             United States Court of Appeals
                        For the First Circuit


No. 12-2053

         THADDEUS J. JAKOBIEC; EDMUND S. HIBBARD, ESQ.,
       Administrator of the Estate of Beatrice Jakobiec;
 AUDREY LUM, Co-Trustee of the Lillian Smillie Trust; FREDERICK
    JAKOBIEC, M.D., Co-Trustee of the Lillian Smillie Trust,

                        Plaintiffs, Appellants,

                                  v.

                   MERRILL LYNCH LIFE INSURANCE CO.,

                         Defendant, Appellee.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF NEW HAMPSHIRE

             [Hon. Paul J. Barbadoro, U.S. District Judge]


                                Before

                          Lynch, Chief Judge,
                       Thompson, Circuit Judge,
                       Casper,* District Judge.



     Steven M. Latici, with whom Law Office of Steven M. Latici, PA
was on brief, for appellants.
     Emily Gray Rice, with whom Christopher G. Aslin and Bernstein,
Shur, Sawyer & Nelson, P.A. were on brief, for appellee.


                            March 27, 2013



     *
         Of the District of Massachusetts, sitting by designation.
            THOMPSON, Circuit Judge.   Thomas Tessier and his brother

Michael Tessier allegedly bilked brothers Frederick and Thaddeus

Jakobiec and the estate of their mother, Beatrice Jakobiec, out of

millions of dollars.1   This lawsuit is about only one facet of the

Tessiers' overall scheme, their theft of almost $100,000 in life

insurance proceeds due to a trust benefitting Thaddeus.    Thaddeus,

along with various persons affiliated with the trust and Beatrice's

estate, brought this lawsuit not against those who actually stole

the money, but against the company that issued the life insurance

policy, Merrill Lynch Life Insurance Co. ("Merrill Lynch").      The

plaintiffs claim that Merrill Lynch made out the insurance proceeds

check to the wrong trust entity, breaching the insurance contract

and thereby allowing the Tessiers to steal the money.

            The district court jettisoned the lawsuit on summary

judgment.    It concluded that even if Merrill Lynch did breach the

contract, Merrill Lynch did not cause the plaintiffs' losses

because the Tessiers would have stolen the money even if the check

had been made out correctly.    We agree with the district court.

                              BACKGROUND

                      The Life Insurance Policy

            We start our story by adding another family member to the

mix, Beatrice's sister Lillian Smillie.    In 1986, Smillie executed

     1
       Since there are multiple Tessiers and multiple Jakobiecs
involved in this case, we will refer to these individuals by their
first names for ease of reference.

                                 -2-
a will.        In it, she bequeathed her entire estate, except for

furniture and funeral and administrative costs, to a trust (which

later        received     taxpayer    identification   number   XX-XXXXXXX)

benefitting her nephew Thaddeus (the "Smillie Trust").2           Thaddeus,

who has been blind since birth, depended on his family for support.

The will named Thaddeus's brother, Frederick, as trustee of the

Smillie Trust.          Smillie passed away in 1988.

               In 1989, Beatrice applied for the subject life insurance

policy with Merrill Lynch.           Obviously aware of her sister's trust,

Beatrice indicated on the policy application that the policy

beneficiaries would be Frederick and the Smillie Trust, with fifty

percent going to each.          The exact language was: "50% Frederick A.

Jakobiec, son, and 50% Frederick A. Jakobiec, Trustee for Thaddeus

J. Jakobiec - IRS ID # XX-XXXXXXX."           The policy then issued at some

point, though we do not have a copy of it in the record.           Beatrice

passed away some years later on May 11, 2001.

                                 Misplaced Trust

               At Beatrice's wake, her son Frederick asked Thomas to

administer Beatrice's estate.              Thomas probably seemed like a

natural choice for the task because not only was he a second cousin

to the Jakobiec brothers but he was a licensed attorney that had

represented Beatrice in various matters since 1988, including

acting as the attorney for the Smillie Trust.           But Thomas proved to


        2
            The will did not give the trust an official title.

                                        -3-
be a wolf in sheep's clothing, and Frederick's decision to enlist

his cousin turned out to be a gigantic blunder.           You see, Thomas

was going through a bit of a rough patch.          His law practice was

struggling, and he had developed a drinking problem that was

getting progressively worse.      For Thomas, who admitted that he was

nearing the "tail end" of his career but had failed to build a

"nest egg" for his retirement, the Jakobiecs became the geese that

laid the golden egg.

