United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit                 July 23, 2004

                            No. 02-30940               Charles R. Fulbruge III
                                                               Clerk


                           MICHAEL HENRY,

                                            Plaintiff - Appellant,

                               VERSUS

     CISCO SYSTEMS, INC.; CISCO SYSTEMS CAPITAL CORPORATION

                                            Defendants - Appellees




          Appeal from the United States District Court
              For the Eastern District of Louisiana

                            (00-CV-3519)


Before EMILIO M. GARZA and DENNIS, Circuit Judges, and HEAD*,

District Judge.

DENNIS, Circuit Judge:**

     Plaintiff-appellant Michael Henry appeals the district court’s

rulings regarding his fraudulent inducement claim and his four

defamation claims against defendants-appellees Cisco Systems, Inc.



     *
      District Judge of the Southern District of Texas, sitting by
designation.
     **
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.



                                 1
and Cisco Systems Capital Corporation (“Cisco”). The court granted

summary   judgment   on     Henry’s    fraudulent     inducement      claim   on

prescriptive grounds.       As for the defamation claims, the district

court dismissed one claim1 and granted summary judgment in favor of

Cisco on the others because Cisco’s alleged defamatory statements

were protected by an absolute litigation privilege.              We affirm.

                              I.     Background

     Henry, a Louisiana citizen, is a successful businessmen in the

telecommunications       industry.     He    built   Megasnet,   an   Internet

Service Provider, which he sold in 1999 for $100 million.                Cisco

provides hardware and software products and services used to

support, among other things, telecommunications equipment.               Cisco

was in a strategic alliance with American MetroComm Corporation

(“AMC”), to whom it had sold $20 million of VCO/4K equipment, a

programmable phone switch intended to allow unlimited long distance

phone calls over the Internet.

     In   June   1999,    shortly    after   Henry    sold   Megasnet,   Cisco

recruited Henry to become CEO of AMC because AMC was experiencing

delays in deployment of its network and needed Henry’s expertise.

After negotiations, Henry accepted the CEO position on July 1, 1999

and agreed to invest $2 million in AMC.              While Henry was CEO of

AMC, he encountered a number of difficulties with the VCO/4K

     1
         Cisco did not file a motion to dismiss the remaining
defamation claims based on an absolute litigation privilege.



                                       2
equipment, which could not be properly installed because it was not

NEBS compliant,2   and AMC’s financial solvency.   Despite attempts

to fix the equipment and become more financially stable, AMC was

unable to do so.

     On August 16, 2000, AMC filed a bankruptcy petition in the

United States Bankruptcy Court for the District of Delaware. Among

AMC’s creditors was Cisco.     In connection with the bankruptcy

proceeding, Cisco filed a motion to appoint a trustee to conduct

and oversee the affairs of AMC’s bankruptcy along with a memorandum

in support.   In the memorandum, Cisco called into question Henry’s

ability to successfully and effectively protect the interests of

AMC, its creditors, and its equity holders during the bankruptcy,

given his “volatile and contentious nature.”   Allegedly, a copy of

this pleading was given to a Dow Jones reporter, Jeffrey St. Onge,

who published an article in The Daily Bankruptcy Review on the AMC

bankruptcy.

     On October 5, 2000, in Dallas, Texas, counsel for Cisco, Kent

Roger and Larry Engel, met with a number of AMC investors and their

counsel to discuss AMC’s bankruptcy.    Roger and Engel allegedly

distributed the bankruptcy memorandum discussed above and accused

Henry of accepting “kickbacks.”


     2
       NEBS is an acronym for “Network Equipment Building Systems”
and if equipment is certified as NEBS compliant then it can
interface directly with other equipment that forms the world’s
telecommunications “backbone.” Henry Original Brief, at 5 n.4.



                                  3
         In addition to the above, on May 20, 2000, Thomas Papson, a

Washington, D.C. attorney acting as counsel for Cisco, participated

in   a    phone   conference   with    Chip   Cooper,   an   Ohio   attorney

representing Kevin Bennett, a former Cisco employee.           Bennett and

Cisco were involved in litigation pending in federal court in Ohio

and in an arbitration proceeding in California. The purpose of the

call was to discuss settlement possibilities. According to Henry’s

Amended Complaint, Papson told Cooper that “Cisco believed Mr.

