United States Court of Appeals
For the First Circuit
No. 00-1489
PETER FISHER; BALFOUR HOLDING, INC.,
Plaintiffs, Appellants,
CREDIT FRANCAIS INTERNATIONAL, S.A.,
Plaintiff, Appellee,
v.
WILLIAM P. TRAINOR; DIANE M. TRAINOR; BIO-VITA, LTD.; HEMO-
INNOVATIONS, LTD.; LAUREL MOUNTAIN TRUST; WILLIAM P. TRAINOR,
AS TRUSTEE OF LAUREL MOUNTAIN TRUST; SHEA & GOULD, A LAW FIRM
IN DISSOLUTION,
Defendants,
BIOPURE CORPORATION; BIOPURE ASSOCIATES; BIOPURE ASSOCIATES
LIMITED PARTNERSHIP; CARL W. RAUSCH, AS GENERAL PARTNER OF
BIOPURE ASSOCIATES LIMITED PARTNERSHIP,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. James L. Watson, Senior Judge*]
Before
* Of the United States Court of International Trade,
sitting by designation.
Boudin, Stahl, and Lynch,
Circuit Judges.
Marc Z. Edell, with whom Diane L. Mulligan, Dina L. Sforza,
and Edell & Associates were on brief, for appellant.
Marc S. Palay, with whom Eric W. Bloom, Winston & Strawn,
John D. Donovan, Jr., and Ropes & Gray were on brief, for
appellee Credit Francais International.
S. Elaine McChesney, with whom Robert A. Buhlman and Bingham
Dana LLP were on brief, for appellee Biopure.
March 6, 2001
LYNCH, Circuit Judge. This consolidated case, in which
multiple frauds are alleged against a partner to a biotechnology
venture, emerges from over ten years of complex, multi-party
litigation. The case appears before us on appeal for the second
time; we originally considered it nearly five years ago. See
Credit Francais International v. Bio-Vita, Ltd., 78 F.3d 698
(1st Cir. 1996) ("CFI v. Bio-Vita"). The original appeal arose
out of two separate summary judgment orders issued by the
district court, one in July 1994 and the other in December of
the same year. The July judgment awarded Credit Francais
International a constructive trust over certain contractual
rights William Trainor had acquired from Biopure using funds he
had fraudulently obtained from CFI. The December judgment
effectively denied Peter Fisher, allegedly Trainor's innocent
partner, any similar stake in those contractual rights; the
judgment also dismissed certain direct claims Fisher had brought
against Biopure.
In CFI v. Bio-Vita, we found we lacked jurisdiction to
review the December judgment because at the time it had been
prematurely certified as final. We remanded the case, and the
district court undertook further proceedings in accordance with
our instructions. Subsequently, the district court again ruled
against Fisher, recertifying the December judgment as final. We
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now affirm the judgment.1
I.
The facts of the case are laid out in detail in CFI v. Bio-
Vita. See 78 F.3d at 701-703. We briefly review, and
occasionally supplement, those facts.
In November 1989, Trainor and Fisher entered into a joint
venture to invest in and manage the testing of a human blood
substitute being developed by Biopure; by oral agreement, they
were to split the proceeds from the venture fifty-fifty.
Trainor was supposed to negotiate a contract with Biopure on
behalf of the joint venture, using Balfour -- a company
affiliated with Fisher -- as the vehicle for the transaction.
What appears to be a draft agreement, labeled a "Term Sheet,"
was drawn up accordingly, with Balfour as the named party to the
contract. The agreement called for giving Balfour an equity
share in Biopure and licensing rights to Biopure products.
However, by the time the agreement was finalized in a set of
1 As in CFI v. Bio-Vita, we refer to the parties in the
case as follows: "Fisher" collectively designates Peter Fisher
and Balfour Holdings, Inc. ("Balfour"), an entity presently
controlled by Fisher; "Trainor" collectively designates William
Trainor, his daughter Diane Trainor, and Trainor-controlled
companies, Bio-Vita, Hemo-Innovations, Ltd., and Laurel
Mountain Trust; "Biopure" collectively designates Biopure
Corporation and Biopure Associates Limited Partnership, as well
as Carl Rausch; and "CFI" designates Credit Francais
International, S.A.
