Investor in Tech Start-Up Pursues Securities Claims

negligent misrepresentation with the particularity fed. r. civ. p. 9(b) requires, and trooien has failed to present any statements or omissions of material fact to support projections to trooien, which predicted that sproqit would receive $44,100 in after the district court's dismissal order, trooien's surviving misrepresentation -18- negligent misrepresentation claim plead particularized facts showing that the mansour described the revenue projections to trooien as a "first cut," cautioning that misrepresentation claim. i agree trooien failed to plead many of his allegations of roitblat. he alleged that mansour and roitblat breached their fiduciary duties by an opinion, and is too "general and indefinite" to be a representation of fact. martens the district court granted roitblat's motion in its entirety and mansour's motion in addition to the contracts with archos and bell mobility, trooien says that generally. see parnes v. gateway 2000, inc., 122 f.3d 539, 550 (8th cir. conclude that claims arising under § 80a.01(b) require only a showing of negligence. defendants - appellees. * roitblat. we agree that the claims against roitblat fail to satisfy rule 9(b). trooien ___________ by late 2005 the relationship between trooien, mansour, and roitblat began minn. stat. § 80a.01.2 not that mansour had used the specific words "absolute fact." trooien argues that the althoughtheminnesotacaseson§80a.01subsequenttosprangersmayappear completely. cf. sec v. fitzgerald, 135 f. supp. 2d 992, 1029 (n.d. cal. 2001) fact these contracts were not as profitable as expected is not sufficient to demonstrate 80a.01(b). the district court dismissed the claims after concluding that § 80a.01(b) northwest underwriters, inc., 875 p.2d 637, 640 (wash. ct. app.1994). trooien has riley, chief judge, concurring in part and dissenting in part. information for the guidance of others in their business transactions" and in doing so a draft. i think we were clear on that. now we continue to work to be profitable by roitblat resigned on march 1, 2006, and mansour resigned on march 6. the rule 9(b)'s particularity requirements. we agree that mansour's statement that he material fact susceptible of knowledge; (2) made with knowledge of the mansour emailed trooien to let him know that it appeared the acquisition discussions since the district court did not apply a negligence standard in analyzing trooien's v. minn. min. & mfg. co., 616 n.w.2d 732, 747 (minn. 2000). supreme court adopted what is now the restatement (second) of torts (restatement) misrepresentation claim. light most favorable to the nonmoving party. dunning v. bush, 536 f.3d 879, 885 arhos contract. showing how mansour's november 2005 statement was "false information." smith, (b) to make any untrue statement of a material fact or to omit to state financial sec., inc., 2000 wl 1809048, *4 (minn. ct. app. dec. 12, 2000) loyalty, or violated the duty to act in good faith. id. at 1233. developing mobile communications software for use with wireless devices. by late september 2005, mansour wrote to trooien, "i refuse to let this thing die before i ship trooien'ssecondmisrepresentationclaimwasbasedonmansour'sallegedfalse july, but i want my official projections to be conservative." sproqit failed to meet any which would generate substantial revenue; and (3) his predictions of future revenue to trooien's amended complaint, mansour told him that microsoft had a "green light" accept trooien's newly raised assertion that the district court misread his complaint, and breach of fiduciary duty, arising from trooien's investment in sproqit. the material fact as to whether mansour misrepresented to him that sproqit would be working with sproqit and also inquired about acquisition. i don't know court at either the motion to dismiss or summary judgment stage. even if we were to positive but that microsoft had to conduct due diligence. the following month specifically alleged statements that it was an "absolute fact" that sproqit would be sproqit was a washington based technology start up company. mansour is the bennett, 685 f.2d at 1062. district court dismissed several of the securities and misrepresentation claims in of the minnesota securities act (msa), negligent and fraudulent misrepresentation, -8- is consistent with that reached by the majority of state courts to have interpreted a misrepresentation pleadings under the particularity requirements of rule 9(b). says the good news is that [another microsoft agent] really took to my last email to otherwise violated mansour's fiduciary duties. in bonhiver v. graff, 248 n.w.2d 291, 298-99 (minn. 1976), the minnesota and the royalties the company would receive from the sale of those products. it later is entitled to judgment as a matter of law." fed. r. civ. p. 56(c). as true all facts alleged in the complaint. noble sys. corp. v. alorica central, llc., him to relief." knapp v. hanson, 183 f.3d 786, 788 (8th cir. 1999). we also review "refuse[d] to let this thing die" cannot be characterized as an untrue statement of "past trooien, are required to discharge their duties in good faith, with the care an ordinarily acquired. considered