Ansin v. River Oaks Furniture, Inc.

United States Court of Appeals
For the First Circuit

Nos. 96-1734 and 96-1735

HAROLD S. ANSIN, ET AL.,

Plaintiffs, Appellees,

v.

RIVER OAKS FURNITURE, INC., ET AL.,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Cyr, Boudin, and Lynch,

Circuit Judges.

Edward P. Leibensberger, with whom John C. Fitzpatrick, Glenn E.

Deegan, and Nutter, McClennen & Fish, LLP were on brief, for

appellees.
Ames Davis, with whom Nancy S. Jones and Waller Lansden Dortch &

Davis were on brief, for appellants.

February 3, 1997

LYNCH, Circuit Judge. This case arises from a
LYNCH, Circuit Judge.

series of transactions among former fellow shareholders of a

Mississippi close corporation, River Oaks Furniture, Inc.

The Ansins,1 Massachusetts investors, allege that Thomas

Keenum and Stephen Simons, officers and directors of River

Oaks, fraudulently induced them to sell their shares in River

Oaks ten months before a successful initial public offering

("IPO"). The Ansins also allege that Keenum and Simons

violated the contractual terms of a stock subscription

agreement and other corporate documents by causing an

unauthorized transfer of a number of the Ansins' shares to

other corporate insiders. The Ansins sued Keenum, Simons and

River Oaks Furniture in federal court in Massachusetts,

alleging securities law violations under Section 10(b) of the

Securities Exchange Act of 1934, conversion, breach of

contract, breach of fiduciary duty, common law fraud, legal

malpractice and a violation of Mass. Gen. Laws ch. 93A.

The jury found for the plaintiffs on all counts

then remaining in the case and awarded both compensatory and

punitive damages. Defendants appeal from the judgment

against them, arguing that they were entitled to judgment as

a matter of law on all counts, that the action was barred

1. The plaintiffs in this action are Harold S. Ansin,
Lawrence J. Ansin (by the executor of his estate), and the
Ansin Foundation (a private charitable trust), collectively
"the Ansins."

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because of laches and related doctrines, and that both the

compensatory and punitive damages awards are legally

unsustainable. The Ansins cross-appeal the pre-trial

dismissal of their Mass. Gen. Laws ch. 93A claim, and also

argue that the district judge improperly denied their request

for prejudgment interest. They also ask this court to

correct a clerical error in the judgment.

I.

When the losing party challenges the sufficiency of

the evidence, as defendants do here, this court views the

record in the light most favorable to the jury's verdict.

See Correa v. Hospital San Francisco, 69 F.3d 1184, 1188 (1st

Cir.), cert. denied, 116 S. Ct. 1423 (1995). The facts are

described as the jury might have found them, drawing

reasonable inferences in favor of the plaintiffs.

A. The Ansin Investment in River Oaks

Lawrence (Larry) Ansin, a Massachusetts fabric

manufacturer, met Stephen Simons, then a furniture buyer with

a Texas retailer, in the mid-1970s. What began as a business

relationship grew, over the next decade, into a friendship.

The two men vacationed together and visited each other's

homes. In 1987, Simons started his own upholstered

furniture company in Mississippi. The company had six

original investors in addition to Simons; five of these men,

including Thomas Keenum, had been involved with the start-up

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and eventual IPO of another Mississippi upholstery

manufacturer. The sixth investor was Larry Ansin, who was,

at that time, the chief executive officer and sole

shareholder of Joan Fabrics, a Massachusetts-based company.

River Oaks Furniture, Inc. was incorporated in

August 1987. Larry Ansin's total investment in the venture

was $100,000, for which he was issued a certificate, dated

September 1, 1987, for 7,500 shares of common stock. That

was 10% of the then-issued shares. Simons owned 30,000

shares and was president of the company; Keenum owned 7,500

shares and was secretary and treasurer. Keenum and Simons

were two of the three members of the Board of Directors.

In March 1988, the River Oaks investors set up

another Mississippi corporation, R-O Realty, Inc., to own

real estate which would then be leased to River Oaks. Each

of the original investors contributed another $500 in capital

and Larry Ansin was issued a share certificate for 437.5

shares in R-O Realty.

In 1988, Larry Ansin decided to sell Joan Fabrics.

Larry Ansin expected that, as part of such a transaction, he

would have to sign a non-competition agreement, which would

preclude him from owning stock in another furniture company.

Accordingly, Larry Ansin arranged to sell his River Oaks

shares to his father, Harold Ansin, for the $100,000 he had

originally invested. The Ansins executed a Stock Purchase

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Agreement dated May 31, 1988. Harold Ansin did not know how

many shares he was purchasing, but understood that he was

buying his son's entire 10% interest in River Oaks.

In April 1992, Larry Ansin learned that he had an

inoperable brain tumor. He died on June 24, 1993, before the

commencement of this litigation.

B. The Reduction of the Ansin Interest to 4,000 Shares

Harold Ansin did not sell any of the River Oaks

shares until 1992. Nonetheless, at some point in 1989, the

Ansin ownership interest was reduced from 7,500 to 4,000

shares, or from 10% to 4% of the company.2 The company

issued 25,000 new shares in 1989, but that legitimate

dilution would only have reduced the Ansin stake to 7.5%.

Following Harold Ansin's purchase of his son's

shares, River Oaks did not issue a new stock certificate in

Harold Ansin's name. Harold Ansin was upset about this and

kept asking Larry to do something about it. Larry Ansin

wrote to Simons twice in 1989 requesting a new share

certificate for Harold. Eventually, a certificate was issued

on September 22, 1989 which indicated that, as of January 1,

1988, Harold Ansin owned 4,000 shares of River Oaks.

2. The River Oaks 1988 tax return lists Harold Ansin as
owning 7,500 shares. Harold Ansin's River Oaks 1988 K-1, a
tax form issued to shareholders by the corporation, states
that Ansin owned 10% of the company. Ansin's 1989 K-1,
however, indicated that Ansin now owned only 4% of the
company.

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The Stock Transfer Ledger of River Oaks Furniture,

which was not actually typed up (from Keenum's notes) until

1993, shows Lawrence Ansin as originally owning 7,500 shares.

