                      United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
      ___________

      No. 06-2357
      ___________

J. Michael Koehler,                   *
                                      *
            Plaintiff - Appellant,    *
                                      *
      v.                              *
                                      *
Jules Brody; Martin D. Chitwood;      *
Donald H. Clooney; Joe D. Jacobson;   *
Jonathan F. Andres; Vincent R.        *
Cappucci; Andrew J. Entwistle;        *
Green, Schaaf & Jacobson, P.C.;       *
Stuff, Stull & Brody, L.L.P.;         *
Chitwood & Harley, L.L.P.;            *
Clooney & Anderson, P.C.;             *
Martin M. Green,                      *
                                      *
           Defendants - Appellees.    *
      ___________
                                          Appeals from the United States
      No. 06-2746                         District Court for the
      ___________                         Eastern District of Missouri.

J. Michael Koehler,                   *
                                      *
            Plaintiff - Appellant,    *
                                      *
      v.                              *
                                      *
Jules Brody; Martin D. Chitwood;      *
Donald H. Clooney; Joe D. Jacobson;   *
Jonathan F. Andres; Vincent R.        *
Cappucci; Andrew J. Entwistle;        *
Green, Schaaf & Jacobson, P.C.;        *
Stuff, Stull & Brody, L.L.P.;          *
Chitwood & Harley, L.L.P.;             *
Clooney & Anderson, P.C.;              *
Martin M. Green,                       *
                                       *
             Defendants - Appellees.   *
                                  ___________

                              Submitted: January 12, 2007
                                 Filed: March 27, 2007
                                  ___________

Before MURPHY, HANSEN, and SMITH, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

       The case before the court arises out of the global settlement of a number of class
action cases related to the merger of NationsBank and BankAmerica into Bank of
America. Plaintiff J. Michael Koehler was a lead plaintiff and class representative in
those cases. He brought this action against the attorneys who had represented his class
and against several attorneys who represented two of the other lead plaintiffs. He
alleges that the attorneys breached their fiduciary duties, violated the Private
Securities Litigation Reform Act of 1995, and engaged in civil conspiracy by settling
the class actions without his approval and by misleading the court into approving the
settlement. The district court1 granted defendants' motions to dismiss his complaint,
and he appeals from the judgment in No. 06-2357. In No. 06-2746 Koehler appeals
from a post judgment order of the district court relating to document recovery. We
affirm the judgment but dismiss the other appeal for lack of jurisdiction.


      1
        The Honorable John F. Nangle, United States District Judge for the Eastern
District of Missouri.

                                          -2-
                                          I.

       After NationsBank and BankAmerica merged in 1998, numerous state and
federal actions were commenced. Plaintiffs alleged that the merger had been effected
through fraud and that misrepresentations had been made to shareholders. The
Judicial Panel on Multidistrict Litigation consolidated the actions in the Eastern
District of Missouri before Judge John Nangle. He appointed seven lead plaintiffs to
represent one of the classes who had owned NationsBank stock. Koehler was one of
the lead plaintiffs, and the other six were Earl J. Gates, Joseph Hempen, Robert
Hepworth, Kevin Kloster, David Oetting, and Pamela Wootton. Koehler also served
as a class representative, along with Kloster and Oetting.

       According to Koehler's complaint, the court appointed the law firm of Green,
Schaaf & Jacobsen, P.C. as lead counsel and liaison for the NationsBank classes, and
the firms of Chitwood & Harley and Stull, Stull & Brody were made co-lead counsel.
The complaint alleges further that Clooney & Anderson also represented the
NationsBank classes and that attorneys Entwistle and Cappucci were named to the
executive committee.2

       After three years of discovery, the parties entered into voluntary mediation in
January 2002 in New York under the direction of a former federal district judge, the
Honorable Nicholas Politan. Koehler and some of the other lead plaintiffs were
present at the negotiations, but they left after two days. The mediation continued on
the following day, and counsel representing all the parties reached an agreement.
They executed a memorandum of understanding that the cases would settle for a cash



      2
        Attorneys Entwistle and Cappucci are named in the complaint as individual
defendants instead of their firm, Entwistle & Cappucci, LLP; they represented lead
plaintiff Robert Hepworth in the class action litigation. Clooney & Anderson
represented Kevin Kloster and other plaintiffs individually.

