Grynberg v. Total S.A.

FILED
United States Court of Appeals
Tenth Circuit

August 26, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JACK J. GRYNBERG; GRYNBERG
PRODUCTION CORPORATION, and
its successors; GRYNBERG
PETROLEUM COMPANY, and its
successors,

Plaintiffs - Appellants,
v. No. 06-1328
TOTAL S.A.,

Defendant - Appellee.
_____________________________

JACK J. GRYNBERG; GRYNBERG
PRODUCTION CORPORATION and
its successors; GRYNBERG
PETROLEUM COMPANY, and its
successors,

Plaintiffs - Appellants,

v. No. 06-1355

SHELL EXPLORATION B.V. and
SHELL INTERNATIONAL
EXPLORATION AND PRODUCTION
B.V. f/k/a SHELL INTERNATIONAL
PETROLEUM MAATSCHAPPIJ
B.V.,

Defendants - Appellees.
 APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NOS. 03-CV-1280-WYD-BNB and 03-CV-01212-LTB-PAC)

Michael S. Porter, Wheat Ridge, Colorado, (Roger A. Jatko, Grynberg Petroleum
Company, Greenwood Village, Colorado, with him on the briefs) for Plaintiffs -
Appellants Jack J. Grynberg; Grynberg Production Corporation, and its
successors; Grynberg Petroleum Company, and its successors.

John P. Bowman (William J. Boyce, Jennifer Lee Price, and Christopher R. Hart,
with him on the briefs) of Fulbright & Jaworski L.L.P., Houston, Texas, for
Defendant - Appellee, TOTAL S.A.

Roger A. Jatko, Grynberg Petroleum Company, Greenwood Village, Colorado,
for Plaintiff - Appellant Jack J. Grynberg; Grynberg Production Corporation and
its successors; Grynberg Petroleum Company, and its successors.

Graham Kerin Blair, Baker & McKenzie LLP, Houston, Texas (Marcy G. Glenn
and John F. Shepherd, Holland & Hart LLP, Denver, Colorado, and David A.
Brakebill and J. Chad Newton, Baker & McKenzie LLP, with him on the briefs),
for Defendants - Appellees, Shell Exploration B.V. and Shell International
Exploration and Production B.V. f/k/a Shell International Petroleum Maatschappij
B.V.

Before HARTZ, McKAY, and TYMKOVICH, Circuit Judges.

HARTZ, Circuit Judge.

I. INTRODUCTION

Jack Grynberg (Mr. Grynberg), Grynberg Production Corporation, and

Grynberg Petroleum Company (collectively, Grynberg) appeal from summary

judgments in two separate lawsuits, one against Total S.A. and one against Shell

Exploration B.V. and Shell International Exploration and Production B.V.

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(collectively Shell). Both lawsuits, which were filed in 2003 in the United States

District Court for the District of Colorado as diversity actions, see 28 U.S.C.

§ 1332, raised essentially identical claims based on essentially the same factual

allegations. Grynberg alleged that through its special relationship with authorities

in the Soviet Union and Kazakhstan, it obtained valuable information regarding

potential oil and gas reserves in Kazakhstan. After obtaining authority from

Kazakhstan to form a consortium of companies to join with Kazakhstan in

exploring for and developing these reserves, Grynberg approached Shell and Total

in 1990 with its information and reached agreements on joining a consortium.

Shell and Total, however, joined a different consortium and obtained rights to oil

and gas in the very area that was to be the subject of the Grynberg consortium.

Grynberg’s suits against Shell and Total raise against each a tort claim for breach

of fiduciary duty and an equitable claim for unjust enrichment. Shell and Total

moved for summary judgment on the ground that Grynberg’s claims were

untimely, barred by the applicable statute of limitations and laches. The district

judges granted the motions.

We have jurisdiction under 28 U.S.C. § 1291, consolidate the two appeals,

and affirm. The limitations period for Grynberg’s tort claims was three years, and

well more than three years before Grynberg filed suit it should have known—from

news reports and from information disclosed in a settlement with a consortium

partner of Shell and Total—that it could have sued Shell and Total for acquiring

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oil and gas interests in the area that Grynberg’s consortium was to explore and

develop. As for Grynberg’s unjust-enrichment claims, they were barred by laches

because Grynberg has failed to point to any extraordinary circumstance that

would justify extending the laches period beyond the limitations period for the

closely allied tort claims.

II. THE COMPLAINTS

The allegations at issue on appeal are those in Grynberg’s Second Amended

Complaint against Shell (the Shell Complaint) and its First Amended Complaint

against Total (the Total Complaint), which overlap substantially. They allege the

following:

Mr. Grynberg is fluent in Russian and has “extensive knowledge, training

and experience in the field of oil and natural gas discovery and development.”

Shell Compl. at 16; Total Compl. at 13. After a mining convention in September

1989, he helped obtain plane tickets to Washington, D.C., for a Soviet official and

his aide who had been bumped from a flight. The official expressed his gratitude

and, at Mr. Grynberg’s request, invited him to Moscow in early November to

review secret seismic data pertaining to the Caspian Sea and Northwestern

Kazakhstan. Mr. Grynberg reviewed the data and decided to focus his attention

on one particular region (which he calls the Area of Mutual Interest (AMI))

“because of its enormous potential, and because of its inaccessibility to others at

that time.” Shell Compl. at 12; Total Compl. at 9. The AMI includes “the largest

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oil, natural gas, and sulphur discovery in the world in over 40 years.” Shell

Compl. at 3; Total Compl. at 2.

Also in November 1989, the United States State Department asked

Mr. Grynberg to host a delegation from Kazakhstan that had expressed interest in

his cattle-feeding operation. The delegation included First Secretary Nursultan A.

Nazarbaev. Mr. Grynberg held a dinner for Nazarbaev, who asked him to

assemble teams of experts in the petroleum and mining industries and travel to

Kazakhstan to determine whether the region could support those industries. His

trip to Kazakhstan in February 1990 confirmed his belief that the AMI had

significant potential for oil and natural-gas production. Before returning to the

United States, Mr. Grynberg contacted British Gas, British Petroleum, and BP

Exploration Operating Company Limited (collectively BP) to discuss the

possibility of oil exploration in Kazakhstan.

In April 1990 Mr. Grynberg convinced the President of Venezuela to invite

Nazarbaev, who was by then the President of Kazakhstan, to Caracas, where he

spent a week with Mr. Grynberg observing western-led oilfield development.

During this trip Nazarbaev “reaffirmed his commitment to Grynberg to assist

Grynberg in forming an international oil and natural gas consortium to explore,

develop and produce oil and natural gas in the AMI of Kazakhstan.” Shell

Compl. at 13; Total Compl. at 10.

