* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-10702 

_____________________

HERBERT R GRAFF; CARL W MANGUS; STEVE FEDORKO; ED J

PAYNE; LARRY FLOOD; VINCE SCARICH; OTTO NASS,

Plaintiffs-Appellees,

v.

DONALD L FIELD, JR,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

_________________________________________________________________

August 19, 1999

Before KING, Chief Judge, and REYNALDO G. GARZA and JOLLY,

Circuit Judges.

KING, Chief Judge:*

Defendant-appellant Donald Field, Jr. appeals an adverse

judgment following a jury verdict in favor of plaintiffsappellees on their state-law claims that he fraudulently sold

them securities in an oil-drilling concern. Field argues that

the district court erroneously denied him summary judgment on

plaintiffs-appellees’ federal securities claims and improperly

maintained supplemental jurisdiction over plaintiffs-appellees’

state-law claims. Field also contends that there is insufficient
2

evidence to support the jury’s findings that Field committed

common-law fraud. We affirm the judgment.

I. FACTUAL BACKGROUND

This case arises from the sale of securities issued by Tekna

Synergy Corporation (Tekna) between January and September 1992. 

Tekna obtained approximately $1.5 million through the sale of

securities to investors, including over $750,000 from plaintiffsappellees (plaintiffs), and represented that the proceeds would

be used to drill both horizontal and vertical shafts for three

oil wells. Tekna did not disclose, however, that other oil

companies had already drilled and abandoned vertical shafts for

these wells, and that therefore Tekna did not need to perform

vertical drilling.

Defendant-appellant Donald Field, Jr. is a licensed attorney

who incorporated Tekna and served as a director and its president

through September 1992. Field acted as the chief executive

officer and supervised and controlled the business affairs of

Tekna. Field stipulated that he assisted outside attorneys in 

preparing the prospectuses that were delivered to plaintiffs and

other potential investors, and he testified that he reviewed the

prospectuses prior to their distribution and “was satisfied with

the language of what they put together.” These prospectuses

falsely represented that Tekna would spend approximately $1.4

million for the vertical drilling of the three wells.

The Securities and Exchange Commission (the SEC) brought

suit against Tekna in the United States District Court for the
 

1 Section 78j provides in relevant part:

It shall be unlawful for any person, directly or indirectly,

by the use of any means or instrumentality of interstate

commerce or of the mails . . . [t]o use or employ, in

connection with the purchase or sale of any security . . .

any manipulative or deceptive device or contrivance in

contravention of such rules and regulations as the [SEC] may

prescribe as necessary or appropriate in the public interest or

for the protection of investors.

 15 U.S.C. § 78j. Under SEC Rule 10b-5, it is unlawful for any

person “[t]o make any untrue statement of a material fact or to

omit to state a material fact necessary in order to make the

statements made, in the light of the circumstances under which

they were made, not misleading . . . in connection with the

purchase or sale of any security.” 17 C.F.R. § 240.10b-5 (1998).

3

Northern District of Texas in 1993 (the SEC action). The SEC

sought an injunction preventing Tekna from violating federal

securities laws in connection with the sale of securities in the

form of fractional undivided interests in oil and gas wells or

investment contracts. The SEC action was assigned to United

States District Judge John McBryde, and the district court issued

an injunction and ultimately entered judgment in favor of the SEC

based on consent decrees entered by the parties.

II. PROCEDURAL HISTORY

Plaintiffs filed suit against Tekna’s officers, including

Field, in the United States District Court for the Northern

District of Texas in October 1993 (the 1993 action). Plaintiffs

alleged that Tekna and its officers had made fraudulent

misrepresentations in the sale of Tekna securities in violation

of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C.

§ 78j, and SEC Rule 10b-5, 17 C.F.R. § 240.10b-5;1 the Texas

Securities Act, TEX. BUS. & COM. CODE ANN. § 27.01; and the
4

Deceptive Trade Practices-Consumer Protection Act, TEX. BUS. &

COM. CODE ANN. §§ 17.41-.63. Further, plaintiffs alleged that

Tekna and its officers had engaged in common-law fraud and

breached fiduciary duties they owed plaintiffs by selling them

Tekna securities. The 1993 action was also assigned to Judge

McBryde, and trial was scheduled to commence on April 24, 1995.

