                                                                     FILED
                                                         United States Court of Appeals
                                 PUBLISH                         Tenth Circuit

                   UNITED STATES COURT OF APPEALS              December 7, 2018

                                                            Elisabeth A. Shumaker
                       FOR THE TENTH CIRCUIT                    Clerk of Court
                     _________________________________

STEVEN A. STENDER; INFINITY
CLARK STREET OPERATING,
LLC, on behalf of themselves and
all others similarly situated,

      Plaintiffs - Appellants,

and

HAROLD SILVER,

      Plaintiff,

v.                                               No. 17-1332

ARCHSTONE-SMITH OPERATING
TRUST; ARCHSTONE-SMITH
TRUST; ERNEST A. GERARDI,
JR.; RUTH ANN M. GILLIS; NED
S. HOLMES; ROBERT P. KOGOD;
JAMES H. POLK, III; JOHN C.
SCHWEITZER; R. SCOT SELLERS;
ROBERT H. SMITH; STEPHEN R.
DEMERITT; CHARLES MUELLER,
JR.; CAROLINE BROWER; MARK
SCHUMACHER; ALFRED G.
NEELY; LEHMAN BROTHERS
HOLDINGS, INC.; TISHMAN
SPEYER DEVELOPMENT
CORPORATION; RIVER
HOLDING, LP; RIVER TRUST
ACQUISITION (MD), LLC; RIVER
ACQUISITION (MD), LP;
ARCHSTONE-SMITH
MULTIFAMILY SERIES I TRUST;
ARCHSTONE, INC.; AVALONBAY
COMMUNITIES, INC.;
ARCHSTONE ENTERPRISE, LP;
ERP OPERATING LIMITED
PARTNERSHIP; EQUITY
RESIDENTIAL,

       Defendants - Appellees.
                    _________________________________

              Appeal from the United States District Court
                      for the District of Colorado
                 (D.C. No. 1:07-CV-02503-WJM-MJW)
                   _________________________________

Matthew W.H. Wessler, Gupta Wessler PLLC, Washington, D.C. (Daniel
Townsend, Gupta Wessler PLLC, Washington, D.C., Kenneth A. Wexler
and Kara A. Elgersma, Wexler Wallace LLP, Chicago, Illinois, and Lee
Squitieri, Squitieri & Fearon, LLP, New York, New York, with him on the
briefs), for the Plaintiffs-Appellants.

Jonathan D. Polkes, Weil, Gotshal & Manges LLP, New York, New York
(Caroline Hickey Zalka, Adam B. Banks, and Justin D. D’Aloia, Weil,
Gotshal & Manges LLP, New York, New York, Frederick J, Baumann and
Alex C. Myers, Lewis Roca Rothgerber Christie LLP, Denver, Colorado,
and Leslie A. Eaton, Gregory P. Szewczyk, and J. Matthew Thornton,
Ballard Spahr, LLP, Denver, Colorado, with him on the brief), for the
Defendants-Appellees.
                    _________________________________

Before BRISCOE, BACHARACH, and CARSON, Circuit Judges.
                 _________________________________

BACHARACH, Circuit Judge.
               _________________________________


      This appeal grew out of a battle between the majority and minority

owners of units in an investment vehicle. The majority unitholder wanted

to merge, but this would require the minority to sell their units or convert

them to shares in a newly created entity. The minority unitholders balked

                                      2
because they wanted to retain their original units, but the majority

unitholder approved the merger, terminating the minority’s units in the

process. The termination of these units led the minority to sue.

         Resolution of this suit largely turns on a classic issue of contract

interpretation: Did the contract, consisting of a declaration of trust,

empower the majority unitholder to approve a merger that eliminated and

replaced the minority unitholders’ units without providing an opportunity

for a class vote? The district court answered “yes” and granted the

defendants’ motions for summary judgment. We agree with the district

court.

1.       The parties create an investment vehicle for interests in real
         estate.

         The parties created an investment vehicle that comprised an

operating trust to buy and sell interests in real estate. This type of

investment vehicle is called a “real estate investment trust.” To form the

trust, investors contributed property in exchange for units (called “A-1

units”) in an operating trust. These units carried certain rights like steady

distributions and a right of redemption for cash or common stock in the

operating trust.

