[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 99-2034

IN RE: JFD ENTERPRISES, INC.,

Debtor. _____________________

JOSEPH F. DISTEFANO; PATRICIA A. DISTEFANO,

Appellants,

v.

PETER M. STERN; EUGENE B. BERMAN; ROGER A. DIALESSI,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Stahl, Circuit Judge, Bownes, Senior Circuit Judge, and Lynch, Circuit Judge.

G. Eric Brunstad, Jr., with whom Patrick J. Trostle and Bingham Dana LLP were on brief, for appellants. Kerry David Strayer, with whom Kamberg, Berman, P.C. was on brief, for appellee Berman. Kevin C. Giordano, with whom Keyes and Donnellan, P.C. was on brief, for appellee Stern. David J. Martel, with whom Doherty, Wallace, Pillsbury and Murphy, P.C. was on brief, for appellee Dialessi. MAY 1, 2000

STAHL, Circuit Judge. Plaintiffs-appellants

Joseph and Patricia DiStefano are shareholders and creditors of

JFD Enterprises, Inc. (“JFD”).1 They appeal a grant of summary

judgment in favor of defendants-appellees Peter Stern, Eugene

Berman and Roger Dialessi (the “appellees”). The DiStefanos

allege that during the course of JFD's reorganization under

Chapter 11 of the Bankruptcy Code, the appellees violated

various fiduciary duties owed to them. These breaches, the

DiStefanos contend, caused them to suffer financial losses on

advances they had extended to JFD and prevented their recovery

on other liens they held against the company's assets. We

affirm.

Background

Prior to the commencement of bankruptcy proceedings,

JFD operated a liquor store under the trade name Century Liquor

Mart (“Century”) in West Springfield, Massachusetts. Joseph

DiStefano managed the business. In February 1989, he personally

1Joseph DiStefano is an unsecured creditor, while Patricia DiStefano is an undersecured creditor.

-2- guaranteed about $300,000 of indebtedness owed by JFD to the

Park West Bank and Trust Company (the “Bank”).

Century was a successful operation until about 1990.

After that, its business declined, probably due in large part to

the closure of a nearby bridge and a consequent reduction in

traffic to the shopping center of which the store was a part.

On June 10, 1993, JFD filed a Chapter 11 bankruptcy petition in

the United States Bankruptcy Court for the District of

Massachusetts. As part of the Chapter 11 proceeding, an

Official Unsecured Creditors' Committee (“Committee”) was

appointed. With the bankruptcy court's permission, the

Committee hired Kamberg, Berman, P.C., and appellee Eugene

Berman in particular, as its counsel.

It appears from the record that when JFD filed for

bankruptcy, its indebtedness to the Bank totaled approximately

$275,000. On July 30, 1993, Berman and counsel for the Bank

negotiated a stipulation agreeing that the Bank held an

enforceable first security interest in all of JFD's personal

property and cash. The bankruptcy court approved this

stipulation on August 18, 1993. Subsequently, during the autumn

of 1993, Patricia DiStefano, JFD and the Committee also agreed

that Mrs. DiStefano possessed an enforceable claim against the

JFD estate in the amount of $40,000; that her claim was secured

-3- by JFD's inventory, proceeds, and accounts receivable; and that

it was junior to the Bank's interests. 2 The bankruptcy court

approved this stipulation on November 17, 1993.

In the meantime, on September 24, 1993, the Committee

had filed a motion to convert the case to a Chapter 7

liquidation. The Committee alleged that JFD had lost $475,000

between August 1990 and May 1993, that it was poorly managed,

and that it faced continued financial losses. On October 12,

perhaps in response to the Committee's efforts, Joseph DiStefano

entered into a stipulation (the “October 12 Stipulation”)

pursuant to which he ceded management responsibility for Century

to Roger Dialessi and the Committee withdrew its conversion

motion. But immediately before this agreement was memorialized

and approved by the bankruptcy court, the Bank filed its own

motion to convert the case to a Chapter 7 action, charging that

the Committee unlawfully had installed new JFD management

without regard to the safeguarding of the Bank's interests. The

Bank also complained that JFD's inventory had declined

2 The stipulation also provided that if Mrs. DiStefano received less than $25,000 on her claim, she would have a junior security interest in JFD's liquor license for the difference between the amount paid and $25,000.

