Koch v. Koch Industries, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 14 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
TENTH CIRCUIT Clerk

WILLIAM I. KOCH; OXBOW
ENERGY, INC.; L. B. SIMMONS
ENERGY, INC., doing business as
Rocket Oil Company; SPRING
CREEK ART FOUNDATION INC.;
GAY A. ROANE; ANN ALSPAUGH;
THE NORTHERN TRUST
COMPANY, as trustee; PAUL
ANTHONY ANDRES COX; HOLLY
A.A.C. FARABEE; RONALD W. No. 98-3223
BORDERS; FREDERICK R. KOCH;
THE FIDUCIARY TRUST
COMPANY INTERNATIONAL,

Plaintiffs-Appellants,

and

UNITED STATES TRUST
COMPANY OF NEW YORK, as
trustee; MARJORIE SIMMONS
GRAY, as trustee; MARJORIE L.
SIMMONS, as trustee;
NATIONSBANK N.A., co-trustee of
the Louis Howard Andres Cox Trusts
B & D,

Plaintiffs,
 v.

KOCH INDUSTRIES, INC.;
CHARLES G. KOCH; STERLING V.
VARNER; DAVID H. KOCH;
DONALD L. CORDES; THOMAS M.
CAREY,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 85-1636 )

Arthur R. Miller, Cambridge, Massachusetts, (Fred H. Bartlit, Jr., Donald E.
Scott, Ellen A. Cirangle, Ryan D. Downs, Glen E. Summers, of Bartlit, Beck,
Herman, Palenchar & Scott, Denver, Colorado, Attorneys for Plaintiffs-
Appellants William I. Koch, Oxbow Energy, Inc., Northern Trust Company and
Spring Creek Art Foundation; Harry L. Najim, of Najim Law Offices, Wichita,
Kansas; Russell E. Brooks, Eugene F. Farabaugh, of Milbank, Tweed, Hadley &
McCloy, New York, New York, Attorneys for Plaintiffs-Appellants Frederick R.
Koch and The Fiduciary Trust Company International; Gregory S. C. Huffman, L.
James Berglund, II, Christopher L. Barnes, of Thompson & Knight, P.C., Dallas,
Texas, Attorneys for Plaintiffs-Appellants L. B. Simmons Energy, Inc. d/b/a
Rocket Oil Company, Gay A. Roane, Ann Alspaugh, Paul Cox, Holly Farabee and
Ronald Borders, with him on the briefs).

Robert L. Howard, of Foulston & Siefkin L.L.P., Wichita, Kansas (James M.
Armstrong, James D. Oliver, and Timothy B. Mustaine with him on the briefs) for
Appellees.

Before EBEL, McWILLIAMS, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

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I. INTRODUCTION

In June of 1983, a group of Koch Industries, Inc. (“KII”) stockholders

entered into a Stock Purchase Agreement (“SPA”) with KII. Under the SPA, the

selling stockholders (the “Plaintiffs”), who owned 47.8% of KII stock, received

$200 per share, a total value of approximately $1.1 billion. Two years later, the

Plaintiffs sued KII and individual KII officers (the “Defendants”), claiming the

Defendants misrepresented and omitted material facts during the negotiation of

the SPA, which resulted in the Plaintiffs’ undervaluation of KII stock. Thirteen

years later, the case finally went to trial. Following an eleven week trial, a jury

returned a verdict in favor of the Defendants. The Plaintiffs now appeal a host of

district court rulings, made both prior to and during trial.

Specifically, the Plaintiffs challenge the district court’s summary judgment

ruling; its construction, application, and unwillingness to vary the terms of the

pretrial order; various evidentiary rulings; jury instructions on state law claims;

the district court’s restrictions on the Plaintiffs’ fraud claims; its limitation of

damages; and, generally the trial court’s administration of this litigation. With

the exception of the district court’s jury instructions on two fraud claims premised

on Texas state law, this court affirms the judgment of the district court.

II. BACKGROUND

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 A. Factual Background

The subject of this dispute, KII, is the second largest privately-held

corporation in the United States. Based in Wichita, Kansas, KII owns an array of

energy-related operations in the United States and Canada. Specifically, KII’s

assets include oil refineries, service stations, pipelines, coal mines, oil and gas

exploration properties and processing plants, and a fleet of trucks. KII also owns

numerous ranches and several hundred Chrysler dealerships.

Originally named the Rock Island Oil and Refining Company, KII was

founded by Fred C. Koch, the father of plaintiffs William and Frederick Koch and

defendants Charles and David Koch. Fred Koch launched the company after

World War II, when his mentor, L.B. Simmons, sold a refinery and several

pipelines to Fred. In exchange, L.B. Simmons received stock and cash and he

soon purchased additional shares of Rock Island Oil and Refining.

L.B. Simmons’ stock eventually passed individually and in trust to the

following plaintiffs: Gay Roane, Holly Farabee, and Ronald Borders (the “Texas

Plaintiffs”), Ann Alspaugh, Paul Cox, and L.B. Simmons Energy, Inc.

(collectively, the “Simmons Family” 1). For decades, the Simmons Family elected

1
The “Simmons Family” includes the Texas Plaintiffs as well as Alspaugh,
Cox, and L.B. Simmons Energy, Inc.

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a director to KII’s Board of Directors. Those members of the Simmons family

involved in the instant suit are cousins to the four Koch brothers.

In 1966 and 1967, Fred Koch gave all his common shares of KII stock to

trusts created for his four sons, granting equal shares to plaintiff William and

defendants Charles and David, but a lesser amount to plaintiff Frederick. When

Fred Koch died in 1967, Charles succeeded his father as a director and chief

executive officer of KII, positions he retains today. David went to work for KII

in 1970 and presently serves as an executive vice-president and a director.

William joined KII full-time in 1974, becoming vice president of corporate

development five years later and continuously serving as a director from 1967 to

1983. Frederick, however, displayed substantially less interest in the company; he

was never a KII employee and did not place a representative on the board until

March of 1981.

In 1980, a dispute erupted over the management of KII, pitting William,

Frederick and the Simmons Family against Charles and David. During this

contentious power struggle, Charles and David purchased the 4 % of KII stock

owned by Howard Marshall III, the son of director J. Howard Marshall II. As a

result, the voting percentage of stock retained by William, Frederick and the

Simmons Family stood at 47.8 %, while Charles, David and the family of J.

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Howard Marshall II controlled 49.7 %, with employees and others owning the

balance. In addition, the Board voted to terminate William’s employment at KII.

At that point, KII began negotiating with William, Frederick and the

Simmons Family either to buy back some or all of their stock or to take KII public

and have the now dissident shareholders sell their stock on the public market.

Both sides then retained law firms and investment banking companies to represent

them in the negotiations. On behalf of the dissident shareholders, the investment

banking firm Goldman Sachs undertook an extensive valuation study of KII,

beginning in the spring of 1982.

These efforts culminated in the June 1983 SPA. Signed by all parties on

June 4, 1983, the SPA provided that William, Frederick and the Simmons Family

would sell their shares of KII common stock back to the company for $200 per

share. In addition, the selling shareholders received their pro rata interests in an

offshore oil concession. The SPA contained two relevant warranties by KII: The

first provided that all KII financial statements disclosed to the selling

shareholders had fairly presented KII’s financial condition and were prepared in

accordance with generally accepted accounting principles. The second warranty

promised that since December 31, 1982, the Defendants had provided all

information “which if fully disclosed might materially affect the valuation of

[KII] stock . . . .”

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 B. Procedural Background

In June of 1985, two years after signing the SPA, the selling shareholders

filed suit, claiming the Defendants had misrepresented or failed to disclose

material facts which, if properly provided, would have increased the Plaintiffs’

valuation of KII stock at the time of the SPA. Specifically, the complaint detailed

three alleged misrepresentations concerning KII’s oil and gas properties in the

Persian Gulf, Utah, and North Dakota and further alleged a general scheme to

conceal the true value of KII stock. The Plaintiffs asserted federal claims under

sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Securities

and Exchange Commission Rule 10b-5, and state claims for breach of fiduciary

duty, breach of warranty, and fraud. They requested actual damages of over $2

billion. The Defendants named in the action were KII; Charles and David Koch;

Sterling Varner, the president and a director of KII; Tom Carey, KII’s vice

president of finance; and Donald Cordes, KII’s vice president of legal affairs.

On November 5, 1986, the district court granted summary judgment in

favor of the Defendants on the Persian Gulf and Utah claims, but denied summary

judgment on the North Dakota claim. The district court also determined the

Plaintiffs’ allegation of a general scheme to conceal the value of stock failed to

meet the particularity requirement of Rule 9(b) of the Federal Rules of Civil

Procedure. After several failed attempts to bring the excluded claims before other

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fora, 2 in 1989 the Plaintiffs persuaded the district court to grant them leave to

amend their complaint, adding both general and specific allegations of fraudulent

accounting policies and practices. Based on this amended complaint, the

2
The Plaintiffs first filed a motion for reconsideration of the grant of
summary judgment and a motion for leave to amend their complaint to meet Rule
9(b)’s particularity requirement, but the district court denied these two motions.
The Plaintiffs then unsuccessfully petitioned this court for a writ of mandamus
compelling the district court to vacate the order denying them leave to amend.
See Koch v. Koch, 1988 WL 130669, at *2 (D.Kan., Nov. 4, 1988). Later that
year, the Plaintiffs brought a separate suit before another judge of the United
States District Court for the District of Kansas, again alleging fraud and
misrepresentation regarding the SPA. See Oxbow Energy, Inc. v. Koch Indus.,
Inc., 686 F.Supp. 278, 279-80 (D.Kan. 1988). The district court, however, granted
summary judgment to the Defendants, because it “required [the Plaintiffs] to
bring all claims of misrepresentation arising out of the [SPA] in one action.” Id.
at 282. In that order, the district court stated,

[T]he court cannot condone plaintiffs’ practice of running to a
different city within the district and filing a new case every time a
judge in a prior action makes a ruling adverse to that litigant’s
position. The court cannot be made a party to what is in effect an
appeal from Judge Crow’s ruling in the 1985 action.

Id. Finally, in 1988, in a suit brought by Charles and David Koch against William
Koch requesting specific performance of a sales contract concerning a coin
collection and real property, William counterclaimed, alleging he was excused
from performance due to Charles’ and David’s misrepresentations regarding the
SPA. See Koch, 1988 WL 130669, at *1-*2. Yet a third judge of the same
district court dismissed William’s counterclaim as precluded by the summary
judgment order issued in Oxbow Energy, Inc. v. Koch Indus., Inc. See Koch, 1988
WL 130669, at *3-*4. After reciting the above quoted language from the Oxbow
Energy summary judgment order, the district court concluded, “This counterclaim
is the third vehicle which defendant has used to raise the same issues . . . . This
court is even more emphatically unwilling to overrule the clear decisions of two
learned brothers.” Id. at *4.

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Plaintiffs then sought broad discovery from several non-parties, requests which a

magistrate judge and the district court strictly limited.

In 1993, the district court closed discovery. The Defendants then filed a

motion for summary judgment on all of the remaining claims. On July 11, 1997,

the district court issued its order, granting summary judgment to the Defendants

on several of the Plaintiffs’ claims. The district court, however, denied summary

judgment on one of the Plaintiffs’ accounting claims, which alleged the

Defendants failed to disclose that certain expenses were “unusual or infrequently

occurring.” In addition, the district court preserved the Plaintiffs’ claims that the

Defendants withheld information about two expansions of KII’s Pine Bend

Refinery in Minnesota. Just prior to trial the district court further ruled that

Texas law governed the Texas Plaintiffs’ state law fraud claims.

In 1998, an eleven week jury trial proceeded on the accounting and Pine

Bend claims. The jury eventually returned a verdict in favor of the Defendants.

With respect to the Pine Bend claims, the jury found that the Defendants had

withheld information but that their misrepresentations or omissions were not

material. It also found the Defendants had not breached their fiduciary duty,

because they disclosed all material facts and KII had paid a fair price for the

stock. On the accounting claim, the jury found the expenses at issue were not

infrequently occurring as defined by generally accepted accounting principles.

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 The Plaintiffs, including the Texas Plaintiffs, now challenge a litany of

district court rulings issued both before and during the trial. This court exercises

jurisdiction pursuant to 28 U.S.C. § 1291 and affirms in part and reverses in

part.

III. DISCUSSION

A. Pine Bend Claims

The Plaintiffs challenge two district court rulings relating to their claims

that, prior to the SPA, the Defendants withheld information about expansion plans

for KII’s Pine Bend Refinery. First, the Plaintiffs argue the district court

improperly granted summary judgment against the Plaintiffs on their claim that

the Defendants did not disclose KII’s plans to expand the refinery to a crude

processing capacity of 175,000 barrels per day (“B/D”). Second, the Plaintiffs

assert the district court erred by denying their motion to amend the Pretrial Order

to conform to evidence at trial indicating that just prior to the SPA, KII had plans

to increase the refinery’s capacity to 200,000 B/D.

1. Summary Judgment on the 175,000 B/D Claim

In a 1993 Pretrial Order, 3 the Plaintiffs asserted the following claim:

Although this 1993 Pretrial Order is not dated, file-stamped, or signed by
3

the District Judge, and does not set a date for the pretrial conference, the parties
(continued...)

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 As of the date of the stock sale, defendants knew but did not
inform the selling shareholders that KII already was increasing, and
making plans for further increasing, the crude processing capacity of
the Pine Bend Refinery to approximately 145,000 B/D by June 1983;
to approximately 155,000 B/D by the end of 1983; and to
approximately 175,000 B/D within the next two years thereafter.
. . . Defendants’ plans included delivering and selling the increased
Pine Bend output into existing and new market territories to be
accessed more effectively by the reversal of the direction of flow of
the Williams Pipeline and by other means.

1993 Pretrial Order, 9-10 (italics added) (underline in original). The Plaintiffs

sought to recover for these alleged omissions under the following legal theories:

(1) breach of contractual warranty; (2) breach of fiduciary duty; (3) common law

fraud; and (4) securities fraud. See id. at 16.

The Defendants moved for summary judgment on each of the 145,000,

155,000, and 175,000 B/D claims. The district court denied summary judgment

3
(...continued)
appear to have treated this proposed order as defining their claims and defenses
for purposes of the summary judgment motion. This court will similarly treat the
1993 Pretrial Order.
After the district court issued its summary judgment order in 1997, the
parties drafted a new pretrial order (“the 1998 Pretrial Order”) which reflected the
determinations made at summary judgment. Thus, the 1998 Pretrial Order looks
much like the 1993 Pretrial Order, except that it does not include those claims
which the district court had ruled insufficient as a matter of law. This 1998
Pretrial Order, which was subjected to the formalities normally required for such
orders, constituted the final pretrial order prior to trial and was used to measure
the dimensions of the trial. See infra note 9.

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on the 145,000 and 155,000 B/D claims, allowing those claims to go to trial, but

granted the Defendants’ motion on the 175,000 B/D claim.

In its summary judgment order, the district court first posed the issue in

these terms: “Is there enough evidence from which a reasonable jury could find

that as of June of 1983 KII had firm plans to expand Pine Bend’s capacity to

175,000 bpd within two years?” Summary Judgment Memorandum and Order,

July 11, 1997, at 127-28 (emphasis added). In answering this question, the

district court went on to rule,

The court believes a reasonable jury could not find that the
defendants in June of 1983 had reasonably firm or definite plans to
expand Pine Bend’s capacity to 175,000 bpd within two years. At
most, the evidence sustains the inference that [KII] officials believed
in early 1983 that the economic forecasts and other projections were
sufficiently favorable that they should reconsider now increasing
refinery capacity under two previously defined cases. . . . The
plaintiffs do not submit any evidence from which one can reasonably
infer that as of the SPA the defendants had already decided on a
specific schedule for expanding refinery capacity regardless of [the
engineering firm] Litwin’s engineering results and cost summaries.
Instead, the evidence overwhelmingly indicates that the defendants
remained uncertain about the timing, amount and type of any
expansion and that any decision to expand remained contingent on
among other things, Litwin’s results. The mere decision to consider
refinery expansion and to set parameters for estimating costs is not
what the plaintiffs allege in this claim. They allege that the
defendants planned to expand the refinery to 175,000 bpd within two
years. Quite simply, the plaintiffs do not come forth with the
evidence to sustain this allegation of “planned” expansion.