On March 31, 1995, Field filed a petition under Chapter 13

of the Bankruptcy Code in the United States Bankruptcy Court for

the Northern District of California. See 11 U.S.C. § 1301-1330. 

The district court ordered that plaintiffs decide whether to (1)

seek to lift the automatic stay and proceed against Field in the

1993 action or (2) dismiss Field from the 1993 action and pursue

their claims against him in bankruptcy court. On April 21, 1995,

plaintiffs moved to dismiss Field from the 1993 action and stated

an intent to pursue their claims in the bankruptcy court. The

district court dismissed plaintiff’s claims against Field without

prejudice on April 24, 1995. Plaintiffs prevailed at trial

against the remaining Tekna officers and ultimately obtained a

judgment against them.

Field filed an application to dismiss his bankruptcy case on

November 6, 1996. The bankruptcy court granted the application

the following day, and on November 14, 1996, the clerk of the

bankruptcy court issued notice that Field’s bankruptcy case had

been dismissed. Plaintiffs filed the instant suit on January 7,

1997, again alleging that Field violated federal securities laws,

the Texas Securities Act, and the Texas Deceptive Trade
 

2 Section 78i(e) provides that “[n]o action shall be

maintained to enforce any liability created under this section,

unless brought within one year after the discovery of the facts

constituting the violation and within three years after such

violation.”

 

3 Section 1367(c) provides that a district court 

may decline to exercise supplemental jurisdiction over a

claim . . . if--

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or

claims over which the district court has original

jurisdiction,

(3) the district court has dismissed all claims over which

it has original jurisdiction, or

(4) in exceptional circumstances, there are other compelling

reasons for declining jurisdiction.

5

Practices-Consumer Protection Act, and engaged in common-law

fraud in the sale of Tekna securities to plaintiffs.

Field filed a motion for summary judgment on plaintiffs’

federal securities claims and for dismissal of plaintiffs’ statelaw claims on February 10, 1997. Field asserted that he was

entitled to summary judgment under 15 U.S.C. § 78i(e)2 because

more than three years had elapsed since the alleged violation and

that therefore plaintiffs could not proceed on their federal

claims. Field further argued that plaintiffs’ state-law claims

must be dismissed because supplemental jurisdiction under 28

U.S.C. § 1367©3 would no longer be appropriate once summary

judgment was entered. Plaintiffs opposed Field’s motion for

summary judgment, arguing that the dismissal of Field’s

bankruptcy case restored the status quo ante as though Field’s

bankruptcy petition had never been filed and that it would be
6

inequitable for Field to benefit under the statute of limitations

as a result of his “manipulation” of the bankruptcy process.

The district court denied Field’s summary judgment motion

without explanation on March 5, 1997. The case proceeded to

trial, which was scheduled for July 14, 1997. On July 9, 1997,

plaintiffs filed a motion to abandon and dismiss their federal

securities claims against Field, leaving only state-law claims

for trial. The district court granted the motion, and the jury

returned a verdict in favor of plaintiffs on their claims under

both the Texas Securities Act and common-law fraud. Field sought

judgment as a matter of law, arguing that the district court

lacked subject matter jurisdiction because plaintiffs’ federal

securities claims were barred by the statute of limitations and

that the jury’s findings on common-law fraud were based on

insufficient evidence.

The district court entered judgment against Field for

approximately $3.8 million based on plaintiffs’ fraud cause of

action on June 4, 1998. The court stated that it “had no reason

to change” its March 1997 ruling on the statute of limitations

issue, and that otherwise “Field would have been permitted to

manipulate the bankruptcy laws in a highly inappropriate manner

to defeat claims against him.” The court stated that its

conclusion was not based on equitable tolling, but rather on its

view that “plaintiffs’ action against defendant was actually

filed . . . in October 1993 when plaintiffs filed their initial

suit.” The district court further determined that sufficient
7

evidence was presented to support the jury’s verdict on commonlaw fraud. Field timely appeals.

