Graff v. Field

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-10702
_____________________
HERBERT R GRAFF; CARL W MANGUS; STEVE FEDORKO; ED J
PAYNE; LARRY FLOOD; VINCE SCARICH; OTTO NASS,
Plaintiffs-Appellees,
v.
DONALD L FIELD, JR,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
August 19, 1999
Before KING, Chief Judge, and REYNALDO G. GARZA and JOLLY,
Circuit Judges.
KING, Chief Judge:*
Defendant-appellant Donald Field, Jr. appeals an adverse
judgment following a jury verdict in favor of plaintiffs-
appellees on their state-law claims that he fraudulently sold
them securities in an oil-drilling concern. Field argues that
the district court erroneously denied him summary judgment on
plaintiffs-appellees’ federal securities claims and improperly
maintained supplemental jurisdiction over plaintiffs-appellees’
state-law claims. Field also contends that there is insufficient
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
evidence to support the jury’s findings that Field committed
common-law fraud. We affirm the judgment.
I. FACTUAL BACKGROUND
This case arises from the sale of securities issued by Tekna
Synergy Corporation (Tekna) between January and September 1992.
Tekna obtained approximately $1.5 million through the sale of
securities to investors, including over $750,000 from plaintiffs-
appellees (plaintiffs), and represented that the proceeds would
be used to drill both horizontal and vertical shafts for three
oil wells. Tekna did not disclose, however, that other oil
companies had already drilled and abandoned vertical shafts for
these wells, and that therefore Tekna did not need to perform
vertical drilling.
Defendant-appellant Donald Field, Jr. is a licensed attorney
who incorporated Tekna and served as a director and its president
through September 1992. Field acted as the chief executive
officer and supervised and controlled the business affairs of
Tekna. Field stipulated that he assisted outside attorneys in
preparing the prospectuses that were delivered to plaintiffs and
other potential investors, and he testified that he reviewed the
prospectuses prior to their distribution and “was satisfied with
the language of what they put together.” These prospectuses
falsely represented that Tekna would spend approximately $1.4
million for the vertical drilling of the three wells.
The Securities and Exchange Commission (the SEC) brought
suit against Tekna in the United States District Court for the
2
Northern District of Texas in 1993 (the SEC action). The SEC
sought an injunction preventing Tekna from violating federal
securities laws in connection with the sale of securities in the
form of fractional undivided interests in oil and gas wells or
investment contracts. The SEC action was assigned to United
States District Judge John McBryde, and the district court issued
an injunction and ultimately entered judgment in favor of the SEC
based on consent decrees entered by the parties.
II. PROCEDURAL HISTORY
Plaintiffs filed suit against Tekna’s officers, including
Field, in the United States District Court for the Northern
District of Texas in October 1993 (the 1993 action). Plaintiffs
alleged that Tekna and its officers had made fraudulent
misrepresentations in the sale of Tekna securities in violation
of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C.
§ 78j, and SEC Rule 10b-5, 17 C.F.R. § 240.10b-5;1 the Texas
Securities Act, TEX. BUS. & COM. CODE ANN. § 27.01; and the
1
Section 78j provides in relevant part:
It shall be unlawful for any person, directly or indirectly,
by the use of any means or instrumentality of interstate
commerce or of the mails . . . [t]o use or employ, in
connection with the purchase or sale of any security . . .
any manipulative or deceptive device or contrivance in
contravention of such rules and regulations as the [SEC] may
prescribe as necessary or appropriate in the public interest or
for the protection of investors.
15 U.S.C. § 78j. Under SEC Rule 10b-5, it is unlawful for any
person “[t]o make any untrue statement of a material fact or to
omit to state a material fact necessary in order to make the
statements made, in the light of the circumstances under which
they were made, not misleading . . . in connection with the
purchase or sale of any security.” 17 C.F.R. § 240.10b-5 (1998).
3
Deceptive Trade Practices-Consumer Protection Act, TEX. BUS. &
COM. CODE ANN. §§ 17.41-.63. Further, plaintiffs alleged that
Tekna and its officers had engaged in common-law fraud and
breached fiduciary duties they owed plaintiffs by selling them
Tekna securities. The 1993 action was also assigned to Judge
McBryde, and trial was scheduled to commence on April 24, 1995.