          And so, with the help of his brother Michael, a retired

police captain,   Thomas   engaged    in   a   campaign   of   forgery   and

subterfuge to raid the bank accounts of Frederick and Thaddeus and

the estate of Beatrice, allegedly stealing over $2 million.3             Of

course, most pertinent for our purposes, is the Tessiers' theft of

the life insurance     proceeds    that    had been   slated   to   benefit

Thaddeus and so we focus in on this.

                  Wheels of Theft Set in Motion

          The groundwork for this particular theft was laid when

Thomas was rummaging through Beatrice's papers after her death. To

add some context, Frederick, according to Thomas, was supposed to


     3
       After the scheme came to light, Thomas was disbarred and
both Tessier brothers were criminally convicted and sent to prison.
Allegations that were revealed during Thomas's disbarment included
that he had committed multiple forgeries and stole funds from at
least twenty different accounts totaling over $1 million.        See
Order, In the Matter of Thomas J. Tessier, LD-2008-0002 (Dec. 24,
2008), available at http://www.nhattyreg.org/assets/1245192998.pdf.
We do not assume the truth of these allegations and they do not
factor in our decision, but we describe them for context.

                                   -4-
contact him after the wake to further discuss Thomas administering

the estate; however, Frederick never did.            In fact, Thomas says

that despite diligent efforts on his part to contact Frederick, he

never spoke to him again after the wake.                 Nonetheless, Thomas

decided to go forward with administering the estate and he headed

over to Beatrice's house4 to start going through her papers,

including correspondence, bank statements, and the like.                   And

Thomas ultimately used these financial records to institute probate

proceedings for Beatrice's estate in New Hampshire probate court.

                 Most pertinent for our purposes is the fact that Thomas

came across some type of documentation that alerted him to the

existence of the Merrill Lynch life insurance policy, though it is

unclear exactly what he found.5          Once he learned of the policy's

existence, Thomas and Michael launched a two-front attack.

                 First, they wrestled away control of the Smillie Trust

from Frederick and this is how they did it.          On June 11, 2002, they

filed       an   ex-parte   petition   (meaning   that   Frederick   did   not

participate) with the probate court to remove Frederick as trustee


     4
       Thaddeus had always lived in this house with Beatrice prior
to her death but after she died he moved to a nursing home.
        5
       In his deposition, Thomas affirmatively answered yes when
asked if he came across the actual life insurance policy. However,
in a letter to Merrill Lynch, Thomas said that the policy was
unavailable but that he had the "Investor Account documentation"
for the period of April to May 2002. As for the life insurance
application signed by Beatrice, it does not appear that this is
what Thomas found because he testified that he never saw that
document until his deposition.

                                       -5-
and install Michael as successor trustee of the Smillie Trust,

alleging that Frederick had been neglecting his brother Thaddeus

and failing to pay his bills.            The probate court granted the

petition and installed Michael as trustee of the Smillie Trust.

Second, a few weeks later, Thomas fraudulently created a second

trust for Thaddeus, called the "Thaddeus Jakobiec Irrevocable Inter

Vivos Trust," later assigned taxpayer identification number 03-

6095858 (the "Fraudulent Trust").           Michael was named as both

trustee and death beneficiary of this second trust.             Thaddeus,

whose signature on the document was forged by Michael,6 was unaware

of the Fraudulent Trust's existence.        To summarize, by the end of

June 2002, there were two trusts for the benefit of Thaddeus: the

Smillie Trust, which had been lawfully created in Lillian Smillie's

will and which was the rightful beneficiary of the Merrill Lynch

policy, and the Fraudulent Trust, which had been unlawfully created

by the Tessiers.

                    The Tessiers Complete Their Plan

           On or around July 1, 2002, over a year after Beatrice had

died, Thomas notified Merrill Lynch of Beatrice's death.             Thomas

claimed   to   be   representing   Thaddeus,   whom   he   assumed   was   a


     6
       Michael and Thomas forged both Thaddeus and Frederick's
signatures on several other documents not relevant to the theft we
are concerned with, including multiple documents giving Thomas
power of attorney over Thaddeus and Frederick, a document in which
Frederick purportedly disclaimed interest in his mother's estate,
and a petition purportedly filed by Thaddeus for Thomas to serve as
administrator of Beatrice's estate.

