United States Court of Appeals,

Fifth Circuit.

No. 92-3376.

Walter R. ABBOTT, M.D., et al., Plaintiffs-Appellants,

and

Mrs. E. Elizabeth Turnbull and, Louis R. Koerner, Plaintiffs-Appellants,

v.

The EQUITY GROUP, INC., et al., Defendants,

The Home Insurance Company and, the Graham Company, Defendants-Appellees.

In re Ronald C. ELLINGTON, et al., Debtors.

Mrs. E. Elizabeth Turnbull and, Louis R. Koerner, Claimants-Appellants.

Sept. 28, 1993.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before REAVLEY, DUHÉ, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

This appeal from a summary judgment turns for th e most part on the reach of the federal

securities laws for entities that are not the primary parties for securities violations, and on the relief

vel non to be accorded parties who, subsequent to entry of judgment, raise a new theory of liabilit y.

Investors in Courtside Ltd., a Louisiana partnership formed t o acquire and operate an apartment

community in Houston, Texas, brought suit against, inter alia, The Home Insurance Company and

The Graham Company. As to them, they alleged that Home and Graham's continued participation

as surety and bonding agent respectively for the Courtside transaction, despite their knowledge of

misrepresentations and material omis si ons i n the Private Placement Memorandum, violated, i nter alia,

federal securities laws and rendered the investors' indemnity agreements with Home unenforceable.

The district co urt granted summary judgment in favor of Home and Graham and refused,

post-judgment, to allow a new theory of liability to be raised. We AFFIRM.

I.1 The Equity Group, Michael B. Smuck, Mark H. Strauss, Joseph T. Michelli, and Ronald C.

Ellington were named as general partners.

2 After November 21, 1984, the cash portion of the purchase price decreased to $2,500 for two

units.

3 Graham is a property and casualty broker. In September 1983, Home entered into a general

agency agreement with it for the issuance of limited partnership financial guarantee bonds. In 1984, the Equity Group, Inc., formed Courtside, becoming the managing general partner. 1

Limited partners were required to execute a subscription agreement, which, inter alia, emphasized

that the investment involved "a high degree of risk and special risks". The purchase price per unit

investment was a combination of cash ($1,500) 2 and credit, consisting of two promissory notes for

approximately $38,000 (first note) and $7,000 (second note).

To obtain financing from Hibernia National Bank and Security Savings and Loan Association,

Courtside pledged the limit ed partners' first notes to Hibernia as collateral; the second, to Security.

As additional security, in late December 1984, Home, through its agent, Graham, 3 issued a financial

guarantee bond in favor of each bank as permitted assignee, with the Co urtside investors as

principals, and the partnership (Courtside) as obligee. The bonds obligated Home to pay Hibernia

up to $3,941,025 and Security up to $1,050,000.

Home received a premium of $257,060 for its issuance of the bonds (total obligation of almost

$5 millio n). In addition, Home required each investor to execute a pledge of partnership interest to

Home, and sign an indemnity agreement protecting Home against, inter alia, all losses in connection

with the bonds.

Graham, as agent for Home, required that each investor execute a limit ed partner's application

for financial guarantee bond, and thus reviewed their creditworthiness. Home reserved the right to

approve the language in any financial guarantee bond as well as in the general partner indemnification

agreem ent , the limited partner indemnification and security agreement, and the remarketing

agreement.

It is undisputed that neither Home nor Graham had direct communication with limit ed

partners or their advisors prior to their investment in the partnership; rather, Equit y solicited the4 Auten testified that he did not "pretend to be a "securities lawyer' "; but he was "familiar in a

general way with Rule 10(b)(5)".

5 According to Auten, his engagement "was simply to take this red book [the PPM] and read it

from one end to the other".

6 The Duane Memo opined that this was "[p]erhaps the most serious omission in the PPM from

a securities standpoint" and recommended that "[a]t a minimum, the adverse prior history should

be discussed and analyzed in the text of the PPM". limit ed partners primarily through the Private Placement Memorandum (PPM) (twice supplemented),

and oral presentations. Alleged misrepresent at ions and material omissions in Equity's solicitation

initiatives form the basis of this action. As for Home and Graham's involvement , t he investors

primarily rely on a legal memorandum prepared for Graham by the Duane, Morris & Heckscher

(Duane Morris) law firm.

In the course of analyzing the transaction for Home, Philip Glick, vice president of Graham,

s ent a co py of Equity's PPM to Duane Morris for review, specifically requesting Donald Auten, a

lawyer in the tax secti on, 4 to "review the contents of this Memorandum and provide us with your

comments on the structure and adequacy of disclosure, the reasonableness of the tax position taken

and the adequacy of the tax opinion relative to the tax discussion". Glick also welcomed "any other

observations you [Auten] may have relative to the ta x st ruct ure and legal disclosure in relation to

other projects you may have seen".

Auten prepared a 15 page memorandum (Duane Memo); he stated in his deposition that he

was singularly responsible for its contents, and that he based his analysis solely on his review of the

PPM. 5 The Duane Memo began by stating that "[o]ur overall reaction to the adequacy of the

disclosure in the PPM from a securities standpoint is that the PPM would appear deficient in several

material respects and should be supplemented". Among the items mentioned were (1) the absence

of discussion

and analysis relating to the prior history of the project; 6 (2) troublesome tax issues

arising fro m an appraisal showing a fair market value ($12,700,000) in excess of the arm's length

purchase price ($10,249,250); (3) inconsistent calculations of expected proceeds upon sale of the

project in 1992 or 1994; (4) the risks to the invest ors and to Home of a procedure allowing the

partnership to hold an interim closing, providing that Equity purchase any remaining Units (up to 146)7 The Duane Memo stated that "[t]his procedure creates a serious risk to the investors as well

as to the Surety". It explained:

Because the offering may close and the Project may be purchased with far fewer

than 146 Units having been sold, if the Managing General Partner were to become

financially embarrassed between October 1, 1984, and January 24, 1985 [final

closing], the investors and Surety could be left in an unacceptable position.

Thus, it recommended a change in procedure:

[I]f closing on the project takes place before the minimum of 146 Units are sold,

the Managing General Partner is required to put funds in escrow (or furnish an

irrevocable letter of credit) to guarantee that on January 24, 1985, the Managing

General Partner will be able to satisfy its obligation to purchase the remaining

Units.

It added that "[t]he existing procedure completely undermines that concept of requiring a

minimum number of Units to be sold before closing can take place".

8 The Memo opined: "If an investor were told this fact (instead of having to make the

calculations for himself), his view of the economic risks of the investment might change. Once

again, however, this potentially unfavorable information is effectively buried in the PPM". on the final closing date; 7 (5) the failure to explicitly disclose the true effective interest rate (17%)

with respect to the new money under the wraparound mortgage; 8 and (6) the need to include an

exculpatory state ment in the PPM precluding the investors' reliance on Home in making their

investment decisions.

In September 1984, Glick (Graham) wrote a letter to Equity regarding changes to the PPM.