         The operating trust was organized as an entity known as an “umbrella

partnership real estate investment trust.” The umbrella partnership, in turn,

was owned by a “parent trust” called the “Archstone-Smith Trust.” The


                                         3
parent trust contributed cash to the operating trust (the Archstone-Smith

Operating Trust) in exchange for general partnership units.




2.   The majority unitholder (Archstone-Smith Trust) pursues a
     merger.

     Before the 2008 market crash, the Archstone-Smith Trust negotiated

a sale to a partnership between Lehman Brothers and Tishman Speyer

Development Corporation. Under the terms of the sale, the Lehman-

Tishman partnership would create a new entity to merge into the operating


                                     4
trust. The merger would eliminate the A-1 units, and owners of these units

could either sell the units or exchange them for shares in the new entity.

      Unhappy with this choice, the A-1 unitholders sued the Archstone-

Smith Trust and others for breaches of contract and fiduciary duties. These

claims turn primarily on whether the declaration of trust unambiguously

allowed the operating trust to merge, which would terminate the A-1 units

without a class vote of A-1 unitholders. The district court concluded that

the operating trust could merge and terminate the A-1 units in the process,

so the court granted summary judgment to the defendants. We agree with

the district court’s conclusion and the grant of summary judgment.

3.    We engage in de novo review, applying Maryland’s substantive
      law.

      To decide the appeal, we must construe the declaration of trust.

Because the district court’s construction of the declaration of trust resulted

in a grant of summary judgment, we engage in de novo review, viewing the

evidence in the light most favorable to the A-1 unitholders. Reid v. Geico

Gen. Ins. Co., 499 F.3d 1163, 1167 (10th Cir. 2007).

      The parties agree that Maryland law governs construction of the

declaration of trust. Applying Maryland law to matters of construction, the

district court could grant summary judgment to the defendants only if the

declaration of trust had unambiguously allowed termination of the A-1

units through a merger without a class vote of A-1 unitholders. See Higby


                                      5
Crane Serv., LLC v. Nat. Helium, LLC, 751 F.3d 1157, 1160 (10th Cir.

2014) (“Summary judgment on a contract dispute should be granted if the

contractual language is unambiguous.”).

4.   The A-1 unitholders’ contract claim fails as a matter of law
     because the declaration of trust unambiguously allowed the
     operating trust to merge with another entity and terminate the A-
     1 units in the process.

     Maryland law provides that

          a real estate investment trust can merge with another entity
           unless the declaration of trust prohibits mergers and

          a merger can result in the termination of the trust’s units in the
           existing entity.

Md. Code Ann., Corps. & Ass’ns §§ 8–501.1(b), 8–501.1(o)(3). The

resulting issue is whether the declaration of trust prohibited the Archstone-

Smith Trust from terminating the A-1 units in the merger without a class

vote of A-1 unitholders.

     The defendants point to §§ 5.3(B) and 9.2(B) of the declaration of

trust; the A-1 unitholders rely on §§ 5.3(A), 12.3, and 12.4. The threshold

procedural question is whether the A-1 unitholders preserved their reliance

on § 5.3(A). We answer “no.”

     To avoid forfeiture, the A-1 unitholders had to fairly present the

district court with the substance of their current argument involving

§ 5.3(A). See FDIC v. Kan. Bankers Surety Co., 840 F.3d 1167, 1169–70

(10th Cir. 2016) (holding that an argument about contractual language was


                                      6
forfeited because it had not been fairly presented in response to the motion

for summary judgment). This section provides: “The Trustee [the

Archstone-Smith Trust] may not take any action in contravention of any

express prohibition or limitation of this [declaration of trust] without an

amendment of such provision adopted in accordance with Article 12 hereof

and [Title 8 of the Annotated Code of Maryland, Corporations and

Associations Article].” Appellants’ Rec. Excerpts at 558.

      On appeal, the A-1 unitholders present two contentions:

      1.    Section 5.3(A) prohibited the operating trust from undermining
            the attributes of A-1 units without amending the declaration of
            trust.

      2.    Amendment of the declaration of trust required compliance
            with §§ 12.3 and 12.4, which would necessitate a vote of A-1
            unitholders.

