FOURTH DIVI SION March 18, 2010

No. 1-09-1222 TIMO THY J. CARPEN TER, MERVI N G. SCHAEFER, JA MES P. MALO NEY , HE NRY JA CKS ON, DAV ID REINDL , HENRY C. HESS, DAVID FAL LDORF, and JANE P. KOTH, Plaintiff s-Appell ees,

v. EXELON ENTERPRI SES COMPANY, LLC, and EXELON CORPORATI ON,

Defendants-Appellants. )) )) )) )) ) ) ) ) ) Appeal from the Circuit Court of Cook County No. 08 L 006480 Honorab le Brigid Mary

McGrath, Judge Presi ding.

JUSTICE O’MARA F ROSSARD del ivered t he opinion

of the co urt: This matter appears before this court on interlocutory appeal to consider a question certified by

the circuit court, pursuant to Supreme Court Rule 308 (155 I ll. 2d R. 308). Plaintiffs, Timothy J. Carpenter, Mervin G. Schaefe r, James P. Maloney, Henry Jackson, David Rei

ndl, Henr y C. Hess, Da

vid Falld orf, and Jane P. Koth , were f

ormerly minority shareho lders of

Infr aSource , Inc ., a Dela

ware c orporat

ion (I nfraSour ce). I nfraSour ce’s ma jority and controlling shareholder was defe ndant Exelon Enterprises Company, L LC, a subsidiary

of defenda nt Exelon Cor

poration . Both en

tities wer e Pennsy lvania c orporat

ions, with t

heir principal places of business in Illinois, and they are hereinafter ref

erred to as Exelon Corp. or Exelon Enterprises, and/or collectively as “Exelon.” In 2003, Exelon divested itself of most of its intere st in I

nfraSour ce by enterin g into a merger

agree ment with a

third par ty a nd direc tlyNo. 1-09-1222

2

acquiri ng I nfraSour ce’s re maining business u

nits. As pa

rt of this t ransac tion, the mi

nority shareholders each receive d a pro rata share of the net proceeds of the merg er and acquisition of InfraSource’ s assets. The plain tiffs file d the insta

nt suit ag ainst Exelo n in 2007, a sserting that the d

efenda nts abused their position as majority share holders of InfraSourc e in such a way that the rights of the minority shareholders we re violated and their interests were not fairly represented in the merger and sale transactions. Exelon filed a motion to dismiss this suit on the grounds that it was barred by t he three -y ear sta

tute of lim

itations c ontained

in the I llinois Sec

urities Law of 195 3 (815 I LCS 5/13(D) (West 2008)). The trial court ultimately denied Exelon’s motion to dismiss, determining that the Illinois Securities La w limitations period was inapplicable and the plaintiffs’ suit was therefore timely

filed within the residual five-y ear limitations period found in section 13–205 of the Code of Civil Procedure (Code) (735 ILCS 5/13–205 (West 2008)). However, the trial court did stay further pr

oceedings and certified the issue of the appropriate statute of limitations for review on interloc

utory appeal. For the r

easons that follow , we answ er the c ertifie d question in the negative. I. BACKGROUND The plaintiffs filed their initial complaint against Exelon in May of 2007. The plaintiffs alleged that they

were among a number of minority shareholders in Infra source, with Exelon controlli ng the r emaining 97% of sha

res as th e majorit

y sharehold

er. I n 2003, Exel on decide d to divest itself of its stake in Infrasource . The plaintiffs’ initial complaint generally alleged that Exelon acc omplished

this goa l throug h a serie s of tran sactions

as part o f a merg er and sa leNo. 1-09-1222

3

agreement. I

n essence, Infr

asource would be merged with another corporation formed for the purposes of this transaction. Some of the business units and assets of the resulting corpora tion would be sol d to Ex elon i tself , wit h the r emain der bei ng sol d to a t hird p arty, GFI Ener gy Ventures (GFI). When all of the transactions were completed, I nfraSource would continue on as a new entity a

nd all of its former shareholders, including the plaintiffs, would be pa id a pro rata share of the net proceeds. Becau se Exelon ow

ned the va st majority

of InfraSour

ce shar es, it vote d those sha

res in favor of this plan and the various transactions were c ompleted in late 2003. The plaintiffs thereafter brought the instant lawsuit in 2007, essentially asserting that Exelon structured the transactions in such a way that the minority shareholders were mistreated and were not adequately

compensated for their I

nfraSource shares. More specific ally, the plaintiffs pled causes of action for breach of f iduciary duty

