*Of the District of Columbia, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 03-1319

SERGE TRIGANO,

Plaintiff, Appellant,

v.

BAIN & CO., INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

 Boudin, Chief Judge,

Torruella, Circuit Judge,

and Oberdorfer,* Senior District Judge.

Max Folkenflik, Folkenflik & McGerity, with whom Karen D.

Hurvitz and Carl D. Stursberg, Stursberg & Veith, were on brief,

for appellant.

Joseph L. Kociubes, Bingham McCutchen LLP, with whom Mark W.

Batten, Bingham McCutchen LLP, was on brief, for appellee.

August 17, 2004
1 Bain et Compagnie S.N.C., or "Bain France." The U.S.

parent--the only defendant named here--claims that it was not

directly involved in any of the allegedly tortious activity. Bain

further argues that Trigano should be judicially estopped from

holding it responsible for the acts of Bain France since Trigano

kept this case in the United States in the face of a forum non

conveniens motion only by insisting that the U.S. parent had

participated directly in the challenged conduct. Because we

resolve this case on other grounds, we need not reach this issue.

We therefore can--and, for the sake of simplicity, do--use "Bain"

to refer without distinction to both parent and subsidiary. 

-2-

OBERDORFER, Senior District Judge. Serge Trigano was the

President and Chief Executive Officer of the Paris-based

international resort and travel giant Club Méditerranée, S.A.

(better known as "Club Med"). In October 1996, Trigano issued a

warning that Club Med's profits for the fiscal year ending that

month would be significantly below market expectations. When the

company's financial results became available--which was not until

February 1997, due to systemic delays--profits below what Trigano

warned of, combined with significant restructuring charges,

produced a loss of 740,000,000 French francs (over $100 million).

That same month, Trigano resigned. Shortly thereafter, he sued

Bain & Co., Inc. ("Bain"), the United States-based owner of a

French management consulting company1 Club Med hired to perform a

strategic audit in the wake of the October profit warning. 

The complaint alleged a variety of theories arising out

of what Trigano termed a "boardroom coup" that forced him to

resign. In essence, it alleged that Bain conspired with Club Med's

largest shareholder to produce a fraudulent and misleading report
-3-

critical of Trigano. An alleged co-conspirator then secretly and

improperly sent that report to a key Club Med shareholder. The

report, says Trigano, cost him the support of that key shareholder.

Trigano claims that this loss of support--and his reasonable

expectation that others would follow that shareholder’s lead--

caused him to resign. 

The district court granted Bain's motion for judgment as

a matter of law at the close of Trigano's case. Trigano appeals.

Concluding that Trigano did not present enough evidence for a

reasonable trier of fact to find that Bain's alleged conduct was

the "cause" of Trigano's losing his job, we affirm.

I

We begin with a de novo examination of the record

evidence, focusing on the key issue of causation.

Club Med's 12-member Board of Directors was composed

primarily of representatives of its major shareholders, many of

which had longstanding relationships with Club Med. In 1996 and

1997, when the events at issue unfolded, Club Med's two largest

shareholders--Exor, S.A. ("Exor") and Caisse des Depots et

Consignations ("CDC")--had each invested over $100 million in Club

Med and collectively owned over 23% of Club Med stock. Each had

two Directors on the Board. Six other major shareholders held one

seat each. The remaining two Directors were Trigano and his

father, Gilbert Trigano, neither of whom owned shares in the
-4-

company at that time. Gilbert Trigano had been with Club Med since

shortly after its founding and was Chief Executive Officer and

Chairman of the Board until he resigned in 1993. His son, the

plaintiff here, then assumed those positions, having worked with

Club Med in various capacities for nearly three decades.

