                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-2-1994

Kline, et al. v. First Western Government Securities,
Inc., et al.
Precedential or Non-Precedential:

Docket 92-1498




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                    UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT



                        Nos. 92-1498; 92-1499


                           ERNEST P. KLINE;
                    EUGENE KNOPF; STEVEN R. WOJDAK

                                     v.

           FIRST WESTERN GOVERNMENT SECURITIES, INC.;
          SIDNEY P. SAMUELS; SAMUELS, KRAMER AND CO.;
               ARVEY, HODES, COSTELLO AND BURMAN

Ernest P. Kline & Eugene F. Knops, Appellants, in 92-1498

Arvey, Hodes, Costello & Burman, Appellant in 92-1499




         On Appeal From the United States District Court
            For the Eastern District of Pennsylvania
                 (D.C. Civil Action No. 83-01076)



                      Argued:   January 25, 1993

          Before:    GREENBERG, ROTH and LEWIS, Circuit Judges

                    (Opinion Filed    May 2, l994   )




Ronald F. Kidd, Esquire (Argued)
Joseph D. Mancano, Esquire
Teresa N. Cavenagh, Esquire
Duane, Morris & Heckscher
4200 One Liberty Place
Philadelphia, PA 19103-7396
          Attorneys for Appellants




                                                                 1
First Western Government Securities, Inc.
c/o Mr. Sidney P. Samuels
3683 Sacramental Street
P.O. Box 18211
San Francisco. CA 94118
          Attorney for Appellees:
              First Western Government Securities, Inc.
              Sidney P. Samuels
              Samuels Kramer & Co.

John E. McKeever, Esquire (Argued)
Lori S. Cozen, Esquire
Schnader, Harrison, Segal & Lewis
1600 Market Street
Suite 3600
Philadelphia, PA 19103
         Attorneys for Appellee Arvey, Hodes, Costello & Burman




                        OPINION OF THE COURT



ROTH, Circuit Judge:



          This appeal arises from a suit alleging, among other

things, violations of § 10(b) of the Securities and Exchange Act
of 1934, 15 U.S.C. § 78j(b), in connection with plaintiffs'

investment in forward contracts through defendant First Western

Government Securities ("First Western").   Defendant Arvey, Hodes,

Costello & Burman ("Arvey"), a Chicago law firm, issued three

opinion letters concerning the tax consequences of these

investments.   Plaintiffs Ernest P. Kline and Eugene F. Knopf

allege that Arvey's opinion letters contained both affirmative

misrepresentations and material omissions in their treatment of

these transactions.    They further contend that they relied upon


                                                                    2
these opinion letters in deciding to invest with First Western

and that as a result they incurred substantial financial losses.

The district court denied Arvey's motion for summary judgment on

the misrepresentation claim but granted it on the omissions

claim.   We conclude that both the misrepresentation and omissions

claims should be tried.   We will therefore affirm in part and

reverse in part, and we will remand the case to the district

court for further proceedings consistent with this opinion.

                                I.

          It is important to emphasize at the outset that,

because we are reviewing the partial grant of a motion for

summary judgment, we must view the facts in the light most

favorable to the non-moving party.   Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).    Thus, "[t]he

evidence of the non-movant is to be believed, and all justifiable

inferences are to be drawn in his favor."     Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986).

          The central figure in this case is defendant Sidney

Samuels, who founded First Western in 1978.    Prior to that time

Samuels was a general partner in Price & Company ("Price").

According to plaintiffs, First Western's trading program was

substantially similar to Price's and indeed was modeled on it.

Significantly, Arvey represented both Price and First Western.

Arvey assisted Samuels and his partner, Larry Price, in the

formation of Price, drafted Price's limited partnership agreement

and its 1977 offering memorandum, and represented it in

connection with IRS civil and criminal investigations.    Arvey


                                                                    3
began assisting Samuels in setting up First Western while he was

still a general partner in Price.   The firm became First

Western's general counsel and assisted in the drafting of forms

to be used by First Western, including the brochure describing

the program.   There is some suggestion in the record that Arvey

helped design the straddle transactions used by First Western.

(Joint Appendix ("JA") at 154.)   At First Western's request,

Arvey also provided it with three opinion letters addressing the

federal income tax treatment of these transactions.   These

opinion letters were dated September 20, 1978, June 8, 1979, and

November 12, 1980.

          The transactions engaged in by First Western involved

forward contracts to purchase and sell money market instruments,

specifically Government National Mortgage Association securities

("GNMA's") and Federal Home Loan Mortgage Corporation

participation certificates ("FMAC's").   A "forward contract" is a

contract to purchase or sell a specified security, at a

designated interest rate, on a fixed future date.   In a straddle

transaction an investor enters into a pair of forward contracts,

agreeing both to buy and sell securities in the future.     The

difference between the "buy" contract and the "sell" contract

results in a "spread" position, resulting in gain or loss to the

investor depending on whether interest rates rise or fall.

Accordingly, before entering into a straddle an investor must

decide how to "bias" the spread by predicting whether interest

rates will rise or fall.




                                                                    4
           First Western's agreements with its customers provided

that a customer could arrange for the cancellation of his

obligations under a forward contract prior to the settlement

date.   First Western would then "charge or credit the customer's

account with an amount equal to the profit First Western or the

customer, respectively, would be entitled to receive in the event

delivery was effectuated pursuant to such contract as of the date

of cancellation."    (Arvey Opinion Letters, 9/20/78, JA at 138;

6/8/79, JA at 562.)    Typically investors would choose to cancel

the losing side of their straddle.     The tax treatment of the

resulting loss was the subject of the Arvey opinion letters.

           In the opinion letters Arvey concluded that, if First

Western and a customer agreed "to cancel a forward contract prior

to its settlement date, the consequent gain or loss realized by

the customer should constitute ordinary gain or loss to be

recognized by the customer in the year in which the contract is

canceled."    (Arvey Opinion Letter, 6/8/79, JA at 563.)0   The

three letters also contained language advising First Western that

the Internal Revenue Service and the courts might arrive at a

contrary conclusion.

             As the following excerpts show, each of the letters

also provided that the opinions were based on facts as provided

by First Western and were for the use of First Western only:

             September 20, 1978, letter:



0
The September 20, 1978, and the November 12, 1980, letters
contain essentially the same language. (JA at 139-40, 578.)


                                                                    5
The following paragraphs contain a summary of
such transactions as you [First Western] have
described them to us. (JA at 135.)

[T]his opinion is subject to the consummation
of the transactions between First Western and
its customers under the facts and conditions
described above and is further expressly
conditioned on your representation that the
transactions entered into by First Western
and its customers will be for the purpose,
and with a reasonable expectation, of
economic gain. (JA at 140.)

     This letter is intended for your
personal use only and is not intended to be,
and should not be, relied upon by persons
other than First Western. (JA at 149.)

June 8, 1979, letter:

You have advised us that the facts set forth
below constitute an accurate and complete
presentation of all relevant information with
regard to such transactions. (JA at 558.)

[T]his opinion is subject to the consummation
of the transactions between First Western and
its customers pursuant to the facts and
conditions described above and is further
expressly conditioned on your representation
that such transactions will be consummated by
the customers of First Western with a
reasonable expectation of economic gain. (JA
at 563.)

     This letter is intended for your
personal use only and is not intended to be,
and should not be, relied upon by persons
other than First Western. (JA at 574.)

November 12, 1980, letter:

     You have advised us that the facts set
forth below constitute an accurate and
complete presentation of all relevant
information with regard to the transactions
between First Western and its customers, and
that no material fact necessary to make the



                                                6
          information herein not false or misleading
          has been omitted. (JA at 576.)

          [T]he conclusions set forth herein are based
          upon the facts and conditions described in
          this letter as you have represented them to
          us and we express no opinion as to the tax
          treatment of any transaction to the extent
          the facts may differ from those contained
          herein.
                We express no opinion concerning any
          federal income tax consequence other than as
          specifically set forth in this letter, and no
          opinion is expressed with respect to state
          and local taxes, federal or state securities
          laws, or any other federal or state law not
          explicitly referenced herein. We also
          express no opinion as to the advisability of
          undertaking any transaction described in this
          letter, in that any such determination must
          take into account the individual facts and
          circumstances affecting the particular
          taxpayer.
                This letter is intended solely for the
          internal use of First Western and,
          accordingly, it is not intended to be, and
          should not be, relied upon by any person
          other than First Western. Further, this
          letter is not to be quoted or otherwise
          referred to in any documents, including
          financial statements of First Western, nor is
          it to be filed with or furnished to any
          government agency or other person without the
          express prior written consent of this firm.
          Such consent has not been given, and will not
          be given, unless the person to whom this
          letter is to be furnished has previously
          agreed, in writing, that he will not rely
          upon the opinions and conclusions expressed
          herein, but will make his own independent
          evaluation of the federal income tax
          consequences of any transactions to be
          entered into with First Western. (JA at
          591.)