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three instruments in late January 1990, Trainor secretly
substituted his own company, Bio-Vita, as the named party to the
contract, effectively shouldering Fisher out of the deal.2
Pursuant to these finalized instruments (referred to
collectively as the "Biopure contract"), Trainor transferred
$1.25 million to Biopure as partial consideration for the equity
share granted under the contract. In addition, he transferred
$1.8 million to a personal trust account, out of which he paid
various expenses incurred in performance of the contract. It
was later discovered that Trainor had obtained all of these
funds by way of a fraud on CFI, a French bank, in the late 1980s
-- before the formation of the Biopure venture.
Meanwhile, Fisher, purportedly unaware of any of his co-
venturer's mischief and still believing himself to be a party to
the Biopure contract, traveled to Guatemala in early 1990 to
oversee clinical testing of Biopure's product. Although the
extent of Fisher's labors in Guatemala are much disputed, Fisher
claims to have spent substantial time and effort there acquiring
2 Fisher on occasion disputes that the Term Sheet was
merely a draft agreement; indeed, below we discuss his claim
that the Term Sheet was a binding agreement between himself and
Biopure which Biopure breached. But in order to make sense of
his claim against Trainor, which we consider to be his primary
claim, it is necessary to assume that the Term Sheet was merely
a draft agreement, replaced by a final agreement fraudulently
manipulated by Trainor.
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governmental approval for the clinical trials and overseeing
their administration.
In June 1990, Biopure was alerted to various facts about
Trainor and Fisher's backgrounds. Among other things, Biopure
learned that Trainor and Fisher both had considerable histories
of being sued for fraud and financial misdealing; further,
Trainor had several convictions for fraud and other white-collar
crimes. Believing that Trainor and Fisher had misrepresented
themselves by not earlier revealing these facts, and worrying
about the integrity of their dealings with Biopure, Biopure
rescinded the Biopure contract in August 1990.
From these events, a tangle of claims emerged, sprawling
across two (eventually consolidated) lawsuits. For the purposes
of this appeal, only the following need be mentioned:
(1) Trainor sued Biopure for breach of the Biopure contract.
(2) Fisher sued Trainor under various theories for
defrauding him of his share of the Biopure contract rights.
Among other forms of relief, Fisher sought a constructive trust
over the rights. Fisher also sued Biopure for breach of
contract and related counts.
(3) Biopure sued both Trainor and Fisher for fraud,
racketeering, and related counts; among other forms of relief,
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it sought a declaration that the Biopure contract was void for
fraud and that its recission was effective.
(4) CFI brought claims against Trainor, Fisher, and Biopure
for a constructive trust over the Biopure contract rights, on
the ground that those rights had been acquired using funds
fraudulently obtained from CFI.
Much of the early proceedings in the case concerned Fisher's
claim that Trainor had violated their oral joint venture
agreement by substituting Bio-Vita as the named party to the
Biopure contract. That claim was tried before a jury in 1992.
The jury issued a special verdict, but Trainor and Fisher were
unable to agree on its meaning, and a mistrial was declared.
The later proceedings in the case give rise to the current
appeal. In July 1994, the district court granted summary
judgment to CFI against Trainor, awarding CFI a constructive
trust over the Biopure contract rights (the choses in action in
Trainor's suit against Biopure) and allowing CFI to step into
Trainor's shoes to litigate those rights. The court noted that
its decision did not address Fisher's claims and their possible
effect on CFI's constructive trust.
In December 1994, the district court granted summary
judgment to both Biopure and CFI against Fisher. As to
Biopure's motion for summary judgment, the court found that
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Fisher could only assert claims against Biopure in his capacity
as a partner to the joint venture. But because any rights that
the joint venture might have had against Biopure were
transferred to CFI by way of the July judgment, Fisher was now
precluded from suing on these rights directly. As to CFI's
motion for summary judgment, the court held that any claim
Fisher had to a constructive trust over the Biopure contract
rights was trumped by CFI's claim to such trust. The court
reasoned that "[a]s between victims of a fraud who are unrelated
to the person responsible for the fraud and a partner of the
defrauder, even one who may have himself been victimized, it is
clearly fair to impute the fraud to the latter."