III. DISCUSSION

Field argues again in this appeal that the district court

erred by denying his motion for summary judgment on plaintiffs’

federal securities claims because those claims were barred by the

statute of limitations. Field asserts that plaintiffs’ federal

claims were “clearly barred by [the] Supreme Court opinion” in

Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S.

350 (1991) [hereinafter Lampf], and that therefore the district

court “had no discretion to retain” plaintiffs’ state-law claims. 

Further, even if the district court did have discretion to retain

plaintiffs’ state-law claims, Field argues that its retention of

these claims constituted an abuse of discretion because his

motion for summary judgment “was filed at the very outset of the

litigation.” Finally, Field contends that the district court

erroneously denied him judgment as a matter of law because

“[t]here is no more than a scintilla of evidence in the record to

support the jury’s verdict” on plaintiffs’ common-law fraud

claims. We address these arguments in turn.

A. Statute of Limitations

We review de novo the district court’s decision denying

Field summary judgment on his claim that plaintiffs’ federal

claims are time-barred. See Texas Manufactured Housing Ass’n v.

City of Nederland, 101 F.3d 1095, 1099 (5th Cir. 1996). Summary

judgment is appropriate where “the pleadings, depositions,
8

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law.” FED. R. CIV. P. 56(c). We note,

however, that the statute of limitations issue that we now

consider is relevant only because Field argues that the district

court erroneously retained supplemental jurisdiction over

plaintiffs’ state-law claims-–plaintiffs voluntarily dismissed

the federal securities claims that Field argues are time-barred

and the judgment appealed from is based only on the jury’s

verdict that Field engaged in common-law fraud.

The limitations period for plaintiffs’ claims under § 10(b)

of the Securities Exchange Act and SEC Rule 10b-5 is that

prescribed in 15 U.S.C. § 78i(e)–-one year from the date of

discovery of the facts constituting the alleged violation or

three years from the date of the transaction. See Lampf, 501

U.S. at 364. It is undisputed that the transactions at issue

here occurred no later than September 1992, but plaintiffs did

not file the instant suit until January 1997. Furthermore,

“[b]ecause the purpose of the 3-year limitation is clearly to

serve as a cutoff,” plaintiffs’ federal claims cannot be

considered timely as a result of equitable tolling. Id. at 363

(“[I]t is evident that the equitable tolling doctrine is

fundamentally inconsistent with the 1-and-3-year structure.”). 

Nor does plaintiffs’ filing of the 1993 action operate to toll

the limitations period with respect to Field because plaintiffs
 

4 Section 108(c) provides that

[I]f applicable nonbankruptcy law . . . fixes a period for

commencing or continuing a civil action in a court other

than a bankruptcy court on a claim against the debtor, or

against an individual with respect to which such individual

is protected under section 1201 or 1301 of this title, and

such period has not expired before the date of the filing of

the petition, then such period does not expire until the

later of–-

(1) the end of such period, including any suspension of such

period occurring on or after the commencement of the case;

or

(2) 30 days after notice of the termination or expiration of

the stay . . . with respect to such claim.

11 U.S.C. § 108(c). Neither party argued, and the district court

did not mention, whether § 108(c) applies to plaintiffs’ federal

securities claims until after the district court entered final

judgment, and the notice of appeal had been filed, in June 1998. 

9

voluntarily dismissed Field from that action in April 1995. See

Basco v. American Gen. Ins. Co., 43 F.3d 964, 965-66 (5th Cir.

1994) (“A federal statute of limitations is not tolled when the

plaintiff files a claim that later is voluntarily dismissed.”);

Taylor v. Bunge Corp., 775 F.2d 617, 619 (5th Cir. 1985); see

also 9 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE

§ 2367 (1995) (“The statute of limitations is not tolled by

bringing an action that later is dismissed voluntarily under

[Federal Rule of Civil Procedure] 41(a).”).