-4- substantially since the bankruptcy proceeding had commenced,

thus reducing the security of its lien.3

On October 29, 1993, the United States Trustee (“UST”)

objected to the October 12 Stipulation and filed a motion for

the appointment of a Chapter 11 Trustee, claiming that Dialessi

was unlawfully acting as a de facto trustee. On November 10,

1993, however, JFD, the Committee, the Bank, and the UST entered

into a stipulation (the “Appointment Stipulation”) providing

that Dialessi would be appointed as the Chapter 11 Trustee and

limiting his pay to $600 per week for “services rendered in the

operation of the business of the Debtor.” That same day, the

same parties except for the UST entered into another stipulation

that accorded the Bank a perfected, enforceable security

interest in JFD's liquor license. As part of this agreement,

the Bank agreed both to withdraw its motion to convert the

proceedings into a Chapter 7 action and not to seek such a

conversion in the future so long as certain stated conditions

were met. The bankruptcy court approved both stipulations.

3 At around the same time, the Bank froze JFD's account, which contained about $40,000, and refused to grant Dialessi check-signing authority on the account. JFD subsequently brought an adversarial action seeking an order requiring the Bank to allow access to its account. The Bank relented, allowing Dialessi access.

-5- The parties' stipulation notwithstanding, and for

reasons that are not clear, appellee Stern was appointed as

trustee instead of Dialessi.4 Dialessi continued to manage

Century.

On May 31, 1994, Stern, acting as Trustee, moved to

sell Century's personal property, including its liquor license,

for $275,000, including a $20,000 “carve-out” to be paid to the

bankruptcy estate. By this point, however, Century's liquor

license was on a Massachusetts Alcoholic Beverage Control

Commission ("ABCC") payment “delinquent list” pursuant to

. That provision states that delinquent

licensees may only make cash purchases from liquor wholesalers.

Moreover, the statute's requirements continue to apply even if

the license is transferred. Thus, the Committee objected to the

asset sale, arguing that the license could only be sold subject

to the bar against purchases made other than for cash. The

court ultimately rejected the proposed sale on the ground that

it would not substantially benefit the estate.

4Citing Berman's deposition testimony, the appellants suggest that the UST opposed Dialessi's appointment. As noted above, however, the UST was a party to the Appointment Stipulation.

-6- As Century's general manager, Dialessi engaged in

various activities relevant to this appeal. These were

described by the district court as follows:

Dialessi . . . discontinued the use of a computerized cash register system capable of monitoring inventory levels. He contends that such action was prompted by Mr. DiStefano's failure to record beer and wine purchases in the system, which he claims resulted in the system generating inaccurate inventory reports. Additionally, Dialessi sold some of Century['s] wine inventory to another liquor store owner for approximately $2,000. Although Mr. DiStefano originally maintained at his deposition that the value of the wine sold was $25,000, cross examination revealed that this position was based on what another employee had allegedly told him. He later conceded that the value of the wine sold was approximately $4,000, which is more consistent with Dialessi's affidavit, which stated that the liquor was worth $3,200. Moreover, Dialessi failed to pay Massachusetts withholding taxes, but personally resolved all claims by the government at no expense to JFD. Lastly, Dialessi, due to JFD's cash shortage, paid employees out of an account in which proceeds from JFD's lottery ticket sales were deposited.

DiStefano v. Stern,

(D. Mass. 1999).

On August 26, 1994, Stern moved to convert the case to

a Chapter 7 proceeding. The court allowed his motion and

appointed Stern as the Chapter 7 Trustee. On December 20, 1994,

Stern sold Century's liquor license for $100,000; he sold JFD's

personal property separately for about $31,000. In June 1995,

-7- the court ordered the ABCC to approve the license's transfer

free and clear of its delinquent status. Due to the disparity

between the value of the Bank's loan, which, at that point,

exceeded $300,000, and the price for which the JFD assets were

sold, $131,000, Mr. DiStefano was required to pay $50,000 on his

guaranty (pursuant to a settlement with the Bank), and Mrs.

DiStefano failed to recover anything on her undersecured

interest in the JFD estate.

On February 14, 1997, the DiStefanos filed an action

in the Massachusetts Superior Court against Stern, Berman,

Dialessi, the Bank, and the Bank's attorney.5 The DiStefanos

alleged that the appellees behaved negligently in their

stewardship of JFD and breached fiduciary duties owed to them as

shareholders and creditors of JFD.6 On March 11, 1997, Berman

had the case removed to the bankruptcy court as a “core

proceeding” in JFD's bankruptcy case.

Eventually, the appellees moved for summary judgment.