an allegation of fraud which must be pled with particularity. juster steel trooien decided not to fund sproqit's payroll for the month of february 2006. -2- the final set of misrepresentation claims pursued by trooien arose from trooien's amended complaint for failure to plead with particularity, see fed. r. civ. is not an actionable claim for fraudulent misrepresentation. id. nor is it sufficient to same legal claims as the first and added a breach of fiduciary duty claim against both granted summary judgment to mansour after determining that the statement was true; actionable misrepresentations under minnesota law. it is undisputed that mansour transactions." smith v. brutger cos., 569 n.w.2d 408, 413 n.3 (minn. 1997). v. microsoft." trooien asserts that these statements were false statements of "past or these deals [included in the projections] may not occur." defendant "supplie[d] false information for the guidance of others in their business trooien's first negligent and fraudulent misrepresentation claim was based on 3 -3- former executive officers of sproqit technologies, inc. (sproqit), alleging violations court of appeals for the eighth circuit on april 1, 2010. 569 n.w.2d at 413 n.3. in fact the later email from archos to mansour demonstrates rendered the statement misleading, and mansour potentially negligent for failing to representations." bennett v. berg, 685 f.2d 1053, 1062 (8th cir. 1982).3 ___________ majority recognizes, § 552 does not require proof of scienter but instead only requires representation to trooien that sproqit had "contracts in place" with bell mobility, the acquired by microsoft. in all other respects, i concur. pleading requirements of rule 9(b) and minnesota law. duty claim, trooien must provide sufficient evidence that mansour and roitblat his representation claims are subject to the pleading requirements of rule 9(b), which a statute is "devoid of any suggestion whatsoever of a scienter requirement," it follows has recognized "[a] misrepresentation may be made . . . by concealing or not mansour refused to give him access to any details about the company's software 2003 sproqit was running out of funding. the company was still in the process of the district court failed to apply or even acknowledge any of the language according to trooien's complaint, mansour sent him a revenue forecast for sproqit, characterized by trooien, mansour remains entitled to summary judgment on the elements of a negligent misrepresentation claim differ from fraudulent again asserts that he was not made aware of the nature of this contract. mobility, and revenue projections based on either of those statements. the court guess" who was "responsible for the alleged fraud"). claims. trooien asserts that mansour and roitblat further misled him with respect to have required sproqit to fulfill its contract. that mansour repeatedly cautioned trooien that the microsoft deal was in the 1997)(finding pleading insufficient under rule 9(b) where defendants were "left to later this week. does not satisfy the requirements of rule 9(b), as it fails to specifically describe the statement or supplied false information with regard to the microsoft acquisition which at first glance to be in conflict because the subparts of the statute are not always trooien also brought breach of fiduciary duty claims against mansour and a manner the director reasonably believes to be in the best interests of the corporation. not provided sufficient evidence to show that any of mansour's statements in respect began funding sproqit's monthly expenses, including payroll. he subsequently trooien subsequently filed this action against mansour and roitblat, alleging whatsoever of a scienter requirement." aaron v. securities and exchange fiduciary duty and negligent and fraudulent misrepresentation claims, but we reverse sproqit'srelationshipwithbellmobility,anothermanufacturerofproductscompatible 217, 220­21 (minn. ct. app. 1989) ("a representation or expectation as to future misrepresentation claim under minnesota law, a plaintiff must prove: claims, arguing that there is no scienter requirement in § 80a.01(b). relying on restatement stresses "[w]hat is reasonable is, as in other cases of negligence, from bell mobility, may not take place. that the contract did not produce as hoped acquired"; (2) his statement that there were "contracts in place" with bell mobility trooien's first set of misrepresentation claims arose from the various sproqit will receive a one-time royalty of $1.50 for every device with built in wireless trooien's first argues that mansour violated his fiduciary duties by providing mansour states in the email that he received "the green light" from the vice president * of minnesota. indicating that the numbers were a "first cut," "preliminary," subject to the "risk that referenced, the minnesota supreme court cited to sprangers with approval when falsity of the representation or made as of the party's own knowledge trooien's final misrepresenation claim was grounded in the revenue forecasts microsoft agent] says he needs a couple of days to run a make vs. buy analysis. he to mansour which stated, "we have not a clear idea of whether we will need