Plaintiffs contend on appeal that the district court

properly denied Field summary judgment on their federal

securities claims under the doctrine of equitable estoppel and

that their claims are timely under 11 U.S.C. § 108(c).4 

Plaintiffs argue that the Lampf decision prevents only the

equitable tolling of a claim under the discovery rule, and that
10

their federal claims should be considered timely under equitable

estoppel because “it was [Field’s] bankruptcy proceedings . . .

which prevented [plaintiffs] from prosecuting the federal

securities causes of action against him.” Plaintiffs further

argue that their claims are timely under 11 U.S.C. § 108(c)

because the limitations period is suspended during the pendency

of a bankruptcy proceeding under Texas law and Field offered no

evidence indicating that they received notice of the dismissal of

his bankruptcy petition more than thirty days before filing the

instant suit.

Even if plaintiffs are correct in their contention that

equitable estoppel survives the Supreme Court’s determination in

Lampf that “tolling principles do not apply” to the limitations

period for federal claims under § 10(b) of the Securities

Exchange Act or SEC Rule 10b-5, we still must reject plaintiffs’

argument that their claims are properly considered timely under

the doctrine. “Under the doctrine of equitable estoppel, a

defendant is estopped from asserting a limitations defense when

its conduct induced or tricked a plaintiff into allowing a filing

deadline to pass.” McAllister v. FDIC, 87 F.3d 762, 767 (5th

Cir. 1996); see also Tregenza v. Great Am. Communications Co., 12

F.3d 717, 721 (7th Cir. 1993) (describing equitable estoppel as

where “the plaintiff might have the required information–-actual

knowledge of the violation or inquiry notice, as the case may 

be--yet be thwarted from suing in time by misrepresentations or

other actions by the defendant; for example, the defendant might
11

have promised not to plead the statute of limitations.”). We

fail to understand how Field’s bankruptcy filing can be said to

have induced plaintiffs into allowing the limitations period to

run when plaintiffs had already filed suit against Field at the

time he filed his bankruptcy petition. Furthermore, even if

Field’s bankruptcy petition did perform such a function, § 108(c)

provides plaintiffs relief from such an inducement by allowing

them an additional thirty days to file suit following the

dismissal of the bankruptcy petition. See Hazen First State Bank

v. Speight, 888 F.2d 574, 577 (8th Cir. 1989) (“The purpose of

section 108(c) is to prevent a debtor from taking advantage of

the bankruptcy scheme by filing for bankruptcy and then waiting

for the statute of limitations to run on the creditor’s claim.”).

We also must reject plaintiffs’ argument that their federal

securities claims are timely under § 108(c). Plaintiffs waited

almost two months after the clerk issued notice that Field’s

bankruptcy petition had been dismissed, and plaintiffs have

offered no evidence suggesting the existence of a genuine issue

of material fact, and have not even argued, that they filed this

suit within thirty days of receiving such notice. Plaintiffs do

argue that the term “any suspension” in § 108(c)(1) “include[s] a

suspension granted by state law, whether it be by statutory or by

common law,” and that because Texas law provides for the tolling

of limitations periods during bankruptcy, their federal

securities claims should be similarly tolled under § 108(c)(1). 

Although it may be appropriate for a federal court to look to
12

state law in determining the impact of a bankruptcy proceeding on

the limitations period for a state-law cause of action, see

Pettibone Corp. v. Easley, 935 F.2d 120, 121 (7th Cir. 1991)

(stating that “[f]ederal law assured the plaintiffs [in a

personal injury action] 30 days in which to pick up the baton; if

states want to give plaintiffs additional time [by tolling the

statute of limitations during the bankruptcy proceeding], that is

their business”), we must rely on federal law in determining the

appropriate limitations period for plaintiffs’ federal securities

claims. See Lampf, 501 U.S. at 359, 363. We therefore conclude

that plaintiffs’ federal claims were time-barred and that the

district court should have granted Field summary judgment on

those claims.