They claimed, inter alia, that the DiStefanos lacked standing to

5The Bank and its counsel subsequently were dropped from the case. 6 The DiStefanos contended that Stern and Dialessi owed them fiduciary duties by virtue of their positions as bankruptcy trustee and Century's manager, respectively, and that Berman owed such a duty by virtue of his de facto control of JFD during the Chapter 11 proceedings.

-8- pursue their claims and that their own behavior did not result

in any harm to the DiStefanos. The bankruptcy court granted

summary judgment to all the appellees on all counts. The court

determined, in pertinent part, that the DiStefanos indeed lacked

standing to bring their claims and that, irrespective of

standing, the DiStefanos would be unable to prove that the

appellees' conduct caused them any damages.

The DiStefanos appealed the bankruptcy court's ruling

to the district court. That court affirmed the grant of summary

judgment, grounding its decision entirely on the DiStefanos'

inability to prove that their losses were caused by the

appellees' conduct. The DiStefanos again appeal.

Discussion

The question whether a genuine issue of material fact

exists, such that a grant of summary judgment must be reversed,

presents a legal issue subject to de novo review. See Desmond

v. Varrasso (In re Varrasso),

(1st Cir. 1994).

We view the facts in the light most favorable to the nonmoving

party, granting all reasonable inferences in that party's favor.

See Barreto-Rivero v. Medina-Vargas,

(1st Cir.

1999). Even so, summary judgment is appropriate if the

nonmovant's evidence is "merely colorable, or is not

significantly probative." Anderson v. Liberty Lobby, Inc., 477

-9- U.S. 242, 249-50 (1986) (citations omitted). "The mere

existence of a scintilla of evidence in support of the

plaintiff's position will be insufficient; there must be

evidence on which the jury could reasonably find for the

plaintiff." Id. at 252. We will not “accept the nonmovant's

subjective characterizations of events, unless the underlying

events themselves are revealed.” Simas v. First Citizens' Fed.

Credit Union,

(1st Cir. 1999); see also Liberty

Lobby, 477 U.S. at 256; Santiago v. Canon U.S.A., Inc.,

(1st Cir. 1998).

Given these standards, we believe summary judgment in

the appellees' favor was appropriate on the grounds identified

by the district court: an absence of harm attributable to the

appellees' conduct. We explain by discussing separately the two

classes of harm the DiStefanos have identified: (1) losses

relating to JFD's declining value and (2) the legal fees the

DiStefanos purportedly incurred defending an action brought by

the IRS because of Dialessi's failure to withhold employee

income taxes as manager of Century.

I. Losses Associated with the JFD Estate's Declining Value

The DiStefanos assert various arguments against

Dialessi, Berman and Stern, most of which boil down to the

following contentions: (1) the DiStefanos were creditors and

-10- shareholders of JFD; (2) Dialessi and Stern, who held appointed

positions in JFD's bankruptcy proceedings, and Berman, who acted

as a “de facto” bankruptcy trustee, owed the DiStefanos

fiduciary duties in the latter's capacity as JFD's creditors and

shareholders; (3) each appellee breached his fiduciary duty to

the DiStefanos; (4) as a proximate consequence of these

breaches, JFD lost substantial value before the ultimate sale of

its assets, resulting in the DiStefanos' losses on Mrs.

DiStefano's lien as outlined in the November 17, 1993

stipulation and on Mr. DiStefano's guaranty of JFD's

indebtedness to the Bank. Although the DiStefanos may have

suffered other losses, such as those associated with their

equity interest in JFD -- which was ultimately worthless --

those losses are not here at issue, because the DiStefanos could

only have avoided those losses if the JFD estate had first

satisfied all claims of JFD's general creditors.

The DiStefanos' claims cannot survive summary judgment

because they have failed to adduce adequate evidence of

causation linking their losses to the appellees' conduct. That

is, even if we were to assume arguendo that the appellees each

owed a fiduciary duty to the DiStefanos, that they each breached

that duty, and that JFD's value declined precipitously during

the course of its bankruptcy proceedings, the DiStefanos have

-11- not submitted enough evidence indicating a causal link between

the breaches and the losses to survive summary judgment.

Correlation alone, here as elsewhere, does not prove causation.

We explain with respect to each allegation made in support of

the DiStefanos' claims.

A. Timing of the Sale

The DiStefanos' principal allegation in support of

their claims relates to the timing of the sale of Century's

assets. As noted above, in May of 1994, Stern filed a motion

seeking approval to sell JFD's business to a third party in

exchange for $275,000. The DiStefanos contend that at the time

of that proposed sale, the Bank's claim was valued at $294,000.

