UNITED STATES COURT OF APPEALS

Tenth Circuit

Byron White United States Courthouse

1823 Stout Street

Denver, Colorado 80294

(303) 844-3157

Patrick J. Fisher, Jr. Elisabeth A. Shumaker

Clerk Chief Deputy Clerk

June 24, 1996

TO: ALL RECIPIENTS OF THE CAPTIONED OPINION

RE: 95-3005 Arst v. Stifel, Nicolaus

 June 11, 1996 by the Honorable Terry C. Kern

Please be advised of the following correction to the

captioned decision:

The attorneys were listed incorrectly with respect to

parties represented.

Please replace page one of the opinion with the revised

page one which has been included for your convenience.

Very truly yours,

Patrick Fisher, Clerk

Beth Morris

Deputy Clerk

encl
 

*The Honorable Terry C. Kern, United States District Judge

for the Northern District of Oklahoma, sitting by designation.

PUBLISH

FILED 6/11/96

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

____________________ 

RODGER M. ARST, )

)

Plaintiff-Appellant, )

)

vs. ) No. 95-3005

)

STIFEL, NICOLAUS & COMPANY, INC., )

and ODIS E. SHOAF, JR., )

)

Defendants-Appellees. )

____________________

Appeal from the United States District Court 

for the District of Kansas

(D.C. No. 93-1299-PFK) 

____________________

Joe Rebein of Shook, Hardy & Bacon, P.C., Kansas City, Missouri, 

(Barbara A. Harmon and Brett D. Leopold of Shook, Hardy & Bacon,

P.C. of Overland Park, Kansas, and Kurt A. Harper of Sherwood &

Harper, Wichita, Kansas with him on the brief) for PlaintiffAppellant.

Reggie C. Giffin of Morrison & Hecker, Kansas City, Missouri

(John C. Nettels, Jr. of Morrison & Hecker, Wichita, Kansas, and

James A. Walker of Triplett, Woolf & Garretson, L.L.P., Wichita,

Kansas, with him on the brief) for Defendants-Appellees.

____________________

Before BRORBY and McWILLIAMS, Circuit Judges, and KERN, District

Judge.*

____________________

KERN, District Judge.

____________________
2

In this appeal we are asked to consider whether the district

court properly granted Defendants’ motion for summary judgment. 

Plaintiff-Appellant Rodger M. Arst (“Arst”) sued DefendantsAppellees Stifel, Nicolaus & Company, Inc. (“Stifel Co.”) and

Odis E. Shoaf, Jr. (“Shoaf”), asserting claims under Kansas

common law for breach of fiduciary duty and claims under the

Kansas Securities Act, Kan. Stat. Ann. § 17-253 (1994), and the

Securities Exchange Act of 1934, 15 U.S.C. § 78(j) (1981). We

affirm the District Court’s grant of summary judgment in part and

reverse in part and remand for further proceedings.

I. Facts. In 1990, Physician Corporation of America (PCA)

engaged Stifel Co. to act as an accommodating broker for PCA

shares. Stifel Co. was to put together buyers and sellers of PCA

stock on an unsolicited basis, charging both parties a

commission. Stifel would not make recommendations concerning the

stock, nor make a market in the stock. (Although PCA had

originally asked Stifel Co. to serve as a market maker, Stifel

Co. had declined.) PCA advised its shareholders by mail that it

had made arrangements with Stifel Co. to accommodate the purchase

and sale of PCA stock and that shareholders should contact Odis

Shoaf, a senior vice president of Stifel Co., if they wanted to

buy or sell shares. On various occasions since 1990, Mr. Shoaf

purchased PCA shares for himself and family without revealing to

the shareholders that he was the purchaser. Stifel Co. had

instructed Shoaf not to disclose his purchases to PCA
3

shareholders because Stifel Co. wanted to remain a neutral gobetween and was concerned that Shoaf’s purchases could be

construed as recommendations. Shoaf asserts that he paid the

same amount as other buyers of the PCA shares minus his regular

commission.