          A couple of themes emerge from these excerpts.   First,

Arvey stressed that its view of the transactions' validity hinged

on whether they were entered into with a reasonable expectation


                                                                    7
of generating a profit.     Second, the letters asserted that

Arvey's conclusions might be changed by facts and circumstances

unique to individual customers' accounts.     Arvey also made these

points in response to inquiries from potential First Western

customers about its opinion letters.     (JA at 365-77.)

          Despite the letters' statement that they were for the

exclusive use of First Western, Arvey was aware at least as early

as May 31, 1979, that its opinion letters had reached potential

investors.   (JA at 365.)    The record before us reflects some ten

instances in which potential First Western investors contacted

Arvey regarding its opinion.     (JA at 365-78.)   As the following

excerpt from an October 21, 1980, letter to Arvey from an

attorney representing a potential investor makes clear, Arvey was

put on notice that its efforts to dissuade reliance were not

always successful:
               Surely you realize that First Western
          Government Securities is using your letter in
          an effort to obtain investors and is
          furnishing copies of your letter with
          brochures indicating the mechanical operation
          of the program. As a result, notwithstanding
          statements made in your October 16, 1980,
          letter, please be advised that my client is
          awaiting my receipt of your opinion letter
          before making a decision as to his investment
          with First Western Government Securities. (JA
          at 376.)

          Plaintiffs Kline and Knopf invested in forward

contracts with First Western in December 1980, after reading and

relying upon Arvey's June 1979 and November 1980 opinion letters.

They incurred losses on their investments, deducted these losses




                                                                      8
in their income tax filings, and had their deductions disallowed

by the IRS.

           Kline and Knopf allege that Arvey knew or recklessly

disregarded the truth about First Western's trading program.      As

a result, they contend, Arvey in its opinion letters made

material misrepresentations and omitted material facts concerning

the actual structure of First Western transactions.   Plaintiffs

allege a number of misrepresentations.   They allege that the

opinion letters stated that under the First Western trading

program investors would be required to make or accept delivery of

the underlying securities when in fact no such requirement

existed.   They allege that the opinion letters represented that

the prices of First Western's contracts moved independently, and

thus subject to market risk, when in fact First Western's

computer trading program artificially set the prices to eliminate

any risk of loss.0   They allege misrepresentations as to whether

0
Plaintiffs contend that the prices set by First Western's
computer program bore virtually no relation to actual market
prices. They point to a study of the First Western trading
program undertaken by Professor E. Philip Jones of Harvard
Business School. Following a thorough analysis of First
Western's operations, including a review of the assumptions used
in the computer pricing program, Professor Jones concluded as
follows:
          First Western's portfolios were a sham. There
          was no independent movement of prices of
          different contracts. Most of the risk on one
          side of a portfolio was exactly cancelled by
          the risk on the other side of the portfolios.
          ... This cancellation of risk was
          accomplished by ignoring market prices for
          GNMAs and FHLMCs, in favor of artificial
          pricing calculations that resulted in prices
          which were substantially different from
          market prices.

                                                                    9
customers would be required to make additional margin deposits

and as to how First Western calculated the fees it charged for

cancellation of contracts.   Finally, they allege that the opinion

letters misrepresented the fact that First Western's transactions

were designed to obtain tax losses and as structured could not

support a reasonable expectation of economic gain.

          As for material omissions, plaintiffs allege that Arvey

made no reference to prior IRS investigations of Price & Company

or Sidney Samuels' connection to that firm.0   Furthermore, a

number of investigations into First Western's trading program had

commenced by the time Arvey issued its final opinion letter.      The

IRS had audited a number of First Western investors, the SEC had

started an investigation and requested numerous documents from

First Western, and the Minnesota Department of Commerce was

investigating First Western.    The only reference to these

activities in the November 12, 1980, opinion letter was as

follows: "Further, you have informed us that customers of First

Western are being audited by the Service and that the Service has
questioned the deductibility of losses realized by customers on

the basis of the theory set forth by the Service in Rev. Rul. 77-

185."   (JA at 588.)   The letter made no mention of the SEC or



(JA at 527.)
0
 As noted above, plaintiffs allege that First Western's trading
program was modeled after Price's. Thus, plaintiffs allege that
Arvey should have disclosed the fact that, before Arvey issued
its 1979 opinion letter, the IRS had undertaken a criminal
investigation into Price's operations. The IRS investigations
ultimately led to a finding that Price's trades were sham
transactions. Price v. Commissioner, 88 T.C. 860 (1987).


                                                                   10
State of Minnesota investigations, or the IRS investigation into

Price.

          Arvey moved for summary judgment on the omissions

claim, the misrepresentation claim, and tort and RICO claims not

before us on this appeal.   The district court denied summary

judgment on all counts except those asserting liability for

omissions of material fact.   Because the district court believed

that this case presents two "'controlling issues of law as to

which there is a substantial ground for difference of opinion,'"

Kline v. First Western Gov't Secs., 794 F.Supp. 542, 557 (E.D.Pa.

1992) (quoting 28 U.S.C. § 1292(b)), it certified for immediate

appeal the following two issues: first, whether an attorney may

be held liable for alleged misrepresentations of fact in an

opinion letter when those alleged factual statements have been

specifically attributed to another individual; and, second,

whether attorneys may be held liable for omissions of fact in an

opinion letter absent a duty to disclose.0   The district court

also ruled that Arvey did not meet its burden of proving that



0
Plaintiffs sued defendant Arvey under § 10(b) of the Securities
Exchange Act of 1934, 15 U.S.C. § 78(j) and Rule 10(b)(5), 17
C.F.R. 240.10b-5, both as an aider and abettor in Count I of the
complaint and a primary violator in Counts IV and VI. We note
that in Central Bank v. First Interstate Bank, the Supreme Court
ruled that "a private plaintiff may not maintain an aiding and
abetting suit under §10(b)." 62 U.S.L.W. 4237 (U.S. April 19,
1994). This ruling would appear to bar plaintiffs' claims
against Arvey in Count I, a point which we do not now decide.
However, we do not believe it affects our analysis with respect
to whether Arvey may be held liable for material
misrepresentations or omissions as a primary violator under
Counts IV and VI.


                                                                  11
plaintiffs' reliance was unreasonable, id. at 552-54, but did not

certify that issue for appeal.

                                 II.

          The district court had subject matter jurisdiction over

this case pursuant to 28 U.S.C. § 1331.    This court has

jurisdiction over this certified interlocutory appeal pursuant to

28 U.S.C § 1292(b).    This court granted both parties' petitions

to appeal on June 8, 1992.

          Our review of a district court's grant of summary

judgment is plenary.    Erie Telecommunications, Inc. v. City of

Erie, 853 F.2d 1084, 1093 (3d Cir. 1988).     "On review the

appellate court is required to apply the same test the district

court should have utilized initially."    Goodman v. Mead Johnson &

Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S.

1038 (1977).

          A court may grant summary judgment only when the

submissions in the record "show that there is no genuine issue as

to any material fact and that the moving party is entitled to

judgment as a matter of law."    Fed. R. Civ. P. 56(c).   "The

inquiry performed is the threshold inquiry of determining whether

there is the need of a trial--whether, in other words, there are

any genuine factual issues that properly can be resolved only by

a finder of fact because they may reasonably be resolved in favor

of either party."     Anderson v. Liberty Lobby, 477 U.S. at 250.
Stated differently, "a motion for summary judgment must be

granted unless the party opposing the motion can produce evidence

which, when considered in light of that party's burden of proof


                                                                    12
at trial, could be the basis for a jury finding in that party's

favor."    J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610,

618 (3d Cir. 1987)(Becker, J., concurring).       Thus, the party

opposing summary judgment "must do more than simply show that

there is some metaphysical doubt as to material facts."

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986).

                                 III.

           The district court in its resolution of Arvey's motion

for summary judgment relied on the distinction between liability

imposed under Rule 10b-5 for misrepresentations and that imposed

for omissions.    While this distinction is significant in some

circumstances,0 we do not find it helpful to resolving the

particular issues presented in this case.       We conclude instead

that attorneys may be liable for both misrepresentations and

omissions where the result of either is to render an opinion

letter materially inaccurate or incomplete.

           A.    The Misrepresentations Claim

           Arvey argues that the district court erred in denying

summary judgment in its favor on plaintiffs' claims that Arvey is

liable under the federal securities laws for affirmatively

misrepresenting material facts concerning First Western's trading

program.   Arvey contends that it was entitled to summary judgment

on this claim for the simple reason that its opinion letters did

0
For example, the Supreme Court has held that in cases "involving
primarily a failure to disclose," i.e., omissions, reliance may
be presumed. Affiliated Ute Citizens of Utah v. United States,
406 U.S. 128, 153 (1972).


                                                                      13
not contain any misrepresentations.   That is, it asserts that as

a matter of law it cannot be held liable for an opinion letter in

which it made explicit that it was basing its opinion on an

assumed set of facts represented to it by its client and that it

had conducted no independent investigation into whether those

represented facts accurately reflected reality.   We are

unpersuaded by this argument.

