Cornwell Entertainment, Inc. v. Anchin, Block & Anchin, LLP

United States Court of Appeals
For the First Circuit

No. 15-1858

CORNWELL ENTERTAINMENT, INC., f/k/a Cornwell Enterprises, Inc.,
f/k/a CEI Enterprises, Inc.; PATRICIA D. CORNWELL;
STACI GRUBER, PH.D.,

Plaintiffs, Appellants,

v.

ANCHIN, BLOCK & ANCHIN, LLP; EVAN SNAPPER,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Lynch, Thompson, and Barron,
Circuit Judges.

Joan A. Lukey, with whom Stuart M. Glass, Justin J. Wolosz,
Kevin C. Quigley, and Choate Hall & Stewart LLP were on brief, for
appellants.
Carter G. Phillips, with whom Eric D. McArthur, Jennifer J.
Clark, Christopher A. Eiswerth, Jack W. Pirozzolo, Sidley Austin
LLP, Thomas R. Manisero, and Wilson, Elser, Moskowitz, Edelman &
Dicker, LLP were on brief, for appellees.

July 18, 2016
 BARRON, Circuit Judge. This appeal arises from a

district court's decision to reverse a jury's $51 million award to

a well-known crime novelist, her spouse, and her corporation

against their former business managers. We affirm in part, reverse

in part, and remand.

I.

The following facts are not in dispute. Patricia

Cornwell is a well-known crime novelist who resides in

Massachusetts. In January 2005, Cornwell hired Anchin, Block &

Anchin, LLP ("Anchin"), an accounting firm based in New York, to

provide "concierge business management" services for her and her

corporation, Cornwell Entertainment, Inc. ("CEI"). Eventually,

Anchin was hired to provide those same services to Cornwell's

spouse, Staci Gruber.

Over the next four-and-a-half years, Anchin and one of

Anchin's principals, Evan Snapper, handled a wide array of tasks

for Cornwell, Gruber, and CEI. But on August 31, 2009, Cornwell,

Gruber, and CEI terminated their relationship with Anchin. Several

weeks later, on October 13, 2009, they initiated this suit against

the defendants, Anchin and Snapper, in federal district court in

Massachusetts based on diversity jurisdiction. After several

amendments to the complaint and various pre-trial motions, the

parties proceeded to trial on three New York state-law claims:

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negligent performance of professional services, breach of

contract, and breach of fiduciary duty.

At trial, the plaintiffs presented several theories of

liability in support of each of the three claims. The plaintiffs

alleged that the defendants had mismanaged the plaintiffs'

finances and investments by keeping shoddy records, carelessly

preparing tax returns, misplacing funds, and choosing investments

that did not fit the plaintiffs' stated risk tolerance. The

plaintiffs also alleged that the defendants mismanaged a contract

the plaintiffs had with the company NetJets for fractional

ownership of a private airplane.

In addition, the plaintiffs alleged that the defendants

had mismanaged several real estate transactions that the

plaintiffs had engaged in, including the plaintiffs' purchase of

a condo in the Renaissance building in Florida in the winter and

spring of 2006, rental of an apartment on Fifth Avenue in New York

City in the spring and summer of 2006, and purchase and renovation

of a home on Garfield Road in Concord, Massachusetts from 2005

through 2007. The plaintiffs further alleged that the damages

resulting from the defendants' mismanagement of those real estate

transactions included losses Cornwell incurred when, due to the

lack of an appropriate space in which to write, she missed her

deadline to submit her novel, "Book of the Dead." Finally, the

plaintiffs alleged that within weeks of the commencement of this

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lawsuit, the defendants falsely reported to the United States

Department of Justice ("DOJ") that Cornwell had directed Snapper

to commit a campaign contribution felony by asking Cornwell's

friends and family to contribute money to the John Gilmore for

Senator and Hillary Clinton for President campaigns and by then

reimbursing those who made the campaign contributions with

Cornwell's funds.

At the close of the evidence, the defendants moved for

judgment as a matter of law pursuant to Federal Rule of Civil

Procedure 50(a).1 The motion was a broad-based challenge to the

viability of various theories of liability for each of the

plaintiffs' three New York state-law claims. As Rule 50 permits,

the District Court reserved decision on the motion and sent the

case to the jury, thereby requiring the defendants to renew their

Rule 50(a) motion with a Rule 50(b) motion post-judgment if the

defendants wished that motion to be considered. See Fed. R. Civ.

P. 50(b).

Before releasing the jurors for their deliberations, the

District Court instructed the jury on the law. As relevant to

this appeal, the District Court instructed the jury that any

1 The defendants moved three days before the close of the
evidence to file a brief in support of their Rule 50(a) motion in
excess of the 20-page limit. But it was not until the close of
the evidence that the District Court granted that motion and
considered the defendants' Rule 50(a) motion.

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conduct that occurred prior to three years before the plaintiffs

brought the suit -- that is, before October 13, 2006 -- and which

did not continue thereafter could not support the plaintiffs'

claims of professional negligence or breach of contract. That was

because, the court explained, the statute of limitations under New

York law for those claims was three years. The District Court

gave no such instruction regarding the breach of fiduciary duty

claim. Instead, the court instructed the jury that "[t]he statute

of limitations . . . does not affect the claim for breach of

fiduciary duty." And thus, given that instruction, the jury was

permitted to rely on conduct that occurred outside the three-year

window in finding a breach of fiduciary duty.

Also relevant to this appeal, the District Court

instructed the jury that, in addition to any compensatory damages

that the jury might award, the jury could award punitive damages

for any conduct that it found was in breach of a fiduciary duty.

The District Court further instructed the jury that, in order to

award punitive damages, the jury would have to find that "the

breach was intentional or deliberate, [or] occurred under

aggravating or outrageous circumstances, including a fraudulent or

evil motive or a conscious act that willfully and wantonly

disregarded the plaintiffs' rights."

The jury returned a verdict in favor of the plaintiffs

on all three claims: professional negligence, breach of contract,

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and breach of fiduciary duty.2 The jury awarded the plaintiffs

just shy of $28.6 million in compensatory damages -- $22,405,400

for breach of fiduciary duty, $3,479,045 for professional

negligence, and $2,677,955 for breach of contract. The jury also

awarded the plaintiffs $22,405,400 in punitive damages for breach

of fiduciary duty.

The verdict form was general. It did not require the

jury to explain which theory or theories of liability it had relied

on in finding for the plaintiffs on the three claims. Nor did the

form require the jury to identify which theory or theories of

liability it had relied on in awarding compensatory or punitive

damages.

