimously find as follows:



PLAINTIFF ROBERT BECKER'S CLAIM OF BREACH OF CONTRACT
1 On plaintiff Robert Becker's claim of breach of contract, as explained in Final Jury Instruction No. 6, in whose favor do you find? (If your answer is in favor of plaintiff Robert Becker, go on to line 2, but if your answer is in favor of defendant Wesley, go on to consider the plaintiff's breach-of-fiduciary-duty claim.)

_____ Plaintiff Robert Becker


_____ Defendant Wesley
2 If you found in favor of plaintiff Robert Becker, what damages do you award to this plaintiff on this claim, as damages for defendant Wesley's breach of contract are explained in Final Jury Instruction No. 11?




____
The increased dollar value that this plaintiff would have received had Wesley fully performed the contract, in the amount of $_______________, or
____ Nominal damages in the amount of $1.00.
3 Punitive Damages

(If you have found in favor of plaintiff Robert Becker, you may award punitive damages as punitive damages are explained in Final Instruction 10.

Do you find by the greater weight of clear, convincing, and satisfactory evidence that the conduct of defendant Wesley constituted willful and wanton disregard for the rights of another? (If your answer to this question is "No," do not answer the remaining questions in this section but go on to consider plaintiff's breach-of-fiduciary-duty claim.) ____ Yes



____ No

What amount of punitive damages, if any do you award against defendant Wesley? $ ________
Was the conduct of defendant Wesley directed specifically at plaintiff Robert Becker? ____ Yes



____ No





PLAINTIFF ROBERT BECKER'S CLAIM OF BREACH OF FIDUCIARY DUTY
1 On plaintiff Robert Becker's claim of breach of fiduciary duty, as explained in Final Jury Instruction No. 7, do you find that Wesley owed a fiduciary duty to plaintiff Robert Becker? (If your answer is in favor of plaintiff Robert Becker, go on to line 2, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) _____ Yes



_____ No

2 As explained in Final Jury Instruction No. 7, do you find that Wesley breached the fiduciary duty owed to plaintiff Robert Becker? (If your answer is in favor of plaintiff Robert Becker, go on to line 3, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) ____ Yes





_____ No

3 As explained in Final Jury Instruction No. 7, do you find that the breach of the fiduciary duty Wesley owed to plaintiff Robert Becker was the proximate cause of damage to plaintiff Robert Becker? (If your answer is in favor of plaintiff Robert Becker, go on to line 4, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) _____ Yes





_____ No

4 If you found in favor of plaintiff Robert Becker on questions 1 through 3, in which of the following ways identified in Final Jury Instruction No. 7, beginning on page 33, do you find that defendant Wesley's breach of its fiduciary duty was a proximate cause of damage to plaintiff Robert Becker? (Please mark all that apply.)
A.



____

Wesley failed to inform plaintiffs of Wesley's need of a source of unlimited funds to maintain the flex-hedge program and that it had not obtained prior approval of its lender.
B.



____

Wesley misrepresented to plaintiffs that the flex-hedge program allowed plaintiffs to "capture the carry" as Wesley itself did in hedging its grain.
C.



____

Wesley failed to adopt a set of internal controls that would allow Wesley to adequately monitor the flex-hedge program and to contend with adverse market conditions.
D.

____

Wesley wrote more flex-hedge programs than Wesley knew could be margined through adverse market conditions.
E.

____

Wesley failed to adequately warn plaintiffs of all the material risks inherent in the flex-hedge program.
F.



____

Wesley encouraged plaintiffs to deliver on the cash market and roll the flex-hedge contracts when Wesley knew it was against plaintiffs' economic interests to do so.
G.



____

Wesley took the "other side" of plaintiffs' July 1996 flex-hedge positions and using the plaintiffs' flex-hedge positions to conceal Wesley's speculative trading losses.
H.





____

Wesley conspired with other cooperatives to make unreasonable demands on plaintiffs to pay Wesley's margin and deliver grain in an attempt to conceal Wesley's inability to fund the flex-hedge program.
I.





____

Wesley as part of a conspiracy with other cooperatives, used false and misleading comments to turn the community against plaintiffs as a means to force plaintiffs to pay margin money they did not owe.
5 If you found in favor of plaintiff Robert Becker, what damages do you award to this plaintiff on this claim, as damages for defendant Wesley's breach of fiduciary duty are explained in Final Jury Instruction No. 11?
A.

____

Monetary losses, in the amount of $_______________, or
B.

____

"Benefit of the bargain" damages, in the amount of $_______________, or
C.

____

Nominal damages in the amount of $1.00.
D. Only answer this question if you awarded damages to this plaintiff on this claim, and checked box "I" above as one of the ways that defendant Wesley breached its fiduciary duty to plaintiff Robert Becker. What amount of the total damages in box 5a or box 5b, if any, did you award against defendant Wesley based on the breach of fiduciary duty identified in box "I"? $_______________
6 Punitive Damages

(If you have found in favor of plaintiff Robert Becker, you may award punitive damages as punitive damages are explained in Final Instruction 10.

Do you find by the greater weight of clear, convincing, and satisfactory evidence that the conduct of defendant Wesley constituted willful and wanton disregard for the rights of another? (If your answer to this question is "No," do not answer the remaining questions in this section but go on to consider the defendant's counterclaim of breach of contract.)

____ Yes

____ No

What amount of punitive damages, if any do you award against defendant Wesley? $ ________
Was the conduct of defendant Wesley directed specifically at plaintiff Robert Becker? ____ Yes



____ No

Only answer this question if you awarded punitive damages to this plaintiff on this claim, and checked box "I" above as one of the ways that defendant Wesley breached its fiduciary duty to plaintiff Robert Becker. What amount of the total punitive damages, if any, did you award against defendant Wesley based on the breach of fiduciary duty identified in box "I"? $_______________



DEFENDANT WESLEY'S COUNTERCLAIM OF BREACH OF CONTRACT
1 On defendant Wesley's counterclaim of breach of contract, as explained in Final Jury Instruction No. 8, in whose favor do you find? (If your answer is in favor of defendant Wesley, go on to line 2, but if your answer is in favor of plaintiff Robert Becker, go on to consider plaintiff Dennis Cink's breach of contract claim.)

_____ Plaintiff Robert Becker


_____ Defendant Wesley
2 If you found in favor of defendant Wesley, what damages do you award to defendant Wesley on this claim, as damages for plaintiff Robert Becker's breach of contract are explained in Final Jury Instruction No. 11?




____
The difference between the market price of the grain at the time Wesley learned of the breach and the contract price of the grain, in the amount of $_______________, or
____ Nominal damages in the amount of $1.00.








Date: ________________ Time: ________________



To be signed only if the verdict is unanimous.



