Case 2:12-md-02311-SFC-RSW ECF No. 2138-6, PageID.39398 Filed 05/15/21 Page 1 of 10
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`EXHIBIT C
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 2138-6, PageID.39399 Filed 05/15/21 Page 2 of 10
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`TAYLOR v. KEYCORP
`Cite as 680 F.3d 609 (6th Cir. 2012)
`
`609
`
`about the murder because the victim was
`dead. This argument is procedurally de-
`faulted because Strouth failed to present it
`to the Tennessee courts. See Pudelski v.
`Wilson, 576 F.3d 595, 605 (6th Cir.2009).
`Strouth argued in state court that during
`voir dire the prosecution improperly com-
`mented on his right to remain silent, but
`he said nothing about closing argument.
`Strouth I, 620 S.W.2d at 471–72. Once
`more, even if it were not defaulted, the
`claim lacks merit. The prosecution’s dis-
`cussion of the lack of eyewitnesses to the
`crime was not a convoluted attempt to call
`attention to Strouth’s decision not to testi-
`fy; it was an effort to respond to a weak-
`ness in the State’s case—that no one saw
`Strouth kill Keegan.
` The Constitution
`does not prohibit this comment.
`
`IV.
`
`For these reasons, we affirm.
`
`,
`
`
`
`
`
`Ann I. TAYLOR; Elaine Klamert,
`Plaintiffs–Appellants/Cross–
`Appellees (10–4163/4198),
`
`Anthony S. Lobasso, Intervenor–
`Appellant (10–4199),
`
`v.
`
`rich; Robert L. Morris, Defendants–
`Appellees/Cross–Appellants
`(10–
`4163/4198), Defendants–Appellees (10–
`4199).
`
`Nos. 10–4163, 10–4198, 10–4199.
`
`United States Court of Appeals,
`Sixth Circuit.
`
`Argued: April 20, 2012.
`Decided and Filed: May 25, 2012.
`Background: Participants in employer’s
`retirement plan brought putative class ac-
`tion against employer and numerous indi-
`vidually named fiduciaries of the plan, as-
`serting breach of fiduciary duty claims
`based on allegation that the price of em-
`ployer’s stock was artificially inflated. The
`United States District Court
`for the
`Northern District of Ohio, Donald C. Nu-
`gent, J., denied defendant’s motion to dis-
`miss for failure to state a claim, granted
`defendants’ motion to dismiss for lack of
`subject-matter
`jurisdiction, 2010 WL
`3702423, and denied proposed intervenor’s
`motion to intervene. All parties appealed.
`Holdings: The Court of Appeals, Griffin,
`Circuit Judge, held that:
`(1) out-of-pocket
`loss was the correct
`method to measure plaintiffs’ damages;
`(2) plaintiffs’ gains and losses had to be
`netted to determine whether plaintiffs
`suffered an actual injury; and
`(3) as a matter of first impression, district
`court appropriately denied proposed
`intervenor’s motion to intervene, which
`was filed three days before plaintiffs’
`filing of their notice of appeal.
`Affirmed.
`
`KEYCORP; Thomas C. Stevens; Henry
`L. Meyers III; KeyCorp Trust Over-
`sight Committee; Jeffrey B. Weeden;
`Thomas W. Bunn; Thomas E. Helf-
`
`1. Federal Courts O776
`A court of appeals reviews a district
`court’s dismissal for lack of subject matter
`jurisdiction de novo.
`
`

`

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`610
`
`680 FEDERAL REPORTER, 3d SERIES
`
`2. Federal Courts O33
`In considering a motion to dismiss for
`lack of subject matter jurisdiction, a court
`may look beyond the jurisdictional allega-
`tions in the complaint and consider submit-
`ted evidence.
` Fed.Rules Civ.Proc.Rule
`12(b)(1), 28 U.S.C.A.
`
`3. Federal Courts O34
`On a motion to dismiss for lack of
`subject matter jurisdiction, the plaintiff
`bears the burden of establishing that juris-
`diction exists.
` Fed.Rules Civ.Proc.Rule
`12(b)(1), 28 U.S.C.A.
`
`4. Federal Civil Procedure O103.2
`In order to establish an injury in fact,
`for standing purposes, the plaintiff must
`have a personal stake in the dispute, alleg-
`ing an injury particularized as to him;
`stated more simply, a plaintiff must get
`something, other than moral satisfaction, if
`the plaintiff wins.
