[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-11821

________________________

D.C. Docket No. 2:18-cv-01130-AKK

WILLIAM H. WHITEHEAD as power of attorney

for Lewis E. Whitehead, Jr. pursuant to a power of

attorney signed by Lewis E. Whitehead, Jr.,

 Plaintiff-Appellant,

 versus

BBVA COMPASS BANK,

JAMES C. PUCKETT,

 Defendants-Appellees.

________________________

On Appeal from the United States District Court 

for the Northern District of Alabama

________________________

(November 6, 2020)

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Before NEWSOM and BRANCH, Circuit Judges, and RAY,* District Judge.

RAY, District Judge: 

We consider in this appeal whether the District Court correctly granted 

summary judgment against the Appellant (who was an investor) on his various 

claims that the Appellees (a bank officer and the bank with whom he was 

employed) wrongfully failed to inform the Appellant of the risks involved in 

making a certain investment. When this investment sold for a loss, this lawsuit 

ensued. Because we find that the alleged wrongful conduct of the Appellees did 

not cause the economic loss for which the Appellant sues, we affirm the district 

court’s grant of summary judgment in favor of the Appellees.

I.

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary 

judgment is proper “if the movant shows that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56. “Rule 56[] mandates the entry of summary judgment ... against a party 

who fails to make a showing sufficient to establish the existence of an element 

essential to that party’s case, and on which that party will bear the burden of proof 

at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party 

* Honorable William M. Ray II, United States District Judge for the Northern District of Georgia, 

sitting by designation.

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bears the initial burden of proving the absence of a genuine issue of material fact. 

Id. at 323. The burden then shifts to the nonmoving party, who is required to “go 

beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at 

324 (citation and internal quotation marks omitted). A dispute about a material 

fact is genuine “if the evidence is such that a reasonable jury could return a verdict 

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 

(1986).

On motion for summary judgment, the Court must construe the evidence and 

all reasonable inferences arising from it in the light most favorable to the nonmoving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); see also 

Anderson, 477 U.S. at 255. Any factual disputes will be resolved in the nonmoving party’s favor when sufficient competent evidence supports the non-moving 

party’s version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 

1276, 1278 (11th Cir. 2002) (a court is not required to resolve disputes in the nonmoving party’s favor when that party’s version of events is supported by 

insufficient evidence). However, “mere conclusions and unsupported factual 

allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. 

England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain 

Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere 

‘scintilla’ of evidence supporting the opposing party’s position will not suffice; 

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there must be enough of a showing that the jury could reasonably find for that 

party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 

477 U.S. at 252).

II.

The pertinent facts in this case are as follows. Lewis E. Whitehead, Jr., 

acting through his son William H. Whitehead (collectively, “Whitehead”), opened 

an account with BBVA Compass Bank (Compass Bank) to consolidate his 

financial accounts. His contact at Compass Bank was with James C. Puckett 

(“Puckett”), who was a senior officer of the bank. In electing to move his father’s 

money to Compass Bank, William Whitehead placed great confidence in Puckett 

and allegedly vested Puckett with responsibility and control over his father’s 

funds.

1

At the same time, the record demonstrates that Whitehead agreed to disperse 

some of his funds to another investment company. Puckett introduced Whitehead 

to Wesley McGugin, who was an investment officer at BBVA Compass 

Investment Solutions (“BCIS”), which was a related company to Compass Bank. 

Thereafter, Whitehead opened a brokerage account at BCIS using funds from the 

Compass Bank account. Whitehead executed documents authorizing BCIS and 

1 Of course, despite his engagement of Puckett and Compass Bank, William Whitehead 

maintained ultimate control and responsibility for his father’s funds.