sproqit." sproqit's revenue forecasts, sales contracts, and possible microsoft buyout. the existing material fact." hoyt props., 736 n.w.2d at 318. mansour's statement that particularity. under minnesota law, any allegation of misrepresentation, whether about two weeks later mansour sent trooien a follow up email concerning microsoft. mischaracterizes the court's analysis. the court properly assessed trooien's negligent misrepresentation claim, a plaintiff must show that the defendant "supplie[d] false trooien nonetheless argues that the district court erred by imposing a scienter peter mansour; barry roitblat, * minnesota law. smith, 569 n.w.2d at 413 n.3. to the contrary, the record indicates email about a meeting he had attended at microsoft, stating, -11- -9- trooien received projections stating that the company was "targeting revenues of to do so. trooien asserts that he was never made aware that this was the nature of the mansour and roitblat, grounded in the defendants' alleged misrepresentations about 1986), trooien asserts that a showing of negligence is sufficient for § 80a.01(b) of microsoft's mobile division and that a general manager from the same division "has securities and misrepresentation claims for lack of specificity. -17- rule 9(b) for a different reason. minnesota law requires that a plaintiff pursuing a fact" that sproqit would be acquired. in october 2005, mansour sent trooien an affidavit he submitted. on appeal trooien asserts that the district court misread his trooien had the affirmative duty to be aware of sproqit's affairs. see senn v. became the company's majority shareholder, and he and his wife were appointed to available under washington law. thus in order to prevail on a breach of fiduciary trooien challenges the basis on which the district court dismissed his securities trooien has failed to provide a factual basis sufficient to show that any other iii. clear as to permit only one conclusion." id. were going to be obtained" which would produce revenue. such a general allegation a showing of negligence since the statutory language was "devoid of any suggestion ___________ similarly worded state securities statute. see, e.g., black diamond fund, lllp v. finally, the district court dismissed all misrepresentation claims against him and sees the revenue value of doing the deal." mansour also described how that they had violated § 80a.01(b) of the msa and committed common law -4- in 2005. mansour responded by email, explaining: "the last projection we sent was caused the other party to act in reliance thereon; and (5) that the party require scienter). sprangers is the state's most thorough analysis of § 80a.01(b) and about $100k/month for the last 3 months of the year," and that starting in 2005 "they misrepresentation claim under minnesota law, however. such a statement is merely the duty of care, but not for the duty of loyalty or the duty to act in good faith. see the same way as the archos contract, in that bell mobility had the option, but not the events is not a sufficient basis" to support a claim for misrepresentation). statement that sproqit had "contracts in place" with bell mobility. the district court offer, sale or purchase of any security, directly or indirectly:" "[o]f course, things will change." these disclaimers support the conclusion that high revenues. he also contends that throughout his time as an investor in sproqit, devices capable of using sproqit's software. mansour stated in the email that "sproqit the course of their final months at sproqit by generally failing to help with the decided that § 80a.01(b), as a derivative of § 17(a)(2), "does not require scienter, but acquired and that there were "contracts in place" with bell mobility. the remaining fact, berg, 290 n.w.2d at 615, and were not pled with sufficient particularity, support a claim of negligent misrepresentation. see rognlien v. carter, 443 n.w.2d 1 stated in his email that about $1.8 million of the anticipated revenue was to come from trooien asserts that mansour's statements concerning archos were false statements with archos." in november 2005, mansour told trooien "we have to fulfill the -12- the district court dismissed all misrepresentation claims against roitblat, and warn him about these misstatements. the district court correctly determined that the prudent person in a like position would exercise under similar circumstances, and in minn. stat. § 80a.01 makes it "unlawful for any person, in connection with the it applied the minnesota law of negligent misrepresentation independently and mansour sent several disclaimers to trooien with the revenue projections, indicating statements about those contracts were misrepresentations." trooien v. mansour, civ. revenue projections amounted to an untrue statementof"pastorpresent material fact." fraudulent misrepresentation claim. * appeal from the united states reconsideration--just as the majority properly disposes of trooien's minn. stat. minn. stat. § 80a.90(a) (2006); see also 2006 minn. laws ch. 196, art. 1 § 50(a). bring this claim. the injuries alleged are those to corporate assets, and a claim to grassmueck v. barnett, 281 f.supp.2d 1227, 1232­33 (w.d. wash. 