                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


JOAN ANDREWS; PHIL BODINE;               
RICHARD BUONOCORE; DAVID DAIL;
FOUNDATION OF AMERICAN INDIANS;
JIM JEFFREY; JIM KNIGHT; SALLY
KNIGHT; GEORGE KUNEY; PHILLIP
LEE; MARY R. MCMARTIN; M. STACY
PALMER; BEVERLY TONEY-WALTER;
PAT DAVIS,
                Plaintiffs-Appellants,
                 and
SOLLY ALAN LAWI; A-1 AUTO GLASS,
INCORPORATED; TEMO ARJANI; AARON
BALES; FRANK A. BARBIERI;
JEAN-LOUIS BAUDOIN; BONNIE
BAZENSKY; JOHN BOEHM; TOM                   No. 03-1556
BOEKBINDER; JANET BREGER; LLOYD
BALL; WILLIAM BROWN; WILLIAM
CARAPUCCI; CAMILLE CESLAK; DONN
CHAPPELLET; RUSS CHRISTOFF; DAVID
CIPULLO; BARBARA CIPULLO; PATRICIA
COGHLAM; MARGARET COX; GREG
D’ANGELO; EDNA ENNIS; RICCARDO
FASOLI; MARK FELLER; STEVE
FISHMAN; ALINE FRANKFORT; EDWIN
H. FRIEDMAN; ANTHONY GENDAIO;
ESTELLE M. GOLDSTEIN; ALAN
GRIMMETT; HAROLD GRIMMETT; GENE
GULICH; MICHAEL GULICH; PATRICIA
GULICH; FAYE GROVES; EMMA
GWALTNEY; GLORIA HANDELMAN;
                                         
2            ANDREWS v. PRIMUS TELECOMMUNICATIONS


JIM HANDELMAN; WELLS CHARITABLE    
REMAINDER UNITRUST, TRUSTEE
GLORIA HANDELMAN; HANDELMAN
CHARITABLE REMAINDER UNITRUST,
TRUSTEE GLORIA HANDELMAN;
CATHERINE JOAN HARWOOD; PHILLIP
G. HILLIARD AND LEANNA N.
HILLIARD TRUST; PHILLIP HILLARD,
Trustee; CHARLES HOOVER/THE
INVESTMENT PLACE, LIMITED; LOUIS
HURWITZ; PENNI KAIMIMOKU; MARK
KATZ; FRANCI KEYES; NORMAN B.
KLINKER; HERMAN KLURFELD;
RICHARD KOCHEL; RONALD KOCHEL;
JOHN KUHLMAN; MATT LEPORE;
ALLAN LAZAR; JOSEPH LION;
NICHOLAS W. JOSEPH OR NANCY        
LION IN TRUST FOR NICHOLAS W.
LION; DEREK LORE; JONATHAN LUNN;
JANINE MAPLES; DENNIS MCBREEN;
VIOLET MICHELLE MCCABE; CAMILLE
G. MCCOLGAN; TIMOTHY
MCGILBERRY; RICHARD MEHLBERG;
BARBARA METZ; JEREMY K. MILLER;
JIM MILLER; SUSAN NILMEIER; KEN
NORCROSS; NANCY G. NORRIS; MIKE
O’NEIL; EDMOND PALMER; JOYCE
ANNE PIERCE; GLENN PIERITZ;
RONALD L. PETROFSKY; GEORGE
POKORSKI; ADOLFO RAPUANO;
CARMELA RAPUANO; LUCIA RAPUANO;
MARIA RAPUANO; TAMMY ROBERTS;
                                   
