
USCA1 Opinion

	




          October 11, 1996  UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1218        No. 96-1523                                 FLEET NATIONAL BANK,                                 Plaintiff, Appellee,                                          v.                               H&D ENTERTAINMENT, INC.,                          (f/k/a DOVER BROADCASTING, INC.),                              and H&D MANAGEMENT, INC.,                            as general partner of each of                        H&D BROADCASTING LIMITED PARTNERSHIP,                            H&D MEDIA LIMITED PARTNERSHIP,                          H&D RADIO LIMITED PARTNERSHIP, and                          H&D WIRELESS LIMITED PARTNERSHIP,                               Defendants, Appellants,                                          v.                                PNC BANK, OHIO, N.A.,                    CHARLES E. GIDDENS, individually, as receiver                  and as general partner of MEDIA VENTURE PARTNERS,                    Additional Counterclaim Defendants, Appellees.                                 ____________________                                     ERRATA SHEET            The opinion  of  this Court,  issued  on  September 24,  1996,  is        amended as follows:            On  page  8,  2nd  line  of  footnote 2,  add  comma  after "cert.                                                                         _____        denied".        ______            On  page 15,  1st line  of  indented  quote, replace  "there" with        "[T]here".            On page  16, 1st full paragraph,  line 10,  replace "(1990);" with        "(1990)." and delete "Restatement (Second) of Contracts.".                              _________________________________            On  page 19, 2nd  full paragraph,  line 2,  replace "trustee" with        "trustees".            On page 22, line 1, replace "F. Suppp." with "F. Supp.".            On page  22, lines  7-8 of  2nd paragraph,  delete "The  borrowers        apparently did not even cross-examine Zitelman on this issue."            On Page  23, line  6 of  1st  full paragraph,  underline "Code  of        Conduct for United States Judges" and delete comma after "Judges".                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1218        No. 96-1523                                 FLEET NATIONAL BANK,                                 Plaintiff, Appellee,                                          v.                               H&D ENTERTAINMENT, INC.,                          (f/k/a DOVER BROADCASTING, INC.),                              and H&D MANAGEMENT, INC.,                            as general partner of each of                        H&D BROADCASTING LIMITED PARTNERSHIP,                            H&D MEDIA LIMITED PARTNERSHIP,                          H&D RADIO LIMITED PARTNERSHIP, and                          H&D WIRELESS LIMITED PARTNERSHIP,                               Defendants, Appellants,                                          v.                                PNC BANK, OHIO, N.A.,                    CHARLES E. GIDDENS, individually, as receiver                  and as general partner of MEDIA VENTURE PARTNERS,                    Additional Counterclaim Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Nancy Gertner, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                Boudin, Circuit Judge,                                        _____________                           and Barbadoro,* District Judge.                                           ______________                                    ____________________        *Of the District of New Hampshire, sitting by designation.                                 ____________________            Stephen F. Gordon with  whom Stanley W. Wheatley and Gordon & Wise            _________________            ___________________     _____________        were on briefs  for defendants, appellants H&D Entertainment, Inc. and        H&D Management,  Inc., and  claimants, appellants, Joel  M. Hartstone,        Barry J. Dickstein, Hartstone and  Dickstein, Inc., Barry Dickstein  &        Co., Inc. and Joan Rory Hartstone.            John D. Hanify  and Charles L. Glerum  with whom Harold B. Murphy,            ______________      _________________            ________________        Matthew P.  McCue,  Hanify &  King,  P.C., Paul  E.  Morton, Morton  &        _________________   _____________________  ________________  _________        McCrevan, Sara A. Walker, Joseph H. Zwicker, Terri L. Ross and Choate,        ________  ______________  _________________  _____________     ______        Hall & Stewart were on briefs for appellees.        ______________                                 ____________________                                  September 24, 1996                                 ____________________                 BOUDIN,  Circuit Judge.  At  issue in this  case are two                          _____________            different  appeals, which we  have consolidated, whose source            is a  lawsuit over  unpaid bank  loans.   In one  appeal, the            borrowers contest  the grant of summary judgment  in favor of            the  lending  bank;  in   the  other  appeal,  the  borrowers            challenge  the district  court's  approval of  a sale  by the            receiver  of borrower assets that secured the loans.  In both            instances, we affirm.                 The  background facts are  largely undisputed.   Between            1983 and 1988, Fleet National Bank ("Fleet") provided various            interrelated loans and lines  of credit to H&D Entertainment,            Inc.,  and  other  associated corporations  and  partnerships            (collectively, "the borrowers"); the borrowers were licensees            or had other ownership interests in radio stations in various            cities, and those assets  secured the loans.  In  early 1994,            Fleet  concluded  that  the  borrowers were  in  default  and            brought  suit in  two  different federal  district courts  to            collect  upon  different  notes  made or  guaranteed  by  the            borrowers.                 