Appellant Arst purchased 37,500 shares of PCA stock for

$2.00 in the 1980s, before Stifel Co. was engaged as an

accommodating broker. Around August 1992, Arst contemplated

selling his PCA shares. Arst called Shoaf on August 17 to

inquire about the price of the stock and the market for the

shares. Shoaf apparently told Arst some unfavorable facts and

opinions about PCA’s strength and future as a company. Shoaf did

not mention rumors circulating about PCA’s plans to go public--

rumors that Shoaf apparently had mentioned to other people. 

There is no evidence that Shoaf was privy to inside information. 

On August 18, 1996, Arst authorized Shoaf to sell all of his

37,500 PCA shares at $4.625 per share--the going price. Shoaf

sold some of Arst’s shares to third parties and, without telling

Arst, bought 10,110 shares for himself and his family on August

19. Shoaf testified that at the time Arst commissioned Shoaf to

sell the shares, Shoaf did not know whether he or his family

would purchase any of the shares. Prior to closing the

transaction, Arst signed a nonsolicitation letter that stated

that Shoaf had not solicited the sale and that Arst agreed not to

hold Stifel Co. or Shoaf responsible for any damages or other

liability arising out of the transaction. At the conclusion of
4

the transaction in August 1992, Stifel Co. sent Arst a

confirmation slip that stated the names of the buyers of his

shares would be furnished upon written request. At the time of

the closing, Arst did not inquire who had bought his shares.

In November 1992, PCA announced its plans to go public. In

December, PCA stock split four for three, and in March 1993, PCA

made a public offering at $15.25 per share. In April 1993, Arst

sent Shoaf and Stifel Co. a written request for the names of the

purchasers of his stock. Defendants refused to disclose the

names. Arst then filed suit in state court against Stifel Co.

and Shoaf, who removed the case to federal court. Defendants

ultimately revealed the names of the purchasers of Arst’s shares

after being compelled by court order. 

Arst brought claims against Shoaf and Stifel Co. under

Kansas common law for breach of fiduciary duty and claims under

the Kansas Securities Act, Kan. Stat. Ann. § 17-253, the

Securities Exchange Act of 1934, 15 U.S.C. § 78(j), and SEC Rules

10b-5 and 10b-10(a)(7)(i). Defendants filed a motion for summary

judgment. The District Court granted Defendants’ motion, holding

that SEC Rule 10b-10(a)(7)(i) did not provide a private cause of

action and that Defendants did not have the requisite fiduciary

duty to support liability under the remainder of Plaintiff’s

claims. Arst now appeals the district court’s order.
5

II. Discussion

 We review the district court's grant of summary judgment de

novo, applying the same standard as the district court under

Fed.R.Civ.P. 56(c). Universal Money Centers. v. American Tel. &

Tel. Co., 22 F.3d 1527, 1529 (10th Cir.), cert. denied, 115 S.Ct.

655 (1994). Summary judgment is appropriate if "there is no

genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law." Fed.R.Civ.P.

56(c). We examine the factual record and reasonable inferences

therefrom in the light most favorable to the nonmoving party. 

Id. If there is no genuine issue of material fact in dispute, we 

must determine whether the district court correctly applied the

law. Applied Genetics Intern. v. First Affiliated Securities ,

912 F.2d 1238, 1241 (10th Cir. 1990).

A. Cause of Action under Rule 10b-10(a)(7)(i). Arst brought

a claim under SEC Rule 10b-10(a)(7)(i), 17 C.F.R. § 240.10b10(a)(7)(i), for Defendants’ failure to disclose the names of the

buyers of his stock. The rule provides in relevant part:

Rule 10b-10. Confirmation of Transactions

(a) It shall be unlawful for any broker or dealer to

effect for or with the account of a customer any transaction

in, or to induce the purchase or sale by such customer of,

any security . . . unless such broker or dealer, at or

before completion of such transaction, gives or sends to

such customer written notification disclosing:

. . .

(7) If he is acting as agent for such customer,

for some other person, or for both such customer and

some other person,

(i) The name of the other person from whom

the security was purchased, or to whom it was

sold, for such customer or the fact that such

information will be furnished upon written request
6

of such customer . . . .