2003). sproqit's after examining the minnesota securities decisions starting with sprangers, we former president and chief executive officer of sproqit. roitblat is the company's caritas family servs., 488 n.w.2d 282, 289 (minn. 1992). the district court did not -5- of the circumstances under which they are made, not misleading; or and flawed." these conclusory characterizations are not sufficient to show how the contract with sproqit. material facts necessary in order to make the statements made, in light company's transition in a way that safeguarded its assets. trooien lacks standing to phase yet." in january 2006 mansour emailed trooien to say the reception was -7- will take a huge jump." mansour stated that he would follow up with a much more chief judge, john r. gibson and murphy, circuit judges. is about the amount predicted. when transmitting revenue forecasts to trooien, § 552 (1977) definition of negligent misrepresentation claims involving pecuniary can be the basis of a fraud action, but only if they are false representations of a past restatement § 552 cmt. e. "the question is one for the jury, unless the facts are so moreover, the sprangers decision is consistent with the plain language of § that they were tentative and that the deals involved could change. we conclude that claims against mansour and roitblat, arising from sproqit's revenue forecasts, sales affirmative obligation, to purchase specific quantities of sproqit's products. trooien sproqit did in fact have contracts in place with bell mobility. trooien concedes that to fraud by hindsight, a disputable claim. see crowell, 264 f.3d at 764. trooien's second set of misrepresentation claims was based on mansour's (8th cir. 2008). summary judgment is appropriate "if the pleadings, depositions, not performing as projected. trooien expressed dissatisfaction after new revenue answers to interrogatories, and admissions on file, together with the affidavits, if any, create a genuine issue of material fact and to show that mansour made any false for these reasons we affirm the judgment dismissing trooien's breach of the record indicates that trooien did not make this clarification to the district §80a.01(b)] irrespective of scienter"). that court also referenced § 80a.01(a) in engaged in intentional conduct or knowingly violated the law, violated the duty of of existing fact, because archos did not have any definitive obligations under its law § 9:136 (nov. 2009) (collecting cases and finding the majority of state courts do analyze whether this true statement, by the concealment of other material facts, for the eighth circuit trooien's allegation concerning mansour's "green light" statement fails under worthless and false." under minnesota law, "[f]alse promises or projections of profits * the statement was not mentioned in trooien's deposition and was not included in any scienter). misrepresentation only with respect to the required state of mind. in a negligent obtaining or communicating the information." ante, at 10. the commentary to the -6- (a) to employ any device, scheme, or artifice to defraud; appeals both the dismissal and the adverse grant of summary judgment. no. 09-2032 induce another to act in reliance thereon; (4) that the representation defendants. again mansour and roitblat moved the court to dismiss trooien's state revenue projections he received from mansour. he asserts that mansour and roitblat there is no dispute that the bell mobility contract resulted in revenue; the issue united states court of appeals the district court allowed trooien to proceed on his misrepresentation claim reconsideration under the appropriate standard. amended complaint, trooien quoted from a number of emails from mansour. in high ranking decision makers. they said they were very interested in to acquire sproqit and that mansour was "very good at maneuvering within fraudulent and negligent misrepresentation. both mansour and roitblat moved to products. trooien asked another individual to contact sproqit on his behalf in 664 n.w.2d 414, 420 (minn. ct. app. 2003). and adverse grant of summary judgment as to those claims and remand them for trooien pled no particularized facts showing that mansour supplied false information articles of incorporation limited the liability of its directors to the fullest extent relationship. trooien later learned that the bell mobility contract was structured in i would reverse part of the district court's dismissal of trooien's negligent mansour to: (1) his statement that it "was an absolute fact that sproqit would be he was "very good at maneuvering within microsoft" cannot support a duty. more specifically that § 80a.01(b) was the equivalent of § 17(a)(2). id. the court submitted: march 9, 2010 him with revenue projections that "clearly had no basis in objective facts" and that if it elected to include sproqit features on its products, and that archos had elected not false or misleading or without reasonable care. hebrink v. farm bureau life ins. co., for reconsideration under the proper standard. roitblat. it is not sufficient to attribute alleged false statements to "defendants" 80a.01(b) which contains no words of intent, no reference to fraud, or deceit. where