                                         -3-
payment by the defendants of $490 million, and that $333 million of that amount
would be allocated to the two NationsBank classes.

       In February, March, and May 2002, Judge Nangle held a series of hearings to
determine the fairness of the proposed settlement. Koehler retained separate counsel
to contest the settlement and filed objections to it. He and two others from his group
of lead plaintiffs, David Oetting and Kevin Kloster, complained to the district court
that the settlement amount was too low and that it was disproportionately distributed
among the shareholder classes. They also challenged the settlement on the ground
that the lead plaintiffs had not been present the final day of mediation because they
had been led to believe that the mediation was over and that the case would only settle
for an amount exceeding $600 million, payable in stock. Koehler alleged that his
attorneys had misled him and made false representations to the court and that this
conduct violated the Private Securities Litigation Reform Act of 1995, 15 U.S.C. §
78u-4 (the Act), and other ethical duties. In support he submitted the declaration of
Professor Geoffrey Hazard, a well recognized expert in the field of legal ethics,
discussing possible ethical breaches related to the settlement.

       Notice of the settlement terms was given to the hundreds of thousands of class
members. The notice informed the class members that they should make the district
court aware of any objections. Only ten objections were submitted; none was received
from any of the institutional investors. The court explained that it was required to
consider the merits of plaintiffs' case, the defendant's financial condition, the
complexity involved in further litigation, and the amount of opposition to the
settlement. In re BankAmerica Corp. Sec. Litig., 210 F.R.D. 694, 699-700 (E.D. Mo.
2002); see Van Horn v. Trickey, 840 F.2d 604, 606 (8th Cir. 1988). It considered the
objections and the arguments at several hearings and finally approved the settlement
as fair, adequate, and reasonable based on the court's experienced assessment. In re
BankAmerica Corp. Sec. Litig., 210 F.R.D. at 700-06.



                                         -4-
        The district court observed that plaintiffs had faced "many hurdles" in the
litigation and that a jury could have returned a defense verdict given the "formidable
risks of trial." In re BankAmerica Corp. Sec. Litig., 210 F.R.D. at 701. The court
concluded that class counsel had "reached a substantial settlement and fulfilled their
obligations," that class representatives "do not have the unfettered ability to decide
whether to settle and, if so, for how much," and that "class settlement agreements do
not require the assent of named plaintiffs." Id. at 703-04. It issued its final approval
of the settlement on September 30, 2002.

       Following approval of the settlement, the court held hearings to determine the
appropriate fee award for the attorneys. Lead counsel requested 25% of the total
award, and Koehler did not object. The court explained that "even a small percentage
of the class recoveries in this case is a very significant award of money," and awarded
lead counsel 18% of the net recovery on October 15, 2002. The court noted that the
"class members' response to the settlement has been overwhelmingly favorable," that
the "experienced attorneys" had obtained a "significant recovery" for their clients, and
that class counsel had "performed at exceptionally high levels."

      Despite continued allegations about ethical breaches and misrepresentations by
counsel, Koehler did not challenge the fee award on appeal, but he and Oetting did
appeal the order approving the settlement. At the oral argument on appeal Koehler
and Oetting conceded they were not contesting the district court's "fairness and
adequacy" findings about the settlement, but were instead challenging whether the
court had had the authority to approve the settlement over their objections. In re
BankAmerica Corp. Sec. Litig., 350 F.3d 747, 751 (8th Cir. 2003).

        We affirmed the judgment approving the settlement. We noted the district
court's findings that Koehler and Oetting had had "unrealistic expectations" about the
litigation that were "bordering on fantasy" and that the "global settlement amount far
exceeded what had been previously offered to the separate classes." Id. at 750-752.