Henry, Kevin Bennett, and Vince Rotundo were involved in a kickback

scheme as part of the arrangement between [Worldwide Web Systems,

Inc., the software provider for the VCO/4K] and AMC.”

      On November 29, 2000, Henry filed a diversity jurisdiction

suit in the United States District Court for the Eastern District

of Louisiana asserting state law claims against Cisco.                Henry

alleged that Cisco fraudulently induced him to accept the AMC CEO

position and to invest $2 million in AMC by falsely telling him

that the equipment Cisco sold AMC had been tested as NEBS compliant

and worked properly and that AMC was financially solvent. He also

alleged that he was defamed by statements made in the pleading

Cisco filed in AMC’s bankruptcy.

      On February 12, 2001, Henry amended his complaint to add three

additional defamation claims.         These claims contend that Henry was

defamed: (1) when a copy of the Cisco bankruptcy pleading was

distributed to the Dow Jones reporter; (2) when Roger and Engel



                                       4
accused Henry of accepting kickbacks in the Dallas meeting; and (3)

when Papson      told   Cooper    during      a   phone   conversation      that   he

believed Henry accepted kickbacks.

          In response, Cisco filed a motion to dismiss.               On September

19, 2001, the district court granted Cisco’s motion and dismissed

Henry’s initial defamation claim concerning the statements in the

bankruptcy pleading, finding that an absolute litigation privilege

applied.       Cisco    also   sought    summary     judgment    as    to   Henry’s

remaining claims, which the district court granted.                   The district

court held that the remaining defamation claims were also subject

to   an    absolute    litigation      privilege    and   that   the   fraudulent

inducement claim was barred by prescription.                On August 28, 2002,

the district court rendered a final judgment and Henry timely

appealed.

                                 II.    Analysis

A.    Standard of Review

      We review both the grant of a motion to dismiss and the grant

of summary judgment de novo, applying the same standards applicable

to the district court.3           In deciding a motion to dismiss, the

district court must take the facts as alleged in the complaint as

true, and may not dismiss the complaint unless it appears that the


      3
        Kennedy v. Chase Manhattan Bank USA, NA, 

, 839
(5th Cir. 2004); Morris v. Covan World Wide Moving, Inc., 

, 380 (5th Cir. 1998).



                                          5
plaintiff can prove no set of facts in support of his claim that

would entitle him to relief.3     Summary judgment is properly granted

if there is “no genuine issue as to any material fact and [] the

moving party is entitled to judgment as a matter of law.”4

B.   Fraudulent Inducement Claim

     Henry argues that the district court erred in holding that his

fraudulent   inducement   claim   was   barred   by   prescription.   He

maintains that two exceptions to the general rules of prescription,

contra non valentum and continuing tort, made his claim timely.

Cisco disagrees, arguing that Henry was fully aware of his cause of

action more than one year prior to filing to suit and that neither

exception delayed the commencement of the prescriptive period for

Henry’s claim.

     Because Henry’s fraudulent inducement claim is a Louisiana

state law claim, Louisiana law will determine the applicable

statute of limitations period.5         Under Louisiana law, delictual

actions, such as Henry’s fraudulent inducement claim, have a

prescriptive period that commence one year “from the date injury or




     3
         

.
     4
         Fed. R. Civ. P. 56(c).
     5
        U.S. ex rel. Mathews v. HealthSouth Corp., 

,
295 (5th Cir. 2003).



                                    6
damage is sustained.”6    Moreover, “[t]he defendant has the initial

burden of proving that a tort claim has prescribed.”7 “[B]ut if the

defendant shows that one year has passed between the tortious acts

and the filing of the suit, then the burden shifts to the plaintiff

to prove an exception to prescription.”8     

alleges that he was fraudulently induced into

accepting the AMC CEO position and investing $2 million in AMC.