           This court has generally recognized securities fraud

claims based on allegations of misrepresentations in opinion

letters.   We have held that "[a]n opinion or projection, like any

other representation, will be deemed untrue for purposes of the

federal securities laws if it is issued without reasonable

genuine belief or if it has no basis."   Herskowitz v.

Nutri/System, Inc., 857 F.2d 179, 184 (3d Cir. 1988), cert.

denied sub nom. Nutri/System, Inc. v. Herskowitz, 489 U.S. 1054

(1989).    Interpreting the Supreme Court's "scienter" or intent

requirement as articulated in Ernst & Ernst v. Hochfelder, 425

U.S. 185 (1976), we have explained that
          an opinion must not be made 'with reckless
          disregard for its truth or falsity,' or with
          a lack of 'genuine belief that the
          information disclosed was accurate and
          complete in all material respects.'
          Therefore, an opinion that has been issued
          without a genuine belief or reasonable basis
          is an 'untrue' statement which, if made
          knowingly or recklessly, is culpable conduct
          actionable under § 10(b) and Rule 10b-5.

Eisenberg v. Gagnon, 766 F.2d 770, 776 (3d Cir. 1985) (citations
omitted), cert. denied sub nom. Wasserstrom v. Eisenberg, 474

U.S. 946 (1986).



                                                                   14
          Eisenberg concerned litigation over a tax shelter

involving the sale of coal rights.   The defendant law firm had

prepared a tax opinion letter, which was included in the offering

memoranda, in which it opined that the IRS would allow certain

deductions.   Plaintiffs alleged that the law firm knew that there

was no reasonable basis for its opinion.   We held that the law

firm and an accounting firm that issued an opinion letter

verifying profit projections included in the offering memoranda

"are liable if they recklessly expressed opinions which they had

good reason to believe were baseless."   Id. at 778.   We explained

that such liability is proper because of the greater information

possessed by professionals who express opinions upon which third

parties would rely.
          When a representation is made by
          professionals or 'those with greater access
          to information or having a special
          relationship to investors making use of the
          information,' there is an obligation to
          disclose data indicating that the opinion or
          forecast may be doubtful. When the opinion
          or forecast is based on underlying materials
          which on their face or under the
          circumstances suggest that they cannot be
          relied on without further inquiry, then the
          failure to investigate further may 'support
          an inference that when the defendant
          expressed the opinion it had no genuine
          belief that it had the information on which
          it could predicate that opinion.'

Id. at 776 (citations omitted).

          Herskowitz presented this court with a similar

situation.    In that case, we held that a securities fraud claim

against a bank that had issued an opinion letter concerning the

fairness of the transaction should be submitted to a jury when


                                                                    15
the claim alleged that the bank knew that the assumptions on

which it based its opinion were unfounded.     Herskowitz, 857 F.2d

at 184-85.    See also Sharp v. Coopers & Lybrand, 649 F.2d 175,

184 (3d Cir. 1981), cert. denied, 455 U.S. 938 (1982)

(recognizing securities fraud claim against accounting firm based

on materially false representations contained in opinion letter).

             These cases leave no doubt concerning the existence of

a cause of action for knowing or reckless misrepresentations in

opinion letters.     The question we must address, then, is whether

Arvey's disclaimers, to the effect that the opinion was based

only on facts provided to it by Samuels, should lead us to

conclude otherwise than that this case should go to trial.     The

district court relied on Gilmore v. Berg, 761 F.Supp. 358 (D.N.J.

1991), in concluding that the disclaimers should not have that

effect.    We agree with that analysis.

             Gilmore involved a claim against an attorney who, in a

tax opinion letter, represented that the purchase price of the

real property involved in the tax shelter at issue was fair "as

determined by the general partner."    Id. at 370.   Plaintiffs

contended that the attorney knew that the property had been

purchased out of bankruptcy for less than one-half the stated

price.    The court stated:
            The court agrees with plaintiffs that a jury
            could find [the attorney's] statement that
            "the purchase price of $5.3 million reflects
            the fair market value of the property as
            determined by the general partner" is so
            grossly misleading as to constitute
            actionable fraud in failing to disclose
            important facts underlying the determination
            of fair market value. [The attorney] seeks


                                                                     16
           to exculpate his misleading statement by
           pointing to the qualifying language, "as
           determined by the general partner.' However,
           plaintiffs have presented evidence that ...
           [he] knew that the fair market value of $5.3
           million was insupportable.

Id.

           The analysis in Gilmore, we believe, follows directly

from Eisenberg and this court's other cases concerning liability

for opinion letters.   We held in Eisenberg that professionals and

others with similar access to information must disclose data that

calls into question the accuracy of an opinion.   766 F.2d at 776.

This responsibility cannot be evaded by the inclusion of a

statement that the opinion is based on facts provided by someone

else.   Thus, when a law firm knows or has good reason to know

that the factual description of a transaction provided by another

is materially different from the actual transaction, it cannot

escape liability simply by including in an opinion letter a

statement that its opinion is based on provided facts.

           Plaintiffs here have alleged that Arvey had a long and

close relationship with Samuels, which extended to assisting him

in setting up First Western, designing the transactions in which

First Western engaged, and acting as First Western's general

counsel.   Plaintiffs also point to Arvey's representation of

Price, the firm on which First Western allegedly was modeled, in

IRS audit proceedings.   These allegations clearly permit the

inference that Arvey knew or had good reason to know that the

factual assertions contained in its opinion letters did not

reflect the substance of actual First Western transactions.     As



                                                                     17
such, Arvey's opinions, despite their disclaimers, fall squarely

within the category of opinion letters that we have held to be

actionable.

          That said, we feel it necessary to emphasize that there

is a distinction between the issue we have just addressed--

whether the presence of disclaimers precludes an action for

misrepresentations--and the question of whether plaintiffs

reasonably relied on the opinion letters.   As this court has

noted, a plaintiff bringing suit under § 10(b) and Rule 10b-5

must prove that the defendant (1) made misstatements or omissions

of material fact; (2) with scienter; (3) in connection with the

purchase or sale of securities; (4) upon which plaintiffs relied;

and (5) that plaintiffs' reliance was the proximate cause of

their injury.   In re Phillips Petroleum Secs. Litig., 881 F.2d

1236, 1244 (3d Cir. 1989).

          Thus far we have been concerned with the first of these

issues--whether Arvey is entitled to summary judgment based on

its contention that its opinion letters did not contain

misrepresentations because of the presence of the disclaimers.

Whether plaintiffs' reliance on Arvey's opinion letters was

reasonable pursuant to the standard we articulated in Straub v.
Vaisman & Co., 540 F.2d 591, 598 (3d Cir. 1976), presents a

separate issue.   The presence and character of disclaimers has

clear relevance to that determination.

          The district court concluded that Arvey has not met its

burden of showing that plaintiffs' reliance on the opinion

letters was unreasonable, Kline v. First Western Gov't Secs., 794


                                                                  18
F.Supp. at 552-54, and we believe that the record supports its

conclusion.   Although, as we have noted, the district court did

not certify the reliance issue for our review, we nevertheless

feel it necessary to address the issue briefly because under

§1292(b) "it is the order that is appealable, and not the

controlling question; and thus we may address any issue necessary

to decide the appeal before us."   Ivy Club v. Edwards, 943 F.2d

270, 275 (3d Cir. 1991), cert. denied sub nom. Del Tufo v. Ivy

Club, 112 S.Ct. 1282 (1992).   See also United States v. Stanley,

483 U.S. 669, 677 (1987).   Thus we could reverse the denial of

summary judgment if, like the dissent, we felt that plaintiffs'

reliance was unreasonable as a matter of law.

          In Straub we stated that a variety of factors should be

considered in determining whether a plaintiffs' reliance was

reasonable, including: (1) the existence of a fiduciary

relationship; (2) plaintiffs' opportunity to detect the fraud;

(3) the sophistication of the plaintiffs; (4) the existence of

long-standing business or personal relationships; and, (5) access

to the relevant information.   540 F.2d at 598.   Consideration of

the evidence before us in light of these factors, we believe,

leads inexorably to the conclusion that there exists a genuine

issue of material fact as to whether plaintiffs' reliance was

reasonable so that the denial of summary judgment on this ground

was proper.

