Gasner v. Board of Supervisors

Filed: January 7, 1997

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 96-1010
(CA-95-378)

Alan H. Gasner, et al,

Plaintiffs - Appellants,

versus

The Board of Supervisors of the County of
Dinwiddie, Virginia, etc., et al,

Defendants - Appellees.

O R D E R

The Court amends its opinion filed December 31, 1996, as

follows:
On page 2, section 2, line 3 -- "Robert E. Payne, District

Judge" is corrected to read " James R. Spencer, District Judge."

On page 3, section 1, line 12 -- "Scott S. Bliss" is corrected

to read "Steven S. Biss."
On page 26, first full paragraph, line 9 -- the word "pendant"

is corrected to read "pend ent."

For the Court - By Direction

/s/ Patricia S. Connor
Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALAN H. GASNER; SIGNET TRUST
COMPANY, as Trustee under,
Indenture of Trust dated April 15,
1993, with the Industrial
Development Authority of
Dinwiddie County, Virginia,
Plaintiffs-Appellants,

v.

THE BOARD OF SUPERVISORS OF THE
COUNTY OF DINWIDDIE, VIRGINIA, in
their official capacity; CHARLES W.
BURGESS, JR.; DEWEY P. CASHWELL;
THE INDUSTRIAL DEVELOPMENT
AUTHORITY OF DINWIDDIE COUNTY,
VIRGINIA, a political subdivision of
No. 96-1010
the Commonwealth of Virginia;
CARTER KAPLAN AND COMPANY, a
Virginia Limited Partnership;
CARKAP, INCORPORATED, a Virginia
Corporation; WILLIAM P. CARTER;
ROBERT R. KAPLAN; EMS
ENGINEERING, P.C., a New York
Professional Corporation; VIRGINIA
BIO-FUEL CORPORATION, a Virginia
Corporation; FUNNELL INDUSTRIES,
INCORPORATED, a New York
Corporation; BARRY H. FUNNELL;
HARVEY T. BAXTER, III; HIRSCHLER,
FLEISCHER, WEINBERG, COX & ALLEN,
P.C., a Virginia Professional
Corporation; DAVID F. BELKOWITZ;
SANDS, ANDERSON, MARKS & MILLER,
P.C., a Virginia Professional
Corporation; DANIEL M. SIEGEL; THE
COUNTY OF DINWIDDIE, a Political
Subdivision of the Commonwealth
of Virginia,
Defendants-Appellees,

and

FREDERICK C. MALONEY; SHARON M.
MALONEY,
Parties in Interest.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-95-378)

Argued: October 31, 1996

Decided: December 31, 1996

Before MURNAGHAN and NIEMEYER, Circuit Judges, and
HARVEY, Senior United States District Judge for the District of
Maryland, sitting by designation

_________________________________________________________________

Affirmed by published opinion. Senior Judge Harvey wrote the
majority opinion, in which Judge Niemeyer joined. Judge Murnaghan
wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Stephen Atherton Northup, MAYS & VALENTINE,
Richmond, Virginia, for Appellants. J. Jonathan Schraub, ROBINS,

2
KAPLAN, MILLER & CIRESI, Washington, D.C.; Heman A. Mar-
shall, III, WOODS, ROGERS & HAZLEGROVE, P.L.C., Roanoke,
Virginia; Gary Alvin Bryant, WILLCOX & SAVAGE, P.C., Norfolk,
Virginia, for Appellees. ON BRIEF: Robert L. Brooke, Alan D.
Wingfield, MAYS & VALENTINE, Richmond, Virginia; Murray H.
Wright, Jonathan S. Geldzahler, WRIGHT, ROBINSON, MCCAM-
MON, OSTHIMER & TATUM, Richmond, Virginia, for Appellants.
Danny M. Howell, ROBINS, KAPLAN, MILLER & CIRESI, Wash-
ington, D.C.; Frank K. Friedman, WOODS, ROGERS & HAZLE-
GROVE, P.L.C., Roanoke, Virginia; Stephen T. Gannon, L. B. Cann,
III, LECLAIR RYAN, JOYNES, EPPS & FRAMME, P.C., Rich-
mond, Virginia; Daniel A. Gecker, Steven S. Biss, MALONEY,
BARR & HUENNEKENS, P.C., Richmond, Virginia, for Appellees.

_________________________________________________________________

OPINION

HARVEY, Senior District Judge:

This litigation arose as a result of the financial failure of an anaero-
bic composting facility (the "Facility") constructed by a private firm
for the purpose of processing the solid waste of a Virginia county.
Bonds issued to finance the purchase and installation of equipment for
the Facility were defaulted when the venture failed. Bondholders then
filed suit in the United States District Court for the Eastern District
of Virginia, alleging violations of federal securities laws and Virginia
state law. Named as defendants in the action were the County, the
industrial development authority which had issued the bonds, the
bond underwriter, attorneys for some of the parties and various other
individuals and corporate entities.

Motions to dismiss and for summary judgment were filed by the
defendants. Following a hearing, the district court granted defendants'
motions for summary judgment. This appeal followed. Because we
find no merit to any of the errors assigned by the appellants, we
affirm the judgments entered below.

I

In an effort to satisfy its governmental function of disposing of
trash generated by its residents while complying with recycling

3
requirements imposed by the State, Dinwiddie County, Virginia (the
"County") developed a plan for the construction and operation of a
facility which would process the County's solid waste without the use
of costly landfills. Virginia Bio-Fuel Corporation ("VBFC"), a private
corporation, was engaged to construct and operate the Facility. The
County's existing landfill was to be closed, a concrete building was
to be constructed on the site and VBFC was to install equipment
designed to combine biodegradable waste with sewage sludge to
create mulch. It was decided that the project would be financed by
means of tax free municipal bonds to be issued by the Industrial
Development Authority of Dinwiddie County (the "Authority"), a
political subdivision of the Commonwealth of Virginia. The Author-
ity had been established to further industrial development in the
County, by serving, inter alia, as a vehicle whereby private busi-
nesses might secure tax exempt financing.