“Fraud exists if it can be shown that material misrepresentations

have been made by one party designed to deceive another, and to

obtain some unjust advantage or to cause loss or inconvenience to

the other.”9    Thus, the general elements of a fraudulent inducement

claim are: “(1) a misrepresentation of a material fact, (2) made

with an intent to deceive, and (3) causing justifiable reliance

with resulting injury.”10    Here, Henry claims that Cisco knowingly


     

. Code art. 3492; Bell v. Demax Management Inc., 

, 492 (La. Ct. App. 2002); Griffin v. BSFI Western E & P,
Inc., 

, 734 (La. Ct. App. 2002).
     7
        Terrebonne Parish Sch. Bd. v. Columbia Gulf Transmission
Co., 

, 320 (5th Cir. 2002)(citing Miley v. Consol.
Gravity Drainage Dist. No. 1, 

, 696 (La. Ct. App.
1994); Dixon v. Houck, 

, 59 (La. Ct. App. 1985)).
     8
          

Civ. Code art. 1953; Altex Ready-Mixed Concrete Corp. v.
Employers Commercial Union Ins., 

, 892 (La. Ct. App.
1975).
     10
       Kendall Co. v. Southern Med. Supplies, Inc., 

, 487 (E.D. La. 1996); Silver v. Nelson, 

, 517



                                   7
made false assurances in June 1999 that the equipment Cisco sold

AMC was NEBS compliant and worked properly and that AMC was

financially solvent.    He further claims that these fraudulent

misrepresentations induced him to accept the AMC CEO position and

to invest $2 million in AMC.   Because he did not file suit until

November 29, 2000, Cisco’s alleged tortious acts occurred more than

one year prior to Henry filing suit.     Therefore, Henry has the

burden of proving an exception to prescription that would delay the

commencement of the prescriptive period to after November 28, 1999.

1.   Contra Non Valentum

     Henry first contends that contra non valentum protects his

fraudulent inducement claim. This doctrine is “a limited exception

where in fact and for good cause a plaintiff is unable to exercise

his cause of action when it accrues,” for example if a defendant

“has done some act to effectually prevent the [plaintiff] from

availing himself of the cause of action” or if “the cause of action

is not known or reasonably knowable by the plaintiff.”11     Henry

argues that he was unable to exercise his fraudulent inducement

claim until at least January 2000 because Cisco attempted to

conceal the fact that the VCO/4K equipment was not NEBS compliant

and told him that it would fix the equipment problem and maintain


(E.D. La. 1985).
     11
       Corsey v. State Dep’t of Corrections, 

, 1321-
22 (La. 1979).


                                8
its alliance with AMC.

     Cisco,   however,   has   provided   documents,   affidavits,   and

deposition testimony to support its contention that Henry was fully

aware, or at least reasonably should have been aware, prior to

November 28, 1999, that the equipment was not NEBS compliant and

that Cisco’s representations to the contrary were false.12 Further,

Cisco maintains that Henry, as a sophisticated businessman who was

CEO of the company of which he claimed to be ignorant, was aware of

AMC’s financial problems.13


     12
        Cisco’s proof that Henry knew before November 28, 1999 that
the VCO/4K switch was not NEBS compliant, and that it was not
forthcoming with Henry about it, includes: (1) a June 27, 2000
affidavit, in which Henry stated “[t]hat when he took over as AMC’s
CEO [in July 1999], the company ... was experiencing serious and
continuous problems with crucial network equipment it had purchased
from” Cisco; (2) a third party demand filed by Henry against Cisco
in another lawsuit in which Henry admitted that “AMC had discovered
during September [1999] that the Cisco equipment was not NEBBS
compliant”; (3) a January 4, 2002 affidavit in which Henry stated
that “[a]s of the first week of November 1999, AMC discovered that
the equipment Cisco had delivered was not NEBBS compliant”; (4) an
AMC Position Paper, prepared under Henry’s supervision and
authorship, which states that between August and September 1999,
AMC learned that the VCO/4K switch was not NEBS compliant and that
a Cisco employee had told Henry that Cisco had “lied” about the
switch being compliant; and (5) a January 4, 2001 deposition in
which Henry testified that he was told by a Cisco employee in
October 1999 that the equipment was not NEBS compliant and that
Cisco had been “less than truthful.”
     13
        Cisco’s proof as to Henry’s knowledge of AMC’s financial
circumstances prior to November 28, 1999, includes: (1) a June 26,
1999 AMC internal memo, which states that “Henry has been briefed
on the Company’s financial circumstances” and that Henry “stated
that he does not want to become an officer of the Company unless
[there is] at least $1Million in the bank, to address huge
financial issues before us”; (2) a June 27, 2000 affidavit in which