          We acknowledge that the first and fourth factors weigh

in favor of Arvey.   The rest, however, favor plaintiffs.   There

is no evidence suggesting that plaintiffs had access to


                                                                    19
information that would have allowed them to understand that which

they allege was really taking place.   Arvey, on the other hand,

had an ongoing attorney-client relationship with First Western

and Samuels.   Nor is there a suggestion that plaintiffs had an

opportunity to detect the alleged fraud even without the benefit

of access to such information.   And while Arvey argues that

plaintiffs were sophisticated investors, the evidence does not

compel the conclusion that they were so sophisticated in these

matters that they should have recognized that the descriptions of

the transactions in the opinion letters bore little relation to

reality.0   A potential First Western investor, armed with Arvey

opinion letters and the information about his own account that

Arvey stressed might be important, could have obtained a tax

opinion from his attorney that would have been wrong simply

because of the misleading way in which the program allegedly was

described in the opinion letters.0   Mere reliance on the legal

0
 Unlike the dissent, we do not believe that the fact that "the
transactions discussed in the opinion letters were meant for
sophisticated investors," typescript at 15, means that plaintiffs
were in fact sophisticated enough to unravel First Western's
scheme. And while the "cutting edge" nature of these
transactions perhaps should have put plaintiffs on notice of
potential tax complications involving the transactions described
in the opinion letters, id., it has no logical connection to
whether plaintiffs should have suspected that Arvey knowingly
misdescribed the transactions.
0
 The dissent contends that "there is no way that another attorney
could have confirmed from the letters themselves that the facts
underlying the opinions were correct as they were solely within
the knowledge of First Western." Typescript at 16-17.
Plaintiffs' claim, however, is that Arvey also knew or should
have known that the descriptions of the transactions in the
opinion letters were inaccurate. We believe the record contains
evidence sufficient to support the inference that Arvey had or
should have had such knowledge, thereby creating a genuine issue


                                                                   20
conclusions expressed in the opinion letters, without more, would

have been unreasonable.    But we cannot say as a matter of law

that it was unreasonable to rely on the description of First

Western's trading program.    Indeed, such reliance would be

consistent with the disclaimers insofar as an independent legal

opinion was sought on the basis of the description of the

program.

            In addition to disputing our application of Straub to

this case, the dissent feels that Arvey is entitled to summary

judgment based on the "bespeaks caution" doctrine.     Under that

doctrine
            when an offering document's forecasts,
            opinions or projections are accompanied by
            meaningful cautionary statements, the
            forward-looking statements will not form the
            basis for a securities fraud claim if those
            statements did not affect the 'total mix' of
            information the document provided investors.
            In other words, cautionary language, if
            sufficient, renders the alleged omissions or
            misrepresentations immaterial as a matter of
            law.

In re Donald J. Trump Secs. Litig., 7 F.3d 357, 371 (3d Cir.

1993).     See also Donald C. Langevoort, Disclosures that "Bespeak

Caution", 49 Bus. Law. 481 (1994) (summarizing and analyzing

"bespeaks caution" jurisprudence).     Not just any cautionary

language will trigger application of the doctrine.     Instead,

disclaimers must relate directly to that on which investors claim

to have relied.    As we noted in Trump, "a vague or blanket


of material fact. Assuming Arvey possessed such knowledge, its
recitations of the facts "as provided to it by First Western"
were made without a genuine belief in their validity and thus
actionable under the law as expounded in the body of our opinion.


                                                                    21
(boilerplate) disclaimer which merely warns the reader that the

investment has risks will ordinarily be inadequate to prevent

misinformation.   To suffice, the cautionary statements must be

substantive and tailored to the specific future projections,

estimates or opinions in the prospectus which the plaintiffs

challenge."   7 F.3d at 371-72.

          So conceived, the "bespeaks caution" doctrine clearly

does not apply to this case except to the extent that plaintiffs

relied solely and without further investigation or consideration

on the opinion letters' conclusions as to the tax consequences of

the First Western transactions.   The cautionary statements in the

opinion letters provided investors with information that should

have suggested nothing more to them than the possibility that

Arvey might have gotten the law wrong or incorrectly assessed the

risk that the IRS would deny deductions.   The opinion letters did

not contain statements from which plaintiffs should have inferred

the risk that Arvey was knowingly or recklessly misstating the

structure of the entire First Western trading program.

          In the only other case that we have found concerning a

similar situation the court reached the same conclusion.   The

court in Griffin v. McNiff, 744 F.Supp. 1237 (S.D.N.Y. 1990),

aff'd without op., 996 F.2d 303 (2d Cir. 1993), provided the

following account of the case and its resolution:
          Plaintiffs ... challenge more than just the
          future forecasts and predictions in the
          offering materials. They argue that the
          underlying assumptions of the PPMs, tax
          opinions and projections were designed to
          mislead the investors into believing that the
          partnership investments offered them the


                                                                  22
          opportunity to achieve a profit and a tax
          benefit from their investment, when in
          reality defendants knew that these
          possibilities did not exist ... . Inasmuch
          as certain of these allegations go to the
          misleading nature of the statements when
          made, the existence of cautionary language
          regarding the general unpredictability of,
          inter alia, oil and gas operations, economic
          trends, and the interpretation of the tax
          laws, will not bar plaintiffs from
          maintaining their claims against the
          remaining defendants.

Id. at 1253-54 (footnote omitted).

          In order for there to be a plausible argument for

application of the "bespeaks caution" doctrine in this case more

than the simple assertion that the opinion is based on

represented facts is required.   Trump requires that the language
bespeaking caution relate directly to that by which plaintiffs

claim to have been misled.   7 F.3d at 371-72.   Under the law

regarding omissions, discussed in the next section, Arvey's

statement that its opinion was based on facts represented to it

by First Western also contained the implicit assertion that Arvey

did not know the facts to be otherwise.   It could not therefore

have alerted plaintiffs to the possibility that Arvey did know

otherwise.   Thus, for the doctrine to even conceivably preclude

plaintiffs' claims in this case it would be necessary for the

letters to have included a disclaimer stating, in essence, that

there was a possibility that Arvey did know otherwise and that

the opinion letter was a sham commissioned to construct a facade

of legitimacy for a trading program that both First Western and




                                                                   23
Arvey knew was a farce.0   We find no such language and therefore

conclude that Arvey was not entitled to summary judgment in its

favor on the basis that plaintiffs' reliance was unreasonable as

a matter of law.

           B.   The Omissions Claim

           The district court granted summary judgment for Arvey

on all claims to the extent that they alleged liability for

omissions of material fact.   The court reasoned that attorneys

cannot be held liable for omissions in an opinion letter unless

plaintiffs can demonstrate that the attorneys had a duty to

disclose to them the information that was omitted.   Id. at 550-

51.   Because it concluded that plaintiffs did not show the

existence of a fiduciary or other relationship which would give

rise to such a duty, the court held that plaintiffs could not

proceed with their claims based on Arvey's alleged omissions.




0
We note, however, that we do not decide at this time whether
such a disclaimer would be effective. One court has noted that
"it would appear that the doctrine does not apply unless the
projection at issue reflects an honestly held belief." Gurfein
v. Sovereign Group, 826 F.Supp. 890, 908 (E.D.Pa. 1993) (Pollak,
J.). Judge Pollak further remarked that if the rule were
otherwise
          one could construct a completely inaccurate
          and fraudulent offering memorandum, yet be
          shielded from a fraud claim as long as there
          was language in the document cautioning
          investors of the specific risks. To the
          extent that such a rule would allow, if not
          encourage, fraud and non-disclosure on the
          part of corporate actors, it clearly is not a
          viable application of the "bespeaks caution"
          doctrine.
Id. at 908 n.20.


                                                                   24
          We believe the district court's analysis misapprehends

the issues presented by this case.    We are dealing here with a

situation in which Arvey, by authoring its opinion letters, has

elected to speak regarding the transactions at issue.     Plaintiffs

allege that this speech was misleading because Arvey failed to

include in its opinion letters information that, if included,

would have undermined the conclusions reached in those letters.

In contrast, the cases cited by the district court, as well as

those cited by Arvey, for the proposition that attorneys may not

be held liable for omissions absent a duty to disclose concern

the question of whether a law firm or similar entity has a duty

to "blow the whistle" on its client.    See Fortson v. Winstead,

McGuire, Sechrest & Minick, 961 F.2d 469 (4th Cir. 1992); Abell

v. Potomac Ins. Co., 858 F.2d 1104 (5th Cir. 1988), cert. denied

sub nom. Abel v. Wright, Lindsey & Jennings, 492 U.S. 918 (1989);

Barker v. Henderson, Franklin, Starnes & Holt, 797 F.2d 490 (7th

Cir. 1986).    That is, those cases concerned situations where the

alleged omissions were unrelated to the validity of the law

firm's opinion letter or similar communication.

          Fortson, for example, concerned a suit against a law
firm that had prepared a tax opinion letter that was included in

the private placement memorandum used in the offering of

interests in a real estate limited partnership.     Plaintiffs

"sought to recover from Winstead on the ground that the firm

breached its duty under federal securities laws and state common

law by failing to inquire into and ensure complete and accurate

disclosure."    Fortson, 961 F.2d at 471.   Plaintiffs did not


                                                                   25
allege that the tax opinion was inaccurate.     "Instead, they

challenge[d] the sufficiency of the information provided to them

as potential investors and contend[ed] that Winstead had a

responsibility to ensure full and accurate disclosure."    Id. at

472.   The court refused to impose this obligation on law firms in

the absence of a fiduciary relationship between the law firm and

the plaintiffs.   Id. at 472-74.    To do so, the court remarked,

would be to make attorneys "guarantors of integrity in all

commercial transactions, whether the context be one of raising

capital, marketing a product, or negotiating a contract. Lawyers,

in short, would function in the business world as designated

watchdogs."    Id. at 475.   See also Barker, 797 F.2d at 496 ("When

the nature of the offense is a failure to 'blow the whistle', the

defendant must have a duty to blow the whistle. And this duty

does not come from § 10(b) or Rule 10b-5; if it did the inquiry

would be circular.   The duty must come from a fiduciary relation

outside securities law.").