In December of 1992, the Authority issued $1,120,000 in bonds to
finance the closure of the County's existing landfill (the "Closure
Bonds"). In March of 1993, the Authority issued $1,230,000 in bonds
to finance the construction of the building which would house the
new composting Facility (the "Building Bonds"). In April of 1993, the
Authority issued $3,000,000 in bonds to finance the acquisition of
recycling and co-composting equipment to be installed in the building
then under construction (the "Equipment Bonds"). The Equipment
Bonds were issued pursuant to the terms of an Offering Statement
dated April 15, 1993. It is the Equipment Bonds which are at issue
in this case.1

Proceeds received by the Authority as a result of the sale of the
Equipment Bonds were to be loaned by it to VBFC which was to use
the funds to acquire and install the necessary recycling and compost-
ing equipment. VBFC had entered into an Operations Contract with
the County whereby the County was to pay VBFC a fixed rate for
waste disposed of in the Facility. Although the Equipment Bonds
were issued by it, the Authority was obligated to pay the principal of
_________________________________________________________________

1 The Building Bonds and the Closure Bonds were issued by the
Authority with financing to be provided by the County. Unlike these
County obligations, the Equipment Bonds were not backed by the full
faith and credit of the County.

4
and the interest on the Bonds only from funds received from VBFC
under the Note which VBFC had executed in favor of the Authority.
Thus, the obligation for payment of such principal and interest was,
under the Offering Statement, essentially that of VBFC.

From the outset of its operation of the Facility, VBFC encountered
serious problems. The materials used proved to be of poor quality.
VBFC lacked sufficient financial resources to permit it to operate,
mainly because it had been unable to secure contracts with other
counties for the processing of their waste. Sufficient revenue was
therefore not forthcoming for the operation of the Facility, and funds
were not available for payment of principal and interest to bondhold-
ers. In October of 1994, the project was abandoned, resulting in a
default of the Equipment Bonds.

Alan H. Gasner ("Gasner") is the holder of $955,000 of the Equip-
ment Bonds. Signet Trust Company ("Signet") is Trustee under the
Indenture Trust covering the Bonds. Gasner and Signet filed a com-
plaint and later an amended complaint in the United States District
Court for the Eastern District of Virginia seeking compensatory dam-
ages arising as a result of the bond default.2 Named as defendants,
inter alia, were the County, the Authority, VBFC, and Carter Kaplan
& Company, L.P. ("Carter Kaplan"), the brokerage firm which had
underwritten the issuance of the bonds.3
_________________________________________________________________

2 Gasner sued on his own behalf and on behalf of a class of similarly
situated persons.

3 Also named as defendants were the Board of Supervisors of the
County (the "Board"), Charles W. Burgess, Jr. (the County Administra-
tor), Dewey P. Cashwell (the former County Administrator), Carkap, Inc.
(the general partner of Carter Kaplan), William P. Carter and Robert R.
Kaplan (officers of Carter Kaplan), EMS Engineering, P.C. (an engineer-
ing firm), Funnell Industries, Inc. (manufacturer of the equipment used
in the facility), Barry H. Funnell (an officer, director and owner of Fun-
nel and of VBFC), Harvey T. Baxter (an officer, director and owner of
VBFC), Hirschler, Fleischer, Weinberg, Cox & Allen, P.C. (a law firm
which served as counsel for the underwriter and as bond counsel), David
F. Belkowitz (an attorney employed by the Hirschler, Fleischer firm),
Sands, Anderson, Marks & Miller, P.C. (the law firm which served as
counsel for both the County and the Authority), and Daniel M. Siegel (an
attorney employed by the Sands, Anderson firm).

5
In Count 1 of their amended complaint, plaintiffs claimed that
defendants had violated § 10(b) of the Securities Exchange Act of
1934, 15 U.S.C. § 78(j) and Rule 10b-5, 17 C.F.R. § 240.10b-5 (here-
inafter the "Rule 10b-5 claim"). It was alleged in Count 1 that all
defendants had made or caused to be made untrue or misleading state-
ments or omissions of material fact in connection with the issuance
of the Equipment Bonds.

Count 2 of the amended complaint charged a violation of § 12(2)
of the Securities Act of 1933, 15 U.S.C. § 77l(2). It was alleged in
Count 2 that the County, the Board, the Authority, VBFC and Carter
Kaplan had sold the Equipment Bonds by means of untrue statements
of material fact and by means of wrongful omissions.4

Count 3 charged a violation of § 12(1) of the Securities Act of
1933, 15 U.S.C. § 77l(1). It was alleged in Count 3 that the County,
the Board, the Authority, VBFC and Carter Kaplan were sellers of
securities with respect to the issuance of the Equipment Bonds and
that the Bonds had not been properly registered as required by § 5 of
the 1933 Act.5

Counts 4 through 16 of the amended complaint asserted pendent
claims under Virginia law pursuant to the district court's supplemen-
tal jurisdiction. Claims of violations of the Virginia Securities Act,
fraud, breach of contract, attorney malpractice, engineer malpractice,
conversion, tortious interference with contract, breach of fiduciary
duty and wrongful taking of trust property were included in those
Counts.

At an early stage of the case, defendants filed motions to dismiss
or for summary judgment. Since affidavits and exhibits had been sub-
mitted in support of these motions, they were treated by the district
court as motions for summary judgment under Rule 56, F.R.Civ.P.
Following a hearing, the district court issued a Memorandum Opinion
_________________________________________________________________

4 Count 2 further alleged that defendants Funnell, Baxter and Carter
Kaplan were secondarily liable under § 15 of the 1933 Act.

5 Count 3 further alleged that defendants Funnell, Baxter and Carkap
were secondarily liable as controlling persons of VBFC or Carter
Kaplan, pursuant to § 15 of the 1933 Act.