On  March 31, 1994, Fleet and the borrowers entered into            a  written settlement  agreement.   In  exchange for  Fleet's            forbearance  on the loans and dismissal of its law suits, the            borrowers agreed to a repayment plan based on the sale of the            radio stations.   The  settlement agreement provided  that if            the borrowers failed  to comply with  the plan's terms,  this                                         -3-                                         -3-            failure  would  end Fleet's  forbearance obligation  and also            constitute  the borrower's  consent to  the appointment  of a            receiver who would muster the assets and pay the debts.                 Fleet claims  that on  November 30, 1994,  the borrowers            missed the  first deadline  established under the  settlement            agreement.  As Fleet reads the agreement, the  borrowers were            required by that  date either to have made  a down payment of            $6.4  million or to  have in  force purchase  agreements with            third parties  obligating the latter to buy stations from the            borrowers for that  amount or  more.   The borrowers  dispute            this  reading.  The precise terms of the settlement agreement            and other pertinent facts are set forth below.                 On December 2, 1994, Fleet brought the present action in            the  federal  district  court in  Massachusetts  against  the            borrowers seeking  over $12.9 million plus  interest based on            the    notes   and    guarantees.   Later,    the   borrowers            counterclaimed.    In  the  meantime,  Fleet  moved  for  the            appointment of Charles Giddens  as receiver for the stations.            Giddens had an extensive background in appraising and selling            radio stations and was  a partner in a brokerage  firm, Media            Venture Partners,  experienced in this  field.  In  the past,            Giddens had been appointed by courts to serve as receiver for            radio  stations and  his firm  had acted  as broker  in their            sale.                                          -4-                                         -4-                 The district court  designated Giddens  as receiver  and            thereafter  approved his retention  of Media Venture Partners            to act as broker in the sale of the stations, comprising four            principal properties in Connecticut,  Illinois, Massachusetts            and New  Jersey.  Giddens  also retained The  Zitelman Group,            Inc.,  to  prepare  monthly   financial  statements  for  the            stations and certain tax filings.  The Zitelman Group was one            of the few  firms known  to Giddens as  experienced in  radio            station  accounting  and  prepared  to  do  such  work  on  a            temporary basis.                 In March  1995, Media  Venture  Partners solicited  bids            from several hundred  possible purchasers, widely publicizing            the proposed sale.  The largest bid, offering to buy all four            station properties for approximately  $15.3 million, was made            by   Spring  Broadcasting,   L.L.C.   ("Spring"),  which   is            associated in  ownership  and management  with  The  Zitelman            Group.  The  bid was  subject to further  examination by  the            bidder and  further negotiations.   At Giddens'  request, The            Zitelman Group  resigned its bookkeeping tasks  in June 1995,            so that Giddens could  freely negotiate a definitive purchase            agreement with Spring.                 Throughout  the  period,  the  borrowers  made  constant            objections to the receiver, the proposed sale, and many other            details.   It appears that  the prospective sale  price being            negotiated would not  even cover in full the borrowers' debts                                         -5-                                         -5-            to  Fleet plus interest, let  alone leave any  equity for the            borrowers.    Thus, the  borrowers  had  little incentive  to            cooperate in the receiver sale.  Still, as the district court            pointed out, the prospective deficiency did give Fleet reason            to obtain as much as possible for the stations.                 During the spring of 1995, Fleet and the borrowers filed            cross motions  for partial or complete  summary judgment, the            central issue  being whether  the borrowers had  breached the            settlement agreement.   The  cross motions  were  heard by  a            magistrate  judge  in June  1995.   In  early July  1995, the            magistrate judge wrote  a lengthy report  and recommendation,            concluding  that Fleet's  motion  should be  granted and  the            borrowers' motion should be denied.  Ultimately, the district            court  approved   the  report  and  recommendations   of  the            magistrate  judge.   This resolution  would have  disposed of            most but not all of the claims on each side.                 Giddens and Spring negotiated  a final purchase price of            just under $14 million  during the summer of 1995,  the lower            price reflecting some deterioration of the stations and other            adjustments.    The  magistrate judge  held  hearings,  heard            objections, and  ultimately approved Giddens' proposal  as to            the procedures  for completing  the  sale.   This involved  a            second  round  of  bidding,  effectively  inviting others  to            exceed  the  Spring  offer.   Information  was  furnished  to            prospective bidders, but no such bids were made.  During this                                         -6-                                         -6-            period  the  borrowers conduct  discovery.    In October  and            November  1995  the  district  court  held  hearings  on  the            proposed sale.                 