          This case, in contrast, presents the question of

whether, once a law firm has chosen to speak, it may omit facts

material to its non-confidential opinions.     Here, unlike Fortson,
the allegedly omitted facts bear directly on the accuracy of the

tax opinion.   Thus, this situation closely resembles that before

the Seventh Circuit in Ackerman v. Schwartz, 947 F.2d 841 (7th

Cir. 1991).    In Ackerman investors brought suit against a law

firm that wrote an opinion letter concluding that the investors

were entitled to certain deductions for their investments in a

tax shelter.   The opinion letter recited facts that made the


                                                                    26
transaction seem legitimate, but were fictitious.    The letter

cautioned that the firm had "relied on unnamed persons for

unspecified facts," id. at 843, and added that "'[w]e have not

made an attempt to independently verify the various

representations.'"   Id.   The court held that the district court's

grant of summary judgment in favor of the law firm was improper.
          Under Rule 10b-5 ... the lack of an
          independent duty does not excuse a material
          lie. A subject of a tender offer or merger
          bid has no duty to issue a press release, but
          if it chooses to speak it must tell the truth
          about material issues. Although the lack of
          duty to investors means that Schwartz had no
          obligation to blow the whistle, and none to
          correct a letter he had not authorized to be
          circulated in the first place ... Schwartz
          cannot evade responsibility to the extent he
          permitted the promoters to release his
          letter.

Id. at 848 (citations omitted).

          This analysis flows naturally from Eisenberg.     There we

held that an opinion is actionable if issued "with a lack of a

genuine belief that the information disclosed was accurate and

complete in all material respects."    766 F.2d at 776.   Indeed,

when the foundations of an opinion "suggest that they cannot be

relied on without further inquiry, then the failure to

investigate further may 'support an inference that when the

defendant expressed the opinion it had no genuine belief that it

had the information on which it could predicate that opinion.'"

Id. (citations omitted).    Thus, this court has adopted a limited

duty to investigate and disclose when, by the drafter's omission,

a public opinion could mislead third parties.




                                                                    27
           This limited duty not to omit was particularly well-

articulated in Rose v. Arkansas Valley Envtl. & Util. Auth., 562

F.Supp. 1180, 1206-08 (W.D.Mo. 1983).   The Rose court, in holding

that an attorney's failure to disclose material facts in a bond

opinion letter formed the basis of an actionable securities fraud

claim, explained that when a professional "undertakes the

affirmative act of communicating or disseminating information,"

there is
           a general obligation or "duty" to speak
           truthfully; or, alternatively stated, a
           "duty" not to communicate something which is
           known to be untrue (or, perhaps, in which the
           defendant has so little basis for honest
           belief that the requisite degree of
           "recklessness" is involved). And encompassed
           within that general obligation is also an
           obligation or "duty" to communicate any
           additional or qualifying information, then
           known, the absence of which would render
           misleading that which was communicated. While
           this latter "duty" might loosely be described
           as a "duty to disclose," I would prefer, for
           purposes of distinguishing it from a true
           "duty to disclose," ... to label it as a
           "duty not to omit." In reality, it is simply
           one facet of the general obligation to speak
           truthfully, arising out of and because of an
           affirmative act by the defendant in
           communicating.

Id. at 1207 (citations omitted).

           The record contains evidence sufficient to preclude

summary judgment on the omissions claim.   Arvey received

inquiries concerning its opinion letter from potential investors

prior to issuing its second letter and was explicitly told prior

to issuing its third letter that First Western was distributing

copies of its letters along with brochures describing the



                                                                  28
program.   Plaintiffs have alleged that Arvey failed to disclose

the SEC and State of Minnesota investigations as well as the IRS

investigation into the analogous Price trading program.     This

evidence creates genuine issues of material fact sufficient to

defeat Arvey's motion for summary judgment.

           Finally, we must address Arvey's argument that a duty

not to omit runs against the ethical standards of attorney

conduct.   This argument is unpersuasive.   Privileges and ethical

rules cannot be relied on to perpetrate fraud.     See Clark v.

United States, 289 U.S. 1, 15 (1933) ("The privilege takes flight

if the relation is abused.   A client who consults an attorney for

advice that will save him in the commission of a fraud will have

no help from the law.   He must let the truth be told.").

                                IV.

           For the foregoing reasons, we will reverse the district

court's decision granting summary judgment for Arvey on

plaintiffs' claim that Arvey's tax opinion letters contained

material omissions upon which plaintiffs relied.    We will affirm

the district court's opinion in all other respects, and will

remand for proceedings consistent with this opinion.




                                                                   29
Kline v. First Western Government Securities
Nos. 92-1498, 92-1499

GREENBERG, Circuit Judge, dissenting.

          This case raises the issue of when a law firm may be

liable to third parties for misrepresentations and omissions in

opinion letters written by the firm to its client.    I am unable

to join in the majority's opinion because the explicit

disclaimers in the opinion letters, portions of which the

majority quotes, made the plaintiffs' reliance on these letters

unreasonable as a matter of law.   Therefore, I would reverse the

order of the district court to the extent that it denied the firm

summary judgment, would affirm the order to the extent that it

granted the firm summary judgment, and would remand the matter

for entry of summary judgment in favor of the firm against the

plaintiffs on the claims involved on this appeal.    My dissent

addresses only the reasonable reliance issue as described on

pages 18 through 24 of the typescript of the majority opinion and

the accompanying footnotes, as in my view that issue is

dispositive.

          As germane on this appeal, the plaintiffs alleged that

the law firm, Arvey, violated section 10(b) of the Securities

Exchange Act of 1934, 15 U.S.C. § 78(j), and Rule 10b-5, 17

C.F.R. § 240.10b-5.   The plaintiffs focus their attack on Arvey

on the factual descriptions of First Western's program contained

in Arvey's opinion letters.   The plaintiffs contend that these



                                                                    30
descriptions are inaccurate as a result of both

misrepresentations and omissions.      They further allege that as a

consequence of Arvey's misrepresentations and omissions, they

suffered adverse tax consequences upon the cancellation of losing

forward contracts because the Internal Revenue Service disallowed

the deductions they claimed based on these losses.      Indeed, the

relationship of the plaintiffs' claims to the tax portions of

Arvey's opinions is demonstrated by the district court's holding

of this case on its suspense calendar pending the outcome of

litigation in the Tax Court regarding deductions for losses upon

the cancellation of losing forward contracts arranged by First

Western.   The district court activated this case after the

taxpayers were unsuccessful in that forum.       See Freytag v.

Comm'r, 89 T.C. 849 (1987), aff'd, 904 F.2d 1011 (5th Cir. 1990),

aff'd, 111 S.Ct. 2631 (1991).0    The plaintiffs, however, were not

parties to that Tax Court case.       Instead, they settled their

cases with the Internal Revenue Service.

           Arvey responds to the plaintiffs' charges by urging

that the plaintiffs could not have relied justifiably on the

opinion letters, as the letters: (1) explicitly addressed assumed
facts; (2) stated that these facts had been provided by the

client; and (3) stated that the firm furnished the opinion to

First Western and it should not be relied upon by persons other

than First Western.   Thus, Arvey argues that the district court

0
The Supreme Court did not deal with the merits of the
controversy. The opinion of the Court of Appeals contains a
succinct description of the First Western program. 904 F.2d at
1013-14.


                                  3
erred in concluding that the qualifying language in the opinion

letters did not shield it from liability as a matter of law.        I

agree.

           I recognize that it is well settled that projections,

forecasts, and opinions may be actionable under Rule 10b-5 if the

declarant makes them without a genuine belief in their validity

or a reasonable basis to believe in their accuracy.     In re Donald

J. Trump Casino Sec. Litig., 7 F.3d 357, 368, (3d Cir. 1993),

cert. denied, 114 S.Ct. 1219 (1994); Herskowitz v. Nutri/System,

Inc., 857 F.2d 179, 184 (3d Cir. 1988), cert. denied, 489 U.S.

1054, 109 S.Ct. 1315 (1989); Eisenberg v. Gagnon, 766 F.2d 770,

775-76 (3d Cir.), cert. denied, 474 U.S. 946, 106 S.Ct. 342

(1985).   As we explained in Eisenberg, "[a]n opinion must not be

made 'with reckless disregard for its truth or falsity' or with a

lack of a 'genuine belief that the information disclosed was

accurate and complete in all material respects.'"     766 F.2d at

776 (citation omitted).   Attorneys and other professionals are

not exempt from this requirement, and courts have permitted the

imposition of liability for securities fraud on professionals who

knowingly or recklessly have issued false or misleading opinions.