In October 1996, the price of Club Med's stock dropped

precipitously--17% in a single day--after Trigano warned that Club

Med's profits for that fiscal year would be between 100 and 150

million French francs, well below analysts' expectations. Those

expectations were fueled in part by what Trigano described as

misinterpretations of financial forecasts he had made the previous

month. (Trigano acknowledged that he knew his remarks had been

misunderstood, but decided not to issue a public correction at the

time.) In response to the profit warning, an Exor representative

on the Club Med Board of Directors--Tiberto Ruy Brandolini d'Adda

("Brandolini")--suggested Club Med hire a management consultant to

review the company's strategy.

Club Med solicited and received four bids, including one

from Bain. Trigano, for Club Med, chose Bain, in part because

Brandolini recommended Bain, which had done an earlier analysis of

Club Med for Exor. On January 8, 1997, Bain signed an agreement

with Club Med to perform a strategic audit of the company (the

"Strategic Audit"). The Bain partner responsible for the Strategic

Audit was Jean Marie Péan. Trigano created a Steering Committee
-5-

headed by Antoine Cachin, Club Med's Executive Vice President, to

oversee the study. A subcommittee--consisting of Péan, Cachin, an

Exor representative (Pascal Lebard), and an internal Club Med

auditor--served as the "Working Group" of the Steering Committee.

Throughout this time--both before and after Club Med

retained Bain--Péan met with various Exor executives to discuss,

among other things, the Strategic Audit. Neither Péan nor Exor

disclosed these meetings to Trigano or Cachin, or indeed to anyone

at Club Med. Trigano theorizes that these meetings evidence a

conspiracy between Bain and Exor, pursuant to which Bain helped

Exor engineer Trigano's ouster. Bain received substantial

increased business (and income) from clients affiliated with Exor

after Trigano resigned, thus, Trigano claims, demonstrating Bain's

incentive and reward for participating in the conspiracy. 

In February 1997, Club Med's accountants and auditors

completed their accounting for fiscal 1996, which had ended on

October 31. They advised Trigano of the financial results: a loss

of 740,000,000 French francs (over $100 million), including

significant restructuring charges and operating profits below those

Trigano had predicted in October. Before announcing these results

publicly, Trigano communicated directly or "through channels" to

individual directors the amount of the loss and his explanation of

it. Many of them were surprised and disappointed by these results.

On February 6, 1997, the audit committee of the Board met to review
-6-

the financial results; Trigano was "uncomfortable" with the

committee members' lack of responsiveness and participation at the

meeting and conceded that the meeting "didn't seem right."

On February 7, 1997, Club Med directors representing Exor

(Gianluigi Gabetti) and CDC (Phillippe Lagayette) called Trigano to

a meeting in Paris. Their summons was so insistent that Trigano

canceled a planned trip to the United States. At the meeting,

Gabetti and Lagayette told Trigano that they were "very unhappy"

with his performance and had decided to "get rid of [him] and to

fire [him]." These directors proposed that Trigano relinquish

control over day-to-day operations and become chair of a newly

created "supervisory board." When Trigano rejected this offer,

Gabetti and Lagayette told him to "take a week" to consider things

and then they would meet again.

Trigano then contacted the remaining directors to find

out whether they would continue to support him. He assumed Exor

and CDC were making similar contacts to consolidate support for

their position. Trigano or his father received assurances of

support from each of the six remaining directors over the next

week. Nippon Life Insurance Company ("Nippon Life") was a major

Club Med shareholder and its Chairman, Josei Itoh, a Club Med

director. On February 13, 1997, Trigano flew to Tokyo to meet with

Itoh, who expressed his "full support" for Trigano and promised to

send him a proxy for the upcoming Board meeting if he needed it. 
-7-

Around this time, on February 14, at the direction of

Exor, Péan produced the report that Trigano alleges to have been

misleading and fraudulent (the "February 14 report"). Péan

delivered that report to Exor on February 15, but--at Exor's

direction--did not provide it to Cachin or Trigano. The February

14 report did not recommend replacing Trigano or making any other

personnel changes, but Trigano argues that its emphasis on

management problems gave the inaccurate impression that Péan (and

thus Bain) believed Trigano should be terminated. This impression

allegedly reflected Exor's critical stance toward Club Med

management rather than Péan's own views. In fact, Péan believed at

that time, as he testified on cross-examination, that Club Med’s

management problems could best be resolved by "hir[ing] a Chief

Operating Officer to assist Trigano as Chief Executive Officer."