                                   9
      Henry does not contest the veracity of Cisco’s evidence

proving that Henry should have known of his fraudulent inducement

claim prior to November 28, 1999.         Instead Henry contends that

Cisco’s attempts at concealment, such as failing to provide timely

discovery after his suit was filed and Cisco’s attempts to fix the

equipment problems, delayed the commencement of the prescriptive

period.     Henry’s failure to contest Cisco’s evidence and Henry’s

argument itself reveal that he was aware of the facts necessary to

establish his cause of action prior to November 28, 1999.             Thus,

his argument that Cisco still attempted to conceal information from

and   mislead   him   are   irrelevant   because   those   attempts    were

ineffectual. When considering the doctrine of contra non valentum,

we focus on whether the plaintiff was able to bring his cause of

action.14    If, as here, the plaintiff knew of his cause of action

and the defendant’s attempts at concealment were ineffectual, the

plaintiff was not prevented from bringing his claim; he just chose

not to do so.    “Contra non valentum does not suspend prescription

when a litigant is perfectly able to bring its claim, but fails or

refuses to do so.”15        Therefore, the district court properly


Henry states “[t]hat when he took over as AMC’s CEO, the company
was unable to service its debt”; and (3) a July 23, 1999 e-mail
from Henry acknowledging that “[w]e are 4.7 million in the hole.”
      14
           

.
      15
         Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 

, 885 (5th Cir. 2002). This is also applicable to Henry’s other
argument, that he was lulled into inaction because Cisco issued a


                                    10
concluded that contra non valentum did not extend the commencement

of the prescriptive period past November 28, 1999.

2.   Continuing Tort

     Henry next argues that because his claim alleges a continuing

tort, his prescriptive period commenced late enough to make his

claim timely.    Under the continuing tort doctrine, “continuing and

repeated wrongful acts are to be regarded as a single wrong which

gives rise to and is cognizable in a single action, rather than a

series of successive actions.”16         Multiple acts will constitute a

continuing tort “when the acts are continuous on an almost daily

basis, by the same actor, of the same nature, and the conduct

becomes    tortious   and    actionable    because   of    its   continuous,

cumulative,    synergistic    nature.”17     If   the     plaintiff’s   claim

involves a continuing tort, “then prescription does not commence

until the last act occurs or the conduct is abated.”18

     Although Henry asserts that because Cisco’s fraudulent conduct




press release on October 12, 1999 announcing a $60 million
investment in AMC and because Cisco and AMC discussed fixing the
NEBS problem.   These actions did not affect Henry’s ability to
bring his claim; at most they just affected his desire to do so.
     

. Hartzman, 

, 207 (La. Ct. App. 1979).
     17
       Bustamento v. Tucker, 

, 542 (La. 1992); see
also Crump v. Sabine River Authority, 

, 728 (La.
1999)(“A continuing tort is occasioned by unlawful acts, not the
continuation of the ill effects of an original, wrongful act.”).
     18
          

.


                                    11
did not abate until after November 28, 1999, the prescriptive

period did not commence until that time, his argument is not

persuasive.    In his complaint, Henry contended only that Cisco’s

misrepresentations made prior to his accepting the CEO position and

investing $2 million in AMC induced him to take these actions.

Henry now contends that Cisco’s supposed fraudulent actions that

occurred after Henry became CEO and invested in AMC are actions

that constitute part of the same continuing tort.   But there is a

clear delineation between Cisco’s actions that took place prior to

Henry acting and those that took place after, namely that the

latter actions could not have induced Henry to take the actions he

now regrets.    They thus cannot form the basis for a claim of

fraudulent inducement. Therefore, these two sets of activities are

not of a “continuous, cumulative, synergistic nature” and thus

cannot constitute a continuing tort.

     Henry’s argument that prescription should not begin to run

until his damages ceased is also without merit.   Even if Henry did

suffer damages after November 28, 1999, this will not affect when

prescription commences.   “When a defendant’s damage-causing act is

completed, the existence of continuing damages to a plaintiff, even

progressively worsening damages, does not present successive causes

of action accruing because of a continuing tort.”19       Instead,



     19
        In re Med. Panel Review for the Claim of Moses, 

, 1183 (La. 2001).