, civil conspiracy, f

raud, negligence, a

nd negligent misrepresentation. The plaintiffs sought to recover da mages, including the differenc e between the fair market value of their shares a nd what they ac

tually rece ived. Exelon move d to dismiss t he plaint iffs’ complaint on t

he gro unds that i

t was not ti

mely filed. Specifically, Exelon arg ued that because the complaint was based upon matters for which relief was granted under the Illinois Securities La

w, it was barred by

the three-y

ear statute of limitations contained in that law. The plaintiffs did not respond to Exelon’s motion, choosing instead to voluntarily dismiss their initial complaint on November 19, 2007. In July of 2008, the plaintiffs refiled their action with an amended complaint. The amended complaint contained additional detail regar ding the plaintiffs’ allegations and Exelon’sNo. 1-09-1222

4

purported activities. Among other things, the plaintiffs g enerally a lleged that: (1) the price that Exelon Enterprises paid for those Infra Source business units not sold to GFI was artificially low, (2) Exelon Enterprises alone received a share of preferred stock that entitled it to benefits not adequately

shared with the minority share holders, (3) Exelon Enterprises agreed to purc hase a minimum amo

unt of ser vices fr om GFI in the y ears fo llowing t

he trans action a

t an artif icially low price, and (4) Exelon appointed a biased special committee to examine these transa ctions and protect the rights of the minority shareholders. While the amended complaint contained more factual detail, it explicitly stated fewer individual causes of action. The complaint dropped any claims for fraud or misrepresentation, and instead pled only a single count of breach of fiduciary duty and one of c ivil conspiracy agains t Exelon Ente

rprises a nd one co unt each of aiding and abetting a breach o f fiducia ry duty and civil conspiracy

against Exelon Corp. Indeed, the c omplaint contained an explicit statement that it purported to be brought under Delaware law and did “not allege that defendants’ c onduct constituted a violation of the Illinois Securities L aw.” The plaintiffs continued to seek compensation for their damages, alleg ed to be in excess of $11 million. Exelon ag ain filed

a motion to d

ismiss the p laintiff

s’ now re filed an

d amende d complai

nt, pursuant to section 2–619(a)(5) of the Code. 735 I LCS 5/2–619(a)(5) (West 2008). Exelon asserte d that, de spite the p laintiff s’ plead ing eff orts, the ir claims

were sti ll claims r

elated to matters for which relief was gr anted under the Illinois Securities L aw and it was therefore barre d by that law’s three -year

statute of limitations. The trial court disagreed, finding that the suit was properly filed w

ithin the five-yea

r limitations period found in section 13–205 of the Code. 735No. 1-09-1222

5

IL CS 5/13–205 (West 2008). Therefore, the court entere d an order deny ing Exelon’s motion to dismiss. However, the trial court also staye d further proceedings and ce rtified the following question for interlocutory appeal, as the trial court found this issue involved a question of law upon which substantial ground for a differenc e of opinion existed:

“Whether plaintiff s’ claim t hat Exelon E

nterpris es Compan

y, L LC, as majority share

holder of InfraSourc e, Inc., brea ched its fiduciary duties in connection with InfraSource , Inc.’s 2003 merg er transaction is governed by the three ye ar statute of limitations containe d in the Illinois Sec urities Law of 195 3, 815 I LCS 5/13(D).” We granted Exelon’s petition for leave to appeal, and we now answer the certified question in the negative. II. AN ALYS IS Supreme Court Rule 308 provides for a permissive appeal from interlocutory orders where the trial c ourt has d eemed th at they

involve a question o f law as t

o which th ere is substantial ground for difference of opinion and where an immediate appeal from the orde r may materially adva

nce the ultimate termination of the litigation. 155 Ill. 2d R. 308; Preferred Personne l Servic es, Inc. v. Meltze r, Purtill &