The February 14 report did not include any such recommendation. 

The February 14 report was not marked as a draft, though

it was the first iteration of what became Bain's initial report to

Club Med. Although Club Med had directed Bain to focus initially

on strategic rather than organizational issues, the February 14

report included significant criticism of Club Med's organizational

structures. In a section titled "Organizational failings," the

February 14 report identified, inter alia, the following problems:

the "new worldwide organization that has been set up is not working

and was not correctly thought out"; the "unsuitability of the
-8-

current organization is clear," including "total confusion" about

the respective roles of the head office and operational management;

"lack of efficient management systems"; and "lack of skills in many

areas." Trigano characterized the language and tone of the

February 14 report as strikingly harsh and negative.

Péan spent the weekend of February 15 and 16 revising

the February 14 report. He presented a revised version, dated

February 17, to Club Med management as his initial draft. This new

report toned down some of the harsher language and criticisms and

included more positive information. Among other things, the later

version changed the heading "Organizational failings" to "Strengths

and weaknesses of Club Méditerranée." As revised, the report said

that the "new worldwide organization" was "colliding with market

realities of [customer] flow and competition," rather than that it

was "not working" and "not correctly thought out." The "lack of

skills in many areas" became a "need to reinforce skills in many

areas," while "lack of efficient management systems" became "nonefficient management systems," and the "confusion" between the

roles of head office and operational management was no longer

"total." Trigano points to these revisions to show that the

February 14 report over-emphasized the negative in ways that did

not reflect Péan's true views and, in this sense, was misleading

and fraudulent. 
-9-

The February 17 draft underwent further revisions, with

input from Cachin, who signed off on behalf of Club Med on a final

report dated February 19, 1997 (the "February 19 report" or "final

report"). The final report included many of the criticisms in the

February 14 report as well as some new ones, including: 

The primary weakness of [Club Med] is a number

of organizational failings that have bogged

down its ability to produce an acceptable and

predictable level of profit over the past few

years. This weakness--a marked one in an

increasingly competitive environment--has a

potential to continue to produce the same

effects [i]f organizational changes are not

implemented rapidly in the three following

areas: management systems, skills, and

structure.

Nonetheless, Trigano does not allege that the February 19 report

was fraudulent or misleading, and he testified that this final

report did not contain the material that harmed him.

While Péan was revising and finalizing the Bain report,

he learned that Exor had circulated the February 14 report to

others. Péan did not mention to Cachin or Trigano the existence of

the February 14 report or its circulation to some members of the

Club Med Board of Directors.

On February 17, 1997, Trigano again met with Gabetti and

Lagayette of Exor and CDC. They again asked Trigano to resign.

They suggested that there might be a way for Trigano to retain a

modified version of his position while ceding authority over dayto-day operations. Trigano again refused to resign, and told them
-10-

that he had the "support of a big part of the Board, including

Nippon Life" and felt he had more than enough votes to defeat any

attempt to force his resignation. 

On the morning of February 18, 1997, a CDC employee

telephoned Nippon Life analyst Veronique Trançon in Paris and told

her that she would shortly receive a "strictly confidential" Bain

report which was being distributed to Club Med board members but

was to be kept secret from Club Med management. When Trançon then

received the February 14 report, she translated what she saw as key

excerpts from the French of the original into English and prepared

a summary of it. Trançon's superior in the Paris office, Toshiya

Nakamura, then prepared a Japanese summary from the English

translation and summary. Both the English and Japanese documents

were then sent to the Tokyo office (where it was already evening).

Trançon then translated the rest of the report into English, which

Nakamura translated into Japanese, with both versions again sent to

Tokyo. Trançon also provided her own opinions and recommendations

of what should be done in light of the report, which were also

translated into Japanese, with both versions again sent to Tokyo.