              ANDREWS v. PRIMUS TELECOMMUNICATIONS   3


ANDREW RUBIN; DAVID RUBIN; MARK         
SCHILD; WILLIAM SCHNABEL; JUANITA
SCHNABEL; ELINOR SKEIF; PETER J.
SPIRO; JOHN STEFANICK; DOROTHY
STEFANICK; MARK STEFANICK;
KATHLEEN STERLEIN; JAMES
THOMPSON; BILL TURRENTINE;
CARMEN ULANDA; MARTY WICKUM;
BETTYE WILKINS; YARGER
INVESTMENT GROUP, LIMITED;
RICHARD YARGER, General Partner;
JAMES ZBIKOWSKI; PATRICIA
ZBIKOWSKI,
                          Plaintiffs,
                 v.
PRIMUS TELECOMMUNICATIONS GROUP,
INCORPORATED; PRIMUS
TELECOMMUNICATIONS, INCORPORATED;       
TUTORNET COMMUNICATIONS GROUP,
INCORPORATED; K. PAUL SINGH; NEIL
HAZARD,
              Defendants-Appellees,
                and
JOE MUESE; ANDREW TAM;
TUTORNET.COM, INCORPORATED;
BARRY MUESE; JOHN PAVIDAS;
EUBURN RICHARD A. FORDE; BERYL
WOLK; PAUL BLANK; KEITH
EDWARDS; BART GOLD; RAJIV DALAL,
                      Defendants,
                 v.
GENESIS INSURANCE COMPANY,
                  Movant-Appellee.
                                        
4             ANDREWS v. PRIMUS TELECOMMUNICATIONS
            Appeal from the United States District Court
         for the Eastern District of Virginia, at Alexandria.
                Leonie M. Brinkema, District Judge.
                          (CA-01-956-A)

                       Argued: May 4, 2004

                      Decided: July 16, 2004

    Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

ARGUED: Bernard Joseph DiMuro, DIMURO, GINSBERG &
MOOK, P.C., Alexandria, Virginia, for Appellants. Steven M.
Edwards, HOGAN & HARTSON, L.L.P., New York, New York;
Daniel James Standish, WILEY, REIN & FIELDING, L.L.P., Wash-
ington, D.C., for Appellees. ON BRIEF: Jonathan R. Mook, Michael
E. Barnsback, DIMURO, GINSBERG & MOOK, P.C., Alexandria,
Virginia, for Appellants. Thomas J. Sweeney, III, Nicholas W. C.
Corson, HOGAN & HARTSON, L.L.P., New York, New York, for
Appellee Primus.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

  Plaintiffs are actual and potential investors in TutorNet.com, Inc.
("TutorNet"), a company created to provide online tutoring services.
               ANDREWS v. PRIMUS TELECOMMUNICATIONS                     5
They sued the principals and certain employees of TutorNet (the "Tu-
torNet defendants"), as well as Primus Telecommunications Group,
Inc. and other related entities (collectively, "Primus" or the "Primus
defendants"), alleging that they were induced to invest in TutorNet by
fraudulent misrepresentations concerning TutorNet’s business opera-
tions and future prospects. At the close of Plaintiffs’ case, the district
court granted judgment as a matter of law to Primus, concluding that
Primus could not be held responsible, either directly or vicariously,
for Plaintiffs’ alleged injuries. We affirm.

                                    I.

   Euburn Forde founded TutorNet in 1997 while working as a con-
sultant for Primus. Forde served as President and Chief Executive
Officer of TutorNet, and Rajiv Dalal served as Vice-president and
Chief Financial Officer. Although Forde left Primus to work full-time
on his new venture, he maintained a relationship with Primus execu-
tives. In late 1998, Forde and Dalal met with Neil Hazard, Chief
Financial Officer of Primus, to solicit an investment from Primus in
TutorNet. According to Hazard, Primus followed a standard protocol
before investing in another company: (1) negotiate a nonbinding term
sheet outlining the parties’ respective commitments, (2) conduct due
diligence on the company seeking the investment, and (3) upon satis-
factory responses to due diligence inquiries, consummate the invest-
ment by exchanging funds for stock.