However, according to the Ledger, Ansin transferred only

4,000 shares to his father on January 1, 1988, and then

transferred 1,000 shares to Simons and 2,500 shares to Donald

Franks, another of the original River Oaks investors, on

January 1, 1989.

Simons testified that these transfers of stock by

Larry Ansin were part of a general reallocation of shares

undertaken in early 1989. According to Simons, during a

telephone conversation in February or March 1989, he told

Larry Ansin that, in order to recruit talented new employees,

the company wished to issue 25,000 new shares of stock.

Simons further testified that Larry Ansin then orally agreed

to reduce his ownership interest to 4%. However, Simons

acknowledged that there is no record of this conversation nor

any contemporaneous records or correspondence memorializing

the transfers to Simons and Franks. Simons also testified

that he and Ansin only discussed percentages of ownership, as

opposed to numbers of shares, and that Ansin did not receive

any money for the transfers. Simons did not speak to Harold

Ansin about the transfers.

Thomas Keenum, who, as company secretary, was

responsible for maintaining the Stock Transfer Ledger,

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testified that no document, other than his personal notes,

records these stock transactions, and that only Simons, and

not the Ansins, ever communicated with him about the decrease

in the Ansin ownership interest. Although other capital

transactions are recorded in the minutes of the Board of

Directors, the Ansin transfers were not, nor to Keenum's

knowledge, were there any signed agreements, letters, or

memoranda noting these transfers.

The foundation documents of River Oaks included

Articles of Incorporation, By-Laws, and a Subscription

Agreement among the stockholders. These documents regulated,

among other things, the transfer of shares in the company.

Paragraph 12 of the Articles of Incorporation provided that:

before a transfer [of stock] may be made,
[the] owner or holder shall notify the
secretary/treasurer of this corporation
in writing of the number of shares to be
transferred, the certificate involved
[and other pertinent information].

The Subscription Agreement, which was "binding upon and shall

inure to the benefit of each individual Stockholder and his

respective heirs, executors, administrators, assigns and

legal representatives," recited that "[e]ach Stockholder

agrees that all shares of Stock of the Company . . . shall be

subject to the terms and conditions of Paragraph Number 12 of

the Articles of Incorporation." The By-Laws, which charged

the secretary with maintaining the stock transfer books of

the corporation,

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stated that:

Transfer of shares of the corporation
shall be made only on the stock transfer
books of the corporation by the holder of
record thereof or by his legal
representative . . . .

At trial, the plaintiffs argued that these documents

constituted an enforceable contract, and that defendants'

unauthorized transfer of 3,500 River Oaks shares to Simons

and Franks amounted to a breach of that contract.

C. The Repurchase of the Ansin Interest and the IPO

The original investors in River Oaks had hoped,

from the beginning, eventually to take the company public.

During the first quarter of 1992, the company took the first

step of talking to an investment banker about a public

offering. Breck Walker, a managing director of J.C. Bradford

& Co., a Nashville investment bank, visited River Oaks

several times during the first half of 1992, to evaluate the

company's prospects as an IPO candidate.

These contacts culminated in an April 23, 1992

meeting in Nashville between the River Oaks management,

including Keenum and Simons, and the J.C. Bradford commitment

committee.3 At the meeting, River Oaks' value was discussed

and, according to the notes of a J.C. Bradford analyst,

3. The commitment committee is a group of top-level
executives at J.C. Bradford who must approve all IPO
transactions.

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Keenum stated that a value of $25 million was "about right."

Analyses prepared by J.C. Bradford for internal use projected

a range of values from $16.3 million to $31 million,

depending on the assumptions used, and similar valuations

were discussed with River Oaks personnel.

Shortly thereafter, J.C. Bradford determined that,

given all the circumstances, including market conditions,

River Oaks was not a candidate for an IPO in 1992. J.C.

Bradford advised River Oaks to wait until the end of 1992 or

early 1993 to see if the company met its projections before

proceeding further.

At approximately the same time, April 1992, Larry

Ansin learned that he had a brain tumor. After his

diagnosis, Ansin asked Patrick Maraghy, his tax planner, to

act as an intermediary in his financial dealings. Ansin

continued to make his own decisions.

In July 1992, Walter Billingsley, the River Oaks

controller, and Simons contacted Maraghy about refinancing

River Oaks' debt. Ansin, like the other original

shareholders, had previously signed personal guarantees for

bank loans to River Oaks; now, the Bank of Mississippi wanted

another personal guarantee from Ansin for $550,000 of new

financing. Maraghy communicated the request to Ansin, who

declined to provide new guarantees because he was very ill

and because he was no longer a shareholder of River Oaks.

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Through August and into September of 1992, Simons

continued to call Maraghy frequently, pressuring him to get

Larry Ansin to reconsider his decision. At no time did

Simons tell Maraghy that the bank had agreed, on August 5,

1992, to proceed with the refinancing without a new guarantee

from Larry Ansin. Instead, Simons represented that the

company would have problems without the new Ansin guarantee,

and that people would be thrown out of work. In early

September, Simons asked if Harold Ansin would sign a personal

guarantee, but Harold Ansin declined.

In mid- to late-September, Simons called Maraghy

and asked if the Ansins would be willing to sell their stock

back to River Oaks so that someone else could purchase it and

provide the guarantee. The Ansins agreed, believing that the

sale would help Simons obtain the needed financing.

On October 19, 1992, Keenum called Maraghy to

discuss an offer of $300,000 for the Ansin River Oaks

Furniture and R-O Realty shares. Keenum told Maraghy that

River Oaks had recently bought out Keith Franklin, the only

other non-management shareholder, for $60,000 per 1%

interest, indicating that $300,000 was a fair price for the

Ansin's 4% interest in River Oaks. Keenum also told Maraghy

that the R-O Realty shares were valueless, as R-O Realty's

properties were heavily encumbered with debt.

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The Ansins agreed to the sale, believing that the

price was fair and that they were accommodating Simons' need

for bank financing. Simons wrote to Maraghy, thanking him

"for helping me resolve this problem."4 The sale of the

Ansin shares for $300,000 was closed in November 1992.

In board meetings on November 19, 1992, and

December 1, 1992, the directors of River Oaks authorized the

resale of the Ansin River Oaks shares, for the same price

River Oaks had paid, to Keenum, Billingsley, and other

original River Oaks investors. The Board had already

authorized the resale of the Ansin R-O Realty shares to

Keenum, Simons and other insiders on September 1, 1992, even

though the repurchase offer had not yet been made. Everyone

purchasing Ansin shares was familiar with the IPO discussions

with J.C. Bradford.