None of Nippon Life's translations, summaries or analyses of the

report--in either English or Japanese--were introduced at trial. 

The "chain of communication" from Paris to Tokyo went

from Trançon to Nakamura, then to the "staff" of a Mr. Nahara in

Tokyo, then to Nahara himself. Trançon testified that, of these
2 Bain takes the position that Trigano did not learn that

the Nippon Life proxy would not be forthcoming until February 20--

two days after he decided to resign. Bain introduced an affidavit

in which Trigano swore that "On February 20 Nippon Life told me

they could not provide me with a proxy . . . ." We cannot find

this as a fact. For purposes of this appeal, we must view the

evidence in the light most favorable to Trigano, that is, that he

thought he had lost Nippon Life's support as of February 18.

Trigano was not allowed to testify, on hearsay grounds, how he

came to this understanding, but proffered evidence that he learned

this from Cachin, who had allegedly been told by a Mr. Uno, who

Trigano described as a sometime "liaison" between Club Med and

Nippon Life. While what Trigano heard from Cachin is admissible as

to Trigano's state of mind, it is not admissible as evidence of the

truth of the underlying statements about Nippon Life's intentions.

-11-

employees, only Nahara communicated directly with Chairman Itoh.

Communications between Paris and Japan were primarily in Japanese,

which Trançon did not speak; Itoh spoke neither French nor English.

Only Itoh had the authority to decide whether Nippon Life would

provide a proxy for the Club Med Board meeting. 

Trançon characterized the tone of the report as "very

violent" and "very hostile." None of the problems the report

identified were news to Trançon, and she was aware of actions Club

Med management was taking to address all those problems. The

report did not convince her that Trigano should be replaced, and

she did not recommend supporting his ouster. Trançon testified

that, later on February 18, after sending materials to Tokyo,

Nakamura told her, in effect, that "as a result of the report, no

proxy" would be forthcoming. 

Trigano understood, as of February 18, that he had lost

the support of Nippon Life.2 Also on February 18, the
-12-

representative of another Club Med director, American Express,

called Trigano to suggest he accept the Exor/CDC proposal,

describing it as fair and sensible. Trigano was "shocked" by this

in light of the expression of support he had gotten from American

Express the previous week. Trigano did not ask--then or later--the

basis for this change of heart. Nor did he contact any of the

other Board members (including Nippon Life) to ask whether he still

had their support or to lobby for their support. Instead, Trigano

decided it was "better to resign" at that point. According to

Trigano, the loss of Nippon Life's proxy was critical to his

decision because Itoh was a very powerful member of the Board and

could be expected to influence other shareholders. Trigano

testified that "by losing the support of [Itoh] the battle was

over, I had to resign."

Trigano informed Exor and CDC on February 18 that he

would resign as Chief Executive Officer. That same day, Trigano

was told that Philipe Bourguignon, then head of Euro Disney, would

replace him. Trigano then negotiated the terms of his resignation

and signed a letter of resignation on February 20. Trigano

officially announced his resignation to the Board of Directors on

February 21, 1997 and nominated Bourguignon as the new Chief

Executive Officer. At that time, none of the directors objected,

asked any questions, or otherwise expressed support for Trigano or

concern about his replacement. Trigano became chair of Club Med's
3 The district judge granted the motion on the record after

oral argument. In doing so, he stated that his decision was "based

in essence on the arguments made in the defendant's motion and the

supporting briefs. In other words, I adopt them." He did not

issue a separate decision.

-13-

newly formed supervisory board, a position from which he resigned

in July 1997, after deciding that Bourguignon was not allowing him

to play the substantive role he had expected. 

Trigano negotiated severance payments from Club Med and

its American subsidiary totaling over $4.8 million. As part of the

settlement agreement with Club Med, Trigano "declare[d] that all

his rights have been addressed in full [and] renounce[d] any future

action of any type relative to the execution of the termination of

his contract."