During   the  fall,  Giddens  and  Spring  modified  the            proposed sale in certain respects.   When the borrowers asked            for  a  new  round  of  competitive  bidding  because of  the            changes, Giddens conducted a third round of bidding ending in            January 1996.  No  better bids were made.   Further discovery            was allowed to the  borrowers.  In January 1996  the district            court held  a further  evidentiary hearing and  then approved            the sale from  the bench.  In April 1996,  the district court            issued a lengthy decision  explaining its decision to approve            the  sale   to  Spring.      Fleet  National   Bank  v.   H&D                                         ______________________       ___            Entertainment, Inc., 926 F. Supp. 226 (D. Mass. 1996).            ___________________                 1.   The borrowers have now appealed both from the order            resolving  the summary  judgment motions  and from  the order            approving  the receiver's sale of the stations to Spring.  At            the  outset, the  borrowers argue  that the  summary judgment            order is not properly  before us, because it did  not dispose            fully of all of the claims or all of the counterclaims.1  For            this reason,  the district  court directed, on  approving the                                            ____________________                 1On Fleet's  claims, seven of the  eight counts involved            computation of  damages and  at least the  interest component            remained   to   be  resolved.      As   for  the   borrowers'            counterclaims, the  claims against Fleet were  fully resolved            but  two other claims  directed by the  borrowers against the            receiver were not.                                         -7-                                         -7-            magistrate  judge's  report and  recommendation,  "that final            judgment  be entered, pursuant to [Fed. R. Civ. P.] 54(b) and            28 U.S.C.   1291."                 The  borrowers  do not  argue  that  the district  court            failed  to make or support the finding required by Rule 54(b)            for a separate judgment  on less than all claims  or parties,            namely,  that there is "no  just reason for  delay."  Rather,            they  simply assert that there is case law forbidding the use            of Rule 54(b) as to any claim that has been adjudicated as to            liability  but not damages.   E.g., Liberty Mut.  Ins. Co. v.                                          ____  ______________________            Wetzel, 424 U.S. 737, 744 (1976).  This is the status of most            ______            of Fleet's claims against the borrowers, although Fleet says,            citing Herzog  Contracting Corp.  v. McGowen Corp.,  976 F.2d                   _________________________     _____________            1062,  1064 (7th  Cir. 1992),  that the  mere calculation  of            interest due is ministerial and should not impair finality as            to those claims.                 The borrowers' objection to their own appeal  is an ill-            advised  attempt to throw sand  in the wheels.   The district            court's order approving the sale of the stations to Spring is                                                                       __            properly before us--because by  judicial gloss, such an order            is  treated  as a  final decision  under  28 U.S.C.,    1291,            because of its importance and irrevocable character.2  And in                                            ____________________                 2SEC v. American Bd.  of Trade, Inc., 829 F.2d  341, 344                  ___    ____________________________            (2d Cir. 1987), cert. denied, 486 U.S. 1034 (1988); Citibank,                            ____________                        _________            N.A. v. Data  Lease Fin. Corp.,  645 F.2d 333, 337  (5th Cir.            ____    ______________________            1981).  See generally Forgay v. Conrad, 47 U.S. (6 How.) 201,                    _____________ ______    ______            203-04 (1848); 15A Wright, Miller, Cooper & Gressman, Federal                                                                  _______                                         -8-                                         -8-            reviewing the sale order, the borrowers are free to challenge            any other  ruling of  the district court  that underpins  the            sale  order.   E.g.,  Avery v.  Secretary  of Health  & Human                           ____   _____     _____________________________            Servs., 762 F.2d 158, 161 (1st Cir. 1985); 16 Wright, Miller,            ______            Cooper  & Gressman,  Federal  Practice and  Procedure    3921                                 ________________________________            (1977).                 Here,  the  decision  that the  borrowers  violated  the            settlement agreement does underpin  the sale.  The borrowers'            violation is the central  premise for the appointment of  the            receiver  and the  authorization  permitting the  receiver to            sell  the security.   In  short, the  borrowers are  free, in            challenging the sale order, to  make their central claim that            they did not violate the settlement agreement.  This would be            so  even if  Rule  54(b) had  never been  invoked  as to  the            summary  judgment order,  and  even if  the summary  judgment            order  were not  before us  except as  a premise of  the sale            order.                    Conversely, the borrowers are mistaken in thinking that            if they successfully challenged  the Rule 54(a)  designation,            they could  undo or invalidate the  district court's decision            on  summary judgment.  At best, they might limit this court's                                                       _____            review to those aspects of the summary judgment decision that            directly  underpin the order approving the sale.  