After trial, the plaintiffs petitioned the District

Court for attorneys' fees and costs under Massachusetts General

Laws Chapter 93A. The plaintiffs had included a Chapter 93A claim

in their operative complaint and the District Court had reserved

decision on that claim until after trial. The plaintiffs also

requested an award of equitable forfeiture in the amount of the

full value of all fees they had paid to the defendants over the

course of their business relationship. The District Court denied

both requests. See Cornwell Entm't, Inc. v. Anchin, Block & Anchin

2The jury also returned a verdict against the defendants on
the single counterclaim they had been asked to decide: unpaid fees.
That counterclaim is not at issue in this appeal.

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LLP ("Cornwell I"), No. 09-11708-GAO, 2013 WL 2367849 (D. Mass.

May 28, 2013).

The District Court held that Chapter 93A was not

applicable because New York law, not Massachusetts law, governed

the plaintiffs' claims. Id. at *2-3. The District Court

separately declined to order equitable forfeiture on the ground

that the jury's large damages award likely included disgorgement

of fees and that any further award would be inequitable. Id. at

*3-4. The District Court subsequently entered judgment in

accordance with the jury verdict and its decision on the

plaintiffs' post-trial petition for an additional monetary award.

After judgment was entered, the defendants timely

renewed their Rule 50(a) motion for judgment as a matter of law,

pursuant to Rule 50(b). The District Court granted the Rule 50(b)

motion in part and denied it in part. See Cornwell Entm't, Inc.

v. Anchin, Block & Anchin LLP ("Cornwell II"), No. 09-11708-GAO,

2014 WL 1249047 (D. Mass. Mar. 25, 2014).

The District Court first agreed with the defendants'

contention in the Rule 50(b) motion that several of the plaintiffs'

theories of liability -- including, as relevant to this appeal,

those based on the allegedly botched purchase of the Renaissance

condo in Florida and the alleged mismanagement of the rental of

the Fifth Avenue apartment -- could not support the jury's verdict

on any of the three claims. Id. at *3-5. That was because, the

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District Court held, those theories of liability accrued more than

three years before the plaintiffs brought suit, and the statute of

limitations for all three claims under New York law was three

years. Id. at *2-5. In so holding, the District Court concluded

that it had erred in instructing the jury that, under New York

law, the breach of fiduciary duty claim was not subject to a three-

year statute of limitations. Id. at *2.

The District Court then turned to the issue whether the

plaintiffs' allegations regarding the defendants' statements to

the DOJ regarding Cornwell's campaign contributions, which were

allegedly made within the three-year statute of limitations, could

support the jury's verdict on the claim of breach of fiduciary

duty. The District Court accepted the defendants' argument, made

in the Rule 50(b) motion, that those allegations could not support

the verdict on that claim because the defendants were protected by

a qualified privilege for any statements they made to the DOJ.

Id. at *4. And the District Court accepted that argument

notwithstanding the plaintiffs' contention that the argument about

qualified privilege was not raised in the defendants' Rule 50(a)

motion and for that reason was waived and could not be considered

at the Rule 50(b) stage. Id. at *1.

Finally, the District Court also considered the

defendants' argument that there was insufficient evidence to

support a non-speculative finding of damages on the NetJets theory

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of liability. Id. at *5. As to that argument, too, the District

Court agreed with the defendants' contention in their Rule 50(b)

motion, and so it held that the NetJets theory of liability could

not support the jury's verdict on any of the three claims. Id.

In partially granting the Rule 50(b) motion, the

District Court did not hold that all of the plaintiffs' theories

of liability failed as a matter of law. The District Court

nevertheless concluded that, because it could not determine from

the general verdict form whether the jury had relied on the

theories that were legally defective or on those that were not

defective, a new trial was required. Id. at *6. And so the

District Court vacated the jury verdict and ordered a new trial on

the theories that remained, id., which the District Court later

stated were "the administration of Garfield, investments, taxes,

and Anchin's invoicing practices or non-practices, and the general

handling and management of funds."

The plaintiffs decided not to retry the case. They

instead requested judgment in favor of the defendants on all the

remaining theories of liability so that they could "proceed with

their appeal." The District Court granted that motion and entered

judgment accordingly, and the plaintiffs now appeal. The

plaintiffs challenge various aspects of the District Court's Rule

50(b) decision, the District Court's decision denying the

plaintiffs' post-trial petition for equitable forfeiture and for

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attorneys' fees and costs pursuant to Chapter 93A, and other

rulings by the District Court. We address each challenged ruling

in turn.

II.

We begin with the District Court's ruling, in partially

granting the defendants' Rule 50(b) motion, that the defendants

are subject to a qualified privilege for any reports they made to

the DOJ regarding the campaign contribution activities. We then

consider the District Court's ruling, also made in partially

granting the defendants' Rule 50(b) motion, that the statute of

limitations for a breach of fiduciary duty claim under New York

law is only three years, and that, as a result, certain of the

plaintiffs' theories of liability are time-barred. Last, we

address the District Court's decision -- made, once again, in the

course of partially granting the Rule 50(b) motion -- that the

plaintiffs' NetJets theory of liability fails as a matter of law

because there was insufficient evidence at trial that would support

a non-speculative finding of damages on that theory.

Obviously, if the District Court's rulings on the

defendants' Rule 50(b) motion are correct, then they must be

affirmed and the jury verdict cannot be reinstated. But it is

arguably less clear what should happen if any of the plaintiffs'

challenges to the District Court's rulings on the defendants' Rule

50(b) motion do have merit. In particular, the parties disagree

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as to whether, in that event, the verdict must be reinstated,

either in whole or in part. We first proceed to evaluate the

merits of the District Court's decision, and we conclude that the

District Court did err in one respect. Accordingly, we also take

up the question of what should happen to the verdict in consequence

of this error.

A.

The plaintiffs contend that the District Court erred in

accepting the defendants' argument that any statements they made

to the DOJ regarding Cornwell's campaign contributions were

subject to a qualified privilege and thus could not support the

claim of fiduciary breach. The plaintiffs contend that the

District Court erred in this regard because the defendants waived

the qualified privilege argument by failing to raise it in their

Rule 50(a) motion. We agree with the plaintiffs, and thus we

reverse this aspect of the District Court's Rule 50(b) ruling.

A Rule 50(b) motion is styled a "renewed motion for

judgment as a matter of law" and, "[a]s the name implies . . . is

bounded by the movant's earlier Rule 50(a) motion." Parker v.

Gerrish, 547 F.3d 1, 12 (1st Cir. 2008) (alteration in original)

(quoting Correa v. Hosp. S.F., 69 F.3d 1184, 1196 (1st Cir. 1995)).

As a result, "[t]he movant cannot use such a motion as a vehicle

to introduce a legal theory not distinctly articulated in its [Rule

50(a) motion]." Id. (quoting Correa, 69 F.3d at 1196).

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 The reason for this strict rule is simple. It "is

designed to prevent unfair surprise and to provide the responding

party with an opportunity to correct any deficiencies in her proof"

before the case is sent to the jury. Lynch v. City of Bos., 180

F.3d 1, 13 n.9 (1st Cir. 1999) (citing the Fed. R. Civ. P. 50(a)

Advisory Committee Notes to the 1991 Amendment).