B. Supplemental Jurisdiction

Our determination that the district court should have

granted summary judgment on plaintiffs’ federal securities

claims, however, does not compel the conclusion that the district

court erred by exercising supplemental jurisdiction over

plaintiffs’ state-law claims. Rather, we review a district

court’s decision to exercise supplemental jurisdiction over

pendent state-law claims for an abuse of discretion, standing in

the place of the district court as of the filing of the motion to

dismiss “and not with the benefit of hindsight.” Parker &

Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580, 585, 587

(5th Cir. 1992) (noting that “a court cannot obtain jurisdiction

over a case merely by trying it”). “Our review is guided by the
13

relevant statutory provisions governing the exercise of

supplemental jurisdiction, see 28 U.S.C. § 1367(c), as well as

the Supreme Court’s articulation of the scope and nature of

district courts’ discretion in exercising jurisdiction over

pendent state law claims.” McClelland v. Gronwaldt, 155 F.3d

507, 519 (5th Cir. 1998). We therefore consider both the

provisions of 28 U.S.C. § 1367(c) and the balance of the relevant

factors of judicial economy, convenience, fairness, and comity in

determining whether the district court abused its discretion by

retaining jurisdiction over plaintiffs’ state-law claims. See

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350-51 (1988);

United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); Batiste

v. Island Records, Inc., 179 F.3d 217, 227 (5th Cir. 1999).

Field argues that the district court “had no discretion to

retain” plaintiffs’ state-law claims because the district court

lacked subject matter jurisdiction over plaintiffs’ federal

securities claims. Field asserts that subject matter

jurisdiction was lacking because plaintiffs’ federal claims “were

clearly barred” under Lampf and their “sole motivation in

asserting violations of Rule 10b-5 . . . [was to] obtain the

benefit of [a] federal forum to try [their] state law causes of

action.” Field relies on several of our cases that are based on

the Supreme Court’s determination in Bell v. Hood, 327 U.S. 678,

682-83 (1946), that “a suit may sometimes be dismissed for want

of jurisdiction where the alleged claim under the Constitution or

federal statutes clearly appears to be immaterial and made solely
14

for the purpose of obtaining jurisdiction or where such a claim

is wholly insubstantial and frivolous.” See also Parker &

Parsley Petroleum, 972 F.2d at 585 n.6 (“We have held that the

Hood standard is met only where the plaintiff’s claim ‘has no

plausible foundation’ or is clearly foreclosed by a prior Supreme

Court decision.”) (quoting Williamson v. Tucker, 645 F.2d 404,

416 (5th Cir. May 1981)). Plaintiffs’ federal securities claims

have not met this “onerous standard.” Id. The Supreme Court did

not consider in Lampf how the statute of limitations for a

federal securities action is affected by a prior suit that was

voluntarily dismissed when the defendant filed a bankruptcy

petition, or by the bankruptcy proceeding itself. Furthermore,

we cannot say that plaintiffs’ argument regarding equitable

estoppel is without a “plausible foundation” when the district

court, without the benefit of the parties’ arguments under 11

U.S.C. § 108(c), relied upon it and the Seventh Circuit has

stated that “there may still be room” for such an argument after

Lampf. Tregenza, 12 F.3d at 721.

Although we have expressed as a “general rule” that district

courts should decline to exercise jurisdiction over pendent state

law claims when all federal claims are dismissed or otherwise

eliminated from a case prior to trial, “this rule is neither

mandatory nor absolute.” Batiste, 179 F.3d at 227; see Cohill,

484 U.S. at 350 n.7 (“[I]n the usual case in which all federallaw claims are eliminated before trial, the balance of factors to

be considered under the pendent jurisdiction doctrine . . . will
15

point toward declining to exercise jurisdiction over the

remaining state-law claims.”). Thus, while the fact that the

district court should have granted Field summary judgment on

plaintiffs’ federal securities claims “provides ‘a powerful

reason to choose not to continue to exercise jurisdiction,’ no

single factor is dispositive in this analysis.” McClelland, 155

F.3d at 519 (quoting Cohill, 484 U.S. at 351). We therefore

review the district court’s decision denying Field’s motion to

dismiss plaintiffs’ state-law claims “in light of the specific

circumstances of the case at bar.” Id.