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 Mr. Grynberg returned to Kazakhstan the next month with a BP executive

and a BP team of experts. Nazarbaev permitted Mr. Grynberg to call him by his

first name, “indicat[ing] a close relationship, and friendship.” Shell Compl. at 14;

Total Compl. at 11. At the end of the trip Mr. Grynberg was authorized by a

Kazakh government protocol to form an international consortium for oil and gas

exploration in the AMI. To allay Nazarbaev’s fears that oil exploration could

lead to a natural disaster that would harm the Caspian Sea’s sizable premium

caviar industry, Mr. Grynberg invited a Kazakh delegation to observe Arctic

drilling in Alaska. In June he hosted the delegation as it toured the United States,

ending in Alaska with a visit to Prudhoe Bay and the Endicott Oil Fields in the

Beaufort Sea, which he used as an example of a large offshore operation

conducted without polluting the sea.

The visit led to the signing of additional protocols covering development in

the AMI. Mr. Grynberg credited his fluency in Russian, close relationship with

Nazarbaev and other important players, and his expertise in the oil-and-gas

industry (particularly with regard to advances in undersea production) for his

success in negotiating with Kazakh and Soviet officials and obtaining the

protocols.

In July 1990 Mr. Grynberg proposed to Shell and Total that they join a

consortium led by him in partnership with the Republic of Kazakhstan for the

purpose of developing “a profitable and potentially gigantic oil and natural gas

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industry in the AMI in Kazakhstan.” Shell Compl. at 4–5; see also Total Compl.

at 3–4. Under this proposed consortium agreement, Grynberg was to obtain a

20% working interest in the AMI. The agreement also provided that Grynberg’s

share of the costs associated with acquiring and developing properties in the AMI

would be carried by Shell and Total, who would be reimbursed out of Grynberg’s

share of future revenue. To convince Shell and Total that oil exploration in the

AMI was a viable prospect, Grynberg gave them “access to geologic maps and

seismographic data, together with a detailed economic, technical, and scientific

analysis,” and told them that he believed that “billions of barrels of oil and

trillions of cubic feet of natural gas” could be recovered from the AMI. Shell

Compl. at 6; Total Compl. at 5.

Shell accepted Grynberg’s proposal. Total responded to the proposal in a

letter dated July 20, 1990, which stated, “[W]e basically agree on the proposed

principles as set out in your draft.” Total Compl. at 4. But nothing came of

Grynberg’s arrangements with Shell and Total, and the complaints skip seven

years to 1997, when Shell, Total, BP, and other oil companies signed an

agreement with the government of Kazakhstan giving them oil production rights

in the AMI. Although Shell and Total thereby profited greatly from Grynberg’s

efforts, Grynberg was not included in the deal. In 2002 the Kashagan Field in the

AMI was declared commercial. The estimated value of each defendant’s interest

in the entire AMI is $10 billion.

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 The Shell Complaint summarizes the alleged misconduct as follows:

[S]everal huge oil companies, including Shell, by their
exploration efforts based upon Grynberg’s confidential
information, were able to determine the value and extent
of some of the Kazakhstan oil and natural gas deposits
in the AMI. This, they were only able to do as a result
of acquiring Grynberg’s research, contacts, analysis of
confidential scientific data, and organizational skills.
Nonetheless, Shell, along with others, later went around
Grynberg to Kazakhstan directly, cutting Grynberg out
of the entire deal, and profiting by billions of dollars.
Shell, and others, then denied Grynberg any
compensation whatsoever for his valuable contribution
to their assets and profits.

Id. at 6. It further states:

Shell violated its agreement with Grynberg related to
this confidential information. The confidential
information supplied to Shell by Grynberg, and to other
parties to the organization of western oil companies
initiated by Grynberg at the behest of the government of
Kazakhstan, was specifically provided on condition that
Grynberg retained a fair share of the entire deal. Shell
breached its agreement with Grynberg, and then waited
to enter into its own agreement with others and
Kazakhstan to acquire its own interest in the AMI. Shell
waited, while ongoing exploration in the AMI confirmed
exactly what Grynberg had revealed to Shell in July of
1990, i.e. that the AMI location described contained
enormous deposits of oil and natural gas. Then on
November 18 of 1997, Shell and others struck a deal
with the Republic of Kazakhstan . . . to actually take oil
and natural gas production from the Area of Mutual
Interest, and to therefore profit immensely from
Grynberg’s efforts on their behalf.

Id. at 7. The Total Complaint contains virtually identical allegations against

Total.

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 The Shell and Total Complaints also state virtually identical causes of

action. Neither asserts a claim for breach of contract. Rather, they each present

two other claims. The first is an equitable claim that Shell and Total were

unjustly enriched when they “a) used a benefit provided by Grynberg in an

unauthorized and unfair manner; and b) retained that benefit conferred on it by

Grynberg without paying fair compensation for it.” Shell Compl. at 24; Total

Compl. at 19. Shell and Total did this by “using Grynberg’s contacts,

confidential information, and interpretation thereof as aforesaid without paying a

penny to Grynberg out of [their] enormous profits.” Shell Compl. at 24; Total

Compl. at 19. The second cause of action is a tort claim for breach of fiduciary

duty. The Shell Complaint alleges that Shell breached “its fiduciary duties to

Grynberg in wrongfully using the confidential information imparted to Shell by

Grynberg for its own use and profit to the exclusion of Grynberg.” Shell Compl.

at 24. The Total Complaint alleges that

a) Total obtained confidential information from Grynberg . . . ; b)
Total acted as a fiduciary of Grynberg in regard to the confidential
information supplied by Grynberg; c) Total breached its fiduciary
duty to Grynberg by wrongfully appropriating the confidential
information for its own use and profit to the exclusion of Grynberg;
and d) Grynberg incurred damages as a result of Total’s breach of its
fiduciary duties.

Total Compl. at 20. For relief, both complaints sought, in the alternative, (1) 20%

of the fair market value of the defendants’ interests, less expenses, in the AMI;

(2) a constructive trust on Grynberg’s fair share of the defendants’ interests in the

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entire AMI; or (3) disgorgement to Grynberg of the defendants’ profits from the

AMI.

III. SUMMARY JUDGMENT PROCEEDINGS

Grynberg filed the lawsuits in July 2003. Both Shell and Total raised in

their answers the affirmative defenses of the statute of limitations and laches, and

the parties filed cross-motions for summary judgment. The parties agreed, at

least at that stage of the proceedings, that the applicable limitations period was

three years. Although the evidence in the two cases overlaps, we will discuss

them separately because the parties presented different evidence and raised

different arguments.

A. Shell

Both Shell and Grynberg submitted numerous exhibits to support their

positions. These exhibits established the following series of events: In June 1990

the government of Kazakhstan executed several protocols with Grynberg, BP, and

other oil companies (but not Shell or Total), purporting to give (1) Grynberg

authority to form a consortium and (2) BP rights to study exploration and

production “in the Pricaspian Basin of Northwest Kazakhstan.” Shell App.