Stelle, LLC

, 387 Ill. App. 3d 933, 936-37 (2009). The stand ard of r eview in s

uch an int erlocut ory appeal i s de novo

. Brookbank v. Olson , 389 I ll. App. 3d 683, 685 (2009).No. 1-09-1222

6 A. Illinois Securities La

w of 1953 “The purpose of the [Illinois] Securities L aw is to protect innocent persons who might be induced t o invest th eir mone

y in specula tive ente rprises over whic

h they have littl e contro l. A.G. Edwards, I

nc. v. Se cretary of State , 331 Ill . App. 3d 110 1, 111 0 (200 2), ci ting People v . Bartlett , 294 I ll. App. 3d

435, 439 ( 1998). Th e law is pa ternalis tic and is t

o be liber ally construe d to better protect the public from deceit and fra ud in the sale of securities. A.G. Edwards, Inc. , 331 Ill. A pp. 3d at 1 110; Bartlett, 294 I ll. App. 3d at 439. As

such, sec tion 12 of t

he I llinois Securities Law outlines a number of spe cific activities which violate the law, section 13 delineates the private and other civil remedies ava ilable for such violations, and section 14 outlines the possible criminal penalties available. 815 IL CS 5/12, 13, 14 (West 2008). Of particular interest here are the provisions of section 13 relating to private and other civil remedies. Subsection 13(A) provides that “[e]very sale of a security

made in violation of the provisions of this Act shall be voidable at the election of the purchaser,” while subsections 13(B) a nd 13(C) o

utline the various n otice an d mitigat ion requi rements t hat a pur chaser must fulfill before electing the option of rescission. 815 I LCS 5/13(A), (B), (C) (West 2008). Amendments to this section in 1977 and 1978 added subsections 13(F) and 13(G) which, respectively , provide the Illinois Secretary of State or “any

party in interest” a

right to seek injunctive relief t o enjoin a ny o ther par

ty f rom “con tinuing or doing a

ny a ct in viola tion of or to enforce compliance with this Act.” 815 I LCS 5/13(F), (G) (West 2008); see Pub. Act 80–556, eff. September 8, 1977; see also Pub. Act 80–1421, eff. September 8, 1978. Most important to this case is the language contained in subsection 13(D) , whichNo. 1-09-1222

7

provides : “No action shall be brought for relief unde r this Section or upon or because of any

of the matters for which relief is gra nted by this Section after 3 yea

rs from the date of sale; provided, that if the party bringing the action neither knew nor in the exercise of reasonable diligence should have known of any alleg ed violation of subsection E, F, G, H, I or J of Section 12 of this Act which is the basis for the action, the 3 y

ear per iod provid

ed here in shall be gin to run upon the earlier of:

(1) the date upon which the party bringing the action has actual knowledge of the alleg ed violation of this Act; or (2) the date upon which the party bringing the action has notic e of facts which in the exerc ise of re asonable diligence would lead to actual knowledg e of the alleged violation of this Act; but in no event shall the period of limitation so extended be more than 2 years be yond the expiration of the 3 year pe riod otherwise applicable.” 815 IL CS 5/13(D) (West 2008). The question certified by

the trial court concerns the applicability of this limitation period to the plaintiff s’ compla int.No. 1-09-1222

8 B. The Pa rties’ A rgumen ts In the trial court, and ag ain on appeal, the parties have focused their a rguments on two separate lines of case law. We briefly address each in turn. Exelon cites to a line of case law supportive of their position that the limitations period found in section 13(D) applies despite the plaintiffs’ efforts to specific ally disclaim any reliance on the Illinois Securities La w. Exelon first cites to this court’s decision in Tregenza v. Lehman Brothers, Inc. , 287 Ill. App. 3d 108 (1997), in which we addr essed common law causes of action for breach of fiduciary