The threshold issue is whether the A-1 unitholders preserved the first

contention by raising it in district court when responding to the

defendants’ motions for summary judgment. The A-1 unitholders argue that

they did preserve the issue, relying on

           a footnote in their summary-judgment brief, and

           two references to § 5.3(A) when listing undisputed facts and
            material factual disputes.

We conclude that the A-1 unitholders did not preserve their current

argument involving § 5.3(A).




                                      7
      In the footnote citing § 5.3(A), the A-1 unitholders discussed

limitations on the Archstone-Smith Trust’s authority to approve a reverse

merger. In a reverse merger, a publicly traded company acquires a private

entity, which survives the merger. SEC v. Cavanagh, 445 F.3d 105, 108 n.6

(2d Cir. 2006). In district court, the A-1 unitholders relied on the existence

of a reverse merger, arguing that the declaration of trust had not permitted

the operating trust to absorb the Lehman-Tishman partnership’s assets. For

this argument, the parties clashed on the impact of § 5.3(B). In the

footnote, the A-1 unitholders argued that the Archstone-Smith Trust’s

participation in a reverse merger would breach multiple provisions,

including § 5.3(A). But § 5.3(A) is not mentioned again in the A-1

unitholders’ summary-judgment brief.

      On appeal, the A-1 unitholders have dropped their challenge to the

Archstone-Smith Trust’s authority to approve a reverse merger. 1 Instead,

the A-1 unitholders have focused on the termination of their units without

a class vote. The unitholders’ reference in the footnote to a reverse merger

has nothing to do with their argument on appeal.

      The A-1 unitholders also cite the district court’s Docket No. 592,

page 22, which lists undisputed material facts. But nothing on the cited

page refers to § 5.3(A); the A-1 unitholders apparently meant to cite page


1
      In their appeal briefs, the A-1 unitholders never mention the term
“reverse merger.”
                                      8
18. There the A-1 unitholders note: “As an express prohibition or

limitation of the [declaration of trust], Section 5.3B required an

amendment to its terms, as set forth in Section 5.3A, before there could be

any deviation from its terms.” Again, this statement was addressing

whether the trustee could approve a reverse merger, which is not involved

in the appeal.

      In addition, the A-1 unitholders point to the district court’s Docket

No. 590, page 14. This page comprises the A-1 unitholders’ response to the

defendants’ statement of undisputed material facts. In this response, the

defendants quote the declaration of trust, which states that the trust could

exercise the powers set forth in § 5.1(A). The A-1 unitholders admitted

this fact, adding that these powers are limited by § 5.3(A), which is quoted

in full. But this discussion does not contain an argument involving breach

of § 5.3(A). Instead, the A-1 unitholders relied solely on §§ 12.3 and 12.4,

arguing that the Archstone-Smith Trust could change the attributes of A-1

units only by amending the declaration of trust through a class vote.

      Because the A-1 unitholders did not alert the district court to their

current argument involving § 5.3(A), 2 this argument is forfeited. See

Evanston Ins. Co. v. Law Office of Michael P. Medved, P.C., 890 F.3d


2
     The district court pointed out that “the only portion of section 5.3 to
which any party has pointed as even arguably applicable to the contract
claims is section 5.3B(ii).” Appellants’ Rec. Excerpts at 23.

                                      9
1195, 1202–03 (10th Cir. 2018) (holding that presentation of an argument

in district court was insufficient to preserve a related, but distinct,

argument made for the first time on appeal). We therefore consider the

remaining provisions invoked by the parties: §§ 5.3(B), 9.2(B), 12.3, and

12.4. 3 Together, these sections governed “termination transactions” and

“amendments.”

      Under § 5.3(B) a trustee may carry out a “termination transaction”

under § 9.2(B). Section 9.2(B) then defines a “termination transaction” to

include a merger. For a merger under § 9.2(B), three requirements exist:

      1.    The merger must be approved by unitholders holding a majority
            of the outstanding units.

      2.    Substantially all of the surviving entity’s assets must consist of
            units.

      3.    Under the merger, holders of the A-1 units must be entitled to
            receive the same amount for each unit that is to be received by
            the Archstone-Smith Trust’s shareholders.