Vol. II at 364 (June 1990 Protocol at 1). On May 31, 1991, Grynberg and BP

Exploration executed an agreement (the BP Agreement) stating that if either

Grynberg or BP Exploration obtained an opportunity to “participate in any

petroleum exploration, development, production, processing and transportation

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opportunities” within the AMI, it was to share the offer with the other party, and

the parties could either jointly accept the offer, or one could decline and the other

could accept the offer. Id. Vol. III at 764 (BP Agreement at 2). Notwithstanding

the 1990 protocols, the government of Kazakhstan executed in 1993 two

consortium agreements with oil companies, including subsidiaries of BP, Shell,

and Total. The first agreement, called the “Preliminary Consortium Agreement”

(PCA), was executed on June 9, 1993. Id. Vol. I at 111 (1997 Agreement). The

second agreement, called the “Consortium Agreement” (CA), was executed on

December 3. Id. at 112. The primary purpose of the CA was to implement an

“exploration research study” to obtain and interpret seismic and other geologic

data and to assess the environmental impact of oil production. Id. at 270. In

return for their payments and exploration efforts, the foreign companies were to

receive “the exclusive right to select a number of E&P [Exploration and

Production] Blocks . . . and to negotiate the terms and conditions for the

exploration and production of such E&P Blocks.” Id. at 112.

Grynberg was not a party to either agreement. But the involvement of

Shell, Total, and other oil companies was not secret. Several prominent

newspapers carried articles describing the PCA, and identifying BP, Shell, and

Total as participants. On June 8, 1993, the day before the PCA was signed, the

Wall Street Journal reported that several oil companies were preparing to enter an

agreement to perform exploratory work toward developing oil fields in the

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Caspian Sea in Kazakhstan. On June 10 the paper published a follow-up article

stating that the agreement had been signed, that it addressed only exploration, and

that production was not projected to begin until 2000. The New York Times

reported on June 9 that the purpose of the agreement was to begin “a seismic

exploration program” and that the agreement was “preliminary” and would be

followed by a “final agreement” in the fall. Id. Vol. II at 526. Also on June 9,

the Financial Times stated that the purpose of the agreement was seismic

exploration, that a final agreement was to be formed as early as the fall, and that

the participating oil companies, in return for financing the surveys and paying a

fee to the Kazakh government, would have a right of first refusal to exploit any

oil that was discovered. The Los Angeles Times reported on June 10 that a

consortium had been formed to explore the Caspian Sea in Kazakhstan.

According to the article, after Kazakhstan’s entire shelf in the Caspian Sea was

surveyed, each participant would be allowed to select blocks in which it would

have exclusive rights to the oil.

Later in 1993 the CA also received widespread publicity. On December 6

the New York Times reported that “Kazakhstan signed a final agreement . . . with

seven Western companies to explore for oil in the northern part of the Caspian

Sea shelf.” Id. Vol. II at 531. It identified BP, Shell, and Total as among the

signatories. Lloyd’s List International stated on December 4 that a final

agreement had been reached that included BP, Shell, and Total, and that

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development and production would not occur until after 2000. None of this 1993

news coverage, however, used either the name Kashagan Field or Tazhigali

Offshore (the term originally used by Mr. Grynberg for the Kashagan Field).

Although Mr. Grynberg initially testified in his deposition that television is

his primary source of news and business information, that he did not read regular

periodicals from 1993 to 2003, and that he never saw reports of the 1993 CA, he

then admitted that he had written a letter referring to the June 10, 1993, Wall

Street Journal article. The letter, addressed to a BP executive, said:

Congratulations on the Caspian Sea agreement. After all
this hard work I am delighted it has finally come
through for all of us. Based on the article in today’s
Wall Street Journal let’s hope this effort will result in
the discovery of the world’s greatest oil accumulation.

Id. Vol. III at 1031.

Two months earlier Grynberg had sued British Gas in Texas state court for

breaching its August 1990 agreement with Grynberg relating to oil and gas rights

in the AMI, and for fraud, breach of fiduciary duty, and breach of confidentiality.

The suit also sought a declaratory judgment against BP Exploration and others to

establish that any rights they had in the AMI were rights against British Gas (not

Grynberg). After receiving Mr. Grynberg’s congratulatory letter, BP Exploration

sued Grynberg in the Southern District of New York, alleging that the 1991 BP

Agreement superseded an earlier agreement and was itself unenforceable because

it had been terminated by its own terms, the purpose had been frustrated, and

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performance had been rendered impossible. In the alternative, BP Exploration

alleged that Grynberg had breached its obligations (1) under its August 1990

agreement with British Gas, under which BP Exploration was an intended

beneficiary; and (2) under the 1991 BP Agreement. We will refer to this pair of

lawsuits as the BP Litigation. (Although the BP Litigation eventually settled, the

settlement agreement is not part of the record in the Shell Case.)

On November 18, 1997, four years after the CA was signed, Kazakhstan

signed a “Production Sharing Agreement” (PSA) covering “The North Caspian

Sea (Kashagan)” with several oil companies, including BP, Shell, and Total. Id.

Vol. I at 100 (1997 PSA). The agreement was signed in Washington, D.C., in the

presence of Nazarbaev and Vice President Gore. In an affidavit Mr. Grynberg

stated that he obtained a copy of the PSA only in January 2002. But, again, there

was extensive contemporaneous news coverage. About seven weeks before the

PSA was signed, the Wall Street Journal carried an article stating that six oil

companies (including BP, Shell, and Total), having spent $300 million on a

seismic survey, were planning to enter a production-sharing agreement with

Kazakhstan for the Kazakh sector of the Caspian Sea. The day the agreement was

signed, articles in the New York Times and the Financial Times stated that BP,

Shell, and Total were going to sign a production-sharing agreement with

Kazakhstan. The New York Times article identified the Kashagan Field by name.

The Financial Times article referred to the area involved as the Kazakhstan sector

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of the North Caspian Sea. In the days that followed, at least four other periodical

articles reported on the subject and named BP, Shell, and Total. One of these

articles, in Europe Energy, said that the project’s development costs were likely

to exceed $20 billion, and referred specifically to Kashagan; the other three

referred only to the North Caspian Sea.

Grynberg argued that the evidence presented on the motions for summary

judgment did not establish that the Shell Complaint was untimely. It contended

that the three-year limitations period could not begin until it incurred damages;

that it could not incur damages until a field had been declared commercial; and

that the Kashagan Field was not declared commercial until June 28, 2002, barely

a year before Grynberg filed suit. Moreover, argued Grynberg, even if its causes

of action could have been brought on July 24, 2000, when the first oil discovery

in the Kashagan Field was publicly announced, the lawsuit was still filed within

three years of that date. With regard to laches, Grynberg contended that because

the lawsuit was brought within the time period established by the analogous

statute of limitations, it would be barred by laches only if Shell could prove

extraordinary circumstances, which it had not done.

Shell contended that Grynberg’s claims accrued as soon as it knew (or

should have known) the facts underlying its claims, and that this had occurred by

1993, or at the latest by 1997. According to Shell, Grynberg had acquired the

necessary knowledge from the BP Litigation and from Mr. Grynberg’s admitted

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reading of the 1993 Wall Street Journal article reporting that Shell, BP, Total, and

others, had signed an agreement “to begin exploration of a potentially huge oil

field in the Caspian Sea north of Iran.” Shell Cross-Mot. Summ. J. at 8, March 6,

2006 (internal quotation marks omitted). And, Shell continued, Grynberg should

have known the necessary facts from the news accounts on the matter, its access

to Kazakh officials, and its ability to contact Shell itself.