                                   -6-
beneficiary of the life insurance policy.            This call led to a

series of letters between Thomas and John Greenwood, a claims

consultant at Merrill Lynch.7      On July 2, Greenwood sent Thomas a

letter asking him to fill out certain forms, including a claimant's

statement.

           Thomas responded on July 15.       He explained that he was

enclosing the claimant's statement and trust documentation for "a

Testimentary [sic] Trust Under the Estate of Lillian M. Smillie for

the Benefit of Thaddeus Jakobiec," and apparently, according to the

letter, he enclosed documentation indicating that Michael was

trustee   for   the   Smillie   Trust,   including   his   probate   court

certificate of appointment. However, for some unknown reason,8 the

tax documentation that Thomas enclosed pertained to, and the

claimant's statement also referred to, not the Smillie Trust but

rather the Fraudulent Trust.9

           This documentation referring to the Fraudulent Trust

(which of course was created in 2002, many years after the life

insurance was purchased) confused Greenwood.           He sent Thomas a

letter on August 2 seeking to clear things up.         He noted that the


     7
       All of the correspondence went to and from the office of
Thomas's law firm, Christy & Tessier, in Manchester, New Hampshire.
     8
      The district court found the discrepancy inexplicable and we
too glean no explanation.
     9
       Of course, Thomas did not call it the "Fraudulent Trust" in
his correspondence with Merrill Lynch, but we continue to use this
moniker for ease of reference.

                                   -7-
life insurance policy named Frederick as a trustee for Thaddeus and

that the trust referenced in the policy was established sometime

before 1989 and had a different taxpayer identification number than

the one Thomas included documentation for. Greenwood asked: "Could

there possibly [be] more than one trust similarly styled?".

           Thomas responded on September 16.              Yes, he explained,

there were two trusts.      The Smillie Trust was created in 1988 with

number   XX-XXXXXXX.        The   trust       with   number     XX-XXXXXXX     (the

Fraudulent Trust), which Thomas had included documentation for in

his July 15 letter, was a "totally separate Trust created in 2002."

Thomas went on to ask that the insurance proceeds go to the Smillie

Trust.   He requested that the amount be made payable to "Michael

Tessier, Successor Trustee of the Lillian Smillie Trust for the

benefit of Thaddeus Jakobiec" and that the "identification number

as indicated should be XX-XXXXXXX."

           This letter answered some of Greenwood's questions but it

raised a new one, which Greenwood brought up in a September 27

letter to Thomas: "Who is Lillian Smillie and how does she relate

to our insured, or our insured's Trust?".                     In an October 21

response, Thomas sought to unravel the mystery.                 He explained who

Smillie was, described the creation of the Smillie Trust, and

expounded on how Michael came to replace Frederick as trustee.

Thomas   indicated   that    he   made    a    mistake   when    he   listed    the

Fraudulent Trust's taxpayer identification number on the claimant's


                                     -8-
statement, and that the Fraudulent Trust was "totally separate and

distinct from the one that concerns you."    The Smillie Trust, he

said, was the correct beneficiary of the life insurance policy.

Thomas, who in the letter had referred to the Smillie Trust as both

the "Lillian Smillie Trust for the Benefit of Thaddeus Jakobiec"

and as the "Thaddeus Jakobiec Trust," concluded by asking Greenwood

to make the check "payable to Michael E. Tessier, Successor Trustee

Under the Estate of Lillian M. Smillie, for the Benefit of Thaddeus

Jakobiec."

          On November 18, apparently in response to a request from

Greenwood, Thomas sent a copy of the ex parte probate court

petition that he had filed to have Frederick removed as trustee of

the Smillie Trust.     A short time later, on November 27, 2002,

Merrill Lynch finally paid up.     It wrote a check for $98,533.76

($92,788.50 death benefit plus $5,745.26 interest accruing since

Beatrice's death), which represented Thaddeus's half of the life

insurance pay-out.10    Merrill Lynch made the check payable to

"Thaddeus J. Jakobiec Trust C/O 37 Salmon St. Manchester NH 03104"

(the address of Thomas's law firm, Christy & Tessier).




     10
        As the reader will recall, the other half of the death
benefit was supposed to go to Frederick. However, using a forged
power of attorney, the Tessiers also got their hands on Frederick's
share in June of 2003. Frederick's half, having accumulated some
additional interest, was $100,455.63 and the Tessier brothers split
this money evenly.