`
`5. Labor and Employment O662
`When a plaintiff alleges that the with-
`holding of
`information affected share
`prices in an ERISA action, the appropriate
`measure of damages is the difference be-
`tween the investment as taken and the
`investment as it would have been if not
`tainted by withheld information; to allow a
`plaintiff the benefit of an alternative, more
`lucrative investment, would not advance
`the policies underlying ERISA. Employee
`Retirement Income Security Act of 1974,
`§ 2 et seq., 29 U.S.C.A. § 1001 et seq.
`
`6. Labor and Employment O662
`Gains and losses stemming from a
`single breach of fiduciary duty under
`ERISA must be netted to determine
`whether plaintiff suffered an actual injury,
`for purposes of establishing standing.
`Employee Retirement Income Security
`Act of 1974, § 2 et seq., 29 U.S.C.A.
`§ 1001 et seq.
`
`7. Federal Civil Procedure O320
`Entry of final judgment, alone, is not
`a basis upon which to deny a motion to
`intervene.
`
`8. Federal Courts O681.1
`The filing of a notice of appeal is an
`event of jurisdictional significance, as it
`confers jurisdiction on the court of appeals
`and divests the district court of its control
`over those aspects of the case involved in
`the appeal.
`
`9. Federal Courts O681.1
`Following the filing of a notice to ap-
`peal, the district court does retain jurisdic-
`tion to enforce the judgment, or proceed
`with matters that are in aid of the appeal.
`
`10. Federal Civil Procedure O320
`District court appropriately denied
`proposed intervenor’s motion to intervene,
`which was filed after entry of final judg-
`ment, in plaintiffs’ putative class action
`under ERISA alleging breach of fiduciary
`duty against employer and other named
`fiduciaries of employer’s retirement plan;
`district court was not given sufficient op-
`portunity to address proposed intervenor’s
`motion to intervene prior to plaintiffs’ fil-
`ing of their notice of appeal three days
`later, and once such notice was filed, the
`district court was without jurisdiction to
`address the motion to intervene. Employ-
`ee Retirement Income Security Act of
`1974, § 2 et seq., 29 U.S.C.A. § 1001 et
`seq.
`
`ARGUED: Michael J. Klein, Stull, Stull
`& Brody, New York, New York, for Appel-
`lants. Daniel R. Warren, Baker & Hostet-
`ler LLP, Cleveland, Ohio, for Appellees.
`Thomas Tso, United States Department of
`Labor, Washington, D.C., for Amicus Curi-
`ae. ON BRIEF: Michael J. Klein, Edwin
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 2138-6, PageID.39401 Filed 05/15/21 Page 4 of 10
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`TAYLOR v. KEYCORP
`Cite as 680 F.3d 609 (6th Cir. 2012)
`
`611
`
`J. Mills, Stull, Stull & Brody, New York,
`New York, for Appellants.
` Daniel R.
`Warren, Scott C. Holbrook, James A. Sla-
`ter, David A. Carney, Gretchen L. Lange,
`Baker & Hostetler LLP, Cleveland, Ohio,
`for Appellees. Thomas Tso, Nathaniel I.
`Spiller, United States Department of La-
`bor, Washington, D.C., Paul Blankenstein,
`Gibson, Dunn & Crutcher LLP, Washing-
`ton, D.C., Brian T. Ortelere, Jeremy P.
`Blumenfeld, Morgan, Lewis & Bockius
`LLP, Philadelphia, Pennsylvania, for Amici
`Curiae.
`
`Before NORRIS, CLAY, and GRIFFIN,
`Circuit Judges.
`
`OPINION
`GRIFFIN, Circuit Judge.
`In this ERISA action for breach of fidu-
`ciary duty, plaintiff Ann Taylor appeals
`the district court’s dismissal of her com-
`plaint for lack of subject-matter jurisdic-
`tion. In the event that Taylor’s appeal is
`successful, defendants KeyCorp and nu-
`merous
`individually named
`fiduciaries
`(hereinafter referred to as ‘‘defendants’’)
`cross-appeal the district court’s denial of
`their motion to dismiss. In addition, An-
`thony S. Lobasso appeals the denial of his
`motion to intervene. Upon review, we af-
`firm the dismissal of Taylor’s complaint for
`lack of subject-matter jurisdiction and the
`denial of Lobasso’s motion to intervene.
`We do not address the denial of defen-
`dants’ motion to dismiss because it is moot.
`
`I.