Keenum and Simons acknowledge that, during the

repurchase discussions, they never told Maraghy about the

meetings with J.C. Bradford or about the prospect of

restarting IPO discussions in early 1993. Although there

were no ongoing negotiations in November 1992, Billingsley

testified that River Oaks' management knew by October or

November 1992 that the company would meet its sales

projections for 1992 and so would meet the condition set by

4. Before finalizing the sale, Harold Ansin transferred the
shares to the Ansin Foundation, a family charitable trust,
for tax reasons.

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J.C. Bradford for following up on the IPO. During a

conference call on December 7, 1992, less than two weeks

after the Ansin repurchase, Ron Ashby, River Oaks' outside

auditor, discussed the impact of an IPO on River Oaks'

accounting for employee loans with Keenum and other River

Oaks personnel. Ashby's notes, made in the month or two

prior to that call, indicate that River Oaks was looking at

an IPO in July or August 1993.

Simons testified that, in one phone conversation in

early 1992, he told Larry Ansin that River Oaks had made

initial contact with an unspecified investment banker, and

that Larry Ansin thought going public was a great idea.

However, Harold Ansin, Maraghy, and Susan Ansin, Larry's

wife, all testified that Larry Ansin never mentioned the

possibility of an IPO, even though they all stated that Larry

discussed business with them regularly.

The River Oaks board approved an IPO on March 1,

1993. Maraghy first learned that an IPO was being planned

from a June 1993 newspaper article. By this time, Larry Ansin

had died.

River Oaks went public on August 26, 1993 for $12

per share. As part of the transaction, River Oaks effected a

28.8 for 1 stock split on June 23, 1993. This meant that the

Ansins' 7,500 shares would have become 216,000 shares.

Additionally, R-O Realty was merged into River Oaks

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furniture, and the R-O Realty shareholders received $1.2

million of River Oaks stock. From the proceeds of the

offering, River Oaks distributed $2,465,000 of previous

earnings to its pre-IPO shareholders.

Finally, the plaintiffs learned from the prospectus

of the existence of River Wood Products, Inc. River Wood had

been established in 1991 to produce furniture frames for

River Oaks. Although there were no significant financial

benefits to setting up River Wood as a separate corporation,

a 1991 memo from Ashby indicated that "a political reason for

setting up . . . separate corporations would be to exclude

certain current River Oaks shareholders." Harold Ansin was

one of the shareholders excluded. At the time of the IPO,

River Wood shareholders received shares of River Oaks

Furniture stock.

At trial, plaintiffs' expert testified that if the

Ansins had held 7,500 shares prior to the IPO and then sold

them at the end of the restricted period, they would have

received a total of $4,179,140. This figure included

proportional allocations of River Oaks Furniture shares for

the Ansin R-O Realty shares and for a hypothetical 7.5%

interest in River Wood Products. It also included a share of

the S-corporation distribution.

II.

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The Ansins filed suit on October 4, 1993, alleging

securities law violations, fraud, breach of fiduciary duty,

malpractice and Mass. Gen. L. ch. 93A claims arising from

defendants' failure to disclose the planned IPO. After

discovery, on June 17, 1994, plaintiffs filed a Second

Amended Complaint, adding a conversion claim for the

reduction of the Ansin interest to 4,000 shares. The

district court granted a defense motion to dismiss the ch.

93A and malpractice claims on October 12, 1994. On July 5,

1995, a Third Amended Complaint was filed, which included a

breach of contract claim arising from the same facts as the

conversion claim.

On November 15, 1995, the district court granted

defendant's motion for summary judgment on the conversion

claim, finding that the Massachusetts three-year statute of

limitations for torts barred any conversion claim that the

Ansins should have discovered prior to October 4, 1990. The

district court found that various 1989 tax documents, signed

by Harold Ansin and indicating that he owned a 4,000 share or

4% interest in River Oaks, should have alerted Ansin to the

alleged conversion.

The remaining claims were tried to a jury. The

jury returned a special verdict form finding that: 1)

defendants violated the Securities Exchange Act and engaged

in common law fraud by failing to disclose the public

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offering discussions with J.C. Bradford; 2) River Oaks

committed a breach of contract when the Ansin interest was

reduced to 4,000 shares; 3) Simons and/or Keenum breached the

fiduciary duty owed by a dominant shareholder to a minority

shareholder by failing to disclose the discussions with J.C.

Bradford and by failing to offer the Ansins the opportunity

to participate in River Wood Products, Inc. The jury awarded

compensatory damages of $1,082,400 against all defendants for

the fraud claims, $1,209,600 against River Oaks for the

breach of contract, and $16,400 against Simons and Keenum for

the breach of fiduciary duty. It also awarded punitive

damages under Mississippi law of $25,000 against Simons and

of $100,000 against Keenum.

The defendants moved for judgment as a matter of

law at the close of plaintiffs' case, after the verdict, and

following the entry of judgment. On April 26, 1996,

defendants moved, pursuant to Rule 49(a), Fed. R. Civ. P., to

have the court address issues not submitted to the jury. The

district court denied these motions.

III.

Defendants make numerous arguments with regard to

each count of the verdict and the damages awarded. We

examine these contentions in turn.5

5. Except as otherwise noted, the parties agree that
Mississippi law is the relevant substantive law on the state
law claims, and that Massachusetts provides the relevant

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A. The Federal Securities and Common Law Fraud Claims

The federal securities claim alleged violations of

10(b) of the Securities Exchange Act and Rule 10b-5.

Defendants argue that the district court erred in denying

their motion for a judgment as a matter of law on the federal

securities law and Mississippi common law fraud claims.

Specifically, defendants assert that there was no evidence of

omission or misrepresentation, of fraudulent intent, of

materiality or of reliance.

Review of the district court's denial of a motion

for judgment as a matter of law is plenary. See Correa, 69

F.3d at 1191. As did the district judge, we review the

record in the light most favorable to the non-moving party.

Id. We will "reverse the denial of such a motion only if

reasonable persons could not have reached the conclusion that

the jury embraced." Sanchez v. Puerto Rico Oil Co., 37 F.3d

712, 716 (1st Cir. 1994).