If the sale had proceeded, they argue, the Bank would have

recovered all but $19,000 of its total claim from JFD in

liquidation. At the very least, Mr. DiStefano's exposure under

the loan guaranty would have been far less than the $50,000 for

which he ultimately was held responsible. 7 Berman, however,

7 The DiStefanos also theorize that there was a “likelihood that other bidders would have offered more, leaving (at most) a small deficiency for the Bank.” This price increase presumably would have further reduced the DiStefanos' exposure and might even have resulted in a surplus that would have inured to the benefit of an undersecured creditor such as Mrs. DiStefano. However, Stern's motion specified the $275,000 price and did not on its face provide for any further bidding process. Even if it had, we would be unwilling to rely upon speculation that a higher price would have been reached. “[C]onclusory allegations, improbable inferences, and unsupported speculation

-12- objected to the sale. On July 13, 1994, the court held a

hearing on the motion and Berman's objection. The court

ultimately refused to allow the sale. The DiStefanos contend

that Berman's objection to the sale constituted a breach of

fiduciary duty to the estate8 and a proximate cause of their

subsequent losses.

The DiStefanos' argument regarding the aborted sale

falters, however, because the discretion and authority to allow

or disallow the sale lay, of course, not with any of the

appellees, but rather with the court. See, e.g.,

(b)(2)(N). It is true that the court might not have

intervened at all save for Berman's objection. See, e.g.,

(b)(1) (requiring “notice and a hearing” before sale

of estate property outside the ordinary course of business);

§ 102(1)(B) (defining “notice and a hearing” in a manner

allowing a sale without any hearing where no party requests

one); In re Crowell,

(Bankr. E.D. Mich. 1997)

. . . are insufficient to establish a genuine dispute of fact.” Triangle Trading Co. v. Robroy Indus., Inc.,

(1st Cir. 1999) (internal quotation marks and citations omitted). 8 Berman, they contend, usurped the trustee's role and thus owed the estate a fiduciary duty. In opposing the sale, they argue, Berman breached that duty by elevating the interests of one particular subset of JFD creditors -- a group of liquor wholesalers who held claims for unpaid bills -- over the interests of other creditors.

-13- (“In the absence of objections to a proposed sale, so long as

there is compliance with the notice and a hearing mandate by the

trustee . . . judicial involvement is not required and approval

by the bankruptcy judge of the sale is unnecessary.”). But

Berman's intervention did not itself doom the asset transfer;

after all, the court could have permitted the sale if it

believed that that course of action was in the estate's best

interest. See Jeremiah v. Richardson,

(1st Cir.

1998). In this case, the court determined that that was not so.

In light of the court's intervening exercise of discretion, even

if Berman's objection constituted a breach of some duty to the

DiStefanos, that breach did not “cause” harm, for it was the

action of the court which doomed the sale.

Nor may the DiStefanos rest their case on the

allegation that the appellees should have effected an earlier

sale of JFD's assets to insure that those assets would cover the

Bank's secured loan and the interests of other creditors as

well. It is not our role to second-guess a trustee's

determination not to sell an estate's assets at a given point in

time so long as that determination reflects the trustee's

business judgment:

The Bankruptcy Code designates the trustee as the representative of the estate. The trustee has ample discretion to administer the estate, including authority to conduct

-14- public or private sales of estate property. Courts have much discretion on whether to approve proposed sales, but the trustee's business judgment is subject to great judicial deference.

In re WPRV-TV, Inc.,

(D.P.R. 1991), vacated on

other grounds,

(D.P.R. 1992); see also In re Bakalis,

(Bankr. E.D.N.Y. 1998) (noting discretion

accorded to trustee with regard to sale of assets); In re

Thinking Machs. Corp.,

(D. Mass.) (emphasizing

“the high degree of deference usually afforded purely economic

decisions of trustees”), rev'd on other grounds,

(1st Cir. 1995). As the district court pointed out, the

DiStefanos presented no evidence regarding the price JFD's

assets would have commanded at any earlier sale and no evidence

that JFD's demise was or should have been a foregone conclusion

from the opening months of JFD's bankruptcy.9 Absent such

evidence, there would have no basis upon which to doubt a

trustee's business judgment.

B. Causation of Harm

9 Indeed, any suggestion that JFD's assets should have been sold earlier than May 1994 presupposes that the trustee should have known that the value of those assets would necessarily decline over time. That presupposition conflicts with the DiStefanos' assertion that JFD's losses proximately were caused by particular actions or inactions on the part of the appellees.