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McGugin to act as his “registered representative” for the purchase of brokered 

certificates of deposit which were not affiliated with or the obligation of Compass 

Bank. This lawsuit focuses on a certificate of deposit issued by the Bank of the 

West (the “West CD”), which McGugin and BCIS acquired for the Whitehead 

portfolio. After holding the West CD for approximately 19 months, BCIS and 

McGugin surrendered the West CD for a $38,000 loss. Whitehead seeks to recover 

this $38,000 loss as part of his damages in this action.2

Interestingly, Whitehead has sued neither BCIS nor McGugin, even though 

it is undisputed that McGugin directed the surrender of the West CD in his 

capacity as Whitehead’s investment representative at BCIS. Rather, Puckett and 

Compass Bank are the objects of Whitehead’s displeasure. Arguing that Puckett 

(and only Puckett) was responsible for the investment of Whitehead’s funds and 

that Puckett did not inform him of the potential penalty if the West CD was sold 

prior to maturity (which was the source of the $38,000 loss), Whitehead contends

that Puckett and Compass Bank are liable for damages for securities fraud pursuant 

to Security Exchange Commission Rule 10(b)(5) and §10b of the Security

Exchange Act of 1934, as well as for state common law claims of negligence, 

breach of fiduciary duty, suppression, and fraud.

2

 The total amount of compensatory damages sought ($100,000) also includes brokerage 

fees. These brokerage fees were earned by BCIS and McGugin as they managed the 

Whitehead portfolio at BCIS.

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Importantly, Puckett has never worked nor has he ever been an investment 

officer for BCIS or its parent company. As a result, he never managed 

Whitehead’s BCIS brokerage account, even if he did manage Whitehead’s account 

at Compass Bank. This is not disputed by anything in the record before us.3

Puckett and Compass Bank dispute Whitehead’s claims for a variety of 

reasons, including that Puckett did not have responsibility for Whitehead’s 

decision to invest in the West CD, had no duty to ensure that Whitehead 

understood the risk in doing so, and had no discussions with Whitehead about 

making this investment. Puckett and Compass argue that, if Whitehead has been 

wronged, he should look the way of BCIS and McGugin.

III.

When considering Whitehead’s claims at the summary judgment stage, the 

district court was not impressed with his arguments, as it granted summary

judgment to Puckett and Compass for a variety of reasons. We agree with the 

district court in finding that this litigation is inapt. Assuming without deciding that 

Puckett (and Compass Bank by extension) urged Whitehead to purchase the West 

CD and did not explain the penalty if it were surrendered prior to maturity, as there 

3

 Although Puckett recommended investments in structured CDs (like the West CD), the 

record shows that Puckett managed Whitehead’s account at Compass Bank and not his

BCIS account that included the West CD. 

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arguably is some evidence in the record to suggest as much, nonetheless as a 

matter of law they have no responsibility for the loss claimed here. It was BCIS 

and McGugin, not Puckett and Compass Bank, who served as Whitehead’s 

representative for purchase of structured certificates of deposit transactions; it was 

BCIS and McGugin, not Puckett and Compass Bank, who served as Whitehead’s 

representative in the purchase of the West CD at issue; and it was BCIS and 

McGugin, not Puckett and Compass Bank, who made the decision to and did 

surrender the West CD on Whitehead’s behalf for the $38,000 loss. 

And, importantly, even if the trier of fact were to agree that Puckett urged 

Whitehead to purchase the West CD (which is an allegation that Puckett and 

Compass Bank deny), the actual purchase of the West CD caused no harm. 

Instead, the damages suffered by Whitehead arise from the decision to surrender

the West CD. No one, including Whitehead, contends that Compass Bank and 

Puckett had anything to do with the surrender of the West CD, nor is there any 

evidence that Puckett even knew that it was being sold. Quite clearly, then, any 

role which Puckett may have played in recommending that Whitehead purchase the 

West CD could not be the proximate cause of the loss which Whitehead suffered.

It is true, as Whitehead argues in this appeal, that the parties disagree 

whether Puckett urged Whitehead to buy the West CD. Puckett says that he did 

not, while William Whitehead says that he did. We assume, as we must for 

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purposes of the motion for summary judgment, that Whitehead’s allegation that 

Puckett lobbied in favor of this investment is true. And, we also accept 

Whitehead’s contention that Puckett never informed him that there would be a 

penalty associated with an early surrender of the West CD. If the disposition of 

this case turned on the resolution of these disputed facts, then we might agree that 

the district court erred in granting summary judgment. But, it does not and we do 

not.

To succeed in a securities fraud case, a plaintiff must demonstrate that he 

suffered economic loss caused by the material misrepresentation or omission 

charged to the defendant. Ledford v. Peeples, 657 F.3d 1222, 1248 (11th Cir. 