Defendants complied with their initial obligations under the Rule

by informing Arst at the completion of the transaction that the

names of the buyers of his shares would be furnished upon written

request; however, when Arst subsequently made such a written

request eight months later, Defendants refused to furnish the

names until compelled by court order.

Rule 10b-10(a)(7)(i), which was promulgated by the SEC

pursuant to § 10(b) of the Securities Exchange Act of 1934, 15

U.S.C. § 78(j), does not expressly provide for a private cause of

action for a violation of its terms. "Absent an express grant of

a private cause of action, a mere proscription of behavior does

not justify an inference of a private cause of action for its

violation; instead, there must be some evidence that Congress

intended one." Coosewoon v. Meridian Oil Co., 25 F.3d 920, 929

(10th Cir. 1994) (interpreting the Federal Oil and Gas Royalty

Management Act) (quoting Pullman v. Chorney, 712 F.2d 447, 449

(10th Cir. 1983)) (citing Transamerica Mortgage Advisors, Inc.

(TAMA) v. Lewis, 444 U.S. 11 (1979)). The Supreme Court has

stated that in determining the scope of conduct prohibited by §

10(b) of the Exchange Act, the statute under which Rule 10b10(a)(7)(i) was promulgated, the text of the statute controls the

court’s decision. Central Bank v. First Interstate Bank , 114 S.

Ct. 1439, 1446 (1994). The Court admonished that although a

private plaintiff may bring suit against violators of § 10(b), a

private plaintiff may not bring a suit under an SEC regulation
 

2 Although both of these cases involved suits for equitable

relief, the requirement for a causal connection applies with

equal force when, as here, the suit is for money damages. 

7

promulgated pursuant to § 10(b) for acts not prohibited by the

text of § 10(b). Id. The Court explained, “To the contrary, our

cases considering the scope of conduct prohibited by § 10(b) in

private suits have emphasized adherence to the statutory

language, 'the starting point in every case involving

construction of a statute.'” Id. (citing Ernst & Ernst v.

Hochfelder, 425 U.S. 185, 197 (1976)).

In the instant case, the critical language in § 10(b) is “in

connection with.” Section 10(b) makes it unlawful for any person 

(b) To use or employ, in connection with the purchase or

sale of any security registered on a national securities

exchange or any security not so registered, any manipulative

or deceptive device or contrivance in contravention of such

rules and regulations as the Commission may prescribe as 

necessary or appropriate in the public interest or for the

protection of investors.

15 U.S.C. § 78(j)(b) (1981) (emphasis added). 

This court has construed “in connection with” to require a

causal connection between the allegedly deceptive act or omission

and the alleged injury. See Westinghouse Credit Corp. v. Bader &

Dufty, 627 F.2d 221, 223 (10th Cir. 1980); Vincent v. Moench, 473

F.2d 430, 435 (10th Cir. 1973). 2 See also Angelastro v.

Prudential-Bache Securities, 764 F.2d 939, 942, 944 (3rd Cir.)

(finding an implied private cause of action under Rule 10b-16 and

noting that the Third Circuit has construed § 10(b) as mandating

that there be some causal connection between the alleged fraud
8

and the harm incurred when the security is purchased or sold),

cert. denied, 474 U.S. 935 (1985); Liberty National Insurance

Holding Co. v. Charter Co., 734 F.2d 545, 555 (11th Cir. 1984)

(noting that the “in connection with” element requires a causal

relationship between the claimed deception and a subsequent

purchase or sale).

In the instant case, there is no such causal relationship

between the alleged deception by Defendants and any harm incurred

from the sale of Arst’s shares. The allegedly deceptive practice

prohibited by Rule 10b-10(a)(7)(i)--Defendants' failure to reveal

the buyers’ names--occurred after the sale. Since Defendants’

allegedly deceptive conduct could not have had an impact on

Arst’s decision to sell his shares, Defendants’ conduct was not

“in connection with” the purchase or sale of a security § 10(b). 

In other words, while Defendants’ conduct was proscribed by the

Rule, it was not prohibited by the statute. Therefore,

Defendants’ failure to disclose the names of the purchasers of

Arst's shares after the closing of the transaction did not give

rise to a private cause of action. 