6
and Final Order on December 7, 1995, granting the defendants'
motions for summary judgment. The Court ruled (1) that Counts 1
and 2 of the amended complaint should be dismissed with respect to
all defendants because the defendants had made no material misrepre-
sentations or omissions in the Offering Statement; (2) that, alterna-
tively, Count 1 should be dismissed as to all defendants because
plaintiffs had failed to demonstrate loss causation; (3) that, alterna-
tively, Count 1 should be dismissed as to the County and certain other
defendants because they had no affirmative duty of disclosure; (4)
that, alternatively, Count 2 should be dismissed as to the County, the
Board and the County Administrator because they were not statutory
sellers under § 12(2); (5) that Count 3 should be dismissed because
the issue presented was not ripe for decision and there was accord-
ingly no case and controversy before the court; and (6) that the pen-
dent state law claims should be dismissed without prejudice inasmuch
as the federal claims were being dismissed with prejudice.

This appeal followed.

II

Appellants first challenge the district court's determination that
plaintiffs' Rule 10b-5 and § 12(2) claims must fail because defendants
made no material misrepresentations or omissions in the Offering
Statement for the Equipment Bonds. Since the decision below was
reached by way of the district court's granting of defendants' motions
for summary judgment, the standard for review is de novo. Schatz v.
Rosenberg, 943 F.2d 485, 489 (4th Cir. 1991), cert. denied, 503 U.S.
936 (1992). What must be determined on this record is whether in
opposing defendants' motions, plaintiffs presented evidence of suffi-
cient "caliber and quantity" that a reasonable jury could return a ver-
dict for the plaintiffs. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 254 (1986).

To establish liability under Rule 10b-5, a plaintiff must prove the
following elements: (1) that in connection with the purchase or sale
of a security the defendant made a false statement or omission of
material fact; (2) with scienter; (3) upon which the plaintiff justifiably
relied; and (4) that proximately caused plaintiff's damages. Hillson
Partners Ltd. Partnership v. Adage, Inc., 42 F.3d 204, 208 (4th Cir.

7
1994); Schatz, 943 F.2d at 489. To establish liability under § 12(2),
a plaintiff must prove (1) that defendant offered or sold a security; (2)
by the use of any means of communication in interstate commerce;
(3) through a prospectus; (4) by making a false statement or omission
of material fact; (5) the untruth of which was known by defendant but
not known by plaintiff; and (6) that caused plaintiff's damages. Ballay
v. Legg Mason Wood Walker, Inc., 925 F.2d 682, 687-88 (3d Cir.),
cert. denied, 502 U.S. 820 (1991).

For a misrepresentation or omission to violate both Rule 10b-5 and
§ 12(2), it must be material. The question of materiality is an objec-
tive one, involving the significance of an omitted or misrepresented
fact to a reasonable investor. TSC Industries, Inc. v. Northway, Inc.,
426 U.S. 438, 445 (1976).6 A misrepresented or omitted fact is mate-
rial if there is a substantial likelihood that a reasonable investor would
have been caused by disclosure of the truthful fact to change his deci-
sion to purchase the security. Id. at 449; Walker v. Action Industries,
Inc., 802 F.2d 703, 706 n.6 (4th Cir. 1986), cert. denied, 499 U.S.
1065 (1987). Disclosure of the true facts or of the omitted fact must
have been viewed by the reasonable investor as having significantly
altered the "total mix" of information made available. TSC Industries,
426 U.S. at 449.

In contending that appellees' motions for summary judgment
should have been denied, appellants rely on several statements in the
Offering Statement claimed to be misrepresentations and one omis-
sion. First, they assert that appellees misrepresented the anaerobic
composting technology by labeling it as "proven." Second, they con-
tend that appellees misrepresented the commercial viability of the
Facility. Third, they assert that appellees omitted to state that the State
of Virginia would issue to the Facility only a one-year experimental
operating permit.
_________________________________________________________________

6 In TSC Industries, the Supreme Court articulated the standard for
determining when an omission would be considered material for pur-
poses of a claim under § 14(a) of the 1934 Act. Subsequently, the
Supreme Court expressly adopted the TSC Industries standard of materi-
ality "for the § 10(b) and Rule 10b-5 context." Basic, Inc. v. Levinson,
485 U.S. 224, 232 (1988).

8
The Offering Statement dated April 15, 1993 is some 49 pages in
length and contains detailed information relating to the issuance of the
bonds by the Authority. Attached to the Offering Statement is a Feasi-
bility Statement submitted by EMS Engineering, Inc. Appellants
claim that the following statements contained in the concluding para-
graph of the Feasibility Statement are material misrepresentations:

The co-composting and materials recovery equipment are
proven technology and are being used in other facilities.
(p. 4)

* * *

[W]e have compared the design and engineering aspects of
the Facility to existing operational facilities in New York,
California and Europe and have incorporated the same
proven aspects of engineering and design into the Facility.
(p. 4)

Following abandonment of the project, the County hired Organic
Waste Systems ("OWS"), a Belgian waste management consulting
firm, to evaluate the Facility and make recommendations for its possi-
ble future use. On May 30, 1995, OWS issued a 51-page Report enti-
tled "Evaluation of Materials Recovery and Co-composting Facility
at Dinwiddie County." Appellants did not submit any affidavit of an
expert in opposing appellees' motions for summary judgment. Rather,
in arguing that certain statements in the Offering Statement are false,
appellants relied on the following selected portions of the OWS
Report:

The technology of dry anaerobic digestion was an emerging
technology at the time of selection. (p. 5).

* * *

. . . the development in the U.S. of anaerobic high solids
digestion systems has virtually stagnated and has been lim-
ited to some small pilot scale experiences. (p. 10).

* * *

9
 None of the existing technologies were [sic ] actually proven
over a long period of time and no long term reliable invest-
ment and operating costs were available. (p. 12).

According to appellees, substantial evidence before the district
judge established that the technology in question was not "experimen-
tal" and "unproven." Appellees refer to the following statements in
the OWS Report:

Anaerobic dry digestion facilities, started up or contracted
for at the same time [as the VBC Facility], have shown to
be very successful, indicating that a viable technology was
available. Anaerobic composting as a general technology
has now been widely accepted in Europe and is considered
to be a viable alternative to conventional aerobic compost-
ing. (p. 5).

