exclusive responsibility of the Seller,” to the extent they are
not "Assumed Obligations." As set forth in § 1.3(b), Excluded
Earnout Liabilities includes the fiscal year 1996 and 1997
Bonuses and AAS did not assume those obligations and liabilities.
Thus, the 1996 and 1997 Bonuses were not part of the Purchased
Assets (or liabilities) transferred to AAS and Bell Canada
therefore retained claims or rights against third parties related
thereto. Section 1.1(a) did not transfer to AAS any rights or
obligations related to the 1996 and 1997 Bonuses.

Even if the Second APA could properly be considered on
defendants' motion to dismiss (or on a converted motion for
summary judgment), the Second APA would not support that
Hartford's assignor had previously transferred away the claims
asserted in the present case.®

Defendants also contend that, under Quebec law, there can
be no fraud and fiduciary duty claim that is distinct from the

contract claim.® For prudential reasons, the court declines to

®*The purported 1999 settlement between AAS and defendants
is clearly a document that is not central to Hartford's claims.
But even if that settlement were also to be considered, it would
not affect today's ruling. Since claims for the return of the
1996 and 1997 bonuses were not transferred to AAS, any settlement
between AAS and defendants could not have settled the claims
contained in the present case.

°*Defendants' exposition of Quebec law does not expressly

address the guestion of whether a fraud and fiduciary duty claim
could be brought against defendant Boivin, who was not a party to
(continued...)

-13-


een

breach of fiduciary duty claim against the three individual
defendants.

Presently pending is defendants' Fed. R. Civ. P. 12(b) (6)
motion to dismiss. Defendants contend that Quebec law applies to
the claims in this case and that Counts I and III are subject to
dismissal because Quebec law would limit the claims in this case
to the one contract claim. As to all three counts, defendants
contend that any right to bring the claims belongs to AAS, which
has not assigned those rights to Bell Canada, Bell Inc., or
Hartford. It is also claimed that AAS has already settled any
possible claims against defendants. Alternatively, it ‘is
contended that the Count I fraud claim has not been alleged with
the specificity required by Fed. R. Civ. P. 9(b). Defendants’
motion relies in part on documents and allegations that are not
part of the complaint. The motion will not be converted to one
for summary judgment. See Fed. R. Civ. P. 12(b) (last sentence).

On a Rule 12(b) (6) motion to dismiss, plaintiff's
weil-pleaded allegations of fact are taken as true and all
reasonable inferences are drawn in plaintiff's favor.

Leatherman v. Tarrant County Narcotics Intelligence &

Coordination Unit, 507 U.S. 163, 164 (1993); Stachon v. United
Consumers Club, Inc., 229 F.3d 673, 675 (7th Cir. 2000). A
complaint need not set forth all relevant facts or recite the

law; all that is required is a short and plain statement showing


Products, Inc. v. Krzysztofiak, 1997 WL 201555 *3 (N.D. Ill.

April 17, 1997); ESI Montgomery County, Inc. v. Montgomery

International Corp., 1996 WL 22979 *3 (S.D.N.Y¥. Jan. 23, 1996).
The complaint provides sufficient notice to prepare a defense.
Count I will not be dismissed.’

IT IS THEREFORE ORDERED that defendants' motion to
dismiss [3-1] is denied. Defendants shall answer the complaint
within two weeks. All discovery, including any expert discovery,
is to be completed by June 3, 2002. Status hearing set for
March 20, 2002 at 11:00 a.m. at which the parties shall submit a
discovery scheduling plan listing name, date, time, and place for
all remaining depositions.

ENTER:

Nites, Theo

UNITED STATES DISTRICT JUDGE

DATED: FEBRUARY 2 CD , 2002

Tn its answer brief, plaintiff represents that it
intends to amend the complaint to add a rescission count. If it
still has such intentions, plaintiff should promptly amend the
complaint so as to avoid defendants having to answer both the
original and amended complaint. If plaintiff amends before
defendants answer the original complaint, no leave to amend is
required and defendants will have 10 days thereafter to answer
the amended complaint. See Fed. R. Civ. P. 15(a).

-17-


appropriate law to apply in construing the Second APA. However,
it is unnecessary to resort to any particular aspect or
presumption of New York contract law; the assignment issue can be
resolved simply by reading the plain language of the contract.

Defendants contend § 1.1 of the Second APA transferred to
AAS all rights under the First APA, including all rights related
to payment of the Bonuses. The First APA, 1996 Amendment, Bedard
Employment Agreement, and Maynard Consulting Agreement are all
specifically scheduled as Assigned Contracts. See Second APA,
Schedule 1.1(a)(vii).* The paragraph following § 1.1(a) (xvii) of
the Second APA defines "Purchased Assets" as the "assets,
properties, interests in properties and rights described" in
Second APA § 1.1(a). This includes the Assigned Contracts. See
Second APA § 1.1(a) (vii). Defendants, however, fail to
acknowledge express contract language that certain rights and
obligations under the Assigned Contracts were not part of the
Purchased Assets transferred to AAS.