                                 -9-
            Within the next week, Michael endorsed the check "Michael

Tessier Trustee," and Thomas added the words "of the Thaddeus J.

Jakobiec Trust."    Michael gave the check to Thomas, who deposited

it in his personal bank account on December 4.             With the loot

secure, Thomas gave his brother a fifty percent cut - $49,266.88 -

and Michael deposited this money in his wife's personal account the

next day.

                              PROCEDURE

            Thaddeus filed this lawsuit against Merrill Lynch on June

8, 2010.    The original complaint contained two counts: breach of

contract and negligence.    The complaint alleged that Merrill Lynch

breached the life insurance contract by failing to make out the

insurance check to the Smillie Trust,11 and that Merrill Lynch was

negligent by failing to exercise due care in identifying the

correct beneficiary.       After Merrill   Lynch   filed    a   motion   to


     11
        The plaintiffs have not been consistent throughout this
litigation with regard to what name they say Merrill Lynch should
have put on the check. The original complaint said that the check
should have been issued to "Michael Tessier, as Successor Trustee
of the Lillian Smillie Trust." The amended complaint stated that
the proper beneficiary was "the Trust of Lillian Smillie for the
benefit of Thaddeus J. Jakobiec," but then stated in the next
paragraph that the check should have been made out to "Michael
Tessier, as Successor Trustee of the Lillian Smillie Trust." The
plaintiffs' brief to this court argues that the outcome may have
been different if Merrill Lynch made out the check to "the Trustee
of the Smillie Trust." These inconsistencies aside, it is clear
that the plaintiffs wanted Merrill Lynch to make payment to the
Smillie Trust (as called for in the life insurance application) and
so, for simplicity sake, we use the "Smillie Trust" as shorthand
for what the plaintiffs say Merrill Lynch should have put on the
check.

                                 -10-
dismiss,12 Thaddeus filed an amended complaint.        This complaint

added as plaintiffs the administrator of Beatrice's estate and the

co-trustees of the Smillie Trust, one of whom was Frederick (as one

might expect,   Thomas   and   Michael   had been   booted   from   those

positions in the interim).     The negligence count was also removed

from the amended complaint and allegations meant to counter a

statute of limitations defense were added.

          Merrill Lynch filed a motion to dismiss the amended

complaint, but the district court felt more factual development was

necessary and denied the motion. After discovery, both sides filed

cross-motions for summary judgment.       The plaintiffs contended it

was clear that Merrill Lynch had breached the contract.       Of course



     12
       One of Merrill Lynch's arguments was that the lawsuit was
untimely because the supposed wrongful act - its issuance of the
check - happened in 2002, more than seven years before the lawsuit
was filed. The statute of limitations for most tort claims in New
Hampshire is three years but the statute of limitations contains an
exception commonly known as the "discovery rule": "when the injury
. . . [was] not discovered and could not reasonably have been
discovered at the time of the act or omission, the action shall be
commenced within 3 years of the time the plaintiff discovers, or in
the exercise of reasonable diligence should have discovered, the
injury . . . ."    N.H. Rev. Stat. Ann. § 508:4; see Lamprey v.
Britton Constr., Inc., 37 A.3d 359, 364-65 (N.H. 2012). Thaddeus
argued that the discovery rule should apply because of the
Tessiers' extensive fraud and Thomas's exclusive control over
Beatrice's personal papers.     Thaddeus said he could not have
reasonably discovered this cause of action until 2009 when his
attorney, who had been hired by Frederick to file a malpractice
action against Thomas, received a copy of Merrill Lynch's file and
was granted access to Thomas's personal banking records.        The
district court did not definitively decide the statute of
limitations issue, and neither side raises it on appeal, so the
issue is not before us.

                                 -11-
Merrill Lynch disagreed, but it added that even assuming it had

breached the agreement, its breach was not the cause of the

plaintiffs' losses.

          The district court agreed with Merrill Lynch's lack of

causation argument.   According to the court, the fatal flaw in the

plaintiffs' case was that the Tessiers would have stolen the money

even if Merrill Lynch had made the check out to the correct

beneficiary, the Smillie Trust, as plaintiffs argued. The district

court reasoned, based on the record, that Thomas and Michael had

positioned themselves to have complete control over the Smillie

Trust, and that they intended to use this power to complete the

theft.   The district court granted summary judgment to Merrill

Lynch and denied plaintiffs' motion for summary judgment.      The

plaintiffs timely appealed.