In CFI v. Bio-Vita, we heard appeals from the July and
December summary judgment orders. Trainor originally appealed
the July judgment, but voluntarily dismissed his appeal early in
the appellate process. Fisher also appealed the July judgment,
but belatedly and in a manner that prevented proper briefing.
We declined to relieve Fisher of his errors and thus let the
July judgment stand. CFI v. Bio-Vita, 78 F.3d at 708.
Our disposition of the appeal of the December judgment was
more complex. We found that we lacked jurisdiction to review
the judgment because it had been prematurely certified as final:
the claims it concerned so overlapped with claims still pending
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below as to make final certification inappropriate under Fed. R.
Civ. P. 54(b). Id. We found such overlap was traceable, inter
alia, to a claim Fisher had not presented until appellate oral
argument: Fisher claimed that his labors in Guatemala
constituted a contribution to the value of the Biopure contract
rights untainted by Trainor's fraud on CFI. Such "sweat
equity," we noted, possibly entitled him to a proportionate
share of CFI's constructive trust over those rights, if he could
overcome his waiver of the claim. However, we declined to
determine whether Fisher should be relieved from his waiver.
Instead, we instructed the district court to make such
determination on remand after further development of the factual
record. That determination, we advised, would turn on whether
(1) Fisher's "sweat equity" argument was so compelling as
virtually to ensure his success, and (2) whether failure to
address it would result in a gross miscarriage of justice -- in
particular by leaving CFI with a gross windfall, insofar as the
value of the Biopure contract rights which it held greatly
exceeded its losses resulting from Trainor's fraud. Id. at 709.
On remand, the district court developed the factual record as we
instructed, reopening discovery to allow Fisher to adduce
evidence of his "sweat equity" and the value of the Biopure
contract rights.
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Meanwhile, in December 1996, CFI settled its claims against
Biopure, effectively liquidating its constructive trust over the
Biopure contract rights. The settlement agreement calls for
Biopure to pay CFI approximately $3.35 million plus interest --
roughly reimbursing CFI for the approximately $3.05 million
Trainor stole from it and used in the Biopure venture.
In February 2000, the district court denied Fisher's request
to be relieved from his waiver, finding that Fisher's "sweat
equity" contributions to the Biopure venture were minimal and
that in any event CFI had reaped no windfall from the
constructive trust. It also observed that, since this court's
ruling in CFI v. Bio-Vita, many of the claims that were pending
at that time had by now been either settled or dismissed. The
only claims still pending before the district court were
Fisher's claims against Trainor (and related counterclaims
Trainor has made against Fisher); and as to these pending
claims, the district court found no overlap with the claims
adjudicated in the December judgment. Accordingly, the court
recertified the December judgment as final.
II.
We begin by addressing the propriety of the district court's
recertification of the December judgment, on which our
jurisdiction to review the judgment depends. In CFI v. Bio-
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Vita, our finding of an impermissible overlap between claims on
appeal from the December judgment and claims still pending
before the district court rested on the following factors.
First, all parties on appeal still had claims pending below, and
final certification is particularly suspect in such
circumstances. Second, Biopure's pending fraud and racketeering
claims against Fisher and CFI's pending claims against Biopure
overlapped with claims on appeal from the December judgment, in
that they all touched on Trainor's fraud on CFI and Fisher's
culpability for it. Third, Fisher's pending claims against
Trainor potentially overlapped with the claims on appeal from
the December judgment in that both concerned Fisher's "sweat
equity" contribution to the Biopure venture; that overlap
depended, however, on whether Fisher should be allowed to raise
the "sweat equity" argument despite his earlier failure to do
so.
Since our remand, each of these barriers to final
certification has been eliminated. Biopure and CFI, having
settled or dismissed all of their claims that were pending at
the time of our earlier decision, are no longer parties to any
claims presently pending before the district court. Thus there
are no longer any overlaps traceable to their claims. Fisher
still has claims pending against Trainor in which Fisher's
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"sweat equity" may be an issue; but given that the district
court declined to relieve Fisher from his waiver of the "sweat
equity" argument, the potential overlap we feared in CFI v. Bio-
Vita has not been realized.3 Hence we conclude that the district
court did not abuse its discretion in recertifying the December
judgment, and that the judgment is properly before us on appeal.