The record shows sufficient evidence to support the

jury's verdict. Defendants contend that there was no

material omission because Simons testified that he told Larry

Ansin, in early 1992, about the initial contact with J.C.

Bradford. However, Simons himself never claimed that he had

told Ansin about J.C. Bradford's specific recommendations as

to the possible timing of an IPO, or that he had told Ansin

procedural provisions.

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about the valuation analyses performed by the investment

bank. Nor did Simons or Keenum mention the possibility of an

IPO to Maraghy at the time of the negotiated sale. Thus,

even crediting Simons' uncorroborated testimony, which the

jury need not do, the jury could reasonably find that

information about the IPO negotiations was omitted.

As to evidence of intent, defendants contend that

there was no possible motive for fraud, because River Oaks

resold the Ansin shares to other insiders at the same price

the corporation had paid for them, thereby depriving the

corporation of the fruits of its fraud. However, the jury

could reasonably infer, from the evidence, that the

individual defendants, officers and directors of River Oaks,

were working to exclude the Ansins, the only remaining non-

management shareholders, from the River Oaks IPO, and were

seeking ultimately to benefit themselves and the other

Mississippi management shareholders at the Ansins' expense.

Defendants also argue that there was no evidence

that the undisclosed information was material. The

materiality standard under the federal securities laws is a

familiar one: Information is material if "there is a

reasonable likelihood that a reasonable investor would

consider it important." Glassman v. Computervision Corp., 90

F.3d 617, 632 (1st Cir. 1996); see also Shaw v. Digital

Equip. Corp., 82 F.3d 1194, 1219 (1st Cir. 1996)(citing

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Basic, Inc. v. Levinson, 485 U.S. 224, 231-232 (1988)). This

court has repeatedly held that the question of the

materiality of omitted information is one peculiarly for the

trier of fact. See Lucia v. Prospect St. High Income

Portfolio, Inc., 36 F.3d 170, 176 (1st Cir. 1994)(citing

cases).

Defendants contend that the prior discussions with

J.C. Bradford were insignificant because no negotiations were

ongoing at the time of the Ansin repurchase. However, the

evidence showed that less than two weeks after the Ansin

repurchase, River Oaks' management was "looking at a July or

August 1993" IPO, and adjusting its accounting strategies

accordingly. This is not a case where the defendants

themselves "placed no special significance" on the omitted

information. Cf. Jackvony v. RIHT Fin. Corp., 873 F.2d 411,

415 (1st Cir. 1989); Taylor v. First Union Corp., 857 F.2d

240, 244 (4th Cir. 1988)("vague agreement" as to future

merger not material where neither "the factual nor the legal"

predicates for transaction were in place). The jury's

conclusion that the earlier negotiations were material is

patently reasonable.

Finally, defendants contend that there was no

evidence of reliance on the omissions. Because of the

logical impossibility of proving that plaintiffs relied on

information that they did not have, "[p]ositive proof of

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reliance on omissions is not necessary where materiality has

been established." Holmes v. Bateson, 583 F.2d 542, 558 (1st

Cir. 1978). In any case, Harold Ansin testified that he did

rely on information obtained from Simons.

Thus, defendants' insufficiency arguments with

regard to the securities law and fraud claims are unavailing.

A reasonable jury could, and did, conclude that defendants

intentionally defrauded plaintiffs by failing to disclose

material information about the contemplated IPO.

B. The Breach of Contract Claim

The defendants also argue that what plaintiffs

styled a breach of contract claim is essentially a conversion

claim, and therefore barred by the statute of limitations.

They also claim that the evidence was insufficient to support

the jury verdict on this claim, and that Harold Ansin and the

Ansin Foundation lack standing to bring this claim.

1. Statute of Limitations

Defendants argue that plaintiffs simply recast

their time-barred conversion claim as a breach of contract

claim,6 and that this claim should therefore be subject to

6. Although defendants suggest that plaintiffs repleaded
their conversion claim as breach of contract after the

district judge had found that their tort claim was barred,
this is factually incorrect. Moreover, the district judge,
in his opinion granting summary judgment on the conversion
claim, specifically noted that, although the contract claim
pleaded the same facts, defendants had not moved for summary

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the Massachusetts three-year tort statute of limitations

(Mass. Gen. Laws ch. 260, 2A), rather than the Massachusetts

six-year contract statute (Mass. Gen. Laws ch. 260, 2).7

Defendants cite Massachusetts caselaw for the

principle that "the determination of whether the contract or

tort statute of limitations applies is controlled by the

essential nature of [the] claim." Oliveira v. Pereira, 605

N.E.2d 287, 290 (Mass. 1992). This principle may be useful

in determining what statute of limitations to apply to a

statutory claim, where the statute giving rise to the cause

of action does not specify a limitations period. See, e.g.,

id. at 289-91. It may also apply in the extreme case in

which a personal injury, such as emotional distress, is

inappropriately cast as a breach of contract. See Pagliuca

v. City of Boston, 626 N.E.2d 625, 628 (Mass. Ct. App. 1994).

However, this principle has not been held to restrict

plaintiffs to a single theory of liability per set of

operative facts, where such facts can fairly support two

theories of liability.

Here, the plaintiffs' claim -- that their shares

were transferred without their knowledge or consent, in

derogation of contractual terms -- can be fairly

judgment on that claim and that his ruling did not reach that
count.

7. The parties agree that Massachusetts law supplies the
applicable statute of limitations.

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characterized as either an action for conversion or an action

for breach of contract. It does not involve the type of

"accident[] resulting in injuries to person or property" on

which the draftsmen of Massachusetts' three-year tort statute

focussed. Royal-Globe Ins. Co. v. Craven, 585 N.E.2d 315,

320 (Mass. 1992). Rather, it does involve a claim "to

recover from another money which in equity and good

conscience he is not entitled to keep." The latter type of

claim, according to the Supreme Judicial Court, is usually

advanced in a contract action. Kagan v. Levenson, 134 N.E.2d

415, 417 (Mass. 1956). In these circumstances, it was not

error for the district court to apply the six-year contract

statute of limitations to plaintiffs' contract claim.