   In January 1999, Forde and Hazard signed a "Summary of Terms"
that outlined a potential business relationship between the two compa-
nies. According to the Summary of Terms, TutorNet would form a
new company into which it would invest all of its existing assets, and
Primus would contribute $400,000 to the new company in return for
19.9% of its stock. Primus would be entitled to appoint one member
of the new company’s board of directors and would have certain vot-
ing rights. The Summary of Terms explicitly stated that it was not a
binding agreement and that consummation of the transactions outlined
in the document was contingent on execution of definitive formal
documents. Having agreed on this Summary of Terms, Hazard pre-
sented Forde with a due diligence checklist.
6               ANDREWS v. PRIMUS TELECOMMUNICATIONS
   About a week after the Summary of Terms was signed, Forde
approached Hazard to ask for help in funding and administering
TutorNet’s payroll. Hazard agreed, and Primus incorporated a subsid-
iary, TutorNet.com Services, Inc. ("Services"), to provide administra-
tive payroll services for TutorNet.1 For a period of about four months
— from January to April 1999 — Primus deposited funds into a Ser-
vices account to cover the payroll for certain TutorNet employees.
Primus withheld taxes and prepared W-2 forms for these employees,
and it offered them certain benefits available to Primus employees.
By April 1999, TutorNet had enough money of its own to cover the
payroll. TutorNet began depositing funds into the Services account
for that purpose, and all the deposited funds were paid out to Tutor-
Net employees. Several months later, TutorNet began paying its
employees from an account separate from the Services account.

   Primus supported TutorNet’s operations in several other ways dur-
ing the due diligence period. In addition to administering the payroll
(through Services), Primus provided office space for TutorNet
employees; offered health insurance for TutorNet employees; allowed
TutorNet to use its Federal Express account number; and made an
installment payment for software that TutorNet had acquired. In all,
Primus provided financial and administrative support valued at just
over $300,000.

   When TutorNet did not satisfy its due diligence obligations — par-
ticularly when it failed to provide Primus a list of other investors —
Primus informed TutorNet that it did not intend to consummate the
investment outlined in the Summary of Terms. The parties never exe-
cuted the definitive documents called for by the Summary of Terms,
so Primus never became a shareholder of the new company. Hazard
asked Forde to repay Primus for the assistance it had provided — just
over $300,000 — and Forde agreed to pay back that sum when he had
the money. This specific agreement was never reduced to writing, and
in the end, Primus never got its money back.

   In April 2000, TutorNet completed a "reverse merger" with a pub-
licly traded shell corporation, resulting in the creation of TutorNet
    1
   Hazard testified that he thought it wise to set up a new entity to ensure
that TutorNet activities were segregated from other Primus activities.
               ANDREWS v. PRIMUS TELECOMMUNICATIONS                     7
Group, Inc. ("TGI"). Although Forde had promised many TutorNet
investors that they would become shareholders in a publicly traded
company, Plaintiffs’ shares were not converted into TGI shares. Left
with nothing to replace their now-worthless TutorNet shares, Plain-
tiffs filed this lawsuit, alleging that the TutorNet defendants and the
Primus defendants fraudulently induced them to invest in TutorNet.
Specifically, Plaintiffs alleged the following misrepresentations: (1)
TutorNet had already entered into contracts with AOL, Prentice-Hall,
and other companies, (2) TutorNet would go public within a few
months, and (3) after TutorNet went public, investors would be free
to sell their shares at any time. Some plaintiffs testified that they were
told Primus actually owned 19.9% of the company.

   After removing certain claims from the case, the district court tried
a "test case" involving 15 of the 138 plaintiffs. (The parties agreed
that the remaining plaintiffs would be bound by collateral estoppel
with respect to common issues.) The jury returned verdicts for Plain-
tiffs against the TutorNet defendants totaling approximately $176 mil-
lion.

   The claims against Primus never went to the jury. At the close of
Plaintiffs’ case, the district court granted judgment as a matter of law
to the Primus defendants on Counts IX and X of the complaint, which
alleged aiding and abetting and conspiracy to commit common-law
fraud. (Plaintiffs have not challenged this order.) Ten days later, but
before trial resumed, the district court granted judgment as a matter
of law to the Primus defendants on the remaining counts against them
— Count III (violation of the Securities and Exchange Act and Rule
10b-5), Count IV (piercing the corporate veil), Count V (control per-
son liability), and Count XI (vicarious liability for securities fraud and
common-law fraud). Finding it "undisputed and undisputable" that no
Primus official ever made a misrepresentation to Plaintiffs, the district
court concluded that Plaintiffs could not prevail on any theory of
direct liability against Primus. The district court further concluded
that Plaintiffs could not prevail on their vicarious liability theories
either, because (1) Primus lacked the requisite power to control Tutor-
Net and so was not the employer of the TutorNet defendants, (2) Pri-
mus was not a "control person" for purposes of federal securities
laws, and (3) Primus had not agreed to share profits and losses with
8               ANDREWS v. PRIMUS TELECOMMUNICATIONS
TutorNet such that it could be considered a joint venturer with Tutor-
Net.