murphy, circuit judge. or existing fact." berg, 290 n.w.2d at 615. nor did trooien sufficiently plead facts forecast "extremely high revenues" for sproqit, knowing the projections "to be complaint, deposition, and affidavits are sufficient to create a genuine issue of he received as "arbitrary and capricious," "made with fraudulent intent," and "false former chief technology officer. founded in 2000, the company's focus was 2004 included a predicted $1,929,295 in revenue arising from the bell mobility thus dismissal of the lion's share of trooien's negligent misrepresentation claim was (1) there was a false representation by a party of a past or existing "[o]f course, things will change." dismissed these remaining claims on summary judgment which trooien now appeals. or present material fact." crowell v. campbell soup co., 264 f.3d 756, 764 (8th cir. noted that the united states supreme court had interpreted § 17(a)(2) to require only appears beyond doubt that the plaintiff can prove no set of facts which would entitle that archos was at that time still considering using sproqit products, which would securities claims against mansour were dismissed at summary judgment. trooien detailed revenue analysis. the following month, mansour emailed revised revenue district court dismissed all of the securities claims against roitblat and the majority the budget" for the acquisition. mansour then states that "[w]e are not at the before riley,1 would support a misrepresentation claim. little gem life sci., llc v. orphan med., content of mansour's alleged misrepresentations, the time, or the place. bennett, 685 disclosetheotherfacts. itappearsthedistrictcourtimpermissiblysubjectedtrooien's fiduciary duties of directors and shareholders are governed by the state of without knowing whether it was true or false; (3) with the intention to contract would "generate substantial revenues for sproqit." accepting the claim as hoyt props., inc. v. prod. res. group, llc, 736 n.w.2d 313, 318 (minn. 2007). the statute continues to govern all actions based on conduct occurring before that date. district court merely held "the bell mobility statement . . . is undisputedly true, and id. trooien also alleged that mansour repeatedly told him that "significant accounts quoted in the preceding paragraph. for example, with respect to mansour's mansour did not make the forward looking statements with knowledge that they were joseph, 211 p.3d 727 (colo. app. 2009); tanner v. state corp. comm'n, 574 s.e.2d "fail[ed] to exercise reasonable care or competence in obtaining or communicating the 2004, which lowered sproqit's anticipated revenue for 2005 to $3,363,887. mansour failed for his misrepresentation claims, they also fail here. the undisputed facts show where it will all go from here, but i have more meetings scheduled for of summary judgment. we reverse in part and affirm in part. and those he received thereafter, were misleading in that they projected extremely representations in respect to microsoft's possible acquisition of sproqit. according requires a showing of scienter which trooien had failed to plead sufficiently. consultant informed trooien that when he arrived at sproqit's office, roitblat and requirement on his negligent misrepresentation claims. this argument r. civ. p. 56 analysis the district court wrongly conflated the remaining portion of saying "[t]hey are in. the next step is for them to come up with a number. [a (discussing § 80a.01 generally); fawcett v. heimbach, 591 n.w.2d 516 (minn. ct. would be acquired by microsoft. around this time trooien learned that sproqit was looking for investors. brown & co., 633 a.2d 345, 349 (del. 1993). -19- trooienreceivedanothersetofrevenueprojectionsfrommansourindecember trooien's amended complaint asserted multiple factual allegations against -14- his assertion that mansour fraudulently represented that sproqit would be acquired by retirement fund v. allison-williams co., 519 n.w.2d 176, 179 (minn. 1994) (citing mansour also described additional archos products that could use sproqit software not require scienter under similarly worded statutes); but see hubbard v. hibbard concerning the possible acquisition of sproqit. suffer[ed] pecuniary damage as a result of the reliance. we review de novo a district court's contested dismissal of claims, accepting a contract that was "in place" with bell mobility. he closed his email by telling plaintiff - appellant, * february 2006. he asserts that mansour and roitblat were again uncooperative. washington law, the directors of a corporation, such as mansour, roitblat, and the dismissal of trooien's state securities claims and remand them to the district court inc., 537 f.3d 913, 917 (8th cir. 2008). information." florenzano v. olson, 387 n.w.2d 168, 174 n.3 (minn. 1986). he received from mansour. the revenue forecast statements do not alone amount to was modeled after § 17(a) of the securities act of 1933, 15 u.s.c. § 77(q)(a), and inhisamendedcomplaint,trooienrepeatedlydescribedtherevenueprojections trooien asserts that the initial revenue projections he received from mansour, of such claims against mansour for failure to plead with particularity. the remaining v. * district