Id. at 128-29 (emphasis added).

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 The Plaintiffs appeal this decision on two grounds. First, the Plaintiffs

contend the district court erroneously required evidence of “firm” or “definite”

plans, even though neither the Plaintiffs’ claim in the Pretrial Order nor the

controlling law on any of their legal theories uses those terms. Second, the

Plaintiffs assert that a reasonable jury could find that the evidence supported the

exact claim articulated in the Pretrial Order, i.e., KII was “making plans” for a

175,000 B/D expansion.

This court reviews a district court’s grant of summary judgment de novo.

See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1175 (10th Cir. 1999).

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). “When applying

this standard, we view the evidence and draw reasonable inferences therefrom in

the light most favorable to the nonmoving party.” Simms v. Oklahoma ex rel.

Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th

Cir.), cert. denied, 120 S.Ct. 53 (1999). This court has held that failure of proof

of an essential element renders all other facts immaterial. See Treff v. Galetka, 74

F.3d 191, 195 (10th Cir. 1996). Thus, to succeed on summary judgment on the

175,000 B/D claim, the Defendants must demonstrate that no material facts

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regarding this claim, or at least regarding any essential element of the claim, are

in dispute and that these undisputed facts fail to prove as a matter of law any

essential element of the claim.

In Air-Exec Inc. v. Two Jacks Inc., this court noted that when parties to a

lawsuit fail to object to or move to amend a pretrial order, that order “measures

the dimensions of the lawsuit both in the trial court and on appeal.” 584 F.2d

942, 944 (10th Cir. 1978); see also Fed. R. Civ. P. 16(e) (the pretrial order “shall

control the subsequent course of the action unless modified by a subsequent

order”). For purposes of summary judgment, therefore, the pretrial order coupled

with the governing law establish the quantum of evidence required for the

Plaintiffs to survive the Defendants’ summary judgment motion on the 175,000

B/D claim.

In the 1993 Pretrial Order, the Plaintiffs asserted KII was “making plans”

to expand the refinery’s crude capacity to 175,000 B/D by the end of 1985. As

this order plots the dimensions of the Plaintiffs’ claim, they must reference

sufficient record evidence for this court to conclude a reasonable jury could find

KII was “making plans” for this 175,000 B/D expansion by the end of 1985.

Additionally, although each of the Plaintiffs’ four legal theories impose upon the

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Defendants slightly different disclosure standards, 4 this court can look to the least

burdensome of these standards to determine whether any of the claims should

have gone to trial. Among these four slightly different disclosure standards, the

least rigorous for the Plaintiffs is that flowing from their breach of warranty

claim. Thus, in order for even the warranty claim to survive summary judgment,

this court, viewing the evidence before the district court at summary judgment in

a light most favorable to the Plaintiffs, must answer the following three questions

in the affirmative. (1) Could a reasonable jury find that at the time of the SPA,

KII was making plans to expand Pine Bend’s crude refining capacity to 175,000

4
Due to the terms of the SPA, the breach of warranty claim requires the
Plaintiffs to prove a failure to disclose any “event, condition, or state of facts . . .
which if fully disclosed might materially affect the valuation of stock of [KII] by
a prudent and knowledgeable investor . . . .” SPA, § 5(d) (emphasis added).
Under their breach of fiduciary duty claim, the Plaintiffs must demonstrate that
the Defendants withheld some facts affecting the value or price of stock or any
other matters which would tend to increase the value of the corporation’s stock.
See Sampson v. Hunt, 564 P.2d 489, 492 (Kan. 1977). The common law fraud
claim requires the Plaintiffs to show KII knowingly or recklessly withheld
information to which a reasonable person would attach importance in determining
at what price to sell KII stock, and that Plaintiffs did in fact rely on this non-
disclosure to their detriment. See McGuire v. Gunn, 300 P. 654, 656 (Kan. 1931)
(defining common law fraud); Griffith v. Byers Constr. Co., 510 P.2d 198, 205
(Kan. 1973) (establishing when an omission or non-disclosure constitutes a
material fact for purposes of common law fraud). Finally, to succeed on their
securities fraud claim, the Plaintiffs must show a substantial likelihood the non-
disclosed information would have been viewed by a reasonable investor as having
significantly altered the total mix of information made available. See 17 CFR §
240.10b-5 (defining securities fraud under Rule 10b-5 of the Securities Exchange
Act of 1934); Basic Inc. v. Levinson, 485 U.S. 224, 231 (1988) (establishing when
a fact is material under 10b-5).

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B/D by the end of 1985? (2) If so, did KII withhold this information from the

Plaintiffs prior to the SPA? (3) Might knowledge of this information materially

affect the valuation of KII stock by a prudent and knowledgeable investor?

Without needing to address the last two of these three inquires, this court

concludes that a reasonable jury could not have found KII was making plans for a

175,000 B/D expansion at the time of the SPA. In reaching this determination,

we have reviewed all of the record evidence which might support the Plaintiffs’

claim, though this court is not obligated to locate or inspect materials not

referenced by the parties in their briefs. 5 See Adler v. Wal-Mart Stores, 144 F.3d

664, 672 (10th Cir. 1998); see also Gamble, Simmons & Co. v. Kerr-McGee

Corp., 175 F.3d 762, 773 n.5 (10th Cir. 1999) (“In the absence of sufficient

citation to record support for a party’s allegations, we decline to search for the

proverbial needle in a haystack.”).

The crux of the Plaintiffs’ 175,000 B/D expansion claim is this: as far as

the Plaintiffs knew, at the time of the SPA the Pine Bend Refinery utilized two

crude units, No. 1 having a capacity of approximately 40,000 B/D and No. 2

having a capacity of approximately 90,000 B/D, for a total capacity of

approximately 130,000 B/D. Unbeknownst to the Plaintiffs, however, KII was in

5
Attached as an appendix to this opinion is a detailed list and discussion
of the relevant evidence. See infra Appendix.

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the process of revamping unit No. 2 to a capacity of 110,000 B/D, while also

working with Litwin Engineering (“Litwin”) either to expand No. 1 to a 65,000

B/D capacity or to replace No. 1 with a new unit with a 65,000 B/D capacity. The

Litwin project, combined with the revamp of unit No. 2, would allegedly result in

a total capacity of 175,00 B/D, all of which information the Plaintiffs claim the

Defendants hid from them prior to the SPA.

In opposing summary judgment on the 175,000 B/D claim, the Plaintiffs

also rely heavily upon evidence that KII had struck a deal with the Williams

Pipeline Company to reverse the flow of the Williams pipeline, but failed to

inform the Plaintiffs of that agreement. The Plaintiffs maintain that the Williams

reversal provided KII access to new markets for gasoline, thus indicating a plan to

increase crude production capacity to 175,000 B/D. Evidence of general market

expansion, however, does not specifically support the Plaintiffs’ discrete claims

for crude production expansion to 145,000; 155,000; 175,000; or 200,000 B/D.

Indeed, to succeed on each of these claims, the Plaintiffs must direct this court to

evidence of distinct plans to expand production capacity to each specifically

alleged number of barrels per day, independent of evidence demonstrating efforts

to expand general markets. When the Plaintiffs’ stated claims so discretely

reference 145,000 B/D, 155,000 B/D, and 175,000 B/D and further include

anticipated dates of accomplishment for each expansion, they must provide

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evidence differentiating between the three claims. With respect to the 175,000

B/D claim, therefore, the Plaintiffs need to demonstrate evidence of the alleged

plan through Litwin to expand Pine Bend’s crude production capacity to 175,000

B/D. 6

Viewing the relevant evidence in a light most favorable to the Plaintiffs,

this court concludes that a reasonable jury could not find that prior to the SPA KII

was making plans to expand Pine Bend’s crude production to 175,000 B/D. At

most, KII was merely contemplating this expansion possibility. Although the

evidence does not reveal definitively whether KII ever contracted with Litwin to

conduct design and cost studies for this possible expansion, this court concludes

that a reasonable jury could infer such a contract existed and even that Litwin

performed this work. What a reasonable jury could not find, however, is that

The Appendix to this opinion, therefore, does not include any evidence of
6

the alleged secret deal to reverse the Williams pipeline. See infra Appendix. The
summary judgment order did not in fact preclude introduction of such evidence,
because, as discussed above, that evidence also was relevant to the 145,000 and
155,000 B/D claims; indeed, the Plaintiffs presented such evidence at trial.
Similarly, the Appendix does not include the “doom and gloom” evidence
which the Plaintiffs contend is also relevant to the 175,000 B/D claim. See infra
Appendix. In short, the Plaintiffs allege the Defendants, while secretly planning
for these expansions, communicated to the Plaintiffs dire predictions about the
economic future of the refinery. This court need not consider such evidence to
determine whether the Plaintiffs presented a material issue of fact regarding the
existence of a 175,000 B/D expansion plan, because this evidence really bears on
the separate issue of whether the Defendants withheld information about the
alleged expansion. As stated above, this court need not address that question.

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KII’s contracting with Litwin to perform preliminary design and cost studies rises

to the level of KII’s making plans for this expansion. According to Merriam-

Webster’s Collegiate Dictionary, “to make plans” is synonymous with “to plan,”

which is defined as “to devise or project the realization or achievement of.”

Merriam-Webster’s Collegiate Dictionary (10th ed., 1993) (emphasis added). “To

study,” however, merely means “to consider attentively or in detail.” Id.

(emphasis added). Resort to dictionaries thus confirms that which common

parlance indicates: “studying” is not “planning,” and, in this case, the term

“making plans” connotes a higher level of commitment to the expansion than

mere evidence of initial cost and design studies indicate.

Moreover, the totality of the remainder of the evidence provides an even

stronger sense that KII’s approach to this potential 175,000 B/D expansion was

rather tentative, at least at the time of the SPA. In November of 1983, five

months after the SPA, KII announced plans for a more aggressive expansion to

over 200,000 B/D, a plan predicated on an entirely different technical approach

than the ones studied by Litwin to effectuate the 175,000 B/D expansion. This

approximately 200,000 B/D expansion envisioned adding a third crude processing

unit, as opposed to the options studied by Litwin of either replacing or upgrading

existing unit No. 1. Despite the 200,000 B/D expansion announcement, one

month later KII was still merely considering the lesser, intermediate step of

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expanding to 175,000 B/D, as evidenced by an announcement at the December

1983 Board of Directors Meeting that KII was continuing to analyze the technical

and economic feasibility of the 175,000 B/D expansion options studied by Litwin.

It was only in February 1984, eight months after the SPA, that KII apparently

committed in any way to an approximately 175,000 B/D expansion. 7 In sum, the

evidence before the district court at summary judgment, viewed in a light most

favorable to the Plaintiffs, shows at most that KII was considering an expansion

to 175,000 B/D when the parties signed the SPA, but it does not demonstrate that

KII was actually making plans for this expansion, as the Plaintiffs alleged in the

Pretrial Order. Thus, this court affirms the district court’s grant of summary

judgment for the Defendants on the 175,000 B/D expansion claim.

Alternatively, the evidence in no way establishes KII had firm plans for a

175,000 B/D expansion at the time of the SPA and, although the district court

erred in requiring evidence of such firm plans, the Plaintiffs invited this error and

thus cannot appeal it. This court has long recognized the equitable doctrine of

invited error. See United States v. Johnson, 183 F.3d 1175, 1179 n.2 (10th Cir.

1999); Air Exec., 584 F.2d at 944. “The Invited Error doctrine prevents a party

7
This February 1984 commitment, however, was actually to expand Pine
Bend’s crude capacity merely to 170,000 B/D, something less than the amount
pleaded by the Plaintiffs.

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from inducing action by a court and later seeking reversal on the ground that the

requested action was error.” Johnson, 183 F.3d at 1178-79 n.2.

Here, the Plaintiffs induced the district court at the summary judgment

stage to view their claim as asserting KII had made “firm plans” for a 175,000

B/D expansion. Both the Plaintiffs’ expert witness, in his report, and their Brief

in Opposition to the Defendants’ Motion for Summary Judgment stated KII had

“firm plans” for this expansion in June of 1983. One important purpose of

written briefs and expert opinion evidence is to focus the court’s attention on the

specific nature of the legal theories and factual allegations at issue in a case. By

claiming these “firm plans,” the Plaintiffs themselves induced the district court to

focus on whether KII had made such firm plans. Cf. Air Exec., 584 F.2d at 944

(holding defendants could not appeal an inferential admission they had made in

the Pretrial Order, as the Pretrial Order “measures the dimensions of the

lawsuit”).

This court acknowledges that it is the Pretrial Order which measures the

dimensions of a lawsuit, and not a summary judgment brief or an expert’s

testimony, and therefore the district court erred in requiring evidence of “firm

plans” rather than “making plans.” Nonetheless, the Plaintiffs induced the district

court into making this error, and thus they cannot challenge this heightened

evidentiary requirement on appeal. Because the evidence before the district court

-21-
on summary judgment, viewed in a light most favorable to the Plaintiffs, provides

no indication whatsoever that KII had made firm plans to expand Pine Bend to

175,000 B/D at the time of the SPA, this court affirms the district court’s grant of

summary judgment.

2. The Motion to Amend the Pretrial Order to Add a 200,000 B/D
Expansion Claim

At the close of their case, the Plaintiffs moved to amend the Pretrial Order

to conform to the evidence, asserting the Defendants had impliedly consented to

the trial of a new claim: that the Defendants failed to disclose KII’s pre-SPA plan

to expand Pine Bend’s capacity to 200,000 B/D. The district court denied that

motion for several reasons. First, it resolved that the evidence at trial presented

no new issues at all, but instead was the same evidence the Defendants presented

at summary judgment to show the Plaintiffs always knew about KII’s ideas for

expansion. The district court thus concluded the Defendants did not consent to

the trial of a new claim. Second, the district court reasoned that because the

subject evidence was also relevant to the claims already being tried, the Plaintiffs

could not rely on that evidence to amend the Pretrial Order in conformity with the

evidence. Third, the district court determined its reasoning for granting the

Defendants summary judgment on the 175,000 B/D claim applied with equal force

to any possible 200,000 B/D claim. Finally, the district court concluded that

forcing the Defendants to defend this new claim would unfairly disadvantage

-22-
them. This court reviews the district court’s denial of the motion to amend for an

abuse of discretion. See Trierweiler v. Croxton & Trench Holding Corp, 90 F.3d

1523, 1543 (10th Cir. 1996).

During defense counsel’s cross-examination of William H. Hanna, the

President of KII at the time of trial, Hanna stated the following:

We really wanted very badly to do this, to be able to reverse [the
Williams] pipeline, because we could see – as you’ve heard earlier,
starting in ‘76 there was more product, more product, more product.
We weren’t naive. We knew we were heading to 200,000 barrels a
day so we were looking for every outlet.

