Lucia v. Prospect Street High Income Portfolio, Inc.

United States Court of Appeals
For the First Circuit

No. 93-2055

ROBERT LUCIA, ET AL.,

Plaintiffs, Appellants,

v.

PROSPECT STREET HIGH INCOME PORTFOLIO, INC., ET AL.,

Defendants, Appellees.

No. 93-2056

ERIC MILLER, ET AL.,

Plaintiffs, Appellants,

v.

THE NEW AMERICAN HIGH INCOME FUND, ET AL.,

Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. A. David Mazzone, U.S. Senior District Judge]

Before

Cyr, Circuit Judge,

Aldrich, Senior Circuit Judge,

and Stahl, Circuit Judge.

Eugene A. Spector, with whom Robert M. Roseman, Mark S. Goldman,

Robert G. Eisler, Spector & Roseman, Nancy Gertner, Jody L. Newman,

Dwyer, Collora & Gertner, Garwin, Bronzaft, Gerstein & Fisher, Elwood

S. Simon & Associates, Elwood S. Simon, Wechsler, Skirnick Harwood,

Halebian & Feffer, Robert I. Harwood, Levin, Fishbein, Sedran &

Berman, Arnold Levin, Esq., Kohn, Nast & Graf, P.C., Robert S.

Kitchenoff, Chertow & Miller, Marvin Miller, Shapiro Grace & Haber,

and Edward Haber were on brief for appellants.

Thomas J. Dougherty, with whom Skadden, Arps, Slate, Meagher &

Flom, was on brief for appellees Messrs. Omohundro, Frabotta, Carey,

Cote, Meyohas and Platt.
John D. Donovan, Jr., with whom Ivan B. Knauer, Timothy J.

Hinkle, Kurt S. Kusiak, and Ropes & Gray, were on brief for appellees

The New High Income Fund, Inc., Patricia Ostrander, Ellen Terry, and
Richard E. Floor.
Robert A. Buhlman, with whom Gerald F. Rath and Bingham, Dana &

Gould, were on brief for Prudential Securities Incorporated.

Peter M. Saparoff and Palmer & Dodge were on brief for appellees

Ernest E. Monrad, Joseph L. Bower, Bernard J. Korman, and Franco
Modigliani.
Paul C. Madden, Paul D. Shaffner, David Moffit, and Saul, Ewing,

Remick & Saul were on brief for appellees Butcher Corporation and

Bateman Eichler, Hill Richards, Inc.
Harry L. Manion, III, Thomas G. Guiney, and Cooley, Manion, Moore

& Jones, P.C. were on brief for appellee Ostrander Capital Management

Corp.
Eric A. Deutsch, Margaret A. Flanagan, and Testa, Hurwitz &

Thibeault were on brief for Prospect Street High Income Portfolio,

Inc. and Prospect Street Investment Management Co., Inc.

September 28, 1994

STAHL, Circuit Judge. In the late 1980's,

plaintiffs-appellants purchased shares of two separate "junk

bond" funds. After the value of the purchased shares

plummeted, plaintiffs alleged various federal securities law

violations. In a series of related rulings, the district

court dismissed some of plaintiffs' allegations for failure

to state a claim, and granted summary judgment in favor of

defendants on all remaining claims. We affirm in part and

reverse in part.

I.

FACTUAL BACKGROUND AND PRIOR PROCEEDINGS

Prior to this appeal, the proceedings in these two

cases were not formally consolidated. As the district court

noted, the two cases raise many identical issues. Thus, our

discussion, unless we specifically state otherwise, applies

equally to both cases.

In 1988, both New America High Income Fund, Inc.

and Prospect Street High Income Portfolio, Inc. ("the New

America Fund," and "the Prospect Street Fund," or

collectively "the funds") were first publicly offered on the

New York Stock Exchange. Each fund's purpose, as stated in

their nearly identical prospectuses, was to invest in a

diversified portfolio of high yield fixed-income securities,

commonly known as "junk bonds."

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In April 1989, well after the initial public

offerings, a study headed by Professor Paul Asquith ("the

Asquith study") disclosed that the default rate of junk bonds

was much higher than had been previously believed.1 This

conclusion was reached by calculating the adverse effects of

"aging" on junk bonds.2

Within months of the study, though not necessarily

as a direct result of the study, the market for junk bonds

began to collapse. By November 1989, both funds had reduced

their dividends, and the share value of each fund had

declined considerably.