See, e.g., Id.; Duke v. Touche Ross & Co., 765 F. Supp. 69
(S.D.N.Y. 1991); Stevens v. Equidyne Extractive Indus., 694 F.

Supp. 1057 (S.D.N.Y. 1988).

           To state a violation of section 10(b) and Rule 10b-5, a

plaintiff must allege that the defendant made (1) a misstatement

or an omission (2) of material fact (3) with scienter (4) on

which the plaintiff relied (5) and which proximately caused the


                                4
plaintiff's injury.    See, e.g., Hayes v. Gross, 982 F.2d 104, 106

(3d Cir. 1992); Shapiro v. UJB Fin. Corp., 964 F.2d 272, 280 (3d

Cir.), cert. denied, 113 S.Ct. 365 (1992); Lewis v. Chrysler

Corp., 949 F.2d 644, 649 (3d Cir. 1991); Straub v. Vaisman & Co.,

540 F.2d 591, 598 (3d Cir. 1976).    Moreover, the plaintiff's

reliance on the alleged misstatement or omission must be

reasonable, even though the defendant has the burden of proof to

show it was not reasonable.    Straub, 540 F.2d at 598.

Consequently we have stated that to recover under section 10(b)

and Rule 10b-5, "the plaintiff [must] act reasonably" and that "a

sophisticated investor is not barred by reliance upon the honesty

of those with whom he deals in the absence of knowledge that the

trust is misplaced."   Id. (emphasis added).   Thus, "an investor

cannot close his eyes to a known risk" and if he is "cognizant of

the risk, then there is no liability."    Teamsters Local 282

Pension Trust Fund v. Angelos, 762 F.2d 522, 530 (7th Cir. 1985).

Accordingly, a securities action defendant may obtain summary

judgment by demonstrating that the plaintiff's reliance on the

defendant's statements was unreasonable as a matter of law.

          It stands to reason that where opinion letters

regarding a potential investment -- even those prepared with

scienter -- "bespeak caution," reasonable investors should not

rely on the representations in them.     See Luce v. Edelstein, 802
F.2d 49, 56 (2d Cir. 1986).    The majority concedes that "[m]ere

reliance on the legal conclusions expressed in the opinion

letters, without more, would have been unreasonable," but states

that it was not unreasonable for plaintiffs to rely on Arvey's


                                 5
descriptions of First Western's trading program although Arvey

specifically attributed them to First Western and did not purport

to have verified them.     Typescript at 20-21.   Thus, the majority

holds that the "bespeaks caution" doctrine applies only "to the

extent that plaintiffs relied solely and without further

investigation or consideration on the opinion letters'

conclusions as to the tax consequences of the First Western

transactions" because the language in the letters would not have

alerted plaintiffs that Arvey knew or had reason to know that the

descriptions were inaccurate.    Id. at 22-24.    The majority's

suggestion that the plaintiffs could reasonably rely on Arvey's

opinion letter because "Arvey's statement that its opinion was

based on facts represented to it by First Western . . . contained

the implicit assertion that Arvey did not know the facts to be

otherwise" improperly equates scienter with reasonable reliance.

Id. at 23.    These requirements are two independent elements which

must be alleged to state a primary violation of section 10(b) and

Rule 106-5.

             Consequently, warnings and disclaimers -- by limiting

the extent to which an investor can rely on the offering

documents -- will preclude recovery for securities fraud even

when the defendant's scienter has been established. "Dismissal of

securities fraud claims may be appropriate where the offering

documents specifically warn plaintiffs not to rely on the alleged

misrepresentations made by defendants, thus making any subsequent

reliance unjustified."     Griffin v. McNiff, 744 F. Supp. 1237,
1253 (S.D.N.Y. 1990), aff'd, 996 F.2d 303 (2d Cir. 1993) (table).


                                  6
For this reason, several courts have dismissed cases similar to

this one on the ground that it was unreasonable for the investor

to have relied on representations in the challenged opinion

letter in the face of the letter's broad disclaimers or its

attribution of the facts it recites to a third party.

          For example in Buford White Lumber Co. v. Octagon

Properties, Ltd., 740 F. Supp. 1553 (W.D. Okla. 1989), the

plaintiffs brought a securities fraud suit against the law firm

that had prepared the offering memorandum for the limited

partnerships in which they had invested.   The memorandum stated

that the principals of the limited partnership and not the law

firm had prepared the historical and financial statements and

that the firm had not audited these statements.   740 F. Supp. at

1561.   Accordingly, the court held that


           [i]n the face of these disclaimers and
           disclosure of the limited undertaking of
           defendant with respect to information or
           matters disclosed in the offering memorandum,
           it would be unforeseeable as a matter of law
           to a prudent law firm in Defendant's position
           that potential purchasers, including
           Plaintiffs, would rely upon Defendant's
           nondisclosure of any misrepresentations or
           omissions in the financial statements of [the
           limited partnership] as a representation by
           Defendant that the statements were accurate
           by reason of which Plaintiffs might be
           harmed. . . . The Offering memorandum states
           that the financial statements were prepared
           by and were the sole responsibility of [the
           limited partnership]. In short, Defendant did
           not undertake to prepare, evaluate the
           accuracy of, or opine upon the accuracy of
           financial statements by [the limited
           partnership] and said so.



                                7
740 F. Supp. at 1563. The court then went on to explain:
          [i]n the face of the statements in the
          Offering Memorandum that the financial
          statements were the sole responsibility of
          [the limited partnership] and were unaudited,
          and disclosures concerning the limited role
          of Defendant in preparing or evaluating
          statements made in the Offering Memorandum,
          the Court agrees with Defendant that any
          reliance by Plaintiffs on Defendant's duty to
          disclose inaccuracies, misrepresentation or
          omissions of [the limited partnership] in
          information it supplied is unreasonable as a
          matter of law.

Id. at 1666.


          Numerous other courts have reached similar decisions.

See, e.g., Moorhead v. Merrill, Lynch, Pierce, Fenner & Smith,

Inc., 949 F.2d 243 (8th Cir. 1991) (holding that bond purchasers

could not maintain securities fraud action against consultant

that filed a feasibility study despite alleged

misrepresentations, where study contained detailed cautionary

language and specific warnings of risk factors, along with

underlying factual assumptions); Luce v. Edelstein, 802 F.2d at

56 ("we are not inclined to impose liability on the basis of

statements that clearly 'bespeak caution'" where offering

memorandum warned investors that projections of potential cash

and tax benefits were "'necessarily speculative'") (citation

omitted); Friedman v. Arizona World Nurseries Ltd. Partnership,
730 F. Supp. 521, 541 (S.D.N.Y. 1990) (dismissing section 10(b)

claims on ground that plaintiffs' reliance was unreasonable,

where accountant's tax opinion stated that the projections

contained therein were based on representations which were made


                               8
to the accountants by the promoter of the limited partnership),

aff'd, 927 F.2d 594 (2d Cir. 1991) (table); O'Brien v. National

Property Analysts Partners, 719 F. Supp. 222, 227-29 (S.D.N.Y.

1989) (holding that no liability attaches where accountant

specifically attributes its financial assumptions to documents

given to it by representatives of the limited partnership);

Stevens v. Equidyne Extractive Indus. 1980, 694 F. Supp. at 1063-

64 (dismissing securities fraud suit against accountant, because

statements in accountant's opinion letter "set forth that they

[were] based on supplied facts, [and] additionally state[d] that

there is no implication that the results predicted can or will be

achieved"); Feinman v. Shulman Berlin & Davis, 677 F. Supp. 168,

170-71 (S.D.N.Y. 1988) (holding that where "offering memorandum

warned plaintiffs not to rely on the misrepresentations which the

defendants allegedly made [,] plaintiffs' reliance on those

misrepresentations, if made was unjustified and dismissal is

appropriate")0; Andreo v. Friedlander, Gaines, Cohen, Rosenthal &

Rosenberg, 651 F. Supp. 877, 881 (D. Conn. 1986) (dismissing

section 10(b) claims because the cautionary "language of the

document in question limited the degree to which investors should

rely on it" as it told investors that defendant accounting firm

did not verify the data upon which its projections were based);

Devaney v. Chester, Fed. Sec. L. Rep. (CCH) ¶ 92,747, at 93,649
(S.D.N.Y. 1986), rev'd on other grounds, 813 F.2d 566, 569 (2d

0
In my view, Friedman and Feinman are particularly significant
because they dealt with caveats concerning the tax consequences
of the transactions and, as here, warned that the IRS might
challenge the tax assumptions underlying the investments.


                                9
Cir. 1987) (dismissing securities fraud claim against investment

bank because the confidential memorandum it prepared "with its

broad disclaimers as to the source of information contained

therein, does not support an allegation of reliance.   Investors

would not be likely to rely on memoranda which so definitely

stated their dependency on another source").0

          Like the law firm in Buford White Lumber Co., Arvey

made it clear that it did not undertake to guarantee to potential

investors the accuracy of the factual information contained in

its letters.   Arvey also made it clear that it was not offering

advice to such investors.   Each of the opinion letters is

addressed to Sidney Samuels as president of First Western, and is

stated to be for the exclusive use of Samuels or First Western.