                        STANDARD OF REVIEW

          We review the grant of summary judgment de novo, meaning

we give a fresh look to the district court's reasoning. Candelario

del Moral v. UBS Fin. Servs. Inc. of P.R., 699 F.3d 93, 99 (1st

Cir. 2012).   We view the facts in the light most favorable to the

non-moving party and draw all reasonable inferences in that party's

favor.   Rared Manchester NH, LLC v. Rite Aid of N.H., Inc., 693

F.3d 48, 52 (1st Cir. 2012).      We need not credit "conclusory

allegations, improbable inferences, and unsupported speculation."

McDonough v. Donahoe, 673 F.3d 41, 46 (1st Cir. 2012) (quoting


                               -12-
Prescott v. Higgins, 538 F.3d 32, 39 (1st Cir. 2008)).          We affirm

summary judgment if the moving party can "show[] that there is no

genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law."         Fed. R. Civ. P. 56(a).       "A

'genuine' issue is one that could be resolved in favor of either

party, and a 'material fact' is one that has the potential of

affecting the outcome of the case." Calero-Cerezo v. U.S. Dep't of

Justice, 355 F.3d 6, 19 (1st Cir. 2004).

                               DISCUSSION

           Merrill Lynch offers three different reasons to affirm

the district court, each of which it says would be independently

sufficient.   First, it argues that any breach of contract did not

actually cause the plaintiffs' damages (i.e., the rationale of the

district court).     Second, it claims that it should not be held

liable    because   the   Tessiers'   theft   was   not   a   foreseeable

consequence of any alleged breach.13        Third, Merrill Lynch avers




     13
        Specifically, Merrill Lynch argues that, at the time it
entered into the life insurance contract with Beatrice, it could
not possibly have anticipated that the trustee of the Smillie Trust
(Michael) and the attorney for Beatrice's estate and the Smillie
Trust (Thomas) would steal the policy's proceeds.

                                  -13-
that it did not breach the contract at all.14      Because we agree with

Merrill Lynch on the first issue, we need not reach the other two.

                           Law of Causation

           Even if we assume in the plaintiffs' favor that Merrill

Lynch breached the contract15 by making the check payable to the

"Thaddeus J. Jakobiec Trust," that alone would not be enough for

the plaintiffs to prevail.       A defendant who breaches a contract is

only liable for the damages caused by its breach.            See Robert E.

Tardiff, Inc. v. Twin Oaks Realty Trust, 546 A.2d 1062, 1065 (N.H.

1988) (providing that "'one who claims damages [for breach of

contract] . . . must, by a preponderance of the evidence, show that

the damages he seeks were caused by the alleged wrongful act'"

(quoting Grant v. Town of Newton, 370 A.2d 285, 287 (N.H. 1977))).

Further,   in   the   contract    arena,   New   Hampshire    courts   have


     14
       The particulars of this argument are as follows. Merrill
Lynch contends that it satisfied its contractual obligations
because, regardless of how it made out the check, it delivered the
proceeds to Thomas who was attorney for the estate as well as the
Smillie Trust. The check as written, Merrill Lynch continues, was
sufficient to enable Michael, the trustee of the Smillie Trust, to
apply the funds for the benefit of Thaddeus.     In fact, Merrill
Lynch adds, Thomas and Michael were duty bound to apply the
proceeds in this manner.
     15
       We find it odd that the parties want this court to decide
a breach of contract claim but have not provided us with the
operative contract (the Merrill Lynch policy) or at the very least
stipulated to what it provides. For instance, it would be helpful
to know whether the beneficiary designation in the policy itself
mimicked the designation on the policy application or whether there
were any other provisions in the policy that could shed some light
on what Merrill Lynch's obligations were as far as the manner in
which it was required to pay out proceeds.

                                   -14-
repeatedly followed the Restatement (Second) of Contracts, see,

e.g., Livingston v. 18 Mile Point Drive, Ltd., 972 A.2d 1001, 1006-

07 (N.H. 2009) (relying on the Restatement as further support for

the trial court's determination); Simpson v. Calivas, 650 A.2d 318,

327 (N.H. 1994) (citing the Restatement as support for the trial

court's   definition   of   damages),    and   so   we   also   look   to   the

Restatement's treatment of causation.          It similarly provides that

the "injured party is limited to damages based on his actual loss

caused by the breach."      Restatement (Second) of Contracts § 347

cmt. e. Furthermore, the plaintiff must show that his injury would

not have occurred but for the defendant's conduct.16            See Robert E.