B. Alleged breach of fiduciary duty . Arst claims that

Defendants breached their fiduciary duties to Arst in two

respects: first, by failing to disclose that Shoaf was buying

Arst's shares on Shoaf's account; and second, by failing to

provide Arst complete and accurate information about PCA prior to

the closing of the transaction. Arst contends that Shoaf and

Stifel Co., as fiduciaries, had a common law duty to disclose
 

3 PCA notified its shareholders in writing that Stifel Co.

would be serving as an accommodating broker. We do not construe

this communication as establishing an express contractual

fiduciary relationship between Defendants and PCA shareholders. 

See Rajala v. Allied Corp., 919 F.2d 610, 614 (10th Cir. 1990)

(delineating instances in which a fiduciary relationship is

specifically created by contract or formal legal proceeding),

cert. denied, 500 U.S. 905 (1991).

9

this information; therefore, their failure to disclose

constituted a breach of their fiduciary duty. Since there was no

express fiduciary relationship between Defendants and Arst, 3 any

fiduciary duty must arise under an implied-in-law fiduciary

relationship. See Rajala v. Allied Corp., 919 F.2d 610, 614

(10th Cir. 1990) (citing Denison State Bank v. Madeira, 640 P.2d

1235, 1241 (Kan. 1982)), cert. denied, 500 U.S. 905 (1991). We

will first address Defendants’ alleged breach for failure to

disclose self-dealing and then address their alleged breach for

failure to disclose information about PCA.

1. Duty to disclose self-dealing . Any state law fiduciary

duty of Defendants arose from their agency relationship with

Arst. See Hill v. Bache Halsey Stuart Shields, Inc. , 790 F.2d

817, 824 (10th Cir. 1986) (applying Colorado law). Shoaf, on

behalf of Stifel Co., was Arst’s agent for the purpose of

conducting the sale Arst ordered. As an agent, Shoaf was a

fiduciary 'with respect to matters within the scope of [the]

agency.'” Id. (citing Restatement (Second) of Agency § 13

(1958)). See also Henderson v. Hassur, 594 P.2d 650, 658 (Kan.

1979) (“The relationship existing between a principal and agent

is a fiduciary one . . . .”)(citing Merchant v. Foreman, 322 P.2d
 

4 Our holding that Shoaf had a limited fiduciary

relationship with Arst is not at odds with our holding in Hotmar

v. Lowell H. Listrom & Co., 808 F.2d 1384 (10th Cir. 1987). That

case involved a claim by an investor that his broker had breached

fiduciary duties with respect to a nondiscretionary account. We

noted that under Kansas law the existence of a fiduciary duty

depends on the facts and circumstances in each case. We held

that in the absence of an agreement by the broker to control the

account, the broker did not have a fiduciary duty “to execute

only those orders he considered 'suitable' for one in [the

investor’s] position, and hence, no breach of fiduciary duty was

shown.” Id. at 1387 n.3. In the instant case, we hold that

Shoaf had a far narrower fiduciary duty than claimed in Hotmar. 

Shoaf, as agent, had a fiduciary duty to carry out the requested

sale with due care and loyalty to the principal.

10

740, 745 (Kan. 1958)). 

To be sure, the scope of Shoaf’s agency, and his attendant

fiduciary duties, were limited. Shoaf had nondiscretionary

authority in the sale of Arst's shares: he was to sell the

specified amount of shares at the agreed-upon price. Therefore,

the fiduciary duty Shoaf owed Arst was to carry out the ordered

sale with due care and loyalty and not to make unauthorized

sales. See Hill, 790 F.2d at 824-25.4 See also Merchant v.

Foreman, 322 P.2d 740, 745 (Kan. 1958) (“[I]n all transactions

concerning and affecting the subject matter of his agency, it is

the duty of the agent to act with the utmost good faith and

loyalty for the furtherance and advancement of the interests of

his principal”) (citations omitted).