2. Insufficiency of the Breach of Contract Evidence and

Enforceability of Rights

The defendants assert that there is no evidence

that Larry Ansin did not agree to the reduction in shares.

They also deny that the foundation corporate documents of

River Oaks created enforceable rights in the plaintiffs.

This is simply not so.

As with the fraud claims, defendants rely on

Simons' uncorroborated report of his phone conversation with

Larry Ansin. With regard to the contract claim, Simons

testified that, in early 1989, Ansin orally agreed to a

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reduction in his percentage of ownership. Simons does not

assert that he mentioned specific numbers of shares to Ansin,

nor does he claim that Ansin received any compensation for

these transfers. Simons testified that Larry Ansin did not

agree to transfer shares to himself or to Franks (the

recipients of the shares). Simons and Keenum both

acknowledged that there was no documentation of these

transfers.

Simons described a complex reallocation of shares,

undertaken to allow shares to be issued to new key personnel.

However, Keenum acknowledged that 25,000 new shares were

issued in 1989, and that the new employees were issued

exactly 25,000 shares. This negated the reallocation as a

reason for the reduction in Ansin's shares. Additionally, in

the reallocation described by Keenum, only Harold Ansin had

to give up shares; Simons' percentage of ownership was

diluted by the new issuance, but he actually gained 1,000

shares (from the alleged transfer from Ansin).

Even if the jury credited Simons' description of

Larry Ansin's oral consent, the jury could have reasonably

inferred that Ansin only consented to dilution, and not to a

transfer of shares. Additionally, when evaluating a series

of events that, judging from the trial exhibits, left a heavy

paper trail, the jury was entitled to draw inferences from

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the complete absence of contemporaneous documentation of the

purported Ansin transfers.

Defendants also contend that the foundational

documents of River Oaks did not create any rights in the

Ansins with regard to transfers. Defendants do not challenge

the basic premise that, under Mississippi law, such documents

may form a contract. Rather, they contend that the specific

transfer provisions were only for the benefit of the

corporation, and thus created no rights in the shareholders.

However, the plain language of the Subscription Agreement

states that "this Agreement shall be binding upon and shall

inure to the benefit of each individual Stockholder . . . and

to the Company . . . ." While the transfer provisions of the

Articles of Incorporation and the By-Laws may have been

primarily intended to prevent the unauthorized sale of shares

to outsiders, as defendants contend, this does not mean that

they served no other purpose.

To the contrary, the traditional common law of

unauthorized transfers places heavy duties on the

corporation:

Courts held that a corporation whose
stock was transferable only on the books
of the company was, to a certain extent
at least, a trustee for its shareholders
in respect to their stock. . . . [I]t had
to respond in damages for any injury
sustained by them in consequence of its
negligence or misconduct. . . . This
liability rested . . . upon the ground of
breach of contract upon the part of the

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company, of this undertaking to hold the
stock for the benefit of the true owner
of the certificate.

12 Fletcher Cyclopedia of the Law of Corporations 5538, at

406 (perm. ed. 1996)(footnotes omitted). Moreover, the

Cyclopedia explains that:

The shareholders also have a right
to expect that the corporation will
observe its own bylaws in relation to the
transfer, and it is liable for any
damages resulting to them by reason of
its failure to do so.

Id. (footnotes omitted).

This authority is sufficient to rebut defendants'

contention that the plain language of River Oaks' transfer

provisions can only be read to create rights in the

corporation. The defendants point to nothing in either the

documents or in Mississippi law that would require a jury to

conclude that River Oaks shareholders had no rights under

these documents as to transfers. Accordingly, the jury's

verdict on the breach of contract claim stands.

3. Standing

The defendants assert that Harold Ansin and the

Ansin Foundation lack standing to bring a contract claim

because they were not in privity of contract with River Oaks.

However, defendants acknowledge that Larry Ansin's estate

would have standing to bring such a suit, were it not for the

fact that, in their view, Larry Ansin acquiesced in the

breach and suffered no damages. The jury plainly rejected

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these assertions. Assuming arguendo that defendants are

correct that, as a matter of Mississippi law, Harold Ansin

could not bring this suit, we find that, as Larry Ansin's

estate indisputably had standing, this claim has no possible

bearing on the outcome of the case.

C. The Breach of Fiduciary Duty Claim

Defendants take the position that, under

Mississippi law, shareholders may not sue, as individuals,

for breach of fiduciary duty by the officers and directors of

a close corporation. However, Mississippi case law

recognizes the ability of shareholders in close corporations

to sue for breach of fiduciary duty. See Fought v. Morris,

543 So. 2d 167, 172-73 (Miss. 1989). The Mississippi Supreme

Court has specifically stated, in the context of a suit for

diversion of corporate opportunity, that a trial court may,

"in the case of a closely held corporation, . . . treat an

action raising derivative claims as a direct action . . . and

order an individual recovery." Derouen v. Murray, 604 So. 2d

1086, 1091 n.2 (Miss. 1992). Defendants' argument as to the

fiduciary duty claim is without merit.

D. Affirmative Defenses

Defendants assert that equitable defenses barred

both the contract claim and the fraud claims. Defendants did

not submit these affirmative defenses - laches, waiver,

ratification and estoppel - to the jury. Instead, in a post-

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trial motion pursuant to Rule 49(a), defendants requested the

district judge to rule on the applicability of these

affirmative defenses. The district court denied this motion,

without opinion.

Under Rule 49(a), if the district court does not

make a finding on an issue not submitted to the jury, "it

will be presumed on appeal that the lower court made whatever

finding was necessary in order to support the judgment that

was entered." 9A Wright & Miller, Federal Practice and

Procedure, 2507, at 185-86 (1995); see also Kavanaugh v.

Greenlee Tool Co., 944 F.2d 7, 11-12 (1st Cir. 1991). As the

district court entered a judgment for the plaintiffs, we

presume that it found that defendants had not proven the

claimed equitable defenses.

The defendants argue that the breach of contract

claim was barred by laches, based on the district court's

finding, in the context of the conversion claim, that the

Ansins should have discovered the reduction in their interest

when signing the 1989 tax documents. The defense was

prejudiced by plaintiffs' delay in filing suit until 1993,

defendants argue, because Larry Ansin died in the interim.