`Taylor filed this action on behalf of her-
`self and a class of similarly-situated partic-
`ipants and beneficiaries of the KeyCorp
`401(k) Savings Plan (the ‘‘Plan’’) on August
`11, 2008. She brought this class action
`pursuant to §§ 409 and 502 of the Employ-
`ee Retirement
`Income Security Act
`(‘‘ERISA’’), 29 U.S.C. §§ 1109, 1132,
`
`against defendants KeyCorp and numer-
`ous individually named fiduciaries of the
`Plan. On January 7, 2009, the district court
`ordered that Taylor’s lawsuit be consoli-
`dated with a similar action, and thereafter,
`Taylor and plaintiff Elaine Klamert filed a
`consolidated class action complaint. The
`consolidated complaint defines the pro-
`posed class as ‘‘[a]ll persons who were
`participants in or beneficiaries of the Plan
`whose Plan accounts included investments
`in KeyCorp common stock TTT at any time
`between December 31, 2006[,] and the
`present[.]’’
`Taylor and Klamert assert five claims.
`In Count I, plaintiffs allege that defen-
`dants breached their fiduciary duties by
`failing to prudently manage the Plan’s in-
`vestment in KeyCorp securities. In Count
`II, plaintiffs allege that defendants failed
`to adequately inform participants about
`the true risk of investing in KeyCorp
`stock. In Count III, plaintiffs allege that
`certain defendants breached their fiduciary
`duties by failing to adequately monitor the
`management and administration of Plan
`assets. In Count IV, plaintiffs allege that
`certain defendants failed to avoid imper-
`missible conflicts of interest. Finally, in
`Count V, plaintiffs allege that certain de-
`fendants are liable for the breaches of
`fiduciary duty committed by their co-fidu-
`ciaries.
`defendants
`consolidation,
`Following
`moved to dismiss the complaint pursuant
`to Federal Rule of Civil Procedure
`12(b)(6). The district court denied the mo-
`tion. Thereafter, defendants moved to dis-
`miss for lack of subject-matter jurisdiction
`pursuant to Federal Rule of Civil Proce-
`dure 12(b)(1), arguing that neither Taylor
`nor Klamert sustained an ‘‘actual injury’’
`sufficient to confer Article III standing.
`In response, plaintiffs’ counsel asserted
`that Taylor did sustain an injury, forfeiting
`any argument with regard to Klamert.
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 2138-6, PageID.39402 Filed 05/15/21 Page 5 of 10
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`612
`
`680 FEDERAL REPORTER, 3d SERIES
`
`Upon review, the district court held that
`Taylor did not suffer actual injury because
`she had
`‘‘benefitted’’ from the alleged
`breaches of fiduciary duty, which allowed
`her to sell the majority of her KeyCorp
`holdings at an inflated price. Final judg-
`ment was entered on August 12, 2010.
`On September 10, 2010, Anthony S. Lo-
`basso moved to intervene as a plaintiff and
`class representative under Federal Rule of
`Civil Procedure 24. Three days later, on
`September 13, 2010, plaintiffs filed their
`notice of appeal. Based upon the district
`court’s entry of final judgment, Lobasso’s
`motion was denied.
` Thereafter, defen-
`dants filed a cross-appeal challenging the
`denial of their motion to dismiss, and Lo-
`basso filed an appeal of the denial of his
`motion to intervene.
`
`II.
`[1–3] We review a district court’s dis-
`missal pursuant to Federal Rule of Civil
`Procedure 12(b)(1) de novo. Gentek Bldg.
`Prods., Inc. v. Sherwin–Williams Co., 491
`F.3d 320, 324 (6th Cir.2007). In consider-
`ing a Rule 12(b)(1) motion, we may look
`beyond the jurisdictional allegations in the
`complaint and consider submitted evi-
`dence. Id. at 330. The plaintiff bears the
`burden of establishing that jurisdiction ex-
`ists. Nichols v. Muskingum Coll., 318
`F.3d 674, 677 (6th Cir.2003).
`
`III.
`‘‘No principle is more fundamental to
`the judiciary’s proper role in our system of
`government than the constitutional limita-
`tion of federal-court jurisdiction to actual
`cases or controversies.’’ Simon v. E. Ky.
`
`1. For purposes of establishing standing, Tay-
`lor seeks to recast her complaint as one not
`alleging artificial inflation. This attempt is
`disingenuous at best. The complaint clearly
`alleges that KeyCorp stock was artificially in-
`flated. (‘‘During the Class Period the market
`
`Welfare Rights Org., 426 U.S. 26, 37, 96
`S.Ct. 1917, 48 L.Ed.2d 450 (1976). And,
`an important element of the case-or-con-
`troversy requirement is that plaintiff have
`standing to sue. Raines v. Byrd, 521 U.S.
`811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849
`(1997). In order to establish standing, a
`plaintiff must allege: (1) ‘‘injury in fact,’’
`(2) ‘‘a causal connection between the injury
`and the conduct complained of,’’ and (3)
` Lujan v. Defenders of
`redressability.
`Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130,
`119 L.Ed.2d 351 (1992) (internal quotation
`marks and citations omitted).
`
`[4] To establish an ‘‘injury in fact,’’ the
`plaintiff must be ‘‘among the injured.’’ Id.
`at 563, 112 S.Ct. 2130 (internal quotation
`marks and citation omitted). Accordingly,
`the plaintiff must have a ‘‘personal stake’’
`in the dispute, alleging an injury ‘‘particu-
`larized as to him.’’ Raines, 521 U.S. at
`819, 117 S.Ct. 2312. Stated more simply,
`‘‘a plaintiff [must get] something (other
`than moral satisfaction) if the plaintiff
`wins.’’ Drutis v. Rand McNally & Co.,
`499 F.3d 608, 612 (6th Cir.2007).
`
`IV.
`
`Taylor asserts that during the class pe-
`riod, defendants breached their fiduciary
`duties by failing to disclose and/or misrep-
`resenting KeyCorp’s inappropriate lending
`and tax practices.
` This, she alleges,
`caused KeyCorp stock to become unduly
`risky and artificially inflated.1 However,
`in order to have standing to pursue this
`lawsuit, Taylor must establish that she was
`actually
`injured by defendants’ alleged
`conduct. This she has failed to do.
`
`price of KeyCorp common stock was artifi-
`cially inflated due to the concealment of
`KeyCorp’s true financial and operating con-
`dition[.]’’). Taylor cannot avoid the conse-
`quences of this allegation at this juncture.
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 2138-6, PageID.39403 Filed 05/15/21 Page 6 of 10
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`TAYLOR v. KEYCORP
`Cite as 680 F.3d 609 (6th Cir. 2012)
`
`613
`
`Taylor’s relevant trading history was
`summarized by the district court as fol-
`lows:
`[A]s of December 31, 2006, the begin-
`ning of the class period, [Taylor] owned
`1,678.32 units of the Key stock fund.
`Ms. Taylor sold all of those units on
`January 11, 2007, when Key stock was
`trading at over $37 per share. Key
`stock reached its peak price of $39.90
`per share on February 22, 2007. Fol-
`lowing her sale of Key stock in January,
`2007, Ms. Taylor never purchased anoth-
`er unit in the Key stock fund. She did
`acquire an additional 387.31 units in Key
`stock through Key’s matching program.
`On February 22, 2008, she sold 268.01 of
`those units and sold the remainder of
`her 119.30 units of Key stock fund on
`June 25, 2008. Overall, Ms. Taylor sold
`her Key stock for more money than she
`actually paid for it, earning a net profit
`of $6,317.
`This trading history reveals that Taylor
`sold over 80% of her KeyCorp holdings at
`a time she claims the stock was artificially
`inflated. Accordingly, if the allegations in
`the complaint are true, Taylor sold the
`majority of her KeyCorp holdings for more
`money than it was worth, thereby benefit-
`ting from defendants’ alleged breach of
`fiduciary duty.
`Under similar circumstances, several
`courts have found plaintiffs to be without
`Article III standing, holding that plaintiffs
`suffer no ‘‘actual injury’’ when they benefit
`
` See
`inflation.
`from alleged artificial
`Brown v. Medtronic, Inc., 628 F.3d 451,
`455–59 (8th Cir.2010); In re Bos. Scientific
`Corp. ERISA Litig., 254 F.R.D. 24, 30–32
` Vermeylen v. ProQuest
`(D.Mass.2008);
`Co., No. 06–12327, 2007 WL 1218713, at *5
`(E.D.Mich. Apr. 23, 2007). Such a finding
`is based on common sense.
`If TTT [the] stock was artificially inflat-
`ed, then any Plan participants who pur-
`chased company stock during the period
`of inflation overpaid for the stock units
`and would have a claim to benefits equal
`to the amount overpaid. A Plan partici-
`pant who sold company stock during
`that same period, on the other hand,
`received ‘‘too much’’ for the units and
`benefitted [from] the inflation according-
`ly.
`In re Boston Scientific, 254 F.R.D. at 31
`(footnote omitted).2
`Supreme Court precedent also supports
`this rationale. In Dura Pharmaceuticals,
`Inc. v. Broudo, 544 U.S. 336, 125 S.Ct.
`1627, 161 L.Ed.2d 577 (2005), the Court
`held that ‘‘an inflated purchase price will
`not itself constitute TTT economic loss.’’
