"Come, we shall have some fun now!" thought Alice. "I'm glad they've begun asking riddles.--I believe I can guess that," she added aloud."Do you mean that you think you can find out the answer to it?" said the March Hare."Exactly so," said Alice."Then you should say what you mean," the March Hare went on."I do," Alice hastily replied; "at least--at least I mean what I say--that's the same thing, you know.""Not the same thing a bit!" said the Hatter. "You might just as well say that 'I see what I eat' is the same thing as 'I eat what I see'!""You might just as well say," added the March Hare, "that 'I like what I get' is the same thing as 'I get what I like'!""You might just as well say," added the Dormouse, who seemed to be talking in his sleep, "that 'I breathe when I sleep' is the same thing as 'I sleep when I breathe'!"
Judge Thompson was appointed to the First Circuit Court of Appeals in March 2010. She graduated from Brown University in 1973 and Boston University School of Law in 1976. She worked as a Staff Attorney at Rhode Island Legal Services from 1976 to 1979. From 1979 to 1988, she worked in private practice, and she served as an Assistant City Solicitor in Providence, Rhode Island from 1980 to 1982. She served as a Judge on the Rhode Island District Court from 1988 to 1997, and as a Justice on the Rhode Island Superior Court from 1997 to 2010. Chambers phone number: (401) 272-2960.
Today's dispute is part of the fallout from the financial system's near meltdown in the late 2000s. On one side of this dispute is Tutor Perini Corporation ("Tutor Perini"). On the other side is Banc of America Securities LLC and Bank of America, N.A. ("BAS" and "BANA," respectively). To hear Tutor Perini tell it, BAS - acting as its broker-dealer, and with BANA's knowledge and acquiescence - sold it auction-rate securities ("ARS") without disclosing that the ARS market was heading for a spectacular crash.1 But to hear BAS and BANA tell it, BAS actually disclosed the risks that later materialized. An obviously unconvinced Tutor Perini sued BAS and BANA in federal district court, alleging securities fraud under state and federal law, as well as a medley of other state-law claims. On cross-motions for summary judgment, the district judge sided with and BANA. Concluding that triable claims exist worthy of a jury's time and attention, we - for reasons recorded below - affirm in part, vacate in part, and remand.====Footnote: 1 We apologize for all the acronyms - they seem to go with the territory in cases like this, however.
(a) Bana Stays OutStressing that Tutor Perini failed to identify any misconduct on its part, BANA asked the judge to jettison all claims against it. Not so fast, said Tutor Perini: federal and state securities laws "extend liability to control persons," and, the argument continued, BANA is on the hook as a "controlling person," given the actions of two BANA employees and two dual BAS/BANA employees who had "analyzed maximum rate waivers and liquidity risks for deciding which auctions to fail." Unfazed, BANA shot back that Tutor Perini never pled "federal and state control person claims . . . in four years of litigation" and could not debut those new claims in its summary-judgment submissions. The judge thought BANA had the better of the argument. And so do we, because Tutor Perini alleged zero facts indicating that BANA actually exercised control over BAS. See Aldridge v. A.T. Cross Corp., 284 F.3d 72, 85 (1st Cir. 2002) (emphasizing that "the alleged controlling person must not only have the general power to control the company, but must also actually exercise control over the company"). Seeking a way around that problem, Tutor Perini now says that BAS needed BANA's blessing to expand its ARS inventory in February 2008 - surely that shows control, Tutor Perini insists. But Tutor Perini waived that point by not bringing it to the district judge's attention, and Tutor Perini makes no argument that any exception to the raise-or-waive rule applies. See, e.g., Ouch v. Fed. Nat'l Mortg. Ass'n, 799 F.3d 62, 67 n.5 (1st Cir. 2015) . . .