Arst's claim of self-dealing implicates Shoaf’s duty of

loyalty as a fiduciary. Under Kansas law of agency, when Shoaf

decided to purchase on his own account the subject matter of the

agency--i.e., Arst’s PCA shares--Shoaf had the duty to disclose
11

this purchase to Arst. The Kansas Supreme Court notes, “[W]here

a fiduciary relationship is established between [a principal and

agent] the law views with suspicion and scrutinizes very closely

all dealings between them in the subject matter of the agency to

see that the agent has dealt with the utmost good faith and

fairness.” Merchant, 322 P.2d at 745 (citations omitted). 

Section 389 of the Second Restatement of Agency establishes an

agent’s duty to disclose self-dealing. “Unless otherwise agreed,

an agent is subject to a duty not to deal with his principal as

an adverse party in a transaction connected with his agency

without the principal’s knowledge.” Although the Kansas Supreme

Court did not explicitly adopt this section of the Restatement in

Merchant, it did cite § 390 (dealing with the duties of an agent

acting on his own account) which encompasses § 389. 

Specifically, the Kansas Supreme Court cited the following

comment to § 390 of the Restatement, which cross-references §

389: “Hence, the disclosure [by the agent to the principal] must

include not only the fact that the agent is acting on his own

account, but also all other facts which he should realize have or

are likely to have a bearing upon the desirability of the

transaction, from the viewpoint of the principal.” Restatement

(Second) of Agency § 390 cmt. a (1958). (emphasis added). 

Therefore, Shoaf’s duty of loyalty as an agent included a duty to

disclose his purchases of the PCA shares on his own account. See

also Reuschlein & Gregory, The Law of Agency & Partnership (2nd

ed. 1990) § 67 at 126 (“An agent must disclose to his principal
12

that he is the purchaser of property from the principal.”).

Defendants contend that they are not subject to the terms or

rationale of this rule because Shoaf did not deal with Arst as an

adverse party. Defendants assert that the price was externally

set: the procedures set up by Stifel Co. and allegedly followed

by Shoaf were that Shoaf would pay the same price as the other

buyers. Therefore, they argue, there was no possibility of a

conflict of interests. 

The Restatement anticipates this type of argument and

explains that even under these circumstances the agent has a duty

to disclose purchases on his own account. 

[I]n the absence of a known custom or an agreement, an agent

employed to sell at the market price cannot, without

disclosure to the principal, properly buy the goods on his

own account, even though he pays a higher price for them

than the principal could obtain elsewhere. . . . Likewise,

ordinarily, an agent appointed to buy or to sell at a fixed

price violates his duty to the principal if, without the

principal’s acquiescence, he buys from or sells the

specified article to himself at the specified price, even

though it is impossible to obtain more or as much.

Restatement (Second) of Agency § 389 cmt. c (1958). We hold that

irrespective of Shoaf’s control over the price he paid for the

shares, he had a duty to disclose purchases on his own account. 

His failure to so disclose therefore constituted a breach of his

fiduciary duty under Kansas law, and he was not properly entitled

to summary judgment in his favor as to this claim.

2. Duty to give investment advice . Arst contends that in

addition to a duty to disclose self-dealing, Defendants had a

duty to give Arst advice about the transaction, including the
13

prospects of PCA making a public offering. Arst argues that

Shoaf assumed this broader fiduciary duty by dispensing his

opinion regarding the strength and future of PCA. The district

court held that Defendants had no such duty. We agree with the

district court. 

In Rajala v. Allied Corp., 919 F.2d 610 (10th Cir. 1990), we

analyzed the requirements under Kansas law of an implied

fiduciary relationship. While the existence of an implied

fiduciary relationship “depends on the facts and circumstances of

each individual case,” id. at 614, the Supreme Court of Kansas

has prescribed certain broad principles in making such a

determination:

A fiduciary relationship imparts a position of peculiar

confidence placed by one individual in another. A fiduciary

is a person with a duty to act primarily for the benefit of

another. A fiduciary is in a position to have and exercise,

and does have and exercise influence over another. A

fiduciary relationship implies a condition of superiority of

one of the parties over the other. Generally, in a

fiduciary relationship, the property, interest or authority

of the other is placed in the charge of the fiduciary.

Id. at 614 (quoting Denison State Bank v. Madeira, 640 P.2d 1235,

1241 (1982)). Each of the general considerations listed in

Denison need not be present in every case in which a fiduciary

relationship is alleged. Rajala, 919 F.2d at 614. 