Later in the trial, the following exchange occurred between defendant David Koch

and Plaintiffs’ counsel during their direct examination:

Q: Did you know in the fall of 1982 that the Pine Bend Refinery was
heading to 200,000 barrels a day?
A: Yes, Bernie Paulson had been talking about expanding the
refinery to that number for many years.
Q: This was the – Paulson starting talking about this –
A: Yeah, in the 1970[s].
Q: – in the 1970[s]. ‘70s. He’d advocated 200,000. Right?
A: Well, it was a long-term objective, yes.
...
Q: That you, David Koch, then did know in the fall of 1982 that the
company was heading to 200,000 barrels a day?
A: Yes, at some distant point in the future. I mean, we were trying to
get there eventually.
...
A: The 200,000 barrels a day was in the future. Now, I don’t think
we had any idea of – during the early 80s at what point we were
going to reach 200,000 barrels a day, but it was almost certain that
sooner or later we were going to get there.

-23-
In addition, Plaintiffs’ counsel questioned both Bernard Paulson and William

Koch about this alleged 1982 plan for expansion to 200,000 B/D.

The Plaintiffs contend that by eliciting Hanna’s testimony and failing to

object to the other testimony, the Defendants impliedly consented to the trial of a

new claim, i.e., that the Defendants failed to disclose to the Plaintiffs KII’s

200,000 B/D expansion plan. Because of this implied consent, the Plaintiffs

argue, the district court erred by denying them leave to amend the pretrial order to

include this additional claim.

Federal Rule of Civil Procedure 15(b) provides:

When issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in all respects as
if they had been raised in the pleadings. Such amendment of the
pleadings as may be necessary to cause them to conform to the
evidence and to raise these issues may be made upon motion of any
party at any time, even after judgment . . . .

Fed. R. Civ. P. 15(b). A party impliedly consents to the trial of an issue not

contained within the pleadings either by introducing evidence on the new issue or

by failing to object when the opposing party introduces such evidence. See

Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 457 (10th Cir. 1982).

Contrary to the Plaintiffs’ characterization of Hanna’s and David Koch’s

testimony, the Defendants neither introduced evidence on a new issue nor failed

to object to that type of evidence. Indeed, this testimony presented anything but a

new issue. Both before and during the course of this litigation, the Plaintiffs were

-24-
fully aware that beginning in 1977, KII President Bernard Paulson had lobbied to

expand Pine Bend to a capacity of 200,000 B/D. The Defendants presented

evidence at summary judgment demonstrating the Plaintiffs possessed knowledge

of Paulson’s aspiration to expand Pine Bend’s capacity to 200,00 B/D. See 6A

Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1527, at

287-89 (1990) (“[I]f the evidence or issue was within the knowledge of the party

seeking modification [of the pretrial order] at the time of the [pretrial conference]

. . . then it may not be allowed.”) Moreover, in both the 1993 and 1998 Pretrial

Orders, the Defendants attempted to refute the Plaintiffs’ non-disclosure claim by

contending that the Plaintiffs were aware of KII’s engagement in a process for

expansion. Thus, this longstanding objective to expand Pine Bend to a 200,000

B/D capacity was both known by the Plaintiffs and raised in the pleadings.

The Plaintiffs now argue that prior to the early 1980's, KII had abandoned

Paulson’s idea for expansion, and therefore, the trial testimony pointed to some

new 200,000 B/D expansion plan first proposed in 1982 and about which the

Defendants were not informed. The only fair, contextual reading of the

testimony, however, does not support the Plaintiffs’ interpretation. Both Hanna

and David Koch unequivocally stated that this 1982 200,000 B/D expansion

objective had originated with Paulson back in 1976. Therefore, the district court

-25-
did not abuse its discretion in concluding that the Defendants had not consented

to the trial of an issue not raised in the pleadings.

In addition, Hanna’s and David Koch’s testimony about the 200,000 B/D

expansion plan was relevant to issues already being tried. “When the evidence

claimed to show that an issue was tried by consent is relevant to an issue already

in the case, and there is no indication that the party presenting the evidence

intended thereby to raise a new issue, amendment may be denied in the discretion

of the trial court.” Hardin, 691 F.2d at 457; see also Dole v. Mr. W Fireworks,

Inc., 889 F.2d 543, 547 (5th Cir. 1989) (“The evidence that [plaintiff] alleges to

have shown implied consent was also relevant to the other issues at trial and

cannot be used to imply consent to try the present issue.” (emphasis in original)).

The Plaintiffs’ awareness of all KII’s ideas for expanding Pine Bend was relevant

to whether the Plaintiffs were unaware of the purported 145,000 and 155,000 B/D

expansions, claims that were being tried. Undoubtedly, that is why defense

counsel elicited this testimony, not because the Defendants intended to raise a

new issue. The Defendants were merely attempting to demonstrate that KII

embraced a healthy corporate philosophy to act aggressively, move ahead, and

increase market share, a philosophy of which the Plaintiffs were aware. The

evidence regarding the 200,000 B/D expansion goal was introduced simply to

illustrate the Plaintiffs’ knowledge of that philosophy and thus of the two lesser

-26-
expansions, not to inject evidence of a specific or discrete plan, as argued by the

Plaintiffs. The district court, therefore, did not abuse its discretion in denying the

Plaintiffs’ motion to amend the Pretrial Order.

Alternatively, the Plaintiffs argue that even if the Defendants did not

consent to trial of a 200,000 B/D expansion claim, the district court still should

have granted the Plaintiffs’ motion to amend the Pretrial Order because the

Defendants failed to show that they would be prejudiced by the trial of the new

claim. 8 This argument, however, relies on an incorrect interpretation of the

district court’s reasoning. The district court did not conclude merely that the

Defendants failed to consent, but also that the evidence at issue presented no new

claim. Although Rule 15(b) does allow a court, under certain circumstances, to

8
Federal Rule of Civil Procedure 15(b) provides,

If evidence is objected to at the trial on the ground that
it is not within the issues made by the pleadings, the
court may allow the pleadings to be amended and shall
do so freely when the presentation of the merits of the
action will be subserved thereby and the objecting party
fails to satisfy the court that the admission of such
evidence would prejudice the party in maintaining the
party’s action or defense upon the merits.

Fed. R. Civ. P. 15(b); see also Hardin v. Manitowoc-Forsythe Corp., 691 F.2d
449, 457 (10th Cir. 1982) (“Even where there is no consent, and objection is made
at trial that evidence is outside the scope of the pretrial order, amendment may
still be allowed unless the objecting party satisfies the court that he would be
prejudiced by the amendment.”).

-27-
amend pleadings to conform to evidence even when the opposing party objected

to that evidence, application of any portion of Rule 15(b) is appropriate only

when an issue “not raised by the pleadings” has, in fact, been presented. Fed. R.

Civ. P. 15(b). As discussed above, the district court did not abuse its discretion

in concluding the testimony about the longstanding aspiration to expand Pine

Bend to 200,000 B/D presented no issues not raised in the pleadings, both because

the Plaintiffs were previously aware of this evidence and because this evidence

was relevant to other issues already being tried. Rule 15(b), therefore, does not

apply at all to this testimony, and this court need not undertake a Rule 15(b)

prejudice analysis with respect to that testimony. Thus, we affirm the district

court’s denial of the Plaintiffs’ motion to amend the pleadings to conform to the

evidence.

B. Accounting Claims

During discovery, the Plaintiffs obtained, for the first time, a document

entitled “Extraordinary Items 1982,” a list of company expenses and other

accounting items from 1982 prepared by KII’s controller, Milton Hall. After

discovering the existence of Hall’s list, the Plaintiffs were granted leave of court

to amend their complaint, adding allegations about KII’s accounting treatment of

the items on Hall’s list. They contended the Defendants’ 1982 financial

-28-
statements, upon which the Plaintiffs relied when valuing KII stock for the SPA,

failed to identify the items on Hall’s list as non-recurring. Because these

expenses were, according the Plaintiffs, actually non-recurring in nature, the

Plaintiffs undervalued the company by approximately $283 million.

The Plaintiffs sought recovery for these alleged mischaracterizations as a

violation of both the Full Disclosure and the Generally Accepted Accounting

Principles (“GAAP”) warranties contained in the SPA, as well as the Defendants’

fiduciary duty of full disclosure. With respect to these accounting claims, the

Plaintiffs raise three issues on appeal: (1) whether the district court improperly

required the Plaintiffs to prove, as a predicate for all of their accounting claims,

that these expenses were “unusual” or “infrequently occurring” as defined by

GAAP; (2) whether the district court abused its discretion by failing to amend the

1998 Pretrial Order 9 to make clear that the accounting claims did not hinge on

the jury’s finding the items were “unusual” or “infrequently occurring” as defined

by GAAP; and (3) whether the district court erroneously denied the Plaintiffs an

opportunity to present certain rebuttal testimony to the defense theory on these

claims.

9
Unlike the 1993 Pretrial Order, this order was file-stamped, signed by the
district court, and subject to a Pretrial Conference. See supra note 3. Indeed, this
was the final Pretrial Order prior to trial, which incorporated the summary
judgment rulings and ultimately controlled the course of the trial.

-29-
 1. Requiring Proof of “Unusual” or “Infrequently Occurring” Losses
Under GAAP

In the 1998 Pretrial Order, the Plaintiffs set forth the following claims:

KII employed accounting methods that were designed
intentionally to understate KII’s earnings and assets in the financial
statements. . . .
To diminish its apparent earnings, KII therefore employed the
following accounting practice which violated GAAP and constituted
breaches of both warranties in the Stock Purchase and Sale
Agreement (quoted above): KII failed to disclose its unusual and/or
infrequently occurring losses. KII categorized these losses as
recurring expenses or depreciation, thereby artificially reducing what
appeared to be KII’s ordinarily recurring income.

(emphasis added)

Later that year, in ruling on a defense motion in limine seeking to exclude

some of the Plaintiffs’ expert testimony on the accounting claims, the district

court responded to the parties’ arguments about the parameters of these claims:

“If the plaintiffs intend to pursue an allegation that the defendants failed to

disclose information on items that are neither unusual or infrequently occurring

under GAAP, then the court rules that such an allegation or theory is outside the

plaintiffs’ accounting claim as pleaded in the pretrial order . . . .” The district

court looked to the 1998 Pretrial Order, which articulated only one factual basis

for the Plaintiffs’ accounting claim regarding these expenses: “KII failed to

disclose its unusual and/or infrequently occurring losses.” Additionally, the

district court noted the Plaintiffs “chose to define these losses with accounting

-30-
parlance borrowed from GAAP.” Thus, the district court concluded the Plaintiffs

must prove the Defendants failed to disclose “unusual” or “infrequently

occurring” items, as defined by GAAP, to prevail on their accounting claims and

therefore excluded any expert testimony on disclosure requirements for losses that

were not “unusual and/or infrequently occurring.”

At trial, Alfred Eckert, a former Goldman Sachs investment banker who led

the team hired by William Koch to value KII for purposes of the SPA, explained

that when valuing a company’s stock, he would add back into the company’s

earnings certain non-recurring losses. He further testified that his decision to add

back these items depended not on generally-accepted accounting principles, but

simply on whether, in his opinion, the losses likely would recur. On the

Defendants’ motion and over the Plaintiffs’ objection, the district court then

instructed the jury that the “plaintiffs’ accounting claim is limited to the

defendants’ failure to disclose items that are unusual and/or infrequently

occurring as those terms are defined by [GAAP]” and to disregard Eckert’s

testimony addressing the treatment of non-recurring items that do not fall within

these definitions. The district court also issued an order (the “May 12, 1998

Order”) consistent with these instructions resolving that the accounting claims

were predicated on the Plaintiffs’ ability to prove the losses at issue were unusual

or infrequently occurring under GAAP. Finally, both the instructions which the

-31-
court gave the jury at the close of the trial and the jury’s verdict form all

indicated that to prevail on their accounting claim, under any legal theory, the

Plaintiffs were required to prove the Defendants failed to disclose infrequently

occurring losses as defined by GAAP.

On appeal, the Plaintiffs challenge the district court’s orders and actions

hinging their accounting claims on proof that the items at issue were unusual or

infrequently occurring as defined by GAAP. This court reviews for abuse of

discretion a district court’s exclusion of evidence or issues from trial on the basis

of a properly-drawn, detailed pretrial order. See Grant v. Brandt, 796 F.2d 351,

355 (10th Cir. 1986).

It is first important to note that the failure to disclose “unusual and/or

infrequently occurring losses” constitutes the sole factual basis pleaded by the

Plaintiffs in the 1998 Pretrial Order to support their claims regarding the

Defendants’ accounting treatment of KII expenses. Because a pretrial order

defines the scope of an action for trial, the Plaintiffs were thus obligated to prove

this one specific factual contention to prevail on their accounting claims. See

Fed. R. Civ. P. 16(e) (A pretrial order entered after a pretrial conference “shall

control the subsequent course of the action unless modified by a subsequent

order.”); Trujillo v. Uniroyal Corp., 608 F.2d 815, 817 (10th Cir. 1979) (“When

issues are defined by the pretrial order, they ought to be adhered to in the absence

-32-
of some good and sufficient reason.”) (citation and internal quotation marks

omitted). The question then is whether the district court properly determined the

Plaintiffs needed to prove the losses were unusual or infrequently occurring as

defined by GAAP, or whether infrequent occurrence under some other standard

would have sufficed.

As the Plaintiffs point out, this court has recognized that a pretrial order

“should be ‘liberally construed to cover any of the legal or factual theories that

might be embraced by [its] language.’” Trujillo, 608 F.2d at 818 (quoting

Rodriguez v. Ripley Indus., Inc., 507 F.2d 782, 787 (1st Cir. 1974)). A careful

reading of this court’s cases reviewing trial courts’ construction of pretrial orders,

however, reveals that a district court may more strictly construe a pretrial order

when that order has been refined over time, properly drawn, and drafted with

substantial specificity. See, e.g., Cleverock Energy Corp. v. Trepel, 609 F.2d

1358, 1361-62 (10th Cir. 1979) (affirming trial court’s exclusion of breach of

fiduciary duty issue as beyond the scope of the pretrial order when the objecting

party “failed to take timely advantage of an opportunity to enlarge upon the

general terms used in the order”); Rigby v. Beech Aircraft Co., 548 F.2d 288, 291-

92 (10th Cir. 1976) (affirming trial court’s exclusion of evidence of defects in 40-

gallon fuel cells of airplane when the plaintiffs’ answers to interrogatories and the

pretrial order consistently alleged defects only in the plane’s 31-gallon fuel cells).

-33-
On the other hand, this court has more liberally construed pretrial orders when the

orders are not drafted with substantial care and specificity. See, e.g., Whalley v.

Sakura, 804 F.2d 580, 582-83 (10th Cir. 1986) (liberally construing pretrial order

when “pretrial order . . . stated the claims of the plaintiff in general terms”);

Trujillo, 608 F.2d at 817-19 (broadly construing a pretrial order that was “not

properly drawn, [was] not definitive, specific, complete or detailed”).

In Cleverock Energy this court elaborated on the reasons for allowing two

divergent approaches to construing pretrial orders:

This court is acutely aware of the evils of the inflexible application
of a pretrial order. These evils are aggravated when the pretrial
order is unrefined. We recently held [in Trujillo] that a coarse
pretrial order could not be narrowly applied to exclude one of three
subtheories fairly encompassed within its general terms. However,
we should not lose sight of the important policies behind the pretrial
order mechanism, i.e., the narrowing of issues to facilitate an
efficient trial and to avoid surprise.

Cleverock Energy, 609 F.2d at 1361-62 (citations omitted). Ultimately, the court

held, “We cannot in these circumstances conclude that the trial judge, who

presided over the pretrial conferences of this extensive litigation and had before

him the pleadings, motions and various pretrial statements of the parties, abused

his discretion in striking the . . . issue as beyond the scope of the litigation.” Id.

at 1362. In sum, while pretrial orders generally should be construed liberally, a

district court may more strictly construe such an order when the party favoring a

-34-
liberal construction has had ample opportunity to refine the order and when the

final order is properly drawn and substantially specific.