These requirements were satisfied. The Archstone-Smith Trust voted for

the merger, and this vote accounted for roughly 89% of the outstanding

units in the operating trust. And substantially all of the surviving entity’s

assets consisted of units. In addition, each A-1 unitholder had a right to the

same amount per unit that would become available to the Archstone-Smith



3
      We express no opinion on whether the outcome might have been
different if the A-1 unitholders had preserved their current argument
involving § 5.3(A).
                                       10
Trust’s shareholders. As a result, the declaration of trust unambiguously

allowed the Archstone-Smith Trust to approve the merger. 4

     The A-1 unitholders insist that the Archstone-Smith Trust failed to

comply with §§ 12.3 and 12.4, which govern amendments. To address this

argument, we are guided by the Delaware courts, which Maryland courts

regard as persuasive on matters of corporate law. See Oliveira v.

Sugarman, 152 A.3d 728, 736 n.4 (Md. 2017) (“This Court frequently

looks to Delaware courts for guidance on issues of corporate law.”). And

the Delaware Supreme Court states that “[w]hen a certificate . . . grants

only the right to vote on an amendment, . . . the preferred [unitholders]

have no class vote in a merger.” Elliott Assocs., L.P. v. Avatex Corp., 715

A.2d 843, 855 (Del. 1998). This pronouncement would be “highly

persuasive” to the Maryland Supreme Court. See Kramer v. Liberty Prop.

Trust, 968 A.2d 120, 134 (Md. 2009) (treating Delaware courts’

interpretation of a Delaware corporate statute as “highly persuasive” on the

proper interpretation of a similar Maryland corporate statute because

Delaware courts have expertise on corporate law). 5


4
      Both sides point to extrinsic evidence of the parties’ intent. But
extrinsic evidence cannot alter the meaning of unambiguous provisions in
the declaration of trust. See Calomiris v. Woods, 727 A.2d 358, 361–62
(Md. 1999).
5
      The Delaware legislature has codified this principle. See Warner
Commc’ns Inc. v. Chris-Craft Indus., Inc., 583 A.2d 962, 969–70 (Del.
Ch.) (discussing Del. Code Ann. tit. 8, § 251(c)), aff’d, 567 A.2d 419 (Del.
                                     11
       Given this highly persuasive pronouncement, Maryland law would

not entitle the A-1 unitholders to a class vote on the merger. Without a

class vote of A-1 unitholders, the Archstone-Smith Trust had enough units

to approve the merger, which resulted in termination of the A-1 units.

       The A-1 unitholders point out that they were entitled to a class vote

on amendments, but nothing was amended until after the merger and the

termination of A-1 units. As a result, the absence of a class vote did not

constitute a breach of the declaration of trust. Given the absence of a

breach, the district court properly granted summary judgment to the

defendants on the contract claim.

5.     The defendants did not breach their fiduciary duties.

       The A-1 unitholders sued the Archstone-Smith Trust and others not

only for breaching the contract but also for breaching fiduciary duties. The

district court rejected the claim for breach of fiduciary duties, reasoning

that

           the A-1 unitholders’ reasonable expectations were measured by
            their contractual rights and

           the Archstone-Smith Trust did not violate any of the A-1
            unitholders’ contractual rights.

1989). Similarly, the Maryland legislature has not given preferred
shareholders the right to a class vote for approval of a merger. Compare
Del. Code Ann. tit. 8, § 251(c) (requiring a vote by the majority of the
outstanding stock), with Md. Code Ann., Corps. & Ass’ns §§ 3–105, 2–507
(requiring mergers to be approved in compliance with the procedures in
Title 2 of the Maryland corporate statute, which specifies that each share is
entitled to one vote “regardless of class”).
                                      12
On appeal, the A-1 unitholders contend that termination of their units was

oppressive and unfair. We reject these contentions because the Archstone-

Smith Trust complied with the declaration of trust, the A-1 unitholders are

judicially estopped on their new theory of oppression, and they forfeited

their new theory of unfairness.

      Under Maryland law, a majority unitholder engages in oppression by

frustrating a minority unitholder’s reasonable expectations upon

committing capital to the enterprise. Edenbaum v. Schwarcz-Osztreicherne,

885 A.2d 365, 378 (Md. Spec. App. 2007). On appeal, the A-1 unitholders

contend that their reasonable expectations were not met. This theory is

based partly on the declaration of trust and partly beyond it.