The Kansas Supreme Court has emphasized that “the overriding

consideration in the law of fiduciary relationships [is] that

'one may not abandon all caution and responsibility for his own

protection and unilaterally impose a fiduciary relationship on

another without a conscious assumption of such duties by the one
 

5 Referring to the principles enumerated in Denison to

establish an implied fiduciary relationship, the relationship

between Arst and Defendants most closely resembles the last one:

when the property of one party is placed in the charge of

another. As we explained, Shoaf's authority over this property

was nondiscretionary; therefore, his fiduciary duty was limited

to executing Arst’s orders concerning the disposition of this

property with due care and loyalty.

14

sought to be held liable as a fiduciary.'” Rajala, 919 F.2d at

614 (quoting Denison, 640 P.2d at 1243-44). We have held that

“conscious assumption of the alleged fiduciary duty is a

mandatory element under Kansas Law.” Rajala, 919 F.2d at 615. 

Under Kansas law a party seeking to establish the existence of a

fiduciary relationship must prove it by clear and convincing

evidence. Id. (citing Wolf v. Brungardt, 524 P.2d 726, 736 (Kan.

1974)). 

Arst has not met this burden of proof. Shoaf held himself

out strictly as a go-between: matching sellers and buyers of PCA

stock. (Shoaf and Stifel Co. refused to act as market maker,

which would have implicated broader fiduciary duties.) That

Shoaf made some comments concerning the strength and prospects of

PCA is not sufficient to prove that Shoaf consciously assumed a

broader fiduciary relationship beyond that of an accommodating

broker.5 Arst could not abandon all caution and responsibility

for his own protection and unilaterally impose a fiduciary

relationship on Shoaf to dispense complete and accurate

investment advice concerning the PCA stock without a conscious

assumption of such duties by Shoaf. Denison, 640 P.2d at 1243-

44. See also Hotmar v. Lowell H. Listrom & Co. , 808 F.2d 1384,
15

1387 & n.3 (10th Cir. 1987). Indeed, Arst was well aware that

Shoaf and Stifel Co. were acting as agents for both buyers and

sellers of PCA stock. Arst was “fully competent and able to

protect his own interests.” Denison, 640 P.2d at 1243-44. As

the District Court found, Arst was an experienced businessman who

had made previous investments. He had a broker, other than

Shoaf, with whom he could have discussed his decision to sell the

PCA stock. Arst v. Stifel Nicolaus & Co., 871 F. Supp. 1370,

1384 (D.Kan. 1994). Upon an examination of the record, viewing

all factual disputes in favor of the nonmoving party, White v.

General Motors Corp., 908 F.2d 669, 670 (10th Cir. 1990), cert.

denied, 498 U.S. 1069 (1991), we find no evidence to support

Arst’s claim that Shoaf consciously assumed a fiduciary duty to

dispense accurate and complete investment advice. Therefore, his

failure to dispense such information did not constitute a breach

of a fiduciary duty. 

C. SEC Rule 10b-5 and Kan. Stat. Ann. § 17-1253 . Arst

alleges that Shoaf’s failure to disclose self-dealing and failure

to advise Arst about the prospects of a public offering also

constituted violations of Rule 10b-5, 17 C.F.R. 240-10b-5, and

“the Kansas Securities Act, and specifically K.S.A. § 17-1253.”

(Amend. Compl. ¶ 12.). Rule 10b-5 provides in pertinent part: 

It shall be unlawful for any person, directly . . .

(a) To employ any device, scheme, or artifice to defraud,

(b) To 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 light of the circumstances under which

they were made, not misleading, or

(c) To engage in any act, practice or course of business
 

6 The language of Kan. Stat. Ann. 17-1253(a) closely tracks

that of Rule 10b-5. Section 17-1253(a) provides,

 It is unlawful for any person, in connection with the offer,

sale or purchase of any security, directly or indirectly,

to:

 (1) Employ any device, scheme or artifice to defraud;

 (2) 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 are made, not misleading; or

(3) engage in any act, practice or course of business which

operates or would operate as a fraud or deceit upon any

person.