Tardiff, Inc., 546 A.2d at 1066 (finding that the defendant, in


     16
       Here, all the parties and the district court appear to agree
that it is proper to assess whether but-for causation exists with
respect to a breach of contract action under New Hampshire law.
Our review of New Hampshire law, as well as the Restatement
(Second) of Contracts, supports this proposition. Other states and
circuits have considered this type of causation with respect to
breach of contract claims as well. See, e.g., Barkan v. Dunkin'
Donuts, Inc., 627 F.3d 34, 40 (1st Cir. 2010) (holding that to
succeed on a breach of contract claim under Rhode Island law, the
plaintiff must prove that the defendant's breach was the but-for
cause of his damages, such that the plaintiff would have developed
Dunkin' Donuts stores but for defendant's breach); Citizens Fed.
Bank v. United States, 474 F.3d 1314, 1319 (Fed. Cir. 2007)
(explaining that requiring an injured party to prove but-for
causation in lost profits breach of contract cases is one approach
taken by the courts in the Federal Circuit); Point Prods. A.G. v.
Sony Music Entm't, Inc., 215 F. Supp. 2d 336, 341 (S.D.N.Y. 2002)
(finding that in a breach of contract action, "[p]laintiff cannot
recover if it would have suffered the harm regardless of
defendant's actions").     Of course we do not know the outer
boundaries of how New Hampshire courts would treat this
relationship between but-for causation and contract law, and so we
limit our analysis to what New Hampshire courts have done thus far.

                                  -15-
support of its breach of contract counterclaim, had the burden of

proving that its losses "would not have been incurred but for

[plaintiff's] delay"); Restatement (Second) of Contracts § 347 cmt.

e ("Recovery can be had only for loss that would not have occurred

but for the breach."); see also Mahoney v. Town of Canterbury, 834

A.2d 227, 234 (N.H. 2003) (explaining, in a wrongfully issued

injunction case, that the prevailing party "may recover expenses

that would not have been incurred in the absence of (i.e., but for)

the injunction itself").

                     Applying the Law to the Facts

            Here we think the district court got it right; based on

the undisputed facts on record it is clear the Tessiers would have

stolen the money even if Merrill Lynch had made the check out to

the so-called correct beneficiary, the Smillie Trust.            Plaintiffs

have not made the requisite causation showing.

            First, it is clear from the record that Thomas was

looking to pilfer the insurance proceeds all along.                In fact,

Thomas admitted in deposition testimony that he intended to steal

the   money     (clearly,   a    declaration     against   interest)      and

circumstantial evidence confirms this.          Within a week of getting

control of both the Smillie Trust and the Fraudulent Trust, Thomas

contacted     Merrill Lynch     to   begin   the process   of   getting   the

proceeds.     Indeed, the next year, Thomas repeated a similar scheme

to steal Frederick's half of the insurance proceeds.              This time


                                     -16-
line, in the context of the Tessiers' broader scheme to bamboozle

the Jakobiecs out of their assets (a sweeping criminal scheme, the

existence of which is clear based on the record), makes pellucid

that the Tessiers were hell-bent on stealing the insurance money

from the get-go.     Simply put, this is not a case where a wrongfully

made out check fell into the lap of a well-intentioned trustee who

was suddenly induced to commit a crime - in fact plaintiffs do not

even attempt to make such an argument.

           Second,    and   most   significantly,   the    uncontradicted

evidence confirms that the Tessiers had unfettered control of the

two trusts that could have potentially received the insurance

money.     First, with respect to the Smillie Trust, Thomas got

Frederick completely out of the picture and installed Michael as

trustee.    Second, Thomas created the Fraudulent Trust, in which

Michael played the dual role of trustee and death beneficiary.

Accordingly, when the dust settled, Thomas was in place as the

attorney for both the Smillie Trust and the Fraudulent Trust, and

Michael was positioned as the trustee for both.              The Tessiers

effectively controlled the whole swindle A to Z.          Therefore if the

check had been made out to the Smillie Trust, it too would have

been sent to Thomas's firm (since he was the attorney for that

trust), Thomas would have called in Michael (since he was the

trustee of the Smillie Trust), and Michael as trustee would have




                                   -17-
endorsed the check.     So we end up right back in the same place -

with the funds deposited in the personal accounts of the Tessiers.