* * *

Even though the technology was available and has been
confirmed by further growth in the marketplace, VBC failed
to provide an adequate anaerobic composting system. (p. 5).

* * *

The technology of dry or high-solids digestion of solid
waste in general was at the moment of selection of the pro-
posed technology already more than ten years under devel-
opment. (p. 9).

* * *

By the summer of 1992, the time of the process selection for
Dinwiddie County, several full-scale plants using the dry
digestion of organic waste were operating in Europe. (p. 9).

* * *

The technology has been established as a proven technology
from a technical point of view. (p. 11).

10
 * * *

. . . the selection was made at a time when the technology
had progressed from a pilot-scale to a full-scale develop-
ment, with a number of full-scale plants demonstrating the
viability of the technology on a full-scale. (p. 12).

* * *

Plants started up or contracted for around the same time as
the moment of the selection by the county [of] VBC, have
been successful and indicate that the technology for dry
anaerobic composting was available and mature. (p. 13).

Appellees further rely on the affidavit of Luc De Baere, the pri-
mary author of the OWS Report, who stated that appellants had mis-
interpreted the Report.7 Referring to various portions of the Report,
De Baere stated that anaerobic composting technology was not exper-
imental or unproven as of 1993. According to De Baere, anaerobic
dry digestive facilities in Europe which began at the same time as the
Dinwiddie County Facility have proven to be successful, and anaero-
bic composting technology is widely accepted in Europe.

Appellants further argue that the failure of the Offering Statement
to indicate that the Virginia Department of Waste Management
("DWM") would be issuing only a temporary permit for the Facility
was a material omission. By way of reply, appellees point out that it
was not known when the Offering Statement was issued on April 15,
1993, whether a final permit or a temporary permit would be issued.
In a letter dated January 25, 1993, a representative of Commonwealth
Environmental Associates, Inc. indicated that it was his opinion that
the issue concerning the type of permit to be issued by the DWM
would be resolved shortly in favor of VBFC. In his letter of February
25, 1993, to County Administrator Cashwell and VBFC, an environ-
mental engineer of the Virginia DWM indicated that the VBFC appli-
cation was incomplete. The County and VBFC were asked to address,
_________________________________________________________________

7 The De Baere affidavit, dated September 27, 1995, was submitted by
appellees as a reply to appellants' opposition to appellees' motions for
summary judgment.

11
inter alia, the question whether an experimental permit should be
issued. The parties were there invited to make further comments and
address the deficiencies noted so that a full review of the application
could be made. A final decision was not made by the DWM until
later, and the experimental temporary permit itself was not issued
until January 7, 1994, well after the date of the Offering Statement.8

It is not necessary, however, for this Court to decide if a genuine
issue of fact exists as to whether the statements relied upon by the
appellants were false or misleading and as to whether the omission
relied upon pertained to a fact which rendered other statements mis-
leading. We are satisfied on the record before us that the alleged mis-
representations and omission were not material. There is not a
substantial likelihood here that the disclosure of the allegedly false
facts or omitted fact would have been viewed by a reasonable investor
as having significantly altered the total mix of information made
available. TSC Industries, 426 U.S. at 449.

Appellants have based their case essentially on a few isolated pas-
sages in the lengthy Offering Statement. In so doing, they have disre-
garded the "total mix" of available information. The alleged
misrepresentations and omission relied upon by appellants must be
considered in the full context in which they were made. Cautionary
language in an offering document may negate the materiality of an
alleged misrepresentation or omission. In re Donald J. Trump Casino
Securities Lit., 7 F.3d 357, 371 (3d Cir. 1993), cert. denied sub nom.
Gollomp v. Trump, 510 U.S. 1178 (1994). This is the so-called "be-
speaks caution" doctrine relied upon by various courts in concluding
that claims of securities fraud are subject to dismissal if cautionary
language in the offering document negates the materiality of the
alleged misrepresentations or omissions. Id.; see also Sinay v. Lamson
& Sessions Co., 948 F.2d 1037, 1040 (6th Cir. 1991); I. Meyer Pincus
& Assocs. v. Oppenheimer & Co., 936 F.2d 759, 763 (2d Cir. 1991);
Romani v. Shearson Lehman Hutton, 929 F.2d 875, 879 (1st Cir.
1991); Luce v. Edelstein, 802 F.2d 49, 56 (2d Cir. 1986); Polin v.
_________________________________________________________________

8 Under Virginia law, the one-year temporary permit was renewable for
three additional years. Variances could thereafter be requested for further
extensions of the permit.

12
Conductron Corp., 552 F.2d 797, 806 n.28 (8th Cir.), cert. denied,
434 U.S. 857 (1977).

In this case, the Offering Statement is replete with cautionary lan-
guage, examples of which are as follows:

VBFC presently has no significant assets other than the
Operations Contract and a contract with the County for the
closure of the County's landfill. Since VBFC has no signifi-
cant source of revenue with which to pay the Note other
than the Revenues and revenues from commercial haulers
and private deliveries, no financial statements for VBFC are
included in this Offering Statement. (p. 11)

* * *

VBFC's ability to repay the Note is entirely dependent on
the volume of solid waste disposed of at, and processed
through, the Building. The County has no historical records
on the volume of solid waste collected by the County and
successfully disposed of at the County landfill. . . . There
can be no assurances that the County will collect sufficient
solid waste for processing at the Facility so that the fees
paid to VBFC under the Operations Contract or that the sale
by VBFC of recycled materials will provide VBFC with
adequate revenues to make the payments due under the
Note. (pp. 13-14)

* * *

In summary, the payment of the principal of, premium, if
any, and interest on, the Bonds predominantly is dependent
upon the operation of the Facility by VBFC in accordance
with the Operations Contract. VBFC is an early stage com-
pany with insufficient financial resources to withstand any
significant, adverse, economic developments that directly
affect it or indirectly affect it by impacting its affiliates, spe-
cifically Funnell. (p. 17).