II

The district court, along with the jury, heard six and a

half days of testimony, the majority from Trigano and Péan. At the

end of Trigano's case in chief, Bain moved for judgment as a matter

of law.3 The district court granted judgment on the following

grounds: (1) Trigano failed to offer any evidence of conspiracy as

promised in his opening statement; (2) Trigano did not "offer

sufficient proof to reach the jury on the critical element of

proximate cause"; (3) Trigano was estopped from asserting any claim

based on the alleged negligence of Péan and Bain France; (4) Bain

owed no duty to Trigano individually as distinguished from Bain's
-14-

corporate client, Club Med; and (5) the "economic loss rule

preclude[d] any recovery on Trigano's negligence claims." 

The district court's analysis of the causation issue

focused on the lack of evidence that the February 14 report had any

impact on the Club Med directors. Trigano and his father, who held

two of the twelve seats, were presumably not influenced by it. The

four directors representing the two largest stockholders sought

Trigano's removal before the February 14 report. There was no

evidence that five of the other six directors ever received, much

less saw or were influenced by, the February 14 report. 

As to Nippon Chairman Itoh, the district court carefully

traced the French February 14 report into the labyrinth which

served him and found no evidence that it penetrated to the

Chairman. The principal witness to the movement of the report

could "not testify from her own knowledge that Itoh or anyone else

in Japan even read the report, much less what, if any, effect it

had on Itoh's thinking." A reasonable jury could not find that the

February 14 report was "decisive for Itoh" because Trigano

proffered no evidence that the report was more likely to have

influenced Itoh's decision than other key factors, notably

including the "disastrous financial results for 1996 and Trigano's

inability to predict them."

The foregoing considered, the district court concluded

that Trigano's proof of causation utterly failed. 
-15-

III

"We review the grant of judgment as a matter of law de

novo." Cruz-Vargas v. R.J. Reynolds Tobacco Co., 348 F.3d 271, 275

(1st Cir. 2003). We view the evidence in the light most favorable

to the party against whom judgment was granted. We may affirm only

if we "find that, as a matter of law, the record would permit a

reasonable jury to reach only one conclusion." Katz v. City Metal

Co., 87 F.3d 26, 28 (1st Cir. 1996). A party "may not rely on

conjecture or speculation" to show that an issue should have gone

to the jury, but must present evidence that "make[s] the existence

of the fact to be inferred more probable than its nonexistence."

Resare v. Raytheon Co., 981 F.2d 32, 34 (1st Cir. 1992) (internal

quotation marks and citations omitted). "[A] mere scintilla of

evidence is not enough to forestall a directed verdict, especially

on a claim or issue as to which the burden of proof belongs to the

objecting party." Fashion House, 892 F.2d at 1088. 

IV

The principal issue on appeal is causation. Trigano

correctly points out that Bain uses the term "proximate cause"

improperly since the issue Bain raises is one of causation

simpliciter. The dispositive question is whether the February 14
4 For this reason, we need not reach the question Trigano

raises as to whether French or Massachusetts law should apply here.

The only conflict Trigano identifies between French law and

Massachusetts law is that the former requires "causation alone"

while the latter requires proximate cause for negligence claims.

Because our holding that Trigano did not submit sufficient evidence

of "causation alone" is equally dispositive under French or

Massachusetts law, there is no relevant conflict to resolve.

-16-

report was the cause of Trigano's job loss at all, not whether it

was so remote a cause that Bain should not be held responsible.4

Bain argues that Trigano did not introduce evidence

sufficient to persuade a reasonable jury that Bain's allegedly

tortious conduct caused him injury, and that none of Trigano's

theories of recovery can survive this basic failure of proof.

Trigano's theory of causation is that the February 14 report caused

him to lose the support of a key member of the Board of Directors,

without whose support he knew he could not maintain his position,

thus forcing him to resign to avoid dismissal. 

This theory piles speculation upon speculation.