But, so far            as we can ascertain, the only attack made by the borrowers is                                     ____                                            ____________________            Practice and Procedure   3910 (2d ed. 1991 & Supp. 1996).            ______________________                                         -9-                                         -9-            on  just  such an  aspect of  the summary  judgment decision,            namely, the ruling that the borrowers breached the settlement            agreement.                 Thus, we have jurisdiction both over the order approving            the sale and, incident to review of that order, over the only            attack made  on the summary judgment  decision, regardless of            Herzog  Contracting.   Further,  the  district court's  order            ___________________            directed to  the summary judgment motions  is properly before            us under Rule 54(b) at least insofar as that order completely            disposes of most of the borrowers' individual  counterclaims.            Since we have plenary  jurisdiction over the summary judgment            order at least as to those claims, we are free to review--and            affirm--both orders against the only attack made upon them.                   2.  We turn now to  the merits of that attack, namely,            the district  court's ruling that the  borrowers breached the            settlement agreement by failing either to make a $6.4 million            initial  payment by  November 30,  1994, or  alternatively to            make sales  agreements by that  time in a  comparable amount.            Summary  judgment is proper if there are no genuine issues of            material fact and the law otherwise warrants judgment for the            moving party;  inferences and credibility are  taken in favor            of the opposing party; and review on appeal is de  novo.  Roy                                                           ________   ___            v. Inhabitants of the City of Lewiston, 42 F.3d 691, 694 (1st               ___________________________________            Cir. 1994).                                         -10-                                         -10-                 The settlement agreement (in section  5(a)) required the            borrowers  either to have paid Fleet $6.4 million by November            30,  1994--which did  not  occur--or to  meet an  alternative            condition stated as follows:                 On or  prior to November  30, 1994, members  of the                 Borrower  Group  shall  have  . .  .  entered  into                 binding [purchase and sale] agreements  . . . which                 shall  have become fully  effective as contemplated                 below,  providing  for the  sale,  to  one or  more                 purchasers,  of two  or  more Station  Combinations                 providing for aggregate  Net Sales Proceeds of  not                 less that $6,400,000 . . . .            Later  dates were  provided  by which  two further  specified            payments  (or sales  contracts  in like  amounts) were  to be            made.     In  addition, the settlement agreement provided (in            section  5(e))  a  trio   of  corresponding  dates  by  which            contracted-for station  sales had to be completed.  Thus, the            first sale--contracted for by November 30, 1994, for not less            than $6.4 million--had  to be consummated by March  31, 1995.            The  five-month lag  time  was set  to  permit the  necessary            approval of  license transfers by the  Federal Communications            Commission.   This provision  also required the  borrowers to            use  their  best  efforts  to  obtain  FCC  approval, but  it            provided for  reasonable extensions  of time if,  despite the            borrowers'  diligence, FCC  approval were delayed  past March            31,   1995   (or  comparable   dates   for   the  other   two            installments).                 In this  court, both  sides agree that  by November  30,            1994,  the borrowers  had paid  only $1,050,000  toward their                                         -11-                                         -11-            debt.  But, on summary judgment, the borrowers said that they            satisfied the  alternative  obligation under  section  5(a)--                           ___________            quoted above--by entering into  an agreement to sell stations            for  enough money to generate the balance of the $6.4 million            first payment.   The facts  as to what  happened are  largely            undisputed;  the disagreement before us turns  on an issue of            contract interpretation.                 On  June 23, 1994, well in advance of November 30, 1994,            deadline,  the  borrowers  contracted  to  sell  two  of  the            stations to a  third party for  amounts that, taken  together            with the prior  $1 million payment, would have  satisfied the            November 30, 1994, obligation.  This June 1994 sales contract            conditioned  the  buyer's  obligation  on one  of  the  radio            stations attaining a listenership ranking of number 1 or 2 in            the demographic  category of adults age  25-54, as determined            by the  Arbitron  ratings  service.   In  July  1994,  before            consummation,  new Arbitron  ratings  placed the  station  in            seventh place  and, in  September 1994, the  buyer terminated            the sales contract.                 On  summary  judgment  and  on  appeal,  the  borrowers'            central position has been that they complied with the literal            terms of the  settlement agreement because,  in the words  of            section 5(a)  quoted above, they "entered  into" the required            "binding" and  "fully effective" contract "[o]n  or prior to"            November  30, 1994.  