He included several suggestions set forth in the Duane Memo, including the need to insert disclaimer

language in the PPM and surety related documents. Shortly thereafter, Glick wrote a follow-up letter

to Equi ty and attached a copy of the Duane Memo, noting that "this Memorandum highlights some

additional technical corrections which we feel should be made in the Equity Group Offering

Memorandum from a specific tax and securities disclosure standpoint". Glick requested Equity's

"cooperation with us in including these changes in the supplement", and related that,

[f]rom past experience we have found t hat obtaining another viewpoint on our clients'

Memo randums has often resulted in some worthwhile improvement, both from a legal and

marketing standpoint. I hope these comments will be helpful to you and that they will provide

additional comfort to the Home Insurance Company in conjunction with the issuance of its

bond.

The first supplement to the PPM was released on Novem ber 21, 1984. It i ncorporated9 The second supplement provided in part:

Under the terms of the Memorandum, the Managing General Partner must

purchase on January 24, 1985 all unsold Units up to the minimum offering amount

(146 Units). In order to purchase such Units, it is anticipated that Affiliates of the

Managing General Partner will form four general partnerships to purchase the

unsold Units which are anticipated to aggregate 40. These general partnerships

will be formed specifically to purchase 10 Units each in the Partnership. It is

anticipated that Hibernia will lend to each of the general partnerships sufficient

funds to enable the general partnerships to pay the cash portion of the purchase

price of the Units plus the first three year installments under the First and Second

Installment Notes. Thereafter, the general partnership will be required to pay the

installments due on the First and Second Installment Notes. disclaimer language providing that Home and Graham "have not made any investigation

... as to the

merits ... and make no representation nor express any opinion with respect thereto, ...", along with

an explicit acknowledgement that investment decisions were made without reliance on the surety

(Home) or its agent (Graham). In addition, the supplement emphasized the investors' unconditional

obligation to Home under the indemnity agreement. It did not, however, incorporate a number of

the other changes suggested in the Duane Memo.

During the latter part of 1984, 40 of the Courtside units remained unsold, with the offering

period scheduled to end on January 24, 1985. Four Louisiana general partnerships (E-C One, E-C

Two, E-C Three and E-C Four) were formed to purchase the unsold units. Hibernia loaned the funds

to each E-C partnership, requiring the Equity principals to become E-C partners and requiring each

non-Equity partner in the E-C partnerships to execute a solidary continuing guarantee of the entire

Hibernia loan. Home agreed to act as surety for the Hibernia lo an. The formation of the E-C

partnerships was disclosed in the second supplement to the PPM, issued on January 18, 1985. 9

Subsequent to the expi

rat io n o f t he offering on January 24, 1985, Courtside experienced

financial problems and ultimately declared bankruptcy. Because Courtside failed to meet its financial

obligations, th e banks called the investors' notes. The investors (limited partners) defaulted, thus

obligating Home to make paym ents under the term s of each bond. Hom e, i n turn, l

ooked to the

investors for a full accounting, pursuant to the indemnity agreements.

In September 1986, over 40 Courtside investors brought suit against, inter alia, Equity,

Home, and Graham. The complaint was amended several times, resulting in a third supplemental and10 Separate actions by two other groups of investors, along with a separate action by Home,

were consolidated with the original action.

11 The motion sought reconsideration of the denial of judgment as to the state law negligence

claim, as well as to resolve legal issues regarding the enforceability of the indemnity agreements.

The court had previously granted judgment for Home and Graham on the remainder of plaintiffs'

claims. amended complaint filed in March 1987. The investors made claims under, inter alia, violations of

§§ 12(2) and 15 of the Securities Act of 1933, 15 U.S.C. § 77a e t seq. (1933 Act); §§ 20(a) and

10(b) of the Securities and Exchange Act of 1934, 15 U.S.C. § 78a et seq. (1934 Act), along with

Rule 10b-5; the Louisiana Blue Sky Law, La.Rev.Stat.Ann. § 51:701 e t seq.; and state law

(Louisiana) for fraud and negligent misrepresentation. They sought damages and rescission. Home

counterclaimed for enforcement of the indemnity agreements. 10

As n o t ed earlier, the suits were based on the contention that Equity induced plaintiffs'

investments through misrepresentations and omissions in the PPM, and misleading oral presentations.

Specifically, they maintained that Equity, inter alia, misrepresented its financial health; the condition,

location, occupancy, tenancy and fair market value of the property ; and the soundness of the

investment ( i.e. "virtually risk free").

After over four years of discovery and pre-trial motions, Equity, as well as other defendants,

announced settlement. (All defendants ultimately set t led, except for the Gerald Teel Company,

Hibernia, Home, and Graham.) That day, the court granted judgment on Home and Graham's motion

to reconsider its earlier denial of summary judgment on the remaining issues, 11 thereby disposing of

plaint iffs' case and granting Home's claims for enforcement of the indemnity agreements. The court

issued written reasons approximately four months later (January 1990).

Over the ne xt t wo years, the parties disputed issues of costs, interest, attorney's fees, and

amounts due Home. Therefore, final judgment was not entered until January 1992. Ten days later,

plaint iffs moved for a new trial. Upon denying plaintiffs' motions to file a supplemental memorandum

raising a new theory of liability, and for reconsideration of same, the court denied plaint iffs' motion12 The appellants are: (1) D.L. Bradke; (2) Eugene M. Parrish; (3) David Sibley; (4) Louis R.

Koerner; and (5) Elizabeth Turnbull.

13 Under the 1933 Act:

Every person who, by or through stock ownership, agency, or otherwise, or who,

pursuant to or in connection with an agreement or understanding with one or more

other persons by or through stock ownership, agency, or otherwise, controls any

person liable under sections [11 or 12], shall also be liable jointly and severally for a new trial. Since then, all but five of the plaintiffs have settled. 12

II.

Appellants challenge the district court's disposition of the summary judgment motions, and

also assert error based on the court's post-judgment rulings.

A. Summary Judgment

We review a summary judgment de novo. E.g., Degan v. Ford Motor Co., 869 F.2d 889,

892 (5th Cir.1989). It may be granted 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). "[T]he substantive

law will identify which facts are material". A nderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106

S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

The movant has the init

ial burden of demonstrating t he absence of material fact issues.

Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.1992), cert. denied,

--- U.S.

----, 113 S.Ct. 82,

121 L.Ed.2d 46 (1992). To avoid summary judgment, the nonmovant must adduce evidence which

creates a material fact issue concerning each of the essential elements of its case for which it will bear

the burden of proof at trial. S ee Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548,

2552-53, 91 L.Ed.2d 265 (1986). "[A] dispute about a material fact is "genuine' ... if the evidence

is such that a reasonable jury could return a verdict for the nonmoving party". A nderson, 477 U.S.

at 248, 106 S.Ct. at 2510. We resolve all factual inferences in favor of the nonmovant. D egan, 869

F.2d at 892. Needless to say, unsubstantiated assertions are not competent summary judgment

evidence. Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553.

1. Controlling Person

Section s 15 of the 1933 Act 1 3 and 20 of the 1934 Act 14 impose liabilit y on "controllingwith and to the same extent as such controlled person to any person to whom such

controlled person is liable....

15 U.S.C. § 77 o

.

14 The 1934 Act states:

Every person who, directly or indirectly, controls any person liable under any

provision of this chapter or of any rule or regulation thereunder shall also be liable

jointly and severally with and to the same extent as such controlled person to any

person to whom such controlled person is liable....