We conclude that the factor of judicial economy weighs

heavily in favor of the district court’s decision to exercise

jurisdiction over plaintiffs’ state-law claims. The 1993 action,

involving the same plaintiffs and the same claims, had been

pending in the district court for a year and a half when the

district court ordered them to either seek to have the automatic

stay lifted or voluntarily dismiss Field from the suit on the eve

of trial, and Field had participated in discovery and motion

hearings before Judge McBryde and the preparation of a pretrial

order. Judge McBryde continued to preside over the 1993 action

during trial, and had been the presiding judge in the earlier SEC

action. See Parker & Parsley Petroleum, 972 F.2d at 587 (“[T]he

amount of judicial resources that the case has consumed is most

important for our analysis as an indication of the familiarity of

the forum with the case and its ability to resolve the dispute

efficiently.”). We have no doubt that Judge McBryde had become
16

intimately familiar with the merits of plaintiffs’ claims at the

time Field filed his motion to dismiss plaintiffs’ state-law

claims, thus demonstrating that further proceedings in the

district court prevented redundancy and conserved scarce judicial

resources. See Batiste, 179 F.3d at 228. 

The factors of convenience, comity, and fairness to the

parties also favor the district court’s decision to retain

jurisdiction over plaintiffs’ state-law claims. The significant

discovery that occurred in the 1993 action, including depositions

of all plaintiffs, facilitated a shortened discovery schedule and

an expedited trial date. Plaintiffs had pursued their federal

securities claims against Field in a timely manner in the 1993

action, and it was only after Field filed a bankruptcy petition

and the district court ordered plaintiffs to either voluntarily

dismiss their claims against Field or seek a lifting of the

automatic stay that plaintiffs’ federal claims became timebarred. Furthermore, we note that the district court would have

already resolved in the 1993 action any difficult state-law

questions now arising from plaintiffs’ state-law claims. Cf.

Parker & Parsley Petroleum, 972 F.3d at 589 (stating that

principles of comity point toward dismissal because “[a]ll of the

remaining legal issues of the case, of course, are of state

law . . . [and] are difficult ones”). We therefore conclude that

the factors of comity, convenience, and fairness to the parties

point strongly toward our conclusion that the district court did
17

not abuse its discretion by retaining plaintiffs’ state-law

claims. 

After considering and weighing all the factors present in

this case, and relying especially on the amount of discovery that

had already taken place and on our conclusion that the district

court was intimately familiar with plaintiffs’ claims, we thus

conclude that the district court’s retention of plaintiffs’

state-law claims following Field’s motion for summary judgment on

plaintiffs’ federal claims was within its discretion. We

therefore proceed to consider Field’s contention that the

district court erroneously denied him judgment as a matter of law

because there is insufficient evidence supporting the jury’s

verdict that he committed common-law fraud.

C. Sufficiency of the Evidence

A party is entitled to judgment as a matter of law only if

“there is no legally sufficient evidentiary basis for a

reasonable jury to find for [the other] party on that issue.” 

FED. R. CIV. P. 50(a). “Judgment as a matter of law is proper

only if[] ‘the facts and inferences point so strongly and

overwhelmingly in favor of one party that the Court believes that

reasonable men could not arrive at a contrary verdict . . . .’” 

Buford v. Howe, 10 F.3d 1184, 1187 (5th Cir. 1994) (quoting

Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en

banc)).
18

We have carefully reviewed the record and agree with the

district court’s determination that there is sufficient evidence

of Field’s participation for the jury to find him liable for

common-law fraud. See Elliott v. Tilton, 89 F.3d 260, 264 (5th

Cir. 1996) (“In general, “[a] person cannot be held liable for a

fraudulent representation unless he made it himself or authorized

another to make it for him or in some way participated

therein . . . .”) (quoting First Dallas Petroleum, Inc. v.

Hawkins, 727 S.W.2d 640, 648 (Tex. App.--Dallas 1987, no writ));

Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 375 (Tex.

1984) (“A corporation’s employee is personally liable for

tortious acts which he directs or participates in during his

employment.”). Field testified that he supervised and controlled

the business affairs of Tekna, and he stipulated that he assisted

outside attorneys in preparing the prospectuses that contained

fraudulent statements. Furthermore, Field testified that he read

and reviewed these prospectuses before they were distributed to

plaintiffs. We therefore affirm the district court’s decision

denying Field judgment as a matter of law.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.