On March 31, 1995, Field filed a petition under Chapter 13
of the Bankruptcy Code in the United States Bankruptcy Court for
the Northern District of California. See 11 U.S.C. § 1301-1330.
The district court ordered that plaintiffs decide whether to (1)
seek to lift the automatic stay and proceed against Field in the
1993 action or (2) dismiss Field from the 1993 action and pursue
their claims against him in bankruptcy court. On April 21, 1995,
plaintiffs moved to dismiss Field from the 1993 action and stated
an intent to pursue their claims in the bankruptcy court. The
district court dismissed plaintiff’s claims against Field without
prejudice on April 24, 1995. Plaintiffs prevailed at trial
against the remaining Tekna officers and ultimately obtained a
judgment against them.
Field filed an application to dismiss his bankruptcy case on
November 6, 1996. The bankruptcy court granted the application
the following day, and on November 14, 1996, the clerk of the
bankruptcy court issued notice that Field’s bankruptcy case had
been dismissed. Plaintiffs filed the instant suit on January 7,
1997, again alleging that Field violated federal securities laws,
the Texas Securities Act, and the Texas Deceptive Trade
4
Practices-Consumer Protection Act, and engaged in common-law
fraud in the sale of Tekna securities to plaintiffs.
Field filed a motion for summary judgment on plaintiffs’
federal securities claims and for dismissal of plaintiffs’ state-
law claims on February 10, 1997. Field asserted that he was
entitled to summary judgment under 15 U.S.C. § 78i(e)2 because
more than three years had elapsed since the alleged violation and
that therefore plaintiffs could not proceed on their federal
claims. Field further argued that plaintiffs’ state-law claims
must be dismissed because supplemental jurisdiction under 28
U.S.C. § 1367©3 would no longer be appropriate once summary
judgment was entered. Plaintiffs opposed Field’s motion for
summary judgment, arguing that the dismissal of Field’s
bankruptcy case restored the status quo ante as though Field’s
bankruptcy petition had never been filed and that it would be
2
Section 78i(e) provides that “[n]o action shall be
maintained to enforce any liability created under this section,
unless brought within one year after the discovery of the facts
constituting the violation and within three years after such
violation.”
3
Section 1367(c) provides that a district court
may decline to exercise supplemental jurisdiction over a
claim . . . if--
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or
claims over which the district court has original
jurisdiction,
(3) the district court has dismissed all claims over which
it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling
reasons for declining jurisdiction.
5
inequitable for Field to benefit under the statute of limitations
as a result of his “manipulation” of the bankruptcy process.
The district court denied Field’s summary judgment motion
without explanation on March 5, 1997. The case proceeded to
trial, which was scheduled for July 14, 1997. On July 9, 1997,
plaintiffs filed a motion to abandon and dismiss their federal
securities claims against Field, leaving only state-law claims
for trial. The district court granted the motion, and the jury
returned a verdict in favor of plaintiffs on their claims under
both the Texas Securities Act and common-law fraud. Field sought
judgment as a matter of law, arguing that the district court
lacked subject matter jurisdiction because plaintiffs’ federal
securities claims were barred by the statute of limitations and
that the jury’s findings on common-law fraud were based on
insufficient evidence.
The district court entered judgment against Field for
approximately $3.8 million based on plaintiffs’ fraud cause of
action on June 4, 1998. The court stated that it “had no reason
to change” its March 1997 ruling on the statute of limitations
issue, and that otherwise “Field would have been permitted to
manipulate the bankruptcy laws in a highly inappropriate manner
to defeat claims against him.” The court stated that its
conclusion was not based on equitable tolling, but rather on its
view that “plaintiffs’ action against defendant was actually
filed . . . in October 1993 when plaintiffs filed their initial
suit.” The district court further determined that sufficient
6
evidence was presented to support the jury’s verdict on common-
law fraud. Field timely appeals.