15 U.S.C. § 78 t

(a).

15 The control person sections of both acts are interpreted the same, at least with respect to the

definition of "controlling person", G.A. Thompson & Co. v. Partridge, 636 F.2d 945, 958 & n. 22

(5th Cir.1981).

The term "control' ... means the possession, direct or indirect, of the power to

direct or cause the direction of the management and policies of a person, whether

through the ownership of voting securities, by contract, or otherwise.

17 C.F.R. § 230.405(f) (quoted in Id. at 957-58).

16 The corporation marketed mortgage loans. Id. at 949. persons" for securities violations committed by those under their control. Appellants maintain that

material fact issues remain concerning Home and Graham's liabili t y as "controlling persons". As

discussed infra, we have no ruling by the district court of an underlying securities violation and thus

assume a violation for purposes of our analysis.

The parties disagree on the elements for a prima facie case unde r §§ 15 and 20. 1 5

Specifically, appellants take issue with Home and Graham's assertion, based on G.A. Thompson &

Co., Inc. v. Partridge, 636 F.2d 945 (5th Cir.1981), and Schlifke v. Seafirst Corp., 866 F.2d 935, 949

(7th Cir.1989), that this circuit has adopted the two part test of Metge v. Baehler, 762 F.2d 621 (8th

Cir.1985), cert. denied, Metge v. Bankers Trust Co., 474 U.S. 1057, 106 S.Ct. 798, 88 L.Ed.2d 774

(1986).

In Thompson, our court held that an officer and director, who owned 247 of the company,

and was apparently involved in the day -to-day coordination of loan gat hering, 1 6 had the "requisite

power to directly or indirectly cont ro l o r influence corporate policy", and, thus, was a controlling

party. 636 F.2d at 958. In so doing, our court rejected the contention that actual participation in the17 The court found that evidence of, inter alia, a lender's 187 ownership of the borrower's

stock, and proxy on a controlling interest of the borrower's subsidiary, did not establish actual

control over the operations of the corporation in general; but, at most, demonstrated the potential

for influence over some business decisions. Id. at 631-32.

18 We note that Dennis does not accurately reflect our rejection in Thompson of a "culpable

participation" requirement. 918 F.2d at 509. We need not resolve this inconsistency, because our

holding turns on appellants' failure to establish Home and Graham's power to control Equity. transaction underlying the violation was a prerequisite for a prima facie case, noting that "[l]ack of

participation and good faith constitute an affirmative defense". Id. At the same time, it noted that

our precedent was "ambiguous on whether "effective day-to-day control' is required", and, without

deciding the issue, noted that the evidence established sufficient day -to-day control. I d. at 958 n. 24.

In Metge, the Eighth Circuit subsequently established a two-prong test for a prima facie case

for co nt ro lling person liability: (1) "that the defendant [ ] actually participated in ( i .e. exercised

control over) the operations of the corporati on in general"; and (2) "that the defendant possessed the

power to control the specific transaction or activity upon which the primary violation is predicated,

but [plaint iff] need not prove that this later power was exercised". 762 F.2d at 631 (internal

quotati ons omitt ed) (emphasis in original). 1 7 The court cited T hompson only as support for its

rejection of a " "culpable participation' requirement, which requires a showing that [the defendant]

actually participated in the alleged violation". Id. at 631.

It is clear that Thompson did not de finit ively address prong one of the M etge test, i.e. a

required showing that the defendant exercised control over the general operations of the wrongdoer;

nor did it adopt the two prong Metge test, as urged by appellees in reliance on the Seventh Circuit's

opinion in Schlifke, 866 F.2d at 949; and, conversely, Metge did not cite Thompson as support for

its formulation of prong one (only, as stated supra, as support for prong two).

Thus, the la w is somewhat more unsettled as to prong one than Home and Graham would

have it. Our decision in D ennis v. General Imaging, Inc., 918 F.2d 496 (5th Cir.1990), however,

provides some guidance on that narrow ground. There we adopted a district court opinion, which

interpreted Thompson as requiring a plaint iff, for a prima facie case, to show "actual power or

influence over the controlled person". 18 Id. at 509.19 Glick testified that he had reviewed roughly a dozen PPM's for other Equity projects in his

capacity as agent or broker.

20 Appellants point to Home and Graham's influence over the execution and contents of certain

financing documents; their request to approve documents relating to the transaction, including

the PPM (which contained exculpatory language requested by Home); and memoranda from

Glick to Equity, discussed supra, regarding suggested changes to the PPM. Dennis is consistent with Metge to the extent that both require a separate showing of control

over the controlled entity (Equity); but appellants insist that our circuit only requires that they show

Home and Graham's power to control Equity, not the actual exercise of that power. We need not

presently analyze the above distinction because, even assuming that only the former applies, a

reasonable jury could not so find based on the record before us.

According to the affidavits of John MacGregor (assistant vice president of Home), and Glick

(Graham), neither Home nor Graham nor their respective employees and representa t ives were

stockholders, directors, officers, employees, or partners of Equity; they did not attend its board or

committee meetings; they were not involved in decisions by Equity to purchase properties for

syndications to investors; they were not involved in operations of properties purchased by Equity or

its affiliates; and they were not ot herwise involved in the general operations of Equity, including

business, financial and marketing plans.

Appellants fail to contradict these statements with evidence of Home and Graham's power to

control the general affairs of Equity. Graham's involvement with the issuance of financial guarantee

bonds for other Equity projects, 19 and correspondence reflecting that Equity kept Graham informed

of the status of the Courtside offering, as well as others, does not indicate that Graham had such

power, even assuming its participation in such discussions.

Appellants' remaining evidence is less persuasive, as it narrowly relates to Home and Graham's

involvement in the Courtside transaction. 20 Although appellants make much of Home and Graham's

influence over t he formation of the E-C partnerships, s ee infra, and the statement in an internal

Graham memo (dated March 6, 1986) from Thomas Pine to Glick that, "[w]ithout Home, Courtside

wouldn't have been done", this evidence is not probative of Home and Graham's influence beyond the

Courtside transaction. Accordingly, summary judgment on this claim was proper.21 Section 10(b) provides:

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, or of any facility of any

national security exchange—

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

security ... any manipulative or deceptive device or contrivance....

15 U.S.C. § 78j(b).

22 Rule 10b-5 provides:

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

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

(b) to make any untrue statement of a material fact or omit to state a material fact

necessary in order to make the statement 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 which operates or would

operate as a fraud or deceit upon any person,

in connection with the purchase or sale of any security.

17 C.F.R. § 240.10b-5 (1992).

23 Although Abell has been vacated, it remains authoritative on the non-RICO issues. First

Nat. Bank of Commerce v. Monco Agency, Inc., 911 F.2d 1053, 1061 n. 15 (5th Cir.1990). 2. Aider and Abettor

Appellants maintain that fact issues remain concerning Home and Graham's liabilit y under §

10(b) of the 1934 Act 21 and Rule 10b-5. 22 Those who aid and abet securities fraud are subject to Rule

10b-5 liability; but, we have emphasized recently that this "added layer of liability ... is particularly

problematic.... We should be exacting in determining whether aider and abett o r liability can be

demonstrated". Akin v. Q-L Invest., Inc., 959 F.2d 521, 525 (5th Cir.1992).