Trigano's argument that the February 14 report is the only

plausible explanation for Nippon Life's withdrawal of support

discounts, without justification, his own actions. The fact is

that Trigano predicted profits of 100-150 million French francs for

fiscal 1996 in October, then had to advise the Club Med directors

in February 1997 that the audited loss for the year would be 740

million francs. In addition, among the gaps in the causal chain on

which Trigano relies:
-17-

 • There Is No Evidence that the February 14 Report Had Any

Effect on 11 of the 12 Directors. Of the 12 members of

the Board of Directors, two votes (those of Trigano and

his father) were presumably "sure votes" for Trigano

regardless of the report. Four votes (those of Exor and

CDC) were demonstrably against Trigano well before the

report was written and regardless of what it said. As to

the other six Club Med Directors, there is no evidence

that any of them, or any company they represented other

than Nippon Life, ever saw the February 14 report. 

 • There Is No Admissible Evidence from Which a Reasonable

Jury Could Conclude that the February 14 Report Caused

Nippon Life to Withhold Its Proxy. The only person at

Nippon Life with authority to decide whether to provide

a proxy to support Trigano was Chairman Itoh. There was

no evidence at trial that Itoh ever saw the February 14

report or any summary of it, much less saw it before

Trigano decided to resign on February 18, nor that Itoh

changed his mind about providing the proxy because of it.

Trigano purports to rely on Trançon's testimony

about the February 14 report to show that the report

influenced Nippon Life's decision, but her testimony is

not competent for this purpose.
5 Trigano argues that Bain failed to preserve its objection

to this testimony and thereby waived its right to challenge the use

of this testimony for any purpose whatsoever. In fact, Bain did

ask the district court to note its objection to this testimony

(which was given in response to a question from the court, even

though the court had previously upheld Bain's objections to similar

questions from Trigano). Trigano's claim that Bain's failure to

appeal this evidentiary decision waives this argument is mistaken.

A prevailing party may urge affirmance of a district court decision

on any ground, and no cross-appeal is required to defend a judgment

by challenging an underlying evidentiary ruling. See, e.g., Olsen

v. Correiro, 189 F.3d 52, 58 n.3 (1st Cir. 1999).

-18-

Trançon's testimony that her supervisor, Nakamura,

told her the proxy would not be issued "as a result of

the report" is not evidence that Itoh decided not to

issue the proxy based on the February 14 report. First,

the chain of communication through which Trançon said

information flowed from Tokyo--from Itoh to Nahara, from

Nahara to his staff, from Nahara's staff to Nakamura, and

from Nakamura to Trançon herself--demonstrates just how

many levels of hearsay preclude admitting Trançon's

report of Nakamura's statement for this purpose.5

Second, the statement as quoted by Trançon does not even

purport to be about Itoh's decision, as opposed to

Nakamura's opinion (or, for that matter, his prediction

of what would happen) or that of his contacts in Tokyo.

Moreover, the language barriers that required the

French original to be translated first into English and

then into Japanese create further difficulties. Neither
6 Bain goes too far when it argues that there was no

competent evidence that Nippon Life ever withdrew its support.

There was admissible evidence that Itoh promised Trigano a proxy,

-19-

Trançon's English translations or summaries nor

Nakamura's Japanese versions were introduced into

evidence, making it impossible for Trigano to show

whether, or the extent to which, they preserved the

aspects of the original draft he perceived to be

tortious. Contrary to Trigano's argument, this problem

is not solved--indeed, it may be exacerbated--by the fact

that Trançon sent her own "impressions and conclusions"

as to the report's negative tone to Tokyo. The question

is not whether Trançon's characterization of the report

injured Trigano, but whether the report itself did.

Trigano next argues that the timing of Nippon

Life's change of heart, coupled with the lack of evidence

as to other possible causes for it, is enough to allow an

inference in his favor. In support of this, he claims

"it became clear Nippon Life would not send the proxy"

on February 18, "within a few hours" of the report being

sent to Tokyo. However, there is no evidence that Itoh's

decision not to issue the proxy was made at that time,

rather than earlier or later. Trançon's testimony is no

more competent to show the timing of Itoh's decision than

to show his motivation.6 Nor can Trigano's own testimony
and that no proxy was provided before the Board meeting. This

alone allows an inference that, at some point, Nippon Life decided

not to send the promised proxy. It does not, however, demonstrate

when or why Nippon Life made this decision.