____________________________ ____________________________

FOREPERSON JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR







As to plaintiff Dennis Cink, we, the jury, unanimously find as follows:



PLAINTIFF DENNIS CINK'S CLAIM OF BREACH OF CONTRACT
1 On plaintiff Dennis Cink's claim of breach of contract, as explained in Final Jury Instruction No. 6, in whose favor do you find? (If your answer is in favor of plaintiff Dennis Cink, go on to line 2, but if your answer is in favor of defendant Wesley, go on to consider the plaintiff's breach-of-fiduciary-duty claim.)

_____ Plaintiff Dennis Cink's


_____ Defendant Wesley
2 If you found in favor of plaintiff Dennis Cink, what damages do you award to this plaintiff on this claim, as damages for defendant Wesley's breach of contract are explained in Final Jury Instruction No. 11?




____
The increased dollar value that this plaintiff would have received had Wesley fully performed the contract, in the amount of $_______________, or
____ Nominal damages in the amount of $1.00.
3 Punitive Damages

(If you have found in favor of plaintiff Dennis Cink, you may award punitive damages as punitive damages are explained in Final Instruction 10.

Do you find by the greater weight of clear, convincing, and satisfactory evidence that the conduct of defendant Wesley constituted willful and wanton disregard for the rights of another? (If your answer to this question is "No," do not answer the remaining questions in this section but go on to consider plaintiff's breach-of-fiduciary-duty claim.) ____ Yes



____ No

What amount of punitive damages, if any do you award against defendant Wesley? $ ________
Was the conduct of defendant Wesley directed specifically at plaintiff Dennis Cink? ____ Yes



____ No





PLAINTIFF DENNIS CINK'S CLAIM OF BREACH OF FIDUCIARY DUTY
1 On plaintiff Dennis Cink's claim of breach of fiduciary duty, as explained in Final Jury Instruction No. 7, do you find that Wesley owed a fiduciary duty to plaintiff Dennis Cink? (If your answer is in favor of plaintiff Dennis Cink, go on to line 2, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) _____ Yes



_____ No

2 As explained in Final Jury Instruction No. 7, do you find that Wesley breached the fiduciary duty owed to plaintiff Dennis Cink? (If your answer is in favor of plaintiff Dennis Cink, go on to line 3, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) ____ Yes





_____ No

3 As explained in Final Jury Instruction No. 7, do you find that the breach of the fiduciary duty Wesley owed to plaintiff Dennis Cink was the proximate cause of damage to plaintiff Dennis Cink? (If your answer is in favor of plaintiff Dennis Cink, go on to line 4, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) _____ Yes





_____ No

4 If you found in favor of plaintiff Dennis Cink on questions 1 through 3, in which of the following ways identified in Final Jury Instruction No. 7, beginning on page 33, do you find that defendant Wesley's breach of its fiduciary duty was a proximate cause of damage to plaintiff Dennis Cink? (Please mark all that apply.)
A.



____

Wesley failed to inform plaintiffs of Wesley's need of a source of unlimited funds to maintain the flex-hedge program and that it had not obtained prior approval of its lender.
B.



____

Wesley misrepresented to plaintiffs that the flex-hedge program allowed plaintiffs to "capture the carry" as Wesley itself did in hedging its grain.
C.



____

Wesley failed to adopt a set of internal controls that would allow Wesley to adequately monitor the flex-hedge program and to contend with adverse market conditions.
D.

____

Wesley wrote more flex-hedge programs than Wesley knew could be margined through adverse market conditions.
E.

____

Wesley failed to adequately warn plaintiffs of all the material risks inherent in the flex-hedge program.
F.



____

Wesley encouraged plaintiffs to deliver on the cash market and roll the flex-hedge contracts when Wesley knew it was against plaintiffs' economic interests to do so.
G.



____

Wesley took the "other side" of plaintiffs' July 1996 flex-hedge positions and using the plaintiffs' flex-hedge positions to conceal Wesley's speculative trading losses.
H.





____

Wesley conspired with other cooperatives to make unreasonable demands on plaintiffs to pay Wesley's margin and deliver grain in an attempt to conceal Wesley's inability to fund the flex-hedge program.
I.





____

Wesley as part of a conspiracy with other cooperatives, used false and misleading comments to turn the community against plaintiffs as a means to force plaintiffs to pay margin money they did not owe.
5 If you found in favor of plaintiff Dennis Cink, what damages do you award to this plaintiff on this claim, as damages for defendant Wesley's breach of fiduciary duty are explained in Final Jury Instruction No. 11?
A.

____

Monetary losses, in the amount of $_______________, or
B.

____

"Benefit of the bargain" damages, in the amount of $_______________, or
C.

____

Nominal damages in the amount of $1.00.
D. Only answer this question if you awarded damages to this plaintiff on this claim, and checked box "I" above as one of the ways that defendant Wesley breached its fiduciary duty to plaintiff Dennis Cink. What amount of the total damages in box 5a or box 5b, if any, did you award against defendant Wesley based on the breach of fiduciary duty identified in box "I"? $_______________
6 Punitive Damages

(If you have found in favor of plaintiff Dennis Cink, you may award punitive damages as punitive damages are explained in Final Instruction 10.

Do you find by the greater weight of clear, convincing, and satisfactory evidence that the conduct of defendant Wesley constituted willful and wanton disregard for the rights of another? (If your answer to this question is "No," do not answer the remaining questions in this section but go on to consider the defendant's counterclaim of breach of contract.)

____ Yes

____ No

What amount of punitive damages, if any do you award against defendant Wesley? $ ________
Was the conduct of defendant Wesley directed specifically at plaintiff Dennis Cink? ____ Yes



____ No

Only answer this question if you awarded punitive damages to this plaintiff on this claim, and checked box "I" above as one of the ways that defendant Wesley breached its fiduciary duty to plaintiff Dennis Cink. What amount of the total punitive damages, if any, did you award against defendant Wesley based on the breach of fiduciary duty identified in box "I"? $_______________



DEFENDANT WESLEY'S COUNTERCLAIM OF BREACH OF CONTRACT
1 On defendant Wesley's counterclaim of breach of contract, as explained in Final Jury Instruction No. 8, in whose favor do you find? (If your answer is in favor of defendant Wesley, go on to line 2, but if your answer is in favor of plaintiff Dennis Cink, go on to consider plaintiff Duane DeWaard's breach of contract claim.)

_____ Plaintiff Dennis Cink


_____ Defendant Wesley
2 If you found in favor of defendant Wesley, what damages do you award to defendant Wesley on this claim, as damages for plaintiff Dennis Cink' breach of contract are explained in Final Jury Instruction No. 11?




____
The difference between the market price of the grain at the time Wesley learned of the breach and the contract price of the grain, in the amount of $_______________, or
____ Nominal damages in the amount of $1.00.








Date: ________________ Time: ________________



To be signed only if the verdict is unanimous.