Responding to Grynberg’s argument on laches, Shell said that it did not

need to prove extraordinary circumstances because the suit was not filed within

the analogous limitations period. Alternatively, it contended that extraordinary

circumstances existed because (1) Grynberg had not filed suit until 13 years after

Mr. Grynberg’s only meeting with Shell, (2) Grynberg had admittedly lost

“numerous boxes of important documents” pertaining to the lawsuit, and (3) the

Shell representatives who had met with Mr. Grynberg and almost all those with

personal knowledge of the material events were no longer Shell employees. Shell

App. Vol. II at 474 (Shell Mem. of Law in Opp’n to Pls.’ Mot. Summ. J. at 20,

March 6, 2006).

Grynberg in turn replied that Shell had failed to show prejudice from delay,

contending that Shell could still obtain the testimony of its former employees, but

not addressing Shell’s claims of prejudice from Grynberg’s loss of important

records.

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 The district court granted Shell summary judgment. It ruled that Grynberg

was injured when Shell entered a consortium in 1993 in reliance on the

information provided by Grynberg, or, at the latest, in 1997 when Shell and others

planned commercial development of the Kashagan Field. The court also ruled

that Grynberg should have discovered the requisite injury in November 1997,

when newspapers reported that a consortium including Shell “had agreed to

develop the Kashagan Field for commercial purposes.” Mem. Op. & Order (on

Summ. J.) at 7, 9, June 6, 2006. The court concluded that Grynberg’s breach-of-

fiduciary-duty and unjust-enrichment claims were both barred under the three-

year limitations period which applied “under the statute [of limitations] and the

correlating laches doctrine.” Id. at 1–2.

On June 16, 2006, Grynberg filed a motion under Federal Rule of Civil

Procedure 59(e) to alter or amend the judgment. It argued that the unjust-

enrichment claim, which was governed by laches, was not untimely because the

limitations period under the analogous statute of limitations was six years. The

district court denied the motion on the ground that a party may not use a Rule

59(e) motion to raise new issues that could and should have been presented before

entry of judgment.

B. Total

The exhibits submitted by Total in support of its motion for summary

judgment were more extensive than those submitted by Shell. In addition to the

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Shell materials, Total submitted copies of the 1993 CA, the 1997 PSA, and the

1999 settlement agreement between Grynberg and BP (the BP Settlement

Agreement) to resolve the BP Litigation. The 1999 BP Settlement Agreement

states that BP, Shell, and Total, among others, were parties to a “Production

Sharing Agreement in Respect of the North Caspian Sea, dated as of November

18, 1997, to Engage in Exploration and Production.” Total App. Vol. VI at 1969.

The Statement of Undisputed Material Facts in Total’s motion asserts that the

AMI set forth in Grynberg’s 1990 letter to Total “matched, by latitude and

longitude, the boundaries of the North Caspian Sea then claimed by and now

defined to be within Kazakhstan,” and attached a sworn statement and map

prepared by a cartographer. Id. Vol. V at 1462. This assertion was uncontested,

as Grynberg’s response (which would have been more appropriate in an answer to

a complaint) states only that it “is without knowledge to admit or deny the

boundaries of the North Caspian Sea then claimed by and now defined to be

within Kazakhstan.” Id. Vol. IV at 1040. A fact is “disputed” in a summary-

judgment proceeding only if there is contrary evidence or other sufficient reason

to disbelieve it; a simple denial, much less an assertion of ignorance, does not

suffice. See Fed. R. Civ. P. 56(e); Trevizo v. Adams, 455 F.3d 1155, 1159–60

(10th Cir. 2006).

As in the Shell Case, Grynberg argued that its claims had not arisen until

the Kashagan Field was declared commercial in 2002, because it had not been

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injured until then: if the exploratory wells had been dry, Grynberg reasoned, it

“would have had nothing on which to claim an interest.” Pls.’ Cross-Mot. Summ.

J. at 6, Dec. 16, 2005. At the earliest, argued Grynberg, the clock started on July

24, 2000, when the first oil discovery was publicly announced, still less than three

years before it filed suit. In the alternative, Grynberg contended that even if it

could have sued Total for entering the PSA in 1997, the limitations period did not

begin to run on that claim until 2002, when it first obtained a copy of the PSA,

because it had not known before then that Total itself was exploiting areas within

the AMI. Grynberg asserted that the BP Settlement Agreement had not revealed

which blocks of the Caspian Sea were being exploited by Total or whether Total

had used confidential information from Grynberg. Grynberg also contended that

both the breach-of-fiduciary-duty claim and the unjust-enrichment claim were

equitable claims governed by laches, and that Total had not established laches

because suit had been brought within the analogous limitations period and Total

had failed to prove prejudice from delay.

Total’s legal theory was that Grynberg’s causes of action accrued as soon

as Grynberg knew or should have known that Total (1) had exploration and

production rights, (2) within the AMI, (3) to the exclusion of Grynberg.

According to Total, all three elements were satisfied by the time that Grynberg

executed the BP Settlement Agreement on January 19, 1999, more than three

years before Grynberg sued Total. In particular, the agreement stated that Total

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had production rights in the Kazakh sector of the North Caspian Sea, all of which,

asserted Total, is within the AMI. Total further argued that Grynberg’s claims

had accrued even earlier, when Total’s commercial interest in the AMI had been

widely publicized in 1997. Total contended that although Grynberg’s claim for

unjust enrichment was governed by laches, Grynberg could overcome a laches bar

only by showing extraordinary circumstances because it had filed suit outside of

the analogous three-year limitations period. In a later pleading Total argued that

claims for unjust enrichment are governed directly by the statute of limitations,

but Total also contended that it was prejudiced by Grynberg’s delay because it no

longer employed certain key people, memories had faded, and it had lost track of

relevant documents.

Grynberg replied that Total had not established prejudice, pointing out that

(1) Total still employed most of the people involved in developing the Kashagan

Field, (2) it could not explain how it was prejudiced by the loss of documents

because it could not describe their contents, and (3) it did not know whether an

unlocated former employee would testify in its favor.

The district court granted summary judgment for Total, ruling that

Grynberg’s causes of actions accrued by 1999, when Grynberg should have

known that Total had obtained production rights in the AMI to the exclusion of

Grynberg. The court rejected Grynberg’s argument that it could not have brought

a claim before the Kashagan Field was declared commercial.

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 On June 16, 2006, Grynberg filed a motion to alter or amend judgment

under Rule 59(e). It argued that its unjust-enrichment claim was governed by

laches and that the limitations period under the analogous statute of limitations

was six years, not three. The district court denied the motion because Grynberg

was making a new argument that it could have previously raised. It also rejected

the argument on the merits.