2011). “It is insufficient to show that Defendants induced the Plaintiff[ ] into deals 

that subsequently went bad.” Michael K. Sheils Trust Dated March 13, 2003 v. 

Kuhn, 2010 WL 11507728, at *7 (M.D. Fla. 2010). And, “[i]f the investment 

decision is induced by misstatements or omissions that are material and that are 

relied on by the claimant, but are not the proximate reason for the pecuniary loss, 

recovery ... is not permitted. Robbins v. Koger Properties, Inc., 116 F.3d 1441, 

1447 (11th Cir. 1997).4

4

 The lack of this causation element is also fatal to Whitehead’s state law claims for 

negligence, breach of fiduciary duty, suppression, and fraud. See Alabama Great S. R. Co. 

v. Raney, 37 So. 2d 150 (Ala. Ct. App. 1948) (in negligence claims, “plaintiff must 

show...that defendant owed plaintiff a duty, that there was a breach of such duty, and that 

injury resulted as a proximate consequence of the breach”); Aliant Bank, a Div. of 

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As we have discussed, Puckett and Compass Bank were not involved in 

either the recommendation to surrender the West CD or in the actual surrender

which resulted in the loss at issue in this case. McGugin testified that it was his 

recommendation to Whitehead to surrender the West CD and that Whitehead 

agreed with his recommendation. Whitehead, on the other hand, denies that 

McGugin (or anyone else for that matter) ever consulted with him or obtained his 

approval to liquidate the West CD. However, Whitehead has offered no competent 

evidence to contradict Puckett’s testimony that Puckett was not involved in the 

surrender of the West CD or that he even knew about it in advance. Of course, 

from Puckett’s perspective, there was no reason for him to know because the West 

CD wasn’t held in Whitehead’s Compass Bank account and was, instead, held by 

BCIS in the account managed by McGugin. 

The salient point here is that it was the surrender of the West CD, not its 

purchase, that generated the loss incurred by Whitehead. Puckett and Compass 

USAmeribank v. Four Star Investments, Inc., 244 So. 3d 896, 907 (Ala. 2017) (“the 

elements of a breach-of-fiduciary-duty claim are the existence of a fiduciary duty, a breach 

of that duty, and damage suffered as a result of that breach”); Boswell v. Liberty Nat’l Life 

Ins. Co., 643 So. 2d 580 (Ala. 1994) (suppression requires “(1) that the defendant 

suppressed a material fact, (2) that the defendant had a duty to communicate that material 

fact, either because of a confidential relationship between the parties or because of the 

particular circumstances of the case, and (3) that the plaintiff suffered actual injury as a 

result of the suppression”); Exxon Mobil Corp. v. Alabama Dept. of Conservation and 

Natural Resources, 986 So.2d 1093(Ala. 2007) (“the elements of fraud are (1) a false 

representation (2) of a material existing fact (3) reasonably relied upon by the plaintiff (4) 

who suffered damage as a proximate consequence of the misrepresentation”).

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Bank were not involved in the decision to surrender or the act of surrendering the 

West CD. Thus, they cannot fairly be accused of being the proximate cause of 

Whitehead’s harm when the CD was surrendered. If Whitehead neither agreed to 

the sale of the West CD nor was even consulted, as he alleges, then any failure to 

inform him of the resulting penalty is beside the point. It wasn’t his lack of 

knowledge about the penalty which caused the loss, but rather, the decision of 

McGugin and BCIS to surrender the West CD when there was a penalty for doing 

so. Thus, if there is to be any complaint for doing so, such claim would be against 

Whitehead’s representatives in this transaction, McGugin and BCIS, not Puckett 

and Compass Bank.5

In summary, we do not express any opinion as to whether Whitehead has, or 

would have timely had, a valid claim against either McGunin or BCIS for their 

decision to surrender the West CD or the resulting loss. Rather, we conclude 

simply that there is no viable claim against Puckett or Compass Bank. No act or 

omission asserted against them was the cause of the loss suffered by Whitehead, 

and as such, the district court properly granted summary judgment in their favor.

AFFIRMED.

5 Of course, a defendant can proximately cause an injury without being the last mover in the 

chain of events culminating in that injury. In this particular case, though, the economic loss was 

too attenuated from the defendants’ alleged earlier misconduct to raise a genuine issue of 

material fat as to causation.

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