____________________________ ____________________________

FOREPERSON JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR







As to plaintiff Duane DeWaard, we, the jury, unanimously find as follows:



PLAINTIFF DUANE DEWAARD'S CLAIM OF BREACH OF CONTRACT
1 On plaintiff Duane DeWaard's claim of breach of contract, as explained in Final Jury Instruction No. 6, in whose favor do you find? (If your answer is in favor of plaintiff Duane DeWaard, go on to line 2, but if your answer is in favor of defendant Wesley, go on to consider the plaintiff's breach-of-fiduciary-duty claim.)

_____ Plaintiff Duane DeWaard


_____ Defendant Wesley
2 If you found in favor of plaintiff Duane DeWaard, what damages do you award to this plaintiff on this claim, as damages for defendant Wesley's breach of contract are explained in Final Jury Instruction No. 11?




____
The increased dollar value that this plaintiff would have received had Wesley fully performed the contract, in the amount of $_______________, or
____ Nominal damages in the amount of $1.00.
3 Punitive Damages

(If you have found in favor of plaintiff Duane DeWaard, you may award punitive damages as punitive damages are explained in Final Instruction 10.

Do you find by the greater weight of clear, convincing, and satisfactory evidence that the conduct of defendant Wesley constituted willful and wanton disregard for the rights of another? (If your answer to this question is "No," do not answer the remaining questions in this section but go on to consider plaintiff's breach-of-fiduciary-duty claim.) ____ Yes



____ No

What amount of punitive damages, if any do you award against defendant Wesley? $ ________
Was the conduct of defendant Wesley directed specifically at plaintiff Duane DeWaard? ____ Yes



____ No





PLAINTIFF DUANE DEWAARD'S CLAIM OF BREACH OF FIDUCIARY DUTY
1 On plaintiff Duane DeWaard's claim of breach of fiduciary duty, as explained in Final Jury Instruction No. 7, do you find that Wesley owed a fiduciary duty to plaintiff Duane DeWaard? (If your answer is in favor of plaintiff DeWaard, go on to line 2, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) _____ Yes



_____ No

2 As explained in Final Jury Instruction No. 7, do you find that Wesley breached the fiduciary duty owed to plaintiff Duane DeWaard? (If your answer is in favor of plaintiff , go on to line 3, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) ____ Yes





_____ No

3 As explained in Final Jury Instruction No. 7, do you find that the breach of the fiduciary duty Wesley owed to plaintiff Duane DeWaard was the proximate cause of damage to plaintiff Duane DeWaard? (If your answer is in favor of plaintiff Duane DeWaard, go on to line 4, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) _____ Yes





_____ No

4 If you found in favor of plaintiff Duane DeWaard on questions 1 through 3, in which of the following ways identified in Final Jury Instruction No. 7, beginning on page 33, do you find that defendant Wesley's breach of its fiduciary duty was a proximate cause of damage to plaintiff Duane DeWaard? (Please mark all that apply.)
A.



____

Wesley failed to inform plaintiffs of Wesley's need of a source of unlimited funds to maintain the flex-hedge program and that it had not obtained prior approval of its lender.
B.



____

Wesley misrepresented to plaintiffs that the flex-hedge program allowed plaintiffs to "capture the carry" as Wesley itself did in hedging its grain.
C.



____

Wesley failed to adopt a set of internal controls that would allow Wesley to adequately monitor the flex-hedge program and to contend with adverse market conditions.
D.

____

Wesley wrote more flex-hedge programs than Wesley knew could be margined through adverse market conditions.
E.

____

Wesley failed to adequately warn plaintiffs of all the material risks inherent in the flex-hedge program.
F.



____

Wesley encouraged plaintiffs to deliver on the cash market and roll the flex-hedge contracts when Wesley knew it was against plaintiffs' economic interests to do so.
G.



____

Wesley took the "other side" of plaintiffs' July 1996 flex-hedge positions and using the plaintiffs' flex-hedge positions to conceal Wesley's speculative trading losses.
H.





____

Wesley conspired with other cooperatives to make unreasonable demands on plaintiffs to pay Wesley's margin and deliver grain in an attempt to conceal Wesley's inability to fund the flex-hedge program.
I.





____

Wesley as part of a conspiracy with other cooperatives, used false and misleading comments to turn the community against plaintiffs as a means to force plaintiffs to pay margin money they did not owe.
5 If you found in favor of plaintiff Duane DeWaard, what damages do you award to this plaintiff on this claim, as damages for defendant Wesley's breach of fiduciary duty are explained in Final Jury Instruction No. 11?
A.

____

Monetary losses, in the amount of $_______________, or
B.

____

"Benefit of the bargain" damages, in the amount of $_______________, or
C.

____

Nominal damages in the amount of $1.00.
D. Only answer this question if you awarded damages to this plaintiff on this claim, and checked box "I" above as one of the ways that defendant Wesley breached its fiduciary duty to plaintiff Duane DeWaard. What amount of the total damages in box 5a or box 5b, if any, did you award against defendant Wesley based on the breach of fiduciary duty identified in box "I"? $_______________
6 Punitive Damages

(If you have found in favor of plaintiff Duane DeWaard, you may award punitive damages as punitive damages are explained in Final Instruction 10.

Do you find by the greater weight of clear, convincing, and satisfactory evidence that the conduct of defendant Wesley constituted willful and wanton disregard for the rights of another? (If your answer to this question is "No," do not answer the remaining questions in this section but go on to consider the defendant's counterclaim of breach of contract.)

____ Yes

____ No

What amount of punitive damages, if any do you award against defendant Wesley? $ ________
Was the conduct of defendant Wesley directed specifically at plaintiff Duane DeWaard? ____ Yes



____ No

Only answer this question if you awarded punitive damages to this plaintiff on this claim, and checked box "I" above as one of the ways that defendant Wesley breached its fiduciary duty to plaintiff Duane DeWaard. What amount of the total punitive damages, if any, did you award against defendant Wesley based on the breach of fiduciary duty identified in box "I"? $_______________



DEFENDANT WESLEY'S COUNTERCLAIM OF BREACH OF CONTRACT
1 On defendant Wesley's counterclaim of breach of contract, as explained in Final Jury Instruction No. 8, in whose favor do you find? (If your answer is in favor of defendant Wesley, go on to line 2, but if your answer is in favor of plaintiff Duane DeWaard, go on to consider plaintiff Beverly Everett's breach of contract claim.)

_____ Plaintiff Duane DeWaard


_____ Defendant Wesley
2 If you found in favor of defendant Wesley, what damages do you award to defendant Wesley on this claim, as damages for plaintiff Duane DeWaard's breach of contract are explained in Final Jury Instruction No. 11?




____
The difference between the market price of the grain at the time Wesley learned of the breach and the contract price of the grain, in the amount of $_______________, or
____ Nominal damages in the amount of $1.00.








Date: ________________ Time: ________________



To be signed only if the verdict is unanimous.