   Several Plaintiffs appeal the district court’s order entering judg-
ment as a matter of law in favor of Primus.2 Plaintiffs do not chal-
lenge the district court’s ruling that Primus could not be liable directly
for making any misrepresentations. Rather, this appeal involves only
the district court’s rejection of Plaintiffs’ vicarious liability claims.3

                                     II.

   We review de novo the district court’s order granting judgment as
a matter of law. Sales v. Grant, 158 F.3d 768, 775 (4th Cir. 1998).
Under Fed. R. Civ. P. 50, judgment as a matter of law is appropriate
only where "a party has been fully heard on an issue and there is no
legally sufficient evidentiary basis for a reasonable jury to find for
that party on that issue." Fed. R. Civ. P. 50(a). In deciding a Rule 50
motion, the district court should review all the evidence in the record.
    2
     In a footnote to their reply brief, Plaintiffs assert that "[t]his appeal
was intended to apply to all plaintiffs bound by the district court’s order
dismissing Primus." Primus moved to strike this footnote, and we grant
the motion. Fed. R. App. P. 3(c) requires that a notice of appeal "specify
the party or parties taking the appeal by naming each one in the caption
or body of the notice." Even if a party is not specifically named, a court
of appeals may exercise jurisdiction over that party if its "intent to appeal
is otherwise clear from the notice." Fed. R. App. P. 3(c). The notice of
appeal filed in this case specifically identifies twelve Plaintiffs as the
parties taking the appeal; it does not make any reference to other parties
who are bound by the district court’s order. Those other parties are not
properly before us.
   3
     Plaintiffs also challenge the district court’s denial of their motion to
unseal certain documents submitted by Genesis Insurance Company, lia-
bility insurer for two individual Primus defendants, in connection with
its motion to intervene in the case. The district court specifically
approved the submission of the documents under seal and ultimately
determined that the documents were subject to the attorney/client privi-
lege and the work-product doctrine and had "no connection to the issues
in this litigation." We review the district court’s ruling for an abuse of
discretion, see Under Seal v. Under Seal, 326 F.3d 479, 485 (4th Cir.
2003), and upon our own review of the documents, we find none.
                ANDREWS v. PRIMUS TELECOMMUNICATIONS                      9
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000). "In doing so, however, the court must draw all reasonable
inferences in favor of the nonmoving party, and it may not make cred-
ibility determinations or weigh the evidence." Id. In other words, the
court must "disregard all evidence favorable to the moving party that
the jury is not required to believe." Reeves, 530 U.S. at 151.4

                                    A.

   The district court granted judgment as a matter of law to Primus
on Plaintiffs’ respondeat superior and "control person" claims based
on its conclusion that Primus did not control, or have the power to
control, the activities of the TutorNet defendants. Under Virginia law,
the "power to control" is the determinative factor in deciding whether
a master-servant relationship exists. McDonald v. Hampton Training
Sch. for Nurses, 486 S.E.2d 299, 301 (Va. 1997).5 Similarly, in order
to establish "control person" liability under federal law, a plaintiff
must prove both an underlying violation of the securities laws and the
defendant’s control over the primary violator. Maher v. Durango Met-
als, Inc., 144 F.3d 1302, 1305 (10th Cir. 1998); Brown v. Enstar
Group, Inc., 84 F.3d 393, 396-97 (11th Cir. 1996).6
  4
     Plaintiffs argue that the testimony of Forde and Dalal cannot be used
to support Primus’s motion for judgment as a matter of law because they
are interested witnesses. For this proposition, Plaintiffs rely upon the
statement in Reeves that "the court should give credence to the evidence
favoring the nonmovant as well as that evidence supporting the moving
party that is uncontradicted and unimpeached, at least to the extent that
the evidence comes from disinterested witnesses." 530 U.S. at 151. We
do not read Reeves so broadly as to preclude consideration of uncontra-
dicted testimony simply because it comes from a party to the lawsuit. See
Traylor v. Brown, 295 F.3d 783, 791 (7th Cir. 2002).
   5
     This element of control is also necessary to warrant imputation of a
wholly-owned subsidiary’s liabilities to its parent corporation. Eure v.
Norfolk Shipbuilding & Drydock Corp., Inc., 561 S.E.2d 663, 664 (Va.
2002).
   6
     By regulation, "control" is defined as "the possession, direct or indi-
rect, of the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting securities,
by contract or otherwise." 17 C.F.R. § 230.405.
10              ANDREWS v. PRIMUS TELECOMMUNICATIONS
   The district court properly concluded that Plaintiffs failed to
adduce evidence sufficient for a reasonable jury to conclude that Pri-
mus controlled, or had the power to control, the TutorNet defendants.
It is undisputed that there was never a formal business relationship
between Primus and TutorNet that gave Primus authority over Tutor-
Net’s business affairs. Nor was there evidence of Primus’s actually
asserting such authority. To the contrary, Forde and Dalal both testi-
fied that Forde controlled the activities of TutorNet and no one con-
trolled Forde. This testimony was consistent with the testimony of
several plaintiffs (former TutorNet employees) who stated that they
worked at the direction of Forde, not any Primus official. Mary
McMartin testified, for instance, that her work assignments came
from Forde and Dalal, not from any Primus official.