duty, fraud, a

nd negligent misrepresentation broug ht by a stock purcha ser agains t the selle

r of that s tock. De spite the f act that t he plaint iff did no t plead th e Ill inois Securities Law and disclaimed a ny reliance

upon the law, the Tregenza court reasoned that the plaintiff ’s claims were ne verthel ess relia

nt upon mat

ters for which re lief is g

ranted by th e Ill inois Securities Law. I

t therefore found that “the three-y ear statute under the I llinois Securities Law, rather than the f

ive-y ear limita tions per iod under [section] 13 -205 of th e Code of Civil Procedure, applies to plaintiff's cause of a ction.” Tregenza , 287 Ill. App. 3d at 110. Exelon also cites to a more recent federal appea ls court decision, Klein v. George G. Kerasotes

Corp ., 500 F.3 d 669 (7th Cir. 2007) . In that case , not only did the fe deral c ourt appl y the rule expressed in Tregenza , it also determined that the statute of limitations found in section 13(D) also applied to the claims of a stock seller , so long as those claims were reliant upon matters for which relief is granted by the Illinois Securities La w. Klein , 500 F.3d

at 673. I t is upon these cases that Exelon bases the contention that, despite the fact that plaintiffs did not plead the Illinois Secur

ities L aw and w ere sel lers inste ad of pur chaser s of stock , their c laimsNo. 1-09-1222

9

nevertheless fall within the ambit of the law and are there fore barred by its three-yea

r limitations period. The plaintiffs disagree with this analy sis and initially distinguish the Tregenza and Klein decisions. They distinguish Tregenza by noting that the plaintiff in that c ase was a stock purchaser and his claim was quite naturally contained within the statutory fr amework of the Illinois Securities Act. Klein is disting uished on t

he gro unds that, while the

plaintiff in that ca se

was a se ller of st

ock, he w as still a w

illing se ller. The

plaintiff s assert t hat they were no t so situated, because as minority shareholders of Inf

raSource they

could do nothing to stop Exelon from exer cising i ts rights as majori ty s harehol der and e ffectuating th e merg er and sa le transactions. On this basis, the plaintiffs contend that this appeal is instead controlled by another line of case law. The plaintiff s begin by no ting tha

t becaus e relev ant sect

ions of the

Illinois Securitie s Law

are mode led afte

r section s of the f

ederal securiti es law, I

llinois cou

rts will loo k to federal securities fraud case law to aid in interpreting the I llinois Securities Law. Tirapelli v. Advanced Equities, Inc. , 351 Ill. App. 3d 450, 455 (2004). They then cite to a number of cases finding the federal securities law inapplica ble to the facts of this case. For example, the plaintiffs cite to Santa Fe Industries, Inc. v. Green , 43 0 U. S. 462 , 51 L. Ed. 2d 480, 97 S. Ct. 1292 (1977). In that case, the Supreme Court found tha t the federal securities law did not apply to the minority shareholders’ claims that they were mistreated and underpaid for their shares after the ma jority shareholder

chose to complete a merger and eliminate the minori

ty’ s interes t. In p art, the

Supreme C ourt’s de cision wa s based up on itsNo. 1-09-1222

10

finding that the relevant federal sec urities law was not intended to apply to “ instances of corporate mismanagement such as this, in which the esse nce of the complaint is that shareholders were treated unfairly

by a fiduciar

y.” Santa Fe , 430 U.S. at 477, 51 L. Ed. 2d at 494, 97 S. Ct. at 1303. The plaintiffs also cite more recent feder al decisions which apply the reasoning of Santa Fe and explic itly

hold that f

ederal “ ‘secu rities fr aud does not includ

e the oppr ession of minority shareho lders... . No more

does sec urities f raud inc lude unsou

nd or oppr

essive c orporat

e reorganizations.’ ” Stark Trading v. Falconbridge Ltd. , 552 F.3d 568, 572 ( 7th