The District Court did not hold otherwise in addressing

the qualified privilege argument that the defendants set forth in

their Rule 50(b) motion. Rather, the District Court held that the

qualified privilege argument was "adequately subsumed in the

argument, made in the Rule 50(a) motion, that the reporting did

not, as a matter of law, constitute a breach of fiduciary duty."

Cornwell II, 2014 WL 1249047, at *1. And so the key question is

whether the District Court's conclusion that the qualified

privilege argument was made in the Rule 50(a) motion is

supportable.

It is not clear from our precedent what standard of

review we should apply in evaluating a trial court's determination

that an argument made in a Rule 50(b) motion was preserved in a

Rule 50(a) motion. See, e.g., Jones ex rel. U.S. v. Mass. Gen.

Hosp., 780 F.3d 479, 487-88 (1st Cir. 2015) (holding that the trial

court properly found that the plaintiff's Rule 50(b) arguments

were not preserved in the plaintiff's Rule 50(a) motion, but not

indicating what standard of review applied to that determination);

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Parker, 547 F.3d at 12-13 (same). But whatever the standard of

review -- de novo, abuse of discretion, or even clear error3 --

the record makes clear in this case that the District Court erred

in ruling that the defendants had preserved their qualified

privilege argument in their Rule 50(a) motion.

The defendants devoted just one paragraph of their Rule

50(a) motion to challenging the plaintiffs' theory that the

defendants breached a fiduciary duty to the plaintiffs by reporting

Cornwell's campaign contributions to the DOJ. The paragraph reads:

Plaintiffs contend that Defendants breached
their fiduciary duties to Ms. Cornwell and CEI
when they reported to the [DOJ] the conduct
surrounding the campaign contribution
reimbursement activity. As the evidence
plainly reveals, this activity occurred not
only after the Defendants had been terminated
as Plaintiffs' business managers, but also
after Plaintiffs had sued the Defendants.
Clearly, at that point, any fiduciary
obligations Defendants owed to Plaintiffs had
been terminated. See Vigoda v. DCA
Productions Plus, Inc., 293 A.D.2d 265, 267,
741 N.Y.S.2d 20 (2002). Any information that
was turned over to a third party pertaining to
Plaintiffs was pursuant to a government
subpoena. Thus, by definition, the act of
reporting the activity to the government could
not have constituted a breach of fiduciary
duty.

The District Court did not specify where in this

passage the argument in question is made, and the passage at no

3 No party contends that such a decision is entirely
discretionary such that we cannot review it.

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point makes any direct reference to a qualified privilege. In

their briefs to us, the defendants contend that the argument is

set forth in the line that reads: "by definition, the act of

reporting the activity to the government could not have constituted

a breach of fiduciary duty." But the defendants omit the fact

that this line is introduced by the word "thus." That introductory

word makes clear that this line is merely setting forth a

conclusion to the argument that is set forth in the sentences that

immediately precede it. And we do not see how any of those

sentences could fairly be read to have made an argument for

qualified privilege, nor did the defendants argue in their opening

brief to us that any of those prior sentences did make such an

argument. See Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d

288, 299 (1st Cir. 2000) (arguments not made in a party's opening

brief are waived).

At oral argument, the defendants offered an alternative

argument. They contended that the sentence that reads, "[a]ny

information that was turned over to a third party pertaining to

Plaintiffs was pursuant to a government subpoena," preserved the

qualified privilege argument by its reference to a "subpoena."

But the defendants also conceded at oral argument that this

sentence would have preserved only an argument that a qualified

privilege attached to statements that were made in response to a

subpoena. It is only statements made not in response to a

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subpoena, however, to which the District Court's qualified

privilege holding applied. See Cornwell II, 2014 WL 1249047, at

*4.4

To overcome their failure to preserve their qualified

privilege argument in their Rule 50(a) motion, the defendants argue

that the plaintiffs cannot "show any prejudice" from the District

Court having considered that argument, even accepting that it was

made for the first time after trial. But the defendants cite no

support for the seemingly novel proposition that a party must show

prejudice in this context. Cf. Hudson v. NeXus Worldwide Holdings,

Ltd., 191 F.R.D. 318, 322 (D.C. Cir. 2000) ("It is true that many

courts have noted that the princip[al] purpose of requiring [a]

defendant to move for judgment prior to the verdict is to provide

the plaintiff with a fair opportunity to cure any insufficiencies.

Notwithstanding this purpose, no circuit has held that the failure

to move at the close of the evidence is excused merely by showing

that the non-movant would not be prejudiced." (citation omitted));

see also United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)

(arguments not sufficiently developed on appeal are waived).5

The plaintiffs do not appeal the District Court's separate
4

holding that the statements the defendants made in response to a
subpoena were subject to an absolute -- not qualified -- privilege.
See Cornwell II, 2014 WL 1249047, at *5.
The only support we have found, on our own review, for the
5

proposition that a party must show prejudice from a trial court's
consideration of an argument made for the first time in a Rule
50(b) motion is a dissenting opinion from the Eleventh Circuit.

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 Moreover, we have no reason to assume that there was no

prejudice, given that the plaintiffs -- at least arguably -- might

have moved to reopen the evidence in order to introduce additional

evidence on the DOJ theory of liability had they been aware of the

defendants' argument that the defendants were subject to a

qualified privilege for any statements they made to the DOJ

regarding the campaign contributions. See Sweeney v. Westvaco

Co., 926 F.2d 29, 41 (1st Cir. 1991) (refusing to look past waiver

in the Rule 50 context where "[t]here [was] no good reason for

[the defendant's] neglect," and where "[t]he unfairness [was]

obvious and aggravated [in that case] by the fact that, at least

arguably, [the plaintiff] might have tried to reshape her case"

had the argument been made earlier). In fact, qualified privilege

is an affirmative defense, see Jules Rabin Assocs., Inc. v. Landon,

345 N.E.2d 588, 588 (N.Y. 1976), and thus should have been asserted

in the defendants' answer, see Fed. R. Civ. P. 8(c); Knapp Shoes,

Inc. v. Sylvania Shoe Mfg. Corp., 15 F.3d 1222, 1226 (1st Cir.

1994) ("Fed. R. Civ. P. 8(c) requires a party to affirmatively

plead certain specified defenses, as well as 'any other matter

constituting an avoidance or affirmative defense.' Affirmative

defenses not so pleaded are waived." (quoting FDIC v. Ramírez-

Rivera, 869 F.2d 624, 626 (1st Cir. 1989))). Yet, in this case,

See McGinnis v. Am. Home Mortg. Servicing, Inc., 817 F.3d 1241,
1267 (11th Cir. 2016) (Carnes, J., dissenting).

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the argument was not raised until after the trial had ended, which

makes us especially reluctant to excuse its late articulation for

lack of prejudice.