____________________________ ____________________________

FOREPERSON JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR







As to plaintiff Beverly Everett, we, the jury, unanimously find as follows:



PLAINTIFF BEVERLY EVERETT'S CLAIM OF BREACH OF CONTRACT
1 On plaintiff Beverly Everett's claim of breach of contract, as explained in Final Jury Instruction No. 6, in whose favor do you find? (If your answer is in favor of plaintiff Beverly Everett, go on to line 2, but if your answer is in favor of defendant Wesley, go on to consider the plaintiff's breach-of-fiduciary-duty claim.)

_____ Plaintiff Beverly Everett


_____ Defendant Wesley
2 If you found in favor of plaintiff Beverly Everett, what damages do you award to this plaintiff on this claim, as damages for defendant Wesley's breach of contract are explained in Final Jury Instruction No. 11?




____
The increased dollar value that this plaintiff would have received had Wesley fully performed the contract, in the amount of $_______________, or
____ Nominal damages in the amount of $1.00.
3 Punitive Damages

(If you have found in favor of plaintiff Beverly Everett, you may award punitive damages as punitive damages are explained in Final Instruction 10.

Do you find by the greater weight of clear, convincing, and satisfactory evidence that the conduct of defendant Wesley constituted willful and wanton disregard for the rights of another? (If your answer to this question is "No," do not answer the remaining questions in this section but go on to consider plaintiff's breach-of-fiduciary-duty claim.) ____ Yes



____ No

What amount of punitive damages, if any do you award against defendant Wesley? $ ________
Was the conduct of defendant Wesley directed specifically at plaintiff Beverly Everett? ____ Yes



____ No



PLAINTIFF BEVERLY EVERETT'S CLAIM OF BREACH OF FIDUCIARY DUTY
1 On plaintiff Beverly Everett's claim of breach of fiduciary duty, as explained in Final Jury Instruction No. 7, do you find that Wesley owed a fiduciary duty to plaintiff Beverly Everett? (If your answer is in favor of plaintiff Beverly Everett, go on to line 2, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) _____ Yes



_____ No

2 As explained in Final Jury Instruction No. 7, do you find that Wesley breached the fiduciary duty owed to plaintiff Beverly Everett? (If your answer is in favor of plaintiff Beverly Everett, go on to line 3, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) ____ Yes





_____ No

3 As explained in Final Jury Instruction No. 7, do you find that the breach of the fiduciary duty Wesley owed to plaintiff Beverly Everett was the proximate cause of damage to plaintiff Beverly Everett? (If your answer is in favor of plaintiff Beverly Everett, go on to line 4, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) _____ Yes





_____ No

4 If you found in favor of plaintiff Beverly Everett on questions 1 through 3, in which of the following ways identified in Final Jury Instruction No. 7, beginning on page 33, do you find that defendant Wesley's breach of its fiduciary duty was a proximate cause of damage to plaintiff Beverly Everett? (Please mark all that apply.)
A.



____

Wesley failed to inform plaintiffs of Wesley's need of a source of unlimited funds to maintain the flex-hedge program and that it had not obtained prior approval of its lender.
B.



____

Wesley misrepresented to plaintiffs that the flex-hedge program allowed plaintiffs to "capture the carry" as Wesley itself did in hedging its grain.
C.



____

Wesley failed to adopt a set of internal controls that would allow Wesley to adequately monitor the flex-hedge program and to contend with adverse market conditions.
D.

____

Wesley wrote more flex-hedge programs than Wesley knew could be margined through adverse market conditions.
E.

____

Wesley failed to adequately warn plaintiffs of all the material risks inherent in the flex-hedge program.
F.



____

Wesley encouraged plaintiffs to deliver on the cash market and roll the flex-hedge contracts when Wesley knew it was against plaintiffs' economic interests to do so.
G.



____

Wesley took the "other side" of plaintiffs' July 1996 flex-hedge positions and using the plaintiffs' flex-hedge positions to conceal Wesley's speculative trading losses.
H.





____

Wesley conspired with other cooperatives to make unreasonable demands on plaintiffs to pay Wesley's margin and deliver grain in an attempt to conceal Wesley's inability to fund the flex-hedge program.
I.





____

Wesley as part of a conspiracy with other cooperatives, used false and misleading comments to turn the community against plaintiffs as a means to force plaintiffs to pay margin money they did not owe.
5 If you found in favor of plaintiff Beverly Everett, what damages do you award to this plaintiff on this claim, as damages for defendant Wesley's breach of fiduciary duty are explained in Final Jury Instruction No. 11?
A.

____

Monetary losses, in the amount of $_______________, or
B.

____

"Benefit of the bargain" damages, in the amount of $_______________, or
C.

____

Nominal damages in the amount of $1.00.
D. Only answer this question if you awarded damages to this plaintiff on this claim, and checked box "I" above as one of the ways that defendant Wesley breached its fiduciary duty to plaintiff Beverly Everett. What amount of the total damages in box 5a or box 5b, if any, did you award against defendant Wesley based on the breach of fiduciary duty identified in box "I"? $_______________
6 Punitive Damages

(If you have found in favor of plaintiff Beverly Everett, you may award punitive damages as punitive damages are explained in Final Instruction 10.

Do you find by the greater weight of clear, convincing, and satisfactory evidence that the conduct of defendant Wesley constituted willful and wanton disregard for the rights of another? (If your answer to this question is "No," do not answer the remaining questions in this section but go on to consider the defendant's counterclaim of breach of contract.)

____ Yes

____ No

What amount of punitive damages, if any do you award against defendant Wesley? $ ________
Was the conduct of defendant Wesley directed specifically at plaintiff Beverly Everett? ____ Yes



____ No

Only answer this question if you awarded punitive damages to this plaintiff on this claim, and checked box "I" above as one of the ways that defendant Wesley breached its fiduciary duty to plaintiff Beverly Everett. What amount of the total punitive damages, if any, did you award against defendant Wesley based on the breach of fiduciary duty identified in box "I"? $_______________



DEFENDANT WESLEY'S COUNTERCLAIM OF BREACH OF CONTRACT
1 On defendant Wesley's counterclaim of breach of contract, as explained in Final Jury Instruction No. 8, in whose favor do you find? (If your answer is in favor of defendant Wesley, go on to line 2, but if your answer is in favor of plaintiff Beverly Everett, go on to consider plaintiff Richard Gardner's breach of contract claim.)

_____ Plaintiff Beverly Everett


_____ Defendant Wesley
2 If you found in favor of defendant Wesley, what damages do you award to defendant Wesley on this claim, as damages for plaintiff Beverly Everett's breach of contract are explained in Final Jury Instruction No. 11?




____
The difference between the market price of the grain at the time Wesley learned of the breach and the contract price of the grain, in the amount of $_______________, or
____ Nominal damages in the amount of $1.00.








Date: ________________ Time: ________________



To be signed only if the verdict is unanimous.