   Nevertheless, Plaintiffs argue that the jury could have found that
Primus controlled TutorNet because (1) Primus’s investment was nec-
essary for the continuing viability of TutorNet, (2) Hazard (a Primus
officer) sent an e-mail to Dalal (a TutorNet officer) stating a need to
finalize an investment agreement and "get the day to day operations
sorted out," and (3) Forde (a TutorNet officer) sent an e-mail to Haz-
ard (a Primus officer) concerning a potential TutorNet investor. This
evidence is not sufficient to prove Primus’s control of TutorNet.

   First, proof of the size of Primus’s anticipated investment is not
proof of control. Under Plaintiffs’ theory, any large-scale investor is
liable for the acts of the company in which it invests because the com-
pany might fail if the investor walked away. The facts of this case
show that Primus’s anticipated investment was only about 20 percent
of the stock of the new company, and a 20 percent share hardly
amounts to control of the new company. Second, to the extent that
Plaintiffs point to Primus’s providing payroll services, office space,
a fax machine, and a FedEx account for use by TutorNet, we note that
Primus’s assistance was merely temporary and that TutorNet had
obtained much more funding from other investors than Primus was
providing. Plaintiffs cannot demonstrate that Primus controlled, or
had the power to control, the TutorNet defendants merely by proof of
Primus’s offering assistance to TutorNet to protect its anticipated invest-
ment.7
  7
   Plaintiffs’ reliance upon Farlow v. Wachovia Bank of N.C., 259 F.3d
309 (4th Cir. 2001), is misplaced. Farlow does not purport to apply Vir-
               ANDREWS v. PRIMUS TELECOMMUNICATIONS                   11
   Nor does the March 1, 1999, e-mail from Hazard to Dalal establish
Primus’s control over the TutorNet defendants. This e-mail shows an
exercise of due diligence in anticipation of an investment, not a set-
tled master-servant relationship:

    Rajiv — We also need to finalize our investment agreement
    and get the day to day operations sorted out. Specifically, [a
    Primus executive] has asked that you give us the asset list-
    ing as of January and the liabilities for the software so that
    we have an opening balance sheet of the new company. You
    also need to give us the list of customers and set up the
    monthly billing procedures.

This e-mail was written in March 1999 — more than a month after
Primus incorporated Services — and it sought information to be used
in preparation for the operation of a new company. The contemplated
investment agreement had not yet been worked out, there was no
agreement concerning day-to-day operations of the new company,
and Primus needed information so that it could set up a balance sheet
for that company. In other words, none of the things mentioned in the
e-mail had been accomplished. For that reason alone, this e-mail can-
not be read to evidence Primus’s control over TutorNet. The addi-
tional fact that Primus never received from TutorNet the information
it requested in this e-mail likewise undermines Plaintiffs’ argument
that Primus had the power to control TutorNet and was ordering its
daily activities.