`Id. at 342, 125 S.Ct. 1627. Rather, stock
`must be purchased at an inflated price and
`sold at a loss for an economic injury to
`occur. Id. This reasoning was described
`by the Court as ‘‘pure logic,’’ and while
`Dura was decided in the securities-fraud
`context,
`its common-sense analysis
`is
`equally applicable here.3
`
`2. Similarly, several courts have found plain-
`tiffs to be without Article III standing when
`the alleged breaches of fiduciary duty resulted
`in no economic harm. See Harley v. Minn.
`Mining & Mfg. Co., 284 F.3d 901, 906–07 (8th
`Cir.2002) (holding that an ERISA plaintiff
`lacked standing because the plan portfolio
`had a surplus and thus did not experience
`actual injury); Piazza v. EBSCO Indus., Inc.,
`273 F.3d 1341, 1354 (11th Cir.2001) (holding
`that plaintiff lacked Article III standing when
`the alleged breach of fiduciary duty ‘‘if any-
`
`increased his retirement distribu-
`
`thing,
`tions’’).
`
`3. Taylor contends that there is a difference
`between ‘‘actual injury’’ for purposes of Arti-
`cle III standing and damages. We agree.
`However, ‘‘[i]n most cases TTT a plaintiff’s
`standing tracks [her] cause of action. That is,
`the question whether [s]he has a cognizable
`injury sufficient to confer standing is closely
`bound up with the question of whether and
`how the law will grant [her] relief.’’ Braden v.
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 2138-6, PageID.39404 Filed 05/15/21 Page 7 of 10
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`614
`
`680 FEDERAL REPORTER, 3d SERIES
`
`Taylor disputes that out-of-pocket loss is
`an appropriate measure of her injury, sug-
`gesting that we use an alternative-invest-
`ment theory. Specifically, Taylor claims
`that she would have made more money on
`her investments if her holdings had been
`transferred away from KeyCorp stock and
`placed in the S & P 500 index. We hold
`that such a measure of damages is not
`appropriate in this case.
`[5] When a plaintiff alleges that the
`withholding of information affected share
`prices, ‘‘the appropriate measure of dam-
`ages [is] the difference between the invest-
`ment as taken and the investment as it
`would have been if not tainted by withheld
`information.’’ Brown, 628 F.3d at 458.
`But damages based upon an entirely dif-
`ferent investment vehicle, such as the S &
`P 500, are not fairly ‘‘traceable’’ to the
`defendants’ breach. Id. Indeed, to allow
`plaintiffs the benefit of an alternative,
`more lucrative investment, would not ad-
`vance the policies underlying ERISA. See
`Benefits Comm. of Saint–Gobain Corp. v.
`Key Trust Co. of Ohio, N.A., 313 F.3d 919,
`932 (6th Cir.2002) (‘‘The purpose of the[ ]
`ERISA safeguards was not to obtain wind-
`falls for the participants but [to] ensure
`that the rights promised by a company
`were fulfilled.’’).
`In advocating for an alternative-invest-
`ment measure of loss, Taylor relies on
`several cases providing that plaintiffs are
`‘‘entitled to a remedy which will put [them]
`in the position in which [they] would have
`been if the trustee had not committed the
`breach.’’ 4 Warren v. Soc’y Nat’l Bank,
`905 F.2d 975, 979 (6th Cir.1990) (internal
`
`Wal–Mart Stores, Inc., 588 F.3d 585, 591 (8th
`Cir.2009). Here, where Taylor derived a ben-
`efit from defendants’ alleged breaches of fidu-
`ciary duty, we do not see how she can allege
`any form of ‘‘actual injury.’’
`
`4. In asserting entitlement to an alternative-
`investment measure of loss, Taylor also relies
`on a footnote in LaRue v. DeWolff, Boberg &
`
`quotation marks and citation omitted), ab-
`rogated on other grounds; see also Boland
`v. Chrysler Corp., 933 F.2d 1007, 1991 WL
`85297, at *2 (6th Cir.1991) (per curiam)
`(unpublished table decision) (‘‘[O]ther dam-
`ages may be recoverable if necessary to
`place the beneficiary in the same position
`he would have been in had the fiduciary
`not breached his duties.’’). However, Tay-
`lor would have made less money on her
`KeyCorp investments if defendants had
`not committed their alleged violations of
`ERISA. In addition, Taylor relies on a
`few out-of-circuit cases that expressly
`adopt an alternative-investment damages
`calculation. See Evans v. Akers, 534 F.3d
`65, 74 (1st Cir.2008); Donovan v. Bier-
`wirth, 754 F.2d 1049, 1056 (2d Cir.1985).