Section 1.1(a) of the Second APA provides in part:

1.1. Transfer of Assets. (a) On the terms

and subject to the conditions set forth in this

Agreement, at the Closing, the Seller shall sell,

transfer, convey and assign to the Buyer, free

and clear of all Encumbrances (other than

Permitted Encumbrances), and the Buyer shall
purchase and acquire from the Seller, all of the

*A copy of this Schedule is contained in Exhibit E to
defendants' motion to dismiss.


It is also true, however, that a plaintiff can plead himself or
herself out of court by alleging facts showing there is no viable
claim. Jackson, 66 F.3d at 153-54; Tregenza, 12 F.3d at 718;
Early v. Bankers Life & Casualty Co., 959 F.2d 75, 79 (7th Cir.
1992). Moreover, attaching actual documents to the complaint
will override inconsistent descriptions of those documents
alleged in the body of the complaint. See In_re Wade, 969 F.2d
241, 249 (7th Cir. 1992); Beam v. IPCO Corp., 838 F.2d 242,
244-45 (7th Cir. 1988). Additionally, there is a narrow
exception that a document (particularly a contract) that has not
been made part of the complaint but which has been provided by
the moving party, can nevertheless be considered on a Rule

12(b) (6) motion if the document is referred to in the complaint
and is central to a claim contained in the complaint.

Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998);

Wright v. Associated Insurance Cos., 29 F.3d 1244, 1248 (7th Cir.
1994). Further, as long as they are consistent with the
allegations of the complaint, a plaintiff may assert additional
facts in its response to a motion to dismiss. Brokaw v. Mercer
County, 235 F.3d 1000, 1006 (7th Cir. 2000); Forseth, 199 F.3d at
368; Albiero, 122 F.3d at 419; Gutierrez v. Peters, 111 F.3d

1364, 1367 n.2 (7th Cir. 1997); Hrubec v. National Railroad

4(... continued)
232, 234-35 & n.2 (7th Cir. 1991); United States v. Bretzlaff,
865 F. Supp. 515, 518 (C.D. Ill. 1994).



that the party is entitled to relief. Fed. R. Civ. P. 8(a);
Anderson v. Simon, 217 F.3d 472, 474 (7th Cir. 2000), cert.

denied, 531 U.S. 1073 (2001); Scott v. City of Chicago, 195 F.3d

950, 951 (7th Cir. 1999); Doherty v. City of Chicago, 75 F.3d

318, 322 (7th Cir. 1996). A plaintiff in a suit in federal court
need not plead facts; conclusions may be pleaded as long as the
defendant has at least minimal notice of the claim.? Fed. R.

Civ. P. 8(a) (2); Scott, 195 F.3d at 951; Albiero v. City of

Kankakee, 122 F.3d 417, 419 (7th Cir. 1997); Jackson v. Marion
County, 66 F.3d 151, 153-54 (7th Cir. 1995). It is unnecessary
to specifically identify the legal basis for a claim as long as

the facts alleged would support relief. Forseth v. Village of

Sussex, 199 F.3d 363, 368 (7th Cir. 2000); Scott, 195 F.3d

at 951; Albiero, 122 F.3d at 419; Bartholet v. Reishauer A.G.
Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992). It is also
unnecessary to plead facts that would negate an affirmative

defense. Alvarado v. Litscher, 267 F.3d 648, 651-52 (7th Cir.

2001); Tregenza_v. Great American Communications Co., 12 F.3d
717, 718 (7th Cir. 1993), cert. denied, 511 U.S. 1085 (1994);

Wade v. Henderson, 2002 WL 15697 *1 (N.D. Ill. Jan. 4, 2002).4

3As to the Count I fraud claim, however, the pleading
requirement of Rule 9(b) must be satisfied.

‘Accord and satisfaction is an affirmative defense. See
Fed. R. Civ. P. 8(c); Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d
(continued...)


Hartford contends that the Second APA documents should not be
considered because outside the Complaint. Alternatively,
Hartford provides the complete 49 pages of the Second APA, see
Pl. Answer Brief Exh. B,* and argues that the nonambiguous
language of the Second APA did not transfer to AAS any right to
the pending claims based on the 1996 and 1997 Bonuses.

Since the Second APA is not central to any claim Hartford
makes, it may not be relied upon based on defendants attaching it
to their motion to dismiss. However, it is referred to in the
Complaint and Hartford has provided a copy of it in response to
the motion to dismiss. Moreover, there is no dispute that
Hartford has provided an accurate copy of the contract.
Presently construing the Second APA may substantially aid the
parties in resolving their dispute. Therefore, the court will
consider the Second APA as regards the assignment of the claims
presently in dispute. Since construction of the Second APA does
not lead to the dismissal of any claim, it is unnecessary to
formally convert the motion to one for summary judgment and
permit Hartford to file any possible additional response.