-15- We turn, then, to whether, considering the respective

value of JFD and of the Bank's loan when the assets were

actually sold, the DiStefanos can demonstrate that their harms

were caused by the appellees' misdeeds. They cannot.

The DiStefanos suggest that the appellees'

mismanagement resulted in JFD's losses, and hence in their own.

But the record makes clear, and there is no dispute, that JFD

was hemorrhaging value long before its bankruptcy filing. In

the three years preceding JFD's bankruptcy, while Century was

under Mr. DiStefano's management, the business lost a total of

$403,874. When JFD initiated bankruptcy proceedings, the

bankruptcy schedules indicated assets of $549,331.37 and

liabilities of $1,100,662 -- a negative net equity of over

$500,000.

By the time JFD's liquor license and personal property

were sold, the value of its assets was about $131,000. The

amount of the Bank's loan, meanwhile, had increased to over

$300,000. As we have stated, the harms claimed by the

DiStefanos consist of Mr. DiStefano's $50,000 liability on his

guaranty of JFD's loan from the Bank and Mrs. DiStefano's

forfeited junior interest in JFD's assets. These losses could

have been “caused” by the appellees' actions only if JFD's

assets, but for those actions, would have exceeded $250,000 at

-16- the time of the sale -- that is, if those actions caused at

least $119,000 in lost value. Otherwise, Mr. DiStefano would

have remained liable for the entire $50,000 he ultimately paid

on his guaranty, and the DiStefanos would have suffered the same

harms about which they now complain.10

The DiStefanos invite us to disregard JFD's prepetition

losses and to assume that any decline in JFD's value following

the initiation of bankruptcy proceedings must be attributed to

the appellees' purported malfeasance. This we cannot do. The

DiStefanos bear the burden of demonstrating that any particular

losses were attributable to the appellees. We thus review the

appellees' specific “misdeeds” to determine the most generous

loss figures that the DiStefanos might be able to prove at

trial.

The DiStefanos first contend that Century's business

declined precipitously during Dialessi's tenure as its manager.

10As noted, the Bank's loan in fact exceeded $300,000. Although the loan's balance was appreciating as time passed, we will use the $300,000 figure as the basis for our analysis. Greater indebtedness to the Bank would only have required that the appellee's acts caused even more damage in order for the DiStefanos to merit relief because the total difference between the Bank's claim and JFD's value would be correspondingly greater. Thus, our assumption of a $300,000 secured interest redounds in the DiStefanos' favor. Even assuming that the Bank's loan amounted to “only” $300,000, the DiStefanos cannot prove that their claimed losses resulted from the appellees' behavior.

-17- As the district court noted, however, given JFD's steep pre-

bankruptcy decline, the DiStefanos would be unable to link post-

bankruptcy losses to Dialessi's conduct, absent specific

allegations of mismanagement:

[T]he overwhelming and undisputed facts show that Century Liquor was in severe financial distress long before Dialessi became manager . . . . Following the commencement of the bankruptcy proceeding and the appointment of Dialessi as manager, the record does not reflect any significant decline in business different from the preexisting downward spiral that ended in bankruptcy.

DiStefano,

.

The DiStefanos next charge that Dialessi discontinued

the use of Century's computerized inventory monitoring system.

However, they offer no proof whatsoever linking this

discontinuance to any decline in JFD's value.

Mr. and Mrs. DiStefano also allege that Dialessi paid

himself $150 more per week than the Appointment Stipulation

authorized. As the bankruptcy and district courts noted, even

if this allegation were proven, the resulting loss would not

exceed $7000.

The DiStefanos further have asserted that Dialessi sold

a large quantity of premium wines for an unacceptably low price.

Mr. DiStefano first indicated that these wines were worth

$25,000, but later conceded they probably were worth only

-18- approximately $4000. The evidence indicates that they were sold

for about $2000. Giving the DiStefanos the (generous) benefit

of the doubt, we will assume for present purposes (without

finding) that the DiStefanos could prove that the wines were,

indeed, worth $25,000. Thus, we will assume a net loss of

$23,000 arising from the sale of these wines.

Next, the DiStefanos accuse Dialessi of neglecting to

pay Massachusetts employee withholding taxes. Joseph DiStefano

has testified, however, that he never was held personally liable

for the taxes and that attachments to secure their payment were

lifted. Neither was the estate held liable. Rather, Dialessi

remedied the tax problem himself, with no direct financial

consequences inuring either to the DiStefanos or to JFD.11

Finally, the appellants note that Dialessi paid

employees from an account dedicated to the proceeds of Century's

lottery ticket sales. They fail, however, to specify how this

action -- even if improper -- might relate to the decline in

JFD's value.