      For the expectations embodied in the declaration of trust, we have

already concluded that the Archstone-Smith Trust complied with its

contractual obligations, which precludes liability for breaching a fiduciary

duty arising from the declaration of trust. On appeal, however, the A-1

unitholders also argue that their reasonable expectations had surpassed the

express provisions in the declaration of trust. For this part of the claim, the

district court properly applied judicial estoppel.

      Judicial estoppel is an equitable doctrine designed to “protect the

integrity of the judicial process” by preventing parties from changing their

legal positions in the same case based on the “the exigencies of the


                                      13
moment.” New Hampshire v. Maine, 532 U.S. 742, 749–50 (2001). In

deciding whether to find judicial estoppel, the court can consider

           whether a party is now asserting a position that is “‘clearly
            inconsistent’” with its prior position,

           whether that party successfully convinced a court to accept the
            earlier position, and

           whether it would be unfair to allow that party to change its
            position.

Queen v. TA Operating, LLC, 734 F.3d 1081, 1087 (10th Cir. 2013)

(quoting Eastman v. Union Pac. R.R. Co., 493 F.3d 1151, 1156 (10th Cir.

2007)).

      When reviewing a finding of judicial estoppel, we apply the abuse-

of-discretion standard. Id. at 1086. The district court could abuse its

discretion only by clearly erring in its judgment, making an impermissible

choice, or acting in a way that was arbitrary, capricious, whimsical, or

manifestly unreasonable. Id.

      The issue of judicial estoppel stemmed from the row in district court

over class certification. Early in the battle, the court granted class

certification on the A-1 unitholders’ claims for breach of fiduciary duties.

This grant of class certification led the defendants to move for

reconsideration, arguing that the claims would require an inquiry into each

unitholder’s expectations. The A-1 unitholders disagreed, denying that the




                                      14
claims would require individualized consideration of their expectations,

arguing:

      Under Maryland law, reasonable expectations are embodied in
      contracts to which shareholders are parties. The reasonable
      expectations of Plaintiffs and the Class were thus memorialized
      in the Declaration of Trust . . . and any other agreements
      defining the relationships of the parties. Subjective concerns
      are irrelevant to the inquiry . . . .

Appellants’ Rec. Excerpts at 260; see also id. at 261 (“Plaintiffs’

reasonable expectations were memorialized in the [Declaration of

Trust].”); id. at 262 (“The determination of Archstone-Smith Trust’s

liability at trial will therefore consider the Defendants’ conduct—not how

any individual Class member was affected by it—in relation to the

expectations embodied in the [Declaration of Trust].” (emphasis omitted));

id. at 263 (“Plaintiffs here will prove the Archstone Defendants’ liability

through their uniform course of conduct intending to defeat the reasonable

expectations contained in the single overarching document—the

[Declaration of Trust].”).

      The district court relied partly on this argument in denying the

defendants’ motion to reconsider. In denying the motion, the court

reasoned that the majority of A-1 unitholders would derive their

expectations “mostly, perhaps entirely, from the Declaration of Trust and

its connected agreements.” Appellee’s Supp. Rec. Excerpts at 120. Thus,

the A-1 unitholders obtained a favorable ruling by tying their reasonable


                                     15
expectations to the declaration of trust. Given this ruling, the district court

applied judicial estoppel to prevent the A-1 unitholders from arguing that

their reasonable expectations could exceed the promises in the declaration

of trust.

      In our view, the district court acted within the bounds of its

discretion. The A-1 unitholders obtained denial of the motion to reconsider

class certification by treating the declaration of trust as the benchmark for

the A-1 unitholders’ reasonable expectations. Given the denial of this

motion, the district court could reasonably reject the A-1 unitholders’

effort to back-track when opposing summary judgment. 6 The district court

thus acted within its discretion in applying judicial estoppel.

      In their reply brief, the A-1 unitholders also suggest that the

defendants breached their fiduciary duties by violating standards of “‘fair

dealing’” or “‘fair play.’” Appellants’ Reply Br. at 24 (quoting Edenbaum

v. Schwarcz-Osztreicherne, 885 A.2d 365, 378 (Md. Ct. Spec. App. 2005)).