III. DISCUSSION
Field argues again in this appeal that the district court
erred by denying his motion for summary judgment on plaintiffs’
federal securities claims because those claims were barred by the
statute of limitations. Field asserts that plaintiffs’ federal
claims were “clearly barred by [the] Supreme Court opinion” in
Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S.
350 (1991) [hereinafter Lampf], and that therefore the district
court “had no discretion to retain” plaintiffs’ state-law claims.
Further, even if the district court did have discretion to retain
plaintiffs’ state-law claims, Field argues that its retention of
these claims constituted an abuse of discretion because his
motion for summary judgment “was filed at the very outset of the
litigation.” Finally, Field contends that the district court
erroneously denied him judgment as a matter of law because
“[t]here is no more than a scintilla of evidence in the record to
support the jury’s verdict” on plaintiffs’ common-law fraud
claims. We address these arguments in turn.
A. Statute of Limitations
We review de novo the district court’s decision denying
Field summary judgment on his claim that plaintiffs’ federal
claims are time-barred. See Texas Manufactured Housing Ass’n v.
City of Nederland, 101 F.3d 1095, 1099 (5th Cir. 1996). Summary
judgment is appropriate where “the pleadings, depositions,
7
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” FED. R. CIV. P. 56(c). We note,
however, that the statute of limitations issue that we now
consider is relevant only because Field argues that the district
court erroneously retained supplemental jurisdiction over
plaintiffs’ state-law claims-–plaintiffs voluntarily dismissed
the federal securities claims that Field argues are time-barred
and the judgment appealed from is based only on the jury’s
verdict that Field engaged in common-law fraud.
The limitations period for plaintiffs’ claims under § 10(b)
of the Securities Exchange Act and SEC Rule 10b-5 is that
prescribed in 15 U.S.C. § 78i(e)–-one year from the date of
discovery of the facts constituting the alleged violation or
three years from the date of the transaction. See Lampf, 501
U.S. at 364. It is undisputed that the transactions at issue
here occurred no later than September 1992, but plaintiffs did
not file the instant suit until January 1997. Furthermore,
“[b]ecause the purpose of the 3-year limitation is clearly to
serve as a cutoff,” plaintiffs’ federal claims cannot be
considered timely as a result of equitable tolling. Id. at 363
(“[I]t is evident that the equitable tolling doctrine is
fundamentally inconsistent with the 1-and-3-year structure.”).
Nor does plaintiffs’ filing of the 1993 action operate to toll
the limitations period with respect to Field because plaintiffs
8
voluntarily dismissed Field from that action in April 1995. See
Basco v. American Gen. Ins. Co., 43 F.3d 964, 965-66 (5th Cir.
1994) (“A federal statute of limitations is not tolled when the
plaintiff files a claim that later is voluntarily dismissed.”);
Taylor v. Bunge Corp., 775 F.2d 617, 619 (5th Cir. 1985); see
also 9 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE
§ 2367 (1995) (“The statute of limitations is not tolled by
bringing an action that later is dismissed voluntarily under
[Federal Rule of Civil Procedure] 41(a).”).
Plaintiffs contend on appeal that the district court
properly denied Field summary judgment on their federal
securities claims under the doctrine of equitable estoppel and
that their claims are timely under 11 U.S.C. § 108(c).4
Plaintiffs argue that the Lampf decision prevents only the
equitable tolling of a claim under the discovery rule, and that
4
Section 108(c) provides that
[I]f applicable nonbankruptcy law . . . fixes a period for
commencing or continuing a civil action in a court other
than a bankruptcy court on a claim against the debtor, or
against an individual with respect to which such individual
is protected under section 1201 or 1301 of this title, and
such period has not expired before the date of the filing of
the petition, then such period does not expire until the
later of–-
(1) the end of such period, including any suspension of such
period occurring on or after the commencement of the case;
or
(2) 30 days after notice of the termination or expiration of
the stay . . . with respect to such claim.
11 U.S.C. § 108(c). Neither party argued, and the district court
did not mention, whether § 108(c) applies to plaintiffs’ federal
securities claims until after the district court entered final
judgment, and the notice of appeal had been filed, in June 1998.