It is evident that the DiStefanos cannot escape summary

judgment, because they have no meaningful evidence that the

appellees' misconduct resulted in a loss of $119,000 or more in

11The DiStefanos contend that this failure required them to incur legal fees to defend an action brought by the Internal Revenue Service. We address this argument below in Part II.

-19- JFD's value. Even on summary judgment, we cannot credit

unsupported conjecture and speculation linking JFD's decline

under the appellees' stewardship to their actions, particularly

when JFD had endured similar deterioration in the period

preceding its bankruptcy. Even a generous accounting of the

appellees' specific misdeeds suggests that the DiStefanos could

prove, at most, a $30,000 loss resulting from those actions.12

This figure does not even approach the $119,000 loss the

DiStefanos would need to prove in order to establish causation.

Thus, the bankruptcy and district courts properly concluded that

the DiStefanos would be unable to prove that the appellees

caused them any harm.

II. Losses Associated with the IRS Suit for Taxes Not Withheld

The DiStefanos also argue that “after Dialessi failed

to pay certain payroll taxes,” Mr. DiStefano “was forced to

defend himself against” a government claim, and that this cost

would not have been incurred “but for Appellees' misconduct.”

This claim is distinct from their claim that the failure to

12 This figure comprises a $7000 loss arising from Dialessi's excessive salary and a $23,000 loss stemming from Dialessi's transfer of the premium wines. Of course, if we adopted the more likely loss figure for the latter -- $4000 in value minus the $2000 price, for a net $2000 loss -- the maximum loss figure the DiStefanos could prove would be closer to $9000.

-20- withhold taxes contributed to JFD's deteriorating value, see

Part I, supra, but it, too, fails.

First, irrespective of whether Stern could have

breached his fiduciary duties to the DiStefanos by forcing them

to incur legal fees, the DiStefanos have not submitted

sufficient evidence to conjure a “genuine issue” of fact with

respect to those fees. As noted above, "[t]he mere existence of

a scintilla of evidence in support of the plaintiff's position

will be insufficient; there must be evidence on which the jury

could reasonably find for the plaintiff." Liberty Lobby, 477

U.S. at 252. Here, there is not. The record evidence the

DiStefanos cite regarding this issue consists entirely of two

off-hand remarks Mr. DiStefano made at his deposition. In one

instance, referring to Dialessi's failure to pay income tax

withholdings, opposing counsel asked DiStefano, “So, [that

failure] hasn't caused any damage to you?” He responded, “Yes,

it did. It caused me tremendous emotional distress, legal

fees.” Later, counsel sought to confirm that any attachments

filed on the DiStefanos' property as a result of Dialessi's

actions ultimately were removed. DiStefano responded, “To the

best of my knowledge, after a long period of time and numerous

legal fees.” These remarks constitute the entirety of the

evidence on this matter. There is no indication of the

-21- magnitude of the fees referenced, nor of the precise context in

which they were incurred. Second, even if the DiStefanos

could point to sufficient evidence of harm to ground this claim,

they have failed to set forth any legal theory justifying an

award of damages. “We have steadfastly deemed waived issues

raised on appeal in a perfunctory manner, not accompanied by

developed argumentation.” United States v. Bongiorno,

(1st Cir. 1997); see also United States v. Rosario-

Perala,

, 563 n.4 (1st Cir. 1999) (quoting

Bongiorno); United States v. Salimonu,

, 74 n.10 (1st

Cir. 1999) (determining that appellant had waived an argument by

failing to develop it). Aside from the factual averment

described above and a single, unsupported assertion that Mr.

DiStefano “was forced to defend against [a government] claim,”

the DiStefanos' initial brief nowhere provides an argument that

the appellees owed them any duty relating to the legal fees at

issue. Their reply brief similarly mentions the harm, noting

that it would not have occurred but for the appellees' misdeeds,

but fails even to sketch a theory of liability upon which

recovery would be appropriate. At oral argument, the

DiStefanos' counsel cited the legal fees as an example of the

losses for which they were seeking relief, but again neglected

to link those losses to any duty on Dialessi's part. This

-22- argument, then, has not been developed to a degree sufficient to

warrant our consideration.

AFFIRMED. Costs to appellees.

-23-