-20-

about when he learned that he would not be receiving the

proxy supply the missing information; that testimony was

admissible only as to Trigano's state of mind and not for

the truth of the underlying statements. 

Although Trigano faults Bain for not providing

some alternate explanation for Itoh's reversal, it is not

Bain's burden to do so. Moreover, Trigano overlooks

evidence weighing against his argument that the report is

the only plausible explanation for a director withdrawing

its support at that time. Contrary to Trigano's claim,

the fact that Itoh promised Trigano his proxy after

Trigano revealed Club Med's loss for fiscal 1996 does not

mean that the extent of that loss--or Trigano's failure

to predict it--did not influence his ultimate decision

not to provide a proxy. Indeed, a representative of

American Express--which also initially supported Trigano

after hearing those financial results--called Trigano to

withdraw its support on February 18. Yet there is no

evidence that American Express even received the February

14 report, undermining any inference that no other

factors were at work. Trigano himself testified that he
-21-

understood Exor and CDC were lobbying the other directors

to support his ouster during this time.

 • There Is No Evidence that the Allegedly Fraudulent or

Tortious Aspects of the February 14 Report Were Relevant

to Nippon Life's Decision. Since Trigano characterizes

the February 14 report as misleading and negative in a

way the February 19 report was not, Bain argues that

Trigano must show that the February 14 report affected

Itoh in a way the revised report would not have. While

Bain may go too far in suggesting Trigano must "prove"

this counter-factual, the underlying point is valid:

Trigano has the burden of proving that Nippon Life's

decision was based on the aspects of the February 14

draft that he contends were fraudulent. Trigano's

concession that the February 19 report was not tortious,

and that its distribution would not have cost him his

job, constrains this showing. The relevant inquiry is

not an objective one about the impact of the differences

on some hypothetical reasonable director, but the

subjective one of whether the differences between the

reports would affect their impact on Itoh. Indeed, it is

difficult to see how Trigano could show that the

complained-of aspects of the February 14 draft played the
7 Trigano claims in his Reply Brief that his references to

the February 19 report in his Complaint as the "'true' report" were

made before discovery. This is of no significance, however,

particularly since Trigano re-affirmed his characterization of the

February 19 report as accurate in his trial testimony.

-22-

causal role in Itoh's decision without any testimony from

the decision-maker himself.

Bain emphasizes that Trigano neither deposed nor

called as a witness Itoh or any other decision-makers or

members of the Board of Directors, even though he was

expressly authorized to depose these individuals and had

argued in response to forum non conveniens motions that

he could depose them more easily if the case remained in

the United States. While Trigano responds that it is

improper to consider the evidence that was not presented

rather than the evidence that was presented, he misses

the point. It is not that such evidence would have made

his case stronger, but that there are aspects of his case

that cannot be proven without evidence that could be

provided only by the Board members or decision-makers. 

Trigano attempts to dodge this problem by arguing

that the February 14 report should not be compared to the

revised report, but to Péan's real belief that Trigano

should not be replaced.7 This argument fails. While

Péan presumably had a duty not to include false or
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fraudulent claims in his report, he was under no

obligation to include an affirmative recommendation that

Trigano should keep his job. Moreover, even if Péan had

included such a statement, there is no evidence that this

would have had any impact on Itoh's decision.

 • Trigano's Claim that He Was "Forced" To Resign Is Too

Speculative To Support a Jury Verdict. Trigano claims he

decided to resign once he heard he had lost Nippon Life's

support because he considered Itoh so influential that he

anticipated losing the support of other Board members

without his support. Trigano's speculation about what

other Board members might have done is not evidence.