The Plaintiffs do not allege that the 1998 Pretrial Order was improperly

drawn. Indeed, a pretrial conference was held on August 25, 1997, after which a

proposed order was drafted. See Fed. R. Civ. P. 16(d). The district court signed

the 1998 Pretrial Order on February 6, 1998. See Fed. R. Civ. P. 16(e). Further,

this court has noted a proper pretrial order is “definitive,” “sharpen[s] and

simplifie[s] the issues to be tried,” and “represents a complete statement of all the

contentions of the parties.” Trujillo, 608 F.2d at 817 (citations and internal

quotations omitted). The 1998 Pretrial Order in this case fits that bill, as many

years of draft pretrial orders, district court orders, and discovery served to focus

the legal and factual contentions of the parties and culminated in this final pretrial

order. Additionally, because numerous draft pretrial orders were produced over

the many years of this litigation, the Plaintiffs cannot claim that they lacked

opportunities to draft the order to clearly encompass their claims. Because the

1998 Pretrial Order was properly drawn, with relative specificity and

definitiveness, and because the Plaintiffs had ample opportunity to refine the

order, the district court was not required to afford the Plaintiffs overly-generous

leeway in its construction of their accounting claims.

-35-
 Indeed, a contextual reading of the 1998 Pretrial Order leads this court to

conclude that the district court did not abuse its discretion in determining that the

Plaintiffs’ accounting claims predicated recovery on their ability to prove the

losses at issue were unusual or infrequently occurring as defined by GAAP.

Again, the 1998 Pretrial Order frames this accounting claim in the following

terms: “To diminish its apparent earnings, KII therefore employed the following

accounting practice which violated GAAP and constituted breaches of both

warranties in the Stock Purchase and Sale Agreement (quoted above): KII failed

to disclose its unusual and/or infrequently occurring losses.” (emphasis added).

As the district court noted in its May 12, 1998 order, the words “unusual and/or

infrequently occurring” are terms of art used in GAAP literature, which the

Plaintiffs earlier referenced at the summary judgment stage. Furthermore, this

lone factual allegation mentioning unusual and infrequently occurring losses

immediately follows a portion of the sentence which asserts a GAAP violation.

To support their reading of the 1998 Pretrial Order, the Plaintiffs point to

the conjunction “and” between the asserted GAAP violation and the alleged

breaches of two warranties, as well as the reference to “both warranties.” This

language, however, bolsters, rather than subverts, the district court’s construction

of the pretrial order. The first of the two referenced warranties (the “GAAP

Warranty”) warranted that the financial statements disclosed to the Plaintiffs as of

-36-
December 31, 1981 and December 31, 1982 “fairly present the . . . financial

condition . . . of . . . [KII] . . . in accordance with generally accepted accounting

principles . . . .” The second warranty (the “Full Disclosure Warranty”) stated

that since December 31, 1982, the Defendants had provided all information

“which if fully disclosed might materially affect the valuation of the stock of

[KII] . . . .” Although only the first of these warranties explicitly required GAAP

compliance, by pleading that the Defendants’ accounting practices violated GAAP

“and” “both warranties,” the Plaintiffs appear to assert that because these

practices violated GAAP they necessarily violated the Full Disclosure Warranty as

well as the GAAP Warranty. Otherwise, the initial reference to the GAAP

violation which precedes the word “and” would be superfluous, given the factual

allegation using GAAP terminology which follows. Thus, the claim ties GAAP

requirements to both warranties, as well as to the words “unusual” and

“infrequently occurring.”

Similarly, this court rejects the Plaintiffs’ argument that because they

separately pleaded breach of fiduciary duty, along with breach of these two

warranties, the court should not read the words “unusual” and “infrequently

occurring” as GAAP terms of art when applied to their breach of fiduciary duty

claim. In its May 12, 1998 order, the district court responded to this argument:

“There is no reasonable construction of this pretrial order that is so liberal as to

-37-
permit a court to read terms of art in the same sentence as having two different

meanings simply because the party subsequently asserts an alternative legal

theory.” This court concurs with that assessment. Further, as the district court

noted in that May 12 order, the Plaintiffs failed to exercise their drafting

prerogative to include a different, alternative, or additional definition in the

Pretrial Order. Instead, they effectively expressed their satisfaction to be bound

by the GAAP definition.

Finally, in analyzing the 1998 Pretrial Order, the district court properly

considered the parties’ motions, briefs, and arguments regarding the accounting

claims that came before it throughout the thirteen years in which that court

presided over this litigation. The district court stated, “[T]he plaintiffs did not

allude during the summary judgment proceedings to any position that their two

legal theories on the accounting claim were based on alternative meanings to

‘unusual and/or infrequently occurring losses.’” The record bears out the

accuracy of this statement. For example, in its Memorandum in Opposition to

the Defendant’s Motion for Summary Judgment, the Plaintiffs assert, “Thus, Koch

. . . failed – contrary to GAAP – to disclose its 1982 writeoffs as unusual, non-

recurring expenses.” (emphasis added).

In conclusion, this court holds that the district court, with its thirteen years

of reading and listening to the parties’ assertions and arguments concerning these

-38-
accounting claims, did not abuse its discretion when it construed a properly

drawn, refined, and specific pretrial order as excluding any accounting claims not

predicated on proof that the losses at issue were unusual or infrequently occurring

by GAAP definitions.

2. The District Court’s Failure to Amend the Pretrial Order

The Plaintiffs further argue the district court erred by failing to amend the

pretrial order to permit the trial of accounting claims not predicated on proof of

unusual or infrequently occurring losses as defined by GAAP. Although the

Plaintiffs never formally moved for an amendment of the pretrial order, this court

“interpret[s] the assertion of an issue not listed in the pretrial order as the

equivalent of a formal motion to amend the order . . . .” Trierweiler, 90 F.3d at

1543. Thus, by opposing the Defendants’ in limine motion, eliciting Eckert’s

testimony, and opposing the Defendant’s motion to strike that testimony as

beyond the scope of the pretrial order, the Plaintiffs effectively moved for an

amendment of the pretrial order.

This court reviews a district court’s failure to amend a final pretrial order

for an abuse of discretion. See id. Federal Rule of Civil Procedure 16(e)

provides, “The order following a final pretrial conference shall be modified only

to prevent manifest injustice.” Fed. R. Civ. P. 16(e). Furthermore, the burden of

demonstrating manifest injustice falls upon the party moving for modification.

-39-
See R.L. Clark Drilling Contractors, Inc. v. Schramm, Inc., 835 F.2d 1306, 1308

(10th Cir. 1987). This court considers the following factors when faced with a

challenge to a district court’s exclusion of an issue by failing to amend a pretrial

order: (1) prejudice or surprise to the party opposing trial of the issue; (2) the

ability of that party to cure any prejudice; (3) disruption to the orderly and

efficient trial of the case by inclusion of the new issue; and (4) bad faith by the

party seeking to modify the order. 10 Cf. Roberts v. Roadway Express, Inc., 149

F.3d 1098, 1108 (10th Cir. 1998); Smith v. Ford Motor Co., 626 F.2d 784, 797

(10th Cir. 1980). This court should also consider whether the party favoring

amendment of the pretrial order formally and timely moved for such modification

in the trial court. When a party fails to formally move for modification, it

neglects to focus the trial court’s attention on the factors informing on the

10
The Plaintiffs contend the district court was required to consider these
factors and its failure to do so itself constitutes an abuse of discretion. This court
has never imposed such a requirement upon a district court when deciding
whether to amend a pretrial order or allow evidence or issues outside the pretrial
order to be presented; rather, we have always discussed these factors as matters
which this court should consider to determine if the district court’s decision
constitutes an abuse of discretion. See Roberts v. Roadway Express, Inc., 149 F.3d
1098, 1108 (10th Cir. 1998); Smith v. Ford Motor Co., 626 F.2d 784, 797 (10th
Cir. 1980). Thus, the district court’s failure to make explicit findings under these
four factors does not render its decision an abuse of discretion. The argument
raised here by the Plaintiffs is particularly disingenuous, given their own failure
to formally move to amend the order. The Plaintiffs simply cannot claim an abuse
of discretion by the district court for not reciting the factors for consideration of a
motion to amend a pretrial order when they failed to formally make such a
motion.

-40-
amendment determination and generally prevents the creation of an adequate

record as to the other four factors, thus limiting our effectiveness in reviewing the

trial court’s decision. Cf. Hullman v. Board of Trustees of Pratt Community

College, 950 F.2d 665, 667-68 (10th Cir. 1991). The failure to formally move to

amend the pretrial order in this case resulted in exactly those consequences. This

court must therefore independently surmise the import of amending the pretrial

order to allow the trial of accounting claims not theretofore made.

Allowing the Plaintiffs to pursue any accounting claims without having to

prove the expenses at issue were unusual or infrequently occurring as defined by

GAAP would have significantly prejudiced and surprised the Defendants. When

the district court issued its March 1998 in limine order, it fully apprised all parties

of its understanding of the pretrial order and the parameters of the accounting

claims for trial. The Defendants undoubtedly relied upon that ruling to prepare

their own presentation of evidence as well as anticipate the Plaintiffs’ case. As a

consequence, the Plaintiffs’ sudden attempt to inject into the trial evidence which

the in limine order had precluded necessarily surprised the Defendants.

Additionally, a proper defense of these essentially new accounting claims would

have justified a mid-trial reopening of discovery, the addition of new witnesses,

-41-
and further motions and briefings. 11 After spending thirteen years honing their

defenses, this sudden amendment of the pretrial order would have significantly

prejudiced the Defendants. Cf. Joseph Mfg. Co., Inc. v. Olympic Fire Corp., 986

F.2d 416, 420 (10th Cir. 1993) (stating that defendant’s failure to raise specific

defense at an earlier possible juncture “cuts deeply against his claim of manifest

injustice”). Although the court could have allowed the Defendants to undertake

this additional work in order to cure the prejudice of injecting new issues into the

trial, to do so might have so severely disrupted the orderly and efficient course of

an ongoing trial that we cannot say the district court’s refusal was an abuse of

discretion. Finally, the Plaintiffs’ neglect in not formally moving for amendment

of the pretrial order weighs against overturning the district court’s decision. An

analysis of the applicable factors leads this court to conclude the Plaintiffs have

not demonstrated that manifest injustice resulted from the district court’s failure

to amend the pretrial order and correspondingly they have failed to demonstrate

the district court abused its discretion in not amending the pretrial order.

11
Even if this court construes the Plaintiffs’ opposition to the in limine
order as the equivalent of a motion to amend the pretrial order and thus views the
surprise and prejudice from that point in time rather than from the elicitation of
evidence during trial, the Defendants still would have suffered the prejudice of
having just four months to prepare defenses to legal theories which the pleadings
up until that point had failed to articulate. Furthermore, and as discussed below,
analysis of the other factors firmly supports our conclusion that the district court
acted within its discretion in not amending the pretrial order.

-42-
 3. The Rebuttal Testimony

During the Defendants’ case, three defense witnesses testified that KII was

by nature a risk-taking company and the losses at issue resulted from risky

ventures. With this testimony, the Defendants sought to demonstrate that these

losses did not constitute unusual or infrequently occurring losses under GAAP

definitions. Because those definitions account for the “the environment in which

the entity operates,” the Defendants presented testimony that KII operated within

a business environment in which it routinely took risks and suffered resulting

losses. In addition, according to the Plaintiffs, one of these defense witnesses,

Lynn Markel, on cross-examination disputed the testimony of Milton Hall, KII’s

controller, about some of the facts underlying the items on Hall’s list of

“Extraordinary Items,” which had triggered the Plaintiffs’ accounting claims.

The Plaintiffs then sought to recall one of their accounting witnesses, Gary

Gibbs, on rebuttal. The Plaintiffs proffered that this witness would testify the

Defendants’ interpretation of the GAAP definitions was incorrect and Markel’s

testimony disputing Hall was contradicted by the underlying documents and

financial statements. The district court precluded this rebuttal testimony,

concluding the Plaintiffs reasonably could have anticipated this defense theory

and evidence in their case-in-chief.

-43-
 The Plaintiffs now challenge that decision, arguing that prior to the

testimony of these defense witnesses, the Defendants’ theory “had always focused

on the likely recurrence of a type of event or write-down.” With the introduction

of this testimony, the Plaintiffs assert, the Defendants’ theory “suddenly twisted

into whether [KII] was a type of company that had to report its non-recurring

losses the same way as other companies.” Thus, the Plaintiffs contend they were

entitled to present rebuttal testimony to this new defense theory and the district

court erred by denying them the opportunity to do so.

This court reviews for an abuse of discretion a district court’s refusal to

allow rebuttal testimony. See Marsee v. United States Tobacco Co., 866 F.2d

319, 324 (10th Cir. 1989). “[W]here the evidence rebuts new evidence or theories

proffered in the defendant’s case-in-chief, that the evidence may have been

offered in the plaintiff’s case-in-chief does not preclude its admission in

rebuttal.” Bell v. AT&T, 946 F.2d 1507, 1512 (10th Cir. 1991). When plaintiffs,

however, seek to rebut defense theories which they knew about or reasonably

could have anticipated, the district court is within its discretion in disallowing

rebuttal testimony. See Comcoa, Inc. v. NEC Telephones, Inc., 931 F.2d 655, 664

(10th Cir. 1991) (“Because plaintiffs were warned that rebuttal evidence would be

restricted and because they reasonably could have anticipated defendants'

evidence . . . [i]t was within the district court's discretion to disallow plaintiffs'

-44-
rebuttal evidence.”); Fashauer v. New Jersey Transit Rail Operations Inc., 57

F.3d 1269, 1287 (3d Cir. 1995) (holding that district court acted within its

discretion by precluding rebuttal testimony to that which reasonably could have

been anticipated). This court in fact endows the district court with “broad

discretion” in deciding whether to admit or exclude rebuttal evidence. United

States v. Olivo, 80 F.3d 1466, 1470 (10th Cir. 1996); see also Geders v. United

States, 425 U.S. 80, 86 (1976) (discussing trial court’s broad powers to manage a

trial, including rebuttal testimony).

The GAAP definitions for “unusual” and “infrequently occurring” should

have alerted the Plaintiffs to the likelihood that the Defendants would argue the

nature of KII’s business endeavors rendered the expenses at issue usual and

frequently occurring. The Accounting Principles Board Opinion No. 30, an

opinion at the heart of these accounting claims, refers to the following GAAP

definitions for “unusual nature” and “infrequency of occurrence”:

Unusual nature – the underlying event or transaction should possess
a high degree of abnormality and be of a type clearly unrelated to, or
only incidentally related to, the ordinary and typical activities of the
entity, taking into account the environment in which the entity
operates.
Infrequency of occurrence – the underlying event or transaction
should be of a type that would not reasonably be expected to recur in
the foreseeable future, taking into account the environment in which
the entity operates.

-45-
Reporting the Results of Operation–Reporting the Effects of Disposal of a

Segment of a Business, and Extraordinary, Unusual, and Infrequently Occurring

Events and Transactions, APB Opinion No. 30 (June 1973) (emphasis added).

These definitions explicitly underscore the need to consider accounting items

within “the environment in which the entity operates” when determining whether

to classify such items as unusual or infrequently occurring by GAAP standards.

Indeed, in opposing the Defendants’ motion for summary judgment, the Plaintiffs

themselves referenced the language found in APB Opinion No. 30 and pointed out

the significance of this language. The Plaintiffs should not have been surprised,

therefore, when the defense witnesses discussed the risk-taking business

environment in which KII operates and the effect of this environment upon the

accounting treatment of expenses.