IV. DISCUSSION

We review a district court’s decision to grant summary judgment de novo,

viewing all facts in the light most favorable to the party opposing summary

judgment. See Jacklovich v. Simmons, 392 F.3d 420, 425 (10th Cir. 2004). We

will affirm a grant of summary judgment if there is no genuine dispute of material

fact and the prevailing party is entitled to judgment under the law. See id. at 426;

Fed. R. Civ. P. 56(c). Because the parties’ arguments assume that Colorado law

applies, we will proceed under the same assumption. See St. Anthony Hosp. v.

U.S. Dep’t of Health & Human Servs., 309 F.3d 680, 703 (10th Cir. 2002)

(assuming that Oklahoma law applies because parties assumed that it did). We

will first address Grynberg’s claims for breach of fiduciary duty and then the

unjust-enrichment claims. We hold that there is no genuine dispute regarding

facts that establish that Grynberg’s claims are time-barred.

A. Breach of Fiduciary Duty

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 The parties do not dispute that the limitations period for a claim of breach

of fiduciary duty is three years from when the claim accrues. See Colo. Rev. Stat.

§ 13-80-101(1)(f). To establish a claim under Colorado law for breach of

fiduciary duty, a plaintiff must prove (1) that it was justified in reposing trust or

confidence in the other party, or that the other party invited, accepted, or

acquiesced in that trust; (2) that the other party assumed a primary duty to

represent the plaintiff’s interest in a transaction; (3) that the nature and scope of

the duty extended to the subject matter of the claim; and (4) that it was damaged

by the trustee’s breach of that duty. See Equitex, Inc. v. Ungar, 60 P.3d 746, 752

(Colo. Ct. App. 2002).

Although the fourth element refers to “damage,” it does not require that the

plaintiff actually be worse off; it also encompasses any benefit that the defendant

wrongfully obtained. The Restatement (Second) of Torts § 874 cmt. b (1979)

states that the remedies for breach of fiduciary duty include “restitutionary

recovery,” and cites, among other things, the Restatement (First) of Restitution

§§ 138 and 190 (1937). Section 138(1) states that “[a] fiduciary who has acquired

a benefit by a breach of duty as fiduciary is under a duty of restitution to the

beneficiary.” And § 190 states that “[w]here a person in a fiduciary relation to

another acquires property, and the acquisition or retention of the property is in

violation of his duty as fiduciary, he holds it upon a constructive trust for the

other.” In accord with the Restatements, the Colorado Uniform Jury Instruction

-22-
for damages with respect to a claim for breach of fiduciary duty includes as a

possible component of damages: “[a]nything of value or any profit the defendant .

. . received as a result of the breach of fiduciary duty.” Colo. Jury Instrs., Civil

ch. 26:5(2)(a), (c) (4th ed. 2007); see TMJ Implants, Inc. v. Aetna, Inc., 498 F.3d

1175, 1182 (10th Cir. 2007) (noting that Colorado jury instructions are

promulgated by state supreme court).

The Shell Complaint alleges that Shell “wrongfully us[ed] the confidential

information imparted to Shell by Grynberg for its own use and profit to the

exclusion of Grynberg.” Shell Compl. at 24. The Total Complaint is essentially

the same, alleging that “Total breached its fiduciary duty to Grynberg by

wrongfully appropriating the confidential information [obtained from Grynberg]

for its own use and profit to the exclusion of Grynberg.” Total Compl. at 20.

The only issue before us on appeal is when Grynberg knew or should have known

that it could bring claims against the defendants for benefitting from the

appropriation of the confidential information it had provided.

Grynberg’s position on appeal appears to be that it had no cause of action

until it knew that a defendant had a production interest in the specific area within

the AMI that Mr. Grynberg had pinpointed to the defendants—namely, the

Kashagan Field. This might follow if its claim had been solely that the defendant

would breach a duty to Grynberg if it used confidential information from

Grynberg to obtain an interest in the Kashagan Field (as opposed to the entire

-23-
AMI). But that was not Grynberg’s theory below. Both complaints alleged that

the involvement of Shell or Total anywhere in the AMI was a breach of fiduciary

duty owed to Grynberg. Accordingly, whenever either defendant benefitted from

involvement in the AMI, Grynberg could have brought its claim against that

defendant for breach of fiduciary duty. It was on this basis that Grynberg sought

20% of the defendants’ interests in the entire AMI. Grynberg did not argue

during the summary-judgment proceedings that it had a claim against Shell or

Total only if that defendant had an interest in the Kashagan Field. Nor did it

argue below, as it does on appeal, that its claim is essentially one for

misappropriation of a trade secret (the information that Grynberg allegedly

conveyed regarding the Kashagan Field). We need not consider a legal theory

raised for the first time on appeal. See Carpenter v. Boeing, Co., 456 F.3d 1183,

1198 n.2 (10th Cir. 2006). Therefore, we examine only when Grynberg knew or

should have known that Shell or Total had obtained a benefit from an interest

somewhere in the AMI.

This examination is a two-part process. First we determine when the

defendants obtained a benefit. Then we determine when Grynberg should have

known of that benefit. Colorado has endorsed a broad view of benefit in the

context of restitutionary recovery.

“A person confers a benefit upon another if he gives to
the other possession of or some other interest in money,
land, chattels, or choses in action, performs services

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 beneficial to or at the request of the other, satisfies a
debt or a duty of the other, or in any way adds to the
other’s security or advantage. He confers a benefit not
only where he adds to the property of another, but also
where he saves the other from expense or loss. The
word ‘benefit,’ therefore, denotes any form of
advantage.”

Cablevision of Breckenridge, Inc. v. Tannhauser Condo. Ass’n, 649 P.2d 1093,

1097 (Colo. 1982) (en banc) (emphasis added) (quoting Restatement (First) of

Restitution § 1 cmt. b (1937)). By this standard it would seem that Shell and

Total had received a benefit as soon as they entered their first consortium

agreements with Kazakhstan in 1993. Both Shell and Total understandably

thought that membership in the consortium was “advantageous” to them,

something worth the obvious expenditures that would be required. But we need

not resolve that matter. It is enough that participation in the 1997 PSA was a

benefit to each of them. Grynberg’s complaints allege the undeniable: “[O]n

November 18 of 1997, Shell [, Total,] and others struck a deal with the Republic

of Kazakhstan . . . to actually take oil and natural gas production from the Area of

Mutual Interest, and to therefore profit immensely . . . .” Shell Compl. at 7; Total

Compl. at 6. The 1997 deal was worth a fortune.

As for Grynberg’s knowledge, in the Shell Case the district court ruled that

newspaper articles established that Grynberg knew or should have known of the

breach of fiduciary duty in 1993, when Shell’s involvement in the exploratory

consortium became public (and Grynberg knew that it was not a party to that

-25-
consortium), or at the latest in 1997, when newspapers reported that a consortium

including Shell was going to exploit the Kashagan Field commercially. In the

Total Case the court ruled that documents from the BP Litigation established that

Grynberg knew or should have known in 1999 that Total had a commercial

interest in the AMI. We address the Shell decision first, and then the Total

decision.

1. Shell

In our view, there can be no dispute that Grynberg knew or should have

known by the end of 1997 that Shell was a participant in the 1997 PSA.