The borrowers say  that it is no part of                                         -12-                                         -12-            their  problem  that their  June  1994 contract  to  sell the            stations  lapsed well before  November 30, 1994,  and that no            such sales contract was in effect  on that date.  We join the            magistrate  judge and  the  district court  in rejecting  the            borrowers' reading of the settlement agreement.                 By its own terms, the settlement agreement is to be read            in accordance with Massachusetts  law.  Under the precedents,            ably  parsed by the magistrate judge in his report adopted by            the district court, a  contract governed by Massachusetts law            must be construed  in accord  with common  sense, the  likely            intent of  the  parties  and  (in  commercial  cases)  "as  a            business transaction  entered into  by practical [people]  to            accomplish an  honest and  straightforward end."   Shapiro v.                                                               _______            Grinspoon, 541 N.E.2d  359, 363  (Mass. App. Ct.  1989).   In            _________            short, words matter; but the words are to be read as elements            in a  practical  working  document and  not  as  a  crossword            puzzle.                  In all  likelihood, the phrase "fully  effective" in the            settlement agreement  refers to  the satisfaction of  certain            conditions  precedent specified  in the  settlement agreement            itself (e.g.,  the borrowers' filing of  FCC applications for                    ____            license  transfer within  20 days).   The  magistrate judge--            whose  report the district  court adopted--reasoned  that the            term  "binding,"  to avoid  superfluity,  should  be read  to            exclude  "contingent purchase obligations which lapsed before                                         -13-                                         -13-            ever ripening into absolute  ones."  Thus, he  concluded that            even on  the most  literal reading, the  borrowers failed  to            meet the requirement.                 In  our view, it is uncertain whether the parties to the            settlement agreement entertained any  very precise notion  of            the  meaning  of  "binding."    The  term  is   often  used--            redundantly  in most  contexts--to mean  legally enforceable,            Black's  Law Dictionary  168-69 (6th  ed. 1990),  and lawyers            _______________________            typically overwrite  documents in this fashion.   Further, at            least  one  condition subsequent--that  of  FCC approval--was            likely  to remain unresolved until after November 30.  But we            think that even  if the  term "binding" is  given no  special            meaning,  the result  is the same  based upon  a common-sense            appraisal, elsewhere stressed by the magistrate judge.                 A self-evident  aim of  the settlement agreement  was to            make certain, by  November 30, 1994,  that future payment  to            Fleet of  the $6.4  million was reasonably  assured, assuming            that  actual payment had not  already occurred.   By law, the            intended  assurance would  still be  subject to  the specific            condition of FCC  approval of the license transfers;  and, of            course, bankruptcy  of the buyer or  other intervening events            might  otherwise have  frustrated  the  sale.   But  a  sales            contract  that lapsed by its  own terms prior  to November 30            simply  does  not  satisfy  the obvious  basic  objective  of            providing reasonable assurance to Fleet.                                         -14-                                         -14-                 To adopt this view does not require that we suppose that            the  parties had  an exact  and identical  view of  how every            contingency  or  condition  might  satisfy  or  violate   the            settlement agreement.   It is enough  that reasonable parties            would not have believed  that this settlement agreement would            be  satisfied where the seller and buyer built into the sales            contract a significant condition subsequent that defeated the            obligation  to buy  and led  to the  lapsing of  the contract            prior to  November 30.  See  generally  Cooke v.  Lynn Sand &                                    ______________  _____     ___________            Stone  Co., 70  F.3d  201, 204-05  (1st  Cir. 1995).    Other            __________            variations might present more difficulties.                 The  borrowers have  a fall-back  position.   They argue            that the settlement agreement is at worst ambiguous and that,            given  the ambiguity, they are entitled to a trial to present            evidence.   Further,  they  point to  the  affidavit of  Joel            Hartstone,  a  leading  figure   in  the  management  of  the            borrowers, that  in the course of  negotiating the settlement            agreement,                  [T]here  were  specific  discussions regarding  the                 understanding that, if the Borrower Group fulfilled                 its good faith efforts obligations by entering into                 purchase   and  sale   agreements,  and   if  those                 agreements  then  terminated,  the  Borrower  Group                 still  would  have  until  the   principal  payment                 deadline  to  consummate   a  transaction  with   a                 substitute purchaser.                 Hartstone's gloss  is highly unlikely as  a statement of            the  parties' actual  intent in  section  5(a) but  not quite            impossible.  It is highly unlikely because it is so serious a                                         -15-                                         -15-            departure  from the  words  and structure  of the  settlement            agreement.    Nothing  in  section  5(a)  suggests  that  the            contract signing was merely a "good faith efforts" hurdle; if            that was the intention, it could easily have been  expressed.            