The defendants also argue that we should affirm the

District Court's ruling concerning the DOJ statements on a

different ground: that the statements the defendants made to the

DOJ regarding Cornwell's campaign contributions were true and thus

could not support a breach of fiduciary duty claim under New York

law. But even assuming true statements could not support the claim

under New York law, the defendants also failed to make this

argument in their Rule 50(a) motion. And, again, this failure is

not one that in this case we may overlook, even had defendants

made any argument as to why we should. If the plaintiffs had been

aware of this argument prior to the case going to the jury, the

plaintiffs, at least arguably, might have moved to reopen the

evidence in order to introduce additional evidence to prove that

the defendants' statements to the DOJ were false. See Sweeney,

926 F.2d at 41 (refusing to look past waiver in similar

circumstances).6

6The plaintiffs do not argue that a "miscarriage of justice"
would result were we not to look past their failure to preserve in
their Rule 50(a) motion the qualified privilege argument or the
argument regarding the truth of the statements they made to the
DOJ. See Parker, 547 F.3d at 13 (noting that courts have
discretion to look past waiver in the Rule 50 context where doing
so would "prevent a 'miscarriage of justice'" (quoting Correa, 69

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 Thus, we reject the District Court's decision entering

judgment as a matter of law for the defendants on the DOJ issue.

In doing so, we make no judgment as to the merits of the defendants'

argument that they did not breach a fiduciary duty in making

statements to the DOJ. We simply hold that those arguments were

not preserved in the defendants' Rule 50(a) motion and so could

not provide a basis, post-verdict, for the District Court's holding

rejecting the DOJ theory of liability as a matter of law. Whether

the reversal of the District Court on this issue means the verdict

should be reinstated is a separate question that depends, at least

in part, on how we decide the plaintiffs' remaining challenges to

the District Court's Rule 50(b) decision. And so we now address

those challenges.

B.

The plaintiffs contend that the District Court also

erred in partially granting the defendants' Rule 50(b) motion

because the District Court wrongly concluded in doing so that some

of the plaintiffs' theories of liability were barred by the statute

of limitations applicable to the three claims that were tried. In

reaching this conclusion, the District Court determined that it

had been wrong to instruct the jury that the claim of fiduciary

breach was not, like the claims for breach of contract and

F.3d at 1196)). Nor do we think, for the reasons we have already
given, that such a miscarriage of justice would result.

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professional negligence, subject to a three-year statute of

limitations. But we conclude that the District Court committed no

error in reversing course in this respect. And, moreover, we are

not persuaded by the plaintiffs' contention that, due to other

doctrines of New York law, the three-year statute of limitations

poses no obstacle to the theories of liability that the District

Court held were time-barred.

1.

The plaintiffs first contend that the District Court

erred in holding that New York's statute of limitations for a

breach of fiduciary duty claim is three years. Our review of this

purely legal issue is de novo, see Quality Cleaning Prods. R.C.,

Inc. v. SCA Tissue N.Am., LLC, 794 F.3d 200, 203 (1st Cir. 2015),

and we agree with the District Court.

In ultimately concluding that the statute of limitations

for breach of fiduciary duty under New York law is three years,

the District Court relied on IDT Corp. v. Morgan Stanley Dean

Witter & Co., 907 N.E.2d 268 (N.Y. 2009). See Cornwell II, 2014

WL 1249047, at *3. There, New York's highest court explained that

there is no "single statute of limitations" under New York law for

breach of fiduciary duty claims, and that "the choice of the

applicable limitations period depends on the substantive remedy

the plaintiff seeks." IDT Corp., 907 N.E.2d at 272. "Where the

remedy sought is purely monetary in nature," the New York Court of

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Appeals went on to hold, the statute of limitations is three years,

whereas where "the relief sought is equitable in nature, the six-

year limitations period . . . applies."7 Id. The District Court

thus concluded that, under IDT Corp., the applicable statute of

limitations for the breach of fiduciary duty claim at issue here

is three years, as the relief sought at trial for the alleged

breach of fiduciary duty was monetary in nature. Cornwell II,

2014 WL 1249047, at *3.

The plaintiffs contend that despite IDT Corp.'s clear

holding, "a fiduciary duty claim seeking damages is subject to a

six-year limitations period if the claim has its genesis in the

parties' contractual relationship." But we are not persuaded by

the non-binding case law that the plaintiffs point to in support

of this proposition, as those cases either themselves pre-date IDT

Corp. or rely on other cases that pre-date IDT Corp. Nor do the

plaintiffs dispute that the relief they sought at trial was

monetary in nature. We thus conclude that IDT Corp. requires us

to hold, as the District Court did, that the statute of limitations

for the breach of fiduciary duty claim is three years.

7 The New York Court of Appeals did provide an exception where
"an allegation of fraud is essential to a breach of fiduciary duty
claim," in which case a six-year statute of limitations applies.
IDT Corp., 907 N.E.2d at 272. But the plaintiffs do not argue
that the fraud exception is applicable here.

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 2.

The plaintiffs next contend that, even assuming the

statute of limitations under New York law for breach of fiduciary

duty is, like the statute of limitations for breach of contract

and professional negligence claims, only three years, that shorter

statute of limitations is not as consequential as the District

Court concluded that it was. To make this argument, the plaintiffs

rely on New York's "continuous representation doctrine." They

contend that this doctrine renders timely those theories of

liability (whether for breach of contract, professional

negligence, or fiduciary breach) that are based on the alleged

mismanagement of the real estate transactions involving the

Renaissance condo and the Fifth Avenue apartment, even though these

transactions occurred outside the three-year statute of

limitations that applies to those claims.

In partially granting the Rule 50(b) motion, the

District Court rejected that argument on the ground that the

continuous representation doctrine does not function in the way

that the plaintiffs contend that it does. Cornwell II, 2014 WL

1249047, at *3. Reviewing the District Court's interpretation of

this aspect of New York law de novo, see Quality Cleaning Prods.

R.C., Inc., 794 F.3d at 203, we agree with the District Court.

Contrary to the plaintiffs' contention, New York's

continuous representation doctrine does not automatically toll the

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statute of limitations for the entire period of those professional

relationships to which it applies. Rather, that doctrine tolls

the statute of limitations "only so long as the defendant continues

to advise the client in connection with the particular transaction

which is the subject of the action and not merely during the

continuation of a general professional relationship." Booth v.