We review the district court's determination as to

laches for abuse of discretion. See Murphy v. Timberlane

Reg'l Sch. Dist., 973 F.2d 13, 16 (1st Cir. 1992). The

parties have not adequately addressed which law governs this

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26

issue. However, Massachusetts and Mississippi law (as well

as general principles of equity) are consistent on this

point, and so there is no need to address the conflicts

question.

If the statute of limitations has not run, as is

the case here, the defendant bears a heavy burden of

demonstrating the unreasonableness of delay and the

occurrence of prejudice. See K-Mart Corp. v. Oriental Plaza,

Inc., 875 F.2d 907, 911 (1st Cir. 1989); Hans v. Hans, 482

So. 2d 1117, 1121 (Miss. 1986) ("no claim is barred by laches

until the limitation has attached"); cf. Srebnick v. Lo-Law

Transit Mgmt., Inc.., 557 N.E.2d 81, 85 (Mass. Ct. App. 1990)

("As long as there is no statute of limitations problem,

unreasonable delay in pressing a legal claim does not, as a

matter of substantive law, constitute laches."). Also, the

district court could have found that defendants' unsavory

conduct precluded them from arguing that they reasonably

relied on the plaintiffs' acquiescence in the transfer of

shares. See K-Mart Corp., 875 F.2d at 911 (party seeking to

invoke laches should not "call . . . attention to [its] left

hand while surreptitiously pocketing the family jewels with

[its] right hand"). Under these circumstances, it was not an

abuse of discretion for the district court to find the

defense of laches inapplicable.

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Defendants also argue that plaintiffs' two-month

delay between learning of the planned IPO and filing suit

constitutes laches, waiver, estoppel, and ratification so as

to bar the fraud claims. Any claim of prejudice to the

defendants from this delay is tenuous, as Larry Ansin had

already died when Patrick Maraghy learned of the planned IPO.

Given the maxim that "he who comes into equity must come

with clean hands," see, e.g, Texaco Puerto Rico, Inc. v.

Dep't of Consumer Affairs, 60 F.3d 867, 880 (1st Cir. 1995),

the district court did not abuse its discretion by declining

to apply these equitable defenses to plaintiffs' fraud

claims.

E. Compensatory Damages

1. Securities Law

The Supreme Court has held that damages under Rule

10b-5 should be "the difference between the fair value of all

that the . . . seller received and the fair value of what he

would have received had there been no fraudulent conduct."

Affiliated Ute Citizens v. United States, 406 U.S. 128, 155

(1972); see also Holmes, 583 F.2d at 562. On the Ansins'

securities law claim, the court instructed the jurors to find

"the difference between what the Ansins actually received for

their stock and what you believe they would have received had

they refused to sell or, instead, insisted on different

terms." The jury was told that "the issue is not hindsight,"

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and that they "must evaluate the Ansins' decision in light of

the facts and circumstances that existed at the time that the

decision to sell was made."

Defendants argue that the district court's jury

instructions as to the damages for the fraud claims were

flawed, in that the district court failed to tell the jury to

determine value as of the time of the fraudulent transaction,

i.e. in November 1992. The jury awarded damages of $12 per

share, the public offering price of River Oaks.8 This was

less than the $17.40 a share which plaintiffs sought and more

than the damages defendants say are the maximum allowable.

Defendants contend that the pre-IPO value of the company was

much lower, and support this contention by pointing to the

immediate resale of the Ansin shares to knowledgeable

insiders at the same price paid to the Ansins.

The federal securities statutes are not explicit as

to the proper measure of damages. Section 28 of the

Securities Exchange Act limits recovery to "actual damages on

account of the act complained of." 15 U.S.C. 78bb. The

definition of "actual damages," however, has been left to the

courts. This question presents difficulties, which are

8. The jury award apparently was based on the premise that
the Ansins would have participated in the 28.8 for 1 stock
split. The jury then deducted the $300,000 the Ansins had
actually received for their stock. The jury did not,
apparently, include compensatory damages for the R-O Realty
shares, or for the S corporation earnings distributed to
former shareholders at the time of the offering.

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greatest in cases involving closely held securities that have

no readily ascertainable market value. See 3 Bromberg &

Lowenfels, Securities Fraud & Commodities Fraud 9.1, at 228

(2d ed. 1996).

The trier of fact may draw reasonable inferences

in determining "fair value," and "is not restricted to actual

sale prices in a market so isolated and so thin" as one for a

close corporation's stock. Affiliated Ute, 406 U.S. at 155.

A variety of factors, including anticipated future

appreciation, may affect the value of stock, so that an

appraisal of value "demand[s] a more sophisticated approach

than the simple application of a price index to the shares."

Holmes, 583 F.2d at 564.

Here, the very nature of the fraud was to induce

the plaintiffs to sell their stock at a time before the stock

would appreciate in value due to the contemplated IPO and

stock split. To adopt defendants' argument that damages

cannot exceed the price of the shares at the time of the sale

would be to reward and encourage such chicanery. Defendants'

attempt to limit plaintiffs' recovery to a hypothetical

"market" price as of November 1992 is unavailing. The trier

of fact was entitled to infer that a reasonable investor,

fully informed of the IPO discussions, including the

conditions set by J.C. Bradford, would not have sold his

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stock in November 1992 for less than his proportionate share

of the IPO proceeds.

The anticipated appreciation in the value of the

stock was not unforeseeable. Internal River Oaks documents

as to planning and projections indicated that a 1993 IPO was

anticipated. J.C. Bradford analysts had suggested a range of

values for the company in light of the anticipated IPO,

information which was withheld from the plaintiffs. That

these analyses and projections were, to some extent,

contingent does not mean that they are irrelevant to

determining fair value. As another court of appeals has

said:

The relevance of the fact [that the
defendant close corporation was involved
in merger negotiations] does not depend
on how things turn out. Just as a lie
that overstates a firm's prospects is a
violation even if, against all odds,
every fantasy comes true, so a failure to
disclose an important beneficent event is
a violation even if things later go sour.
The news . . . allows investors to assess
the worth of the stock. . . . Investors
will either hold the stock or demand a
price that reflects the value of that
information.

Jordan v. Duff & Phelps, Inc., 815 F.2d 429, 440 (7th Cir.

1987)(internal citation omitted). In these circumstances,

the IPO price was a reasonable approximation of fair value.