Since Plaintiff makes no particularized claim under the Kansas

Securities Act, we will evaluate that claim under the same

elements as its federal counterpart. See Comeau v. Rupp., 810 F.

Supp. 1127, 1157 (D. Kan. 1992) (observing the closeness in

language and requisite elements between § 17-1253(a) and Rule

10b-5).

 

7 Plaintiff did not argue in his appellate brief or at oral

(continued...)

16

which operates or would operate as a fraud or deceit upon

any person, in connection with the purchase or sale of any

security.6

It is well established that Rule 10b-5 provides a private

cause of action. Central Bank v. First Interstate Bank , 114 S.

Ct. 1439, 1445-46 (1994). We have explained the elements of

liability under this rule as follows:

In order to establish primary liability under § 10(b), a

party must allege and prove facts showing that the conduct

complained of occurred 'in connection with' the purchase or

sale of a security--that the actor made an untrue statement

of a material fact, or failed to state a material fact, that

in so doing, the party acted knowingly and with intent to

deceive or defraud, and that plaintiff relied on the

misrepresentations, and sustained damages as a proximate

result of the misrepresentation.

Farlow v. Peat Marwick, Mitchell & Co. , 956 F.2d 982, 986 (10th

Cir. 1992). In regards to a 10b-5 claim alleging a failure to

disclose information,7 we explained,
 

7(...continued)

argument that Defendants had made misrepresentations in violation

of Rule 10b-5; plaintiff argued only that defendants failed to

disclose information in violation of that rule. Therefore, we

conclude that Plaintiff has waived the former issue. See

Abercrombie v. City of Catoosa, Okla. , 896 F.2d 1228, 1231 (10th

Cir. 1990); Jordan v. Bowen, 808 F.2d 733, 736 (10th Cir.), cert.

denied, 484 U.S. 925 (1987); Bledsoe v. Garcia, 742 F.2d 1237,

1244 (10th Cir. 1984).

17

The failure to disclose material information is actionable

only when one is under a duty to do so. And the duty to

disclose arises when one party has information that the

other party is entitled to know because of a fiduciary or

other similar relation of trust and confidence between them. 

A duty arises from the relationship between the parties not

merely because one party has an ability to acquire

information. Without a duty to disclose, silence cannot be

made fraudulent.

Windon Third Oil and Gas v. Federal Deposit Ins. , 805 F.2d 342,

347 (10th Cir. 1986) (citing Chiarella v. United States, 445 U.S.

222, 228, 231 n. 14 (1980)). See also Dirks v. SEC, 463 U.S.

646, 655 (1983) (holding that a duty to disclose “arises . . .

from the existence of a fiduciary relationship.”).

For the reasons discussed above, Shoaf had no duty to

disclose information about the strength and prospects of PCA

stock, including the possibility of a public offering. 

Therefore, his failure to disclose this information does not

support liability under either federal or state securities

statutes. And there is no evidence in the record that Shoaf was

privy to inside information that he might have been obligated to

disclose. However, as we explained above, Shoaf did have a duty

to disclose the fact that he purchased the shares on his own

account. This failure alone does not establish liability under
18

Rule 10b-5, but in light of the record, the remaining elements

for liability under Rule 10b-5--including scienter, materiality,

and causation--present genuine issues of material fact for a

jury. Therefore, Arst has presented facts sufficient to

withstand summary judgment with respect to his claim that

Defendants’ failure to disclose self-dealing violated federal and

state securities laws.

IV. Conclusion.

In sum, we hold as follows: (1) Plaintiff does not have a

cause of action under Rule 10b-10(a)(7)(i); (2) Plaintiff has

presented facts sufficient to withstand summary judgment as to

his claims under Kansas common law and state and federal

securities statutes alleging Defendants' failure to disclose

self-dealing; and (3) Plaintiff has not presented facts

sufficient to withstand summary judgment as to his claims under

Kansas common law and state and federal securities statutes

alleging Defendants' failure to dispense investment advice. We

therefore AFFIRM the judgment of the United States District Court

for the District of Kansas in part and REVERSE in part and REMAND

this case for further proceedings in accordance with this

opinion.