1. The results of the Asquith study were first made public
through various financial and general periodicals in April of
1989. See, e.g., Kenneth N. Gilpin, Further Rise in Rates is

Expected, N.Y. Times, Apr. 10, 1989, at D9; Linda Sandler &

Michael Siconolfi, Junk Bonds are Taking Their Lumps, Wall

St. J., Apr. 14, 1989, at C1. The study itself was not
published until September 1989. See Paul Asquith, et al.,

Original Issue High Yield Bonds: Aging Analyses of Defaults,

Exchanges and Calls, 44 J. Fin., No. 4 (September 1989).

2. The record reveals that, prior to the Asquith study, the
traditionally accepted method of determining annual bond
default rates was to divide the total number of defaults per
year by the total size of the relevant market sector for that
year. As the affidavit of Professor Asquith points out,
however, this method loses its accuracy in a rapidly
expanding market, such as the junk bond market of the 1970's
and '80's, where new issues greatly enlarged the existing
market. In other words, the traditional method does not
reveal whether a preponderance of older or newer issues are
defaulting in a given year.
Breaking from the traditional method of
calculation, Asquith's study tracked the default rate of
bonds based on their dates of issuance. The study revealed
that junk bonds become more likely to default as they grow
older, hence the term "aging."

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Plaintiffs, who consist of putative classes of

purchasers of each fund, commenced parallel actions against

the two funds. The First Amended Complaints (hereinafter

"the original complaints") were lengthy, alleging violations

of a variety of federal securities laws, including section

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

78j(b), and sections 11 and 12(2) of the Securities Act of

1933, 15 U.S.C. 77k, 77l(2).3 The gist of the original

complaints was that the funds' directors, advisors and

underwriters ("defendants") knew of, but failed to disclose,

adverse information about the junk bond market. In

particular, the complaints alleged that defendants had agreed

to act, and had in fact acted, as purchasers of last resort

for undesirable junk bonds; that they knew of infirmities in

3. Sections 10(b), 11 and 12(2) all prohibit the use of
materially misleading information in the sale of securities,
and the same conduct may be actionable under all three
sections. See, e.g., Herman & MacLean v. Huddleston, 459

U.S. 375, 382-83 (1983) (stating that the same conduct may be
actionable under sections 10(b) and 11); Shapiro v. UJB Fin.

Corp., 964 F.2d 272, 279, 286-89 (3d Cir.) (explaining that

single set of factual allegations may state claim under
sections 11 and 12(2)), cert. denied, 113 S. Ct. 365 (1992).

While sections 10(b), 11 and 12(2) differ significantly
from one another, see, e.g., Herman & MacLean, 459 U.S. at

382; Ernst & Ernst v. Hochfelder, 425 U.S. 185, 210-11

(1976), the parties focus solely on the materiality
requirement, which is common to all three sections. Cf. In

re Donald J. Trump Casino Sec. Litig., 7 F.3d 357, 368 n.10

(3d Cir. 1993) ("Because our analysis here is predicated on
the materiality requirement, which is common to [plaintiffs'
section 10(b), 11 and 12(2) claims], we do not here
distinguish between [those provisions.]"), cert. denied, 114

S. Ct. 1219 (1994).

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the junk bond market at the time they publicly offered shares

of the funds and thereafter; and that misleading statistics

were used in the prospectuses to portray the historical

performance of junk bonds.4

The district court dismissed many of plaintiffs'

claims on the pleadings, see Miller v. New Am. High Income

Fund, 755 F. Supp. 1099 (D. Mass. 1991) ("Miller I"); Lucia

v. Prospect St. High Income Portfolio, Inc., 769 F. Supp. 410

(D. Mass. 1991) ("Lucia I"), but nonetheless allowed both

sets of plaintiffs to replead.

Plaintiffs' Second Amended Complaints (hereinafter

"the revised complaints") alleged causes of action only under

sections 11 and 12(2). All section 10(b) claims presented in

the original complaints were dropped. Among other things,

the revised complaints focused on a ten-year comparison

between junk bonds and United States Treasury securities

("Treasury securities") that was included in the

prospectuses.5 Though the ten-year figure showed that junk

4. The original complaints also alleged RICO claims and
common law fraud claims, which were dismissed by the district
court. Plaintiffs do not appeal these dismissals.