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31

We note it was less than the aftermarket price plaintiffs

suggested as damages.9

Defendants draw our attention to two district court

cases. In Ross v. Licht, 263 F. Supp. 395 (S.D.N.Y. 1967),

the court based damages for failure to disclose IPO plans not

on the IPO price, but on the lower price obtained in an

intervening private placement. Id. at 411. However, as one

commentary has pointed out, the court was "probably

justified" in using the lower measure because the private

placement was a necessary precondition to the public

offering. Bromberg & Lowenfels, supra, 9.1, at 228 n.12.

Defendants have pointed to no such determinative intervening

event here. Defendants also point to Hutt v. Dean Witter

Reynolds, Inc., 737 F. Supp. 128 (D. Mass. 1990). In Hutt,

the accretion in value was due to the stock's trading in a

public market over time. The court accordingly found

plaintiffs' potential profits to be "too speculative." Id.

at 133. Here, by contrast, plaintiffs point to a specific,

planned-for event.

9. We also note that the damages here are consistent with
the rule of Janigan v. Taylor, 344 F.2d 781 (1st Cir. 1965).

In Janigan, this court held that, when property is sold to

the fraud-committing party, even "future accretions not
foreseeable at the time of the transfer . . . are subject to
another factor, viz., that they accrued to the fraudulent
party." Id. at 786. While the individual defendants did not

purchase all the Ansins' stock, the rest of the Ansins'
shares were sold to other knowledgeable River Oaks insiders,
who thereby reaped the profits of defendants' fraud.

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Because we affirm the award of damages on the

federal securities law claim, we do not reach the state fraud

claim. Holmes, 583 F.2d at 560.

2. Breach of Contract

Defendants also appeal the award of damages on the

contract claim, arguing the jury should have been told to

value damages "as of the time of the breach." The district

court instructed the jury to determine when the Ansins would

have sold the missing 3,500 shares, and to determine what

they would have received at that time. The jury apparently

determined that the Ansins would have held the shares until

the IPO, and awarded $12 per share, accounting for the 28.8

for 1 stock split. Whatever the merits of defendants

argument, they failed to object to the court's instruction at

trial, and so the issue has not been preserved for appeal.10

See Fed R. Civ. P. 51; Pinkham v. Burgess, 933 F.2d 1066,

1069 (1st Cir. 1991). The contract award of compensatory

damages is affirmed.

F. Punitive Damages

Defendants argue that the award of punitive damages

cannot be sustained because such damages are unavailable

under the securities laws and under Mississippi law.

Although the defendants are right as to the securities laws,

10. Defendants do not attempt to contend that the challenged
instruction constituted plain error.

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33

see 15 U.S.C. 78bb, the district court correctly instructed

the jury on the Mississippi law on punitive damages.

"The rule in Mississippi is settled that punitive

damages are not recoverable for a breach of contract unless

such breach is attended by intentional wrong, insult, abuse,

or such gross negligence that amounts to an independent

tort." Aetna Cas. and Sur. v. Steele, 373 So. 2d 797, 801

(Miss. 1979). Breach of fiduciary duty has been recognized

by the Mississippi courts as an "extreme or a special

additional circumstance where punitive damages may be

awarded." Fought, 543 So. 2d at 173 (internal quotation marks

omitted). The jury found such a breach of duty here.

Defendants contend that plaintiffs were required to

adduce evidence as to defendants' net worth. Plaintiffs

correctly respond that, under Mississippi law, the net worth

inquiry is only one factor to be considered where the court

seeks to determine if the punitive damages awarded by the

jury are so excessively disproportionate as to shock the

conscience of the court. See Bankers Life & Cas. Co. v.

Crenshaw, 483 So. 2d 254, 279 (Miss. 1985) ("[N]o hard and

fast rule may be laid down with regard to the maximum amount

of punitive damages that may be awarded in a given case.").

That proportionality threshold is not crossed here. In any

case, some evidence of defendants' net worth can be inferred

from the evidence as to their River Oaks holdings.

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"The award of punitive damages and the amount

thereof is within the discretion of the trier of fact."

Fought, 543 So. 2d at 173. "On appeal, an award will be

disturbed where it is so excessive that it evinces passion

and prejudice on the part of the jury so as to shock the

conscience of the court." Valley Forge Ins. Co. v.

Strickland, 620 So. 2d 535, 541 (Miss. 1993) On the facts of

this case, there was no abuse of discretion. The award of

punitive damages is affirmed.

IV.

Plaintiffs appeal the dismissal of their Mass. Gen.

Laws ch. 93A claim. They also argue that the district judge

erred in failing to award prejudgment interest and in

dismissing their conversion claim. Because we affirm the

jury's award on the contract claim, we need not reach the

Ansins' contention with respect to the conversion claim.

A. The 93A Claim

Plaintiffs claim that the actions of River Oaks,

Simons, and Keenum in the various transactions at issue here

constitute unfair and deceptive business practices within the

meaning of Mass. Gen. Laws ch. 93A, 2, 11. The district

court granted judgment on the pleadings for defendants.

Review is de novo. United States v. Rhode Island Insurers'

Insolvency Fund, 80 F.3d 616, 619 (1st Cir. 1996).

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35

Mass. Gen. Laws ch. 93A gives a private right of

action to any person injured by "an unfair or deceptive act

or practice" in trade or commerce "directly or indirectly

affecting the people of this Commonwealth." Mass. Gen. Laws

ch. 93A, 2, 9. Before January 1988, the statute was

construed as not applying to securities laws claims See,

e.g., Cabot Corp. v. Baddour, 477 N.E.2d 399, 402 (Mass.

1985). In 1987, the Massachusetts legislature amended the

definitions section of the statute so that "trade" and

"commerce" now include "the advertising, the offering for

sale, rent or lease, the sale, rent, lease or distribution of

. . . any security." Mass Gen. Laws ch. 93A, 1(b).

"Security" is defined broadly under Massachusetts law to

include any stock. Mass. Gen. Laws ch. 110A, 401(k).