III.
The appeal presents two questions: first, whether Fisher has
any claims remaining against Biopure; second, whether Fisher is
entitled to any portion of the constructive trust awarded CFI
over the Biopure contract rights. Our review of the district
court's summary judgment on these questions is de novo. See
Thomas v. Eastman Kodak Co., 183 F.3d 38, 47 (1st Cir. 1999),
cert. denied, 528 U.S. 1161 (2000). The law of Massachusetts
3 There does remain a slight overlap with respect to the
"sweat equity" issue: on appeal, we must review whether the
district court properly declined to relieve Fisher from his
waiver of the "sweat equity" argument; and below, evidence of
Fisher's "sweat equity" might play a role in his claims against
Trainor. But our inquiry concerns only whether evidence of
Fisher's "sweat equity" is so compelling as to warrant relief
from waiver, and this distinct legal issue is not likely to
recur in a future appeal of Fisher's claims against Trainor.
Moreover, as a practical matter, Fisher has not pursued his
claims against Trainor for over five years now and all but
admitted at oral argument that he was not likely to pursue them
after this appeal. Thus, there is simply no realistic threat
here of redundant piecemeal review that would counsel against
final certification.
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governs.4
A. Claims Against Biopure
Fisher's leading claim against Biopure on appeal is for
breach of contract. Fisher claims that the so-called "Term
Sheet" between Balfour and Biopure was not a draft agreement
later superceded by the Biopure contract, but rather is a
binding agreement by itself, and that Biopure is in breach by
refusing to recognize Fisher's rights under it.5
The problem with Fisher's claim is that, as the district
4 Although the district court made no express choice-of-
law determination, see Bio-Vita v. CFI, 78 F.3d at 708 n.16, the
parties assume that Massachusetts law governs, and we do not
choose to question the parties' assumption. See New Ponce
Shopping Ctr. v. Integrand Assur. Co., 86 F.3d 265, 267 (1st
Cir. 1996).
5 Fisher makes two other claims against Biopure on
appeal: first, he argues a promissory estoppel claim, alleging
that Fisher relied on the promises made in the Term Sheet in
undertaking his labors in Guatemala; second, he claims that
Biopure was unjustly enriched by Fisher's work in Guatemala. We
address these claims only briefly here because Fisher's
argument for them on appeal is wholly frivolous. Fisher's sole
argument is that the district court erred in granting summary
judgment on these claims in its December 1994 judgment because
three years earlier it had denied Biopure's motion for summary
judgment on these same claims, and that earlier ruling stands
as law of the case. Fisher is simply wrong that the court's
earlier ruling constitutes the law of the case: "an initial
denial of summary judgment does not foreclose, as the law of the
case, a subsequent grant of summary judgment on an amplified
record." Bonnie & Co. Fashions, Inc. v. Bankers Trust Co., 955
F. Supp. 203, 210 (S.D.N.Y. 1997); see also Bethlehem Steel
Export Corp. v. Redondo Constr. Corp., 140 F.3d 319, 321 (1st
Cir. 1998). Any other argument Fisher might have made in
support of these claims he has waived by not raising on appeal.
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court held, at this point in the litigation any contract rights
arising out of Fisher's joint venture with Trainor belong to
CFI. Regardless of whether those rights derive from the Term
Sheet or the Biopure contract, the point of the district court's
July 1994 judgment was to grant CFI a constructive trust over
those rights, because they had been acquired with funds
defrauded from CFI. The July judgment did leave Fisher room to
claim a stake to CFI's constructive trust, and we consider his
claims on that point below; but unless and until he succeeds on
those claims, only CFI has the right to recover under any rights
against Biopure arising from the Fisher-Trainor joint venture.
Apparently recognizing this obstacle to suit, Fisher
obscurely claims "in the alternative" that he never entered into
any contract with Biopure as part of a joint venture with
Trainor. Rather, he says, he entered into his own contract with
Biopure in the form of the Term Sheet, while Trainor contracted
with Biopure separately. Thus, he concludes, his is an
independent claim: he claims rights against Biopure wholly
independent from any rights acquired by Trainor with tainted
funds, and hence wholly independent from the rights granted CFI
in the July judgment.