`But these cases do not involve claims of
`artificial inflation from which the plaintiff
`ultimately benefitted. Indeed, while Don-
`ovan adopted an alternative-investment
`theory for some ERISA claims, it express-
`ly noted that out-of-pocket loss is the cor-
`rect measure of damages when information
`is improperly withheld, resulting in artifi-
`cial inflation. 754 F.2d at 1054–55 (‘‘In
`such cases, it may well be that the best
`measure of damages is one that awards
`the plaintiff the difference between what
`was paid for the stock, and what would
`have been paid had the plaintiff been
`aware of the concealed information.’’). Ac-
`cordingly, Taylor cannot establish actual
`injury through an alternative-investment
`theory.
`
`V.
`Taylor and the Department of Labor (as
`amicus curiae) assert that, even if the cor-
`
`Associates, Inc., 552 U.S. 248, 128 S.Ct. 1020,
`169 L.Ed.2d 847 (2008), which states that
`ERISA plaintiffs are entitled to ‘‘lost profits.’’
`Id. at 253 n. 4, 128 S.Ct. 1020. LaRue, howev-
`er, did not involve a claim of artificial infla-
`tion where the plaintiff actually benefitted
`from the alleged breach of fiduciary duty.
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 2138-6, PageID.39405 Filed 05/15/21 Page 8 of 10
`
`TAYLOR v. KEYCORP
`Cite as 680 F.3d 609 (6th Cir. 2012)
`
`615
`
`rect measure of her injury is out-of-pocket
`loss, Taylor has still established ‘‘actual
`injury’’ sufficient to confer Article III
`standing because she suffered a loss on the
`KeyCorp stock she obtained through Key-
`Corp’s matching program.
` Specifically,
`they argue that, even if Taylor benefitted
`from the alleged artificial inflation with
`regard to her January 2007 sale, the
`shares she obtained thereafter were pur-
`chased at an inflated price and sold at a
`loss. The question is, then, whether Tay-
`lor’s gains and losses during the class peri-
`od must be netted to determine whether
`she suffered actual injury. We hold that
`netting is required in this case.
`[6] The fiduciary duties outlined
`in
`ERISA draw upon the common law of
`trusts. See Varity Corp. v. Howe, 516
`U.S. 489, 496, 116 S.Ct. 1065, 134 L.Ed.2d
`130 (1996). This common law supports the
`netting of gains and losses stemming from
`a single breach of fiduciary duty. Restate-
`ment (Second) of Trusts § 213 (‘‘A trustee
`who is liable for a loss occasioned by one
`breach of trust cannot reduce the amount
`of his liability by deducting the amount of
`a gain which has accrued through another
`and distinct breach of trust; but if the two
`breaches of trust are not distinct, the trus-
`tee is accountable only for the net gain or
`chargeable only with the net loss resulting
`therefrom.’’); see also id. cmts. f, h. In-
`
`deed, other courts adopting an out-of-pock-
`et measure of loss have netted the plain-
`tiff’s gains and losses stemming from one
`indivisible breach of
`fiduciary duty.
`Brown, 628 F.3d at 455 (‘‘[W]e agree with
`the district court that, at a minimum, a
`plaintiff must allege a net loss in invest-
`ment value that is fairly traceable to the
`defendants’ challenged actions.’’); In re
`Bos. Scientific, 254 F.R.D. at 31 (‘‘Even
`assuming that the units [plaintiffs] pur-
`chased during the Class Period were nega-
`tively affected by Boston Scientific’s fail-
`ure to disclose, any loss by those shares
`was more than made up for by the artifi-
`cially high return on their investment in
`units purchased before the Class Period
`began.’’).
`
`Here, Taylor asserts that defendants
`beached their fiduciary duties by conceal-
`ing KeyCorp’s ‘‘true financial and operat-
`ing condition,’’ rendering KeyCorp stock
`an imprudent investment throughout the
`class period. She does not allege separate
`breaches causing separate damages. Ac-
`cordingly, all gains and losses during the
`class period, attributable to one course of
`conduct, should be netted.5 When such
`netting is done, it is clear that Taylor has
`suffered no actual injury. Accordingly,
`Taylor does not have standing to pursue
`this lawsuit.6
`
`5. Taylor further asserts that even if the cor-
`rect measure of actual injury is out-of-pocket
`losses, and even if her gains and losses are
`netted, there is a question of fact regarding
`whether her gains in the beginning of the
`class period were greater than her losses at
`the end of the class period. This argument,
`however, was not placed before the district
`court and is therefore forfeited. See Blue
`Cross & Blue Shield Mut. of Ohio v. Blue
`Cross & Blue Shield Ass’n, 110 F.3d 318, 335
`(6th Cir.1997); United States ex rel. Ramseyer
`v. Century Healthcare Corp., 90 F.3d 1514,
`1518 n. 2 (10th Cir.1996) (‘‘Our duty to con-
`sider unargued obstacles to subject matter
`jurisdiction does not affect our discretion to
`
`decline to consider waived arguments that
`might have supported such jurisdiction.’’).