                                          -5-
We also took note of the fact that lead plaintiffs Robert Hepworth and Kevin Kloster
had ultimately approved the settlement. Id. at 749-51. We observed that one of the
concerns Congress had in passing the Act was to protect the interests of class
members in securities cases, that the statute did not "explicitly [grant] a veto power
to lead plaintiffs," id. at 752, and that the district court found that the BankAmerica
litigation and settlement had not been "lawyer-driven." Id. at 750. We concluded that
the district court, which was "intimately familiar with this lengthy and complex
matter," id., had not abused its discretion by approving the settlement over the
objections of Koehler and Oetting.

                                           II.

       More than two full years after judgment was entered in the class actions,
Koehler filed this case in December 2004 in the Southern District of New York
against counsel who had represented his class, as well as the law firm of Clooney &
Anderson and attorneys Entwistle and Cappucci, complaining that the settlement was
too low and should have been paid in stock. In addition to allegations identical to
objections he had already raised before the class action settlement was approved,
Koehler alleges newly discovered facts to support his claims. These include
allegations that class counsel engaged in secret negotiations in September 2001, that
Hepworth and his counsel were intentionally excluded from the December 2003
mediation, and that Hepworth's attorneys had prepared a detailed valuation
memorandum and had lied to the district court about their client's presence at the
mediation, that Kloster was pressured by his attorney to approve the settlement
amount, that defendant attorneys made numerous misrepresentations during the
fairness hearings about the views of the lead plaintiffs and their role in the mediation,
and that they falsely stated that the lead plaintiffs had approved the settlement or had
only recently withdrawn their support. Koehler also complains that the district court
declined to determine in the fairness hearings whether counsel had violated ethical
rules.

                                          -6-
       In his complaint Koehler seeks damages for breaches of fiduciary duties, aiding
and abetting such breaches, conspiracy to breach fiduciary duties, and violations of
the Act, alleging that the cases should not have settled for less than $600 million paid
in stock. He requests compensatory damages "in an amount to be proved at trial, but
believed to be in excess of $150,000," over $2,000,000 in punitive damages,
disgorgement of attorney fees, declaratory relief, and all other relief that would be fair
and just.

       The case was transferred by the district judge in New York to the Eastern
District of Missouri where it was assigned to Judge Nangle who had presided over the
consolidated class action cases. Koehler moved to transfer the case back to his chosen
venue, but the motion was denied. Defendants then moved to dismiss under Federal
Rule of Civil Procedure 12(b)(6). They argued among other things that Koehler's
complaint was barred by collateral estoppel and that the Act did not create a private
cause of action for the conduct alleged.

       The district court granted the motions to dismiss. It concluded that he could not
prevail in this action because our court has determined that a lead plaintiff does not
have the unilateral right to disapprove a settlement and the district court did not abuse
its discretion in approving it. The district court referenced its long experience with
the underlying cases which led it to conclude that the class action plaintiffs had been
more than adequately compensated, that the plaintiffs in the class actions had faced
"tremendous" hurdles, that "the obvious fairness of this settlement" had been approved
after all persons had had full opportunity to comment, and that the court had been
"well aware of Koehler's disapproval," objections, and allegations of ethical
misconduct before it ruled and before judgment was entered in the class actions. The
court also referenced its findings in the settlement approval order that lead counsel for
the class had "conducted themselves professionally and have adequately and zealously
represented the interests of their clients."



                                           -7-
       After the district court dismissed this action, it issued an order in response to
a "request for guidance and direction" submitted by defendant Green, Schaaf &
Jacobsen, P.C., lead counsel and liaison for the NationsBank classes in the
BankAmerica cases. While the motions to dismiss had been pending in the district
court and a discovery stay was in place, Green had received a letter from David
Oetting, one of the former lead plaintiffs, requesting that his file in the class action
cases be released to his current attorneys, Martha Cullina, LLP. In its letter to the
court Green expressed its concern that Oetting's request was an attempt to circumvent
the discovery stay and its uncertainty about which of the voluminous files from the
class actions should be released.

        The district court did not address the request until after the motions to dismiss
were decided and judgment had been entered. At that time the district court issued an
order characterizing Green's letter as a motion alluding to "improper discovery" and
denied it as moot since the case had been dismissed. The court nevertheless added
that it was "willing to give limited guidance" about Oetting's request and advised
Green to release all "papers, documents, and materials" Oetting had forwarded to lead
counsel during the class action litigation.