This rank revisionism can be quickly dismissed. Throughout
the course of the litigation, Fisher has maintained that the
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Term Sheet was negotiated not on his personal behalf, but on
behalf of his joint venture with Trainor. Not only did Fisher
state in his complaint that "Fisher and Trainor agreed that they
would use Balfour as a vehicle for their transaction with
Biopure," and that the Term Sheet was negotiated with Balfour
"being used on behalf of the joint venture," but Fisher later
swore to the same in a 1991 affidavit, and again in the 1992
trial proceedings.6
Thus Fisher cannot claim to have entered any independent
contract with Biopure. If the Term Sheet was a binding
contract, it was entered into jointly by Fisher and Trainor, and
the fact remains that whatever rights the joint venture acquired
it acquired with funds Trainor defrauded from CFI.
Consequently, Fisher cannot escape the reach of the July
judgment, which granted to CFI any rights so acquired. The
district court's grant of summary judgment on Fisher's claims
against Biopure was thus not in error.
6 Moreover, Fisher's suggestion of parallel independent
contracts is problematic for myriad other reasons. For example,
it is highly dubious that Biopure would intentionally enter
contracts granting the same equity interests and licensing
rights to two independent parties. Or another example: if
Fisher did enter the Term Sheet independently, he would appear
to be in breach; for the agreement calls for the contracting
party to transfer millions to Biopure in consideration, and
Fisher admits that, unlike Trainor, he did not make any
significant financial outlays whatever in his dealings with
Biopure.
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B. Claims to CFI's Constructive Trust
We turn next to Fisher's claim to a portion of CFI's
constructive trust. Fisher's claim is two-pronged. First, he
argues that as an equal partner in the Biopure venture, he is
entitled to share in the fruits of the venture, namely, the
Biopure contract rights. This is so, Fisher maintains, even to
the extent that the rights were acquired with funds Trainor
defrauded from CFI, because Fisher was at all relevant times
innocent of the fraud. Second, Fisher raises the argument he
earlier waived: even assuming he has no claim to the fruits of
the joint venture insofar as they are tainted by Trainor's
fraud, he still has a claim to any untainted portion, i.e., he
still has a claim to the extent that they were acquired through
his own "sweat equity."
As to Fisher's first argument, the applicable legal
principles are clear when each is taken in isolation; what is
difficult to see at first blush is how those principles
intersect. First, it is clear that if Trainor had never
defrauded CFI, but rather had only defrauded Fisher by cutting
him out of the Biopure contract, then Fisher would be entitled
to impose a constructive trust on the contract rights on behalf
of the joint venture, securing his fifty-percent share in the
rights. For where a partner usurps a benefit properly belonging
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to the partnership, he holds it in trust for the partnership, so
that any innocent partner is "put as nearly as possible in the
same position which he would have occupied if there had been no
wrongdoing." Meehan v. Shaughnessy, 535 N.E.2d 1255, 1270
(Mass. 1989) (quoting Shulkin v. Shulkin, 16 N.E.2d 644, 651
(Mass. 1938)).
Second, it is clear that if Trainor had never been Fisher's
co-venturer, but rather had only defrauded CFI and later entered
the Biopure venture wholly on his own, then CFI would be
entitled to impose a constructive trust on the Biopure contract
rights in their entirety. For where one person wrongfully takes
the property of another and exchanges it for other property, the
wronged party is generally entitled to assert a constructive
trust over the property received in exchange. See 5 Austin W.
Scott & William F. Fratcher, Scott on Trusts § 508.1, at 561
(4th ed. 1989). Moreover, it is undisputed that all of
Trainor's contributions to the Biopure venture consisted of
funds tainted by his fraud on CFI; so Trainor could have no
claim to any untainted portion of the Biopure contract rights.
Cf. id. § 516, at 610-11 (explaining that where wrongdoer
acquires property with both tainted and untainted funds, wronged
party is entitled only to a share of the property proportional
to taint and may impose a constructive trust on the property
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only to that extent).
In short, had Trainor only defrauded the joint venture, the
joint venture would be entitled to the Biopure contract rights.