Furthermore, testimony which the Defendants elicited on cross-examination

early in the Plaintiffs’ case-in-chief also should have put the Plaintiffs on notice

of the Defendants’ “risk-taking environment” theory. In cross-examining Milton

Hall about his list of “Extraordinary Items,” defense counsel took Hall through

his list item-by-item, having Hall explain the particular business context in which

each of the losses was sustained. Hall thus provided a broad overview of KII’s

various business enterprises, describing how each of these enterprises both sought

to make money and yet routinely suffered losses. One particularly relevant

-46-
example of this testimony occurred when Hall described KII’s practice of trading

in futures markets, which resulted both in occasional profits and losses; Hall

analogized KII’s involvement in the futures market to an individual who trades in

the stock market. The effect of this testimony should not have been lost on the

Plaintiffs. Even at this early stage of the Plaintiffs’ case-in-chief, the Defendants

sought to establish the significance of KII’s specific and unique business

practices to their accounting treatment of particular expenses. Having listened to

Hall’s testimony, the Plaintiffs reasonably should have anticipated the

Defendants’ further elaboration on this theory during their own case. Indeed, the

Plaintiffs could easily have countered this testimony prior to closing their case-in-

chief. 12

Finally, it is significant that the Plaintiffs never objected to the testimony

elicited by the defense as outside the scope of the defenses articulated in the

pretrial order. Had the Plaintiffs raised such an objection, the district court might

have limited the controversial testimony and thus obviated the Plaintiffs’ asserted

need to call a rebuttal witness. Because the Plaintiffs should reasonably have

anticipated the evidence they sought to rebut and then failed to object to the

12
Only the seventh of twenty-four witnesses called by the Plaintiffs, Hall
testified on April 16, 1998. The trial had begun a mere ten days earlier, and the
Plaintiffs did not close their case until one month later on May 18, 1998.

-47-
evidence as supportive of a new theory beyond the Pretrial Order, the district

court did not abuse its broad discretion in precluding the rebuttal witness.

Regarding the Plaintiffs’ contention that this rebuttal witness was necessary

to counter defense witness Lynn Markel, who allegedly contradicted the factual

testimony of Milton Hall, the record both undermines the Plaintiffs’

characterization of Markel’s testimony and reveals that plaintiffs’ counsel himself

elicited the disputed testimony on cross-examination. Markel initially disagreed

with facts and conclusions testified to by a different plaintiffs’ witness, Gary

Gibbs, even stating, “I don’t know where Mr. Gibbs got his information.” The

Plaintiffs’ attorney then asked, “Did you know that, in fact, Mr. Gibbs had gotten

that information from Milton Hall?” Markel replied, “No.” The Plaintiffs’

attorney then made a final attempt to draw out Markel’s disagreement with Hall,

eliciting testimony which the Plaintiffs now claim demanded a rebuttal witness:

“Q: You told the jury last week that Mr. Gibbs had his facts wrong. And in truth,

you disagree with Milton Hall, don’t you? A: Mr. Gibbs had his facts wrong, sir.”

Contrary to the Plaintiffs’ assertion in support of their argument for a rebuttal

witness, Markel did not dispute Hall’s testimony, but rather disagreed with the

testimony of Gibbs. Further, even if Markel had disputed Hall’s testimony, the

Plaintiffs’ attorney intentionally elicited such testimony. The record makes clear

that Markel was not an out-of-control or unresponsive witness, or one

-48-
aggressively attempting to advocate on cross-examination. When an attorney

conducting cross-examination affirmatively draws out specific testimony, as

occurred here, the district court does not abuse its discretion by disallowing

rebuttal to that testimony.

C. Evidentiary Rulings

1. Admission of Evidence of Other Lawsuits

Prior to trial, the Plaintiffs moved in limine to exclude any evidence of

other lawsuits which they filed against the Defendants after filing the instant

action in 1985. The court ruled, however, that evidence of these other lawsuits,

including that plaintiff William Koch named his own mother as a defendant in

one, demonstrated William’s ongoing hostility toward his brothers Charles and

David. The court further ruled that the evidence of these lawsuits was relevant to

William’s purported reliance on Charles and David prior to the SPA, as well as to

his bias and credibility as a fact witness. The Plaintiffs then moved for

reconsideration and modification of this in limine ruling. In response, the district

court issued another order clarifying that evidence of other lawsuits could not be

offered to show William “likes to file lawsuits, that [he] files lawsuits devoid of

merit, or that [he] lacked proper feelings and consideration for his mother.” In

addition, the district court stated that William should have an opportunity to

-49-
explain his reasons for filing these lawsuits, but that there was no need for either

side to introduce evidence, comments, findings, or rulings from these other suits.

During opening statement and over the Plaintiffs’ objection, defense

counsel noted that William’s hostility toward his brothers was the motive behind

the instant suit, as evidenced by his and Frederick Koch’s later suit against the

Koch Family Charitable Foundation and its trustees, which included “their own

mother.” Furthermore, while cross-examining William, defense counsel elicited

testimony that William had sued his brothers and mother in the Foundation

litigation, that he greatly upset his mother by subpoenaing her into court, and that

he later brought suit challenging his mother’s will. The Plaintiffs objected to this

line of questioning as irrelevant and a violation of the court’s in limine order. As

a consequence, the court instructed the Defendants not to delve into the specific

facts of these lawsuits. Two days later, the Plaintiffs filed a motion for a mistrial

because the Defendants had unfairly elicited testimony about William’s suing his

mother and injected evidence of the outcome of one post-1985 lawsuit. The

district court denied that motion. Two weeks later, however, the district court

precluded the introduction of any further evidence that William sued his mother.

Finally, before submitting the case to the jury, the district court gave an

instruction only to consider evidence of these other lawsuits “on issues of the

motives, intent, bias, and credibility of the parties,” and not to consider whether

-50-
any party is overly litigious or to cast judgment on the propriety of the intra-

family relationships.

The Plaintiffs now challenge the district court’s rulings which allowed

introduction of this evidence of post-1985 lawsuits. They argue this evidence

lacked relevance or, at best, had de minimis probative value which was

substantially outweighed by the danger of prejudice resulting from William’s

admission that he sued his own mother. “[T]he admission or exclusion of

evidence lies within the sound discretion of the district court and will not be

reversed absent an abuse of discretion.” Seymore v. Shawver & Sons Inc., 111

F.3d 794, 800 (10th Cir. 1997). To determine whether a district court properly

admitted evidence of other acts, this court requires:

(1) the evidence was offered for a proper purpose; (2) the evidence
was relevant; (3) the trial court determined under Fed. R. Evid. 403
that the probative value of the evidence was not substantially
outweighed by its potential for unfair prejudice; and (4) the trial
court gave the jury the proper limiting instructions upon request.

United States v. Lazcano-Villalobos, 175 F.3d 838, 846 (10th Cir. 1999)

(quotation omitted).

The Defendants offered the disputed evidence for proper purposes. The

Defendants first claimed that evidence of these lawsuits demonstrated William

Koch’s bias. See United States v. Abel, 469 U.S. 45, 51 (1984) (holding that the

use of evidence of bias to impeach a witness is permissible); United States v.

-51-
DeSoto, 950 F.2d 626, 630 (10th Cir. 1991). Additionally, the Defendants

asserted that this evidence bore directly on an essential element of several of

William’s claims: whether William relied on the Defendants’

misrepresentations. 13 See United States v. Shumway, 112 F.3d 1413, 1421-22

(10th Cir. 1997) (“Prior acts evidence is clearly relevant to show an essential

element . . . .” (quotation omitted)). The evidence therefore was offered for

permissible purposes.

Evidence of the post-1985 lawsuits, however, did not in fact bear upon

these two stated purposes. Thus, the district court should have excluded the

evidence as irrelevant. Federal Rule of Evidence 401 defines relevant evidence as

“evidence having any tendency to make the existence of any fact that is of

13
The district court gave the following instruction to the jury:

I have instructed you, with respect to the plaintiff(s)’ claims based on
theories of state law fraud, breach of fiduciary duty and Section
10(b), that the plaintiff(s) cannot prevail without proof of actual
reliance, that is, they would not have sold their shares at the price
actually paid without the defendant(s)’ misrepresentations or
omissions. . . . [I]f you find that the plaintiff(s) did not actually rely
on any belief that the defendant(s) had completely and truthfully
disclosed the material facts but instead actively doubted the
defendant(s) and relied on the expectation that they could later sue
the defendant(s) for breach of warranty, then your verdict should be
for the defendant(s) on the plaintiff(s)’ claims asserting theories of
state law fraud, breach of fiduciary duty and Section 10(b).

The Plaintiffs never objected to this instruction. As a consequence, reliance was
treated as an essential element of these three legal claims.

-52-
consequence to the determination of the action more or less probable than it

would be without the evidence.” Fed. R. Evid. 401. Federal Rule of Evidence

402 bars the introduction of any evidence that is not relevant. See Fed. R. Evid.

402. This court first fails to understand how evidence that William filed these

lawsuits actually demonstrates to any degree that William’s testimony may be less

credible due to his bias against his brothers, particularly when the Defendants did

not, and perhaps could not, show that these lawsuits were frivolous. The Second

Circuit rejected the precise argument advanced by the Defendants, concluding that

evidence of other suits brought by a plaintiff against the defendants “go[es] to

character rather than bias.” Outley v. City of New York, 837 F.2d 587, 594 (2d

Cir. 1988). Although the Outley court recognized the possibility that evidence of

other lawsuits could be probative as to bias, “the particular details of each action,

and the extent to which the bringing of each action was justified, must be before

the jury” to render the evidence relevant and admissible. Id. at 595. Here, the

district court precluded such an examination of the details and merit of the

lawsuits, and thus, the evidence admitted was not relevant to William’s alleged

bias.

Additionally, the evidence admitted was not relevant to the issue of

William’s reliance on his brothers’ representations in signing the SPA. The

evidence concerned lawsuits filed at least two years after the SPA and in part

-53-
indicated William had sued his mother. Though the filing of these lawsuits might

demonstrate William’s distrust of his brothers after 1985, the parties entered into

the SPA in 1983. This evidence thus lacks probative value as to William’s

reliance on his brothers in entering into that 1983 agreement. Furthermore,

evidence that William sued his mother, even if such a suit had been brought prior

to the 1983 SPA, demonstrates nothing about his attitude toward and reliance

upon his brothers. Because the contested evidence is irrelevant to the stated

purposes for which it was offered, this court concludes that the district court erred

in admitting it.

When a trial court erroneously receives evidence, this court will reverse the

jury’s verdict “only if the error prejudicially affects a substantial right of a party.”

Sanjuan v. IBP, Inc., 160 F.3d 1281, 1296 (10th Cir. 1998). This court deems

such wrongly admitted evidence prejudicial only if we reasonably conclude that

the jury would have reached a different result without that evidence. See id.

Having reviewed the transcript of this trial, this court cannot reasonably conclude

that the jury would have found for the Plaintiffs had it not learned of these other

lawsuits. In the context of this eleven week trial, it is extremely doubtful that the

lone, brief colloquy between defense counsel and William about suing his

brothers and mother and one passing mention of this evidence in the Defendants’

opening statement caused the jury to find for the Defendants. Therefore, although

-54-
the district court did err in admitting the disputed evidence, that error did not

sufficiently prejudice the Plaintiffs to warrant reversal of the judgment.

2. The Denial of Cross-Examination on Charles Koch’s Character

A number of defense witnesses, including Charles Koch himself, testified

to Charles’ honesty and integrity, as well as his positive management style. The

Plaintiffs repeatedly sought to ask these witnesses whether in rendering their

character opinions they knew about or considered certain instances which might

call into question Charles’ honesty. Specifically, the Plaintiffs wanted to ask

about three such instances: (1) a United States Senate Report which detailed KII’s

widespread theft and fraudulent reporting practices in the 1980’s; (2) a 1974

federal court decision finding KII liable for fraud; and (3) two 1997 retaliatory

discharge and age discrimination lawsuits filed against KII.

The district court denied the Plaintiffs the opportunity to ask about these

instances, concluding there was “little or no probative value” regarding Charles’

honesty, and the danger of confusion, prejudice, and delay substantially

outweighed the probative value. The Plaintiffs maintain the district court erred in

precluding their cross-examination. This court will not reverse a district court’s

exclusion of evidence absent an abuse of discretion. See Seymore, 111 F.3d at

800.

-55-
 In Securities & Exchange Commission v. Peters, this court held that the

district court had abused its discretion in refusing to allow the SEC to ask, on

cross-examination, both Peters and seven of his character witnesses whether they

had heard about other fraud suits filed against him. 978 F.2d 1162, 1164 (10th

Cir. 1992). The questions which the Plaintiffs in this case sought to ask,

however, differ significantly from those at issue in Peters. In Peters, the SEC

sought to test the accuracy of Peters’ factual testimony and his witnesses’

character testimony by asking if they were aware of two previous fraud suits

brought against Peters personally. See id. at 1169. In contrast, these Plaintiffs

undertook to challenge the character testimony by asking the witnesses if they had

heard about instances of dishonesty by KII, the corporation, not by Charles Koch

the individual.

Although the Plaintiffs maintain these instances of KII’s dishonesty also

implicate Charles’ own trustworthiness, the nexus between KII’s conduct and that

of Charles in these instances is not nearly as strong as the Plaintiffs suggest. In

its 1974 order finding KII liable for fraud, a federal district court may have noted

some of Charles’ activities within the company relevant to the fraud action, but it

never concluded that he personally committed fraud. The Senate Report focuses

almost entirely on the deceptive and illegal practices of KII, and, although the

report does impliedly question the veracity of Charles’ statements to committee

-56-
investigators, it does not explicitly state, as the Plaintiffs assert, that Charles lied.

Finally, the retaliatory dismissal and age discrimination complaints name KII as

the defendant and allege no wrongdoing whatsoever by Charles Koch; even had

these complaints targeted Charles, this court fails to see how allegations of

retaliation and age discrimination bear upon the alleged wrongdoer’s honesty.

This court thus agrees with the district court’s conclusion that these instances

have no real probative value regarding Charles’ character for honesty.

The district court also did not abuse its discretion in determining the little

probative value that these instances might have is substantially outweighed by the

danger of unfair prejudice, confusion, and waste of time. This court has

recognized that exclusion of evidence under Rule 403 is “an extraordinary remedy

to be used sparingly” and reviews a district court’s decision to do so for abuse of

discretion. K-B Trucking Co. v. Riss Int'l Corp., 763 F.2d 1148, 1155 (10th

Cir.1985) (quotation omitted). For the jury to properly assess the weight of this

evidence, the court would have needed to allow both sides to explain how

instances reflecting KII’s dishonesty as a corporation might or might not

implicate Charles’ personal character for honesty. The district court, therefore,

would have entertained a series of virtual mini-trials on these rather collateral

events. Such diversions from the trial’s focus would have wasted considerable

time and potentially created unnecessary confusion in the minds of the jurors.

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Because these instances of dishonesty at most only tangentially implicate Charles’

own character and the jury could have become confused about the tenuous nature

of this link, there existed a definite danger that this minimally probative evidence

would unfairly prejudice Charles. Therefore, the district court did not abuse its

discretion in excluding these questions under Rule 403.

D. Jury Instructions

For their Pine Bend claims, the Kansas Plaintiffs and the Texas Plaintiffs

separately requested jury instructions on fraudulent misrepresentation which

defined materiality under a subjective standard. The district court, however,

denied these requests and instead gave instructions defining materiality in

objective terms. 14 Both the Plaintiffs and the Texas Plaintiffs maintain on appeal

that Kansas and Texas law define materiality subjectively. In addition, the

Plaintiffs challenge the district court’s instruction on fiduciary duty. Finally, the

Texas Plaintiffs also appeal the district court’s refusal to give instructions or

14
The Plaintiffs’ proposed instruction read: “A representation is material
when it relates to some matter that is so substantial as to influence the party to
[whom] it was made.” The Texas Plaintiffs proposed the following: “You are
instructed that a fact is material if the plaintiffs would not have entered into the
stock transaction without such misrepresentations having been made or facts
concealed.” The district court, however, settled on this instruction: “A fact is
material if a reasonable person would consider the fact important or significant in
deciding whether or not to sell his or her shares.”