Mr. Grynberg admits that in 1993 he read a Wall Street Journal article stating that

Shell and BP, among others, were involved in an exploratory consortium in

Kazakhstan. Based on that article, he wrote a letter to BP exclaiming that their

“hard work . . . ha[d] finally come through for all of us.” Shell App. Vol. III at

1031. Articles published in 1997 in the New York Times, the Wall Street Journal,

the Financial Times, and Europe Energy, among others, identified Shell as a

member of a commercial consortium in Kazakhstan for oil exploration in an area

that probably, if not certainly, overlapped the AMI. Two (in the New York Times

and Europe Energy) mentioned the Kashagan Field by name, one (in the Financial

Times) referred to the Kazakh Sector of the North Caspian Sea, and the others

simply referred to the North Caspian Sea.

-26-
 Grynberg argues that the articles are irrelevant because they contained

“inconsistent and . . . insufficient detail” and he did not read them. Shell Aplt.

Br. at 22. We disagree. First, Mr. Grynberg does not explain in what ways the

articles were inconsistent or insufficient; he merely asserts that they were. Yet all

identify BP, Shell, and Total as parties to the commercial agreement, and all point

to the North Caspian Sea (or more specifically the Kashagan Field) as a subject of

the agreement. Second, it strains credulity that a person of Mr. Grynberg’s self-

described experience, expertise, and worldliness, with a financial interest worth

millions of dollars, or even tens or hundreds of millions, could not, with

reasonable diligence, learn of matters reported in the leading business newspapers

circulated in this country. How could any reasonable person with Grynberg’s

expertise, resources, and financial interest have remained ignorant of an

agreement relating to oil exploration in the Kazakh portion of the North Caspian

Sea that was signed in Washington, D.C., in the presence of Mr. Grynberg’s

“friend” Nazarbaev and Vice President Gore? To the extent that any particular

article did not provide complete information, it still would have caused a

reasonable person in Grynberg’s position to pursue the matter, eventually

obtaining the publicly available information that Shell was party to a production-

sharing agreement with respect to oil and gas reserves in the AMI. Grynberg

contends that a jury might have believed that it exercised reasonable diligence,

but we disagree that a rational jury could have reached that conclusion. See

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Carpenter, 456 F.3d at 1192 (issue is genuine only if a reasonable jury could find

in nonmovant’s favor).

Colorado case law supports the view that sophisticated business people can

be expected to check public information. In Skyland Metropolitan District v.

Mountain West Enterprise, LLC, 184 P.3d 106 (Colo. Ct. App. 2007), the court

held that claims by developers challenging the assessment of fees against their

property were time-barred. The relevant information on which the claims were

based had been “publicly available and obtainable in the exercise of reasonable

diligence,” particularly in light of the developer’s experience and sophistication.

Id. at 127. Also, more generally, several of our sister circuits have held that

“‘[w]here events receive . . . widespread publicity, plaintiffs may be charged with

knowledge of their occurrence.’” Hughes v. Vanderbilt Univ., 215 F.3d 543, 548

(6th Cir. 2000) (quoting United Klans of Am. v. McGovern, 621 F.2d 152, 154

(5th Cir. 1980)). Accord Patterson v. United States, 451 F.3d 268, 271 (1st Cir.

2006) (cause of action accrued when FBI’s involvement in plaintiffs’ father’s

death received widespread publicity); In re Briscoe, 448 F.3d 201, 223–24 (3d.

Cir. 2006) (plaintiffs had a “reasonable opportunity to discover the alleged

wrong” due to “extensive publicity” regarding dangerous diet drugs that injured

them (internal quotation marks omitted)); Fulcher v. United States, 696 F.2d

1073, 1077 (4th Cir. 1982) (“prudent landowner exercising reasonable diligence

-28-
should . . . have discovered the government’s open and notorious occupation of

the land” because of “extensive publicity and discussion.”).

Grynberg cites cases in which general publicity was held inadequate to

establish that a plaintiff should have known of the cause of action, but the cases

are readily distinguishable because of the lack of expertise of the plaintiff or

imprecision of the public information. In Maughan v. SW Servicing, Inc., 758

F.2d 1381, 1383 (10th Cir. 1985), the plaintiffs sued a uranium mill for wrongful

death, alleging that the mill had caused leukemia that killed their children and

spouses. We held that “the mere fact that there were public statements

concerning the possible link between radiation and leukemia is not enough to

establish, as a matter of law, that the plaintiffs should have known that emissions

from the uranium processing plant . . . were the likely cause of the leukemia.” Id.

at 1388. “Nor can it be said,” we added, “that [as a matter of law] the average

layman would understand, after reading that fall-out from atomic bombs causes

cancer, that the local uranium mill may have caused . . . leukemia.” Id. Further

supporting this court’s holding was that the doctors who had been consulted by

the plaintiffs’ decedents did not correlate the leukemia with the mill. See id. at

1389. No similar scientific uncertainty or lack of expertise hampered Grynberg.

See also Alexander v. Oklahoma, 382 F.3d 1206, 1216 n.4 (10th Cir. 2004)

(distinguishing Maughan on similar grounds).

-29-
 Even easier to distinguish is Cook v. Rockwell International Corp., 755 F.

Supp. 1468, 1476, 1483 (D. Colo. 1991), which held that publicity about pollution

at Rocky Flats was insufficient to notify plaintiffs that their property was polluted

and they had been exposed to hazardous substances; there was no evidence

regarding when the plaintiffs should have known that this pollution had extended

to their properties, some of which were six miles from Rocky Flats.

Grynberg also cites two other cases apparently to support its position on

this issue, but it provides no analysis or discussion. In the first, O'Connor v.

Boeing North American, Inc., 311 F.3d 1139, 1143 (9th Cir. 2002), plaintiffs

alleged that they had been harmed by exposure to radioactive and nonradioactive

substances released from rocket-testing facilities. Boeing argued that plaintiffs’

claims were time-barred because there had been general publicity regarding

cancer and specific publicity regarding Boeing’s facilities. The court held that

this publicity was not sufficient to put plaintiffs on notice that Boeing caused

their cancer, because the extent of publicity was unclear, there were multiple

possible causes for their illnesses, and, as in Maughan, the plaintiffs were under

the care of doctors who did not make the connection between their cancers and

the defendant’s facilities. See id. at 1151–55. In the second case, Williams v.

Stewart, 112 P.3d 281, 283–84 (N.M. Ct. App. 2005), plaintiffs were family

members of decedents whose organs had been removed and tested by the Los

Alamos National Laboratory for plutonium content, without the informed consent

-30-
of the decedents or their families. The Laboratory argued that plaintiffs’ claims

accrued when the plutonium-testing program received publicity, but the appellate

court ruled that whether plaintiffs were diligent was a question of fact. Id. at

286–87. The court noted questions concerning which publications would have

been widely circulated where the plaintiffs lived and that many of the articles

omitted the important information (such as the failure to obtain informed consent)

that would have alerted the plaintiffs to their claims. In contrast, the publicity

related to the PSA was sufficiently specific and widely circulated that a

reasonable person with Grynberg’s expertise and financial stake would have been

adequately informed.