Further, there  is a lucid  "best efforts" clause  in section            5(e), pertaining to the borrowers' duty to seek FCC approval,            but none in section 5(a).                 Still, this would be a more difficult case if there were            solid  extrinsic proof--that is,  evidence independent of the            words of the settlement agreement--that the parties  mutually            intended  section  5(a)  to   have  the  meaning  claimed  by            Hartstone.   The contract could rationally  have been drafted            as  Hartstone urges,  and sometimes  parties fail  to express            themselves clearly in  their drafting.  This  looks, at first            glance, like a classic problem as to when  extrinsic evidence            may be offered to assist in contract interpretation, an issue            largely governed by the parol evidence rule.                 Somewhat  simplified,  the  traditional version  of  the            parol evidence rule  is that a  contract provision is  either            clear  or ambiguous and  that, in the  former case, extrinsic            evidence of  negotiations is prohibited (if  the contract was            intended to be a complete integration).  The modern approach,            embodied in  the  Restatement (Second)  of Contracts  (1981),                              __________________________________            allows  extrinsic evidence  to  "interpret" even  a seemingly            unambiguous  contract,  but not  to  vary  or contradict  its                                         -16-                                         -16-            terms.  Id.     212(1)  and comment b,  and   214(c)  (1981).                    ___            See  Farnsworth,  Contracts     7.12  (1990).   Massachusetts            ___               _________            courts may tend  toward the older view  but not unequivocally            so.   Compare ITT Corp. v. LTX  Corp., 926 F.2d 1258, 1261-62                  _______ _________    __________            (1st  Cir. 1991),  with  Robert Indus.  Inc.  v. Spence,  291                               ____  ___________________     ______            N.E.2d 407 (Mass. 1973).                   In  this case,  the elaborate  settlement agreement  was            plainly  intended as  a complete  integration and  contains a            clause to this effect.  Thus, if the Hartstone affidavit were            sufficient,  it  would  pose  nice questions  as  to  whether            Massachusetts law  requires  an ambiguity  before  permitting            extrinsic  evidence,  (if  so)   whether  the  agreement   is            ambiguous  on the point at issue, and (above all) whether the            Hartstone  gloss   can  be   said  to   explain--rather  than            contradict--the terms  of the agreement.   A factfinder might            also  have to decide  whether Hartstone's affidavit correctly            and fully described what was said at the negotiations.                 But Hartstone's  affidavit is not sufficient  to raise a            genuine issue of material fact.   The affidavit contains only            the conclusory assertion that  in the negotiations there were            "specific    discussions"     adopting    his    best-efforts            interpretation.   No  dates, names  or actual  statements are            supplied;   not  a   single  "specific"   is  set   forth  to            demonstrate, or  even illustrate, the content  of the alleged            "specific  discussions."     There is  only some  lawyer-like                                         -17-                                         -17-            argument in a further  paragraph as to why  Hartstone's "best            efforts"  gloss  conformed  to   the  general  tenor  of  the            agreement.                           Thus,  the quoted  passage in Hartstone's  affidavit did            not create a genuine issue of fact as to what happened at the            negotiations.   Nor  did  it supply  specific facts  that, if            uncontested,  might have  affected the  district court's  own            reading  of  the  settlement   agreement.    Cf.  Lumpkin  v.                                                         ___  _______            Envirodyne Indus.,  Inc., 933 F.2d  449, 456 (7th  Cir. 1991)            ________________________            (court may construe  document if  facts undisputed).   It  is            just  the  kind of  conclusory  affidavit  statement that  is            regularly disregarded by  courts.  Wynne v.  Tufts Univ. Sch.                                               _____     ________________            of Medicine, 932 F.2d  19, 27-28 (1st Cir. 1991);  Posadas de            ___________                                        __________            Puerto  Rico, Inc. v. Radin,  856 F.2d 399,  401-02 (1st Cir.            __________________    _____            1988).                 3.  The  remaining issue is  whether the district  court            erred  in  approving the  receiver's  agreement  to sell  the            stations to Spring.   The district court has wide  discretion            in judging whether  a receiver's  sale is fair  in terms  and            result  and serves the best  interests of the  estate.  E.g.,                                                                    ____            United  States v. Peters, 777  F.2d 1294, 1298  n.6 (7th Cir.            ______________    ______            1985).  On  review, an abuse  of discretion standard  governs            such judgments,  although  subsidiary findings  of  fact  are            reviewed under a clearly erroneous standard and  propositions                                         -18-                                         -18-            of law are subject to de novo review.  Pye v. Teamsters Local                                  _______          ___    _______________            Union No. 122, 61 F.3d 1013, 1018 (1st Cir. 1995).            _____________                 In  this  case,  the   borrowers  make  almost  a  dozen            different  attacks  on  the  sale,  but  only  a  few require            discussion.   