____________________________ ____________________________

FOREPERSON JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR







As to plaintiff Richard Gardner, we, the jury, unanimously find as follows:



PLAINTIFF RICHARD GARDNER'S CLAIM OF BREACH OF CONTRACT
1 On plaintiff Richard Gardner's claim of breach of contract, as explained in Final Jury Instruction No. 6, in whose favor do you find? (If your answer is in favor of plaintiff Richard Gardner, go on to line 2, but if your answer is in favor of defendant Wesley, go on to consider the plaintiff's breach-of-fiduciary-duty claim.)

_____ Plaintiff Richard Gardner


_____ Defendant Wesley
2 If you found in favor of plaintiff Richard Gardner, what damages do you award to this plaintiff on this claim, as damages for defendant Wesley's breach of contract are explained in Final Jury Instruction No. 11?




____
The increased dollar value that this plaintiff would have received had Wesley fully performed the contract, in the amount of $_______________, or
____ Nominal damages in the amount of $1.00.
3 Punitive Damages

(If you have found in favor of plaintiff Richard Gardner, you may award punitive damages as punitive damages are explained in Final Instruction 10.

Do you find by the greater weight of clear, convincing, and satisfactory evidence that the conduct of defendant Wesley constituted willful and wanton disregard for the rights of another? (If your answer to this question is "No," do not answer the remaining questions in this section but go on to consider plaintiff's breach-of-fiduciary-duty claim.) ____ Yes



____ No

What amount of punitive damages, if any do you award against defendant Wesley? $ ________
Was the conduct of defendant Wesley directed specifically at plaintiff Richard Gardner? ____ Yes



____ No





PLAINTIFF RICHARD GARDNER'S CLAIM OF BREACH OF FIDUCIARY DUTY
1 On plaintiff Richard Gardner's claim of breach of fiduciary duty, as explained in Final Jury Instruction No. 7, do you find that Wesley owed a fiduciary duty to plaintiff Richard Gardner? (If your answer is in favor of plaintiff Richard Gardner, go on to line 2, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) _____ Yes



_____ No

2 As explained in Final Jury Instruction No. 7, do you find that Wesley breached the fiduciary duty owed to plaintiff Richard Gardner? (If your answer is in favor of plaintiff Richard Gardner, go on to line 3, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) ____ Yes





_____ No

3 As explained in Final Jury Instruction No. 7, do you find that the breach of the fiduciary duty Wesley owed to plaintiff Richard Gardner was the proximate cause of damage to plaintiff Richard Gardner? (If your answer is in favor of plaintiff Richard Gardner, go on to line 4, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) _____ Yes





_____ No

4 If you found in favor of plaintiff Richard Gardner on questions 1 through 3, in which of the following ways identified in Final Jury Instruction No. 7, beginning on page 33, do you find that defendant Wesley's breach of its fiduciary duty was a proximate cause of damage to plaintiff Richard Gardner? (Please mark all that apply.)
A.



____

Wesley failed to inform plaintiffs of Wesley's need of a source of unlimited funds to maintain the flex-hedge program and that it had not obtained prior approval of its lender.
B.



____

Wesley misrepresented to plaintiffs that the flex-hedge program allowed plaintiffs to "capture the carry" as Wesley itself did in hedging its grain.
C.



____

Wesley failed to adopt a set of internal controls that would allow Wesley to adequately monitor the flex-hedge program and to contend with adverse market conditions.
D.

____

Wesley wrote more flex-hedge programs than Wesley knew could be margined through adverse market conditions.
E.

____

Wesley failed to adequately warn plaintiffs of all the material risks inherent in the flex-hedge program.
F.



____

Wesley encouraged plaintiffs to deliver on the cash market and roll the flex-hedge contracts when Wesley knew it was against plaintiffs' economic interests to do so.
G.



____

Wesley took the "other side" of plaintiffs' July 1996 flex-hedge positions and using the plaintiffs' flex-hedge positions to conceal Wesley's speculative trading losses.
H.





____

Wesley conspired with other cooperatives to make unreasonable demands on plaintiffs to pay Wesley's margin and deliver grain in an attempt to conceal Wesley's inability to fund the flex-hedge program.
I.





____

Wesley as part of a conspiracy with other cooperatives, used false and misleading comments to turn the community against plaintiffs as a means to force plaintiffs to pay margin money they did not owe.
5 If you found in favor of plaintiff Richard Gardner, what damages do you award to this plaintiff on this claim, as damages for defendant Wesley's breach of fiduciary duty are explained in Final Jury Instruction No. 11?
A.

____

Monetary losses, in the amount of $_______________, or
B.

____

"Benefit of the bargain" damages, in the amount of $_______________, or
C.

____

Nominal damages in the amount of $1.00.
D. Only answer this question if you awarded damages to this plaintiff on this claim, and checked box "I" above as one of the ways that defendant Wesley breached its fiduciary duty to plaintiff Richard Gardner. What amount of the total damages in box 5a or box 5b, if any, did you award against defendant Wesley based on the breach of fiduciary duty identified in box "I"? $_______________
6 Punitive Damages

(If you have found in favor of plaintiff Richard Gardner, you may award punitive damages as punitive damages are explained in Final Instruction 10.

Do you find by the greater weight of clear, convincing, and satisfactory evidence that the conduct of defendant Wesley constituted willful and wanton disregard for the rights of another? (If your answer to this question is "No," do not answer the remaining questions in this section but go on to consider the defendant's counterclaim of breach of contract.)

____ Yes

____ No

What amount of punitive damages, if any do you award against defendant Wesley? $ ________
Was the conduct of defendant Wesley directed specifically at plaintiff Richard Gardner? ____ Yes



____ No

Only answer this question if you awarded punitive damages to this plaintiff on this claim, and checked box "I" above as one of the ways that defendant Wesley breached its fiduciary duty to plaintiff Richard Gardner. What amount of the total punitive damages, if any, did you award against defendant Wesley based on the breach of fiduciary duty identified in box "I"? $_______________



DEFENDANT WESLEY'S COUNTERCLAIM OF BREACH OF CONTRACT
1 On defendant Wesley's counterclaim of breach of contract, as explained in Final Jury Instruction No. 8, in whose favor do you find? (If your answer is in favor of defendant Wesley, go on to line 2, but if your answer is in favor of plaintiff Richard Gardner, go on to consider plaintiff Edward Otis's breach of contract claim.)

_____ Plaintiff Richard Gardner


_____ Defendant Wesley
2 If you found in favor of defendant Wesley, what damages do you award to defendant Wesley on this claim, as damages for plaintiff Richard Gardner's breach of contract are explained in Final Jury Instruction No. 11?




____
The difference between the market price of the grain at the time Wesley learned of the breach and the contract price of the grain, in the amount of $_______________, or
____ Nominal damages in the amount of $1.00.