Likewise, had Trainor only defrauded CFI and never entered the
joint venture, CFI would be entitled to the Biopure contract
rights. The question that we must decide is if, as we assume
arguendo, Trainor acquired the Biopure contract rights through
frauds on both CFI and the joint venture, whose claim to the
rights has priority?
In arguing this question, the parties have embarked on
something of a wild goose chase. CFI argues that Fisher cannot
claim any proceeds from the funds Trainor defrauded from CFI
because, under Massachusetts partnership law, Fisher is
vicariously liable for Trainor's actions as his co-venturer.
The district court took the same position, holding that "even
the most innocent joint venturer cannot escape liability for the
acts of another principal carried out on behalf of the joint
venture." Fisher answers that he cannot be held vicariously
liable for Trainor's fraud on CFI because it occurred prior to
the formation (and therefore outside the scope) of the joint
venture. CFI replies that, while Fisher may not be liable for
Trainor's fraud on CFI prior to the formation of the joint
venture, he is nonetheless liable for Trainor's "fraudulent use"
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of CFI's funds, which did occur in the scope of the joint
venture; however, CFI fails to explain how the mere use of CFI's
funds in the Biopure venture constitutes an independent fraud on
CFI.
This debate, however, is simply irrelevant to the question
at hand. CFI need not establish vicarious liability in order to
succeed on its constructive trust claim. A constructive trust
claim is grounded in the law of unjust enrichment; thus, in
order to impose a constructive trust on the joint venture's
holdings, CFI need not prove that the joint venture vicariously
wronged CFI, but rather it need only prove that the joint
venture holds what does not rightfully belong to it. See
Higgins v. Shenango Pottery Co., 256 F.2d 504, 508 (3d Cir.
1958) (distinguishing between recovery against partnership on
vicarious liability theory and constructive trust theory); see
also 1 Alan R. Bromberg & Larry E. Ribstein, Bromberg & Ribstein
on Partnership § 4.07(a) n.8 (1991 & Supp. 1999) (noting that
although partnership is vicariously liable for partner's acts
only if committed during partnership, "a court might impose a
constructive trust on property or funds received by a
partnership as a result of a partner's wrongful pre-formation
act").
Thus, even if Trainor's fraud against Fisher is remedied,
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Fisher still cannot shield himself from CFI's constructive trust
claim. Remedying Trainor's fraud against Fisher merely undoes
Trainor's "switch," restoring the joint venture as the party to
the Biopure contract. Even with the Biopure contract rights
restored to the joint venture, however, the joint venture must
in turn hand over the contract rights to CFI, because they were
acquired with CFI's funds. The only way the joint venture could
stave off this result is if it were a bona fide purchaser of
CFI's funds. See generally Restatement (First) of Restitution
§ 168 cmt. b (1937 & Supp. 1997); Scott & Fratcher, supra, at §
507. But clearly it is not. In no sense did the joint venture
give value for the funds; rather, the funds were simply
Trainor's contribution of equity to the venture.7
So Fisher has no claim to the Biopure contract rights
superior to that of CFI, insofar as the rights were acquired
with CFI's funds. The next question, then, is whether the
Biopure contract rights were acquired to any extent through
7 There is a further argument that, even had the joint
venture given value for the funds, it was not without notice of
CFI's claim to the funds, as is required of a bona fide
purchaser. See Mass Gen. Laws ch. 108 § 12 (1999) (one
partner's knowledge of any matter relating to partnership
affairs operates as knowledge of the partnership); see also
Bromberg & Ribstein, supra, at § 4.06(d), at 4:104.1-4:105
(where partner contributes to partnership certain property
defrauded from third party, there is some authority for charging
partnership with constructive knowledge of the property's
taint). We do not reach the question, however.
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independent, untainted contributions to the joint venture by
Fisher, in which case Fisher would be entitled to keep that
portion of the contract rights corresponding to such
contributions. See Provencher v. Berman, 699 F.2d 568, 570-571
(1st Cir. 1983). Fisher concedes that all the financial
contributions to the venture were made by Trainor, and that he
can claim to have made only "sweat equity" contributions to the
venture. As we held in CFI v. Bio-Vita, because Fisher waived
any "sweat equity" argument in the earlier proceedings before
the district court, he could raise it later only if, first, the
argument were so compelling as virtually to insure his success,
and second, failing to address it would result in a gross
miscarriage of justice -- in particular, a windfall to CFI
grossly disproportionate to its losses. See 78 F.3d at 709-10.