5. The relevant portion of the New America Fund's prospectus
states:

The Fund's portfolio will consist
primarily of "high yield" corporate
bonds. . . .

"High yield" bonds offer a higher yield
to maturity than bonds with higher

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ratings as compensation for holding an
obligation of an issuer perceived to be
less credit worthy. The DBL composite
measures the performance of the most
representative bonds in the "high yield"
market and is compiled monthly by Drexel
Burnham Lambert Incorporated. As of
December 31, 1987, the DBL Composite
offered a yield spread of 484 basis
points (i.e., 4.84%; 1% equals 100 basis
points) over the comparable Treasury
security, 7% U.S. Treasury due 1994.
U.S. Treasury securities are considered
to have minimal risk. The average spread
between the DBL Composite and the
comparable U.S. Treasury issue was 358
basis points for 1980, 397 basis points
for 1981, 503 basis points for 1982, 337
basis points for 1983, 311 basis points
for 1984, 362 basis points for 1985, 496
basis points for 1986 and 451 basis
points for 1987.

For the years 1977 through 1986, the
spread in yields between "high yield"
securities and representative U.S.
Treasury securities has averaged
approximately 393 basis points. For this
period, the loss in principal and
interest due to defaults on "high yield"
securities has averaged approximately 97
basis points. Thus, for the period 1977
to 1986, the net average spread between
"high yield" securities and
representative U.S. Treasury securities
(i.e., the average spread between "high
yield" securities and U.S. Treasury
securities, minus the average default
loss on "high yield" securities) was 296
basis points. For 1987, the loss of
principal and interest due to defaults is
estimated to have been 125 basis points.*
However, past performance is not
necessarily indicative of future
performance. . . .

The capital structure of the Fund has
been designed to take advantage of the

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bonds had outperformed Treasury securities, the revised

complaints alleged that during the six years leading up to

each fund's public offering, Treasury securities had actually

outperformed junk bonds.6

Shortly after the revised complaints were filed,

defendants moved for summary judgment. The district court

began by ruling as a matter of law that the comparison to

Treasury securities in the prospectuses was not misleading.

historical spread in yields between "high
yield" securities and representative U.S.
Treasury securities, compared with the
average default loss on "high yield"
securities.

* Statistical data appearing above are
based on information provided by Drexel
Burnham Lambert Incorporated.

The Prospect Street prospectus is similarly structured and
worded.
We note in passing that the Prospect Street
prospectus reports significantly different annual spreads for
the years 1980 through 1987. Because neither the Miller nor

the Lucia plaintiffs have argued, either below or on appeal,

that these inconsistencies are actionable, we deem the issue
waived.

6. Both revised complaints at 29 state:

29. The [Asquith] Study also disclosed
that high yield debt had not in fact
produced higher realized returns and
lower standard deviations of returns than
either investment grade or treasury bonds
for the period 1982 through 1987 . . . .

The Asquith study, in turn, relies on statistics from
Marshall E. Blume & Donald B. Keim, Volatility Patterns of

Fixed Income Securities, Rodney L. White Center For Financial

Research, Wharton School, University of Pennsylvania (March
1989) ("the Blume and Keim study").

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See In re New Am. High Income Fund Sec. Litig., 834 F. Supp.

501, 506-07 (D. Mass. 1993) ("Miller II"). It went on to

grant summary judgment in favor of defendants on all other

claims. Id.; Lucia v. Prospect St. High Income Portfolio,

Inc., No. 90-10781-MA (D. Mass. Aug. 26 1993) ("Lucia II").

Plaintiffs appeal these various rulings. We address

plaintiffs' claims in the order in which they were decided by

the district court.

II.

DISCUSSION

A. Section 10(b) Claims

The district court dismissed plaintiffs' section

10(b) claims at the first of these cases' two pleading

stages. We affirm that dismissal, though on somewhat

narrower grounds than those relied upon by the district

court.

1. Standard of Review

Rule 12(b)(6) dismissals are subject to de novo

review. Northeast Doran, Inc. v. Key Bank of Maine, 15 F.3d

1, 2 (1st Cir. 1994). While we generally credit all

allegations in the complaint and draw all reasonable

inferences favorable to the plaintiff, id., Rule 9(b) imposes

heightened pleading requirements for allegations of fraud.