* * *

13
 VBFC has never operated a facility similar to the Facility
. . . (p. 21)

There can be no guarantee that the Building will be com-
pleted, and if completed that it will functionally operate as
a solid waste facility or that once operational that it will
generate sufficient revenues to meet operational costs and
repay principal and interest under the Note. . . (pp. 21-22)

We are persuaded that the above cautionary language in the Offer-
ing Statement renders immaterial as a matter of law the alleged mis-
representations and omission relied upon by appellants. There is not
under the circumstances here a substantial likelihood that a prospec-
tive investor would have viewed the "total mix" of information to
have been significantly altered had such investor known that anaero-
bic composting technology had not been proven over a long period of
time. Nor would it have made a significant difference to a prospective
investor that the State of Virginia had not by April 15, 1993 finally
decided whether to issue a permanent or an experimental operating
permit.

Relying on Huddleston v. Herman & MacLean, 640 F.2d 534, 543-
44 (5th Cir. 1981), rev'd in part on other grounds, 459 U.S. 375
(1983), appellants argue that only general cautionary language was
contained in the Offering Statement and that the inclusion of such lan-
guage does not excuse defendants' failure to reveal known adverse
facts. We disagree. These were not merely vague, boilerplate dis-
claimers. Rather, extensive and meaningful cautionary language was
included in the Offering Statement, and the language used describes
in specific detail the risks which a purchaser would assume by pur-
chasing the Bonds. In particular, purchasers of the Bonds were told
that there could be "no guarantee" that, if completed, the Building
"will functionally operate as a solid waste facility" or that once opera-
tional "it will generate sufficient revenues to meet operational costs
and repay principal and interest. . . ." They were further told that
VBFC had never previously operated a facility similar to the one
which was to generate revenue for payment of bond interest and prin-
cipal. Here, as in Trump, the cautionary statements were tailored pre-
cisely to address the uncertainty surrounding repayment of the Bonds
because of the possible inability of VBFC to generate sufficient reve-

14
nues to make the necessary principal and interest payments. See In re
Donald Trump, 7 F.3d at 372.

The venture failed because of the occurrence of the very same
events outlined as risks in the Offering Statement. As noted, VBFC
had no significant assets other than its contracts with the County. The
sole source of funds for the payment of interest and principal to bond-
holders was the income which VBFC was to receive from its con-
tracts with the County and from future contracts with other Virginia
counties. County payments commenced in April of 1994, but VBFC
was not thereafter able to secure contracts from other counties.
Because it was under-capitalized and had severe cash flow problems,
VBFC announced in September of 1994 that it was unable to fulfill
its obligations under its contracts with the County. Operations ceased
on October 5, 1994, and the County then stopped making payments.
On October 31, 1994, Signet, as Trustee, declared the Bonds to be in
default.9

For these reasons, we conclude that summary judgment was prop-
erly entered by the district court in favor of the appellees as to Counts
1 and 2. Although the total mix of the information made available
warned them of the high risks they were facing, the bond-holders
nonetheless chose to purchase these Bonds. They can hardly now
claim that their losses were, pursuant to Rule 10b-5 and § 12(2), the
result of securities fraud committed by the appellees.

III

Insofar as Count 1 of the amended complaint is concerned, the
entry of summary judgment in favor of defendants is supportable on
another ground. In a suit brought under Rule 10b-5, "the plaintiff
must show both `loss causation -- that the misrepresentations or
omissions caused the economic harm -- and transaction causation --
that the violations in question caused the [plaintiff] to engage in the
transaction in question.'" Bennett v. United States Trust Co., 770 F.2d
308, 313 (2d Cir. 1985), cert. denied, 474 U.S. 1058 (1986) (quoting
_________________________________________________________________

9 In October of 1994, the County, the Authority and Siegel, as escrow
agent, filed suit in the Circuit Court for Dinwiddie County, naming as
defendants VBFC, Funnell, Signet and others.

15
from Schlick v. Penn-Dixie Cement Corp., 507 F.2d 374, 380 (2d Cir.
1974), cert. denied, 421 U.S. 976 (1975)); Wilson v. Ruffa & Hano-
ver, P.C., 844 F.2d 81, 85 (2d Cir. 1988), vacated on other grounds,
Wilson v. Saintine Exploration & Drilling Corp., 872 F.2d 1124 (2d
Cir. 1989). A direct or proximate relationship between the loss and
the misrepresentation must be shown. Bennett, 770 F.2d at 314.

Here, it was the inexperience of VBFC personnel, the company's
weak financial structure and its inability to secure contracts from oth-
ers which ultimately caused the failure of the venture. The fact that
the technology was allegedly experimental and unproven had little to
do with the company's collapse. It was not faulty technology which
caused the failure of the venture but rather economic factors. Appel-
lants have not pointed to evidence in the record which would support
their allegation that the proximate cause of their loss was the failure
of the technology to work.

We conclude on this record that appellants have failed to produce
evidence below to show that the alleged misrepresentations or omis-
sion proximately caused their damages. Summary judgment as to
Count 1 of the amended complaint was therefore appropriately
entered by the district court in favor of appellees on the alternative
ground that appellants had failed to prove loss causation.10

IV

Count 3 of the amended complaint is brought under § 12(1) of the
1933 Act. Appellants argue that appellees violated this statute by not
registering the Equipment Bonds. It is alleged in Count 3 that "[i]n
the event that interest on the Equipment Bonds are [sic] deemed to be
subject to Federal income taxation, the Equipment Bonds were
required to be, but were not, registered pursuant to Section 5 of the
1933 Act."

The district court dismissed Count 3 on the ground that the issue
_________________________________________________________________

10 Loss causation was not an element of a claim asserted in 1995 under
§ 12(2). Caviness v. Derand Resources Corp., 983 F.2d 1295, 1305 (4th
Cir. 1993).

16
was not ripe for determination and that therefore no case and contro-
versy had been presented by that claim. We agree.