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submit a special verdict or a general verdict with interrogatories on their Texas

common law constructive fraud and Texas Securities Act claims.

This court reviews jury instructions de novo and reverses only when

deficient instructions are prejudicial. 15 See Coleman v. B-G Maintenance

Management of Colo., Inc., 108 F.3d 1199, 1202 (10th Cir. 1997). In assessing

the propriety of jury instructions concerning state law claims, this court has a duty

to apply state law as announced by the state’s highest court. See Shugart v.

Central Rural Elec. Co-op., 110 F.3d 1501, 1504-05 (10th Cir. 1997). If,

however, the state’s highest court has not decided the issue presented, we may

either certify the question to that court or predict how it would rule. See Fields v.

Farmers Ins. Co., 18 F.3d 831, 834 (10th Cir. 1994); Coletti v. Cudd Pressure

Control, 165 F.3d 767, 775 (10th Cir. 1999); 10th Cir. R. 27.1. Furthermore,

“this court must . . . follow any intermediate state court decision unless other

authority convinces us that the state supreme court would decide otherwise.”

Daitom, Inc. v. Pennwalt Corp., 741 F.2d 1569, 1574 (10th Cir. 1984).

1. Kansas Standard of Materiality

To support their contention that the proper definition of materiality under

Kansas fraudulent misrepresentation law is a subjective one, the Plaintiffs rely on

four Kansas cases and the Kansas Judicial Council’s Pattern Instructions (“PIK”).

15
See infra 66-68 (discussing the degree of prejudice warranting reversal).

-59-
The first two cases to which the Plaintiffs cite do not in fact recite any materiality

definition. See State ex rel. Stephan v. GAF Corp., 747 P.2d 1326, 1331 (Kan.

1987); Dushane v. Union Nat’l Bank, 576 P.2d 674, 678 (Kan. 1978). Although

the Plaintiffs’ next case, Fisher v. Mr. Harold’s Hair Lab, Inc., does state a

subjective definition of materiality, several paragraphs later the court also

articulates an objective standard. See 527 P.2d 1026, 1032 (Kan. 1974). It is

only the Plaintiffs’ final case, McGuire v. Gunn, which clearly defines materiality

in subjective terms. See 300 P. 654, 656 (Kan. 1931). McGuire, however, has

aged nearly seventy years, and the Kansas Supreme Court long ago ceased relying

upon it, 16 instead now applying an objective standard. Finally, PIK Civ.3d 127.40

(1997), which the Plaintiffs maintain directs courts to issue an instruction

defining materiality subjectively, speaks to this issue as inconsistently as Fisher.

Although the proposed instruction states, “A representation is material when it

relates to some matter that is so substantial as to influence the party to whom it

was made,” the comments following provide, “Materiality of representation is

defined in Griffith v. Byers Constr. Co. . . . and Timi v. Prescott State Bank . . . .”

16
The most recent Kansas appellate court opinion citing McGuire for its
subjective materiality definition is Fisher, a 1974 case which, as noted above,
simultaneously stated an objective standard of materiality. See Fisher v. Mr.
Harold’s Hair Lab, Inc., 527 P.2d 1026, 1032 (Kan. 1974).

-60-
As discussed below, both Griffith and Timi unequivocally define materiality in

objective terms.

This court has previously stated that in a fraudulent misrepresentation

action pursuant to Kansas law, “A fact is material if it is one to which a

reasonable person would attach importance in determining his or her choice of

action in the transaction involved.” 17 City of Wichita v. U.S. Gypsum Co., 72 F.3d

1491, 1495 (10th Cir. 1996) (citing Timi, 553 P.2d at 325). Following the

doctrine of stare decisis, one panel of this court must follow a prior panel’s

interpretation of state law, absent a supervening declaration to the contrary by

that state’s courts or an intervening change in the state’s law. Cf. Kinnison v.

Houghton, 432 F.2d 1274, 1277 (10th Cir. 1970) (concluding that the panel need

not look to a Tenth Circuit opinion addressing state law which supported the

appellant’s position, because an intervening state court decision held to the

contrary). Because the Plaintiffs have failed to alert us to any supervening

Kansas decisions contrary to U.S. Gypsum’s reading of the materiality element in

a Kansas fraud action, and we have located no such authority, this court is bound

17
The Plaintiffs contend this court, in another case, also applied a
subjective definition of materiality under Kansas law. Palmer Coal & Rock Co. v.
Gulf Oil Co., however, simply quotes a district court’s instructions which
articulated the subjective standard, but does not itself endorse such an approach
as the correct one. See 524 F.2d 884, 885 n.1 (10th Cir. 1975). The Palmer
Coal court noted neither side objected to these instructions, thus verifying that it
did not adopt the subjective standard in the instructions. See id. at 885.

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by U.S. Gypsum’s conclusion that Kansas law defines materiality under an

objective standard in a state fraud action.

Moreover, negotiating the labyrinth of Kansas jurisprudence confirms that

the standard of materiality for fraudulent misrepresentation, as presently defined

by the Kansas Supreme Court, is an objective one. In Griffith, a case involving

an action for fraudulent concealment, the Kansas Supreme Court first indicated

that such an action is governed by the identical legal standard as a fraudulent

misrepresentation claim. See 510 P.2d 198, 205 (Kan. 1973). In defining

materiality for such an action, the Kansas Supreme Court stated, “A fact is

material if it is one to which a reasonable [person] would attach importance.” Id.;

see also Timi, 553 P.2d 315, 317, 325 (Kan. 1976) (defining materiality in the

same terms in a fraudulent misrepresentation case). Indeed, in its recent review

of a consumer protection action alleging illegal misrepresentation, the Kansas

Supreme Court relied on Griffith’s objective definition of materiality. See York v.

InTrust Bank, N.A., 962 P.2d 405, 420 (Kan. 1998); see also Farrel v. General

Motors Corp., 815 P.2d 538, 548 (Kan. 1991). Furthermore, in discussing the

elements of fraud by silence, the Kansas Supreme Court recently noted that a duty

to disclose material facts only arises when the other party would reasonably

expect disclosure. See OMI Holdings Inc. v. Howell, 918 P.2d 1274, 1300-01

(Kan. 1996). This court’s review of Kansas law and binding Tenth Circuit

-62-
precedent thus leads to the conclusion that the district court properly instructed

the jury on materiality under Kansas law.

2. Texas Standard of Materiality

In contrast, the Texas Plaintiffs correctly characterize as subjective the

definition of materiality under their two distinct claims, i.e., Texas common law

fraud and a violation of section 27.01 of the Texas Business & Commercial Code

(“section 27.01"). 18 Although the Texas Supreme Court has not recently

articulated a materiality definition for either of these two causes of action,

numerous Texas Court of Appeals and Fifth Circuit opinions lead this court to

agree with the position taken by the Texas Plaintiffs. Discussing Texas common

law fraud, the Texas Court of Appeals recently stated, “A misrepresentation is

material if it induced the complaining party to enter into the contract.” Marburger

v. Seminole Pipeline Co., 957 S.W.2d 82, 86 n.4 (Tex. App.1997, writ denied)

Marburger simply follows a long line of cases establishing this subjective

standard. See, e.g., Hart v. Aetna Cas. & Sur. Co., 756 S.W.2d 27, 29 (Tex. App.

1988, no writ); Sawyer v. Pierce, 580 S.W.2d 117, 124 (Tex. App. 1979, writ

ref’d n.r.e.); Putnam v. Bromwell, 11 S.W. 491, 492 (Tex. 1889). Additionally,

18
Although the Defendants contend that the district court erred in its
choice of law decision allowing the Texas Plaintiffs to proceed on two Texas state
law claims, the Defendants nonetheless expressly waived review of that
determination on appeal because they believe Kansas and Texas law do not differ
on the issue.

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the Fifth Circuit has noted that Texas common law fraud, unlike federal securities

fraud, defines materiality in subjective terms. See In re Sioux Ltd., Securities

Litigation v. Coopers & Lybrand, 914 F.2d 61, 65-66 (5th Cir. 1990), implied

overruling on other grounds recognized by,Pacific Mut. Ins. Co. v. First

RepublicBank Corp., 997 F.2d 39, 41 (5th Cir. 1993). Indeed, a treatise on Texas

law states the following:

In order to constitute actionable fraud, representations must
pertain to material facts . . . .
The test for determining whether a represented fact is material
relates to the effect of the representation on the transaction in
question. . . .
A representation is not material if it appears that the
transaction would have been entered into notwithstanding the
representation. On the other hand, a represented fact is said to be
material if the transaction would not have been entered into had the
representation not been made.

Elizabeth A. Wong, 41 Texas Jurisprudence, Fraud and Deceit § 13 (3d ed. 1998).

Admittedly, a few Texas cases have caused some confusion about the

proper materiality standard under Texas common law fraud. Two recent Texas

Court of Appeals cases each confusingly recite both an objective and a subjective

materiality standard in a single sentence. See Beneficial Personnel Servs. of

Texas, Inc. v. Porras, 927 S.W.2d 177, 186-87 (Tex. App. 1996, writ granted

w.r.m.); Beneficial Personnel Servs. of Texas, Inc. v. Rey, 927 S.W.2d 157, 168

(Tex. App. 1996, writ granted w.r.m.). The objective language in these two cases

is drawn from another case upon which the Defendants rely, which merely quoted

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a trial court’s instructions employing an objective standard but never

affirmatively approved those instructions. See American Medical Int’l, Inc. v.

Giurintano, 821 S.W.2d 331, 338 (Tex. App. 1991, no writ). No other case to

which the Defendants cite suggests Texas common law fraud utilizes an objective

definition of materiality. 19 Porras and Rey merely confuse the issue; they do not

overrule earlier cases and they antedate Marburger. Therefore, this court is

convinced that Texas common law fraud jurisprudence establishes a subjective

standard of materiality.

Materiality under section 27.01 is also measured subjectively. As the Fifth

Circuit noted, “Because the statute is derived from Texas common law fraud, the

reliance and materiality elements of section 27.01 do not differ from those of

Texas common law fraud.” Haralson v. E.F. Hutton Group, Inc., 919 F.2d 1014,

1025 n.4 (5th Cir. 1990); see also Fisher v. Yates, 953 S.W.2d 370, 380 n.7 (Tex.

App. 1997, writ denied) (“The reliance and materiality elements of statutory fraud

19
Like American Medical, Miller v. Miller merely notes a trial court’s use
of an objective definition in jury instructions without deciding the correctness of
those instructions. See 700 S.W.2d 941, 948 (Tex. App. 1985, writ ref’d n.r.e.).
Bridwell v. State addresses criminal fraud under the Texas Securities Act, not
state common law fraud. See 804 S.W.2d 900, 904 (Tex. Crim. App. 1991, no
pet.). Shepard v. Rubin never articulates a materiality definition, though it
implicitly approves a subjective standard laid down in H.W. Broaddus Co., Inc. v.
Binkley, an opinion adopted by the Texas Supreme Court. See Shepard, 462
S.W.2d 316, 320 (Tex. App. 1970, no writ); Binkley, 88 S.W.2d 1040, 1042 (Tex.
Comm’n App. 1936). Finally, American Tobacco Co. v. Grinnell addresses the
element of reliance, not materiality. See 951 S.W.2d 420, 436 (Tex. 1997).

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[under section 27.01] do not differ from common law fraud.”); Keith A. Rowley,

The Sky is Still Blue in Texas: State Law Alternatives to Federal Securities

Remedies, 50 Baylor L. Rev. 99, 124 n.104, 163 n.198 (1998) (noting that in

contrast to an action under Texas Securities Act, an action pursuant to common

law fraud or section 27.01 merely requires a subjective showing of materiality).

The Defendants have failed to alert this court to any authority that treats section

27.01’s materiality element as an objective one, and nor have we found any such

authority. This court thus concludes that section 27.01 imposes a subjective

standard of materiality.

Finally, the district court’s incorrect jury instruction sufficiently prejudiced

the Texas Plaintiffs to warrant reversal. This court recently noted its own

conflicting precedent regarding the precise standard for reversal due to erroneous

instructions. See Morrison Knudsen Corp. v. Fireman’s Fund Ins. Co., 175 F.3d

1221, 1236-37 (10th Cir. 1999). Coleman and City of Wichita v. U.S. Gypsum Co.

require reversal when a jury might have based its decision on an erroneous

instruction, even if that possibility was very unlikely. See Coleman, 108 F.3d at

1202; U.S. Gypsum, 72 F.3d 1491, 1495 (10th Cir. 1989). An earlier case,

however, indicated this court should only reverse when it is more likely than not

that the erroneous instruction affected a substantial right of the appellant. See

United States Indus., Inc. v. Touche Ross & Co., 854 F.2d 1223, 1253 n.39 (10th

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Cir. 1988), implied overruling on other grounds recognized by, Anixter v. Home-

State Production Co., 77 F.3d 1215, 1231 (10th Cir. 1996). Morrison Knudsen

did not need to reconcile these differing standards. See 175 F.3d at 1237.

Again, we need not decide which of these competing standards controls,

because the erroneous instruction here would require reversal under either

approach. The district court’s erroneous instruction on an essential element of the

Texas Plaintiffs’ fraud claims effectively directed the jury to ignore the Texas

Plaintiffs’ own testimony that they would not have entered into the SPA absent

the Defendants’ misrepresentations and omissions. Additionally, the Defendants

failed to present any evidence contradicting the Texas Plaintiffs’ testimony about

their states of mind. 20 Even under the more burdensome Touche Ross standard,

therefore, the erroneous instruction warrants reversal, because the error more than

likely, if not necessarily, affected a substantial right of the Texas Plaintiffs, i.e.,

the right to have the jury even consider the primary and only direct evidence on

the materiality element. The district court therefore committed reversible error

20
The Defendants did present evidence indicating that a reasonable person
would not have been affected by the alleged misrepresentations in deciding
whether to enter into the SPA. Certainly such reasonable person evidence may be
used to counter the Texas Plaintiffs’ testimony because a jury could potentially
discredit the Texas Plaintiffs testimony based on the unreasonableness of their
assertions. Nonetheless, the Defendants presented no direct evidence that the
Texas Plaintiffs ever said or believed anything contradicting their state-of-mind
testimony.

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with respect to the Texas Plaintiffs’ claims when it instructed the jury to

determine objectively whether the Defendants’ misrepresentations and omissions

were material.

3. Fiduciary Duty

Relying upon a 1986 order by the district court, the Plaintiffs proposed a

jury instruction which stated, “The Court has found, as a matter of law, that a

fiduciary relationship existed between the plaintiffs and the defendants.” Over

the Plaintiffs’ objection, the district court instead instructed the jury as follows:

To recover on their [fiduciary duty] claim, the
plaintiff(s) have the burden of first proving, by a preponderance of
evidence that is clear and convincing, that they did not voluntarily
and intentionally relieve the individual defendant(s) of their fiduciary
duty as directors or officers of Koch Industries. If you find the
plaintiff(s) to have not met this burden of proof, then you shall find
that the individual defendant(s) did not owe a fiduciary duty.
If you find, however, the plaintiff(s) have proved that
they did not relieve the defendant(s) of their fiduciary duty as
directors or officers of Koch Industries, then it becomes the
individual defendant(s)’ burden to prove, by a preponderance of
evidence that is clear and convincing, the following elements:
(1) that concerning the alleged misrepresentations or
omissions, the individual defendant(s) completely and
truthfully disclosed to the plaintiff(s) or their agent(s)
all relevant facts, known to the individual defendant(s)
by reason of their office or position at Koch Industries
and not known by the plaintiff(s) or their agent(s), that
were material in affecting the value or price of the
stock; and
(2) that the plaintiff(s) were paid a fair price for their stock
and that the terms of the transaction were fair, balanced
against the best interests of the corporation and all of its
shareholders.