Cir. 2009), quot ing Isquith v. Caremark International, Inc. , 136 F.3d 531, 536 (7th Cir. 1998). Relying on these

cases and the established practice of utilizing interpre tations of federal securiti es law to a

id in the a naly sis of the I

llinois law , the plai

ntiffs contend tha

t their cl aim is essentia lly one of minority

shareho lder oppr

ession an d is there fore not

covere d by

the I llinois Securities Law or its statute of limitations. With the parties’ positions so framed, they have exchanged arguments reg arding specific aspects of the plaintiffs’ complaint and the intricacy and applicability to the Illinois Securities Act of various rationales found in federal case law discussin g fede ral sec urities la w. Howev er, we f

ind that the

outcome o f this app eal act ually depends on the resolution of a straightforward a nd fundamental question of statutory construction. C. Applicability of Subsection 13(A) The primary r

ule of statutory construction is to ascertain and give effect to the legislature's intent. Michigan Avenue National Bank v. County of Cook , 191 Ill. 2d 493, 503-04 (2000). All provisions of an enactment are to be viewed a s a whole and each provision must beNo. 1-09-1222

11

interpreted in light of other relevant sections of the statute. Abrahamson v. Illinois Department of Professional Regulation , 153 I ll. 2d 76, 91 (1992). I f the stat ute's pl ain mean

ing is ambiguous, then courts may examine external sources such as legislative history

. O'Loughlin v. Village of River Fo rest , 338 Ill. App. 3d 189, 192 (2003). As pr ev io us ly s ta te d, th e p ur po se of th e Il li no is Se cu ri ti es Law (a so -c al le d “ Bl ue Sk y” law) is to “protect innocen

t persons who migh

t be induc ed to invest

their money in specula

tive enterprises over which they have little control.” (Emphasis added.) A.G. Edwards , 331 Ill. App. 3d at 1110. As such, the only civil reme dy origina lly provided by

the law was the right of rescission found in subsection 13(A), a right that is notably available only to the purchase r of a security. 815 I

LCS 5/13(A) (West 2008). I n turn, subsections B and C of section 13 provide very spec ific notice and mitigation requirements that must be fulfilled prior to exercising the remedy of

rescission. 815 IL CS 5/13(B), (C) (West 2008). Illinois courts have long recognized that “[i]t is evident by the very wording of section 13(A) that the remedies unde r the Illinois Blue Sky L aw are availab le only

to purchase

rs of securities.” (Emphasis added.) Space v. E.F. Hutton Co. , 188 Ill. App. 3d 57, 61 (1989). Clearly , the plaintiffs’ claims against Exelon do not arise out of their role as purchasers of se curities, and subsection 13(A) would not provide them any relief

. D. Applicability of Subsection 13(G) Nevertheless, su

bsection s 13(F) a

nd 13(G)were a

dded as a mendment s to section 13 in 1977 and 1978. Pub. Act 80–556, eff. September 8, 1977; Pub. Act 80–1421, eff. September 8, 1978. These two subsections provided additional relief to, respectively , the Illinois Secretary

ofNo. 1-09-1222

12

State and “any

party in interest.” 815 I

LCS 5/13(F), (G) (West 2008). Both sec tions provide for simi lar rel ief, w ith s ubsec tion 13(G) (1) pro vidi ng:

“Wheneve

r any person ha s enga

ged or is about to

engag e in any act or pr actice constituti ng a vio lation of t

his Act, a ny p arty in interest may bring a n action i n the cir cuit cour t of the c ounty

in which the party in inter

est resides, or where the person has his, her or its principal office or registered of fice or where any

part of the transaction has or will take place, to enjoin that person from continuing or doing any

act in violation of or to enforce compliance with th

is Act. Up on a prop er showin g, the c ourt shal l grant a permanent or preliminary injunction or temporary restraining order or rescission of any sales or purchases of securities determined to be unlawful under this Act, and may

assess c osts of the

procee dings against the d efenda nt.” 815 I

LCS 5/13(G)(1) (West 2008). Exelon’s entire argument relies upon the civil relief containe d in subsection 13(G). Exelon esse

ntially contends that this su

bsection clearly provides injunctive

relief, as well a s a right of rescissi on, to “an

y pa rty in intere st.” Ther

efore, because

the plain tiffs ar e each a party in interest, because subsection 13(G) provides them some form of r elief, and because–whether they are specifically

pled or not–subsection 13(D) applies to “claims for which relief is g ranted” by section 13, the plaintiffs’ claims are time-barred by the Illinois Securities La w limitations period.No. 1-09-1222

1 We note that other provisions of the Illinois Business Take-Ove r Act were held to be unconstitutional in Edgar v. MITE Corp. , 457 U.S. 624, 73 L. Ed. 2d 269, 102 S. Ct. 2629 (1982).