The first attack,  and the one  most vigorously            argued, arises  from the  fact that the  winning bidder-buyer            (Spring)  was  closely  associated   with  the  company  (The            Zitelman  Group)  that until  June  1994  performed specified            accounting  services for the  seller-receiver (Giddens).  For            present purposes, we omit the details  of the association and            (arguendo) treat the case as if Spring and The Zitelman Group             ________            were one entity.                 Exceptions  aside, a  full-fledged  fiduciary,  such  as            trustees or a court-appointed  receiver like Giddens, may not            normally sell  estate property to  himself even if  the terms            are fair.   Restatement (Second)  of Trusts    170 comment  b                        _______________________________            (1959); Bogert, The Law of Trusts and  Trustees   543, at 248                            _______________________________            (rev.  2d ed. 1993);  Scott & Fratcher,  The Law of  Trusts                                                       __________________            170.1 (4th ed. 1987);  see, e.g., Attorney General  v. Flynn,                                   ___  ____  ________________     _____            120  N.E.2d 296,  302 (Mass.  1954).   The central  reason is            obvious: despite  the safeguard of court  oversight, the main            assurance  that the estate will  be maximized is  the zeal of            the seller to secure the best price, and that  zeal is likely            to be  tempered if the seller is selling to himself.  Bogert,            supra.  The  benefits of  the general ban  outweigh the  risk            _____                                         -19-                                         -19-            that, in an individual case, the  receiver might otherwise be            the highest bidder.                 The borrowers in this case  urge that The Zitelman Group            ought to be viewed as a fiduciary.  While the label is not an            exact  term, see SEC v.  Chenery, 318 U.S.  80, 85-86 (1943);                         ___ ___     _______            Restatement  (Second) Torts   874 comment  a (1979), we agree            ___________________________            with the  district court  that the specific  accounting tasks            allotted to  The Zitelman Group were  narrow, mechanical, and            unrelated to the sale.  The district court's findings to this            effect,  926 F. Supp. at 242-43, have not been impeached.  If            The  Zitelman  Group  had  been  engaged  as  the  receiver's            financial advisor on the sale, our view might be different.                 In the alternative, the  borrowers urge that the general            ban on trustee buying trust property ought to extend with the            same  force to  anyone  who is  employed  or engaged  by  the                            ______            fiduciary, as The Zitelman Group was in performing accounting            services.    This  is  an arguable  position  (we  ignore the            possible significance of the June resignation), and there are            a few cases  that purport  to support such  a general ban  on            those  who assist a fiduciary.   E.g., Donovan  & Schuenke v.                                             ____  ___________________            Sampsell, 226  F.2d 804,  811 (9th  Cir.), cert.  denied, 350            ________                                   _____________            U.S. 895 (1955); In re Q.P.S., Inc., 99 B.R. 843, 845 (Bankr.                             __________________            W.D. Tenn. 1989).                 But,  as the district court showed, it is not clear that            the ban is uniformly followed even in those few jurisdictions                                         -20-                                         -20-            that purport to adopt it.  926 F. Supp. at 244 n.64.  And the            greater weight  of  authority is  that  any judgments  as  to            disqualification of a non-fiduciary purchaser should be  made            on  a  case by  case  basis, taking  account  of  all of  the            surrounding circumstances.   Id. at 244; Restatement (Second)                                         ___         ____________________            of Trusts    170 comment  e; Bogert,  supra,    543, at  254;            _________                             _____            Scott & Fratcher,  supra,   170.6;  see, e.g., Burlingham  v.                               _____            ___  ____  __________            Worcester, 218 N.E.2d 123, 126 (Mass. 1966); Gunther v. Gove,            _________                                    _______    ____            175 N.E. 464, 467 (Mass. 1931).                 The central reason for  disqualifying the fiduciary as a            buyer is that there is no  one else who can similarly protect            the  estate's interest.  See Bogert, supra,   543, at 227-28.                                     ___         _____            But where the purchaser  is merely hired by the  fiduciary to            perform a discrete and narrow function unrelated to the sale,            the fiduciary's guardian role is  not automatically impaired.            On  the  contrary,  the  fiduciary should  still  have  every            incentive  to refuse to  sell unless the  purchaser is making            the most  attractive available offer.   Thus, there  is often            little risk that the estate will be disserved by allowing the            bid.                 The general  rule, by  disqualifying the fiduciary  as a            bidder, might in some rare case foreclose the highest bidder,            but only  one such bidder  is lost.   If  courts extend  that            circle  of  automatic   disqualification,  the  risk  becomes            greater of  harming the  estate by  limiting those who  might                                         -21-                                         -21-            offer  the highest  price.   