The 1980 opinion letter emphasizes this point most strongly.    It

warns that it "supersedes our letter of June 8, 1979, upon which,

as you were previously informed, you should no longer rely," App.

at 576, and contains an even more forceful cautionary statement

than the earlier letters that:


          [t]his letter is intended solely for the
          internal use of First Western and,
          accordingly, it is not intended to be, and
          should not be, relied upon by any person
          other than First Western. Further, this
          letter is not to be quoted or otherwise
          referred to in any documents, including
0
The Court of Appeals for the Second Circuit reversed the
district court's judgment on the ground that the court should
have permitted the plaintiffs to file an amended complaint. This
holding, however, did not cast doubt on the district court's
determination that reliance is unjustified where the document at
issue contains cautionary language and represents that the source
of the information contained therein came from a third party.


                                 10
          financial statements of First Western, nor is
          it to be filed with or furnished to any
          governmental agency or other person without
          the express prior written consent of this
          firm.


Id. at 590-91.

          Furthermore, the opinion letters were replete with

cautionary language.     All three warned that the IRS and the

courts might "take a strong stance contrary to the opinion

expressed herein."    Id. at 147 (1978 letter), 574 (1979 letter),

591 (1980 letter).0    Indeed, the 1980 opinion letter disclosed

that the IRS was investigating First Western's customers for

engaging in tax avoidance transactions and that the IRS generally

viewed the simultaneous holding and selling of forward contracts

with suspicion.   The letter stated that:


          Rev. Rul. 77-185 is part of a concerted
          effort by the Service to curb what it
          considers the abusive use of offsetting
          positions in securities and commodities to
          minimize or defer tax liability. In addition
          to promulgating Rev. Rul. 77-185, the Service
          has added Chapter 700 ('Commodity Options and
          Futures') to its Tax Shelters Examination
          Handbook, in which it identifies, among other
          transactions, 'the simultaneous buying and
          selling of futures contracts in . . . GNMA
          Certificates' as a 'basic tax shelter
          arrangement.' The Service has also announced
          a policy of identifying for audit returns
          which contain significant securities and
          commodities transactions, and is presently
          litigating various cases involving
          transactions similar to those involved in
          Rev. Rul. 77-185. Due to the Service's
          concern with transactions similar to those

0
The plaintiffs made their investments in December 1980 after
they read Arvey's 1979 and 1980 letters.


                                  11
          entered into between First Western and its
          customers, persons who enter into
          transactions with First Western may
          substantially increase their chances of being
          audited by the Service. Further, you have
          informed us that customers of First Western
          are being audited by the Service and that the
          Service has questioned the deductibility of
          losses realized by such customers on the
          basis of the theory set forth by the Service
          in Rev. Rul. 77-185.

App. at 588 (emphasis added).    This warning, in no uncertain

terms, put potential investors who read Arvey's letters,

including the plaintiffs, on notice of the strong possibility

that the IRS would disallow deductions by investors of any losses

resulting from the cancellation of First Western contracts on the

ground that the transactions were really only a tax avoidance

scheme.   Of course, that is exactly what happened.   Furthermore,

the 1980 letter disclosed First Western's troubled past by

discussing the IRS's audits of prior First Western transactions

identical to those analyzed in the opinion letters.    Thus, the

plaintiffs cannot state a claim of misrepresentation because the

facts upon which their claim is premised were disclosed clearly.

"[T]he naked assertion of concealment of material facts which is

contradicted by published documents which expressly set forth the

very facts allegedly concealed is insufficient to constitute

actionable fraud."    Spiegler v. Wills, 60 F.R.D. 681, 683

(S.D.N.Y. 1973).0    Furthermore, in the face of this disclosure,

0
The cases I have cited do not always distinguish among the
related concepts that a statement may be so conditioned that: (1)
it cannot be regarded as misleading; (2) the representations it
contains may not be material; and (3) reliance on the statement
may be unreasonable. Nevertheless all support the conclusion
that the plaintiffs' reliance in this case was unreasonable.

                                  12
it was unreasonable for the plaintiffs to rely on the Arvey

letters as support for the validity of deductions for ordinary

losses upon the cancellation of a losing forward contract.

           In addition to warning of the possible non-

deductibility of losses resulting from the purchase of First

Western's forward contracts, the opinion letters clearly

indicated that they depended on assumed facts.   In this regard,

the letters prefaced their factual description of First Western's

trading programs with the following introductory remarks,

attributing the descriptions to Samuels: "the following

paragraphs contain a summary of such transactions as you have

described them to us," App. at 135 (1978 letter); "you have

advised us that the facts set forth below constitute an accurate

and complete presentation of all relevant information with regard

to such transactions,"   Id. at 558 (1979 letter); and "you have

advised us that the facts set forth below constitute an accurate

and complete presentation of all relevant information with regard

to the transactions between First Western and its customers, and

that no material fact necessary to make the information herein

not false or misleading has been omitted," Id. at 576 (1980
letter).

           Furthermore, almost every specific factual description

of how the First Western trading program functioned began with

the phrase "you have represented to us. . ." or the equivalent.

For example, both the 1979 and 1980 letters included the

following statements:




                                13
          you have represented to us that the various
          combinations of forward contracts obligating
          the customer to deliver and take delivery of
          money market instruments will, as described
          above, have sufficiently different stated
          interest rates and delivery dates so as to
          produce independent price movement among such
          contracts and cause the customer to have a
          reasonable opportunity of realizing economic
          gain (and a corresponding risk of loss) with
          respect to his various positions.0
Id. at 560-61, 577 (1979 and 1980 letters).


          You have represented to us that the
          transactions entered into by First Western
          and its customers will reflect the customer's
          market strategy and interest rate forecast,
          will have economic validity independent of
          their respective tax consequences, and will
          produce a reasonable opportunity for economic
          gain and risk of economic loss.

Id. at 573 (emphasis added) (1979 letter).


          In addition, this opinion is subject to the
          consummation of the transactions between
          First Western and its customers pursuant to
          the facts and conditions described above and
          is further expressly conditioned on your
          representation that such transactions will be
          consummated by the customers of First Western
          with a reasonable expectation of economic
          gain.

Id. at 563 (emphasis added) (1979 letter).

          Thus, Arvey's opinion letters, like those in the above

cited cases, expressly noted that Samuels and First Western, not

Arvey, supplied the facts, that even under those facts there was

no guarantee that the results predicted would be achieved, and

that the letters should not be relied upon by the investors.

0
The words which I have underscored read as follows in the 1980
letter: "with respect to his overall position."


                               14
Given all of this cautionary language, the plaintiffs should not

have understood the opinion letters to mean that Arvey had made

factual representations regarding First Western's programs.     I

would therefore hold that the plaintiffs' could not have relied

reasonably on the opinion letters as to the accuracy of the

factual descriptions they contain, or indeed anything else, and

thus no liability may be imposed on Arvey.

          I have demonstrated already that the plaintiffs'

reliance on the opinion letters was unreasonable.     But there is

even more evidence to support this conclusion, as the 1980 letter

also includes a veritable bugle blast of an announcement

cautioning investors not to rely on Arvey's opinion:
               [h]owever, as discussed in more detail
          below, the deductibility of any particular
          customer's losses may depend upon certain
          facts and circumstances related to such
          customer's account with First Western at the
          time the loss is incurred. Accordingly, it
          is impossible for us to express an opinion as
          to the deductibility of any particular loss
          incurred by a customer of First Western.


Id. at 586 (emphasis added).   In view of the foregoing statement,

the plaintiffs' reliance on Arvey's letters was not simply

unreasonable.    It was reckless.    I believe that it is absolutely

clear that the plaintiffs could not have relied reasonably on an

opinion letter to justify tax deductions when the letter

indicates that    "it is impossible for us to express an opinion as

to the deductibility of any particular loss incurred by a

customer of First Western."




                                    15
          An examination of the factors which we said in Straub

should be considered when determining whether a plaintiff

justifiably relied on the defendant's misrepresentations

reinforces my conclusion, though I hasten to add that it is so

obvious that the plaintiffs' reliance on Arvey's letters was

unreasonable that I could stop my dissent at this point.        540

F.2d at 598.   But I will go on.    There are five Straub factors:

(1) the existence of a fiduciary relationship; (2) the

plaintiffs' opportunity to detect the fraud; (3) the

sophistication of the plaintiffs; (4) the existence of a long-

standing business or personal relationship; and (5) access to the

relevant information.   Id.   In regard to the first and fourth

factors, Arvey clearly had no special relationship with the

plaintiffs that would give the plaintiffs any grounds to trust

Arvey's representations or that would impose on Arvey any duty to

inform the plaintiffs of possible inaccuracies.      Indeed, the

majority acknowledges this point.       See typescript at 20.

          As to the other factors, we must remember that we are

not dealing with plaintiffs who made conventional investments.