To establish liabilit y, the plaint iff must show (1) that the primary party committed a securities

violation; (2) that the aider and abettor had "general awareness" of its role in the violation; and (3)

that the aider and abettor knowingly rendered "substantial assistance" in furtherance of it. Abell v.

Potomac Ins. Co., 858 F.2d 1104, 1126 (5th Cir.1988) (internal quotati ons omitted), vacated, Fryar

v. Abell, 492 U.S. 914, 109 S.Ct. 3236, 106 L.Ed.2d 584 (1989). 2324 This court has often reiterated that, "[i]f the evidence shows no more than transactions

constituting the daily grist of the mill, we would be loathe to find 10b-5 liability without clear

proof of intent to violate the securities law". See, e.g., Abell, 858 F.2d at 1126 ( quoting

Woodw ard v. Metro Bank, 522 F.2d 84, 97 (5th Cir.1975)).

25 Our court defined "recklessness" in Broad v. Rockw ell International Corp., 642 F.2d 929,

961-62 (5th Cir.1981), cert. denied, 454 U.S. 965, 102 S.Ct. 506, 70 L.Ed.2d 380 (1981):

Severe recklessness is limited to those highly unreasonable omissions or

misrepresentations that involve not merely simple or even inexcusable negligence,

but an extreme departure from the standards of ordinary care, and that present a

danger of misleading buyers or sellers which is either known to the defendant or is

so obvious that the defendant must have been aware of it.

As noted in Akin, 959 F.2d at 526 n. 2, although we used the modifier "severe", our

definition of recklessness is the same as applied by other circuits.

26 As discussed infra, subsequent to final judgment, appellants attempted to recharacterize the

primary violation (adding Rule 10b-9).

27 Contrary to appellants' assertions, the district court did not find genuine issues of material

fact concerning the existence of a primary securities violation; rather, noting appellants'

settlement with Equity, it merely assumed so to abbreviate its analysis. For t he first element, we again assume underlying securities fraud. S ee notes 27 and 28,

infra. Underlying the other two elements—"general awareness" and "knowing substantial

assistance"—is a single scienter requirement that va ries o n a sliding scale from "recklessness" to

"conscious intent". A bell, 858 F.2d at 1126-27. The plaint iff must show conscious intent, unless

there is some special duty of disclosure, or evidence that the assistance to the violator was unusual

in character and degree. A kin, 959 F.2d at 526, 531. 2 4 In the latter two instances, a recklessness

standard applies. 25 Id.

Throughout the district court proceedings, appellants maintained that Equity violated § 10

a nd Rule 10b-5 by inducing appellants to invest in Courtside through oral an d written

misrepresentations. 26 Their aiding and abetting allegations were based on Home and Graham's

continued participation in the Courtside transaction despite their receipt of the Duane Memo, which,

according to appellants, provided a blueprint of Equity's fraud.

The district court concluded that the summary judgment record lacked probative evidence of

Home and Graham' s "subst antial assistance" in the alleged violations, 2 7 relying primarily on its

findings that they did not owe appellants a duty of disclosure, and that the activities described were28 As stated, we also assume that fact issues remain concerning Equity's violation of Rule 10b5. Home and Graham did not challenge appellants' evidence on this element (except with respect

to those who allegedly failed to read the PPM); and, as discussed, we do not have the benefit of a

district court ruling.

29 Of course, First Virginia Bankshares is also precedent for the Eleventh Circuit, because it

was decided before October 1, 1981. See Bonner v. Prichard, 661 F.2d 1206, 1209 (11th

Cir.1981) (en banc). simply "grist of the mill". We agree, and stress that appellants also failed to meet the scienter

requirement underlying the latter two elements of the prima facie case. 28

First, we address appellants' assertion tha t Home and Graham had a duty to disclose the

contents of the Duane Memo. They urge, i nter alia, that this duty of disclosure arises from Home's

status as their surety. Home and Graham counter by stating that generally, a surety has no legal duty

of disclosure. As our court noted in A kin, the "theory" of liabilit y based on a

special duty of

disclosure is "mushy and difficult to apply", as the source and scope of such a duty is not based on

any textual provision of the securities laws, but "appears to be a specie of federal common law". 959

F.2d at 526. We thus refrain from specifically defining the disclosure obligations of a surety and its

agent; rather, applying relevant factors annunciated by our court in F irst Virginia Bankshares v.

Benson, 559 F.2d 1307 (5th Cir.1977), cert. denied, Walter E. Heller & C o. v. First Virginia

Bankshares, 435 U.S. 952, 98 S.Ct. 1580, 55 L.Ed.2d 802 (1978), and applied by other circuits, see

Arthur Young & Co. v. Reves, 937 F.2d 1310, 1330 (8th Cir.1991), cert. denied Reves v. Ernst &

Young,

--- U.S.

----, 112 S.Ct. 1165, 117 L.Ed.2d 411 (1992); Jett v. Sunderman, 840 F.2d 1487,

1493 (9th Cir.1988); R udolph v. Arthur Andersen & Co., 800 F.2d 1040, 1043 (11th Cir.1986), cert.

denied, 480 U.S. 946, 107 S.Ct. 1604, 94 L.Ed.2d 790 (1987), 29 we conclude that Home and Graham

did not have such a duty.

We first examine the p art ies "relative access to the information to be disclosed". F irst

Virginia Bankshare s, 559 F.2d at 1314. To be sure, the summary judgment record reflects that

Home and Graham were privy to additional information due to their involvement with the issuance

of the bonds, and from Graham's prior dealin gs with Equity; however, as stated, the standard is

"relative access to t he information t o be disclosed ". I d. (emphasis added). Because appellants30 By contrast, Glick stated by affidavit:

None of the information that affiant received from the Equity Group or its

securities counsel during the course of his activities described herein, whether oral

or written, and whether received prior or subsequent to affiant's receipt of the

PPM, in any way contradicted any of the information in the PPM.

31 The Duane Memo lacks probative value, as it was based solely on the PPM, see supra, which

was received by each appellant.

32 The supplement stated:

THE SURETY AND ITS AGENT HAVE NOT MADE ANY INVESTIGATION

OR DETERMINATION AS TO THE MERITS, OR RISKS, FINANCIAL OR

OTHERWISE, OF THE LIMITED PARTNERSHIP INVESTMENT AND

MAKE NO REPRESENTATION NOR EXPRESS ANY OPINION WITH

RESPECT THERETO,....

IN EXECUTING THE INVESTOR APPLICATION, EACH INVESTOR

ACKNOWLEDGES THAT SUCH INVESTOR HAS INDEPENDENTLY, AND

WITHOUT RELIANCE ON THE SURETY, MADE SUCH INVESTIGATION

AND INQUIRIES AS THE INVESTOR DEEMED NECESSARY AND

PRUDENT TO REACH A REASONABLE INVESTMENT DECISION WITH

RESPECT TO THE LIMITED PARTNERSHIP INVESTMENT. neglect to demonstrate that such access supplied Home and Graham with superior knowledge of the

allegedly misleading aspects of the PPM, 30 this factor does not weigh in their favor. 31

We next examine the benefit derived from the sale of securities. Home and Graham received

a premium of $257,060 for bonding a risk of almost $5 millio n. Given the risk of loss, this factor only

slightly supports a duty to disclose.