Date: ________________ Time: ________________



To be signed only if the verdict is unanimous.



____________________________ ____________________________

FOREPERSON JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR







As to plaintiff Edward Otis, we, the jury, unanimously find as follows:



PLAINTIFF EDWARD OTIS'S CLAIM OF BREACH OF CONTRACT
1 On plaintiff Edward Otis's claim of breach of contract, as explained in Final Jury Instruction No. 6, in whose favor do you find? (If your answer is in favor of plaintiff Edward Otis, go on to line 2, but if your answer is in favor of defendant Wesley, go on to consider the plaintiff's breach-of-fiduciary-duty claim.)

_____ Plaintiff Edward Otis


_____ Defendant Wesley
2 If you found in favor of plaintiff Edward Otis, what damages do you award to this plaintiff on this claim, as damages for defendant Wesley's breach of contract are explained in Final Jury Instruction No. 11?




____
The increased dollar value that this plaintiff would have received had Wesley fully performed the contract, in the amount of $_______________, or
____ Nominal damages in the amount of $1.00.
3 Punitive Damages

(If you have found in favor of plaintiff Edward Otis, you may award punitive damages as punitive damages are explained in Final Instruction 10.

Do you find by the greater weight of clear, convincing, and satisfactory evidence that the conduct of defendant Wesley constituted willful and wanton disregard for the rights of another? (If your answer to this question is "No," do not answer the remaining questions in this section but go on to consider plaintiff's breach-of-fiduciary-duty claim.) ____ Yes



____ No

What amount of punitive damages, if any do you award against defendant Wesley? $ ________
Was the conduct of defendant Wesley directed specifically at plaintiff Edward Otis? ____ Yes



____ No





PLAINTIFF EDWARD OTIS'S CLAIM OF BREACH OF FIDUCIARY DUTY
1 On plaintiff Edward Otis's claim of breach of fiduciary duty, as explained in Final Jury Instruction No. 7, do you find that Wesley owed a fiduciary duty to plaintiff Edward Otis? (If your answer is in favor of plaintiff Edward Otis, go on to line 2, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) _____ Yes



_____ No

2 As explained in Final Jury Instruction No. 7, do you find that Wesley breached the fiduciary duty owed to plaintiff Edward Otis? (If your answer is in favor of plaintiff Edward Otis, go on to line 3, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) ____ Yes





_____ No

3 As explained in Final Jury Instruction No. 7, do you find that the breach of the fiduciary duty Wesley owed to plaintiff Edward Otis was the proximate cause of damage to plaintiff Edward Otis? (If your answer is in favor of plaintiff Edward Otis, go on to line 4, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) _____ Yes





_____ No

4 If you found in favor of plaintiff Edward Otis on questions 1 through 3, in which of the following ways identified in Final Jury Instruction No. 7, beginning on page 33, do you find that defendant Wesley's breach of its fiduciary duty was a proximate cause of damage to plaintiff Edward Otis? (Please mark all that apply.)
A.



____

Wesley failed to inform plaintiffs of Wesley's need of a source of unlimited funds to maintain the flex-hedge program and that it had not obtained prior approval of its lender.
B.



____

Wesley misrepresented to plaintiffs that the flex-hedge program allowed plaintiffs to "capture the carry" as Wesley itself did in hedging its grain.
C.



____

Wesley failed to adopt a set of internal controls that would allow Wesley to adequately monitor the flex-hedge program and to contend with adverse market conditions.
D.

____

Wesley wrote more flex-hedge programs than Wesley knew could be margined through adverse market conditions.
E.

____

Wesley failed to adequately warn plaintiffs of all the material risks inherent in the flex-hedge program.
F.



____

Wesley encouraged plaintiffs to deliver on the cash market and roll the flex-hedge contracts when Wesley knew it was against plaintiffs' economic interests to do so.
G.



____

Wesley took the "other side" of plaintiffs' July 1996 flex-hedge positions and using the plaintiffs' flex-hedge positions to conceal Wesley's speculative trading losses.
H.





____

Wesley conspired with other cooperatives to make unreasonable demands on plaintiffs to pay Wesley's margin and deliver grain in an attempt to conceal Wesley's inability to fund the flex-hedge program.
I.





____

Wesley as part of a conspiracy with other cooperatives, used false and misleading comments to turn the community against plaintiffs as a means to force plaintiffs to pay margin money they did not owe..
5 If you found in favor of plaintiff Edward Otis, what damages do you award to this plaintiff on this claim, as damages for defendant Wesley's breach of fiduciary duty are explained in Final Jury Instruction No. 11?
A.

____

Monetary losses, in the amount of $_______________, or
B.

____

"Benefit of the bargain" damages, in the amount of $_______________, or
C.

____

Nominal damages in the amount of $1.00.
D. Only answer this question if you awarded damages to this plaintiff on this claim, and checked box "I" above as one of the ways that defendant Wesley breached its fiduciary duty to plaintiff Edward Otis. What amount of the total damages in box 5a or box 5b, if any, did you award against defendant Wesley based on the breach of fiduciary duty identified in box "I"? $_______________
6 Punitive Damages

(If you have found in favor of plaintiff Edward Otis, you may award punitive damages as punitive damages are explained in Final Instruction 10.

Do you find by the greater weight of clear, convincing, and satisfactory evidence that the conduct of defendant Wesley constituted willful and wanton disregard for the rights of another? (If your answer to this question is "No," do not answer the remaining questions in this section but go on to consider the defendant's counterclaim of breach of contract.)

____ Yes

____ No

What amount of punitive damages, if any do you award against defendant Wesley? $ ________
Was the conduct of defendant Wesley directed specifically at plaintiff Edward Otis? ____ Yes



____ No

Only answer this question if you awarded punitive damages to this plaintiff on this claim, and checked box "I" above as one of the ways that defendant Wesley breached its fiduciary duty to plaintiff Edward Otis. What amount of the total punitive damages, if any, did you award against defendant Wesley based on the breach of fiduciary duty identified in box "I"? $_______________



DEFENDANT WESLEY'S COUNTERCLAIM OF BREACH OF CONTRACT
1 On defendant Wesley's counterclaim of breach of contract, as explained in Final Jury Instruction No. 8, in whose favor do you find? (If your answer is in favor of defendant Wesley, go on to line 2, but if your answer is in favor of plaintiff Edward Otis, go on to consider plaintiff James Otis's breach of contract claim.)

_____ Plaintiff Edward Otis


_____ Defendant Wesley
2 If you found in favor of defendant Wesley, what damages do you award to defendant Wesley on this claim, as damages for plaintiff Edward Otis's breach of contract are explained in Final Jury Instruction No. 11?




____
The difference between the market price of the grain at the time Wesley learned of the breach and the contract price of the grain, in the amount of $_______________, or
____ Nominal damages in the amount of $1.00.