Straddle transactions are not designed for the proverbial "person

on the street."   To the contrary, the transactions discussed in

the opinion letters involved very complex financial arrangements

meant for sophisticated investors looking for tax advantages. The

mere fact that these transactions were on the cutting edge of

strategic tax planning should have put any reasonable investor on

notice that there was a substantial risk of tax complications.

Furthermore, the various disclosures in the letters should have


                                   16
provided the plaintiffs with the incentive and opportunity to

detect possible fraud.     As I explain above, the letters not only

made it clear that they were predicated on facts provided by

Samuels, and not verified by Arvey, but they also disclosed past

instances in which the IRS questioned the validity of

transactions identical to those discussed in the letters, and

indicated that it was likely there would be future trouble as

well.   Thus, the letters gave the plaintiffs every incentive to

make further inquiries into the legitimacy of the First Western

program and should have caused them to withhold their investments

until they had the information necessary to make informed

decisions.    In sum, the application of the Straub factors

dictates the conclusion that an investor could not justifiably

rely on the representations contained in Arvey's opinion letters.

             In rejecting this conclusion, the majority writes that

there is no evidence that these plaintiffs had any particular

knowledge or sophistication which would enable them to notice any

irregularities in First Western's programs.     Id. at 20.   The

majority notes further that reliance on the letters might be

justified because an investor could take the letters to an

attorney and, predicated on the facts in them, obtain an

erroneous opinion.     Id. at 20-21.
             But the opinion letters made it clear that the facts

they contained originated from First Western, not Arvey. Although

another attorney might have agreed with the legal analysis in the

opinion letters, there is no way that another attorney could have

confirmed from the letters themselves that the facts underlying


                                  17
the opinions were correct as they were solely within the

knowledge of First Western.    Any reasonable person reading the

letters would have realized this and questioned the reliability

of the factual descriptions of First Western's trading practices

and, in particular, the statements regarding the independent

economic validity of the transactions. Furthermore, as I noted

above, the 1980 opinion letter states that investors are not to

make an investment decision based on the letter, but if they do,

they should at least obtain written permission from Arvey.    This

admonishment should have pounded home to the plaintiffs the risk

that they were taking.

          I emphasize that it is critically important to focus on

the precise nature of the plaintiffs' claims, because the

reasonableness of the plaintiffs' reliance cannot be considered

in the abstract.    The precise issue is whether the plaintiffs

could rely reasonably on the letters in considering the tax

consequences of canceling a forward contract.    As the plaintiffs

explain in their opening brief at 5, "[t]he focus of each opinion

letter was the federal income tax treatment of a loss sustained

by a First Western customer upon the cancellation of a losing

forward contract (a 'loss contract') prior to the contract's

settlement date."    In particular, the plaintiffs claim that Arvey

mislead them because its opinion letters said that they would

have ordinary losses when canceling losing forward contracts.0

0
Actually, it never has been established that this advice was
wrong. While the Tax Court ruled against other investors in the
First Western program, and its decisions were affirmed on the
merits by the Court of Appeals for the Fifth Circuit, the


                                 18
            In the face of this claim, I ask the rhetorical

question:    how can an investor reasonably rely on opinion letters

to anticipate favorable tax treatment when they:    (1) are

addressed to someone else; (2) are by their terms only for the

use of someone else; (3) by their terms cannot be shown to the

investor; (4) are predicated on facts not supplied by the author

of the letters; (5) warn that the IRS likely will challenge the

claim for favorable treatment as it has in similar situations;

(6) explain the basis for the challenge; (7) state that the

courts might take a strong stance contrary to the opinion; and

(8) flatly announce that it is "impossible" for the author of the

letter "to express an opinion as to the deductibility of any

particular loss incurred by" an investor?    The answer is obvious.

The investors could not rely reasonably on such letters, and thus

Arvey is entitled to summary judgment on the Section 10(b)

claims.0    In my view, nothing could be clearer.

            Surely if there ever was any doubt as to Arvey's right

to a summary judgment, it did not survive our recent opinion in


plaintiffs were not parties to that case. For all that we know,
it is possible that if the plaintiffs had not chosen to settle
with the IRS, they might have prevailed in litigation in either
the Tax Court or in a different court of appeals. Courts of
appeals, after all, do not always view identical tax issues
similarly. See Pleasant Summit Land Corp. v. Comm'r., 863 F.2d
263, 265 n.2. (3d Cir. 1988), cert. denied, 493 U.S. 901, 110
S.Ct. 260 (1989). I acknowledge, however, that probably the
plaintiffs would have lost and I further recognize that the
Freytag case was a "test case." Freytag, 904 F.2d at 1014. Of
course, my opinion is not dependent on whether Arvey's opinion
was right or wrong.
0
 Of course, there is no dispute of fact precluding summary
judgment, as the plaintiffs do not contend that the opinion
letters do not contain the provisions I have quoted.


                                  19
In re Donald J. Trump Casino Sec. Litig., 7 F.3d 357.     In Trump,

as in this case, the plaintiffs asserted a Section 10(b) action.0

The action arose from the sale of bonds by the defendants to

acquire, complete the construction of, and open a gigantic casino

in Atlantic City, New Jersey.     The plaintiffs were purchasers of

the bonds who claimed that in making their purchases they relied

on false statements in the prospectus.     The plaintiffs also

asserted that material matters were omitted from the prospectus.

The defendants successfully moved to dismiss under Fed. R. Civ.

P. 12(b)(6), as the complaint failed to state a claim on which

relief could be granted.

             On appeal we affirmed on the basis of the "bespeaks

caution" doctrine.     We pointed out that the prospectus was so

filled with cautionary language that the allegedly misleading

statements became immaterial as a matter of law.     Trump, 7 F.3d

at 371-73.    I will not set forth the representations and

cautionary language in Trump, for I see no need to do so. Rather,

I indicate only that it seems obvious that the facts in Trump

gave the investors a stronger claim for recovery than the facts

in this case give the plaintiffs here.     Yet in Trump we affirmed
the order of the district court granting the defendants judgment

under Rule 12(b)(6).

             I acknowledge that in Trump we held that the cautionary

language rendered the alleged misrepresentation immaterial as a

matter of law while here we are concerned with whether the


0
Trump also involved other counts which we need not describe.


                                  20
plaintiffs reasonably relied on Arvey's opinion letters.     But

this distinction makes no difference.   The point is that the

cautionary language in the Trump prospectus should have hammered

home to the investors the risk they were taking.    Precisely the

same thing is true here.   The plaintiffs here could not rely

reasonably on documents which by their terms were not for their

view and which were conditioned so thoroughly.    While it is true,

as the majority points out, that Arvey may have known that

investors would see the letters, that knowledge is immaterial to

the question of reasonable reliance, a determination that must be

predicated on what should be the investor's state of mind.     Thus,

I do not urge that we hold that Arvey did not misrepresent.0

Rather, I would hold Arvey has demonstrated that the plaintiffs

unreasonably relied on its opinion letters.

          By its holding that there is a triable issue as to

whether the plaintiffs' reliance on the Arvey letters was

reasonable, the majority effectively holds that no matter how

thoroughly a law firm conditions its opinion, it may be liable to

the investors in a Section 10(b) action for misrepresentation and

omissions.   In this circuit there now will be no safe harbor for

attorneys in the sea of Section 10(b) cases.     The majority's

holding thus cannot be reconciled with the warnings, recently

made by the Court of Appeals for the Fourth Circuit, that where,

as here, a law firm has "unequivocally informed potential

0
Of course, on the basis of Trump and the other opinions I have
cited, we could hold that there were no misrepresentations, but
even if there were, they were not material. But I am not taking
that approach.


                                21
investors that the law firm had not verified the financial data

provided to it by the client[,] . . . [t]o find a duty in the

face of this express disclaimer of verification would render law

firms powerless to define the scope of their involvement in

commercial transactions."        See Fortson v. Winstead, McGuire,

Sechrest, & Minick, 961 F.2d 469, 475 (4th Cir. 1992).       I cannot

conceive of more explicit disclaimers than Arvey's.       If such

disclaimers cannot permit a law firm to foreclose the possibility

of imposition of liability on it to outside parties for issuing a

written opinion to a client, then nothing will.       The result of

the majority's position is therefore "a rigid rule charging all

attorneys who involve themselves in any narrow corner of a

commercial transaction with responsibility for the whole

transaction" even when they expressly disclaim any such

involvement.    Id.

          Furthermore, as a practical matter, the majority

opinion has eliminated the justifiable reliance element of

Section 10(b) actions which hereafter in this circuit will exist

only in theory.       The opinion will have far-reaching consequences

in this circuit and perhaps beyond because in our national

economy attorneys anywhere may recognize that in some securities

transactions litigation in this circuit may materialize.       The

opinion should lead knowledgeable commercial attorneys in

situations in which the Securities Exchange Act may become

implicated to be reluctant to advise anyone about anything which

could affect the rights of investors or the value of the

securities.    Indeed, I see no principled way to limit the


                                    22
majority's decision to opinions given by attorneys.   Accordingly,

I dissent.




                               23