Kriegel, 36 A.D.3d 312, 314 (N.Y. App. Div. 2006); see also In re

Lawrence, 23 N.E.3d 965, 980 (N.Y. 2014) (holding that the

continuous representation doctrine tolls the limitations period

only during an "ongoing provision of professional services with

respect to the contested matter or transaction" and does not apply

"to a continuing general relationship between a client and

professional").8

8The plaintiffs argue that "[a] long line of cases, which
the trial court chose to ignore in its Rule 50(b) Order, recognizes
that the limitations period for a breach of fiduciary duty claim
will typically be tolled until either the fiduciary openly
repudiates the relationship or the relationship otherwise ends,
without any requirement that the claim concerns a 'particular
transaction.'" The plaintiffs' argument concerns the fiduciary
tolling rule, not the continuous representation doctrine. The
District Court did not address the plaintiffs' fiduciary tolling
argument below, which the plaintiffs made by citing to cases that
applied the continuous representation doctrine, not the fiduciary
tolling rule. Given the plaintiffs' limited development of a
state-law issue that "raises complexities that defy an easy
answer," "the district court was 'free to disregard'" that
argument, and the argument "cannot now be 'resurrected on appeal.'"
Coons v. Indus. Knife Co., 620 F.3d 38, 44 (1st Cir. 2010) (quoting
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 260 (1st
Cir. 1999)).

- 22 -
 The plaintiffs argue on appeal that if such a "particular

transaction" is required, then the "'particular transaction' in

this case would be" the plaintiffs' enlisting the defendants to

"manage real estate in a manner that permitted Cornwell to complete

Book of the Dead." This argument does have some initial appeal,

assuming this professional relationship is of a kind to which the

doctrine applies at all.9 The continuous representation doctrine

was adopted in part on the understanding that someone who becomes

aware of an error should not be required to sue immediately since

that would only "interrupt corrective efforts." Borgia v. City of

N.Y., 187 N.E.2d 777, 779 (N.Y. 1962). And, arguably, if the

defendants were obliged to find Cornwell a place in which she could

complete Book of the Dead, a requirement that the plaintiffs bring

suit after any particular real estate transaction had occurred

would interrupt corrective efforts by the defendants to find a

suitable place for Cornwell to write that book.

But the plaintiffs did not make this argument to the

District Court. The plaintiffs argued only that the continuous

representation doctrine tolled the limitations period for the

entirety of the "[d]efendants' mismanagement of real estate," and

not for the shorter period of the defendants' mismanagement of

9 The defendants do not challenge the doctrine's application
to real estate services but the plaintiffs have not identified any
case applying the doctrine to such services, and our own review
has not turned up any such case.

- 23 -
handling the plaintiffs' real estate in a manner that would permit

Cornwell to complete Book of the Dead. Because the plaintiffs

failed to argue below that the particular transaction to which the

continuous representation doctrine applied was the defendants'

management of the plaintiffs' real estate in a manner that would

permit Cornwell to complete Book of the Dead, that argument "cannot

be surfaced for the first time on appeal." McCoy v. Mass. Inst.

of Tech., 950 F.2d 13, 22 (1st Cir. 1991); see also Rocafort v.

IBM Corp., 334 F.3d 115, 122 (1st Cir. 2003) ("[A] party has a

duty 'to incorporate all relevant arguments in the papers that

directly address a pending motion.'" (quoting CMM Cable Rep, Inc.

v. Ocean Coast Props., Inc., 97 F.3d 1504, 1526 (1st Cir. 1996))).

Moreover, we are skeptical that, assuming that the

plaintiffs enlisted the defendants to manage the plaintiffs' real

estate in a manner that permitted Cornwell to complete Book of the

Dead, and assuming further that the defendants therefore

participated in the kind of particular transaction to which New

York's continuous representation doctrine applies, the plaintiffs'

real-estate-related claims would thus be rendered timely by that

doctrine. The evidence at trial was that the defendants fulfilled

any obligation to manage the plaintiffs' real estate in a way that

permitted Cornwell to complete Book of the Dead more than three

years before this suit was brought. Specifically, Cornwell does

not dispute what the evidence appears to show, which is that the

- 24 -
defendants had secured her a property where she could write as of

August 2006, namely the "Monument" property. The evidence further

shows that she resided there in 2007, when she completed her book.

And while the evidence shows that there were problems with the

Monument property in 2008 and 2009, the book was completed in 2007.

We thus affirm the District Court's decision that the

statute of limitations applicable to the plaintiffs' fiduciary

duty claim under New York law is three years and that the

plaintiffs' theories of liability based on the Renaissance condo

and the Fifth Avenue apartment are not made timely by New York's

continuous representation doctrine.

C.

The plaintiffs' last challenge to the District Court's

ruling partially granting the Rule 50(b) motion concerns the

District Court's decision that, on this record, only "conjecture

or speculation" could support a finding of damages on the NetJets

theory of liability. See Cornwell II, 2014 WL 1249047, at *5.

Our review of the District Court's ruling about the lack of

evidentiary support for this theory of liability is de novo, though

we must construe all reasonable inferences from the trial record

in the light most favorable to the plaintiffs. Malone v. Lockheed

Martin Corp., 610 F.3d 16, 19-20 (1st Cir. 2010).

The plaintiffs contend that they introduced evidence at

trial from which a juror could reasonably find that the plaintiffs

- 25 -
were due $532,000 in damages on account of Snapper's mismanagement

of the contracts with NetJets for fractional ownership in a private

jet. The plaintiffs point to Gruber's testimony that, four years

after Snapper negotiated the contract with NetJets, she managed to

negotiate "a five-year contract with [NetJets with] savings of

$232,000 and 'perks' worth over $300,000, for a total value of

$532,000."

But there was no evidence at trial regarding whether

Snapper could have negotiated the same deal four years earlier.

In fact, the evidence suggested the conditions were markedly

different at the time Gruber reached her deal. The evidence at

trial was that the economy went into a recession between when

Snapper negotiated with NetJets and when Gruber negotiated with

NetJets and that Gruber's contract with NetJets was for a smaller

plane than the one Cornwell had requested four years earlier, when

Snapper negotiated the contract. And so we agree with the District

Court that only speculation could permit a reasonable juror to

calculate an estimate of damages from Snapper's alleged

mismanagement of the contract with NetJets by comparing the value

of Gruber's contract with NetJets to the value of Snapper's

contract.

D.

Having resolved all of the plaintiffs' challenges to the

District Court's Rule 50(b) decision, and having found in the

- 26 -
plaintiffs' favor on only one of those challenges -- the challenge

to the ruling that a qualified privilege applies to the statements

the defendants made to the DOJ -- we now must decide what to do

about the jury verdict. The plaintiffs suggested in their briefing

that we should remand for a new trial rather than reinstate the

verdict. The defendants agreed and argued that the plaintiffs had

waived any argument to the contrary.

At oral argument, however, the plaintiffs for the first

time raised the possibility that, if we reversed the District

Court's Rule 50(b) qualified privilege holding, then we could

reinstate the jury's verdict that there was a breach of fiduciary

duty, and then remand for a new trial on damages on that claim

only. The plaintiffs reasoned that they had argued for punitive

damages during closing argument with respect to only the DOJ

investigation theory of breach of fiduciary duty. Thus, because

the jury awarded punitive damages, the plaintiffs suggested, it

must be the case that the jury found a breach of fiduciary duty

with respect to that theory.