As for the third factor, "the defendant's aw areness o f plaintiff's reliance on defendant in

making its investment decisions", id., appellants once again misconstrue their burden. They must set

forth evidence that they relied on Home and Graham in making their investment decisions, not that

they relied on misrepresentations in the PPM. There is no evidence that potential investors viewed

Home and Graham's involvement as approval of the merits of the investment, or otherwise relied on

Home and Graham, much less evidence that Home and Graham were "general ly aware" of such

reliance. Rather, Home's identity as surety was not revealed until the first supplement to the PPM,

which also contained a disclaimer specifically included to prevent such reliance. 32 Needless to say,

this factor does not support a duty to disclose.33 The remainder of appellants' evidence on this issue is equally deficient. Namely, they urge

that a reasonable jury could conclude that Home and Graham's activities were not simply "grist of

the mill" in view of Graham's prior involvement with Equity, and the earlier discussed 1985

internal memorandum from Graham's Pine to Glick stating, inter alia, "Reaction to The Home

Insurance Company—positives & negatives compared to A.I.G. etc. Anything that he doesn't

like? Without Home, Courtside wouldn't have been done".

As for the former, we conclude that the summary judgment evidence of Graham's

involvement as bonding agent for other Equity projects, see supra note 19, does not create

the inference of particularly substantial or unusual assistance. Our finding to the contrary

in Akin, 959 F.2d at 531, is distinguishable. Suffice it to say, the scope and degree of

involvement by the defendant/accountant in Akin was far greater than that before us.

As for the latter, the above-quoted statement is perhaps probative evidence of

Home's substantial assistance, but it is not sufficient evidence from which a jury could

conclude that such assistance was unusual. Interpreting the statement, Pine explained that

Home was critical to the closing, and more helpful than A.I.G. (National Union Insurance

Company) due to its ability to efficiently process the multitude of documents. Of course,

contrary inferences are possible, including that urged by appellants; however, such an Finally, we can quickly dispose of the fourth factor, "the defendant's role in initiating the

purchase or sale", id., as it is undisputed that neither Home nor Graham had contact with investors

regarding their investment decisions. In sum, we conclude from our analysis of the above factors that

Home and Graham did not owe appellants a duty of disclosure.

Appellants next maintain that even if Home and Graham lacked a duty to disclose, t heir

participation in the formation of the E-C partnerships constituted "substantial assistance", unusual in

scope and degree; thus, they need not prove conscious intent, only recklessness. Once again, we

disagree.

Although there is evidence that Home and Graham were included in discussions regarding the

possible failure to fully subscribe Courtside by the closing date, we agree with the district court that

there is no evidence that their role extended beyond that of a surety and bonding agent. Rather, the

only evidence of involvement by Home and Graham was their refusal to bond the remaining 40 units

under one partnership, and subsequent agreement to bond the units under four partnerships (the E-C

partnerships); decisions central to their designated function. We thus consider the above assistance,

even if substantial, see Insurance Co. of North America v. Dealy, 911 F.2d 1096, 1101 (5th Cir.1990)

("the routine extension of a loan does not amount to substantial assistance"), to be merely "grist of

t he mill". 33inference is not sufficient to create a material fact issue.

34 In fact, in addition to appellants' evidence not creating a material fact issue on conscious

intent, we question whether it even establishes recklessness. Although the language in the Duane

Memo alerts Home and Graham to deficiencies in the PPM, it does not imply that they were

"highly unreasonable"; nor does correspondence between Glick and Equity indicate that it was so

construed. Rather, Glick requested Equity's "cooperation" in adopting Duane Morris's

suggestions, noting that "[f]rom past experience we have found that obtaining another viewpoint

on our clients' Memorandums has often resulted in some w orthw hile improvement, both from a

legal and marketing standpoint". (Emphasis added.) Without expressing any opinion as to the

merits of Duane Morris's assessment, or discomfort with the adequacy of the Duane Memo, Glick

concluded: "I hope these comments will be helpful to you and that they will provide additional

comfort to The Home Insurance Company in conjunction with the issuance of its bond".

(Emphasis added.)

In addition, Glick testified that the supplemental PPM sufficiently addressed the

concerns of Home and Graham. Finally, in late December, 1984, Home and Graham

received an opinion letter from counsel for Courtside stating that

[n]othing has come to our attention, after inquiry, which would lead us to

believe that the Memorandum (except for the financial statements and other

financial and statistical data and the projections included therein, as to

which we do not express any belief), on the date of the Memorandum,

contained any untrue statement of a material fact or omitted to state a

material fact necessary to make the statements therein, in light of the

circumstances under which they were made, not misleading. Because appellants failed to establish either a duty of disclosure or atypical assistance, they

must provide evidence of conscious intent, rather than recklessness. (In considering whether they

meet this burden, we assume, without deciding, that Home and Graham's involvement constituted

substantial assistance.) The reco rd is devoid of such evidence; thus, summary judgment is

appropriate. S ee, e.g., Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1449 (5th Cir.1993) (internal

quotati ons omitted) ("Summary judgment, to be sure, may be appropriate, even in cases where elusive

concepts such as motive or intent are at issue,

... if the nonmoving party rests merely upon conclusory

allegations, improbable inferences, and unsupported speculation.").

Wit h apparently good intentions, Graham forwarded the Duane Memo to Equity, and

suggested that Equity i nco rporate its counsel's suggestions. Home and Graham's continued

participation, despite Equity's failure to adopt some of the suggestions, does not signal their intent

to further the fraudulent scheme. 34 As we stated in Abell, 858 F.2d at 1128, "[a]roused suspicions

... do not constitute actual awareness of one's role in a fraudulent scheme. Moreover, to prove plainly35 Appellants also point to Home and Graham's motive to close the deal once involved as

surety; however, because appellants did not contend in the district court that the formation of the

E-C partnerships was fraudulent, or that Home and Graham had knowledge of same, this motive,

standing alone, carries little weight.

36 Appellants' claims under the Louisiana Blue Sky Law were also properly dismissed, because

it is undisputed that Home and Graham were not sellers of securities as defined by § 12(2) of the

1933 Act. Abell, 858 F.2d at 1130-31.

37 It is undisputed that Louisiana law applies in this diversity case. Except as to the issue of

duty, discussed infra, appellants waived their fraud claim by failing to properly brief the issue.

See infra note 50.

38 Negligent misrepresentation is encompassed within the broad language of articles 2315 and

2316 of the Louisiana Civil Code. Devore v. Hobart Mfg. Co., 367 So.2d 836, 839 (La.1979).

In order to recover, the plaintiff must show (1) a legal duty to supply correct information; (2)

breach; and (3) damages resulting from justifiable reliance on the misrepresentation. Commercial

Nat. Bank v. Audubon Meadow Part., 566 So.2d 1136, 1139 (La.App. 2d Cir.1990).