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In short, the first paragraph of this instruction required the jury to determine

whether a fiduciary relationship actually existed; if the jury answered this

predicate inquiry in the affirmative, it then needed to determine whether the

Defendants in fact breached their fiduciary duty.

The verdict form, however, guided the jury directly to the second question,

entirely ignoring the predicate inquiry of whether a fiduciary relationship existed.

Question 6 on the verdict form stated, “Do you find on the fiduciary duty claim

that the defendants have proved that they disclosed those material facts

concerning Pine Bend Refinery to the plaintiffs which the plaintiffs or their

agents otherwise did not know and that Koch Industries paid a fair price for the

plaintiffs’ stock?” The jury answered, “Yes.”

The Plaintiffs appeal the district court’s instruction requiring them to prove

the existence of a fiduciary relationship, arguing that Kansas law imposes a strict

fiduciary duty on corporate officers and recognizes no exception to this duty when

a plaintiff may have relieved an officer defendant of that duty. As noted above,

this court will reverse a district court judgment only when deficient instructions

are prejudicial. See Coleman, 108 F.3d at 1202. Here, this court need not

determine whether the challenged instruction constituted a proper statement of the

law, because the verdict form rendered any possible error in the instruction

harmless. Although the jury was told in the instructions that they would need to

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first determine whether the Defendants had been relieved of their fiduciary duty,

the verdict form never asked that question. Instead, Question 6 in the verdict

form impliedly assumed that a fiduciary relationship existed and queried only

whether the Defendants had proved they did not breach that relationship, to which

the jury answered “yes.” Because the verdict form never posed the challenged

question to the jury but impliedly assumed the answer in favor of the Plaintiffs

and the jury found for the Defendants on the breach inquiry, this court concludes

any possible error in the district court’s instructions on the existence of a

fiduciary relationship was harmless. Due to this harmlessness, this court need not

reverse the judgment under either the Coleman/U.S. Gypsum prejudice standard or

that of Touche Ross, even if the challenged instruction was erroneous. See

Coleman, 108 F.3d at 1202 (requiring reversal when a jury might have based its

decision on an erroneous instruction); U.S. Gypsum, 72 F.3d at 1495 (following

Coleman standard even if the possibility is very unlikely); Touche Ross, 854 F.2d

at 1253 n.39 (requiring reversal only when it is more likely than not that an

erroneous instruction was prejudicial).

4. The Texas Common Law Constructive Fraud Claims

Prior to submitting the case to the jury, the Texas Plaintiffs proposed

instructions, definitions, and verdict questions on their Texas common law

constructive fraud claims. Over their objection, however, the district court

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refused to submit instructions or verdict questions to the jury relating to Texas

constructive fraud. The court reasoned that those claims duplicated others and,

alternatively, that the Texas Plaintiffs had failed to include a constructive fraud

claim in the 1998 Pretrial Order.

In appealing the district court’s decision, the Texas Plaintiffs maintain Rule

15(b) required the district court to amend the pleadings to include a constructive

fraud claim. Their opening brief, however, does not offer any argument

whatsoever that the Pretrial Order did in fact include a constructive fraud claim.

The issue of the court’s construction of the Pretrial Order is thus waived on

appeal. 21 See Johnson ex rel. Johnson v. Thompson, 971 F.2d 1487, 1499 (10th

Cir. 1992) (noting this court generally will not address issues that the parties

failed to brief). Therefore, this court must only determine whether the district

court properly declined to amend the Pretrial Order. We review that

determination for an abuse of discretion. See Trierweiler, 90 F.3d at 1543.

Upon a party’s motion, a trial court should amend the pretrial order to

include issues not initially raised in that order but tried by express or implied

21
In the Texas Plaintiffs’ Reply Brief, they argue “the phrase ‘common
law fraud’ used in the complaint and pretrial order includes constructive fraud
under Texas law.” They never raised this argument, however, in their opening
brief, and this court need not entertain an argument raised for the first time in a
reply brief. See, e.g., Coleman v. B-G Maintenance Management of Colo., Inc.,
108 F.3d 1199, 1205 (10th Cir. 1997).

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consent of the parties. Fed. R. Civ. P. 15(b). A trial court should find such

implied consent either when the consenting party introduces evidence on the new

issue or fails to object when the other party introduces such evidence. See

Hardin, 691 F.2d at 457. This court, however, has determined that “[w]hen the

evidence claimed to show that an issue was tried by consent is relevant to an issue

already in the case, and there is no indication that the party presenting the

evidence intended thereby to raise a new issue, amendment may be denied in the

discretion of the trial court.” Id. The Texas Plaintiffs fully concede that the

evidence presented at trial to support a constructive fraud claim precisely matched

that evidence relevant to several of their other claims. Therefore, the Defendants

did not impliedly consent to the trial of constructive fraud, and the district court

acted well within its discretion in declining to amend the pretrial order to include

an admittedly duplicative claim.

5. Texas Securities Act Claims

Similarly, the district court refused to submit to the jury the Texas

Plaintiffs’ Texas Securities Act claims. The district court determined the Act

required proof that the stock at issue no longer exists and no such evidence had

been presented to support that requirement. On appeal, the Texas Plaintiffs argue

the district court improperly construed the statute. They acknowledge, however,

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that their appeal on this issue depends upon this court’s concluding the materiality

element of fraud under the Texas Securities Act is a subjective one.

Unlike actions under Texas common law fraud or section 27.01, 22 however,

a fraud claim pursuant to the Texas Securities Act does require proof of objective

materiality. Most recently, the Texas Court of Appeals stated that under the

Texas Securities Act “an omission or misrepresentation is material if there is a

substantial likelihood that a reasonable investor would consider it important in

deciding to invest.” Weatherly v. Deloitte & Touche, 905 S.W.2d 642, 648-49

(Tex. App. 1995, writ dism’d w.o.j.) (emphasis added); see also Anheuser-Busch

Companies v. Summit Coffee Co., 858 S.W.2d 928, 936 (Tex. App. 1993, writ

denied) (same), vacated on other grounds 514 U.S. 1001 (1995); Granader v.

McBee, 23 F.3d 120, 123 (5th Cir. 1994) (same). Indeed, one commentator

explicitly noted that materiality is defined objectively under the Texas Securities

Act, but subjectively under Texas common law fraud and section 23.01. See

Keith A. Rowley, The Sky is Still Blue in Texas: State Law Alternatives to

Federal Securities Remedies, 50 Baylor L. Rev. 99, 121 n.104, 163 n.198 (1998).

The Texas Plaintiffs have cited no authority suggesting a subjective materiality

standard under the Texas Securities Act, and this court has found none.

Therefore, because materiality is defined objectively under the Texas Securities

22
See supra Section III.D.2.

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Act and the jury found the Defendants’ omissions and misrepresentations were

not objectively material, the district court’s refusal to submit Texas Securities Act

claims to the jury, if error, was harmless.

E. District Court’s Limitations on Plaintiffs’ Fraud Claims

1. The Rule 9(b) Order

The Plaintiffs’ Fifth Claim for Relief in their Amended Complaint pleaded

fraud by the Defendants. Specifically, the fraud claim alleged that the Defendants

misrepresented and concealed information about three particular KII assets–Koch

Qatar, Inc., the Capa Madison Unit, and the Bates & Reimann wells. In addition,

the fraud claim incorporated an allegation contained in paragraph twenty-two of

the Amended Complaint, which broadly stated,

during 1982 and continuing to the present time, defendants planned
and acted to conceal the true value of shares of stock in Koch
Industries from plaintiffs and the other selling shareholders and
carried out a scheme designed to understate the existence, extent and
value of property and assets owned directly or beneficially by Koch
Industries by failing to disclose the existence, location, ownership,
condition and true value of assets and property, including, but not
limited to, oil and gas reserves, acreage, prospects and properties, oil
and gas production and planned development of oil and gas
properties owned or acquired prior to June 10, 1983.

In an October 17, 1985 order, the district court limited the Plaintiffs’ fraud

claims to those allegations concerning the three specifically referenced assets,

determining that the broad allegation contained in paragraph twenty-two did not

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satisfy the particularity pleading requirement of Federal Rule of Civil Procedure

9(b). The district court went on to grant the Defendants summary judgment on

the causes of action regarding two of the three assets–Koch Qatar, Inc. and the

Bates & Reimann wells. The Plaintiffs now challenge the district court’s Rule

9(b) ruling restricting the Plaintiffs’ fraud claims. 23

This court reviews a district court’s Rule 9(b) ruling de novo and confines

its analysis to the text of the complaint. See Schwartz v. Celestial Seasonings,

Inc., 124 F.3d 1246, 1251 (10th Cir. 1997). Rule 9(b) provides, “In all averments

of fraud or mistake, the circumstances constituting fraud or mistake shall be

stated with particularity. Malice, intent, knowledge, and other conditions of mind

of a person may be averred generally.” Fed. R. Civ. P. 9(b). More specifically,

this court requires a complaint alleging fraud to “set forth the time, place and

contents of the false representation, the identity of the party making the false

statements and the consequences thereof.” Lawrence Nat’l Bank v. Edmonds (In

23
In addition to the district court’s October 17, 1985 ruling, the Plaintiffs
challenge two later orders of the district court, issued on October 24, 1991 and
June 30, 1992, which they also claim constituted dismissals of allegations under
Rules 9(b) and 8. Although the October 24 order did reference Rule 9(b), it
concerned discovery requests by the Plaintiffs, not dismissals of allegations or
claims. Thus, this court will discuss the propriety of that order in the following
section of this opinion dealing with discovery. See infra Section III.E.2. The
June 30 order addressed the Plaintiffs’ motion to amend their Second Amended
Complaint, and the district court did not rely at all on Rule 9(b) or Rule 8 in
denying some of the proposed amendments.

-75-
re Edmonds), 924 F.2d 176, 180 (10th Cir. 1991). Rule 9(b)’s purpose is “to

afford defendant fair notice of plaintiff’s claims and the factual ground upon

which [they] are based. . . .” Farlow v. Peat, Marwick, Mitchell & Co., 956 F.2d

982, 987 (10th Cir. 1992) (quotation omitted), implied overruling on other

grounds recognized by, Seolas v. Bilzerian, 951 F.Supp. 978, 981-82 (D.Utah

1997).

Here, the broad allegation in paragraph twenty-two of the Plaintiffs’

Amended Complaint, which the district court found insufficient under Rule 9(b),

set forth none of the specific and required allegations. The statement that the

alleged misrepresentations were made “during 1982 and continuing to the present

time” does not alert the Defendants to a sufficiently precise time frame to satisfy

Rule 9(b). Furthermore, paragraph twenty-two fails to mention at all the place at

which any misrepresentations were made. In addition, this paragraph specifies

nothing about the content of the alleged misrepresentations, instead reciting a

general statement that the Defendants “fail[ed] to disclose the existence, location,

ownership, condition and true value of [KII] assets and property.” Finally,

paragraph twenty-two failed to identify any specific Defendant who made these

alleged fraudulent misrepresentations or omissions, a particularly important

requirement in this case because of the number of individual defendants involved.

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 The Plaintiffs cite Scheidt v. Klein, 956 F.2d 963 (10th Cir. 1992) for the

proposition that Rule 9(b) particularity requirements are relaxed when the facts

supporting a fraud claim are within the opponent’s knowledge and control.

Scheidt, however, is not so generous. It merely holds that “[a]llegations of fraud

may be based on information and belief when the facts in question are peculiarly

within the opposing party’s knowledge and the complaint sets forth the factual

basis for the plaintiff’s belief.” Id. at 967. Unlike the complaint in Scheidt,

paragraph twenty-two did not state that the Plaintiffs’ allegations of fraud were

based on information and belief, nor did it set forth any factual basis to support

such a belief. Instead, paragraph twenty-two broadly alleged that the Defendants

concealed the true value of KII stock without informing the court or the

Defendants of the source for this contention. Moreover, the information and

belief allegations in Scheidt concerned the intent or purpose of the defendants’

actions, elements which this court noted were allowed to be pleaded generally

under Rule 9(b). See id. Paragraph twenty-two, however, does not address intent

or purpose, and thus Rule 9(b) does not excuse the generality of the Plaintiffs’

allegations. Therefore, the district court properly precluded the Plaintiffs from

pursuing fraud claims based on the broadly stated allegations of paragraph

twenty-two.

2. The Discovery Rulings

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 After substantial but unsuccessful efforts by the Plaintiffs to litigate the

claims stricken by the Rule 9(b) decision, the district court granted them leave to

file a Second Amended Complaint and determined that document to be the one

measuring the relevance of discovery requests. The Plaintiffs then issued

subpoenas for production of documents from six different banks requesting all

documents relating to any loans or transactions with KII between June 1, 1978

and June 30, 1988. In two separate orders, a federal magistrate judge limited this

discovery request to those documents relating only to “the Pine Bend Refinery,

the Pouce Coupe, Gilt Edge and Cold Lake properties in Canada, the equity value

of ABKO, and the alleged understated value of certain assets because of financial

and accounting policies and practices.” The Plaintiffs also subpoenaed from the

Ryder Scott Company all records of KII’s oil and gas reserves for the years 1980

through 1988. A federal magistrate judge also limited this discovery to those

documents concerning four KII assets–the Pouce Coupe, Gilt Edge, Cold Lake

and Capa Madison properties.

The district court then affirmed the magistrate’s decisions in its own order

of October 24, 1991. In so ruling, the district court first determined that

paragraphs thirty-eight and forty-six of the Plaintiffs’ Second Amended

Complaint did not delineate allegations of financial impropriety with sufficient

particularity under Rule 9(b) “to justify discovery into all accounting documents

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and practices of Koch Industries during the relevant time period.” Additionally,

the district court reasoned that even under the Plaintiffs’ breach of contract and

breach of fiduciary duty claims, Rule 26 barred the requested discovery because

the burden and expense of producing these documents far outweighed the

Plaintiffs’ mere hope that they might find something upon which to base a claim.

The Plaintiffs challenge the district court’s orders limiting their discovery

attempts.

This court reviews discovery rulings for an abuse of discretion. See

Pippinger v. Rubin, 129 F.3d 519, 533 (10th Cir. 1997). Rule 26(b) provides,

“Parties may obtain discovery regarding any matter, not privileged, which is

relevant to the subject matter involved in the pending action . . . . The

information sought need not be admissible at the trial if the information sought

appears reasonably calculated to lead to the discovery of admissible evidence.”

Fed. R. Civ. P. 26(b)(1). Despite this broad language, the rule does allow a court

to limit discovery if “the burden or expense of the proposed discovery outweighs

its likely benefit.” Fed. R. Civ. P. 26(b)(2)(iii). Indeed, the 1983 and 1993

Advisory Committee Notes indicate this sub-section was added “to encourage

judges to be more aggressive in identifying and discouraging discovery overuse”

and “to enable the court to keep tighter rein on the extent of discovery.”

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 The Plaintiffs attempted to justify their extraordinarily expansive discovery

requests as relevant to two broad, non-specific allegations contained in their

Second Amended Complaint. 24 When a plaintiff first pleads its allegations in

entirely indefinite terms, without in fact knowing of any specific wrongdoing by

the defendant, and then bases massive discovery requests upon those nebulous

allegations, in the hope of finding particular evidence of wrongdoing, that

plaintiff abuses the judicial process. That is what occurred here. The limits

which Rule 26(b)(2)(iii) place upon discovery are aimed at just such a tactic.

Utilizing its discretionary power under this rule, the district court appropriately

recognized that the likely benefit of this attempted fishing expedition was

speculative at best. Furthermore, the district court understood that to require the

six banks and the Ryder Scott Company to produce the massive amount of

documents requested, first weeding out privileged and confidential records, would

impose a serious burden and expense upon these non-parties. The district court

thus properly determined that the burden and expense of these discovery requests

far outweighed their likely benefit. Therefore, this court concludes the district

court did not abuse its discretion in limiting the Plaintiffs’ discovery.

24
Both paragraphs thirty-eight and forty-six contained broad allegations
that the Defendants did not provide financial information to the Plaintiffs in
accord with GAAP. Paragraph forty-six recited one specific example of these
alleged accounting improprieties relating to the Pine Bend Refinery.

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 F. The District Court’s Administration of this Case

The Plaintiffs contend the district court administered this case unjustly.

They first assert the district court harbored an unfair disdain for the Plaintiffs

which led the court to oversee the case in a biased fashion. The Plaintiffs then

list a number of the district court’s rulings which were unfavorable to them as

evidence of the court’s “harsh, lopsided and manifestly unjust” treatment.

To the extent that some of the specified rulings were contested in greater

depth in previous sections of the Plaintiffs’ brief, this court has already disposed

of those arguments. Furthermore, the Plaintiffs cite no legal authority at all in

contesting other rulings which they failed to address in prior portions of their

brief, thus waiving these arguments on appeal. See Adler, 144 F.3d at 679 (noting

that “[a]rguments inadequately briefed in the opening brief are waived”). Finally,

at no point during the litigation did the Plaintiffs seek to have the district court

judge disqualified on the basis of bias or on any other grounds. The Plaintiffs

thus waive their bias argument on appeal because they failed to timely move for

disqualification. See United States v. Stenzel, 49 F.3d 658, 661 (10th Cir. 1995).

Therefore, this court concludes none of these arguments warrants reversal.

G. Damages

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 Finally, the Plaintiffs assert the district court erroneously limited their

damages, arguing that their Section 10(b) and Rule 10b-5 claims warranted a

more liberal measure of damages than allowed by the court. Because the jury

found for the Defendants and, with the exception of the Texas Plaintiffs’ state

common law and statutory misrepresentation claims, this court now affirms each

of the district court’s rulings which the Plaintiffs challenge, we need not address

this issue.

H. Motion to Correct Misstatements at Oral Argument

The Plaintiffs have filed a motion under Federal Rule of Appellate

Procedure 27 to correct alleged misstatements by defense counsel at oral

argument. Rather than a Rule 27 motion, the Plaintiffs’ filing constitutes an

additional six pages of briefing on the merits, which in turn inspired a response

from the Defendants amounting to twelve more pages of such briefing. Not to be

outdone or, in the alternative, to equalize the pages of briefing on the merits

under the guise of the Rule 27 motion, the Plaintiffs then filed a six page reply.

One thing this court did not need in this case was further briefing and

argument. The court previously demonstrated leniency in allowing the filing of

oversized briefs pursuant to Federal Rule of Appellate Procedure 28(g) and Tenth

Circuit Rule 28.3 and by granting additional time for oral argument. Regarding

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the Plaintiffs’ substantive claims in this motion, while it is true that one of the

statements challenged is a misstatement, defense counsel did not make the

utterance maliciously nor did he mislead the court. Most disturbingly, the

Plaintiffs’ motion reveals their apparent assumption that the court does not read

the record to confirm or refute representations as to its content. That assumption

is wrong.

The Plaintiffs’ motion is denied as an inappropriate attempt to circumvent

Federal Rule of Appellate Procedure 28(c), which states, “Unless the court

permits, no further briefs [beyond the reply brief] may be filed.” Fed. R. App. P.

28(c).

IV. CONCLUSION

In deciding the instant appeal, this court has reviewed a piece of litigation

spanning a decade and a half and a trial lasting nearly three months. This court is

well aware that in such litigation the discretion of the trial court is important to

accomplish efficiency, notice, and fairness. In this context, however, we could

not reasonably expect perfection in the district court’s exercise of that discretion

or in its overall handling of the case; rather, what this court expects from the

district court is basic fairness to all parties. Having reversed the district court on

but two of many issues presented on appeal, we are satisfied that the district court

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achieved fundamental fairness in its presentation of this vast and complex piece

of litigation to lay fact finders.

This court hereby AFFIRMS the judgment of the United States District

Court for the District of Kansas, except as to the Texas Plaintiffs’ claims under

state common law fraud and section 27.01 of the Texas Business & Commercial

Code. Regarding those two claims, this court REVERSES and REMANDS for

proceedings consistent with this opinion.

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 APPENDIX

Following is a list and discussion of the evidence which this court

considered in determining whether the district court erroneously granted summary

judgment on the Plaintiffs’ 175,000 B/D expansion claim:

• A 12/13/82 letter from Keith Bailey, President of Williams Pipeline, to

J.W. Moeller, Vice President of KII, stating, “As you know, time is growing short

if we are to have an expansion in place by mid-1983.” This letter undoubtedly

refers to the 145,000 B/D expansion, not the 175,000 B/D expansion idea, as even

Plaintiffs allege the larger expansion was not intended for completion until the

end of 1985 while KII aimed to complete the 145,000 B/D expansion by mid-

1983.

• A 1/6/83 letter from KII’s Vice President of Planning to Williams

Pipeline, stating, “Due to Koch Refining’s current and planned future expansion

of our Pine Bend Refinery . . . Koch Refining and Williams Pipeline management

have been discussing several plans to increase current pumping capacity into the

Williams system.” Given the date of this letter, the “current expansion” language

must refer to the 145,000 B/D expansion. The “planned expansion” wording,

however, is not expressly clear as to whether it refers to a 155,000 B/D or a

175,000 B/D expansion. Reading this document in the context of the other

evidence, however, leads this court to conclude this language must refer to the

-1-
lesser expansion, inasmuch as there is no evidence that as of January 6, 1983 KII

had even started discussions with Litwin Engineering about a potential 175,000

B/D expansion.

• 1/20/83 Litwin Engineering notes from a meeting with KII

representatives, stating,

1. The purpose of the meeting was to establish a basis for design to
expand Koch’s St. Paul Refinery No. 1 Crude Unit to 65,000 BPD.
The unit presently operates at approximately 39,000 - 40,000 BPD.
Koch is currently making modifications which will increase capacity
to approximately 50,000 BPD.
2. Target for processing 65,000 BPD would be start of summer, 1984.

These notes indicate that prior to the SPA, KII had inquired of Litwin about

possible designs for Unit 1 which would enable that unit to process 65,000 B/D.

KII was therefore at least considering such an expansion prior to the SPA. These

notes do not suggest, however, that KII had contracted with Litwin to do actual

design work required for the expansion or that KII had committed in any way to

effectuating the expansion.

• an undated Litwin Proposal, stating the following:

Litwin will provide engineering and estimating services to
provide Koch Refining Co. with comparative budget cost estimates
of 1) expanding Koch’s existing St. Paul Refinery No. 1 Crude Unit
from the present operating capacity of 40,000 BPSD to 65,000 BPSD
and
2) constructing a new 65,000 BPSD Crude Unit at the same
facility.
Litwin’s initial emphasis will be the review of two cases of a
1979 study for expanding Koch’s St. Paul No. 1 Crude Unit.

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 ...
Litwin anticipates completion of this work approximately five
weeks after release by Koch.

This likely was written shortly after the January 1983 meeting with KII

representatives. The Proposal, however, manifests only the internal dynamics of

Litwin regarding what it would do to study the potential expansion.

• a 2/1/83 Proposal from Litwin to KII:

Litwin proposes to provide process and mechanical
engineering and cost estimating services to compare [1.] expansion
of the No. 1 Crude Unit from 40,000 BPSD to 60,000 BPSD, [2.]
expansion of the No. 1 Crude Unit from 40,000 BPSD to 65,000
BPSD, and [3.] construction of a new 65,000 BPSD Crude Unit.
...
Litwin will review and update . . . two cases of its 1979 study for
expansion of the No. 1 Crude Unit. . . .
This proposal is valid for acceptance on or before February 15, 1983
....

This document appears to be a contract offer from Litwin to KII. Like the prior

undated proposal, this document reveals Litwin’s offer to engage in these studies

but not KII’s commitment to the studies or the actual expansion.

• 1/31/83; 2/3/83; 2/14/83 calculations by Litwin employees. These

calculations were performed internally by Litwin and there is no direct evidence

that they ever reached the eyes of KII representatives. This work, however, may

imply that KII had in fact accepted Litwin’s proposal to study these design

options for the 175,000 B/D expansion. Alternatively, these calculations may

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merely suggest Litwin’s dogged and hopeful pursuit of a contract which KII had

not yet accepted. At most, however, this work merely evidences that KII was

studying the expansion option, but not that KII had committed to it.

• 3/4/83 Project Notes for internal use only, written by L.J. Ross of Litwin,

stating, “Attached is a marked-up Equipment Summary for both the 60,000 BPSD

and 65,000 BPSD Crude Unit Expansion . . . .” Again, while one might infer

from these notes that KII had engaged Litwin to study these two options, there

remains no evidence KII saw these notes or that the matter progressed to a

planned expansion.

• an 8/3/83 unsigned memorandum entitled “Crude and Hydrotreater

Expansion - Pine Bend,” which states, “We propose to utilize an existing FCC

Preheater and add a Preflash Tower to increase our No. 1 Crude Unit capacity to

65,000 B/D. This plus 110,000 B/D capacity of the No. [2] crude unit . . . will

give us a total of 175,000 B/D crude capacity.” The words “our No. 1 Crude

Unit” indicate a KII employee drafted this memorandum. The document,

however, merely proposes this expansion option. It does not demonstrate that KII

was actually planning to execute this expansion.

• 8/9/83 Litwin Conference Notes from a meeting with J. Johnson of KII,

stating, “Litwin is to present Koch with the cost and time required to prepare a

process package with major equipment specifications for a new 65,000 BPD Unit

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and Splitter Tower at the St. Paul Refinery.” These notes provide fairly strong

inferential evidence that KII had not accepted Litwin’s earlier contract offer of

February 1, 1983. If KII had accepted that offer, these cost estimates would have

been prepared much earlier.

• 8/19-20/83, KII Board of Directors Meeting Supplemental Information,

stating “Analysis of the expansion of Pine Bend crude and desulfurization

capacity have been underway for some time. . . . Design and optimization of

equipment of the two desulfurizers and the crude expansion are in progress. . . .

[A]pplication for the crude expansion permit will be submitted in September.

Final cost estimates, LP optimizations and economics are being prepared.” In a

chart on the following page, titled “Pine Bend Expansion Comparison,” the

number 157.5 appears as the “total” under the column for “Expansion Case

(MB/D).” The first two statements in the Board notes must refer to the 155,000

B/D expansion, given the on-going nature of the stated expansions and the

numbers on the following page. The statement regarding the permit, however,

could possibly refer to an expansion beyond 155,000 B/D. Nonetheless, it is

significant that KII did not apply for a permit which might have pertained to a

175,000 B/D expansion until September 1983.

• a 9/26/83 Memo from KII employee T.W. Segar to KII President Bernard

Paulson, stating, “1. Koch presently has a refinery capacity of 137,000 B/D crude

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oil and is operating at or near maximum. 2. Expansion plans are to add a third

crude unit of 70,000 B/D to raise design capacity to 207,000 B/D.” This memo

indicates KII may have abandoned all of the options for expansion to 175,000

B/D studied by Litwin, opting instead for a more aggressive expansion plan.

Thus, this document constitutes evidence of KII’s tentative approach, as of June,

1983, to a possible 175,000 B/D expansion, something less than “making plans.”

• a 10/13/83 Memo Sheet from First National Bank of Chicago’s Annual

Review of Koch, which states, “Koch is considering expanding the [Pine Bend]

refinery to 175,000 BPD and ‘exporting’ the additional product into Chicago, Des

Moines, and Kansas City areas to take advantage of the markets formerly served

by refineries which have closed.” This reference to the 175,000 B/D is

inconsistent with the prior document (the 9/26/83 memo), but perhaps First

Chicago was relying on older information. More significantly, KII apparently was

telling First Chicago in October 1983 that it was merely “considering” this

expansion possibility.

• on 11/16/83, KII publicly announced its plan of adding a third crude unit

to expand to 207,000 B/D. Again, this commitment to a more aggressive

expansion indicates KII had abandoned the two options which Litwin investigated

that would have increased Pine Bend’s crude production to a mere 175,000 B/D.

• 12/8-9/83 KII Board of Directors Meeting Supplemental Information:

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 At the August 1983 Board Meeting, a combined project to
expand Pine Bend Crude capacity to 175 MB/D and construct two 10
MB/D hydrotreaters using equipment purchased from Sohio was
presented. Several significant changes have occurred since August
and the current status of the project is discussed below.
...
Modifications to the [No.] 2 crude unit during the September
turnaround has increased crude capacity to 155 MB/D. . . . Although
a crude expansion still appears to be economically attractive,
additional analysis is required due to the reduced Canadian crude
availability and expanded base capacity.

In November, permit application was made to the Minnesota agencies
for construction of a 70 MB/D grass roots crude unit in order to
expedite permitting, which normally requires approximately one year
to complete. Currently, two cases are being evaluated: (1) Expand
the [No.] 1 crude unit from 40 MB/D to 70 MB/D and (2) Construct a
new 70 MB/D crude unit and shut down the [No. 1] crude unit. The
permit application would be adequate for either alternative.
...
Major efforts currently are directed toward attaining the permits
necessary to expand the crude unit. Analysis is progressing on the
two alternate cases under various crude availability and product
marketing scenarios.

This discussion apparently revives consideration of the Litwin options, or perhaps

these options never were abandoned, despite the implications of earlier

documents. As of December 1983, however, the 175,000 B/D expansion option

was still mired in the “analysis” stage and KII simply was continuing to explore

this possibility.

• 2/21/84, Fourth Quarter Report from Bernard Paulson: “We have applied

for permits to increase our permitted capacity to crude to 200,000 B/D and expect

it to take over a year to secure the permit. We would plan to be running to

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170,000 B/D in 1986.” At this stage, some eight months following execution of

the SPA, KII was indeed making plans for an interim expansion at least

approaching 175,000 B/D with an ultimate expansion to approximately 200,000

B/D.

• 3/6/84 KII Inter-company notes, stating, “Bernie Paulson in charge of

Refineries stated that in 1983 the Pine Bend Refinery had a capability of handling

138,000 barrels of crude oil and in 1984 that would increase to 152,000 barrels

per day with the goal of being 170,000.” Again, it seems that now KII had made

a more definite commitment to the nearly 175,000 B/D expansion. These

references to 170,000 B/D, however, do cast doubt on KII’s pre-SPA level of

commitment to the 175,000 B/D expansion possibility.

• 5/7/84, First National Bank of Chicago’s Annual Review of KII: “Also

under consideration are the replacement of the No. 1 crude unit for efficiency and

the expansion and revamping of the fluid unit.” Contrary to the prior two

documents, this review indicates that as late as May of 1984 KII was still only

“considering” this expansion.

• In Bernard Paulson’s deposition testimony, he stated,

We did have Litwin review the possibility of expanding the No. 1
crude unit. . . . It was a rather short cursory look at it, this is January
26, I assume the latter part of ‘82. I don’t think they spent a lot of
time at it. . . . [W]e did not do it and rejected it I think because it was
too much money, you know, it was not effective.”

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