ginia law, as we must in this case, and Virginia law specifically distin-
guishes the payment of compensation from the power to control.
McDonald v. Hampton Training Sch. for Nurses, 486 S.E.2d 299, 301
(Va. 1997). Under Virginia law, the facts that Services paid compensa-
tion, withheld taxes, and prepared tax documents for TutorNet employ-
ees do not establish that a master-servant relationship existed between
Services (or Primus) and the TutorNet defendants. See Metro Mach.
Corp. v. Mizenko, 419 S.E.2d 632, 635 (Va. 1992) (holding that the tort-
feasor was the servant of the company that exercised complete control
over his work and working conditions, not the company that paid his sal-
ary and worker’s compensation benefits).
12             ANDREWS v. PRIMUS TELECOMMUNICATIONS
   Plaintiffs also point to a February 23, 1999, e-mail from Dalal to
Hazard, wherein Dalal made Hazard aware of discussions he was hav-
ing with another potential investor. According to Plaintiffs, this e-
mail "demonstrates how Forde and Dalal looked to Primus for direc-
tion on financial matters." Actually, all the e-mail shows is one party
to a future business endeavor keeping another party to that endeavor
informed of developments concerning their common interest. There
is nothing in this e-mail that suggests TutorNet’s submission to Pri-
mus’s authority or control.

   Plaintiffs’ assertions that Primus controlled TutorNet are not sup-
ported by the evidence presented at trial. Accordingly, the district
court properly entered judgment as a matter of law in favor of Primus
on Plaintiffs’ respondeat superior and "control person" theories of
liability.

                                   B.

   The district court also granted judgment as a matter of law to Pri-
mus on Plaintiffs’ joint-venture theory of liability. Under Virginia
law, "[a] joint venture exists where two or more parties enter into a
special combination for the purpose of a specific business undertak-
ing, jointly seeking a profit, gain, or other benefit, without any actual
partnership or corporate designation." PGI, Inc. v. Rathe Prods., Inc.,
576 S.E.2d 438, 441 (Va. 2003) (quoting Roark v. Hicks, 362 S.E.2d
711, 714 (Va. 1987)). It is essential to a joint venture that the partici-
pants agree, expressly or impliedly, "that they are to share in the prof-
its or losses of the enterprise, and that each is to have a voice in its
control and management." Id. (quoting Smith v. Grenadier, 127
S.E.2d 107, 110 (Va. 1962)). See also Flip Mortgage Corp. v. McEl-
hone, 841 F.2d 531, 539-40 (4th Cir. 1988) (dismissing a fiduciary
duty claim where the parties’ contract showed no agreement to share
profits or losses).

   Plaintiffs produced no evidence in this case showing that Primus
agreed to share profits or losses with TutorNet. Instead, Plaintiffs rely
upon a letter from Primus to a third party indicating that Primus "had
partnered with" TutorNet. The district court properly ruled that this
single statement could not support a finding that there was a legal
partnership or joint venture. More specifically, this single statement
                ANDREWS v. PRIMUS TELECOMMUNICATIONS                     13
does not demonstrate that any agreement had been made to share
profits or losses. Moreover, for the reasons discussed above, Primus
did not share in the control or management of TutorNet. Thus, the dis-
trict court properly concluded that there was no joint venture between
Primus and TutorNet.8

                                    III.

   Plaintiffs failed to adduce evidence at trial establishing that Primus
controlled, or had the power to control, the activities of the TutorNet
defendants. Judgment as a matter of law was therefore appropriate on
Plaintiffs’ respondeat superior and "control person" claims. Judgment
as a matter of law was appropriate on Plaintiffs’ joint venture claim
because there was no evidence suggesting an agreement to share prof-
its and losses. For these reasons, the judgment of the district court is
in all respects

                                                              AFFIRMED.
  8
   To the extent that the district court relied upon the absence of a formal
contract to hold that there was no joint venture, that was error. The ques-
tion is whether the parties expressly or impliedly agreed to undertake a
joint venture, not whether they executed a document to that effect. PGI,
576 S.E.2d at 340. For the reasons stated above, we conclude that the
parties’ conduct did not evidence a joint venture under Virginia law.