39 Of the five appellants: (1) Koerner could not recall reading the PPM and provided no

pertinent testimony regarding reliance; (2) Parrish possibly read parts of the PPM, but could not

recall any specifics nor did he provide pertinent testimony as to factors influencing his investment

decision; (3) Sibley skimmed the PPM, "not really" relying on its contents but instead relying on that an alleged abettor intended to violate the securities laws, plaint iffs must prove more than that the

abettor recklessly ignored danger signals".

Likewise, Home and Graham's receipt of a reasonable premium for participation in t he

transaction does not supply a motive. We agree with the Second Circuit that "almo st any entity

playing a role in a securities transaction will have some economic motivation for doing so". N ational

Union Fire Insurance Co. v. Turtur, 892 F.2d 199, 207 (2nd Cir.1989). 35

In sum, in view of the lack of evidence of intent, the district court properly disposed of

appellants' aiding and abetting claim. 36

3. Fraud and Negligent Misrepresentation

Appellants maintain Home and Graham's failure to disclose misrepresentations and material

omissions in the PPM, brought to their at t ention through the Duane Memo, constitutes negligent

misrepresentation under Louisiana law. 37 To prevail, Louisiana requires proof of actual reliance.

Abell, 858 F.2d at 1131 (applying Louisiana law). 38 Upon reviewing the summary judgment record,

we agree with the district court that there is no evidence of reliance on those aspects of the PPM

specifically discussed in the Duane Memo. 39oral representations that the project was "low risk" and catered to professionals (which are both

inconsistent with the PPM); and (4) Turnbull did not read the PPM, and in fact would not have

invested had she done so; instead, she relied on her accountant who focused on tax projections;

although he read the PPM, there is no evidence of actual reliance on specific misrepresentations

or material omissions in it, except for references to the stated fair market value contained in Teel's

appraisal, which is irrelevant given the district court's conclusion (in support of summary

judgment for Teel) that appellants failed to show that the appraisal was misleading.

Of course, Home and Graham are not responsible for oral misrepresentations

inconsistent with, or not pertinent to, aspects of the PPM discussed in the Duane Memo,

as appellants' action against them is based on appellees' failure to correct or otherwise

disclose misleading information referenced in the Duane Memo, and their continued

participation in the Courtside transaction despite their knowledge of same.

40 In their motion for summary judgment, Home and Graham specifically pointed to appellants'

failure to allege actual reliance in support of the state law claims of fraud and negligent

misrepresentation. In response, appellants failed to point to specific evidence of reliance; nor did

they do so in their motion for a new trial, despite the district court's finding. And, as stated, they

fail to assert error on appeal. As a result, our review of the record is without assistance from

those with the burden of proof.

41 As stated supra, the investors sought rescission of the agreements; Home counterclaimed for

their enforcement. The district court granted summary judgment in favor of Home on the

rescission action and subsequently granted it on Home's counterclaim. On appeal, appellants

focus on the latter.

42 In Turtur, National Union issued a bond in exchange for the investor's execution of an

indemnification agreement, which was attached to the PPM. The Second Circuit held that, if the

indemnification agreement and the subscription agreement are considered under New York law as

interdependent, "a fraudulent inducement as to one of the contracts might [ ], in at least some

situations, excuse performance by the defrauded party of the other contract". Id. at 204 In fact, on appeal, appellants do not challenge the court's findin g on reliance; 4 0 rather, for

both fraud and negligent misrepresentation, they focus solely on the erroneous proposition that duty

of care is a complex issue of fact not suitable for summary judgment. See Commercial Nat. Bank,

566 So.2d at 1140 (stating that the existence of a duty is a question of law); s ee also Hibernia Nat.

Bank v. Carner, 997 F.2d 94, 98 (5th Cir.1993) ("it is insufficient for the nonmovant to argue in the

abstract that the legal theory involved in the case encompasses factual questions"). Needless to say,

this assertion of error is wholly without merit.

4. Indemnity Agreements

Appellants maintain that fact issues remain concerning the enforceability of their indemnity

agreements. 41 Relying on N ational Union Fire Insurance C o. v. Turtur, 892 F.2d 199 (2d

Cir.1989), 42 they urge that where a surety receives an indemnity agreement from the investor in return(emphasis added). The Second Circuit reversed the grant of summary judgment because fact

issues remained on the interdependency vel non of the agreements. Id. at 205.

43 It has been agreed in the district court and on appeal that the indemnity agreements should be

construed under Louisiana law.

44 There, an investment bond insurer brought suit against the insured, an investor in a limited

partnership. Like the case at bar, the investor paid partly in cash and partly in the form of a

promissory note payable to the partnership. The partnership in turn secured a loan with the

investor's note, which the surety bonded in return for an indemnity agreement executed by the

investor. Subsequent to the investor's default, the surety brought suit against the investor to

enforce the indemnity agreement. In defense, the investor asserted that the indemnification

agreements were contracts related to a securities fraud and thus unenforceable. Id. at 1098, 1100.

45 We emphasize that we are assuming, for purposes of our discussion, that the agreements

should be considered interdependent under Louisiana law. Compare General Ins. Co. v. Fort

Lauderdale Partnership, 740 F.Supp. 1483, 1488 (W.D.Wash.1990) (distinguishing Turtur and

concluding, that, under Washington law, the indemnification agreement was independent).

46 Turtur is not necessarily inconsistent. There the court concluded that appellants had raised a

fact issue as to whether the bond insurer was "a party to any fraud or illegality affecting the

[Notes]". 892 F.2d at 205; see Bruce v. Martin, 1993 WL 148904, ** 10, 11, 1993

U.S.Dist.LEXIS 5776, ** 32, 33 (S.D.N.Y. April 28, 1993) (restricting Turtur to "a situation

where the fraud in the inducement of the subscription agreements ... was the same fraud to which for bonding the investor's obligations, and the separate subscription and indemnity agreements are

executed co ntemporaneously, fraudulent inducement in the subscription agreement renders the

indemnity agreement likewise fraudulently induced and thus unenforceable. Finding no basis for the

foregoing proposition under federal or Louisiana law, 43 we reject it.

In Dealy, we held that an indemnity agreement is une nfo rceable due to fraud in the

subscription agreement where the surety was "a party to the fraud [as an aider or abettor] or a

coconspirator in it". 911 F.2d at 1100. 44 We thus apply the reasoning of Dealy, and conclude that

because appellants have failed to produce more than a scintilla of evidence of Home and Graham's

involvement in the alleged fraud, see supra, federal law does not provide a defense.

Our analysis of Louisiana law produces the same result. Even if we construe the indemnity

and subscription agreements as interdependent, 45 we conclude that appellants, at a minimum, must

meet the requirements of La.Civ.Code.Ann. art 1956, which provides: "Fraud committed by a third

person vitiates the consent of a contracting party if the other party knew or should have known of

the fraud". 46 C

f. Bre aux v. Equity Group, 1989 WL 1764 *2, 1989 U.S.Dist. LEXIS 235 *5the surety was alleged to be a party").

47 We also reject appellants' attempt to nullify the indemnity agreement based on the "failure of

cause". "Cause is the reason why a party obligates himself". La.Civ.Code.Ann. art. 1967.

According to appellants, "[i]f the partnership agreement is extinguished by fraud, the cause for the

indemnity contract no longer exists". This, of course, cannot be; otherwise, the validity of all

such indemnity agreements would unconditionally hinge on the validity of the separate

subscription agreement. (E.D.La.1989).