Date: ________________ Time: ________________



To be signed only if the verdict is unanimous.



____________________________ ____________________________

FOREPERSON JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR







As to plaintiff James Otis, we, the jury, unanimously find as follows:



PLAINTIFF JAMES OTIS'S CLAIM OF BREACH OF CONTRACT
1 On plaintiff James Otis's claim of breach of contract, as explained in Final Jury Instruction No. 6, in whose favor do you find? (If your answer is in favor of plaintiff James Otis, go on to line 2, but if your answer is in favor of defendant Wesley, go on to consider the plaintiff's breach-of-fiduciary-duty claim.)

_____ Plaintiff James Otis


_____ Defendant Wesley
2 If you found in favor of plaintiff James Otis, what damages do you award to this plaintiff on this claim, as damages for defendant Wesley's breach of contract are explained in Final Jury Instruction No. 11?




____
The increased dollar value that this plaintiff would have received had Wesley fully performed the contract, in the amount of $_______________, or
____ Nominal damages in the amount of $1.00.
3 Punitive Damages

(If you have found in favor of plaintiff James Otis, you may award punitive damages as punitive damages are explained in Final Instruction 10.

Do you find by the greater weight of clear, convincing, and satisfactory evidence that the conduct of defendant Wesley constituted willful and wanton disregard for the rights of another? (If your answer to this question is "No," do not answer the remaining questions in this section but go on to consider plaintiff's breach-of-fiduciary-duty claim.) ____ Yes



____ No

What amount of punitive damages, if any do you award against defendant Wesley? $ ________
Was the conduct of defendant Wesley directed specifically at plaintiff James Otis? ____ Yes



____ No





PLAINTIFF JAMES OTIS'S CLAIM OF BREACH OF FIDUCIARY DUTY
1 On plaintiff James Otis's claim of breach of fiduciary duty, as explained in Final Jury Instruction No. 7, do you find that Wesley owed a fiduciary duty to plaintiff James Otis? (If your answer is in favor of plaintiff James Otis, go on to line 2, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) _____ Yes



_____ No

2 As explained in Final Jury Instruction No. 7, do you find that Wesley breached the fiduciary duty owed to plaintiff James Otis? (If your answer is in favor of plaintiff James Otis, go on to line 3, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) ____ Yes





_____ No

3 As explained in Final Jury Instruction No. 7, do you find that the breach of the fiduciary duty Wesley owed to plaintiff James Otis was the proximate cause of damage to plaintiff James Otis? (If your answer is in favor of plaintiff James Otis, go on to line 4, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) _____ Yes





_____ No

4 If you found in favor of plaintiff James Otis on questions 1 through 3, in which of the following ways identified in Final Jury Instruction No. 7, beginning on page 33, do you find that defendant Wesley's breach of its fiduciary duty was a proximate cause of damage to plaintiff James Otis? (Please mark all that apply.)
A.



____

Wesley failed to inform plaintiffs of Wesley's need of a source of unlimited funds to maintain the flex-hedge program and that it had not obtained prior approval of its lender.
B.



____

Wesley misrepresented to plaintiffs that the flex-hedge program allowed plaintiffs to "capture the carry" as Wesley itself did in hedging its grain.
C.



____

Wesley failed to adopt a set of internal controls that would allow Wesley to adequately monitor the flex-hedge program and to contend with adverse market conditions.
D.

____

Wesley wrote more flex-hedge programs than Wesley knew could be margined through adverse market conditions.
E.

____

Wesley failed to adequately warn plaintiffs of all the material risks inherent in the flex-hedge program.
F.



____

Wesley encouraged plaintiffs to deliver on the cash market and roll the flex-hedge contracts when Wesley knew it was against plaintiffs' economic interests to do so.
G.



____

Wesley took the "other side" of plaintiffs' July 1996 flex-hedge positions and using the plaintiffs' flex-hedge positions to conceal Wesley's speculative trading losses.
H.





____

Wesley conspired with other cooperatives to make unreasonable demands on plaintiffs to pay Wesley's margin and deliver grain in an attempt to conceal Wesley's inability to fund the flex-hedge program.
I.





____

Wesley as part of a conspiracy with other cooperatives, used false and misleading comments to turn the community against plaintiffs as a means to force plaintiffs to pay margin money they did not owe.
5 If you found in favor of plaintiff James Otis, what damages do you award to this plaintiff on this claim, as damages for defendant Wesley's breach of fiduciary duty are explained in Final Jury Instruction No. 11?
A.

____

Monetary losses, in the amount of $_______________, or
B.

____

"Benefit of the bargain" damages, in the amount of $_______________, or
C.

____

Nominal damages in the amount of $1.00.
D. Only answer this question if you awarded damages to this plaintiff on this claim, and checked box "I" above as one of the ways that defendant Wesley breached its fiduciary duty to plaintiff James Otis. What amount of the total damages in box 5a or box 5b, if any, did you award against defendant Wesley based on the breach of fiduciary duty identified in box "I"? $_______________
6 Punitive Damages

(If you have found in favor of plaintiff James Otis, you may award punitive damages as punitive damages are explained in Final Instruction 10.

Do you find by the greater weight of clear, convincing, and satisfactory evidence that the conduct of defendant Wesley constituted willful and wanton disregard for the rights of another? (If your answer to this question is "No," do not answer the remaining questions in this section but go on to consider the defendant's counterclaim of breach of contract.)

____ Yes

____ No

What amount of punitive damages, if any do you award against defendant Wesley? $ ________
Was the conduct of defendant Wesley directed specifically at plaintiff James Otis? ____ Yes



____ No

Only answer this question if you awarded punitive damages to this plaintiff on this claim, and checked box "I" above as one of the ways that defendant Wesley breached its fiduciary duty to plaintiff James Otis. What amount of the total punitive damages, if any, did you award against defendant Wesley based on the breach of fiduciary duty identified in box "I"? $_______________



DEFENDANT WESLEY'S COUNTERCLAIM OF BREACH OF CONTRACT
1 On defendant Wesley's counterclaim of breach of contract, as explained in Final Jury Instruction No. 8, in whose favor do you find? (If your answer is in favor of defendant Wesley, go on to line 2, but if your answer is in favor of plaintiff James Otis, go on to consider plaintiffs Ronald and Debra Schmidt's breach of contract claim.)

_____ Plaintiff James Otis


_____ Defendant Wesley
2 If you found in favor of defendant Wesley, what damages do you award to defendant Wesley on this claim, as damages for plaintiff James Otis's breach of contract are explained in Final Jury Instruction No. 11?




____
The difference between the market price of the grain at the time Wesley learned of the breach and the contract price of the grain, in the amount of $_______________, or
____ Nominal damages in the amount of $1.00.








Date: ________________ Time: ________________



To be signed only if the verdict is unanimous.



