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Abbotts v. Campbell: SEC - 6-year statute of limitations on suit versus lawyers not tolled; no showing couldn't discover in due diligence

United States Court of Appeals
No. 08-1349
Glenn D. Abbotts; Steven Beigel; *
Alyn Bell; Michael Cetta; Andrew R. *
Cherna; Richard Cooper; Stewart W. *
Evey; Timothy J. Hanratty; F. Scott *
Jackson; Jeffrey Kaufman; Anis *
Keywood; Gerald Moreland; James T. *
Reilley; Rick Starr, Sean L. Sullivan; * Appeal from the United States
James J. Walsh, * District Court for the
* District of Minnesota.
Appellants, *
v. **
Caldwell Campbell, Esq.; Rowland W. *
Day, II, Esq.; Day & Campbell, L.L.P., *
Appellees. *
Submitted: November 12, 2008
Filed: December 29, 2008
Before WOLLMAN, BEAM, and BENTON, Circuit Judges.
WOLLMAN, Circuit Judge.
1Judge Joan N. Ericksen, United States District Judge for the District of
Sixteen individual investors (Investors) appeal the district courts1 grant of
summary judgment in favor of Cadwell Campbell, Rowland Day, and Day &
Campbell, L.L.P. (collectively, Defendants). We affirm.
On July 16, 1992, Day sent a Dear Potential Investor letter to the Investors,
enclosing the Common Stock Purchase Agreement (CSPA) for International Gaming
Management (IGM), business documents related to IGM, an Investor Suitability
Questionnaire, and the signature page for the CSPA. The letter explained the
documents and the income/net worth requirements for investing in IGM. The letter
specifically noted that the investment was a high risk investment and that each
investor could lose the entire amount of his investment. Each Investor complied with
the letters requirements and purchased a minimum of 20,000 shares of IGM for .50
As explained in Days letter, the shares purchased by the Investors under the
CSPA were not registered with the Securities and Exchange Commission (SEC) and
would not be freely tradeable until so registered. Day explained that under SEC Rule
144, the Investors typically would have to hold the shares for two years before
attempting to sell the stock, but that he had negotiated with IGM to allow his law firm,
Day & Campbell, to immediately register the stock on behalf of the Investors. This
would allow the Investors to sell prior to the expiration of the two-year period. Day
stated that [t]he registration process could take approximately 180 days to be
completed. The Investors were also permitted to sell their shares prior to registration
by complying with the requirements of the CSPA and SEC Regulation S. Regulation
S would likely result in a significantly discounted price and would require the
potential seller to obtain an opinion of counsel that the sale was exempt from
registration requirements.
Day was unable to register the shares as promised. On April 30, 1993, IGM
asked its outside counsel, Dorsey & Whitney, to prepare a registration statement. On
July 15, 1993, IGMs president wrote to all CSPA investors, advising them that the
registration statement had been filed and that IGM expected the stock to become
freely tradeable within forty to ninety days. The SEC, however, did not accept IGMs
registration statement, following which IGM eventually abandoned its efforts to
register the CSPA stock because the two-year holding period under Rule 144 was
nearing expiration.
Meanwhile, Day negotiated an agreement with IGM on behalf of the CSPA
investors. Pursuant to this agreement, IGM would waive certain provisions of the
CSPA, thereby removing some of the impediments to complete a Regulation S sale.
Day & Campbell did not advise any of the CSPA investors of this waiver, and
although Day claims to have verbally communicated the waivers existence to two of
the Investors, both deny such communication. On the day that the waiver went into
effect, July 2, 1993, Day attempted to sell 200,000 CSPA shares. The sale was not
completed, however, because Dorsey & Whitney refused to provide the necessary
opinion of counsel. The law firm permitted Day to seek the opinion from other
counsel, but Day made no effort to do so.
During the time that Dorsey & Whitney attempted to register the shares and
Day negotiated the waiver, IGMs share price was at its highest level, trading at
approximately per share. By early 1994, however, IGM was in significant
financial distress. On July 28, 1994, federal and state authorities executed a search
warrant and seized documents from IGMs office pursuant to a criminal investigation
of several IGM executives. The following day, share prices for IGM dropped
substantially, leading to the suspension of trading of IGM stock. IGM later failed,
rendering its stock worthless.
2Mark Kallenbach is the Investors counsel and was an officer and member of
the board of directors of IGM until 1992. After IGM failed in 1994, Kallenbach was
appointed to IGMs board and attempted to salvage parts of IGMs business.
In 2000, the government returned all of IGMs seized documents to Mark
Kallenbach,2 who was involved in litigation against IGM executives. While reviewing
the documents in connection with that litigation, Kallenbach discovered the waiver.
Kallenbach sued Defendants based on the undisclosed waiver on behalf of himself and
his wife. His case was settled in 2003.
Eleven years after the failure of IGM and after settling his own suit against
Defendants, Mark Kallenbach wrote to the Investors about potential claims that they
may have against Campbell and Day based on the undisclosed waiver. Nineteen
CSPA investors responded to Kallenbachs letter and in March 2006 filed suit in
Minnesota state court against Campbell and Day and their law firm for breach of
fiduciary duty, negligent omission, attorney malpractice, and front running.
Defendants removed the case to federal court on the basis of diversity jurisdiction.
Two Investors dismissed their claims after acknowledging that they had signed a
release in favor of Day & Campbell in the settlement of a related case, and one
Investor dropped out of the case. The remaining sixteen Investors filed cross-motions
for summary judgment.