9
their federal claims should be considered timely under equitable
estoppel because “it was [Field’s] bankruptcy proceedings . . .
which prevented [plaintiffs] from prosecuting the federal
securities causes of action against him.” Plaintiffs further
argue that their claims are timely under 11 U.S.C. § 108(c)
because the limitations period is suspended during the pendency
of a bankruptcy proceeding under Texas law and Field offered no
evidence indicating that they received notice of the dismissal of
his bankruptcy petition more than thirty days before filing the
instant suit.
Even if plaintiffs are correct in their contention that
equitable estoppel survives the Supreme Court’s determination in
Lampf that “tolling principles do not apply” to the limitations
period for federal claims under § 10(b) of the Securities
Exchange Act or SEC Rule 10b-5, we still must reject plaintiffs’
argument that their claims are properly considered timely under
the doctrine. “Under the doctrine of equitable estoppel, a
defendant is estopped from asserting a limitations defense when
its conduct induced or tricked a plaintiff into allowing a filing
deadline to pass.” McAllister v. FDIC, 87 F.3d 762, 767 (5th
Cir. 1996); see also Tregenza v. Great Am. Communications Co., 12
F.3d 717, 721 (7th Cir. 1993) (describing equitable estoppel as
where “the plaintiff might have the required information–-actual
knowledge of the violation or inquiry notice, as the case may
be--yet be thwarted from suing in time by misrepresentations or
other actions by the defendant; for example, the defendant might
10
have promised not to plead the statute of limitations.”). We
fail to understand how Field’s bankruptcy filing can be said to
have induced plaintiffs into allowing the limitations period to
run when plaintiffs had already filed suit against Field at the
time he filed his bankruptcy petition. Furthermore, even if
Field’s bankruptcy petition did perform such a function, § 108(c)
provides plaintiffs relief from such an inducement by allowing
them an additional thirty days to file suit following the
dismissal of the bankruptcy petition. See Hazen First State Bank
v. Speight, 888 F.2d 574, 577 (8th Cir. 1989) (“The purpose of
section 108(c) is to prevent a debtor from taking advantage of
the bankruptcy scheme by filing for bankruptcy and then waiting
for the statute of limitations to run on the creditor’s claim.”).
We also must reject plaintiffs’ argument that their federal
securities claims are timely under § 108(c). Plaintiffs waited
almost two months after the clerk issued notice that Field’s
bankruptcy petition had been dismissed, and plaintiffs have
offered no evidence suggesting the existence of a genuine issue
of material fact, and have not even argued, that they filed this
suit within thirty days of receiving such notice. Plaintiffs do
argue that the term “any suspension” in § 108(c)(1) “include[s] a
suspension granted by state law, whether it be by statutory or by
common law,” and that because Texas law provides for the tolling
of limitations periods during bankruptcy, their federal
securities claims should be similarly tolled under § 108(c)(1).
Although it may be appropriate for a federal court to look to
11
state law in determining the impact of a bankruptcy proceeding on
the limitations period for a state-law cause of action, see
Pettibone Corp. v. Easley, 935 F.2d 120, 121 (7th Cir. 1991)
(stating that “[f]ederal law assured the plaintiffs [in a
personal injury action] 30 days in which to pick up the baton; if
states want to give plaintiffs additional time [by tolling the
statute of limitations during the bankruptcy proceeding], that is
their business”), we must rely on federal law in determining the
appropriate limitations period for plaintiffs’ federal securities
claims. See Lampf, 501 U.S. at 359, 363. We therefore conclude
that plaintiffs’ federal claims were time-barred and that the
district court should have granted Field summary judgment on
those claims.
