must express the intent of the promissor to benefit the shareholder personally, independently of his or her status as a shareholder.” Id. at 1353-54 (emphasis added). See Castle v. United States, 301 F.3d 1328, 1338 (2002); see also Bailey, 341 F.3d 1342, 1346 (dismissing shareholder's suit for lack of standing). It is clear that under this test the Smith plaintiffs cannot and do not show that the federal regulators in the forbearance agreement intended to specifically benefit the Smiths. To the contrary, however, they argue their claim does not depend on their status as third-party beneficiaries. Smith PLS.' Resp. to OSC at 7. As such, any third party beneficiary claim has been effectively waived. See Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792, 800 (Fed.Cir. 1990) (<HOLDING>); see also Cubic Defense Systems v. United
holding failure to brief argument constitutes waiver holding that failure to raise issue in brief constitutes waiver of appeal of the issue holding that the failure to raise an issue in the opening brief waives the issue holding that failure to brief an argument constitutes waiver holding that failure to raise an issue in an opening brief waives that issue