Fisher has proven neither proposition, as the district court
correctly held. He has not put forward compelling evidence that
a significant portion of the value of the Biopure contract
rights is attributable to his "sweat equity." It appears that
his most significant "sweat equity" contribution was merely
recruiting to the joint venture a business associate who vaguely
alleges that he helped "cut through red tape" in order to
expedite the Guatemalan clinical trials of Biopure's product.
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As for Fisher's claim that he "was strongly involved in all the
coordination" of the studies, Fisher conceded in the 1992 trial
that he himself spent only five days in Guatemala during the
trials and that his personal involvement was "very superficial."
Suffice it to say that, compared to the approximately $3
million in capital Trainor contributed to the joint venture,
Fisher's evidence of his "sweat equity" is not so compelling as
virtually to insure his success.8
Even more clear is that Fisher cannot demonstrate that
failure to award him a portion of CFI's constructive trust will
yield a gross windfall to CFI. In settling with Biopure, CFI
has liquidated the trust, for an amount roughly equivalent to
the funds used in the Biopure venture, plus interest. 9 We
8 The mere fact that Fisher and Trainor at one time
agreed to split profits does not imply that Fisher's "sweat
equity" contribution to the joint venture should be
presumptively valued at half the venture's worth. For when
Fisher and Trainor originally agreed to split the proceeds of
their joint venture, Fisher had planned to contribute half of
the venture capital. It was only later that Trainor, perhaps as
part of his plan to defraud Fisher, insisted that he would
supply all the capital himself. There is no evidence that the
two ever agreed that Fisher would receive half the proceeds of
the joint venture based merely on his "sweat equity."
9 The CFI-Biopure settlement does not correspond exactly
to the amount Trainor stole from CFI: the agreement calls for
Biopure to pay CFI $300,000 in cash and $3.05 million plus
interest into escrow; by comparison, the district court found in
its July judgment that Trainor stole approximately $3.05 million
from CFI. However, under the settlement, interest is assessed
only starting in 1995, whereas CFI was defrauded of its funds in
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presume that settlement fairly represents the value of the
underlying claims. Cf. City Partnership Co. v. Atlantic
Acquisition Ltd. P'ship, 100 F.3d 1041, 1043-44 (1st Cir. 1996).
There is no evidence, sufficient to rebut that presumption, that
CFI intentionally settled for less than the trust was worth in
order to sidestep the concerns about a gross windfall we voiced
in our earlier opinion. In fact, before our earlier opinion,
CFI and Biopure had reached a tentative settlement for a lesser
amount than they agreed upon subsequently.
Fisher disputes that the settlement accurately represents
the value of the Biopure contract rights; he claims that the
rights are worth hundreds of millions, based on the current
value of Biopure stock. His valuation is flawed for a number of
reasons, but most importantly because it assumes that the joint
venture's contract with Biopure is valid, even though Biopure
rescinded the contract in 1990. In settling with Biopure, CFI
had to anticipate the likelihood that, were it to try the joint
venture's claims against Biopure for breaching the contract,
Biopure might succeed in proving the contract void for fraud and
its recission effective. This factor alone could account for
1989. Moreover, CFI credibly claims to have incurred
considerable legal costs in litigating this case over many
years. Under these circumstances, we cannot conclude that CFI
has received any windfall as a result of the settlement, let
alone a gross windfall.
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any discrepancy between the amount of the Biopure-CFI settlement
and Fisher's valuation of the contract rights.
Hence, because Fisher's "sweat equity" argument is neither
compelling nor necessary to consider in order to avoid a gross
miscarriage of justice, the district court was correct not to
relieve Fisher of his waiver. CFI thus was entitled to a
constructive trust over the Bio-Vita contract rights in their
entirety, and its settlement with Biopure is entitled to remain
intact.
IV.
For the foregoing reasons, the judgment of the district
court is affirmed.
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