            Plaintiffs try to get around this illation by arguing

that we do not know what would have happened if the check had been

made out correctly; something they say might have tripped up the

Tessiers along the way.    Plaintiffs suggest that a rightfully made

out check might have tipped off someone in Thomas's law office as

to what was happening.    Plaintiffs opine that because the Smillie

Trust was an open file in Thomas's office, a check made out to the

Smillie Trust might have raised a red flag (they do not say what

kind) with someone (they do not say who) in the office.                This

theory is pure speculation.       There is no evidence in the record to

support it    and   plaintiffs'    counsel   admitted   as much   at   oral

argument.    There is no deposition testimony from the office staff

and no documentation about office procedures.           We do not know if

members of Thomas's office staff were in any position to see the

check in the first place, or how incoming proceeds were ordinarily

directed for processing, or who (if anyone) had the authority to

confront Thomas about any discrepancies.         Conclusory allegations

and unsupported speculation are insufficient to defeat summary

judgment, rather "a measure of factual specificity is required."

Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006).            We do

not have that specificity here.




                                   -18-
           Nor is there any evidence that the Tessiers' scheme could

have been picked up by the probate court, as the district court

correctly noted.         Even though Thomas realized once he started

communicating with Greenwood that the Smillie Trust was the proper

beneficiary of the life insurance policy, Thomas never reported

this fact to the probate court, though he should have since the

proceeds were assets of the estate.           And because he never told,

Thomas never had to account to the probate court to dispose of the

proceeds, and so the probate court was never in a position to

detect   the    theft.     Any   suggestion    to    the   contrary    is    pure

optimistic conjecture.

           Also relevant to our causation determination is the fact

that   Thomas    twice    specifically     asked    Greenwood   to    make    the

insurance check payable to the Smillie Trust. He obviously thought

that was the best way to get his hands on the money.             In fact, the

October 21 letter directed Greenwood not to make the check out to

the Fraudulent Trust, stating: "[t]hat trust is totally separate

and distinct from the one that concerns you."              Far from thwarting

the theft (as the plaintiffs now claim), making the check out to

the Smillie Trust would have effectuated Thomas's scheme exactly as

he planned it.

           The summary judgment stage is "the put up or shut up

moment in litigation."        Goodman v. Nat'l Sec. Agency, Inc., 621

F.3d 651, 654 (7th Cir. 2010) (internal quotation marks omitted).


                                    -19-
Faced with a defendant's motion for summary judgment, a plaintiff

must come forward with some evidence showing a genuine dispute of

material fact if he wants to get in front of a jury.          A plaintiff's

failure to produce any evidentiary proof concerning one of the

essential elements of his claim is grounds for summary judgment.

See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).                Here

plaintiffs   cannot    establish    causation      because,   as   we   said,

plaintiffs can only recover if their loss would not have happened

but for Merrill Lynch's breach.          The undisputed facts on record,

detailed above, make clear that even if Merrill Lynch had made out

the check to the Smillie Trust, as plaintiffs so advocate, the

Tessiers still would have taken that check and converted it to

their own personal use.

           The record presents overwhelming evidence in Merrill

Lynch's favor and no persuasive evidence in the plaintiffs' favor

on the issue of causation.         Unfortunately for plaintiffs, the

summary   judgment    stage   is   the    time   when   a   plaintiff     must

"affirmatively   point   to   specific     facts    that    demonstrate    the

existence of an authentic dispute." Kenney v. Floyd, 700 F.3d 604,

608 (1st Cir. 2012) (internal quotation marks omitted). Plaintiffs

have not done that here.      Because the evidence is so lopsided on

the essential element of causation that no reasonable jury could

decide for the plaintiffs, Merrill Lynch is entitled to summary




                                   -20-
judgment.    See Collins v. Univ. of N.H., 664 F.3d 8, 20 (1st Cir.

2011).

                             CONCLUSION

            The Jakobiecs have undoubtedly suffered grave injustices

but those injustices were caused by the Tessiers, and not by

Merrill Lynch.    Because of the extensive groundwork laid by the

Tessiers for their criminal scheme, they could have and would have

stolen the insurance money even if Merrill Lynch did exactly what

the plaintiffs think it should have done. The district court

correctly granted summary judgment to Merrill Lynch, and denied

plaintiffs' motion for summary judgment.

            Affirmed.




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