The district court denied the Investors motion for summary judgment and
granted Defendants motion, holding that the statute of limitations on the Investors
claims had expired and equitable tolling was not warranted as a matter of law. The
court also concluded that the Investors had not presented sufficient evidence that
Defendants failure to inform them of the waiver was a proximate cause of their
investment losses. It is from this judgment that the Investors now appeal.
The Investors concede that the six-year statute of limitations under Minnesota
Statute 541.05 has expired. They argue, however, that the period should be tolled
because Defendants fraudulently concealed the waiver. Additionally, they argue that
there was sufficient evidence to survive summary judgment that the concealment was
the proximate cause of their losses.
We review the district courts grant of summary judgment de novo. Barry v.
Barry, 78 F.3d 375, 379 (8th Cir. 1996). Summary judgment is appropriate if the
evidence on file show[s] that there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The
movant bears the burden of making this showing. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). The party opposing the motion must set forth specific facts
showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 256 (1986). Although the evidence must be viewed in the light most
favorable to the nonmovant, id. at 255, mere speculation is not enough to avoid
summary judgment. Gregory v. Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992).
The Investors have not shown that they exercised reasonable diligence
warranting equitable tolling of the statute of limitations period. Minnesota does not
apply a discovery rule to any of the Investors claims, but rather applies the damage
rule of accrual, under which the cause of action accrues and the statute of limitations
begins to run when some damage has occurred as a result of the alleged malpractice.
Antone v. Mirviss, 720 N.W.2d 331, 335-36 (Minn. 2006) (citing Herrmann v.
McMenomy & Severson, 590 N.W.2d 641, 643 (Minn. 1999)) (internal quotations
omitted). Because the Investors suffered their financial loss in July 1994, the statute
of limitations began to run at this time.
Minnesota does, however, apply the discovery rule to allegations of fraud.
Barry, 78 F.3d at 379-80. For fraud claims, the six year limitations period begins to
run when a plaintiff knew or should have known of the fraud. Id. In such cases,
the plaintiff bears the burden of proving that she could not, through reasonable
diligence, have discovered the facts constituting the fraud until within six years of the
commencement of the action. Id. at 380 (citing Blegen v. Monarch Life Ins. Co., 365
N.W.2d 356, 357 (Minn. Ct. App. 1985). Further, fraudulent concealment of
information material to a non-fraud claim will toll a limitations period. Cohen v.
Appert, 463 N.W.2d 787, 790 (Minn. Ct. App. 1990). Likewise, the doctrine of
fraudulent concealment only tolls the limitations period until the concealment is or
could have been discovered through reasonable diligence. Id. at 790-91 (citing Wild
v. Rarig, 234 N.W.2d 775, 795 (Minn. 1975)). The party relying on the doctrine must
show that its own negligence did not contribute to the delay in discovery. Cohen, 463
N.W.2d at 791.
Following IGMs collapse in July 1994, the Investors made no effort to obtain
the documents seized by the government to investigate the reason for IGMs failure.
The Investors simply state that they could not have discovered the waiver because it
was in government custody. The record shows, however, that access was granted to
Daniel T. Zacharias after he explained that he hoped to rehabilitate IGM. Although
Zachariass access was limited because the government was preparing its case, there
is no indication that the government would have denied access to the Investors or that
it would not have provided the documents upon completion of its case. The Investors
knew that Defendants failed to register their shares as promised and that this prevented
them from selling their shares for a profit. They also knew that something was
drastically wrong when the FBI raided IGM. Yet, the Investors sought no recourse
from Defendants. Following the complete loss of their investment in IGM, the
Investors have largely lost or discarded their documents relating to their investment
and have written off the losses they incurred.
As the district court noted, it appears that the Investors gave no thought to IGM
until an attorneys solicitation letter touting a previous success arrived eleven years
after the loss. The record reflects indifference and opportunism rather than reasonable
diligence. Statutes of limitation serve a general purpose of repose, the interest of
both the defendant and society in freedom from stale claims. Bartlett v. Miller &
Schroeder Muns., Inc., 355 N.W.2d 435, 439 (Minn. App. 1984). The interests of
justice do not require the tolling of the limitations period in this instance. See id.
Additionally, the Investors have failed to present specific facts giving rise to
a genuine issue for trial as to the causal connection between their losses and the
nondisclosure of the waiver. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn.
1995). Although proximate cause is generally a fact question for the jury, where
reasonable minds can arrive at only one conclusion, proximate cause is a question of
law. Lubbers, 539 N.W.2d at 402 (quoting Warnick v. Moss & Barnett, 490 N.W.2d
108, 113 (Minn. 1993)). The Investors proximate cause argument rests on the bald
assertion that they would have sold their shares if they had known of the waiver. That
one can look back with the knowledge of fluctuating stock prices and the impending
failure of the company and say that he would have sold at a particular time is simply
too self-serving and speculative to form the foundation of a causal connection. The
record, including the Investors expert testimony, does nothing more than show a
mere possibility, suspicion, or conjecture that such a causal connection exists, without
any foundation for the exclusion of other admittedly possible causes, and thus
provides no proper foundation for a finding of a causal connection. Bernloehr v.
Central Livestock Order Buying Co., 208 N.W.2d 753, 755 (Minn. 1973).
The Investors claims do not merit equitable tolling and the Investors have
failed to present sufficient evidence of causation. Accordingly, the district courts
judgment is affirmed.


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