       Koehler appeals, arguing that the district court erred by dismissing his
complaint and by not ordering Green to provide Oetting with all the class action files
lead counsel had. He argues that the question of whether appellees violated their
fiduciary duties or the Act in settling the BankAmerica cases was not decided by the
district court when it approved the settlement and that it should have returned this case
to the Southern District of New York. He also claims that he learned facts after the
settlement approval which are relevant to whether he is entitled to relief.

      Appellees respond that Koehler's claims are barred by the final judgment
approving the settlement, that he has not shown that his case should have been sent
back to New York, and that both the district court and this court were aware of the

                                          -8-
nature of Koehler's objections at the time the settlement was approved. They argue
that any issue about Oetting's files is now moot. Clooney & Anderson, Cappucci, and
Entwistle assert that they are entitled to summary judgment on another ground – that
they were not attorneys for the class and owed no fiduciary duties to Koehler.

       We review the district court's Rule 12(b)(6) dismissal de novo, taking all facts
alleged in the complaint as true. Carter v. Arkansas, 392 F.3d 965, 968 (8th Cir.
2004). A motion to dismiss should be granted if "it appears beyond doubt that the
plaintiff can prove no set of facts which would entitle him to relief." Knapp v. Hanson,
183 F.3d 786, 788 (8th Cir. 1999) (citation omitted).

                                          III.

       In addition to his fiduciary duty claims Koehler alleges that he has a cause of
action under the provisions of the Act, citing to dicta in one of our decisions in the
BankAmerica proceedings which stated that "[w]e think it plain that the Lead Plaintiff
provisions of the [Act] create significant federal rights that previously did not exist."
In re BankAmerica Corp. Sec. Litig., 263 F.3d 795, 801 (8th Cir. 2001). The court's
opinion did not identify any such right, however, and Koehler has not pointed to any
section of the Act which provides for the cause of action he attempts to bring here.
We conclude that Koehler has failed to demonstrate that the Act created a private right
of action for the claims he alleges.

       For Koehler to prevail on his fiduciary duty claims, he must show among other
things that he had a fiduciary relationship with appellees, that they breached a duty of
that relationship, and that the breach was the "proximate cause" of damage to him. See
Klemme v. Best, 941 S.W.2d 493, 495-96 (Mo. 1997).3 Even if Koehler had an

      3
       Although Koehler's complaint does not allege legal malpractice, he cites to
several attorney malpractice cases. To pursue a claim for legal malpractice, Koehler
would have to prove (1) an attorney client relationship, (2) negligence or breach of

                                          -9-
attorney client relationship with all of the appellees, which some of them deny,
Koehler would still have to show that appellees breached their fiduciary duties and
that such conduct was the proximate cause of damage to him. See, e.g., Fletcher v.
Conoco Pipe Line Co., 323 F.3d 661, 666 (8th Cir. 2003) (applying Missouri law and
affirming summary judgment because plaintiffs failed to present "competent proof of
causation"); Faulkner v. Ensz, 109 F.3d 474, 476 (8th Cir. 1997) ("Under Missouri
law, a successful attorney malpractice claim requires a causal connection between the
attorney's negligence and the plaintiff's damages"); Klemme, 941 S.W.2d at 495-96.

       In his briefing Koehler describes four categories of damages he seeks: (1) the
difference between the settlement amount and the recovery which could have been
achieved by trial or proper settlement negotiations ($300,000,000 estimate), (2)
recovery for adverse tax consequences from settling for cash instead of stock
($100,000,000 estimate), (3) for injury caused by the method of allocating the
settlement among the classes ($100,000,000 estimate), and (4) disgorgement of the
attorney fees. Koehler thus attacks the prior judgment indirectly by this action against
the attorneys who represented the NationsBank classes in the settlement negotiations.
On the basis of asserted new evidence he seeks to recover in this individual case the
amount to which his class was entitled.