court for the district the board of directors. complaint. he asserts that his amended complaint merely alleged mansour capability . . . that archos sells. . . . they believe they will sell over 300k next year." acquired" by microsoft. the district court determined that trooien had "failed to labeled as a claim of fraudulent misrepresentation or negligent misrepresentation, is claims were limited to mansour's statement that it "was an absolute fact that sproqit became apparent that archos was only obligated to make payments to the company fraudulent misrepresentation claim against him. trooien's allegation at best amounts with "false information" as required for a negligent misrepresentation claim under failed to demonstrate that the defendants' alleged conduct rose to a breach of fiduciary -13- supports a negligence based theory of recovery." sprangers, 394 n.w.2d at 503. dismissed the majority of such claims against mansour, for failure to plead with commission, 446 u.s. 680, 695 (1980). after taking aaron into account, the court of its revenue forecasts. the company's revenues for 2005 were less than $100,000. incorporation, washington in this case. dunning, 536 f.3d at 886. under -10- ________________________________ in part. the court limited trooien's msa and misrepresentation claims against the only minnesota case to analyze the scienter requirement of that subpart. see loop misrepresentation claim under the proper standard, i would remand for claims, see fed. r. civ. p. 56(c). trooien appeals the dismissal and the adverse grant ___________ (unpublished) (concluding that neither §§ 80a.01(b) nor (c) require a showing of preliminary stages. that mansour's optimism amounted to a violation of his fiduciary duties. as a director developing its software and had not yet generated any revenue. the district court allowed trooien to proceed only on those misrepresentation the honorable william jay riley became chief judge of the united states (c) to engage in any act, practice, or course of business which operates sproqit's relationship with french consumer electronics company archos. in his trooien that the projections were "preliminary" and subject to the "risk that some of at some point during the summer of 2005 mansour told him that it was an "absolute in late january 2006 mansour sent trooien another email about microsoft, claims based on revenue forecasts by mansour which were tied to mansour's de novo a district court's grant of summary judgment, viewing the evidence in the v. donaldson, lufkin, & jenrette, inc., 845 a.2d 1031, 1039 (del. 2004). of summary judgment. 543 f.3d 978, 981 (8th cir. 2008). a motion to dismiss should be granted if "it finally, trooien argues that mansour and roitblat demonstrated bad faith over monthly revenue for november 2004, increasing to $447,500 in december 2005. summary judgment and the district court granted the motion, dismissing trooien's dismiss the complaint on the grounds that trooien had failed to plead his claims with accompanied the various revenue forecasts sent to trooien with disclaimers, would be acquired, his statement that there were "contracts in place" with bell recover damages for such injuries must be brought as a derivative action. see tooley sufficient particularity. the district court granted the motion but gave trooien the roitblat on trooien's breach of fiduciary duties claim, concluding that trooien had failed in his amended complaint to attribute any of the alleged misrepresentations to microsoft would conduct due diligence and suggested a possible offer that sproqit loss. see florenzano v. olson, 387 n.w.2d 168, 174 n.3 (minn. 1986). as the dismissed by the district court since they were not false statements of past or existing including those with bell mobility and archos, and about the likelihood that sproqit acquired by microsoft. the remaining allegations were insufficient to satisfy the wash. rev. code § 23b.08.300, .420. with sproqit software. the projections trooien received from mansour in december could bring to the negotiations. in february 2006 mansour communicated to trooien requires that a pleading include "such matters as the time, place and contents of false -15- negligent misrepresentation claim to the more exacting scrutiny it applied to his trooien argues that he was also misled by revenue projections related to that a showing of negligence is sufficient. aaron, 446 u.s. at 695. this conclusion sprangers v. interactive technology, inc., 394 n.w.2d 498, 503 (minn. ct. app. represented that it was an absolute fact that sproqit would be acquired by microsoft, based on either (1) or (2). trooien was also permitted to proceed on his breach of fiduciary duty claims against both mansour and roitblat. the defendants moved for ___________ foley v. allard, 427 n.w.2d 647, 650 (minn. 1988) (holding that this subpart does roitblat failed to correct these projections. just as the revenue forecast allegations * archos contracts and the likelihood of a microsoft buyout and that roitblat failed to trooien contacted mansour in january 2005 to inquire as to why sproqit was 525, 530 (va. 2003); lehn v. dailey, 825 a.2d 140 (conn. app. 2003); state v. he was led to believe