Finally, Grynberg cites two readily distinguishable Colorado opinions that

do not concern the effect of widespread publicity. In Salazar v. American

Sterilizer Company, 5 P.3d 357, 362–64 (Colo. Ct. App. 2000), the court ruled

that Salazar’s cause of action did not accrue until a toxicological report diagnosed

her peripheral neuropathy as being caused by ethylene oxide, even though prior

doctors had told her that the chemical was a possible cause. Salazar is inapposite

because, like the cancer cases discussed above, it involved an unsophisticated

layperson. The second case, Financial Associates, Ltd. v. G.E. Johnson

Construction Co., Inc., 723 P.2d 135, 138–40 (Colo. 1986) (en banc), was a suit

alleging a design defect. Various expert reports stated that the damage to the

plaintiff’s building had several possible causes, but a design defect was not

-31-
mentioned. The court held that the cause of action did not necessarily accrue

before the plaintiff received a report attributing the damage to the design defect.

We fail to see any help for Grynberg in this decision.

2. Total

In the Total Case the district court ruled that there was no genuine issue of

disputed fact that Grynberg’s cause of action accrued by the time of the BP

Settlement Agreement in 1999 because the text of the agreement revealed that

Total, among others, had entered a production sharing agreement with respect to

the North Caspian Sea in Kazakhstan. The court stated that “the AMI . . . covers

the entire Kazakh sector of the North Caspian Sea and, therefore, the area

referenced in the PSA as the ‘North Caspian Sea’ necessarily falls within the

areas covered in the AMI.” Order on Mots. for Summ. J. at 13, May 31, 2006.

We agree. Moreover, we have already held that the 1997 news articles showed

that Grynberg should have known of its cause of action against Shell, and these

articles were also produced by Total and mention Total’s involvement as much as

Shell’s.

Grynberg argues that it did not realize in 1999 that Total had an interest

specifically in the Kashagan Field. But, as we have already explained, such

knowledge was not necessary for Grynberg’s cause of action. The precise

location of Total’s interest within the AMI was irrelevant.

-32-
 Grynberg further contends that a reasonable jury could conclude that it was

diligent in its efforts to learn of Total’s involvement in the region. It argues that

it had no duty to ask Total whether it was involved in the AMI because it was

entitled to trust Total based on their fiduciary relationship, even though it had not

communicated with Total since 1990. But diligence is not at issue because by the

time of the 1999 BP Settlement Agreement, Grynberg had all the information it

needed to bring its cause of action; further investigation was unnecessary.

Grynberg also argues that Total engaged in fraudulent concealment to

prevent him from learning of Total’s breach of fiduciary duty. Fraudulent

concealment tolls the statute of limitations. See First Interstate Bank v. Piper

Aircraft Corp., 744 P.2d 1197, 1200 (Colo. 1989) (en banc). But in district court

Grynberg merely asserted such fraud, providing no evidence, or even argument,

on the point. “[W]here an issue is raised but not pursued in the trial court, it

cannot be the basis for the appeal.” Lyons v. Jefferson Bank & Trust, 994 F.2d

716, 722 (10th Cir. 1993).

B. Unjust Enrichment

Grynberg’s unjust-enrichment claims against Shell and Total were

dismissed as barred by the statute of limitations and the doctrine of laches.

Unjust enrichment occurs when “(1) at plaintiff’s expense (2) defendant received

a benefit (3) under circumstances that would make it unjust for the defendant to

retain the benefit . . . .” Salzman v. Bachrach, 996 P.2d 1263, 1265 (Colo. 2000)

-33-
(en banc). As we understand Grynberg’s complaints, the unjust-enrichment

claims are predicated on the same alleged misconduct—a breach of fiduciary

duty, primarily arising from the use of confidential information—as the breach-

of-fiduciary-duty claims. This is a well-established type of unjust-enrichment

claim. See Restatement (Third) of Restitution § 43 (Tentative Draft No. 4, 2005)

(discussing unjust-enrichment claims based on breach of fiduciary duty). Indeed,

it appears to us that Grynberg’s unjust-enrichment claims are identical to its

breach-of-fiduciary-duty claims. There is no practical difference between (1) a

tort claim for breach of a fiduciary duty in which the plaintiff seeks disgorgement

of (or a constructive trust on) profits or property and (2) an unjust-enrichment

claim in which the enrichment is claimed to be unjust because it was

accomplished through a breach of fiduciary duty. See Andrew Kull, Rationalizing

Restitution, 83 Cal. L. Rev. 1191, 1222–26 (1995) (Although recognizing that

there is no practical difference, the author emphasizes that in this context unjust-

enrichment doctrine provides a conceptual basis for a substantive claim of

wrongful retention of a benefit and does not merely provide an additional means

of recovery for the tort.); cf. Robinson v. Colo. State Lottery Div., 179 P.3d 998,

1006–08 (Colo. 2008) (en banc) (governmental immunity from actions in tort

encompasses unjust-enrichment claim arising out of tortious conduct). As do the

parties, however, we will treat the claims separately.

-34-
 The parties dispute when the defendants received the benefit that would

establish Grynberg’s claim of unjust enrichment. The defendants contend that the

requisite benefit would be a valuable interest in the AMI. Grynberg contends that

(1) the defendants’ interest would have to be a production interest located

specifically in the Kashagan Field and (2) that interest would not be unjustly

retained by a defendant until the defendant began receiving profits that would

have to be shared with Grynberg under their 1990 agreements. We agree with

Shell and Total.

First, as previously discussed in relation to Grynberg’s breach-of-fiduciary-

duty claims, Grynberg’s complaints can only be read as claiming an entitlement to

a share of the defendants’ benefits throughout the entire AMI, not just the

Kashagan Field. The theory of the complaints is that any involvement of the

defendants in the AMI is an exploitation of their breach of a fiduciary duty—the

use of confidential and valuable information provided by Grynberg. Thus, the

unjustly retained interest need only be somewhere within the AMI; it is not

restricted to the Kashagan Field.

Second, any benefit retained by Shell or Total in the AMI would constitute

unjust enrichment. Under Colorado law, in this context a benefit is “‘any form of

advantage.’” Cablevision, 649 P.2d at 1097 (quoting Restatement (First) of

Restitution § 1 cmt. b). Grynberg argues that the defendants would not have done

anything improper—and therefore would not be unjustly enriched—until they

-35-
refused to pay Grynberg as required by their 1990 agreements, namely, when they

started receiving profits from production of oil and gas in the AMI. But that

analysis would be proper only if Grynberg were suing for breach of contract. If it

were, one could say that a breach has not occurred until a defendant has not

performed under the contract, and neither Shell nor Total owed any duty of

performance until it started earning profits from production. Grynberg’s

complaints, however, do not allege breach of contract. They allege unjust

enrichment, and the benefit to a defendant is what matters, not the breach of a

promise to pay that is not the basis of the claim. The defendants were unjustly

enriched, according to the theory of the complaints, when they obtained a benefit

by appropriating Grynberg’s confidential information and efforts. Accordingly,

Grynberg had an unjust-enrichment claim when Shell or Total obtained a

benefit—a valuable interest—in the AMI. And, as we explained in discussing the

breach-of-fiduciary-duty claims, Shell and Total certainly had such an interest

when they executed the PSA in 1997.