"In all averments of fraud or mistake, the circumstances

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constituting fraud or mistake shall be stated with

particularity." Fed. R. Civ. P. 9(b).

As we have stated in a recent discussion of Rule

9(b) in the securities context:

[G]eneral averments of the defendants'
knowledge of material falsity will not
suffice. Consistent with Fed. R. Civ. P.
9(b), the complaint must set forth
specific facts that make it reasonable to
believe that defendant[s] knew that a
statement was materially false or
misleading. The rule requires that the
particular times, dates, places or other
details of the alleged fraudulent
involvement of the actors be alleged.

Serabian v. Amoskeag Bank Shares, Inc., 24 F.3d 357, 361 (1st

Cir. 1994) (citations and internal quotation marks omitted).

"We have been especially rigorous in demanding such factual

support in the securities context." Romani v. Shearson

Lehman Hutton, 929 F.2d 875, 878 (1st Cir. 1991). Moreover,

this heightened pleading is required "even when the fraud

relates to matters peculiarly within the knowledge of the

opposing party." Id.

2. The Original Complaints

Plaintiffs' original complaints alleged various

wrongdoing by defendants. The common thread running

throughout the original complaints, however, was that

defendants knew of infirmities in the junk bond market, and

that they nonetheless entered a vast web of illicit

agreements with Drexel Burnham Lambert, and with former junk

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bond dealer Michael Milken, in order to become purchasers of

last resort for undesirable junk bonds.

The district court properly concluded that these

general allegations in the original complaints were wholly

conclusory. No factual basis is put forward to support

plaintiffs' theory that defendants consorted with Drexel,

that they dealt with Michael Milken, that they agreed to act

as purchasers of last resort for undesirable bonds, or that

they knew enough to anticipate the impending fall-out of the

junk bond market. Because all of plaintiffs' 10(b) claims

rely fundamentally on such unsupported allegations, the

district court properly dismissed these claims for failure to

meet Rule 9(b).7 Cf. Romani, 929 F.2d at 878 (finding that

complaint failed to satisfy Rule 9(b) where it contained "no

factual allegations that would support a reasonable inference

that adverse circumstances existed at the time of the

offering, and were known and deliberately or recklessly

disregarded by defendants").

B. Section 11 and 12(2) Claims

7. Given adequate grounds to support dismissal of
plaintiffs' section 10(b) claims, we expressly decline to
address the district court's "loss causation" analysis, and
its use of Bastian v. Petren Resources Corp., 892 F.2d 680

(7th Cir.), cert. denied, 496 U,S. 906 (1990), in rejecting

these same claims.

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As noted above, plaintiffs were allowed to replead.

Defendants' motions for summary judgment soon followed, and

summary judgment was granted in favor of defendants.

1. Standard of Review

"A district court's grant of summary judgment is

subject to plenary review." Calenti v. Boto, 24 F.3d 335,

338 (1st Cir. 1994). We read the record indulging all

inferences in favor of the non-moving party. Id. Summary

judgment is appropriate only "if the pleadings, depositions,

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). In seeking to forestall the entry of summary

judgment, a nonmovant may not rely upon allegations in its

pleadings. Rather, the nonmovant must "set forth specific

facts showing that there is a genuine issue for trial." Fed.

R. Civ. P. 56(e).

2. Parallel Paths Diverge

Both complaints alleged that the six-year

comparison favored Treasury securities. And the Miller

plaintiffs, unlike the Lucia plaintiffs, in their response to

defendants' motion for summary judgment, set forth facts

showing that the six-year figure, as well as a shorter three-

year figure, actually favored Treasury securities. Moreover,

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the district court squarely addressed this argument in ruling

on the Miller defendants' motion for summary judgment. See

In re New Am. High Income Fund Sec. Litig., 834 F. Supp. 501,

506-07 (D. Mass. 1993). Accordingly, we see no merit to

defendants' argument that the Miller plaintiffs waived this

issue.