To satisfy article 1956, appellants must not only show that a reasonable jury could find the

requisite knowledge based on the Duane Memo (and subsequent insertion of exculpatory language

in the PPM), but, also, that error resulting from the alleged misrepresentations and material omissions

contained in the PPM, and referenced in the Duane Memo, "substantially influenced that consent".

La.Civ.Code.Ann. art. 1955. Because the summary judgment record is lacking on evidence of

reliance, see supra note 39, appellants' fraud defense fails. S ee In re J.M.P., 528 So.2d 1002, 1010

(La.1988) (stating that to vitiate consent on the ground of fr aud, "the party who asserts that the

obligation is null must prove some type of causal relationship between his consent and the vice that

influenced it"). 47

Appellants next assert that even if the indemnity a g reement is independent, rather than

interdependent, and thus unaffected by fraud in the inducement of the subscription agreement, it does

not obligate them to indemnify Home. A contract of indemnity is construed in accordance with the

general rules governing contract interpretatio n—"[w]hen the words of a contract are clear,

unambiguous, and lead to no absurd consequences, the contract is interpreted by the court as a

matter of law. " C

arter v. BRMAP, 591 So.2d 1184, 1188 (La.App. 1s t Cir.1991) (emphasis in

original). "Agreements to indemnify are strictly construed and the party seeking to enforce such an

agreement bears the burden of proof." L iem v. Austin Power, Inc., 569 So.2d 601, 608 (La.App. 2d

Cir.1990).

The indemnity agreement provides:

The [investor] will protect, indemnify, and save harmless [Home] from and against any and

all liabilit y, lo ss, costs, damages, fees of attorneys, and other expenses which [Home] may

sustain or incur under or in connection with the Bonds hereunder, or in connection with this

Agreement, for:48 The bonds provide: "Surety waives for the benefit of the Permitted Assignee only all

defenses of any kind either Surety or any Principal might have with respect to any or all Note(s)

or the obligation to pay any or all Note(s) up to the Sub-Limit of Liability applicable on each

Note or the Limit of Liability as defined herein ". (Emphasis in original.)

49 It states:

Because each investor's obligation to the Surety under the Indemnification and

Security Agreement is unconditional, the result may be that the investor will be

obligated to make payments to the Partnership or a financial institution even

though it may have a claim against the lender of the Term Debt or the Partnership.

The essence of the Financial Guarantee Bond is that each investor's obligation to

make payments on the Installment Notes are absolute and may not be avoided or

postponed for any reason.

50 In addition, we refuse to consider those issues that were not raised in district court ("the

abuse of rights doctrine"), or properly briefed on appeal (La.Civ.Code Ann. art. 1759 and 1772).

See Jernigan v. Collins, 980 F.2d 292, 297 n. 1 (5th Cir.1992) (issues waived if presented for the

first time on appeal), cert. denied, --- U.S. ----, 113 S.Ct. 2977, 125 L.Ed.2d 675 (1993); United . . . . .

(c) all demands, liabilit ies, losses, charges and expenses of every kind, which [Home] may

become liable to pay or have paid by reason of or in consequence of the execution by [Home]

of the Bonds in favor of the [investor].

The referenced bonds provide that "[a] default occurs regardles s o f whether the Principal for any

reason shall have no legal o bligation to discharge his, her or its obligations u nder the Notes to the

Obligee or the Permitted Assignee whichever holds the Note(s) which are guaranteed in part by the

Surety ". (Emphasis in original.) In the same paragraph, Home waives its defenses to payment. 48

In view of this language, we conclude that the indemnity agre e ment encompasses fraud;

however, even if we accept appellants' assertion that the contract is ambiguous and thus look outside

the contract to discern the parties' intent, appellants nonetheless fail to create a material fact issue.

The first supplement to the PPM evidences Home's intent that the indemnity agreement impose an

unconditional obligation on the investors. 49 Appellants, on the other hand, did not adduce evidence

demonstratin g t heir intent. Accordingly, uncontradicted evidence establishes that the indemnity

agreements do not provide a defense t o enforceability. S ee Carter, 591 So.2d at 1192 (granting

summary judgment where nonmovant f ailed t o raise a genuine issue of material fact as to the

contract's proper interpretation).

We summarily dismiss appellants remaining two bases for nullifying their obligations. 50 First,Paperw

orkers Int'l Union v. Champion Int'l Corp., 908 F.2d 1252, 1255 (5th Cir.1990) (same

regarding issues raised for the first time in a reply brief).

51 Pursuant to La.Civ.Code Ann. art. 3052, a surety who has paid the debt of a principal/debtor

has a right of indemnification from the debtor, subject to certain restrictions.

52 See also Liem, 569 So.2d at 608 (reiterating that the indemnity contract "forms the law

between the parties," and noting that "[t]he purpose of an indemnity agreement is to allocate the

risk inherent in the activity between the parties to the contract").

53 Under § 29(b), an innocent party may avoid a contract if (1) the contract was made or

performed in violation of the securities laws; (2) the plaintiff is in contractual privity with the

defendant; and (3) the plaintiff is in the class of persons the statute was designed to protect.

Regional Properties, Inc. v. Financial & Real Estate Consulting Co., 678 F.2d 552, 559 (5th

Cir.1982).

54 As stated supra, they maintain that the fraudulently induced subscription agreements

rendered the indemnity agreements unenforceable. appellants' reliance on codal suretyship arguments is misplaced. They seek to nullify the indemnity

agreements, not their obligation to Home arising from Home's issuance of the bonds. 51 As stated in

Commercial Union Ins. Co. v. Melikyan, 430 So.2d 1217, 1221 (La.App. 1st Cir.1983), a contract

on indemnity is different from a contract on suretyship:

The contract of indemnity forms the law bet ween the parties and must be interpreted

according to its own terms and condition s.... [I]n an indemnity contract, the principal and

indemnitors can be bound to the surety in any manner they elect in consideration of the surety issuing the bond covering the principal obligation. 52

Second, we reject appellants' attempt to void the indemnity agreements pursuant to § 29(b)

of the 1934 Act, 15 U.S.C. § 78cc(b). 53 The indemnity agreements, standing alone, were not made

or performed in violation of the securities laws. 54 S ee, Regional Properties, Inc., 678 F.2d at 561 n.

16.

In sum, appellants failed to establish a material fact issue regarding the enforceability of the

indemnity agreements. Accordingly, in view of their plain meaning, we conclude, as a matter of law,

that investors are obligated to Home, and thus affirm t he summary judgment. In so doing, we

complete our review of the summary judgment, and turn to appellants' contentions concerning the

district court's post-judgment rulings.

B. Post-Judgment Rulings

Appellants object to the rulings on their attem pt to rely on a newly raised legal theory as a55 Rule 10b-9 states in pertinent part:

It shall constitute a manipulative or deception device or contrivance, as used in

section 10(b) of the Act, for any person, directly or indirectly, in connection with

the offer or sale of any security, to make any representation:

. . . . .