There is no evidence that Nippon Life's views actually

influenced any other Board members as to this--or,

indeed, any other--issue. When Trigano decided to resign

on February 18, neither he nor his father contacted Itoh

(or anyone else at Nippon Life) to ask the reason for

this change of heart or to respond to whatever concerns

might have prompted it. Nor did Trigano or his father

contact any other Board member who had previously

supported him to see if there was a way Trigano could

maintain his position. Even if Trigano could show that

Nippon Life's decision was caused by the February 14
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draft, there is no evidence this decision effectively

caused Trigano to lose his position.

Trigano argues that his resignation, even if

voluntary, does not break the chain of causation because

the jury could find that "the end and aim of the

conspiracy was to cause that resignation." In the total

context of this case, this argument is without merit.

Trigano cannot hold Bain responsible for the loss of his

job if he could have kept that job had he not resigned.

Trigano argues that his resignation should not be

considered voluntary because it was the product of the

defendant's deceit, and thus that it does not break the

chain of causation. An apparently voluntary resignation,

however, does not rise to the level of constructive

discharge unless it is objectively reasonable for the

employee to leave under the circumstances. See, e.g.,

GTE Prods. Corp. v. Stewart, 421 Mass. 22, 33-35 (1995)

(rejecting claim that employee who resigned was

constructively discharged based on his unreasonable

assumption that he would be dismissed). The cases

Trigano cites are not to the contrary. As the Supreme

Judicial Court of Massachusetts well put it long ago, a

plaintiff cannot recover where damages associated with

his fraudulently obtained resignation were "due to the
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exercise of his own judgment rather than the deceit of

the defendants inducing him to resign as manager."

Lowrie v. Castle, 225 Mass. 37, 48 (1916). 

Regardless of whether any of these gaps in Trigano's

proof would alone have been sufficient to justify taking this case

from the jury, when we consider them collectively, we are convinced

that no jury could reasonably have found that Trigano had proven

that Bain's conduct caused his injury. Because we affirm on this

ground, we do not reach the other grounds the district court gave

for its decision.

V

Trigano also challenges a number of the district court's

evidentiary rulings. 

He objects first to the exclusion of evidence of Bain's

dealings with Exor and Exor's alleged threat to sue Trigano if he

sued Bain. We need not reach this issue; this evidence goes only

to the existence of a conspiracy and is not relevant to the

dispositive causation issue.

Trigano next challenges the exclusion of a two-page

letter to him from Cachin, dated February 28, 1997, which discussed

the preparation and distribution of various drafts of the Bain

reports. Although Trigano objects to the court's characterization

of the letter as hearsay, he does not explain how its exclusion

harmed his case in any way. The letter does not include any
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significant information that was not introduced at trial through

other means. There is nothing in it that could change our analysis

of the issue of causation. If the trial judge erred, it was

harmless.

Trigano also complains that the district court wrongly

excluded evidence going to his state of mind, including what he was

told about Nippon Life’s proxy that led him to resign. While

evidence of what Trigano was told is indeed admissible as to his

state of mind, the district court ultimately allowed Trigano to

testify that, and explain why, learning that Nippon Life had

withdrawn its support led him to resign. Because the excluded

evidence would be cumulative for the claimed purpose, no harm was

done to Trigano by refusing to admit it. 

Finally, Trigano objects to the exclusion of testimony

from Trançon as to Nippon Life’s policy about recording

communication among Board members. Trigano argues this would have

established that there were no direct communications between Nippon

Life and other Board members that might have contributed to Nippon

Life's change of position. However, while Trançon was competent to

testify about procedures in the Paris office as to such

communications, Trigano did not establish that she knew enough

about procedures in the Tokyo office to testify knowledgeably that

any and all such contacts were relayed to her. Thus, Trançon's

proffered testimony could not show what Trigano wanted it to,
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namely, "that no communication [between Nippon Life and other Board

members] took place."

Accordingly, none of the challenged evidentiary rulings

provides a basis for reversal of the district court's decision.

Affirmed.