The Lucia plaintiffs, however, failed to preserve

this issue. In fact, the Lucia plaintiffs' opposition to

defendants' summary judgment motion fails to even mention the

six-year comparison. Despite the striking similarities in

these two cases, the Lucia plaintiffs pursued a significantly

different tack in opposing defendants' motion for summary

judgment, and failed to argue that the Prospect Street

prospectus was misleading due to its failure to include a

shorter-term comparison to Treasury securities. As noted

above, a nonmovant faced with a motion for summary judgment

may not rest on its pleadings. Moreover, we see no reason in

this case to relax our general rule that "theories not raised

squarely before the district court cannot be surfaced for the

first time on appeal." McCoy v. Massachusetts Inst. of

Technology, 950 F.2d 13, 22 (1st Cir. 1991), cert. denied,

112 S. Ct. 1939 (1992). Accordingly, our discussion of the

six-year comparison applies only to the Miller case.

3. Materiality under Sections 11 and 12(2) and the

Omission of the Six-Year Comparison

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Sections 11 and 12(2) both prohibit, inter alia,

the use of any "untrue statement of a material fact," 15

U.S.C. 77l(2), as well the use of any information which

"omits to state a material fact necessary in order to make

the statements, in the light of the circumstances under which

they are made, not misleading." Id.; see also 15 U.S.C.

77k(a).

The boundaries of materiality in the securities

context are clearly enunciated in our case law.

The mere fact that an investor might find
information interesting or desirable is
not sufficient to satisfy the materiality
requirement. Rather, information is
"material" only if its disclosure would
alter the "total mix" of facts available

to the investor and "if there is a
substantial likelihood that a reasonable

shareholder would consider it important"
to the investment decision.

Milton v. Van Dorn Co., 961 F.2d 965, 969 (1st Cir. 1992)

(quoting Basic, Inc. v. Levinson, 485 U.S. 224, 231-32

(1988)). It is equally well established that "[w]hen a

corporation does make a disclosure--whether it be voluntary

or required--there is a duty to make it complete and

accurate." Roeder v. Alpha Indus., Inc., 814 F.2d 22, 26

(1st Cir. 1987). Moreover, disclosed facts may "not be `so

incomplete as to mislead.'" Backman v. Polaroid Corp., 910

F.2d 10, 16 (1st Cir. 1990) (en banc) (quoting SEC v. Texas

Gulf Sulphur Co., 401 F.2d 833, 862 (2d Cir. 1968), cert.

denied, 394 U.S. 976 (1969)).

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In addition, the fact that a statement is literally

accurate does not preclude liability under federal securities

laws. "Some statements, although literally accurate, can

become, through their context and manner of presentation,

devices which mislead investors. For that reason, the

disclosure required by the securities laws is measured not by

literal truth, but by the ability of the material to

accurately inform rather than mislead prospective buyers."

McMahan v. Wherehouse Entertainment, Inc., 900 F.2d 576, 579

(2d Cir. 1990), cert. denied, 501 U.S. 1249 (1991). Under

the foregoing standards, "emphasis and gloss can, in the

right circumstances, create liability." Isquith v. Middle S.

Utils., Inc., 847 F.2d 186, 203 (5th Cir.), cert. denied, 488

U.S. 926 (1988).

Finally, we note that the question of whether an

omission or misleading statement is material "is normally a

jury question and should not be taken from it unless the

court has engaged in meticulous and well articulated analysis

of each item of withheld or misrepresented information." SEC

v. Seabord Corp., 677 F.2d 1301, 1306 (9th Cir. 1982). See

also Milton, 961 F.2d at 970 ("`[T]he [objective]

determination [of materiality] requires delicate assessments

of the inferences a `reasonable shareholder' would draw from

a given set of [undisputed] facts and the significance of

those inferences to him and those assessments are peculiarly

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ones for the trier of fact.'") (quoting TSC Indus. Inc. v.

Northway, Inc., 426 U.S. 438, 450 (1976)); Isquith, 847 F.2d

at 208 (stating that the adequacy of disclosures in

securities cases is generally a question for a jury).

As we have said, plaintiffs argue that the ten-year

comparison between Treasury securities and junk bonds, though

accurate, was misleading because a shorter, six-year

comparison favored Treasury securities. We begin by noting

that the six years at issue are the six years leading up to

the fund's public offering. Moreover, while any one or two

years might favor Treasury securities without amounting to an

unfavorable trend, we think that a six-year comparison

favoring Treasury securities is substantial enough to cast

some doubt on the reliability of the reported ten-year

figure. In other words, we cannot say as a matter of law

that the undisclosed information about the six-year period

would not alter the total mix of facts available to the

investor. Rather, a jury could find that there is a

substantial likelihood that a reasonable shareholder would

consider the six-year comparison important to the investment

decision. See Milton, 961 F.2d at 969.