`
`6. The Department of Labor asserts that Taylor
`has standing to pursue her claims, even in the
`absence of injury, simply because defendants
`breached duties owed to her pursuant to
`ERISA. This argument, however, was not
`raised by the parties in their appellate briefs.
`Accordingly, we will not consider this issue.
`Cellnet Commc’ns, Inc. v. FCC, 149 F.3d 429,
`443 (6th Cir.1998) (‘‘While an amicus may
`offer assistance in resolving issues properly
`before a court, it may not raise additional
`issues or arguments not raised by the par-
`ties.’’).
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 2138-6, PageID.39406 Filed 05/15/21 Page 9 of 10
`
`616
`
`680 FEDERAL REPORTER, 3d SERIES
`
`VI.
`
`On September 10, 2010, Lobasso moved
`to intervene as a plaintiff and class repre-
`sentative. Three days later, Taylor filed
`her notice of appeal. The district court
`thereafter denied Lobasso’s motion to in-
`tervene, holding that because the underly-
`ing action was terminated, the motion was
`untimely.
`
`[7]
`‘‘We may affirm the district court’s
`judgment on any ground supported by the
`record, including on a basis not mentioned
`in the district court’s opinion.’’ Westfield
`v. Fed. Republic of Ger., 633 F.3d 409, 413
`(6th Cir.2011). In this case, the district
`court was correct to deny the motion to
`intervene, not because final judgment had
`been entered, but because once a notice of
`appeal was filed, the district court was
`divested of jurisdiction.7
`
`[8, 9]
`‘‘The filing of a notice of appeal
`is an event of jurisdictional significance-it
`confers jurisdiction on the court of appeals
`and divests the district court of its control
`over those aspects of the case involved in
`the appeal.’’ Griggs v. Provident Consum-
`er Disc. Co., 459 U.S. 56, 58, 103 S.Ct. 400,
`74 L.Ed.2d 225 (1982); see also United
`States v. Garcia–Robles, 562 F.3d 763,
`767–68 (6th Cir.2009). Accordingly, we
`have held that a notice of appeal divests
`the district court of jurisdiction to resolve
`a motion to intervene filed after a notice of
`appeal. Bowling v. Pfizer, Inc., 14 F.3d
`
`7. Entry of final judgment, alone, is not a basis
`upon which to deny a motion to intervene.
`See United Airlines, Inc. v. McDonald, 432
`U.S. 385, 394–96, 97 S.Ct. 2464, 53 L.Ed.2d
`423 (1977) (holding that a motion to inter-
`vene, filed after final judgment, should have
`been granted).
`
`8. Following the filing of a notice to appeal,
`the district court does retain jurisdiction to
`enforce the judgment, City of Cookeville, Tenn.
`v. Upper Cumberland Elec. Membership Corp.,
`
`600, 1993 WL 533620, at *1 (6th Cir.1993)
`(unpublished table decision).8
`
`[10] Lobasso argues that, unlike Bowl-
`ing, the motion to intervene in this case
`was filed before the notice of appeal, there-
`by allowing the court to consider the mo-
`tion. In addressing this question of first
`impression, we find the reasoning of Roe v.
`Town of Highland, 909 F.2d 1097 (7th
`Cir.1990), to be persuasive. In Roe, a
`proposed intervenor filed a motion to in-
`tervene on the same day a notice of appeal
`was filed. Id. at 1098. Acknowledging
`that a timely post-judgment motion to in-
`tervene may not always be resolved before
`a notice of appeal is due 9, the Seventh
`Circuit noted that one seeking to intervene
`is not without recourse. She ‘‘can file an
`emergency motion with the district court
`detailing the need for a ruling so that a
`timely appeal may be taken. [Or], the
`district court may enlarge the time for
`filing an appeal,’’ as set forth in Federal
`Rule of Appellate Procedure 4(a)(5). Id.
`at 1099. Accordingly, the Roe court found
`that the district court’s denial of the mo-
`tion to intervene was appropriate. Id. at
`1100; see also Drywall Tapers & Pointers
`of Greater New York, Local Union 1974 of
`I.U.P.A.T., AFL–CIO v. Nastasi & Assocs.