                                 12
prescription commences when the last tortious act occurs or the

defendant’s tortious conduct is abated.20             Because, as discussed

above, the last tortious acts, i.e., those that induced Henry to

act, committed by Cisco related to Henry’s fraudulent inducement

claim took place well before November 28, 1999, prescription began

to run prior to that date.             Accordingly, the district court

correctly held that Henry’s fraudulent inducement claim was barred

by prescription.

B.     Defamation Claims

       Henry claims that the district court erred in holding that his

defamation claims were barred by an absolute privilege afforded to

statements     by   parties   and   counsel    made   during   the   course   of

judicial proceedings. Henry’s four defamation claims were for: (1)

the statements made in a motion to appoint trustee in AMC’s

Delaware bankruptcy; (2) the copy of that motion distributed to a

Dow Jones reporter; (3) Cisco counsel’s statements accusing Henry

of accepting kickbacks in a meeting to discuss the AMC bankruptcy

with    investors;    and     (4)   Cisco     counsel’s   statements    during

settlement negotiations for an Ohio lawsuit and a California

arbitration that he believed Henry accepted kickbacks.

       Henry disagrees with the district court’s decision to apply

Delaware law to the first three claims and Ohio law to the fourth

claim. Delaware and Ohio law provide an absolute privilege against

       20
            

.


                                      13
defamation    claims     to   parties        and   attorneys   over       otherwise

defamatory     statements     made    during       the    course     of    judicial

proceedings that are relevant to the case.21                    “In Louisiana,

however, the [litigation] privilege is a qualified one, and in

order for the privilege to apply, the statement must be material

and must be made with probable cause and without malice.”22

     A federal court sitting in diversity applies the law of the

forum state,      including   its    choice-of-law        provisions.23         Under

Louisiana’s choice-of-law provisions, delictual obligations such as

fraud are generally controlled by Louisiana Civil Code Article

3542, which provides that issues involving delictual obligations

are “governed by the law of the state whose policies would be most

seriously impaired if its law were not applied to that issue.”24

     The district court concluded that the purpose of the absolute

privilege is to “facilitate the flow of communication between

persons involved in judicial proceedings and thus, to aid in the

complete    and   full   disclosure      of    facts     necessary    to    a   fair




     21
        Barker v. Huang, 

, 1345 (Del. 1992); Willitzer
v. McCloud, 

, 695 (Ohio 1983).
     22
        Freeman v. Cooper, 

, 359 (La. 1982)(quoting
Waldo v. Morrison, 

, 

(La.1952)).
     23
         Klaxon Co. v. Stentor Electric Mfg., 

, 496
(1941)(citing Erie R.R. v. Tompkins,304 U.S. 64 (1938)).
     

. Code art. 3542.


                                        14
adjudication.”25   After balancing this with Louisiana’s policy of

protecting its citizens from tortious conduct, the court held that

“Delaware would be the state whose policies would be most seriously

impaired if its laws were not applied.”26 Thus, the court concluded

that the first three claims, which all concerned statements made as

part of the AMC bankruptcy proceeding in Delaware, were subject to

Delaware law.   For the same reason, the court concluded that Ohio

law applied to Henry’s fourth defamation claim.

     Henry contends that the district court erred and should have

applied either Louisiana or federal common law regarding the

litigation privilege.   But Henry’s arguments are not persuasive.

First, Henry makes no cognizable argument as to why Louisiana law

should apply.   Instead he only makes the conclusory assertion that

the district court was wrong in failing to apply Louisiana law.

Because this issue was inadequately briefed, we consider it waived

and will not reassess the district court’s analysis of Louisiana’s

choice-of-law provisions.27

     25
        Sept. 20, 2001 District Court Order, at 13 (quoting 

).
     26
          

     27
         Raven Servs. Corp. v. NLRB, 

n.7 (5th Cir.
2002). At most, Henry cites to Louisiana Civil Code Article 3543
when stating that “[u]nder the Louisiana choice of law provisions,
the test is whether the defendants would have foreseen where the
injury would occur.” Henry Original Brief, at 18. Article 3543 is
not applicable to our situation. Article 3543 regulates choice of
law analysis for tort issues relating to standards of conduct and
safety.   

of immunity, such as an absolute


                                 15
     Second, Henry contends that we should not apply an absolute

privilege   because   it    encourages   retaliatory   actions   against

whistleblowers in violation of federal common law principles and

the Sarbanes-Oxley Act.     Therefore, Henry, relying on the Seventh

Circuit decision in Steffes v. Stepan & Co.,28 urges the court to

adopt a qualified privilege similar to that of Louisiana under

federal common law.