This is  especially so  in cases            where the universe of  serious buyers is likely to  be small,            as may well be the case here.  And, of course, even without a            rigid rule  disqualification, an  objecting party is  free to            argue on particular facts against  a proposed sale to someone            employed by the fiduciary.                 Here, the  borrowers do argue that  The Zitelman Group's            access to inside information did give Spring  an advantage in            framing  its bid.   If Spring  had thereby  bid less  than it            otherwise would  have, interesting problems  of remedy  might            arise--for  it still might not  help the estate  to throw out            the highest  bid made to  it.   In all  events, the  district            court specifically  found that  the information  available to            The Zitelman Group was  not "confidential information or even            raw financial data," 926 F. Supp. at 243, and was effectively            available to other bidders.  Id. at 233 n.22.                                         ___                 On appeal, the borrowers make no effort to show that the            monthly  financial   statements  or  any   other  information            available  to  The  Zitelman  Group gave  Spring  any  unique            advantage  over the information available to all bidders.  On            the contrary, the prospective bidders were supplied with more            detailed  and  pertinent information  than  the  limited data            available to The Zitelman Group for accounting purposes.  926            F. Supp. at  233 & n.23.   The borrowers'  brief  gives us no                                         -22-                                         -22-            reason even to suspect error on this finding, let alone clear            error.                 We  turn now  to a  quite different  attack made  by the            borrowers  on  the  sale.    The  borrowers  assert  that the            receiver or his associated  brokerage company, Media  Venture            Partners,  accepted a "bribe" from Spring  by agreeing to act            as Spring's  broker  to  buy another  radio  station  in  the            Atlantic City area.  Apparently, in April  1995, at virtually            the  same time that Spring  submitted the winning  bid in the            first  round,   Spring  offered  Media   Venture  Partners  a            commission  to secure  Spring a  second  station in  the same            city.                 To describe this offer  as a proven bribe is  a dramatic            overstatement.   Zitelman  (who  headed  The Zitelman  Group)            himself testified at a hearing that the offer of a commission            to Spring to procure a second station in Atlantic City was an            arm's length  agreement unrelated (except  by Spring's desire            for  a duopoly)  to  the receiver's  sale  of the  borrowers'            stations.  The  district court did  not discuss the  episode,            perhaps because the borrowers  developed very little evidence            about it in the district court.  The borrowers apparently did            not even cross-examine Zitelman on this issue.                 In this court, the  borrowers simply repeat their charge            that the  commission was  a bribe.   If it  were, the  matter            would be very  serious.   But the borrowers  have adduced  no                                         -23-                                         -23-            evidence  that  the commission  was intended  by Spring  as a            bribe,  regarded by Giddens or Media Venture Partners in that            light,  or  that  it  had  any effect  on  the  sale  of  the            borrowers' station.  Out  of an abundance of caution  we have            read what can be found  in the record on the subject,  and it            does not alter our conclusion.                 The borrowers might have  argued that, as a prophylactic            matter, a receiver who is  selling property should be  barred            from any other dealing with the buyer in the same time frame.            A federal judge,  for example,  could not  normally accept  a            gift from  a lawyer litigating a  case before that judge.   5            U.S.C.   7353(a)(1) (1994); Code of Conduct for United States                                        _________________________________            Judges Canon  5(4).  But the borrowers have made no effort to            ______            offer  citations or  arguments for  such a  prophylactic rule            here;  and it is certainly  not self-evident that  so broad a            rule would  make sense  in the  context of ordinary  business            transactions.                 Finally, the  borrowers offer a motley  of other attacks            on  the  sale.   These include    charges that  Media Venture            Partners  helped Spring in "crafting" its bid by providing it            help  not  afforded  to  other  bidders;  that  the  receiver            concealed information from the court regarding bids submitted            by  other bidders;  that  adjustments in  the sales  contract            between the  receiver and  Spring were unwarranted;  that the            second and third rounds  of bidding were too hasty;  and that                                         -24-                                         -24-            the  sale price ultimately fixed for the stations was too low            in light of earlier appraisals.                 These objections  are answered in  the district  court's            lengthy opinion  approving the sale.  The  objections turn on            the  specific  facts  and  the district  court's  opinion  is            reported.  In each  case, we think that the  district court's            discussion  is sufficient and that no error occurred.  In our            view, the district court and the magistrate judge have done a            very able job in handling this complex and contentious case.                 Affirmed.                     _________                                         -25-                                         -25-