The traditional rule for equitable claims, such as a claim for unjust

enrichment, is that timeliness is determined under the doctrine of laches. See

Interbank Invs., LLC v. Vail Valley Consol. Water Dist., 12 P.3d 1224, 1229–30

(Colo. Ct. App. 2000). The elements of laches in Colorado are: “(1) full

knowledge of the facts; (2) unreasonable delay in the assertion of available

remedy; and (3) intervening reliance by and prejudice to another.” Manor Vail

-36-
Condo. Ass’n v. Vail, 604 P.2d 1168, 1170 (Colo. 1980) (en banc) (internal

quotation marks omitted). But the traditional rule must yield to legislative

authority and may yield, at least in part, to legislative policy. As we proceed to

explain, the Colorado statute of limitations may well be itself controlling in this

case, either on its own or in conjunction with established doctrine. And even if

the statute is not controlling, the Colorado rule that would then apply requires

dismissal of Grynberg’s claims.

First, Colorado’s three-year statute of limitations on its face applies to

Grynberg’s restitutionary claim. It states:

The following civil actions, regardless of the theory
upon which suit is brought, or against whom suit is
brought, should be commenced within three years after
the cause of action accrues, and not thereafter:

...

(f) All actions for breach of trust or
breach of fiduciary duty

Colo. Rev. Stat. § 13-80-101(1) (emphasis added). See Hersh Companies Inc. v.

Highline Village Assocs., 30 P.3d 221, 223–24 (Colo. 2001) (en banc) (whether

claim falls within statute-of-limitations provision depends on nature of the

claimed right, not the form of action or relief sought). Because Grynberg’s

unjust-enrichment claims are founded on allegations of breach of fiduciary duty,

the claims are encompassed by the statute. Although one might try to argue that

the statutory provision governs only actions at law, not suits in equity, the

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language “regardless of the theory upon which suit is brought” undermines the

argument.

Second, even if the statute explicitly applied only to actions at law,

compelling authority would require application of the statute here because the

only difference between Grynberg’s legal and equitable claims is the relief

sought. In Cope v. Anderson, 331 U.S. 461, 463–64 (1947), the Supreme Court

wrote:

Even though these suits are in equity, the states’ statutes of
limitations apply. For it is only the scope of the relief sought and the
multitude of parties sued which gives equity concurrent jurisdiction
to enforce the legal obligation here asserted. And equity will
withhold its relief in such a case where the applicable statute of
limitations would bar the concurrent legal remedy.

See Douglas Laycock, Modern American Remedies 1003 (3d. ed. 2002)

(describing this “concurrency” doctrine and providing the example of a suit for

breach of contract and a suit for specific performance, which seek two remedies

for the same substantive wrong, a breach of contract). If the legislature has

determined that three years is sufficient time to sue for a breach of fiduciary duty,

that determination could be undermined by permitting less timely claims for such

breach when only equitable remedies are sought.

Third, even if the statute is not controlling, the Colorado law that would

then apply still gives great weight to the statutory period. A recent decision of

the Colorado Court of Appeals stated the following rule: “Absent extraordinary

-38-
circumstances, . . . a court ‘“will usually grant or withhold relief in analogy to the

statute of limitations relating to actions at law of like character.”’” Interbank, 12

P.3d at 1230 (quoting Brooks v. Bank of Boulder, 911 F.Supp. 470, 477 (D. Colo.

1996) (quoting Shell v. Strong, 151 F.2d 909, 911 (10th Cir. 1945)). To be sure,

as Grynberg argues, we are not bound by decisions of state intermediate appellate

courts when we apply state law in a diversity case; rather, we are to follow

decisions of the state’s highest court, or, when none is in point, predict how it

would rule on the issue. See Pompa v. Am. Family Mut. Ins. Co., 520 F.3d 1139,

1142 (10th Cir. 2008). But Interbank is not contrary to any Colorado Supreme

Court decision, and we see no reason to believe that the state supreme court

would adopt a rule more favorable to Grynberg than the Interbank rule. See

Stickley v. State Farm Mut. Auto Ins. Co., 505 F.3d 1070, 1077 (10th Cir. 2007)

(we will not disregard an intermediate state court’s decision unless we are

“convinced by other persuasive data that the highest court of the state would

decide otherwise.”). The Interbank rule is in accord with a “modern view” that in

litigious times, certainty is a virtue. Rather than making an individualized

assessment of the laches factors in each case, a court can rely on a precise statute

of limitations for analogous claims, although—after all, we are dealing with

equitable relief—extraordinary circumstances may provide an avenue of escape.

See generally, Gail L. Heriot, A Study in the Choice of Form: Statutes of

Limitation and the Doctrine of Laches, 1992 BYU L. Rev. 917, 952–54 (1992).

-39-
Thus, if Grynberg cannot survive application of the Interbank rule, his claims

would surely be doomed under Colorado Law.

The first step under Interbank is to determine whether the claim would be

untimely under the statute of limitations for analogous claims—here, the three-

year period under Colo. Rev. Stat. § 13-80-101(1)(f). We have already made that

determination. As we concluded in our discussion on the breach-of-fiduciary-

duty claims, that limitations period ran before Grynberg filed suit. Under

Interbank, our next step would ordinarily be to consider whether Grynberg has

proved that extraordinary circumstances justify the tardy filing of his lawsuits.

But Grynberg has failed to allege extraordinary circumstances. We therefore rule

that his unjust-enrichment claims are barred as untimely.

We reject Grynberg’s argument that we must apply the six-year statute-of-

limitations period set forth in Colo. Rev. Stat. § 13-80-103.5(1)(a). The argument

was raised for the first time in postjudgment Rule 59(e) motions, and we have

held that such motions cannot be used to “advance arguments that could have

been raised in prior briefing.” Servants of the Paraclete v. Does, 204 F.3d 1005,

1012 (10th Cir. 2000).

We also reject Grynberg’s argument that the district court in the Shell Case

did not apply the proper accrual provision, and his argument in both cases that his

cause of action for unjust enrichment may not yet have accrued; both these

arguments were raised for the first time on appeal. See Carpenter, 456 F.3d at

-40-
1198 n.2 (we will generally not consider arguments raised for the first time on

appeal). Also, we need not address Grynberg’s contentions that both district

judges did not view the evidence in the light most favorable to it, that the district

court made an impermissible credibility determination in the Total Case, and that

both district judges incorrectly analyzed the elements of laches. Our review has

been de novo and does not repeat the district judges’ alleged errors.

V. CONCLUSION

We AFFIRM both grants of summary judgment. We DENY Appellants’

Motions for Certification of Questions of Law Pursuant to 10th Cir. R. 27.1.

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