B. Supplemental Jurisdiction
Our determination that the district court should have
granted summary judgment on plaintiffs’ federal securities
claims, however, does not compel the conclusion that the district
court erred by exercising supplemental jurisdiction over
plaintiffs’ state-law claims. Rather, we review a district
court’s decision to exercise supplemental jurisdiction over
pendent state-law claims for an abuse of discretion, standing in
the place of the district court as of the filing of the motion to
dismiss “and not with the benefit of hindsight.” Parker &
Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580, 585, 587
(5th Cir. 1992) (noting that “a court cannot obtain jurisdiction
over a case merely by trying it”). “Our review is guided by the
12
relevant statutory provisions governing the exercise of
supplemental jurisdiction, see 28 U.S.C. § 1367(c), as well as
the Supreme Court’s articulation of the scope and nature of
district courts’ discretion in exercising jurisdiction over
pendent state law claims.” McClelland v. Gronwaldt, 155 F.3d
507, 519 (5th Cir. 1998). We therefore consider both the
provisions of 28 U.S.C. § 1367(c) and the balance of the relevant
factors of judicial economy, convenience, fairness, and comity in
determining whether the district court abused its discretion by
retaining jurisdiction over plaintiffs’ state-law claims. See
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350-51 (1988);
United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); Batiste
v. Island Records, Inc., 179 F.3d 217, 227 (5th Cir. 1999).
Field argues that the district court “had no discretion to
retain” plaintiffs’ state-law claims because the district court
lacked subject matter jurisdiction over plaintiffs’ federal
securities claims. Field asserts that subject matter
jurisdiction was lacking because plaintiffs’ federal claims “were
clearly barred” under Lampf and their “sole motivation in
asserting violations of Rule 10b-5 . . . [was to] obtain the
benefit of [a] federal forum to try [their] state law causes of
action.” Field relies on several of our cases that are based on
the Supreme Court’s determination in Bell v. Hood, 327 U.S. 678,
682-83 (1946), that “a suit may sometimes be dismissed for want
of jurisdiction where the alleged claim under the Constitution or
federal statutes clearly appears to be immaterial and made solely
13
for the purpose of obtaining jurisdiction or where such a claim
is wholly insubstantial and frivolous.” See also Parker &
Parsley Petroleum, 972 F.2d at 585 n.6 (“We have held that the
Hood standard is met only where the plaintiff’s claim ‘has no
plausible foundation’ or is clearly foreclosed by a prior Supreme
Court decision.”) (quoting Williamson v. Tucker, 645 F.2d 404,
416 (5th Cir. May 1981)). Plaintiffs’ federal securities claims
have not met this “onerous standard.” Id. The Supreme Court did
not consider in Lampf how the statute of limitations for a
federal securities action is affected by a prior suit that was
voluntarily dismissed when the defendant filed a bankruptcy
petition, or by the bankruptcy proceeding itself. Furthermore,
we cannot say that plaintiffs’ argument regarding equitable
estoppel is without a “plausible foundation” when the district
court, without the benefit of the parties’ arguments under 11
U.S.C. § 108(c), relied upon it and the Seventh Circuit has
stated that “there may still be room” for such an argument after
Lampf. Tregenza, 12 F.3d at 721.
Although we have expressed as a “general rule” that district
courts should decline to exercise jurisdiction over pendent state
law claims when all federal claims are dismissed or otherwise
eliminated from a case prior to trial, “this rule is neither
mandatory nor absolute.” Batiste, 179 F.3d at 227; see Cohill,
484 U.S. at 350 n.7 (“[I]n the usual case in which all federal-
law claims are eliminated before trial, the balance of factors to
be considered under the pendent jurisdiction doctrine . . . will
14
point toward declining to exercise jurisdiction over the
remaining state-law claims.”). Thus, while the fact that the
district court should have granted Field summary judgment on
plaintiffs’ federal securities claims “provides ‘a powerful
reason to choose not to continue to exercise jurisdiction,’ no
single factor is dispositive in this analysis.” McClelland, 155
F.3d at 519 (quoting Cohill, 484 U.S. at 351). We therefore
review the district court’s decision denying Field’s motion to
dismiss plaintiffs’ state-law claims “in light of the specific
circumstances of the case at bar.” Id.