      Koehler cannot proceed with his claims if an issue which he needs to prove to
obtain judgment in his favor has already been decided in the previous action. See
Montana v. United States, 440 U.S. 147, 153 (1979) (an issue "actually and



contract by the attorney, and (3) proximate causation of damage to him. Donahue v.
Shughart, Thomson & Kilroy, P.C., 900 S.W.2d 624, 626 (Mo. 1995). To prove
damages in an attorney malpractice case, a plaintiff must establish that "but for" the
negligence alleged, the result of the underlying proceeding would have been more
favorable to him. Mogley v. Fleming, 11 S.W.3d 740, 747 (Mo. App. 1999).



                                         -10-
necessarily determined by a court of competent jurisdiction . . . is conclusive in
subsequent suits based on a different cause of action"); see also Liberty Mut. Ins. Co.
v. FAG Bearings Corp., 335 F.3d 752, 758 (8th Cir. 2003). In order to prevail on his
fiduciary duty claims Koehler must prove that the misconduct he alleges was the
proximate cause of injury to him.

       At least two other circuits have decided similar cases in which class action
plaintiffs sued their former representatives after a settlement had been approved by a
federal district court. In Laskey v. UAW, 638 F.2d 954 (6th Cir. 1981), plaintiffs
alleged that the UAW, which had represented them in a class action, had failed to
inform them adequately on details of the case, had agreed to a settlement to which the
class representatives had strongly objected, and had misrepresented to the district
court that plaintiffs approved the settlement. Id. at 955-56. The Sixth Circuit affirmed
a grant of summary judgment to the UAW on the ground that the prior court approval
of the settlement "collaterally estopped [plaintiffs] from now asserting that the legal
representation was not adequate and that the UAW committed legal malpractice." Id.
at 957. Plaintiffs had objected to the terms of the settlement prior to its being
approved, just like Koehler, and the Sixth Circuit concluded that a finding that the
class had been adequately represented was implicit in the district court's approval of
the settlement. Id. ("a finding that the class was adequately represented is necessary
for finding the settlement was fair and reasonable").

       In Thomas v. Powell, 247 F.3d 260 (D.C. Cir. 2001), attorneys who had been
sued for malpractice in the Superior Court by former class members sought an
injunction against the action. The plaintiffs alleged in that action that class counsel
committed professional negligence by entering into a secret settlement agreement, not
disclosing a conflict of interest, and failing to abide by the wishes of the majority of
plaintiffs with respect to the settlement. Id. at 263. The attorneys argued in the federal
district court that an injunction to prevent plaintiffs from going forward with the
malpractice suit was "necessary . . . to protect or effectuate" that court's prior

                                          -11-
judgment approving the class action settlement as fair and reasonable. See id. at 265;
28 U.S.C. § 2283. The injunction issued, and the class members appealed. The D.C.
Circuit affirmed, noting that the class action settlement had been found by the district
court to be fair and reasonable after class members had retained their own counsel to
represent them at the fairness hearings and raised their objections to the settlement.
Thomas, 247 F.3d at 262-64. The claims in the malpractice action were barred
because in approving the class action settlement the district court had "squarely
decided" that the attorneys had protected the interests of the class. Id. at 264.
Appellants therefore could not establish that they had suffered an injury without
"relitigating an issue already decided in the federal courts." Id. at 265

       Like the class members in Laskey and Thomas, who brought malpractice
actions against their former counsel because they were unhappy with the settlements,
Koehler raises a collateral attack on the class recovery in an action against class
counsel. Instead of malpractice Koehler alleges common law breaches of fiduciary
duty (and related claims aiding and abetting and conspiracy), but these causes of
action require proof of negligence or breach of duty and resulting injury. See, e.g.,
Klemme, 941 S.W.2d at 495-96. Just like the courts in Laskey and Thomas, the
district court approved the class settlements here as fair, adequate, and reasonable over
the objections of Koehler, a class member who had engaged separate counsel to
present those objections. See In re BankAmerica Corp. Sec. Litig., 350 F.3d at 752.
The district court considered Koehler's objections, along with the other objections and
the merits of the case, prior to finding that they lacked merit and that the attorneys had
"succeeded in their duty" and fulfilled their obligations to promote the "best interests
of the class as a whole." In re BankAmerica Corp. Sec. Litig., 210 F.R.D. at 706.
Implicit within the court's approval were findings that the case had not settled for an
amount that was too low, see Laskey, 638 F.2d at 957, and that class counsel "fairly
and adequately protected the interests of the class." See Thomas, 247 F.3d at 264.
Moreover, the district court explicitly found in its unappealed order awarding attorney
fees that class counsel had "performed at exceptionally high levels."