Rather than asserting in the amended complaint that the interest on
the Equipment Bonds was in fact taxable, appellants instead alleged
that if it be later "deemed" that such interest was subject to federal
income taxation, then the Equipment Bonds "were required to be"
registered. Not only are the allegations of Count 3 based on a hypo-
thetical occurrence, but also appellants have not produced any evi-
dence indicating that the interest in question was indeed subject to
federal taxation.

Article III of the Constitution limits the "judicial power of the
United States to the resolution of `cases' and`controversies.'" Valley
Forge Christian College v. Americans United for Separation of
Church and State, Inc., 454 U.S. 464, 471 (1982). An allegation of
a possible future injury does not satisfy the requirements of Article III
of the Constitution. Whitmore v. Arkansas, 495 U.S. 149, 158 (1990).
Dismissal for lack of ripeness is appropriate where nothing in the
record shows that appellants have suffered any injury thus far and the
future effect of the law relied upon remains wholly speculative.
Socialist Labor Party v. Gilligan, 406 U.S. 583, 589 (1972).

Here, it is apparent that no case and controversy is presented by
Count 3, which is based on a hypothetical claim not ripe for adjudica-
tion. We therefore conclude that the district court properly dismissed
Count 3 of the amended complaint.11

V

Relying on Rule 56(f), F.R.Civ.P., appellants argue that they were
denied an adequate opportunity to undertake discovery to support
_________________________________________________________________

11 Appellees further argue that the County, the Board, Cashwell and
their attorneys owed no affirmative duty of disclosure under Rule 10b-5
and that these defendants are not statutory sellers under § 12(2) of the
1933 Act. In view of our determination that for other reasons summary
judgment was properly entered by the district court in favor of all defen-
dants as to Counts 1 and 2 of the amended complaint, it is not necessary
to address these alternative arguments.

17
their opposition to appellees' dispositive motions. Rule 56(f) provides
as follows:

When Affidavits are Unavailable. Should it appear from
the affidavits of a party opposing the motion that the party
cannot for reasons stated present by affidavit facts essential
to justify the party's opposition, the court may refuse the
application for judgment or may order a continuance to per-
mit affidavits to be obtained or depositions to be taken or
discovery to be had or may make such other order as is just.

Although dispositive motions were filed at an early stage of the
case, much discovery had been undertaken by the appellants before
a hearing was held by the district court on the motions. At the time
of the filing of their amended complaint on May 22, 1995, appellants
had propounded interrogatories and requests for the production of
documents. Most of the appellees responded to this discovery, and a
large number of documents were produced.

After various appellees had filed dispositive motions, appellants,
on July 11, 1995, filed a motion asking the Court to hold a pretrial
conference concerning the timing of summary adjudication under
Rule 56. Inter alia, appellants asserted that they had not yet had a rea-
sonable opportunity for discovery. In a Memorandum Opinion
entered on July 27, 1995, the district court denied that motion, noting
that appellees had a right "to test swiftly the legal soundness of the
charges made against them." Appellants were specifically put on
notice that the court would consider the pending dispositive motions
"beyond the bare four corners of their Amended Complaint." The
court instructed appellants that, if they determined that a complete
response to appellees' motions would be impossible without further
discovery, they should submit appropriate affidavits to that effect pur-
suant to Rule 56(f).

Thereafter, on August 25, 1995, appellants filed an opposition to
appellees' pending dispositive motion together with affidavits. Some
sixty exhibits were submitted. One of the affidavits requested that
counsel be permitted to undertake further discovery pursuant to Rule
56(f). However, that affidavit did not identify by name any expert, nor
did it indicate the substance of any expert's opinion to be submitted

18
by way of affidavit. On November 9, 1995, a hearing was held on all
pending motions to dismiss or for summary judgment. Some six days
later, appellants filed a supplemental affidavit pursuant to Rule 56(f).
In that affidavit, counsel did identify certain experts and indicated
counsel's belief that these experts would render opinions favorable to
appellants if a continuance were granted and if further discovery were
permitted. No such further period of discovery was allowed by the
district judge. The Court's Memorandum Opinion granting defen-
dants' motions for summary judgment was entered on December 7,
1995. Appellants argue that the district court erred in denying their
request for a continuance pursuant to Rule 56(f).

Denial of a Rule 56(f) request is reviewed under an abuse of discre-
tion standard. Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir.
1995); Strag v. Board of Trustees, 55 F.3d 943, 953 (4th Cir. 1995).
We conclude that under the circumstances here, the district judge did
not abuse his discretion in denying appellants' request for a continu-
ance so that further discovery could be undertaken.

It was after the hearing had been held on defendants' motions for
summary judgment that appellants asked that the case be continued
so that their identified experts could visit the site of the Facility and
finalize their opinions. Appellants had been warned by the court's rul-
ing of July 27, 1995 that they should prepare appropriate responses
to appellees' dispositive motions, including appropriate affidavits.
Nevertheless, no affidavit of any expert was submitted, and no expert
was even identified when, a month later in August of 1995, appellants
filed their opposition to appellees' motions for summary judgment
together with supporting papers. The hearing on the motions was held
some two and one-half months later, and it was after that hearing that
appellants requested a continuance so that their experts could com-
plete their investigations. Appellants have not explained why neces-
sary investigations by their experts could not have been completed
many months earlier so that appropriate affidavits of their experts
could have been submitted before the hearing. The adverse party
opposing a motion for summary judgment must under Rule 56(c) file
a responding affidavit "prior to the day of hearing. . . ."

In view of these circumstances, we conclude that the district court
did not abuse its discretion in declining to permit appellants to under-

19
take further discovery pursuant to Rule 56(f) before ruling on appel-
lees' motions for summary judgment.

VI

For the foregoing reasons, we affirm the judgments entered below.12

AFFIRMED

MURNAGHAN, Circuit Judge, dissenting:

I respectfully dissent in part. I disagree with Part II of the majori-
ty's opinion, which affirms the district court's grant of summary judg-
ment to all of the Appellees on Counts 1 and 2, the Rule 10b-5 and
§ 12(2) claims, on the ground that the Appellees made no material
misrepresentations or omissions in the Offering Statement for the
Equipment Bonds. The majority's opinion relies on the "bespeaks
caution" doctrine and holds that cautionary language in the Offering
Statement renders immaterial the Appellees' representation that the
technology was proven. The majority opinion, however, erroneously
applies the bespeaks caution doctrine.

I.

Rule 10b-5, promulgated under the Securities Exchange Act of
1934, and § 12(2) of the Securities Act of 1933 both require the plain-
tiff to prove that the defendant made an untrue statement of material
fact or omitted a material fact necessary to make the statements true.
17 C.F.R. § 240.10b-5(b) (1996); 15 U.S.C.A. § 77l(2) (West 1981).
"Materiality" for purposes of the securities laws is a "fact-specific
inquiry" that "depends on the significance the reasonable investor
would place on the withheld or misrepresented information." Basic
Inc. v. Levinson, 485 U.S. 224, 240 (1988). The plaintiff must demon-
strate that a "substantial likelihood" exists that disclosure of the true
facts "would have been viewed by the reasonable investor as having
_________________________________________________________________

12 We are further satisfied that the district court acted within its discre-
tion in dismissing without prejudice the pendent state law claims asserted
in Counts 4 through 16 of the amended complaint. See 28 U.S.C.
§ 1367(c)(3).

20
significantly altered the `total mix' of information made available."
TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976).
Statements of fact and statements of opinion can both be material.
However, "[m]isstatements or omissions regarding actual past or
present facts are far more likely to be actionable than statements
regarding projections of future performance." Malone v. Microdyne
Corp., 26 F.3d 471, 479 (4th Cir. 1994).

In the instant case, the Feasibility Statement attached to the Offer-
ing Statement represented that the technology employed in the Facil-
ity was "proven" and was being used in "existing operational
facilities." The Appellants contend, however, and provide supporting
evidence to prove, that the technology was, in fact, experimental and
unproven.

In support of their motions for summary judgment, the Appellees
submitted an expert's affidavit which stated that, in the expert's opin-
ion, the technology was proven. Specifically, the affidavit stated that
"anaerobic composting was not, as of 1993, an `experimental' tech-
nology as that term is used and understood in the industry."

In opposition to the Appellees' motions, however, the Appellants
submitted a report, prepared by the County's expert, entitled "Organic
Waste Systems" (the "OWS Report"). The OWS Report contradicts
key representations of the Offering Statement regarding the Facility's
"anaerobic digester co-composting" equipment. In particular, the
OWS Report states that "[n]one of the existing technologies [as of
1993] were actually proven over a long period of time and no long-
term reliable investment or operating costs were available." In addi-
tion, the OWS Report states that the "technology of dry anaerobic
digestion was an emerging technology at the time of selection" and
that the development in the United States had been "limited to some
small pilot-scale experiences."

The majority correctly points out that the OWS Report also con-
tains passages that support the Appellees' argument that the technol-
ogy in question was proven. However, we have held that on summary
judgment the nonmoving party is entitled:

to have the credibility of his evidence as forecast assumed,
his version of all that is in dispute accepted, all internal con-

21
 flicts in it resolved favorably to him, the most favorable of
possible alternative inferences from it drawn in his behalf;
and finally, to be given the benefit of all favorable legal the-
ories invoked by the evidence so considered.

Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979).
In the instant case, the Appellants at least raised a genuine issue of
fact as to whether the statements that they relied upon misrepresented
the nature of the technology in the proposed investment.

The Appellants also adequately established that a reasonable inves-
tor likely would have considered this information "material." Experi-
mental technology generally has a greater risk of failure than proven
technology. More importantly, the success of the technology in the
instant case bore directly on the risk of the investment. The sole
source of revenues for repayment of the Equipment Bonds was the
payments that VBFC would receive from the County under the Oper-
ations Contract. VBFC had no other significant sources of revenue or
assets. However, the County would only pay VBFC under the Opera-
tions Contract if the VBFC successfully processed the trash in the
Facility. Thus, if the technology failed, so would the revenues for
repayment of the Equipment Bonds. A substantial likelihood exists
that a prospective investor would have viewed the "total mix" of
information to have been significantly altered if the investor knew
that the technology was experimental and had not been proven. TSC
Industries, Inc., 426 U.S. at 449.

Contrary to the majority's reasoning in Part II of its opinion, the
"cautionary statements" in the Offering Statement do not render the
Appellees' misrepresentations immaterial. The bespeaks caution doc-
trine provides that certain misrepresentations in offering documents
do not establish securities fraud liability when they are accompanied
by meaningful warnings that clearly "bespeak caution." In re Donald
J. Trump Casino Sec. Litig., 7 F.3d 357, 364 (3d Cir. 1993), cert.
denied sub nom. Gollomp v. Trump, 510 U.S. 1178 (1994). As the
Third Circuit stated, "`bespeaks caution' is essentially shorthand for
the well-established principle that a statement or omission must be
considered in context, so that accompanying statements may render
it immaterial as a matter of law." Id. Courts apply the narrow, fact-
intensive bespeaks caution defense on a case-by-case basis. See, e.g.,

22
Harden v. Raffensperger, Hughes & Co., 65 F.3d 1392, 1404 (7th Cir.
1995); Rubinstein v. Collins, 20 F.3d 160, 167-68 (5th Cir. 1994);
Trump, 7 F.3d at 371.

However, the bespeaks caution doctrine only applies to alleged
misrepresentations regarding "soft," forward-looking statements, such
as forecasts, opinions, and projections. For example, in Trump, 7 F.3d
at 369-71, the Third Circuit held that an allegedly false statement that
the issuer "believed" that it would generate sufficient funds in the
future to repay the principal and interest on the bonds at issue was not
actionable in view of disclosures "bespeaking" caution about the pre-
diction. The Trump court held that forward-looking statements will
not form the basis for a securities fraud claim if those statements are
accompanied by meaningful cautionary statements. Id. at 371. The
Fifth Circuit similarly has held that the bespeaks caution doctrine
addresses "situations in which optimistic projections are coupled with
cautionary language." See Rubinstein, 20 F.3d at 167 (emphasis
added). See also Sinay v. Lamson & Sessions Co., 948 F.2d 1037,
1040 (6th Cir. 1991) ("Economic projections are not actionable if they
bespeak caution."); In re Worlds of Wonder Sec. Litig., 35 F.3d 1407,
1413 (9th Cir. 1994) (holding that the bespeaks caution doctrine
applies when the defendants' forward-looking representations contain
sufficient cautionary language), cert. denied sub nom. Miller v.
Pezzani, 116 S.Ct. 185 (1995).

The bespeaks caution doctrine does not apply to misrepresentations
regarding known, historical facts. The Fifth Circuit, for example,
stated that "the inclusion of general cautionary language regarding a
prediction would not excuse the alleged failure to reveal known mate-
rial, adverse facts." Rubinstein, 20 F.3d at 171. The Seventh Circuit
also has held that the bespeaks caution doctrine does not, as a matter
of law, render misrepresentations of "hard" fact immaterial. See
Harden, 65 F.3d at 1405-06. The First Circuit similarly has explained
that the bespeaks caution doctrine cannot render a false statement of
present fact immaterial as a matter of law. See Shaw v. Digital Equip-
ment Corp., 82 F.3d 1194, 1213 (1st Cir. 1996).

A district court similarly held that the bespeaks caution doctrine
does not justify dismissal of a complaint where a plaintiff contends
that the defendants concealed or misrepresented current events and

23
business conditions. See J/H Real Estate, Inc. v. Abramson, 901
F.Supp. 952, 956 (E.D. Pa. 1995). That court held that the "doctrine
applies only where forecasts or projections are accompanied by suffi-
cient cautionary language. In other words, the misleading statements
must be `forward-looking' before the `bespeaks caution' doctrine can
be invoked." Id. (internal citations omitted).

The bespeaks caution doctrine should not apply to the alleged mis-
representations in the instant case. The Appellants premise liability on
the Appellees' misrepresentation of current and existing facts regard-
ing the experimental nature of the technology. The Feasibility Study
represented that the technology employed in the Facility was "proven"
and used in "existing operational facilities," and the Appellants have
raised at least a genuine issue of fact that the technology was not
proven and had only been used in small, pilot-scale facilities. Unlike
the cases that the district court and the majority opinion cite, the
instant case does not involve predictions about future events. Rather,
it involves misrepresentations about known, historical facts. "Proven"
describes an established fact, not a forward-looking projection. Thus,
since the Appellants sufficiently proved, for purposes of summary
judgment, that the Appellees misrepresented and hid present facts that
would have allowed the Appellants to make an informed judgment as
to the extent of the risk, the surrounding cautionary language could
not have rendered the statements immaterial as a matter of law. The
inclusion of such cautionary language regarding predictions of the
Facility's future success does not excuse the Appellees' alleged mis-
representation of current and existing facts regarding the nature of the
technology.

Therefore, I think that the district court erred in granting summary
judgment to all of the Appellees on Counts 1 and 2, the Rule 10b-5
and § 12(2) claims, on the ground that the Appellees did not make a
material misrepresentation or omission.

II.

I do, however, agree with Part III of the majority's opinion, which
affirms the district court's grant of summary judgment to all of the
Appellees on the Rule 10b-5 claim on the additional ground that the
Appellants failed to demonstrate loss causation. Thus, I would also

24
affirm the district court's grant of summary judgment to all of the
Appellees on Count 1, the Rule 10b-5 claim, but I would do so only
on the ground that the Appellants failed to establish loss causation.

III.

As the majority opinion notes, however, loss causation was not an
element of a claim under § 12(2) at the time that the Appellants com-
menced the instant suit. Since then, Congress has amended § 12(2) to
require proof of loss causation. See 15 U.S.C.A. § 77l(b) (West Supp.
1996). However, the amendment does not apply to suits, such as the
instant one, commenced before December 22, 1995. Therefore, the
Appellants' failure to demonstrate loss causation is not fatal to their
§ 12(2) claim.

The district court properly granted summary judgment to the
County and the Board on the § 12(2) claim on the ground that they
are not statutory sellers of securities under § 12(2). Section 12(2)
imposes liability on "[a]ny person" who"offers or sells a security" by
means of a prospectus that includes a material misrepresentation or
omission. 15 U.S.C.A. § 77l(2) (West 1981). Thus, § 12(2) limits lia-
bility to those who "offer or sell" securities.

In Pinter v. Dahl, 486 U.S. 622, 641-47 (1988), the Supreme Court
addressed the scope of "offer or sell."* The Supreme Court held that
an individual who passes title in a security to a buyer for value and
an individual who engages in solicitation both qualify as one who "of-
fers or sells." Id. The district court in the instant case correctly found
that the County and the Board did not "offer or sell" the Equipment
Bonds because they neither solicited nor passed title to the Appel-
lants. The Appellants failed to establish any contact between them-
selves and the County or the Board prior to the sale. Thus, I would
_________________________________________________________________

* The Supreme Court actually decided Pinter under § 12(1) of the
Securities Act of 1933, which also limits liability to those who "offer or
sell" securities. See 15 U.S.C.A. § 77l(1) (West 1981). Pinter's reason-
ing, however, applies with equal force to cases under § 12(2). See Cortec
Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 49 (2d Cir. 1991); In re
RAC Mortgage Inv. Corp. Sec. Litig., 765 F.Supp. 860, 865 (D. Md.
1991).

25
affirm the district court's grant of summary judgment to the County
and the Board on the § 12(2) claim.

However, as stated above, I think that the district court erred in
granting summary judgment to the remaining Appellees on the
§ 12(2) claim on the ground that the Appellees did not make a mate-
rial misrepresentation. Since the bespeaks caution doctrine does not
properly apply to the instant case, I would reverse the district court's
grant of summary judgment to the remaining Appellees on Count 2,
the § 12(2) claim. Since I would reverse the district court's dismissal
of the federal § 12(2) claim, I would also reverse the district court's
dismissal of the pendent state law claims asserted in Counts 4 through
16 of the amended complaint.

26