`Inc., 488 F.3d 88, 94 (2d Cir.2007) (affirm-
`ing denial of motion to intervene for lack
`of jurisdiction when intervention motion
`was not ruled upon before the filing of a
`notice of appeal); Nicol v. Gulf Fleet Sup-
`
`484 F.3d 380, 394 (6th Cir.2007), or proceed
`with matters that are in aid of the appeal.
`Inland Bulk Transfer Co. v. Cummins Engine
`Co., 332 F.3d 1007, 1013 (6th Cir.2003).
`Such enforcement or aid, however, is not
`what Lobasso requested in moving to inter-
`vene.
`
`9. Following entry of final judgment, the par-
`ties have 30 days in which to file a notice of
`appeal. Fed. R.App. P. 4(a)(1)(A).
`
`

`

`Case 2:12-md-02311-SFC-RSW ECF No. 2138-6, PageID.39407 Filed 05/15/21 Page 10 of 10
`
`REILLY v. VADLAMUDI
`Cite as 680 F.3d 617 (6th Cir. 2012)
`
`617
`
`ply Vessels, Inc., 743 F.2d 298, 298–99 (5th
`Cir.1984) (same).10
`In this case, Lobasso did not file an
`emergency motion, nor did his counsel (the
`same counsel representing Taylor) request
`additional time in which to file a notice of
`appeal. In addition, there is nothing in
`the record indicating why Lobasso waited
`until September 2010 to intervene. Once
`the Rule 12(b)(1) motion was filed, Lobas-
`so was on notice that Taylor may not be an
`adequate class representative. Therefore,
`a precautionary motion to intervene could
`have been filed.
`Lobasso relies on a handful of cases that
`allowed a motion to intervene to be decid-
`ed after final
`judgment was entered.
`However, in most of these cases, no notice
`of appeal was filed to divest the district
`court of jurisdiction. See United Airlines,
`Inc. v. McDonald, 432 U.S. 385, 97 S.Ct.
`2464, 53 L.Ed.2d 423 (1977) (allowing post-
`judgment intervention for purposes of ap-
`peal); Linton ex rel Arnold v. Comm’r of
`Health & Env’t, State of Tenn., 973 F.2d
`1311 (6th Cir.1992) (same).11 Moreover, in
`Triax Co. v. TRW, Inc., 724 F.2d 1224 (6th
`Cir.1984), the issue of subject-matter juris-
`diction was never addressed. Accordingly,
`Triax has no precedential effect. Sprint
`Commc’ns Co., L.P. v. APCC Servs., Inc.,
`554 U.S. 269, 312, 128 S.Ct. 2531, 171
`L.Ed.2d 424 (2008).
`
`10. Lobasso asserts that the district court had
`discretion to retain jurisdiction over pending
`motions, citing Dixon v. Clem, 492 F.3d 665
`(6th Cir.2007). The holding of Dixon, howev-
`er, applies only to motions listed in Federal
`Rule of Appellate Procedure 4(a)(4), which a
`motion to intervene is not. Id. at 679.
`
`11. The Third Circuit has held a district court
`to have jurisdiction to consider a motion to
`intervene after a notice of appeal is filed.
`Halderman v. Pennhurst State Sch. & Hosp.,
`612 F.2d 131, 134 (3d Cir.1979). This hold-
`ing, however, was based upon an erroneous
`interpretation of McDonald, as noted by the
`
`In the case at bar, the district court was
`not given sufficient opportunity to address
`the motion to intervene prior to the filing
`of the notice of appeal. Once such notice
`was filed, the district court was without
`jurisdiction to address the motion. Ac-
`cordingly, the district court did not err in
`denying Lobasso’s motion to intervene.12
`
`VII.
`
`For the foregoing reasons, we affirm the
`district court’s order dismissing Taylor’s
`complaint for lack of subject-matter juris-
`diction. In addition, we affirm the denial
`of Lobasso’s motion to intervene. We de-
`cline to address all other issues on appeal
`as moot.
`
`,
`
`
`
`
`
`Joshua REILLY, Plaintiff–Appellee,
`
`v.
`
`Seetha VADLAMUDI and Phillip
`Payne, Defendants–
`Appellants,
`
`Fifth Circuit in Avoyelles Sportsmen’s League,
`Inc. v. Marsh, 715 F.2d 897, 928–29 (5th
`Cir.1983).
`
`12. While the district court did not have juris-
`diction to address the motion to intervene,
`this court may, in its discretion, remand the
`matter back to the district court to address
`the motion. Roe, 909 F.2d at 1099–1100.
`However, because Lobasso failed to give the
`district court sufficient time to address the
`motion, and because he failed to take any
`reasonable action to allow for the district
`court’s consideration, we decline to remand.
`
`