But we do not believe this late-breaking contention

provides a basis for us to reinstate any portion of the jury's

verdict. The plaintiffs' argument that the jury verdict on

liability be reinstated was not included in the plaintiffs' opening

brief, see Waste Mgmt. Holdings, Inc., 208 F.3d at 299 (an argument

not included in an opening brief is waived), nor was it developed

- 27 -
on appeal, see Zannino, 895 F.2d at 17 (arguments not sufficiently

developed on appeal are waived). On the merits, moreover, we

cannot be "reasonably sure" that the jury relied on a theory of

liability that does not fail as a matter of law in finding for the

plaintiffs on the fiduciary duty claim, as opposed to the various

other theories that do fail as a matter of law. See Gillespie v.

Sears, Roebuck & Co., 386 F.3d 21, 30 (1st Cir. 2004) (explaining

that "we have generously applied the harmless error concept to

rescue verdicts where we could be reasonably sure that the jury in

fact relied upon a theory with adequate evidentiary support" rather

than a theory that failed as a matter of law).

The trial in this case spanned twenty-six days and

involved a number of theories of liability. No effort was made by

the plaintiffs to indicate to the jury that certain theories and

not others applied to certain claims, and nothing about the verdict

form suggested to the jury that the claims were so limited. It is

also not clear to us from the record that the theories of liability

that fail as a matter of law were less supported by the evidence

than the other theories of liability such that we can conclude

that the jury did not rely on the former in finding for the

plaintiffs on the breach of fiduciary duty claim. See id.

(explaining that the harmless error concept applies to rescue

general verdicts because we "[r]ecogniz[e] that a jury is likely

to prefer a better supported theory to one less supported").

- 28 -
 Nor are we convinced by the plaintiffs' argument that

the jury's punitive damages award shows that the jury found a

breach of fiduciary duty with respect to the DOJ investigation

issue. The jury was not instructed that it could award punitive

damages only on the basis of that theory of liability. Rather,

the jury was instructed that it could award punitive damages for

any conduct that it concluded was in breach of a fiduciary duty if

it found "the breach was intentional or deliberate, [or] occurred

under aggravating or outrageous circumstances, including a

fraudulent or evil motive or a conscious act that willfully and

wantonly disregarded the plaintiffs' rights."

To be sure, the plaintiffs are correct that their trial

counsel limited her punitive damages argument at the end of trial

to the DOJ issue. But parties' closing arguments are not evidence,

as the jury in this case was instructed. There also was no more

focus, in the presentation of the evidence, on the "intentional"

or "aggravating or outrageous" nature of the breach with respect

to the DOJ investigation than with respect to the other theories

of liability, such that we can be "reasonably sure" that the jury's

award of punitive damages was an award for the DOJ issue. See id.

In fact, consistent with the District Court's general

instruction on punitive damages, the plaintiffs argued before the

District Court that the jury's large punitive damages award was

supported not only by the DOJ investigation theory of liability,

- 29 -
but also by "the entire breadth of Defendants' blatant violations

of their fiduciary duties, such as: concealing fees they paid

themselves, repeatedly mismanaging Plaintiffs' real estate and

investment accounts, and -- in dealing with Plaintiffs' service

providers -- putting their own interests before Plaintiffs'

[interests]." And the plaintiffs opposed the defendants' argument

that the "only ground for punitive damages [was the defendants']

disclosures to the DOJ," insisting to the District Court that such

an argument "rings hollow." In light of that contention below, we

do not see how we can say, especially with no briefing from the

parties, that we are reasonably sure that the punitive damages

award indicates that the jury found that the defendants were liable

for breach of fiduciary duty with respect to the DOJ issue simply

because the plaintiffs' trial counsel limited her closing argument

to the jury regarding punitive damages to that issue.

We thus conclude that our "usual[]" approach is the

correct one in this case. Id. at 29. Under that approach, where

"a single verdict question encompasses multiple theories, one of

which is defective," "a new trial is usually warranted." Id. at

29-30 (quoting Kerkhof v. MCI WorldCom, Inc., 282 F.3d 44, 52 (1st

Cir. 2002)).10

10 We reject the plaintiffs' request that they be permitted
to retry not just the DOJ issue, but also any theory of liability
that remained after the District Court rendered its decision on
the defendants' Rule 50(b) motion. The plaintiffs waived their

- 30 -
 III.

The plaintiffs' next challenge concerns the District

Court's denial of their post-trial petition for reasonable

attorneys' fees and costs under Massachusetts General Laws Chapter

93A and for equitable forfeiture. The District Court ruled on

that petition almost a year before the District Court granted the

defendants' Rule 50(b) motion. In doing so, the District Court

held that the plaintiffs' claim under Massachusetts General Laws

Chapter 93A was "inapplicable" to this case. See Cornwell I, 2013

WL 2367849, *4. The plaintiffs challenge that decision. The

plaintiffs also challenge the District Court's denial of their

request for equitable forfeiture. We take each argument in turn.

A.

The District Court concluded that Chapter 93A was not

applicable to this case for two reasons. First, the District Court

held that it was "inconsistent and illogical" for the plaintiffs

to argue that New York law applied to "all the other claims" while

at the same time contending that "Massachusetts law also applies,

simply because it offers distinctive remedies." Id. at *1. The

District Court separately held that "[e]ven if the plaintiffs'

right to try those remaining theories when they requested that the
District Court enter final judgment for the defendants on those
theories. See Johnson v. Zerbst, 304 U.S. 458, 464 (1938)
(defining waiver as "an intentional relinquishment or abandonment
of a known right or privilege").

- 31 -
positions were not inconsistent . . . conventional choice-of-law

analysis would yield the same result." Id. at *2. Applying

Massachusetts's choice-of-law framework, the District Court held

that New York law, and not Massachusetts law, applied to all the

plaintiffs' theories of Chapter 93A liability. Id. at *2-3. As

a result, the District Court held, the Chapter 93A claim could not

proceed and so could not provide a basis for awarding the

plaintiffs the costs and attorneys' fees that they requested. Id.

at *3.

The plaintiffs' sole argument against this ruling on

appeal is that "[t]he states' relative interest in the adjudication

of the claims is a paramount factor" in Massachusetts' choice-of-

law analysis, and that "Massachusetts' interest in ensuring that

its consumer residents are protected against unfair acts or

practices of out-of-state product and service providers surely

outweighs New York's interest in protecting a local accounting

firm from its own willful, wanton or egregious malfeasance in

providing services to Massachusetts residents." For that reason,

the plaintiffs contend, Massachusetts law governs the conduct they

identified as violating Chapter 93A.