____________________________ ____________________________

FOREPERSON JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR







As to plaintiffs Ronald and Debra Schmidt, we, the jury, unanimously find as follows:



THE SCHMIDT PLAINTIFFS' CLAIM OF BREACH OF CONTRACT
1 On the Schmidt plaintiffs' claim of breach of contract, as explained in Final Jury Instruction No. 6, in whose favor do you find? (If your answer is in favor of the Schmidt plaintiffs, go on to line 2, but if your answer is in favor of defendant Wesley, go on to consider the plaintiffs' breach-of-fiduciary-duty claim.)

_____ Schmidt Plaintiffs


_____ Defendant Wesley
2 If you found in favor of the Schmidt plaintiffs, what damages do you award to these plaintiffs on this claim, as damages for defendant Wesley's breach of contract are explained in Final Jury Instruction No. 11?




____
The increased dollar value that these plaintiffs would have received had Wesley fully performed the contract, in the amount of $_______________, or
____ Nominal damages in the amount of $1.00.
3 Punitive Damages

(If you have found in favor of the Schmidt plaintiffs, you may award punitive damages as punitive damages are explained in Final Instruction 10.

Do you find by the greater weight of clear, convincing, and satisfactory evidence that the conduct of defendant Wesley constituted willful and wanton disregard for the rights of another? (If your answer to this question is "No," do not answer the remaining questions in this section but go on to consider plaintiffs' breach-of-fiduciary-duty claim.) ____ Yes



____ No

What amount of punitive damages, if any do you award against defendant Wesley? $ ________
Was the conduct of defendant Wesley directed specifically at the Schmidt plaintiffs? ____ Yes



____ No





THE SCHMIDT PLAINTIFFS' CLAIM OF BREACH OF FIDUCIARY DUTY
1 On the Schmidt plaintiffs' claim of breach of fiduciary duty, as explained in Final Jury Instruction No. 7, do you find that Wesley owed a fiduciary duty to the Schmidt plaintiffs? (If your answer is in favor of the Schmidt plaintiffs, go on to line 2, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) _____ Yes



_____ No

2 As explained in Final Jury Instruction No. 7, do you find that Wesley breached the fiduciary duty owed to the Schmidt plaintiffs? (If your answer is in favor of the Schmidt plaintiffs, go on to line 3, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) ____ Yes





_____ No

3 As explained in Final Jury Instruction No. 7, do you find that the breach of the fiduciary duty Wesley owed to the Schmidt plaintiffs was the proximate cause of damage to the Schmidt plaintiffs? (If your answer is in favor of the Schmidt plaintiffs, go on to line 4, but if your answer is in favor of defendant Wesley, go on to consider the defendant's counterclaim of breach of contract.) _____ Yes





_____ No

4 If you found in favor of the plaintiffs on questions 1 through 3, in which of the following ways identified in Final Jury Instruction No. 7, beginning on page 33, do you find that defendant Wesley's breach of its fiduciary duty was a proximate cause of damage to the Schmidt plaintiffs? (Please mark all that apply.)
A.



____

Wesley failed to inform plaintiffs of Wesley's need of a source of unlimited funds to maintain the flex-hedge program and that it had not obtained prior approval of its lender.
B.



____

Wesley misrepresented to plaintiffs that the flex-hedge program allowed plaintiffs to "capture the carry" as Wesley itself did in hedging its grain.
C.



____

Wesley failed to adopt a set of internal controls that would allow Wesley to adequately monitor the flex-hedge program and to contend with adverse market conditions.
D.

____

Wesley wrote more flex-hedge programs than Wesley knew could be margined through adverse market conditions.
E.

____

Wesley failed to adequately warn plaintiffs of all the material risks inherent in the flex-hedge program.
F.



____

Wesley encouraged plaintiffs to deliver on the cash market and roll the flex-hedge contracts when Wesley knew it was against plaintiffs' economic interests to do so.
G.



____

Wesley took the "other side" of plaintiffs' July 1996 flex-hedge positions and using the plaintiffs' flex-hedge positions to conceal Wesley's speculative trading losses.
H.





____

Wesley conspired with other cooperatives to make unreasonable demands on plaintiffs to pay Wesley's margin and deliver grain in an attempt to conceal Wesley's inability to fund the flex-hedge program.
I.





____

Wesley as part of a conspiracy with other cooperatives, used false and misleading comments to turn the community against plaintiffs as a means to force plaintiffs to pay margin money they did not owe.
5 If you found in favor of the Schmidt plaintiffs, what damages do you award to these plaintiffs on this claim, as damages for defendant Wesley's breach of fiduciary duty are explained in Final Jury Instruction No. 11?
A.

____

Monetary losses, in the amount of $_______________, or
B.

____

"Benefit of the bargain" damages, in the amount of $_______________, or
C.

____

Nominal damages in the amount of $1.00.
D. Only answer this question if you awarded damages to these plaintiffs on this claim, and checked box "I" above as one of the ways that defendant Wesley breached its fiduciary duty to the Schmidt plaintiffs. What amount of the total damages in box 5a or box 5b, if any, did you award against defendant Wesley based on the breach of fiduciary duty identified in box "I"? $_______________
6 Punitive Damages

(If you have found in favor of the Schmidt plaintiffs, you may award punitive damages as punitive damages are explained in Final Instruction 10.

Do you find by the greater weight of clear, convincing, and satisfactory evidence that the conduct of defendant Wesley constituted willful and wanton disregard for the rights of another? (If your answer to this question is "No," do not answer the remaining questions in this section but go on to consider the defendant's counterclaim of breach of contract.)

____ Yes

____ No

What amount of punitive damages, if any do you award against defendant Wesley? $ ________
Was the conduct of defendant Wesley directed specifically at the Schmidt plaintiffs? ____ Yes



____ No

Only answer this question if you awarded punitive damages to these plaintiffs on this claim, and checked box "I" above as one of the ways that defendant Wesley breached its fiduciary duty to the Schmidt plaintiffs. What amount of the total punitive damages, if any, did you award against defendant Wesley based on the breach of fiduciary duty identified in box "I"? $_______________



DEFENDANT WESLEY'S COUNTERCLAIM OF BREACH OF CONTRACT
1 On defendant Wesley's counterclaim of breach of contract, as explained in Final Jury Instruction No. 8, in whose favor do you find? (If your answer is in favor of defendant Wesley, go on to line 2.)

_____ Schmidt Plaintiffs


_____ Defendant Wesley
2 If you found in favor of defendant Wesley, what damages do you award to defendant Wesley on this claim, as damages for the Schmidt plaintiffs' breach of contract are explained in Final Jury Instruction No. 11?




____
The difference between the market price of the grain at the time Wesley learned of the breach and the contract price of the grain, in the amount of $_______________, or
____ Nominal damages in the amount of $1.00.










Date: ________________ Time: ________________



To be signed only if the verdict is unanimous.



____________________________ ____________________________

FOREPERSON JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR