Brandt v. Wand Partners

United States Court of Appeals
For the First Circuit

No. 00-1065

WILLIAM A. BRANDT, JR.,

Plaintiff, Appellant,

v.

WAND PARTNERS, ET AL.,

Defendants, Appellees.
____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Boudin, Circuit Judge,

Cyr, Senior Circuit Judge,

and Zobel,* District Judge.

J. Joseph Bainton with whom John G. McCarthy, Ethan D.
Siegel, Andrew H. Beatty, Bainton McCarthy & Siegel, LLC,
Timothy P. Wickstrom, Tashjian, Simsarian & Wickstrom, Daniel C.
Cohn, David Madoff and Cohn & Kelakos LLP were on brief for
plaintiff.
John O. Mirick with whom Mirick, O'Connell, De Mallie &
Lougee, LLP, David L. Evans, Hanify & King, P.C., Mike McKool,
Jr., Sam F. Baxter, Jeffrey A. Carter, Rosemary T. Snider, Randy
J. Carter and McKool Smith, P.C. were on brief for appellees
Hicks, Muse and Company (TX) Incorporated, Hicks, Muse Equity

*Of the District of Massachusetts, sitting by designation.
Fund, L.P., HMC Partners, L.P., HMC Partners, Healthco Holding
Corporation, Thomas Hicks, John Muse and Jack Furst.
John J. Curtin, Jr. with whom Mark W. Batten, Bingham, Dana
LLP, Matthew Gluck, Gregg L. Weiner, and Fried, Frank, Harris,
Shriver & Jacobson, P.C. were on brief for appellees Thomas L.
Kempner and Vincent A. Mai.
Thomas G. Rafferty with whom David R. Marriott, Aviva O.
Wertheimer, Cravath, Swaine & Moore, Arnold P. Messing, E. Kenly
Ames and Choate, Hall & Stewart were on brief for appellee
Lazard Frères & Company LLC.
Alan Kolod with whom Mark N. Parry, Moses & Singer LLP,
Vincent M. Amoroso and Posternak, Blankstein & Lund were on
brief for appellees Kenneth W. Aitchison, Robert E. Mulcahy III,
Arthur M. Goldberg and Gemini Partners, L.P.
E. Randolph Tucker with whom John A.D. Gilmore, John A.E.
Pottow and Hill & Barlow, P.C. were on brief for The Airlie
Group, L.P., Dort Cameron, III, EDB, L.P., TMT-FW, Inc., Thomas
M. Taylor, Lee M. Bass and Perry R. Bass.
Thomas C. Frongillo, Brian E. Pastuszenski, Amanda J. Metts
and Testa, Hurwitz & Thibeault, LLP on brief for appellees Wand
Partners and Mercury Asset Management.
Leonard H. Freiman, James F. Wallack and Goulston & Storrs,
P.C. on brief for appellees Helen Cyker and J. Robert Casey,
Trustee.
Nancy L. Lazar, Dennis E. Glazer, Edward P. Boyle and Davis
Polk and Wardwell on brief for appellee J.P. Morgan & Company,
Inc.
Paula M. Bagger, Marjorie Sommer Cooke, Christopher T.
Vrountas and Cooke, Clancy & Gruenthal on brief for appellee
Marvin Meyer Cyker.
Edwin G. Schallert, Eileen E. Sullivan and Debevoise &
Plimpton on brief for appellees Chancellor Capital Management,
Inc.
and Chancellor Trust Company.
Kathleen S. Donius, Stephen T. Jacobs and Reinhart, Boerner,
Van Deuren, Norris & Rieselbach, s.c. on brief for appellee
Valuation Research Corporation.

March 2, 2001
 BOUDIN, Circuit Judge. This case arises out of the

failure and chapter 7 bankruptcy of Healthco International, Inc.

("Healthco"), a major global distributor of dental products and

services. Following this debacle, the chapter 7 trustee brought

the present case on behalf of the estate against numerous

parties alleged to have been responsible for, or beneficiaries

of, the leveraged buyout that precipitated the collapse of

Healthco. We begin with a short history of the transactions and

proceedings, and then address the claims on appeal made by the

bankruptcy trustee, William Brandt.1

I. Factual Background

In the late spring of 1990, Gemini Partners, L.P., a

Delaware limited partnership that owned 9.96% of Healthco's

common shares, formed the Committee for Maximizing Shareholder

Value of Healthco International ("the Committee") and began a

1
Aspects of Healthco's bankruptcy are addressed in Hicks,
Muse & Co. v. Brandt (In re Healthco Int'l, Inc.), 136 F.3d 45
(1st Cir. 1998); Brandt v. Repco Printers & Lithographics, Inc.
(In re Healthco Int'l, Inc.), 132 F.3d 104 (1st Cir. 1997);
Brandt v. Hicks, Muse & Co., 213 B.R. 784 (D. Mass. 1997);
Brandt v. Hicks, Muse & Co. (In re Healthco Int'l, Inc.), 208
B.R. 288 (Bankr. D. Mass. 1997); Brandt v. Hicks, Muse & Co. (In
re Healthco Int'l, Inc.), 203 B.R. 515 (Bankr. D. Mass. 1996);
Brandt v. Hicks, Muse & Co. (In re Healthco Int'l, Inc.), 201
B.R. 19 (Bankr. D. Mass. 1996); Brandt v. Hicks, Muse & Co. (In
re Healthco Int'l, Inc.), 195 B.R. 971 (Bankr. D. Mass. 1996);
In re Healthco Int'l, Inc., 174 B.R. 174 (Bankr. D. Mass. 1994).
Two opinions in this group, Brandt, 213 B.R. 784, and Brandt,
208 B.R. 288, provide more detailed accounts of the leveraged
buyout than our own summary.

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proxy contest to remove Healthco's incumbent directors. In

response, Healthco engaged Lazard Frères & Co. LLC as its

financial advisor and sought to arrange the company's sale to

another buyer.

On September 4, 1990, Healthco entered into a merger

agreement with affiliates of Hicks, Muse & Co. ("Hicks, Muse"),

a Dallas-based investment firm. Under the agreement, a company

formed by Hicks, Muse would merge with Healthco after acquiring

its stock at a price of $19.25 per share. After reaching this

agreement, in mid-September Healthco negotiated a separate

settlement agreement with Gemini and the Committee, under which

three Committee nominees became members of Healthco's seven-

member board. The settlement agreement provided that, if the

merger agreement was terminated or sufficient progress toward a

sale of the company was not subsequently made, the Committee

could increase its share of the board from three out of seven to

five out of nine. As a further spur to a merger or sale, Gemini

promised each Committee director $24,000, less director

compensation, if Gemini sold its shares at a profit.

In February 1991, Hicks, Muse's initial plan for a

leveraged buyout2 ("LBO") of Healthco fell apart after Healthco's

2
A leveraged buyout is a transaction to acquire a
corporation
"in which a substantial portion of the purchase price paid for

-5-
annual physical inventory indicated that the company's unaudited

1990 earnings were several million dollars lower than expected.

Healthco's auditors, Coopers & Lybrand L.L.P., later certified

financial statements that revealed a 1990 net loss of just over

$5 million and 1990 earnings of less than $22 million. Given

such figures, Hicks, Muse determined the $19.25 share price was

too high, and the parties set to work drawing up a new plan.

On March 26, 1991, Healthco's board voted 5-2 to

approve a new merger plan involving Hicks, Muse affiliates.

Marvin Cyker, Healthco's chief executive officer and board

chairman, who held stock options but no outstanding shares in

Healthco, was one of the two board members who voted against the

transaction. The proposal was for a tender offer for Healthco

stock at $15 per share to be made under Hicks, Muse's auspices,

with financing by other parties, after which Healthco would

merge with a new entity controlled by the new investors. Lazard

Frères advised that the transaction was fair to Healthco

stockholders.

the stock of a target corporation is borrowed and where the loan
is secured by the target corporation's assets." Mellon Bank,
N.A. v. Metro Communications, Inc., 945 F.2d 635, 645 (3d Cir.
1991), cert. denied, 503 U.S. 937 (1992); 3 Norton Bankruptcy
Law and Practice 2d § 58A:1, at 58A-2 to 58A-3 (William L.
Norton, Jr., ed., 1997). See generally Day, Walls & Dolak,
Riding the Rapids: Financing the Leveraged Transaction Without
Getting Wet, 41 Syracuse L. Rev. 661 (1990).

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 On April 2, a tender offer for Healthco stock was made

by HMD Acquisition Corp., a wholly-owned subsidiary of Healthco

Holding Co.; Healthco Holding was itself a company set up by

Hicks, Muse to be the recipient of $55 million of the Hicks,

Muse investors' funds. Additional funds for the merger were to

be supplied by a bank group that would provide a $50 million

tender facility (i.e., an available loan) in exchange for

perfected first priority liens on HMD Acquisition's shares in

Healthco. Another group of investment entities were to provide

$45 million in cash, in exchange for subordinated debt.

The tender offer was successful. HMD Acquisition

acquired more than 90% of Healthco's stock in the tender offer.

Among the stockholders who tendered shares or options in the

merger were Marvin Cyker, who received over $1 million for his

stock options, and J.P. Morgan & Co., an investment firm that

had held 17.3% of Healthco's shares (13.0% on a fully diluted

basis, i.e., after the exercise of options) as a record

shareholder for its clients.

The buyout of Healthco was completed on May 22, 1991,

through a short-form, cash-out merger, Del. Code Ann. tit. 8, §

253 (1999), in which HMD Acquisition Corp. was merged into

Healthco. Healthco's remaining original stockholders received

$15 per share in exchange for their holdings. The Hicks, Muse

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investors, by contrast, were now largely dependent on Healthco's

fate. As a result of the merger, Healthco, the surviving

company, inherited all of HMD Acquisition's debts--namely, the

multimillion-dollar debts owed to non-equity investors (e.g.,

the banks) who helped to finance the Healthco buyout.

After the merger, Healthco's financial situation

steadily deteriorated. (It is unclear to what extent this was

due to pre-existing problems and to what extent the situation

was aggravated by new debt.) In the spring of 1992, Healthco

was placed on credit hold by a large European supplier, and by

June 1992 more than forty of Healthco's suppliers were refusing

to ship it goods until they were paid for past receivables.

After defaulting on several loan covenants, Healthco faced an

increasingly hostile relationship with the bank group that had

financed the tender facility for the buyout.

On June 9, 1993, Healthco filed a petition for chapter

11 bankruptcy in the federal bankruptcy court in Massachusetts,

11 U.S.C. § 301 (1994). That September, after declining to

approve a new borrowing arrangement, the bankruptcy court

granted Healthco's motion for conversion to chapter 7

bankruptcy. Id. § 1112(a). The buyout of Healthco, which had

possessed assets of greater than $300 million at the time of the

merger, had ended in a liquidation proceeding that yielded less

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than $60 million, far less than what was needed to pay off

Healthco's creditors.

On June 8, 1995, Brandt, as Healthco's chapter 7

trustee, began the present adversary proceeding in the

bankruptcy court, implicating almost all of those involved in

the merger transaction and ultimately claiming around $300

million in damages. Brandt's 22-count complaint made 12 claims

for fraudulent transfers (counts I-XII).3 Brandt also alleged

four counts of breach of fiduciary duty, or of aiding and

abetting the same (counts XIII-XVI).4 Finally, Brandt charged

Coopers & Lybrand with accounting malpractice; accused Lazard

and Valuation Research Corporation, a financial advisor of

Hicks, Muse, of negligence; claimed that all the tendering

shareholders were unjustly enriched and benefitted from a

commercially unreasonable distribution; and alleged that the

3
Those accused of benefitting from fraudulent transfers
included (1) Hicks, Muse, the primary orchestrator of the
leveraged buyout; (2) the bank group and subordinated
debtholders who helped finance the buyout; (3) various other
Healthco stockholders, whose tendering of shares allowed the
buyout to proceed; (4) and various professionals who were paid
for their roles in bringing about the buyout.
4
The primary targets of these counts were the directors of
Healthco and HMD Acquisition, as well as Healthco's controlling
shareholders. Their alleged aiders and abettors included Hicks,
Muse, Healthco Holding Co., the bank group, Healthco directors
who voted for the buyout, Valuation Research which had endorsed
the feasibility of the original $19 buyout plan, and Lazard
which had endorsed the fairness of the $15 plan.

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bank group was liable because of the commercially unreasonable

way in which it liquidated its collateral (counts XVII-XXII).

Proceedings in the bankruptcy court were extensive

during the balance of 1995 and throughout 1996. In addition to

discovery (and discovery disputes), there were several amended

complaints by Brandt, dismissal or summary judgment grants in

favor of various defendants on specific claims, and efforts

(generally unsuccessful) by Brandt to get interlocutory review

on various rulings in the district court. Although it became

clear in 1996 that a jury trial would likely be required in the

district court on certain claims, the bankruptcy judge continued

to oversee the matter.

In early 1997, the district court began to move the

remaining claims toward trial. Brandt then reached a settlement

with the bank group defendants and later filed a fourth amended

complaint streamlining various of the claims that remained.

Shortly before trial, Brandt settled his claim with Coopers &

Lybrand. Except for claims against Lazard, (where jury trial

had been waived) the remaining claims were tried to a jury in a

27-day trial from April 23 until June 6, 1997. Brandt lost on

every claim tried to the jury, and the district court found in

favor of Lazard.

-10-
 Brandt now appeals on numerous issues. Importantly,

these include the dismissal by the bankruptcy court of key

fraudulent transfer claims, its grant of summary judgment for

various defendants as to the unjust enrichment claims against

them, the district court's disposition of certain fiduciary duty

claims, and miscellaneous claims relating to discovery and the

conduct of the trial. The details, and certain concerns about

our jurisdiction, are discussed in connection with each set of

claims.

II. Fraudulent Transfer Dismissals

We start with Brandt's effort to revive the fraudulent

transfer claims that the bankruptcy judge dismissed. In

essence, Brandt's theory of fraudulent transfer is that because

Healthco's assumption of HMD Acquisition's liabilities meant

that Healthco's assets became collateral for the debt that

financed the buyout, both the tendering shareholders and the

financiers obtained proceeds from a "fraudulent" transaction

that deprived Healthco's pre-existing unsecured creditors of

most of the value of the company's assets.

The bankruptcy court refused to see the transaction as

a stripping of Healthco assets. Rejecting Brandt's call to

"collapse" the multi-step buyout into a transfer of Healthco's

assets to shareholders and buyout financiers, the bankruptcy

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court repeatedly held that "funds transferred by [HMD]

Acquisition prior to the effectiveness of the merger [were] not

transfers by [Healthco] and hence are immune from fraudulent

transfer attack." Brandt, 201 B.R. at 21. It is this refusal

to "collapse" the leveraged buyout, and hence treat the payments

in question as ones made in substance (although not in form) out

of Healthco's assets, which is the focus of Brandt's challenge

on appeal.

Whether the transaction should have been "collapsed"

appears to be a difficult issue of state law (the parties do not

agree on which state or states supply the law) on which there is

fairly limited precedent.5 Of course, there are similar problems

5See, e.g., Kupetz v. Wolf, 845 F.2d 842, 847-48, 850 (9th
Cir. 1988) (respecting "the formal structure of [the] LBO," and
declining to apply a theory of constructive fraud); United
States v. Tabor Court Realty Corp., 803 F.2d 1288, 1297 (3d Cir.
1986) (applying Pennsylvania's fraudulent conveyance statute to
leveraged buyouts), cert. denied, 483 U.S. 1005 (1987); MFS/Sun
Life Trust-High Yield Series v. Van Dusen Airport Servs. Co.,
910 F. Supp. 913, 933-34 (S.D.N.Y. 1995) (finding collapsing an
LBO appropriate where "all parties to each subsidiary transfer
were aware of the overall leveraged buyout"); Wieboldt Stores,
Inc. v. Schottenstein, 94 B.R. 488, 501-03 (N.D. Ill. 1988)
(collapsing an LBO with respect to "the controlling
shareholders, the LBO lenders, and the insider shareholders,"
but not with respect to shareholders who were only aware of the
tender offer made to them); Murphy v. Meritor Sav. Bank (In re
O'Day Corp.), 126 B.R. 370, 394 (Bankr. D. Mass. 1991)
(collapsing an LBO where "all parties . . . were aware of the
structure of the transaction and participated in implementing
it"); In re Revco D.S., Inc., 118 B.R. 468, 517-18 (Bankr. N.D.
Ohio 1990) (noting the competition between more traditional
"anti-collapse" and more modern "pro-collapse" perspectives).

-12-
in other areas (e.g., tax law, see True v. United States, 190

F.3d 1165, 1176-77 (10th Cir. 1999)), and there are countless

difficult arguments in policy presented by the request to

collapse the buyout. Indeed, the bankruptcy court itself, in

dealing with directors' obligations of loyalty, recognized that

Healthco's assets were security for the transaction's financing

and described as "myopic" the defendants' argument that the

buyout transaction should be analyzed only in terms of its

separate parts. Brandt, 208 B.R. at 302.

We conclude, however, that the issue is not properly

before us because our authority is limited to review of

judgments by the district court and Brandt never secured a

district court judgment resolving any of the fraudulent transfer

claims. Abbreviating the history, the story begins with the

bankruptcy court's orders of October 27, 1995, granting motions

to dismiss on the basis of a bench ruling from the prior day.

The dismissals were of fraudulent transfer claims against

various defendants who were for the most part tendering

shareholders in the multi-step buyout: J.P. Morgan & Co., the

Airlie Group defendants (a limited partnership and several

individuals who owned approximately 10% of Healthco's stock), J.

Robert Casey, and Helen and Marvin Cyker.

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 On November 6, 1995, Brandt sought leave to appeal

these dismissals as interlocutory orders, 28 U.S.C. § 158(a);

Fed. R. Bankr. P. 8003. On June 27, 1996, the district court

denied this motion. Brandt then asked the bankruptcy court to

certify the dismissals for an appeal under Federal Rule of

Bankruptcy Procedure 7054(a), the bankruptcy counterpart of

Federal Rule of Civil Procedure 54(b), but the bankruptcy court

denied this motion. Later the bankruptcy court issued orders

dismissing further claims of fraudulent transfers to Healthco

shareholders, subordinated preferred shareholders, and others.

Again Brandt did not secure review by the district court.

At this stage, the bankruptcy court's orders were

dismissals of claims on the merits but were not final (and

therefore not immediately appealable as of right). 28 U.S.C. §

158(a). The bankruptcy court has authority to deny on the

merits claims that are within its core authority, and one

proceeding so listed is the voiding of fraudulent conveyances.

Id. § 157(b)(2)(H). Even if for some reason the claims at issue

are not within this rubric (the parties have not briefed the

issue and we do not decide it), Brandt did not contest the

bankruptcy court's power to dismiss on the merits, so there was

also jurisdiction by consent. See In re G.S.F. Corp., 938 F.2d

1467, 1476-77 (1st Cir. 1991). See generally 28 U.S.C. §

-14-
157(c)(2); Commodity Futures Trading Comm'n v. Schor, 478 U.S.

833, 848-50 (1986).

The finality issue is complicated. Although a "final

judgment" rule of some kind applies to appeals from the

bankruptcy court to the district court (with exceptions for

certification and leave of the court), the concept of finality

is more flexibly applied than with regard to district court

judgments, In re American Colonial Broad. Corp., 758 F.2d 794,

801 (1st Cir. 1985); this approach recognizes that complex

bankruptcies are often an umbrella for a multitude of claims

between different parties and, thus, that the strict requirement

of final judgment used in district court appeals--the resolution

of all claims as between all parties--could delay for years

district court review of matters that are essentially final as

between the parties concerned in a bankruptcy.

The difficulty is that despite some agreement as to

which actions are final or not final, no uniform and well-

developed set of rules exists and on many points there is a good

deal of uncertainty. See 1 Collier on Bankruptcy § 5.07

(Lawrence P. King ed., 15th ed. 2000); cf. In re Public Serv.

Co. of N.H., 898 F.2d 1, 2 (1st Cir. 1990) (noting "strong

analogies" between adversary proceedings and ordinary district

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court cases, and suggesting that a bankruptcy court's partial

summary judgment order was not final).

In this case, it appears that most defendants who had

fraudulent transfer claims dismissed by the bankruptcy judge

still had other limited claims ( e.g., unjust enrichment) pending

against them (subordinated debtholders who helped finance the

buyout possibly being the only significant exceptions).

Furthermore, all the dismissed claims were substantially related

to those that remained before the lower courts. Indeed, it is

seemingly for these reasons that the bankruptcy court and

district court resisted interlocutory review or certification.

Brandt himself thought the dismissals were interlocutory at the

time the orders were entered, and no one has disputed that view.

We thus proceed on that premise, without any further effort to

develop clear-cut rules in this difficult area.

Eventually, the district court withdrew its reference

to the bankruptcy court as to various components of the case so

that it could dispose of a number of claims that required a jury

trial (together with a parallel jury-waived claim against

Lazard). Possibly at this time Brandt could have taken the

position that the transfer of other claims as to the defendants

in question rendered final the earlier orders dismissing the

fraudulent transfer claims. In that event, Brandt would have

-16-
had ten days following the termination of the reference to file

an appeal in the district court challenging the dismissals. See

Fed. R. Bankr. P. 8002(a). However, Brandt did not follow

this course, nor did he alert the district court, as the court

proceeded to try the remaining claims, that the bankruptcy

court's dismissal of the fraudulent transfer claims remained

open to challenge in the district court. If the district court

had been so alerted, it is unlikely that it would have ignored

the matter; and regardless of whether the district court upheld

the bankruptcy judge or reversed him and tried these claims

along with the others, there would have been a resolution of the

fraudulent transfer claims by the district court that could now

be brought before us.

Following the trial, Brandt filed new trial motions

directed to the claims that had been resolved by the district

court but again made no mention of the fraudulent transfer

claims. Instead, after the motions were denied, Brandt filed

his appeal from the district court's judgment and then proceeded

in this court to brief the dismissal of the fraudulent transfer

claims as if they were encompassed by the district court's

judgment. But, of course, the district court's judgment only

resolved the claims that had been presented to the district

court and decided by the judge or the jury.

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 After various defendants objected to consideration of

the fraudulent transfer claims on appeal, Brandt filed a reply

brief urging that "the entry of final judgment in the District

Court calls up for appellate review by this Court all

interlocutory orders of which the Trustee is aggrieved, whether

entered by the District Court or by the Bankruptcy Court, and

this Court therefore has jurisdiction over all aspects of this

appeal." Brandt also points to his earlier efforts to appeal

the dismissals as interlocutory orders and pokes fun at the

notion that there should now be an appeal of those dismissals to

the district court with appeals proceeding simultaneously before

the district court (on the fraudulent transfer claims) and

before this court (on the claims already resolved in the

district court). None of these arguments works.

True, where the district court has made interlocutory

decisions before entering a final judgment, an appeal from the

final judgment brings up the interlocutory decisions for review

by this court. John's Insulation, Inc. v. L. Addison & Assocs.,

Inc., 156 F.3d 101, 105 (1st Cir. 1998). The difficulty is that

this logic works only with respect to the interlocutory orders

of the district court; the bankruptcy court, although a unit of

the district court, is a distinct entity whose orders are

appealable to the district court under a set of detailed

-18-
restrictions and time limits. If proper and timely review is

not sought in the district court, the matter never reaches that

court and a fortiori does not reach this court.

One could argue that the dismissal orders in question

became final only when the district court dismissed the

remaining claims against the same defendants following trial.

If so, Brandt might then have appealed the dismissal orders to

the district court, obtained a ruling and (assuming affirmance)

sought to consolidate an appeal from this judgment with its

previous appeal from the judgment on issues actually tried to

the district court. However, Brandt did not follow this course

either and cannot do so now because the time limit on an appeal

to the district court expired before Brandt filed his appeal in

this court.6 The failure of Brandt's case on this ground also

spares us from considering various so-called "waiver" arguments

that some of the defendants pressed based on Brandt's failure to

act earlier to raise the dismissed claims in the district court.

From an equitable standpoint, one may feel some

sympathy for Brandt, who was faced with poorly developed rules

6Fed. R. Bankr. 8002(a). This discrepancy in timing also
forecloses any option we otherwise might have had to treat the
appeal to us as an appeal of the bankruptcy court orders filed
in the wrong court and to transfer the appeal to the district
court based on the transfer statute, 28 U.S.C. § 1631. Notably,
Brandt has neither cited the transfer statute nor made any such
transfer request.

-19-
on finality and who made early efforts to seek district court

review of the dismissals; it is much less easy to excuse the

apparent failure of Brandt to call vividly to the district

court's attention the fact that, while that court was proceeding

to try a set of claims properly before it, Brandt still desired

to press other claims that the bankruptcy court had dismissed

and which would almost certainly have been tried at the same

time if the district court had overturned the bankruptcy court's

dismissals.

However, our inability to address the merits does not

rest on an equitable objection. Rather, it rests on the simple

fact that our authority is to review judgments of the district

court, and Brandt never secured a district court judgment on the

fraudulent transfer claims nor is it apparent how he could do so

now. Counsel for the trustee in a complicated bankruptcy case

has to make its own decisions even where the law is unclear, and

the course here followed did not preserve Brandt's claims.

III. The Unjust Enrichment Claims

The bankruptcy court granted summary judgment rejecting

claims of unjust enrichment leveled against a number of

defendants. Most of the grants were never reviewed by the

district court and are thus not before us, but Brandt did seek

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review by the district court of the summary judgments on these

counts in favor of J.P. Morgan and Marvin Cyker.

The district court granted Brandt leave to appeal these

two summary judgments as interlocutory orders but nevertheless

affirmed the bankruptcy court's judgments on the ground that

neither J.P. Morgan nor Cyker had been shown to have committed

the "minimal wrongdoing" that the district court deemed required

for an unjust enrichment claim under Massachusetts law. The

district court's rationale differed from those of the bankruptcy

court: the bankruptcy court had ruled in favor of Cyker because

he opposed the transaction, and in favor of J.P. Morgan because,

as a mere recordholder, it received no direct benefit from the

transaction.

J.P. Morgan argues that Brandt is seeking to appeal

directly to this court from the bankruptcy court rulings, which

Brandt may not do. Brandt's arguments in his opening brief

suggest that he has the same view. But given the district

court's affirmance and the lack of any limiting language in the

notice of appeal to this court, we are free to treat Brandt as

appealing from the district judge's affirmance of these orders.

So viewed, these district court orders merged in the final

judgment entered by the district court and are properly before

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us now. Cf. In re Parque Forestal, Inc., 949 F.2d 504, 508 (1st

Cir. 1991).

Brandt appears to be right that under Massachusetts law

unjust enrichment does not always require a finding of

wrongdoing by the defendant. There are cases, albeit addressed

to a somewhat different problem (mutual mistake), that hold that

wrongdoing is not required so long as retention of the benefit

would be unjust. E.g., White v. White, 190 N.E.2d 102, 104

(Mass. 1963); National Shawmut Bank of Boston v. Fidelity Mut.

Life Ins. Co., 61 N.E.2d 18, 22 (Mass. 1945); see Keller v.

O'Brien, 683 N.E.2d 1026, 1029-33 (Mass. 1997). See generally

Restatement of Restitution ch. 2, intro. note (1936). Indeed,

the district court so instructed the jury on the unjust

enrichment claim against Gemini, listing three elements of

unjust enrichment that the plaintiff "must show":

First, a benefit or enrichment was conferred
upon the defendant . . . ; second, the
retention of that benefit or enrichment
resulted in a detriment to [the plaintiff];
and, third, there are circumstances which
make the retention of that benefit . . .
unjust.

However, if, as the above suggests, the district court

erred in its reason for affirming the dismissal of the claims

against J.P. Morgan and Cyker, the error was harmless--and this

is so even without reliance on the different reasons for those

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dismissals given by the bankruptcy judge. After receiving the

above instruction on unjust enrichment, which did not require a

showing of wrongdoing, the jury proceeded to reject on the

merits the claim that Gemini was unjustly enriched by the

payment made to Gemini in exchange for its Healthco shares. The

counterpart claims against J.P. Morgan and Cyker were of the

same order but weaker.

Gemini was the partnership that precipitated the

original abortive LBO and then actively cooperated in achieving

the second and successful one. As noted above, after its failed

attempt to take over Healthco, Gemini entered an agreement that

effectively gave it power to control the nominations of three of

the seven members of Healthco's board, and the three resulting

nominees were on Healthco's board, and voted for the buyout and

merger, when it approved the merger plan by a 5-2 vote. By

contrast, J.P. Morgan held its shares as recordholder for

others and played no active role in the buyout, merely tendering

shares in response to a public offer. And Cyker, who later sold

stock options in Healthco, opposed and voted against the buyout.

It is hard to see how a jury that found in Gemini's favor could

possibly have resolved in Brandt's favor the decidedly weaker

claims against the other two defendants.

-23-
 The jury verdict against Gemini thus entitles us to

treat any error in the rationale for dismissing the claims

against the other two defendants as harmless. See Fite v.

Digital Equip. Corp., 232 F.3d 3, 6 (1st Cir. 2000). As in

Wills v. Brown University, 184 F.3d 20, 30 (1st Cir. 1999),

there is no practical likelihood that the dismissed claim could

have succeeded where the tried claim failed. Other circuits

have similarly found summary judgment orders harmless based on

the implications of subsequent jury verdicts. See, e.g., Gross

v. Weingarten, 217 F.3d 208, 219-20 (4th Cir. 2000); Thompson v.

Boggs, 33 F.3d 847, 859 (7th Cir. 1994), cert. denied, 514 U.S.

1063 (1995); Wing v. Britton, 748 F.2d 494, 498 (8th Cir. 1984).

IV. The Fiduciary Duty Claims

One of the claims made by Brandt charged the directors

of HMD Acquisition Corp. with breaching their "fiduciary duties

to Healthco and HMD Acquisition and their successors,

shareholders, and creditors." The bankruptcy judge dismissed

this claim on the ground that these directors owed their duties

to HMD Acquisition and not to Healthco. Even though the

defendants also began to serve as directors of Healthco

beginning on April 30, 1991, when the tender offer closed, the

bankruptcy judge said that Healthco had by then "already

committed itself to the transaction through its prior board."

-24-
The bankruptcy judge also said that although these were non-core

claims, he was entitled to determine them on the merits because

the parties had in effect consented to their disposition.

On April 23, 1997, the first day of the jury trial, the

district court announced that it was treating the bankruptcy

court judgment dismissing the fiduciary duty claims as a

proposed conclusion of law on a non-core matter, 28 U.S.C. §

157(c)(1), and then said that it was accepting and adopting the

bankruptcy court's recommendation. In this court, the

defendants argue that Brandt forfeited any appeal when he failed

to object to the bankruptcy court's recommendation within ten

days of the district court's recharacterization. See Fed. R.

Bankr. P. 9033(b). But if the bankruptcy court ruling was

converted at that time to a recommendation, there was no reason

for a further objection since the ruling was simultaneously

resolved on the merits by the district court. The district

court's merits resolution is merged in its final judgment and

properly before us.

Nonetheless, all this is for naught. In his opening

brief Brandt devotes only a single paragraph to the ruling on

HMD Acquisition's directors that he now seeks to reverse, saying

that any claim for duty breached by the directors of HMD

Acquisition "survived the merger." Brandt's terse argument does

-25-
not attempt to address the lower courts' ruling that there was

no breach of any fiduciary duty to Healthco when the critical

decision was taken. Brandt's effort to offer new arguments in

his reply brief, after the defendants filed their answering

briefs, comes too late. Rivera-Muriente v. Agosto-Alicea, 959

F.2d 349, 354 (1st Cir. 1992).

V. Discovery Matters

Brandt argues that the bankruptcy court committed

reversible error in various discovery rulings. None of these

rulings was formally appealed to the district court. However,

during a pre-trial telephone conference on February 14, 1997,

the district court judge indicated that he was aware of the

bankruptcy judge's discovery orders and was reluctant to disturb

them, but would nonetheless "allow some minimum amount of

further pretrial discovery." To the extent that the district

court did modify the bankruptcy court's discovery orders, the

modified orders are obviously before us for review.

The jurisdictional issue is more debatable as to the

discovery orders of the bankruptcy court that were not

disturbed. Perhaps the district court's statements could be

regarded as an implicit affirmance of those orders (or at least

some of them) on interlocutory appeal; if so, the affirmance

would be merged into the final judgment and properly before us.

-26-
We will assume this is so arguendo since it does not alter the

result.

The most controversial of the bankruptcy judge's orders

is that of June 20, 1996, which limited each side to ten

depositions as of right, in accordance with Federal Rule of

Civil Procedure 30(a)(2), with the remaining depositions to be

conducted from September through December 1996. Brandt had

already taken four depositions and was therefore allowed only

six more under the order. But the order also provided that

further depositions could be taken with leave of the court and

in accordance with the general principles set forth in Rule

26(b)(2). Brandt, who had planned to take sixty or so

additional depositions, immediately asked the bankruptcy judge

to remove any limit or at least to allow dozens of depositions,

and the bankruptcy judge refused.

On December 17, 1996, Brandt asked permission to take

additional depositions and for a one-month extension of the

deposition deadline. Although Brandt identified 19 additional

individuals and the subjects in question, the bankruptcy judge

denied the motion, saying that it came only two weeks before the

long-established deadline, a year-and-a-half after the complaint

was filed, and two-and-a-half years after the trustee began

investigation. The court said it was not impressed with the

-27-
need for the depositions and that "[p]ermitting the requested

depositions [would] unnecessarily increase counsel's fees and

[would] more likely delay the trial scheduled to begin April 7,

1997."

Brandt then sought but was denied leave by the district

court for an immediate appeal. But, thereafter, in a pre-trial

conference on February 14, 1997, the district court allowed each

side to take an additional 20 hours of depositions before trial.

At a further pre-trial hearing on March 17, 1997, Brandt asked

for an adjournment of the April trial to allow for more

depositions; but after learning that the 20 additional

deposition hours had not yet been exhausted, the district court

rejected the adjournment motion. Later, the court granted

Brandt two additional depositions during the trial.

Discovery decisions by the bankruptcy judge or district

court are reviewed for abuse of discretion, and the discretion

in this area is very broad, recognizing that an appeals court

simply cannot manage the intricate process of discovery from a

distance. In Modern Continental/Obayashi v. Occupational Safety

& Health Review Comm'n, 196 F.3d 274, 281 (1st Cir. 1999), this

court spoke of the need for "a clear showing of manifest

injustice," saying that, to warrant reversal, the lower court's

discovery order must be "plainly wrong" and must be shown to

-28-
have resulted in "substantial prejudice" to the complaining

party. Although at first blush the limitations imposed by the

bankruptcy judge seem severe, even when somewhat modified by the

district court, there is more to the story.

Brandt devotes almost ten pages of his brief to

explaining that the case involves a large amount of money and

many parties and that none of the defendants registered any

objection to his original proposal to take sixty or more

depositions. Of course, the lack of objection from other

parties is not dispositive; the bankruptcy judge had an

independent responsibility to manage the litigation and conserve

the resources of the estate. But the size and scope of the

litigation might well have provided a basis for justifying a

greater number of depositions than was allowed.

However, the bankruptcy judge did not say that only ten

depositions were permitted. Obviously concerned with the slow

pace and mounting expense of discovery, he held the plaintiff's

feet to the fire to move quickly and then justify any additional

requests for depositions on a case-specific basis. In fact, the

order fixing the ten-deposition limit referred to Federal Rules'

provisions setting the criteria for justifying additional

discovery. Thus, the bankruptcy judge's order is not quite the

arbitrary limit that Brandt suggests.

-29-
 The more troubling aspect is the bankruptcy court's

refusal in December 1996 to extend the deadline and allow

further depositions. Brandt's request at that time was

reasonably detailed as to proposed deponents and the subject

matter for questioning. It is hard to lean too heavily on the

bankruptcy judge's brief statement that he was "not impressed

with the critical nature of the dispositions." And while the

district judge effectively allowed another four or five

depositions, this was far short of what Brandt had sought even

in December.

However we might otherwise feel about the severe limit

on depositions--and it would take a more detailed examination of

the record for us to make a final judgment--Brandt's opening

brief is virtually devoid of any showing that Brandt was

prejudiced. In the entire ten-page discussion there is only a

single elliptical sentence describing a specific witness. Even

this discussion does not make clear why Brandt thinks the

witness was so vital. Thus there is no reason to think that the

outcome of the case was affected by the limit on depositions.

Brandt says that this is a catch 22, since one can

never be sure what further discovery might have adduced. While

this (standard) argument has some force, it is not conclusive:

both in justifying discovery and in explaining later why a

-30-
refusal to allow it caused harm, lawyers are accustomed to

showing specifically just what gaps in their claim and defense

might be filled by evidence within the likely knowledge of the

witness. And it is just such specifics that are absent from

Brandt's opening brief. Indeed, the trial being over, it should

have been even easier than before or at trial for Brandt to

explain just where he thinks that additional depositions could

have filled any apparent gaps in the case presented.

In his reply brief, Brandt does make a broader, but at

the same time better supported, showing that he was expected to

conduct too much discovery within too brief a time frame when

one takes into account both depositions and the huge number of

documents to be sorted and analyzed. But Brandt's time frame

may be an artificial one; there is some reason to think that he

could have made more progress at an earlier stage and that he

moved too slowly even after the initial discovery deadline was

set in June 1996.7 But we need not resolve this point, since,

7Brandt says that he had insufficient time to conduct
discovery between June 1996 (when the case management order was
adopted) and December 1996 (the scheduled end of discovery), as
well as insufficient time for additional discovery before trial
in April 1997. However, Brandt became Healthco's trustee in
October 1993, filed his complaint in June 1995, and had
possession of many of the documents that he complains he had
insufficient time to review long before June 1996. Further, in
the six months between the case management order and his motion
for additional depositions, Brandt conducted only six
depositions.

-31-
as we have already noted, arguments first developed in a reply

brief come too late. Rivera-Muriente, 959 F.2d at 354.

Brandt's second claim of discovery error concerns the

failure of Coopers & Lybrand to produce documents from Coopers'

foreign offices relating to its review of Healthco's year-end

financial statements for 1990. The unsecured creditors earlier

sought to obtain these and other papers from Coopers, see Fed.

R. Bankr. P. 2004, and Brandt and Coopers agreed on the

production of certain of these documents, but apparently Coopers

failed to produce documents from its foreign offices. Yet it

was not until February 20, 1997, less than two months before the

scheduled trial date and six months after the bankruptcy court's

deadline for document discovery, that Brandt filed an expedited

motion with the bankruptcy court to obtain the audit-related

papers from Coopers.

Although Brandt now offers an explanation as to why

these papers were necessary, the request originally filed in the

bankruptcy court merely asserted that Brandt "need[ed] to review

all C & L memoranda and audit workpapers regarding Healthco's

foreign subsidiaries in order to prepare properly his case for

trial." And, not surprisingly, the bankruptcy court denied the

motion without explanation about a week after it was filed.

-32-
 There is no indication that Brandt then brought the

matter to the attention of the district court by an

interlocutory appeal; nor does it appear that, as trial

approached, he ever asked the district court for belated

document discovery against Coopers, which might conceivably have

been justified if a new need arose at the last minute. In any

event, Brandt apparently never gave the bankruptcy judge the

explanation he now gives us as to why the papers from Coopers'

foreign subsidiaries were necessary. Faced only with a bland

and belated statement that the papers were needed, the

bankruptcy court acted within its discretion in denying the

requested discovery.

Finally, Brandt says that the bankruptcy court erred

in refusing to permit him to discover the identity of the

beneficial owners of the Healthco shares that were tendered by

J.P. Morgan and Chancellor. Brandt argues that this information

was necessary so that Brandt could direct its unjust enrichment

claims against those who actually benefitted from the $15 per

share buyout of Healthco stock. This point takes on added

significance because the bankruptcy court relied on the fact

that J.P. Morgan and Chancellor were merely recordholders in

dismissing the unjust enrichment claims against them.

-33-
 Brandt attempts to show that the denial of an

opportunity to discover beneficial ownership was based on the

bankruptcy court's misconstrual of its own orders. However,

there is no indication that a ruling on this discovery issue was

ever sought from the district court. In any case, the jury

rejected the unjust enrichment claims directed at defendants who

were both stockholders and active in promoting the LBO; it is

very hard to see how Brandt could have expected a more favorable

result if he had unearthed the names of passive beneficial

stockholders for whom record ownership was held in the name of

J.P. Morgan or Chancellor.

VI. Conduct of the Trial

Brandt objects to a set of alleged errors occurring

during the course of the trial and says that the errors and

misconduct of defense counsel fatally tainted the verdict.

Specifically, Brandt objects to references to settlements with

other defendants, admission of an expert's testimony and report,

time limits imposed by the trial judge, restrictions on the

"publication" of documents to the jury, and comments or evidence

designed to paint the trustee or the trustee's counsel in a bad

light. We consider the claims of error in the order in which

Brandt has briefed them.

-34-
 First, citing McInnis v. A.M.F., Inc., 765 F.2d 240

(1st Cir. 1985), Brandt complains of references to settlements

Brandt reached with other defendants. In McInnis, this court

construed broadly Federal Rule of Evidence 408, which excludes

settlements when offered to prove the validity or invalidity of

a claim. Id. at 246-48. There, the plaintiff, the victim in a

motorcycle accident, had sued the manufacturers (for making a

defective product); the plaintiff had also previously obtained

a settlement paid on behalf of the driver of a car that had hit

the motorcycle, and the trial court admitted evidence of the

settlement to show that the accident had been caused by the

driver of the car rather than the faulty manufacture of the

motorcycle. Id. at 241-42. McInnis held that using the

settlement agreement to show causation amounted to using it to

show the invalidity of a claim, and found that the error in

admitting evidence of the settlement required a new trial. Id.

at 246-48.

Here, Brandt says that one of the defendant's opening

statements at trial mentioned Brandt's settlements with other

parties. However, the passages that Brandt identifies refer not

to settlements but to the fact that Brandt had initially sued 69

people or businesses. The thrust was not that other defendants

had settled (and were therefore the real perpetrators) but

-35-
rather that Brandt was a plaintiff who sued everyone in sight

regardless of whether the individual defendant was responsible.

This was not an offer of proof of, or a reference to, a

settlement, which is what Rule 408 and McInnis are concerned

with.

Some of Brandt's discussion of this issue suggests that

he is concerned not so much with the inference of settlement,

but with the inference that a large number of parties were

responsible for the transaction but the blame has been unfairly

focused on the few remaining at trial. While this was a

possible inference, it is not clear that, in this respect, the

comments complained of were very helpful to the defendants;

indeed, they might rather have suggested that the parties

remaining at trial were those most responsible. In any event,

the trustee makes no substantial effort to make a real showing

of prejudice.

Brandt also refers in his brief to a closing argument

by defense counsel insinuating that the proof offered in the

trial of negligence by Coopers & Lybrand "undermines the

integrity of the case against the defendants in this courtroom."

Whether or not the inference is a fair one, once again it has

nothing to do with settlement, there having been affirmative

evidence against Coopers & Lybrand offered during the trial

-36-
itself. It is worth adding that the first references to

settlement were made not by defendants but by Brandt's counsel.

Cf. Willco Kuwait (Trading) S.A.K. v. deSavary, 843 F.2d 618,

625 (1st Cir. 1998).

Second, Brandt says that the district court erred in

permitting the defendants to call Robert W. Berliner--Brandt's

accounting expert--to examine him about portions of a report he

had prepared for Brandt. The disputed portion of the report

concerns Berliner's conclusion that Coopers had negligently

performed the Healthco audit for 1990; the implication, which

defendants hoped would be drawn, was that Coopers and not the

defendants at trial bore responsibility for the unhappy outcome

of the LBO. Brandt made a timely objection that the report was

hearsay and now says that evidence regarding it was highly

prejudicial and should have been excluded under Federal Rule of

Evidence 403.

Brandt expressly admits in his opening brief that the

defendants had "a right to argue that Coopers was the cause of

the failure of Healthco," but objects that the defendants were

obliged to prove this through their own evidence and expert

witnesses. The latter is an overstatement: at Brandt's behest,

Berliner gave testimony arguably implying that Coopers did not

bear responsibility for the failure of Healthco, so he certainly

-37-
could be cross-examined and impeached on this issue. Whether

the Berliner report was admissible as the admission of an

opposing party, and therefore admissible not just to impeach but

as proof of the facts asserted in it, is a different question

which the district court resolved in favor of the defendants.

The district court, supported on appeal by the

defendants, viewed the report as an admission of Brandt through

an agent (the expert) acting within the scope of his agency, and

therefore found it admissible under Federal Rule of Evidence

801(d)(2)(D). Since the report was prepared by Berliner during

his work for Brandt, it might at first blush seem to fit

comfortably within this rule, assuming always that Berliner

could be regarded as an agent for this purpose. Some authority

points in this direction but the Third Circuit emphatically

disagrees, saying that an expert is more like an independent

contractor offering his own opinion and is not "controlled" by

the party who employs him. Kirk v. Raymark Indus., Inc., 61

F.3d 147, 163-64 (3d Cir. 1995), cert. denied, 516 U.S. 1145

(1996) (discussed in 30B Graham, Federal Practice and Procedure

§ 7022, at 202 n.1 (2000)).

The authorities are fairly sparse, but we need not

decide the Rule 801(d) issue. Prior to introducing in evidence

the pertinent portion of the report, the defendants asked

-38-
Berliner questions and elicited statements from him as to

Cooper's actions that covered more or less the same ground as

the report. As noted above, the defendants' questions were

permissible cross-examination. The resulting statements--not

unexpected unless Berliner was prepared to contradict his

report--were in-court statements not subject to a hearsay

objection. Accordingly, even if the report itself were

objectionable, any error in its admission is rendered harmless

by the questioning of Berliner. See Texaco P.R., Inc. v.

Department of Consumer Affairs, 60 F.3d 867, 886 (1st Cir.

1995).

As for the objection under Rule 403, it is hard to

understand Brandt's argument. Brandt agrees that whether

Coopers was careless was a pertinent issue and Berliner's

testimony and report were directed to that question. No doubt

the testimony had more impact because it came from Brandt's own

expert, but the expert was one whom Brandt himself had called to

testify at trial and who had given testimony that might

otherwise have led the jury to believe that Coopers was not at

fault. Assuming a Rule 403 objection to the Berliner evidence

was preserved, it was not error under Rule 403 to allow the

evidence.

-39-
 Third, Brandt objects, in the caption of one section

of his opening brief, to the district court's placing

"unreasonable pre-determined time limitations upon the trial,"

i.e., 60 hours. Then--in the body of the discussion--he

develops two arguments: that defense counsel manipulated the

time limits to Brandt's disadvantage (naming witnesses, forcing

Brandt to reserve some of his time to cross-examine them, and

then not calling those witnesses); and that the district court

promised Brandt that he could use all of his otherwise unused

time for his closing argument but then limited him to four and

a half hours when he still had ten hours remaining.

How trial time should be limited--obviously some

limitations are appropriate--raises interesting problems, see

Borges v. Our Lady of the Sea Corp., 935 F.2d 436, 442-43 (1st

Cir. 1991), but they need not be addressed here because (despite

the caption in the opening brief) Brandt's argument makes no

effort to show that the 60 hours of trial time allotted to each

side was unreasonable. The related suggestion that defense

counsel manipulated the time limits by listing witnesses who

were not called is mentioned in a single sentence, is not

seriously supported, and is therefore waived. Massachusetts

Sch. of Law v. American Bar Ass'n, 142 F.3d 26, 43 (1st Cir.

-40-
1998).8 We add that we have found no additional serious support

for this claim in Brandt's earlier arguments to the district

court on this same issue.

The bulk of Brandt's argument is directed to a

different and, as presented, more striking claim that the

district court promised unlimited time for closing argument (so

long as the 60-hour limit was not exceeded) and then broke this

promise. Brandt describes a colloquy during the trial where the

district court allegedly "prohibited the Trustee's counsel from

publishing to the jury relevant portions of voluminous documents

that had been received in evidence"; and Brandt then quotes his

counsel as asking the court whether it was "going to impose any

limitation on the time of closing assuming I still have it

available in my allotted hours." Brandt's brief then quotes the

court as saying: "You can have any length of closing."

The trial transcript shows that the district court

never made an unconditional promise to allow Brandt to use any

unused time in closing argument. The district court said, "You

can have any length of closing as long as--" and was then

interrupted by Brandt's counsel who said, "Then that solves a

8
A similar lack of development marks Brandt's suggestion, in
the "Issues Presented" portion of his opening brief, that the
district court erred in imposing a time penalty after Brandt
made an unsuccessful motion.

-41-
lot of my problem." Shortly before the close of evidence, the

court made clear that it did not intend to allow Brandt to make

a ten-hour closing argument even though he still had ten hours

left on his clock and, despite a pro forma protest, Brandt then

suggested four and a half hours and made no effort to show that

this would prejudice him or that he could not present the

substance of his case in this time frame. In the end he elected

to use less in order to complete his argument within one day.

Providing no specifics, Brandt intimates that he was

somehow limited in his ability to publish documents or

deposition transcript evidence to the jury during trial and that

he hoped to use the closing argument to read portions of this

evidence to the jury. In fact, the trial transcript shows that

Brandt published a great deal of such evidence during the trial,

and the colloquy to which he refers to show that he was limited

actually appears to have been concerned with how the materials

were presented, the district court having objected to Brandt's

counsel reading deposition pages at length to the jury while

purporting to question the witness. Once again, Brandt's brief

points to no specific material, let alone material of vital

importance, that he was effectively prevented from publishing to

the jury.

-42-
 Fourth, Brandt argues that during the course of the

trial, some defense counsel made arguments or introduced

evidence besmirching the character of the trustee by suggesting

that he was in the business of acting as a trustee for many

bankrupt companies, that he received fees based on the amount of

money he collected, that in the past he had sued many defendants

on claims like the ones pressed here, that he hired his own

company to provide administrative services to the estate, and so

on. These charges, says Brandt, were irrelevant and (if

marginally relevant in some respects) far more prejudicial than

is proper under Rule 403.

Brandt's complaints would have more force if he had not

invited many of these "charges" by the claims that his counsel

made during opening argument, claims later echoed by Brandt

himself when he briefly appeared as a witness. In opening to

the jury, Brandt's counsel sought to paint a picture of the

trustee as essentially a neutral party engaged in a quasi-

official function: counsel said that the trustee was

"supervised" by the bankruptcy judge, was "a disinterested

party" and would not "get to keep any of the money [from a

verdict] himself." Later, Brandt himself told the jury that the

money recovered from defendants would be "disseminated" to

Healthco's creditors. During cross-examination, Brandt conceded

-43-
that the trustee would receive "a commission" from litigation

proceeds based on a percentage formula. See 11 U.S.C. § 326(a).

But even assuming that counsel for the trustee did not

provoke defense counsel's responses, and that one or more of the

defense counsel went too far in some of their remarks, the trial

judge addressed the issue appropriately. After concluding that

the comments were improper, the judge rebuked counsel and

directed the jury to disregard the comments. It is our practice

to presume that such instructions are followed, unless the

evidence is hopelessly sure to warp the jury's judgment. Conde

v. Starlight I, Inc., 103 F.3d 210, 213 (1st Cir. 1997).

The same conclusion, and much of the same analysis,

applies to Brandt's complaints about remarks in some defense

counsel's closing arguments that Brandt believes unfairly

portrayed his attorneys in an ill light. As with the comments

regarding Brandt himself, the trial judge responded to the

remarks about Brandt's attorneys by instructing the jury to

disregard negative comments about their integrity. Without

approving every remark or question posed by defense counsel, we

find that this is not a case in which the verdict should be

overturned or a new trial required. Cf. Fernandez v.

Corporacion Insular de Seguros, 79 F.3d 207, 210 (1st Cir.

-44-
1996); United States v. Maccini, 721 F.2d 840, 846-47 (1st Cir.

1983).

Affirmed.

-45-