                                          -12-
       Koehler maintains that the court was not aware of all of his evidence when it
approved the settlement and that his newly discovered evidence should permit this
case to go forward. The key question is not whether the district court was aware of
every fact alleged here when it approved the settlement, but whether the earlier
judgment prohibits Koehler from litigating his claim that the alleged misconduct was
the proximate cause of an injury to him. Thomas, 247 F.3d at 265; Klemme, 941
S.W.2d at 495-96.

       Based in large part on the same factual contentions and a few new allegations
of the same nature, Koehler is attempting in this collateral action to renew his old
arguments that the settlement was too low. The discovery of new evidence does not
afford Koehler "a second opportunity to prove a fact or make an argument relating to
an issue previously decided." See Liberty Mutual Ins. Co., 335 F.3d at 762. The
district court, when it originally approved the settlement over Koehler's objections and
later awarded attorney fees to appellees, determined that the attorneys had provided
more than adequate representation and that the very favorable settlement was "fair,
reasonable, and adequate." This court affirmed the judgment, and Koehler cannot
renew his attacks on the quality of the representation or the settlement amount in this
collateral action. Nor can he now attempt to divest the attorneys of their court
awarded fees. Like the disgruntled class members who sued their attorneys in
Thomas, Koehler cannot establish that appellees breached duties owed him and caused
him an injury without "relitigating an issue already decided in the federal courts."
Thomas, 247 F.3d at 265. Based on the record here, we conclude that the district
court did not err by dismissing his complaint. See Fletcher, 323 F.3d at 666; Faulkner,
109 F.3d at 476.

       Koehler also asserts that the district court erred by not returning this case to the
Southern District of New York. That issue was only mentioned in the statement of
issues section of his opening brief and in a one sentence footnote on page 26 of his
brief. Because he failed to argue the point in his opening brief in anything more than

                                           -13-
a conclusory manner, he waived the transfer issue. Rotskoff v. Cooley, 438 F.3d 852,
854-55 (8th Cir. 2006). Even if we were to reach the issue, Koehler has not stated a
sufficient basis for transferring the case or demonstrated that the Southern District of
New York would be an appropriate venue for all the defendants in this case. Since the
consolidated cases had been litigated in the Eastern District of Missouri and the
district court there was familiar with the background of this case, it was not an
inappropriate venue. The district court did not err by denying the motion to transfer.

       In his second appeal Koehler argues that the district court erred by advising the
Green firm to release only the materials Oetting had forwarded to it in the
BankAmerica cases. Koehler asserts that Oetting was entitled to the entire class action
file lead counsel had in its possession even though Oetting's letter to Green only
requested "my file."4 In an order issued after judgment had been entered, the district
court denied as moot Green's request for guidance on whether Oetting's letter was an
improper attempt at discovery while the stay was in place. In the same document the
court went on to offer "limited guidance" about what Green should release to Oetting.

       Koehler does not appeal the court's mootness determination but only the limited
guidance it offered about Oetting's file. Even if Koehler had standing to appeal the
court's guidance to lead counsel about the release of Oetting's file, it would not be easy
for him to establish that the district court erred in its advice because Oetting's request
for "my file" was subject to more than one interpretation. The question of standing
is not an issue we need address, however, because we conclude that we lack
jurisdiction over this advisory opinion given by the district court in a closed case. See,
e.g., Reimer v. Champion Healthcare Corp., 258 F.3d 720, 726-27 (8th Cir. 2001).




      4
       Oetting's request asked that his file be turned over to his new attorneys, Martha
Cullina, LLP; that firm also represented Koehler in the district court. Oetting is
Koehler's attorney on these appeals.

                                          -14-
                                        IV.
      For these reasons, we affirm the judgment of the district court in No. 06-2357
and dismiss the appeal in No. 06-2746 for lack of jurisdiction.
                       ______________________________




                                       -15-