But the plaintiffs do not challenge the District Court's

decision to analyze the Chapter 93A claim as a claim sounding in

tort and contract. In determining which state's law governs claims

that sound in contract, Massachusetts courts consider "a variety

- 32 -
of factors," Bushkin Assoc., Inc. v. Raytheon Co., 473 N.E.2d 662,

668 (Mass. 1985), including "the place of contracting," "the place

of negotiation of the contract," "the place of performance," "the

location of the subject matter of the contract," and "the domicil,

residence, nationality, place of incorporation and place of

business of the parties," id. at 669 (quoting Restatement (Second)

Conflict of Laws § 188 (1971)). And where claims sound in tort,

Massachusetts courts consider, among other things, "the place

where the injury occurred," "the place where the conduct causing

the injury occurred," "the domicil, residence, nationality, place

of incorporation and place of business of the parties," and "the

place where the relationship, if any, between the parties is

centered." Cosme v. Whitin Mach. Works, Inc., 632 N.E.2d 832,

834-35 & n.3 (Mass. 1994) (quoting Restatement (Second) Conflict

of Laws § 145 (1971)); see also Robidoux v. Muholland, 642 F.3d

20, 25 (1st Cir. 2011) (explaining that although, "[h]istorically,

in tort cases, Massachusetts applied the substantive law of the

state where the alleged wrong occurred . . . Massachusetts has

moved to a 'functional' approach for addressing choice of law

issues" under which it assesses "various choice-influencing

considerations, including those provided in the Restatement

(Second) of Conflict of Laws (1971)").

Thus, the plaintiffs' residence is just one factor among

many that Massachusetts courts consider in determining which state

- 33 -
has the most significant relationship to a claim sounding in

contract or tort. And, in this case, the other factors generally

do not support the conclusion that Massachusetts law applies here.

The plaintiffs do not dispute the District Court's findings that

the defendants are located in New York, that the contract between

the parties was negotiated and executed in New York, and that the

relationship between the parties was centered in New York. See

Cornwell I, 2013 WL 2367849, at *2-3. Moreover, most of the

plaintiffs' theories of liability are based on events that occurred

in New York or Florida, not in Massachusetts.11

Given that the plaintiffs make no developed argument on

the choice-of-law issue beyond the contention that their residence

in Massachusetts requires the application of Massachusetts law, we

need go no further. See Zannino, 895 F.2d at 17. The plaintiffs

have not made the case that the District Court erred in the choice-

of-law analysis it performed in rejecting the Chapter 93A claim.

11As for the one theory of liability that was based on events
that occurred in Massachusetts -- the defendants' alleged
mismanagement of the purchase and renovation of Cornwell's
residence on Garfield Road in Concord, Massachusetts -- the
District Court held that even if Massachusetts law applied to that
theory of liability, there was no evidence at trial that the
defendants "acted in any unethical or deceptive way with respect
to [that] renovation project" such that the defendants' conduct
could be said to violate Chapter 93A. Cornwell I, 2013 WL 2367849,
at *3. The plaintiffs do not challenge that alternate holding.

- 34 -
 B.

The plaintiffs' argument that the District Court erred

in denying their post-trial petition for an award of equitable

forfeiture is also unavailing. The plaintiffs contend that the

jury verdict "compel[s]" an award of equitable forfeiture in this

case. But because we have concluded that the verdict cannot be

reinstated, we cannot say that the verdict compels any such award.

We note, however, that after the District Court vacated the verdict

below, it held that "the question of whether equitable forfeiture

is appropriate is left open for [re]trial." The defendants make

no argument that the same should not be true upon remand from this

appeal, and we see no reason why it should not.12

IV.

Notwithstanding that we are not reinstating the verdict,

we must address two additional issues. Each pertains to any new

trial that may occur. The first concerns the counsel who may

participate in it. The second concerns whether certain records

from the first trial may be unsealed.

12We need not address whether the District Court's post-trial
award of interest on the jury verdict was erroneous, as the
plaintiffs ask us to address that issue only in the event that we
reinstate the jury verdict, which we have not done. Nor need we
reach the defendants' argument that the District Court erred in
not instructing the jury on comparative causation. The parties
are free to raise the issue whether a jury instruction on
comparative causation is warranted in this case in the event there
is a new trial.

- 35 -
 A.

We start with the plaintiffs' contention that Sidley

Austin LLP, the defendants' counsel at present, should not be

permitted to continue to represent the defendants on remand. The

plaintiffs moved below to "disqualify" Sidley as counsel for the

defendants "or, in the alternative for expedited discovery to

determine whether such disqualification is mandated and/or for an

evidentiary hearing regarding [the] same." The plaintiffs request

that we "[r]einstate[]" that motion and order the District Court,

on remand, to permit discovery on the issue prior to retrial.

"Because the district court is vested with the power and

responsibility of supervising the professional conduct of

attorneys appearing before it," we review the District Court's

decision regarding disqualification of counsel for an abuse of

discretion. Kevlik v. Goldstein, 724 F.2d 844, 847 (1st Cir.

1984). That same standard applies to a trial court's decision

regarding discovery and whether to hold an evidentiary hearing.

See Braga v. Hodson, 605 F.3d 58, 59 (1st Cir. 2010) (discovery);

Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518, 527 (1st Cir.

1991) (evidentiary hearing). We conclude that there was a

"reasonable basis" for the District Court's decision and thus that

there was no abuse of discretion in this case. Kevlik, 724 F.2d

at 847.

- 36 -
 The plaintiffs sought to disqualify Sidley on the ground

that James Cole had recently joined that firm as partner and that

Cole had previously served as Deputy Attorney General of the United

States. As Deputy Attorney General, the plaintiffs contended,

Cole likely obtained information regarding the DOJ investigation

of Anchin and Cornwell. Thus, the plaintiffs contended, Sidley,

due to Cole's membership in the firm, gave the defendants a

"strategic advantage" with respect to any issues in the case

concerning the DOJ investigation. That advantage, the plaintiffs

argued to the District Court, required that Sidley be disqualified

as counsel under both Federal Rule of Criminal Procedure 6 and

Massachusetts Rule of Professional Conduct 1.11.

The District Court held that the plaintiffs' argument

that Cole had received information about the Anchin and Cornwell

investigation while at the DOJ relied on "speculation" and was

contradicted by a sworn affidavit submitted by Cole. We see no

grounds for reversing that ruling.

Cole states in his affidavit that "[a]t no time -- either

while [his] nomination was pending, after [he] was sworn in, or at

any point thereafter -- did [he] receive any confidential

government information relating to the investigation into the

campaign bundling scheme involving Anchin and Patricia Cornwell."

Thus, notwithstanding the plaintiffs' contention that "the

investigation" did not include "what happened at the Grand Jury,"

- 37 -
Cole's statement that he received no information "relating to the

investigation" indicates that he did not receive any information

concerning what happened at the grand jury. Moreover, one of the

defendants' exhibits below -- an email that appears to have been

circulated at the DOJ -- indicates that Cole was "recused" from

"all matters that involve, or have a direct and predictable effect

on" Anchin. The plaintiffs do not explain why such a broadly-

worded recusal would not extend to obtaining information

concerning grand jury proceedings.