that sproqit would be acquired by microsoft. he contends that appropriate under fed. r. civ. p. 12(b)(6). however, i believe in its subsequent fed. that mansour represented to him that it was an "absolute fact" that sproqit would be (finding a defendant's failure to disclose that a contract was at best an option contract filed: june 17, 2010 2001) (citing berg v. xerxes-southdale office bldg. co., 290 n.w.2d 612, 615 he was misled about the revenue potential of sales contracts with various firms, projections showed sproqit failing to break even in 2004 and losing nearly $2 million the district court dismissed these misrepresentation claims for failing to satisfy microsoft "if the meetings get bigger, and get into the negotiation phase." some of the deals [included in the projections] may not occur," and cautioning that corp. v. mcilroy, 2004 wl 221619 (minn. ct. app. oct. 5, 2004) (unpublished) because the district court failed to consider trooien's negligent remaining sproqit employees resigned near that time as well. ruling on a securities case involving an unsuitability claim. minneapolis employees in sprangers, the court of appeals determined that § 80a.01 of the securities act or would operate as a fraud or deceit upon any person. show that there is no genuine issue as to any material fact and that the moving party describing a deal with archos, a french consumer electronics company that sold increasing to $8,339,360 in 2005 and $16,542,675 in 2006. in march 2004, trooien were dead. considering the record and undisputed facts as a whole, trooien failed to mansour cautioned that some deals in the forecasts, including the expected revenue mansour regularly sent trooien revenue projections for sproqit. in july 2004, to microsoft amounted to intentional misconduct or knowing violations of the law or 2 p. 9(b), and granted summary judgment to mansour and roitblat on his remaining trooien also asserted a number of fraudulent and negligent misrepresentation misleading statements and by leaving sproqit without taking steps to safeguard the disclosing certain facts that render the facts that are disclosed misleading." m.h. v. in a november 2005 email mansour told trooien, "we are not at the negotiation the revenue forecasts do not rise to an actionable claim for breach of fiduciary duties. f.2d at 1062. which predicted that the company would have gross revenues of $524,224 in 2004, several of sproqit's business deals. mansour sent an email to trooien in may 2005 company's assets. the district court granted summary judgment to mansour and -16- iv. that the acquisition discussions at microsoft appeared to be dead. sproqit was never company with a particular focus on the possible acquisition by microsoft. the sprangers's holding that a "seller of stock may be liable for misrepresentation [under misrepresentation claims based on sproqit's revenue projections were properly gerald l. trooien, * trooien's claims against mansour and roitblat arose under § the washington statute permits a corporation to limit liability for violations of i. no. 06-3197, 2009 wl 928325, *8 (mar. 31, 2009). the minnesota supreme court negotiation phase, yet" and that he will include trooien in future meetings with opportunity to amend his complaint. trooien's amended complaint contained the v. carlson co., 366 n.w.2d 616, 618 (minn. ct. app. 1985). trooien concedes that ii. a showing that the defendant "fail[ed] to exercise reasonable care or competence in causing him to continue investing money in sproqit based on their false and contracts, and the possible purchase by microsoft. to succeed in a fraudulent was misleading and negligent under the circumstances). shama res. ltd. p'ship, 899 p.2d 977, 982 (idaho 1995); joseph c. long, blue sky allegations that mansour and roitblat violated § 80a.01(b), we reverse the dismissal (minn. 1980)). provide any evidence that the 'absolute fact' statement actually occurred," noting that trooien's surviving negligent misrepresentation claim with his fraudulent trooien next argues that mansour overstated the value of the bell mobility and mansour's alleged statement that it "was an absolute fact that sproqit would be a contract existed, but argues that the alleged misrepresentation relates to whether the weconcludethatsummaryjudgmentwasappropriateonhismisrepresentationclaims. i met with two different groups at microsoft today. these were very remaining claims. trooien challenges both the partial dismissal and the adverse grant § 80a.01(b) claim. the district court might have reached a different conclusion had when he stated that a particular microsoft agent had given "the green light" app. 1999) (discussing § 80a.01 in the context of attorney fees); siler v. principal archos contract." trooien also points to a later november 2005 email from archos to deteriorate. trooien hired a consultant to advise him on his investment in the gerald trooien brought this action against peter mansour and barry roitblat, microsoft. nor does the record support a conclusion that mansour provided trooien dependent upon the circumstances" and "will vary according to a good many factors." although minn. stat. § 80a.01 was repealed effective august 1, 2007, the