We expressly decline to make hard and fast rules

about the time length of reported investment results, i.e.,

we do not hold that ten-year comparisons must always be

accompanied by shorter-term comparisons. Nor do we hold that

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a plaintiff always creates a triable issue of fact by merely

unearthing unfavorable news regarding shorter time intervals

than those reported.

Moreover, the unfavorable six-year figure in this

case does not necessarily render the ten-year comparison

misleading. Rather, a jury, knowing the individual annual

returns over the ten-year period at issue (which are not now

ascertainable on the record before us) and perhaps having

other guideposts for determining the relative reliability of

shorter- and longer-term bond comparisons, may conclude that

the ten-year comparison standing alone is not misleading at

all. Because the district court felt it irrelevant

that defendants had not reported the claimed six-year

negative trend, it gave no attention to whether the Miller

plaintiffs had adequately established a factual base -- viz.,

that defendants knew, or reasonably should have known, of

that change of circumstances. While we have some doubt about

the adequacy of the Miller plaintiffs' proof of defendants'

knowledge, we nonetheless recognize that discovery on this

issue was limited. We reverse and remand to permit further

discovery in this area. Following such discovery, the court

may then reconsider defendants' motion for summary judgment,

if defendants choose to renew it.

Thus, on the current state of the record in the

Miller case, summary judgment on this issue was improper. We

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agree with the district court that the ten-year comparison

"paints a much rosier picture," New America, 834 F. Supp. at

507, than the six-year comparison. Having established this

fact, the district court erred in concluding in the Miller

case that the comparison nonetheless was not misleading as a

matter of law.

4. Other Summary Judgment Issues

While fact issues remain with regard to the

Treasury security comparison in the Miller case, the district

court properly granted summary judgment on all other issues

in both cases. For example, plaintiffs alleged that (1)

defendants knew or should have known of the effect that

"aging" calculations have on determining junk bond returns,

and (2) defendants should not have used the DBL composite as

an indicator of past performance of junk bonds because that

composite failed to account for "forced bond exchanges."8

It is doubtless true, as plaintiffs allege, that

several significant studies with regard to "aging" discovered

statistical infirmities in the traditional methods of

calculating junk bond returns. However, these studies were

completed only after the prospectuses were issued. Moreover,

according to affidavits in the record, the Asquith study was

8. Forced bond exchanges, also known as "distressed" bond
exchanges, occur when a bond issuer, rather than default on
its existing obligations, exchanges them for a new set of
obligations.

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the first study of its kind to display the infirmities of

previous calculation methods. Plaintiffs failed to adduce

any facts which, contrary to defendants' affidavits, would

tend to show that defendants were aware of these infirmities,

or that they could or should have been aware of the effects

of "aging" analysis at the time the funds were initially

offered to the public. Given plaintiffs' failure to raise a

triable issue of fact, we affirm the district court's grant

of summary judgment on this issue.

A similar analysis disposes of plaintiffs'

allegation that the DBL composite, relied on extensively by

defendants in the prospectuses, failed to account for forced

bond exchanges. Defendants offered affidavits to the effect

that forced bond exchanges in fact were accounted for in the

DBL composite. Plaintiffs offer no evidence to the contrary.

Accordingly, we find no error in the district court's grant

of summary judgment on this issue. Because further discovery

will occur in the Miller case, we leave to the district court

the formulation of the extent of that discovery, consistent

with the ruling made herein.

Lastly, defendant Prudential Bache, an underwriter

of the New America Fund, argues that claims against it were

untimely filed. The district court did not rule on when the

statute of limitations in this case began to run, nor can we

make such a determination on the record before us.

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Accordingly, we leave this important procedural issue to be

determined in the first instance by the district court.

III.

CONCLUSION

We have carefully considered all other arguments

and find them to be either waived or without merit. For the

foregoing reasons, the various orders of the district court

are

Affirmed in full as to the Lucia case, and, as to

the Miller case, affirmed in part, reversed in part, and

remanded for further proceedings consistent with this

opinion.

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