The Supreme Judicial Court has construed ch. 93A as

covering marketplace transactions, but not transactions

"principally 'private in nature.'" See Manning v. Zuckerman,

444 N.E.2d 1262, 1266 (1983). Transactions between joint

venturers and fiduciaries who are part of a "single legal

entity" do not meet the statute's jurisdictional "trade or

commerce" requirement. Gilleran, The Law of Chapter 93A

2:18, at 38-39 (1989). This principle was recently clearly

restated in Szalla v. Locke, 657 N.E.2d 1267 (Mass. 1995):

It is well established that disputes
between parties in the same venture do
not fall within the scope of G.L. c. 93A,
11. . . . The development of c. 93A

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36

suggests that the unfair or deceptive
acts or practices prohibited are those
that may arise between discrete,
independent business entities, and not
those that may occur within a single
company.

Id. at 1269 (internal citations omitted).

Szalla, in offering examples of the types of

disputes not covered, cited Zimmerman v. Bogoff, 524 N.E.2d

849 (Mass. 1988), for the principle that "c. 93A [is]

inapplicable to transactions and disputes between parties to

[a] joint venture and fellow shareholders in a close

corporation." It also cited Riseman v. Orion Research, 475

N.E.2d 398 (1985), for the principle that "c. 93A [is]

inapplicable to claims by [a] corporate stockholder against

[a] corporation stemming from [a] dispute as to [the]

internal governance of [the] corporation." Szalla, 657

N.E.2d at 1269.

The plaintiff in Szalla, who was the business

partner of the defendant, attempted to argue that the

statutory definition of "trade or commerce" included the act

of "offering for sale . . . any services." Id. at 1270.

The trial court had found that the plaintiff, upon becoming

partners with the defendant, had "sold his services to the

business entity being formed by the parties." Id. The

Supreme Judicial Court found that, on these facts "[t]here

ha[d] been no commercial transaction . . . in the sense

required by c. 93A . . . . [T]he 'services contemplated by

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37

this definition are those offered generally by a person for

sale to the public in a business transaction.'" Id. (quoting

Manning v. Zuckerman).

Here, plaintiffs argue that the statutory

amendment, which included the sale of securities in the

definition of "trade or commerce," makes the "trade or

commerce" inquiry irrelevant. We read Szalla, particularly

its citation of Zimmerman, to require an independent analysis

of whether the transaction involved had a public aspect, even

where the subject matter of the transaction is included in

the definitional section of the statute.

Another case, Puritan Medical Center v. Cashman,

596 N.E.2d 1004 (Mass. 1992), is of assistance. There, the

trial court found that the defendants, shareholders in a

close corporation, had engaged in unfair and deceptive trade

practices when they locked the plaintiff corporation out of

space that had previously been rented to the corporation.

Id. at 1006. On appeal to the Supreme Judicial Court,

defendants argued that they were not liable under ch. 93A

because "the parties were acting as fiduciary participants in

a closely held corporation rather than as separate entities

in a public market setting." Id. at 1012. The SJC stated:

"We agree," and reversed. Id.

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38

After explaining that the transactions at issue

were principally private in nature, the Puritan Medical

Center opinion continued:

Further, the aggrieved party has

available an alternative avenue of relief

in the form of a suit for breach of

fiduciary duty.

[I]f the defendants committed any
unfair or deceptive acts, they
necessarily occurred in the context of
the parties' [shareholder] relationship .
. . or arose out of that relationship . .
. and not in an arm's-length commercial
transaction between distinct business
entities.

Id. at 1012 (emphasis added)(internal citations omitted).

Here, the Ansins' suit is largely premised on River

Oaks' status as a close corporation. There is no suggestion

that these events could have or did transpire in a public

market situation. Moreover, the Ansins have actually

recovered on a fiduciary duty claim. Guided by the

Massachusetts precedents, we find that this dispute amongst

shareholders of a close corporation does not meet the

jurisdictional "trade or commerce" requirement of Mass. Gen.

Laws ch. 93A.

B. Prejudgment Interest

The plaintiffs argue that the district court erred

by failing to award prejudgment interest. The original jury

instructions contained no mention of prejudgment interest.

At sidebar, plaintiffs' counsel requested a jury instruction

on prejudgment interest "in order to preserve our right to

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39

prejudgment interest as awarded by anybody," the judge or the

jury. Accordingly, after the jury returned its verdict for

plaintiffs, the judge gave the jury a special interrogatory

on prejudgment interest, instructing the jury that "[w]hether

you choose to award interest is entirely a matter in your

discretion." Plaintiffs' counsel did not object to this form

of instruction. The jury did not award prejudgment interest.

Post-trial, plaintiffs moved for entry of judgment including

prejudgment interest. The district court denied this motion

as moot.

Plaintiffs argue, on appeal, that there is a

presumption in favor of prejudgment interest under the

federal securities laws, and that the district court judge

failed to so instruct the jury. Plaintiffs failed to make a

contemporaneous objection to the form of the jury

instruction, and, absent plain error, this argument is

waived.

However, plaintiffs also point out that, under a

Mississippi statute enacted in 1989, judgments "shall bear

interest at a per annum rate set by the judge hearing the

complaint from a date determined by such judge to be fair but

in no event prior to the filing of the complaint." Miss.

Code Ann. 75-17-7. This statutory language, they assert,

mandates an award of prejudgment interest on their state law

claims. We do not read the statutory language, which does

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not distinguish between pre- and post-judgment interest, so

broadly. The Mississippi case law indicates that the award

of prejudgment interest remains within the discretion of the

trial judge. See American Fire Protection, Inc. v. Lewis,

653 So. 2d 1387, 1391 (Miss. 1995)(depending on

circumstances, prejudgment interest may or may not be proper,

but should be allowed where necessary to adequately

compensate plaintiff); Sunburst Bank v. Keith, 648 So. 2d

1147, 1152 (Miss. 1995) ("award of prejudgment interest is

normally left to the discretion of the trial judge").

The law of this circuit similarly recognizes the

discretion of the trial judge in cases involving violations

of the federal securities laws. See Riseman v. Orion

Research, 749 F.2d 915, 921 (1st Cir. 1984). There was no

abuse of discretion in the trial court's decision to abide by

the jury's finding on prejudgment interest.

V.

Plaintiffs point to a clerical error in the Amended

Judgment. We therefore direct the Clerk of the United States

District Court for the District of Massachusetts to amend the

judgment so that postjudgment interest accrues as of May 15,

1996, the date of the Original Judgment. In all other

respects, the judgment is affirmed.

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