But the A-1 unitholders had not made this argument in district court when


6
      After the ruling, the defendants sought an interlocutory appeal over
the issue of class certification. Objecting to interlocutory review, the A-1
unitholders again tried to confine the defendants’ fiduciary duties to
obligations arising in the declaration of trust. See Plaintiffs’ Opp. to Mot.
for Leave to File Reply at 3–5, Archstone-Smith Trust v. Stender, No. 15-
707 (10th Cir. Dec. 14, 2015). We declined to entertain an interlocutory
appeal, just as the A-1 unitholders had urged. So the A-1 units again
obtained a favorable decision by confining the Archstone-Smith Trust’s
fiduciary duties to the reasonable expectations memorialized in the
declaration of trust.
                                      16
objecting to summary judgment. Thus, the A-1 unitholders forfeited their

new suggestion of unfairness as a basis for liability as a fiduciary. See

Evanston Ins. Co. v. Law Office of Michael P. Medved, P.C., 890 F.3d

1195, 1202–03 (10th Cir. 2018); see also pp. 9–10, above.

                                    * * *

      In district court, the A-1 unitholders tied their reasonable

expectations to the declaration of trust. As discussed above, however, the

Archstone-Smith Trust had complied with the declaration of trust. So the

district court correctly granted summary judgment to the defendants on the

claims involving breaches of fiduciary duties stemming from the

declaration of trust.

      The district court also acted within its discretion in applying judicial

estoppel to prevent the A-1 unitholders from basing their reasonable

expectations on sources outside the declaration of trust.

      Finally, the A-1 unitholders forfeited their new theory of unfairness.

6.    The A-1 unitholders abandoned their remaining claims.

      In district court, the A-1 unitholders also claimed unjust enrichment,

tortious interference with contract, civil conspiracy, and aiding-and-

abetting a breach of fiduciary duty. These claims have been abandoned.

      In their opening brief, the A-1 unitholders mention their claims for

tortious interference and aiding-and-abetting only in footnotes, stating that



                                      17
           reversal on the contract claim would require reversal on the
            claims for tortious interference and

           reversal on the claim for breach of fiduciary duty would require
            reversal on the aiding-and-abetting claims.

These conclusory assertions in footnotes do not adequately present us with

an argument on these claims, so we consider them abandoned. See Verlo v.

Martinez, 820 F.3d 1113, 1127 (10th Cir. 2016) (“A party’s offhand

reference to an issue in a footnote, without citation to legal authority or

reasoned argument, is insufficient to present the issue for our

consideration.”).

       And the A-1 unitholders never mention their claims for unjust

enrichment and civil conspiracy. As a result, these claims are also

considered abandoned. See Coleman v. B-G Maint. Mgmt., of Colo., Inc.,

108 F.3d 1199, 1205 (10th Cir. 1997).

7.     Conclusion

       The overarching issue involves the Archstone-Smith Trust’s authority

to approve the merger without amending the declaration of trust. This

declaration was governed by Maryland law, which allows a real estate

investment trust to merge and, in the process, terminate preferred units like

the A-1 units. Given this authority under Maryland law, the declaration of

trust expressly allowed the Archstone-Smith Trust to unilaterally approve

the merger, which resulted in termination of the A-1 units as a matter of

law.
                                      18
      The A-1 unitholders’ sole preserved argument on the contract claim

involves provisions requiring a class vote of A-1 unitholders to amend the

declaration of trust. But a merger would not trigger the contractual

provisions governing amendments. So the Archstone-Smith Trust could

approve the merger, which resulted in termination of the A-1 units without

a need to amend the declaration of trust.

      It’s true that the declaration of trust was amended after the merger.

But by then, there were no longer any A-1 units, so there were no longer

any A-1 unitholders. The district court was therefore right to conclude as a

matter of law that the Archstone-Smith Trust had not breached any

contractual duties. This conclusion entitled the defendants to summary

judgment on the contract claim.

      Given the absence of a contractual breach, the defendants were also

entitled to summary judgment on the claims for breach of fiduciary duty.

In district court, the A-1 unitholders tied their reasonable expectations to

the declaration of trust, which had not been breached. As a result, the

district court properly applied judicial estoppel to the A-1 unitholders’ new

effort to base their reasonable expectations on sources outside the

declaration of trust. And the A-1 unitholders forfeited their new theory of

unfairness.

      We therefore affirm.



                                      19