     But Henry’s reliance on Steffes is misplaced. In Steffes, the

Seventh Circuit declined to apply a state law absolute litigation

privilege to a plaintiff’s retaliation claims under Title VII and

the Americans with Disabilities Act (“ADA”), instead affirming the

district court’s dismissal on other grounds.29         In addition, the

court also decided not to adopt a specific federal common law




privilege, are considered “rules of loss distribution and financial
protection,” which are not covered by Article 3543. La. Civ. Code
art. 3543 rev. cmt. a (“This Article applies to “‘issues pertaining
to standards of conduct and safety’ as distinguished from ‘issues
of loss distribution and financial protection’ which are governed
by Article 3544 .... By way of illustration, so-called ‘rules of
the road’ establish or pertain to ‘standards of conduct and
safety’, whereas rules that impose a ceiling on the amount of
compensatory damages or provide immunity from suit are ‘rules of
loss distribution and financial protection.’”); Rigdon v. Tank &
Tower Co., 

, 1306 (La. Ct. App. 1996) (holding that
“whether defendants are immune from tort liability, is an issue of
loss distribution and financial protection.”). Henry does not cite
Article 3544 and does not argue that the application of that
Article would affect the outcome.
     28
          

(7th Cir. 1998).
     29
          

                                   16
litigation privilege, either qualified or absolute.30

     In any event, Steffes is inapposite because it concerns

whether a federal court should apply a state law privilege to

federal claims.        Here, Henry has not asserted any federal law

claims, instead bringing only state law defamation claims. Sitting

as an Erie court, we must employ the forum state’s choice-of-law

provisions       to   determine   which    state’s   law   applies   to   the

plaintiff’s state law claims, including its privileges.31 Here, the

district    court,     applying   Louisiana    choice-of-law    provisions,

concluded that the appropriate state laws for Henry’s defamation

claims are those of Delaware and Ohio,32 both of which preclude

causes of action against counsel and parties for defamation when a

statement is made during the course of a legal proceeding. Because

Henry has not argued on appeal that any of the alleged defamatory

statements occurred outside the context of a judicial proceeding,

we must apply the appropriate state law privilege to Henry’s

defamation claims.33       Accordingly, the district court’s decision

     30
           

v. AlliedSignal, Inc., 

, 993 (5th Cir.
1999)(applying Texas state law absolute litigation privilege in a
diversity jurisdiction suit to plaintiff’s Texas state law claims).
     32
         The settlement negotiations in the fourth claim also
concerned a pending California arbitration. But even if we applied
California law, California law recognizes an absolute litigation
privilege. Albertson v. Raboff, 

, 408 (Cal. 1956).
     33
        Any argument that the Sarbanes-Oxley Act applies to our
case is also misplaced.   This Act, passed in 2002, makes it a


                                      17
dismissing Henry’s first defamation claim and granting summary

judgment in favor of Cisco on the others is affirmed.

                         III.   Conclusion

     Because Henry’s fraudulent inducement claim is barred by

prescription and because an absolute litigation privilege applies

to each of Henry’s defamation claims, we affirm the decision of the

district court dismissing one defamation claim and granting summary

judgment as to Henry’s remaining claims.

AFFIRMED.




criminal act for a person to retaliate against another who provided
truthful information to a law enforcement officer about the
commission or possible commission of a federal offense. 18 U.S.C.
§ 1513(e). Henry contends that if we apply the state law absolute
litigation privilege to Henry’s state law claims, we will be
subverting the objectives of this Act and “[c]orporations would
have the freedom to retaliate against the whistle blower by
unleashing a legion of lawyers with absolute immunity from alleging
false statements without the fear of reprisal in the form of a
defamation lawsuit of the harmed plaintiff.” Henry Original Brief,
at 16.
     But Henry’s argument is completely without merit. Even if we
could ignore our Erie mandate to apply state law, there has never
been any accusation that Cisco committed a federal offense that
would even implicate the Act.


                                 18