(2) to the effect that the security is being offered or sold on any other basis

whereby all or part of the consideration paid for any such security will be refunded

to the purchaser if all or some of the securities are not sold, unless the security is

part of an offering or distribution being made on the condition that all or a

specified part of the consideration paid for such security will be promptly refunded

to the purchaser unless (i) a specified number of units of the security are sold at a

specified price within a specified time, and (ii) the total amount due to the seller is

received by him by a specified date.

17 C.F.R. § 240.10b-9 (1992) (emphasis in original). "Once the part or none

representation has been made, it may not be circumvented by transactions primarily

designed to create the appearance of a successful offering in order to avoid the refund

feature of the offering". C.E. Carlson, Inc. v. S.E.C., 859 F.2d 1429, 1434 (10th

Cir.1988). basis for reconsideration of the summary judgment. Judgment was entered on January 31, 1992. Ten

days later (February 10), appellants moved for a new trial (Fed.R.Civ.P. 59), reiterating arguments

presented in their pre-judgment motions.

A month later (March 9), appellant-investor Turnbull enrolled new counsel, who, on March

27, filed a motion for leave to file a supplemental memorandum in support of the February 10 motion.

The supporting memorandum, adopted by the other plaintiff-investors, asserted for the first time that

Home and Graham had aided and abetted Equity in violation of Rule 10b-9, issued under § 10(b) of

the 1934 Act. 55 The court denied the motion for leave to supplement, stating that "[t]he issues raised

in this supplemental memo have never been presented before". Turnbull requested reconsideration.

On April 1, the parties argued the merits of the original (February 10) motion for a new trial.

In addition, Tur nbull urged that the court consider the Rule 10b-9 theory presented in the

supplemental memorandum (which the court had not allowed to be filed), and gave a brief overview

of the applicable law. The court agreed with Home and Graham that Rule 10b-9 had not been raised

in six years of litigation, and thus refused to consider the new theory/issue. The court also denied the

motion for a new trial.56 As appellants point out, Rule 10b-9 is often coterminous with Rule 10b-5; see Carlson, 859

F.2d at 1434 (stating Rule 10b-5 proscribes conduct violative of Rule 10b-9); however, the

reverse is less often true. Here, for example, appellants' Rule 10b-5 theory was not based on

misrepresentations surrounding the alleged "part-or-none offering". Accordingly, among the

issues discussed at length by appellants for the first time were (1) whether Courtside was a

part-or-none offering; (2) whether investor funds were used by Equity without first meeting the

minimum offering amount; and (3) whether the minimum offering amount was reached through

non-bona fide purchases.

Appellants' assertion that these arguments were raised previously is not supported

by the record. Evidence of the formation of the E-C partnerships was used primarily to

establish Home and Graham's involvement with Equity, not to establish that formation of

those partnerships contravened the terms of the offering in violation of § 10 and Rule 10b5.

57 After the district court's refusal to reopen the case, Turnbull filed a motion requesting that

her supplemental memorandum (with attached deposition excerpts and exhibits) be included in the

record for appeal purposes, which the court denied, stating: "Mrs. Turnbull's request and her

reasons for that request are in the record. That, the court permitted". Turnbull then filed a Appellants do not dispute the district court's disposition of their motion for a ne w trial ;

rather, they object to its refusal to consider Turnbull's supplemental memorandum. For starters, they

contend that simply by raising § 10(b) early on, they put in issue any and all rules adopted pursuant

to it. Obviously, this contention is totally without merit. It goes without saying that, in order to be

properly raised, an issue must be more specifically framed than as appellants claim. Otherwise, the

court, not the parties, would be charged with deciding which claims should be pursued.

Appellants also use more specific approaches to attem pt t o save this new issue. "[A] trial

court may in the exercise of its sound discretion allow a tardy amendment stating an additional

ground for a new trial." D otson v. Clark Equipment Co., 805 F.2d 1225, 1228 (5th Cir.1986)

(emphasis in original). The district court certainly did not abuse its discretion, considering the basis

for the motion, the length of delay, and the lack of explanation for not having t imely raised the issue.

First, we agree with the district court that the Rule 10b-9 theory is "new". (In fact, at the

April 1 hearing, Turnbull's counsel admitted that a new theory was being presented: "I suggest that

all the facts are before the Court, have been before th e Court, and this is simply a nother theory. "

(Emphasis added.)) As is apparent from Turnbull's post-judgment efforts and brief o n appeal,

appellants' theory requires the assertion of legal issues not previously raised; 56 the introduction of

additional evidence; 57 and the analysis of a different law. 58second motion to supplement the record with approximately 150 pages of deposition excerpts

relating to her Rule 10b-9 theory. The court, referring to Topalian v. Ehrman, 954 F.2d 1125

(5th Cir.1992), again denied her attempt to include materials in the appellate record that were not

before the district court, stating: "I think they don't belong here. I didn't consider them. There

was a new issue that your client is attempting to inject in this record at this late date and I'm just

going to not rule in your favor".

Even if the court abused its discretion in refusing to allow Turnbull to supplement

the record for appeal, any error is harmless, because our review is limited to the record

before the district court when it ruled. See Topalian, 954 F.2d at 1131-32 n. 10 ("This

court's inquiry is limited to the summary judgment record before the trial court: the

parties cannot add exhibits, depositions, or affidavits to support their positions on

appeal."). For the same reason, we refuse to consider that evidence as it appears in

Turnbull's record excerpts.

58 In fact, this circuit has not yet determined whether Rule 10b-9 provides a private cause of

action, and, if so, whether that encompasses a claim based on allegations of aiding and abetting.

See Bormann v. Applied Vision Systems, Inc., 800 F.Supp. 800, 806 (D.Minn.1992) (concluding

private action exists under Rule 10b-9); accord Beaumont v. American Can Co., 797 F.2d 79, 84

(2d Cir.1986) (questioning existence of private remedy for violations of Rules 10b-6 and 10b-13).

59 Of course, in keeping with the district court's "considerable discretion" in deciding whether

to reopen a case, we do not read these cases to imply that it lacks discretion to consider a new

legal theory on a post-judgment motion. See United States use of American Bank v. C.I.T.

Const., Inc., 944 F.2d 253, 259 n. 8 (5th Cir.1991) ("district court possesses the discretion to

consider a claim raised for the first time in a posttrial motion").

60 It follows that the court did not abuse its discretion by refusing to review the merits of the

supplemental memorandum. Once the court considered the above factors, it was under no

obligation to do so. The court was under no obligation to permit appellants to interject a new legal theory, without

explanation, after they had failed to do so during three years o f discovery, two additional years

between the court's granti ng summary judgment and entering judgment, and almost two months

following that entry. S ee Allied Bank-West, N.A. v. Stein, 996 F.2d 111, 115 (5th Cir.1993) (internal

qu ot at ions omit ted) ("[m]otions for new trial cannot be used to argue a case under a new legal

theory"); S imon v. United States, 891 F.2d 1154, 1159 (5th Cir.1990) (stating same with respect to

a motion to alter or amend); 59 s ee also Russ v. International Paper Co., 943 F.2d 5 89, 593 (5th

Cir.1991) (denying Rule 59(e) motion for reconsideration because plaint iff did not explain his failure

to submi t evidentiary materials prior to judgment). 6 0 As stated, the district court did not abuse its

discretion.

III.For the foregoing reasons, the judgment of the district court is

AFFIRMED.