We conclude that the factor of judicial economy weighs
heavily in favor of the district court’s decision to exercise
jurisdiction over plaintiffs’ state-law claims. The 1993 action,
involving the same plaintiffs and the same claims, had been
pending in the district court for a year and a half when the
district court ordered them to either seek to have the automatic
stay lifted or voluntarily dismiss Field from the suit on the eve
of trial, and Field had participated in discovery and motion
hearings before Judge McBryde and the preparation of a pretrial
order. Judge McBryde continued to preside over the 1993 action
during trial, and had been the presiding judge in the earlier SEC
action. See Parker & Parsley Petroleum, 972 F.2d at 587 (“[T]he
amount of judicial resources that the case has consumed is most
important for our analysis as an indication of the familiarity of
the forum with the case and its ability to resolve the dispute
efficiently.”). We have no doubt that Judge McBryde had become
15
intimately familiar with the merits of plaintiffs’ claims at the
time Field filed his motion to dismiss plaintiffs’ state-law
claims, thus demonstrating that further proceedings in the
district court prevented redundancy and conserved scarce judicial
resources. See Batiste, 179 F.3d at 228.
The factors of convenience, comity, and fairness to the
parties also favor the district court’s decision to retain
jurisdiction over plaintiffs’ state-law claims. The significant
discovery that occurred in the 1993 action, including depositions
of all plaintiffs, facilitated a shortened discovery schedule and
an expedited trial date. Plaintiffs had pursued their federal
securities claims against Field in a timely manner in the 1993
action, and it was only after Field filed a bankruptcy petition
and the district court ordered plaintiffs to either voluntarily
dismiss their claims against Field or seek a lifting of the
automatic stay that plaintiffs’ federal claims became time-
barred. Furthermore, we note that the district court would have
already resolved in the 1993 action any difficult state-law
questions now arising from plaintiffs’ state-law claims. Cf.
Parker & Parsley Petroleum, 972 F.3d at 589 (stating that
principles of comity point toward dismissal because “[a]ll of the
remaining legal issues of the case, of course, are of state
law . . . [and] are difficult ones”). We therefore conclude that
the factors of comity, convenience, and fairness to the parties
point strongly toward our conclusion that the district court did
16
not abuse its discretion by retaining plaintiffs’ state-law
claims.
After considering and weighing all the factors present in
this case, and relying especially on the amount of discovery that
had already taken place and on our conclusion that the district
court was intimately familiar with plaintiffs’ claims, we thus
conclude that the district court’s retention of plaintiffs’
state-law claims following Field’s motion for summary judgment on
plaintiffs’ federal claims was within its discretion. We
therefore proceed to consider Field’s contention that the
district court erroneously denied him judgment as a matter of law
because there is insufficient evidence supporting the jury’s
verdict that he committed common-law fraud.
C. Sufficiency of the Evidence
A party is entitled to judgment as a matter of law only if
“there is no legally sufficient evidentiary basis for a
reasonable jury to find for [the other] party on that issue.”
FED. R. CIV. P. 50(a). “Judgment as a matter of law is proper
only if[] ‘the facts and inferences point so strongly and
overwhelmingly in favor of one party that the Court believes that
reasonable men could not arrive at a contrary verdict . . . .’”
Buford v. Howe, 10 F.3d 1184, 1187 (5th Cir. 1994) (quoting
Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en
banc)).
17
We have carefully reviewed the record and agree with the
district court’s determination that there is sufficient evidence
of Field’s participation for the jury to find him liable for
common-law fraud. See Elliott v. Tilton, 89 F.3d 260, 264 (5th
Cir. 1996) (“In general, “[a] person cannot be held liable for a
fraudulent representation unless he made it himself or authorized
another to make it for him or in some way participated
therein . . . .”) (quoting First Dallas Petroleum, Inc. v.
Hawkins, 727 S.W.2d 640, 648 (Tex. App.--Dallas 1987, no writ));
Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 375 (Tex.
1984) (“A corporation’s employee is personally liable for
tortious acts which he directs or participates in during his
employment.”). Field testified that he supervised and controlled
the business affairs of Tekna, and he stipulated that he assisted
outside attorneys in preparing the prospectuses that contained
fraudulent statements. Furthermore, Field testified that he read
and reviewed these prospectuses before they were distributed to
plaintiffs. We therefore affirm the district court’s decision
denying Field judgment as a matter of law.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
18