13 We must disagree. Subsections 13(F)

and 13(G

) were a dded to se ction 13 vi a what was known as the “Illinois Business Take-Ove r Act.” Pub. Act 80–556, eff. September 8, 1977; Pub. Act 80–1421, eff. September 8, 1978. In a section entitled “Findings and Purpose,” the leg islature stated that “[i]n rece nt y ears numerous companies h ave bee n subject ed to take -over of

fers in w hich equi ty securities were acquired suddenly by means of tende

r offers***. The purpose of this Act shall be to protect the inter

ests of I llinois sec

urity holders o f compan

ies havin g a clos e conne ction with this State.” Pub. Act 80–1421, §1.1, eff. September 8, 1978. 1 In lig ht of this c oncern a

nd this purpose, the legislature crafted a prospective remedy

“to enjoin that person from continuing or doing any act in violation of or to enforce compliance with this Act.” 815 I LCS 5/13(G)(1) (West 2008 ). While sub section 1 3(D) doe s also allow for the remedy of resc ission, it c learly do es so on ly i n t he co nt ex t o f e nf or ci ng th at pr os pe ct iv e r em ed y. Indeed, while we a

re aware of no I llinois decisions addressing this issue, the federal courts have analy

zed subsection 13(G). In Guy v. Duff & Phelps, Inc. , 628 F. Supp. 252 (N.D. Ill. 1 985), the

court expl icitly

consider ed wheth er subse ction 13( G) provid es a priv ate retrospective remedy

to sellers of securities. The court considered the purc haser-oriented nature of section 13, as well as the languag e of subsections 13(F) and 13(G), and conc luded that subsections 13(F) and 13(G) should not be read to provide such a retrospective remedy

because:No. 1-09-1222

14 “Even though both subsections thus authorize rescission, they were plainly designe d simply to add prospective re lief to the exclusively retroactive c ivil and criminal remedies alway s provided by t he Blue Sky L aw. Of c ourse the

Attorney Genera l's only role under Law § 13 F c an be to enjoin ongoing violations and enforce future compliance (for by definition that public official suffers no damage s in the legal sense ), and the following

subsecti on's ne arly identical language plainly seems intended only to g rant like authority to private par

ties in interest. That prospective (rather than retrospective) thrust of both subsections is emphasized by their focus on ‘continuing’ or ‘doing’ violative a cts and ‘enforc[ing] compliance’ with the Blue Sky Law. Recission [ sic ] under both those provisions is thus only an adjunct to injunctive relief, where rescission may be needed to render prospective compliance meaningful or even possible.” (E mphasis omitted.) Guy , 628 F. Supp. at 263. We agree with this reasoning. To re ad section 13 any othe r way would f

ail to consider the context in which subsections 13(F) and 13(G) were initially added and would make subsecti ons 13(B ) and 13( C) irrele vant. Spe cifical ly, if subsection 13(G) provides “any party in interest ” a sepa rate an d unique r

etrospe ctive rig

ht of res cission wi

thout any further restric tions, that right would presumably apply to both sellers and purc hasers of securities. Such anNo. 1-09-1222