This evidence indicates that Cole had no exposure to the

information that the plaintiffs contend requires his firm's

disqualification. The plaintiffs therefore appear to rely on

nothing more than speculation in contending that Cole might have

been involved in the DOJ investigation of Anchin and Cornwell. We

thus conclude that the District Court did not abuse its discretion

in denying the plaintiffs' motion.

B.

We come, then, to the final issue on appeal. The

plaintiffs have asked us to order the District Court to permanently

seal certain trial court records that the District Court ordered

be unsealed. We review the District Court's decision to unseal

the records in question "only for mistake of law or abuse of

discretion," and we give the District Court "considerable leeway

- 38 -
in making [such a] decision[]." Siedle v. Putnam Invests., Inc.,

147 F.3d 7, 10 (1st Cir. 1998).

1.

We begin with the relevant background. After the trial,

two jurors, after hearing media reports about the size of the jury

award in this case, notified the District Court that the jury had

intended to award a smaller amount of damages. The District Court

held a hearing at which it questioned the two jurors separately

under oath. Each juror testified that the jury had agreed to award

the plaintiffs a total of approximately $28.6 million in damages,

not $51 million. The jury had erred, the two jurors testified, in

awarding $22.4 million for the fiduciary duty claim for both

compensatory damages and for punitive damages, because the jury

had actually intended to award $22.4 million on that claim for

compensatory and punitive damages combined.

In light of that testimony, the District Court

determined that the damages award on the verdict form did not

reflect the jury's agreement as to damages, and that the jury

intended to award $28.6 million, not $51 million. But the District

Court nevertheless concluded that it could not amend the judgment.

That was because, the District Court held, it was barred from

considering the jurors' testimony under Federal Rule of Evidence

606(b), which prohibits a juror from testifying, "[d]uring an

inquiry into the validity of a verdict," "about any statement made

- 39 -
or incident that occurred during the jury's deliberations; the

effect of anything on that juror's or another juror's vote; or any

juror's mental processes concerning the verdict."13 The District

Court concluded that "further juror inquiry regarding the

discrepancy is inappropriate, and the jury verdict will not be

altered on account of the discrepancy."

The District Court then ordered that the records

relating to the question of the jury verdict -- the transcript of

the jurors' testimony, the parties' briefing, and the District

Court's decision on the issue -- remain under seal until the later

of 28 days after entry of final judgment or the entry of any order

disposing of any motion under Federal Rules of Civil Procedure

50(b), 52(b), 59, or 60. This Court ordered, however, that the

materials remain sealed "pending further order of this court," and

asked the parties to brief the issue whether the records should

remain sealed.

13The District Court acknowledged that Rule 606(b) provides
an exception for testimony about "a mistake . . . made in entering
the verdict on the verdict form," see Fed. R. Evid. 606(b)(2)(C),
but held that the exception did not apply in this case. The
District Court stated that "the discrepancy" between what the
jurors discussed and decided on damages and what they put on the
verdict form was "likely the result of a misunderstanding or
misinterpretation by the jury or its foreman of either the Court's
instructions or the verdict form, or both, and not the result of
a simple clerical error in the recording of the verdict."

- 40 -
 2.

"The common law presumes a right of public access to

jury records."14 Siedle, 147 F.3d at 9. This presumption "stems

from the premise that public monitoring of the judicial system

fosters the important values of 'quality, honesty and respect for

our legal system.'" Id. at 9-10 (quoting FTC v. Standard Fin.

Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1987)). "The presumption

extends to records of civil proceedings." Id. at 10.

In this case, the plaintiffs contend, those values run

up against another value: the sanctity of jury deliberations. See,

e.g., United States v. Olano, 507 U.S. 725, 737 (1993) (referring

to "the cardinal principle that the deliberations of the jury shall

remain private and secret" (quoting the Advisory Committee Notes

to Fed. R. Crim. Proc. 23(b))); Cabral v. Sullivan, 961 F.2d 998,

1001-02 & 1001 n.3 (1st Cir. 1992) (discussing the "sanctity of

the jury" in civil trials). The plaintiffs argue that the sanctity

of the jury deliberations regarding the damages award in this case

outweighs the interest the public has in access to the information

in question.

We cannot say, however, that the District Court abused

its discretion in concluding otherwise. First, "[t]he primary if

14The defendants do not argue that sealing the records would
violate any public right to access to judicial materials under the
First Amendment. And so we do not consider that issue. See
Siedle, 147 F.3d at 9 n.4 (taking the same approach).

- 41 -
not exclusive purpose of jury privacy and secrecy is to protect

the jury's deliberations from improper influence." Olano, 507

U.S. at 737-38. This purpose is not implicated here, where the

testimony at issue was received after the jury had finished

deliberating and was not considered by the District Court in

evaluating the validity of the verdict. Cf. In re Globe Newspaper

Co., 920 F.2d 88, 91 (1st Cir. 1990) (stating that "stronger

reasons to withhold juror names and addresses will often exist

during trial than after a verdict is rendered").

Nor do we agree with the plaintiffs that Rule 606(b) --

the Rule the District Court cited in concluding that it could not

consider the jurors' testimony in evaluating the validity of the

verdict -- requires that the records be sealed. That Rule does

not state that if the District Court receives juror testimony and

then determines that it may not consider it in adjudging the

validity of the verdict -- as was the case here -- the court must

seal the testimony that it received. In fact, the Advisory

Committee Notes to the Rule expressly note that the Rule "does not

relate to secrecy and disclosure but to the competency of certain

witnesses and evidence." Consistent with that statement, at least

two other circuits have quoted in published opinions juror

testimony even where they concluded, as the District Court did

here, that Rule 606(b) prohibited the trial court from considering

that testimony in evaluating the validity of the verdict. See

- 42 -
Munafo v. Metro. Transp. Auth., 381 F.3d 99, 102-04 (2d Cir. 2004);

Robles v. Exxon Corp., 862 F.2d 1201, 1203-04 (5th Cir. 1989).

The plaintiffs' last argument is that the records at

issue should be sealed to avoid "embarrass[ing] the judge and the

jury." But "[t]he mere fact that judicial records may reveal

potentially embarrassing information is not in itself sufficient

reason to block public access" to judicial records. Siedle, 147

F.3d at 10.

3.

In sum, the District Court did not abuse its discretion

in ordering the records at issue unsealed in this case. We leave

the question whether the two jurors' names should be redacted from

the relevant records for the District Court to decide in the first

instance.

V.

The District Court's decision is affirmed in part,

reversed in part, and remanded for further proceedings consistent

with this opinion. Each party shall bear its own costs.

- 43 -