15

interpretation would then render meaningless the spe cific requirements contained in subsections 13(B) and 13(C), requirements that purcha sers must fulfill before electing rescission as a r emedy under subsection 13(A). At this point, we must address the contrary holding in Klein , 500 F.3d at 673, in which the Unite d States Cou

rt of Appe als for the Seventh Circuit fo

und that su

bsection 13(G) did indeed provide such a retrospective reme dy to sellers and also found tha t the limitations period containe d in subsec

tion 13(D)

was ther efore a lso applic able to th at remed y. T he fede ral cour t did so after acknowledging the purchaser-oriented nature of se ction 13 as well as the Duff decision. Klein , 500 F.3d at 672-73. The Klein court re asoned that the pla in langu age of section 1 3 clear

ly provided sellers some form of remedy, and the shortened three-y ear limitations period contained in subsection 13(D) clearly applied to anymatter for which relief is granted by section 13. The court then stated a policy

rationale for its decision, borrowed from a discussion of fede ral law and appli ed to the I

llinois Sec

urities Law, in tha

t: “ ‘If the investor ca

n wait before selecting the relief he wants, he can shift all of the ordinary investment risk to the defendant. If thing s turn out well, the investor will keep the gains and still demand as damages the differenc e between the prices of the stock and its mar

ket value on the day

of the tra nsaction ; if things turn out poorly the investor will demand r escission.’ [Citation.] This reality is no less true for sellers, who have precisely the

same reasons for wanting wide latitude in choosingNo. 1-09-1222

16 when to file their actions–the desire to transfer risk to the purchaser. This rationale supports a reading of the statute under which the same statute of limitations applies to both parties in a securities transaction.” Klein , 500 F.3d at 674. We are min

dful that s ubsection 13(G) d

oes provi de a remedy

to “any party in intere st” and that remedy

would naturally be a

vailable to sellers of securities, including the plaintiffs here. Howeve r, as disc ussed above, the e

ntire thr ust of the remedy containe d in subsec

tion 13(G)

is prospective in nature and was originally created to protect parties in interest ag ainst the dangers involved in contemporaneous and sudden corporate take- over efforts. Pub. Act 80–1421, §1.1, eff. September 8, 1978. Moreover, we fa il to see how the public policy conc erns expressed by the Klein court would be addressed by construing subsection 13(G) to provide a separa te right of retrospective rescission to any party , without th e proce dural safegua rds explici

tly r equired in subsections 13(B) and 13(C). L astly, providing such a separate and unrestricted rig ht of rescission to any par

ty, including purc

hasers, would improperly render the entirety

of subsections 13(B) and 13(C) irrelevant. Bethania Ass’n v. Jackson , 262 Ill. App. 3d 773, 777 (1994) (a “fundamental ru

le of stat utory construction disfa

vors find ing surp lusage

and requ ires cou rts to give each provision some reasonable mea ning, if possible”). We therefore find that subsection 13(G) does not provide such a retrospective rig ht of rescission to any par ty, including to sellers of securiti es such a s the plain tiffs. E. Applicability of Subsection 13(D) Having address ed this issu

e, we ca n now answ er the op erative question on appea

l;No. 1-09-1222

17

whether the limitations period contained in subsection 13(D) applies to the plaintiffs’ claims. We find tha

t it does no t. The three-y

ear limitations period contained in section 13, by its own terms, only applies to “relief under this Section or upon or because of a ny of the matters f

or which relief is granted by t his Sectio n.” 815 I

LCS 5/1 3(D) (We st 2008). B y “ this Section,” the st

atute is r eferr ing only to section 13 itself. As the discussion above indicates, section 13 provides only for: (1) a retroactive right of rescission to purchase rs under subsection 13(A), and (2) a prospec tive remedy of relief to the Illinois Secretar y of State and “a

ny party in interest” under subsections 13(F) and 13(G). 815 IL CS 5/13(A), (F), (G) (West 2008). Section 13 simply does not concern retroactive common la

w damag es claims

for bre ach of f

iduciar y du ty brought by se llers of s ecuritie s in general, or minority

shareholders in particular. As such, the three- year limitations period contained in section 13(D) does not apply to claims of the plaintiffs’ claims against Exelon Enterprises in this case. III. CONCL USION For the foregoing r

easons, we answer the certified que stion in the negative. We remand the cause to the circuit court for further pr oceedings consistent with this opinion. Certified question answered; cause remande d. O’MAR A FROS SARD , P.J ., wit h O’BRIEN and GA LLAGHER, J J., c oncur ring.