The Second APA contains a New York choice of law
provision and the parties agree, at least for purposes of the

pending motion to dismiss, that New York law is therefore the

5Hartford does not provide the schedules or referenced
contracts, which it represents are three inches thick.


Mitte Order Form (06/97)

United States District Court, Northern District of Illinois

Ni of Assigned Jud; Sitting Judge if Other
vor Magistrate Judge WILLIAM T. HART than Aasigned Judge
CASE NUMBER 01 C 4982 DATE FEB.ZO  , 2002
CASE HARTFORD FIRE INSURANCE COMPANY vy. JEAN MAYNARD, et al.
TITLE

of the motion being presented.]

{In the following box (a) indicate the party filing the motion, eg, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

OFRCP4(m) General Rule21 OFRCP41(aX(1) O FRCP41(a)(2).

remaining depositions.

dl) [For further detail see order attached to the original minute order.]

MOTION:

DOCKET ENTRY: q

qd) Oo Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

3) Oo Answer brief to motion due___. Reply to answer briefdue__

(4) im} Ruling/Hearingon__setfor___—_at

(5) o Status hearing[held/continued to] [set for/re-set for] on setfor at =
(6) o Pretrial conference[held/continued to] [set for/re-set for]on____—ssetfor_——s at.
ie) ao Trial[set for/re-set for]on_ at

(8) im [Bench/Jury trial] [Hearing] held/continuedto___—_at

(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

ao) ff [Other docket entry] Defendants’ motion to dismiss [3-1] is denied. Defendants shall
answer the complaint within two weeks. All discovery, including any expert discovery, is to
be completed by June 3, 2002. Status hearing set for March 20, 2002 at 11:00 a.m. at which
the parties shall submit a discovery scheduling plan listing name, date, time, and place for all

or

VY | No notices required, advised in open court.

No notices required. umber of notices

ere

uments:
mber.

Notices mailed by judge’s staff, Q \a <
OA
Notified counsel by telephone. date docketed

Docketing to mail notices.

Mail AO 450 form.

’ docketng deputy nal
no9 Ja
Copy to judge/magistrate judge. LYNOI y
courtroom issn Hd tYACeE] Z0 date mailed notice
ow deputy’s a
initials —e
CPatellimprbcetved i
‘central Clerk’s Office mailing deputy initials

at



The Definitions Table of the contract provides that
§ 1.2(1), quoted above, defines "Excluded Assets." Section 1.4
in its entirety is designated as defining "Excluded Obligations."
Section 1.3(b) is designated as including the definition of
"Excluded Earnout Liabilities."

Section 1.4 provides in part:

1.4. Liabilities Not Being Assumed.
Anything contained in this Agreement to the
contrary notwithstanding, the Buyer is not
assuming any liabilities or obligations (fixed or
contingent, known or unknown, matured or
unmatured) of the Seller other than the Assumed
Obligations, whether or not relating to the
Purchased Assets or the Business, all of which
liabilities and obligations shall at and after
the Closing remain the exclusive responsibility
of the Seller. Without limiting the generality
of the foregoing, the Buyer is not assuming any

of the following liabilities and obligations:
ke ok

(i) all Excluded Earnout
Liabilities; .

Second APA § 1.4(i).
Section 1.3(b), which defines Excluded Earnout
Liabilities provides:

1.3. Liabilities Being Assumed. At the Closing,
subject to the terms and conditions of this

Agreement, simultaneously with the sale,

transfer, conveyance and assignment to the Buyer
of the Purchased Assets, the Buyer shall assume,
pay and perform when due the following, and only
the following liabilities and obligations of the

Seller:
eK ok

(b) all liabilities and obligations
arising after the Closing under the Assigned

-11-


Seller's right, title and interest in, to and
under the assets, properties, interests in
properties and rights of the Seller of every
kind, nature and description, whether real,
personal or mixed, movable or immovable, tangible
or intangible, primarily used in or primarily
held for use in the Business (other than the
Excluded Assets), wherever located, as the same
shall exist immediately prior to the Closing,
including without limitation, the following:
kk Ok

(vii) all contracts, agreements, licenses,
personal property leases, commitments, purchase
orders, sales orders and other agreements in each
case, to the extent primarily related to the
Business, all of which are listed on Schedule
1.1(vii) (collectively, the "Assigned
Contracts"); oo

First APA § 1.1(a) (emphasis added).

Section 1.1(a) expressly states that it does not
transfer, convey, or assign Excluded Assets. As a corollary,
§ 1.2 provides:

1.2. Assets Not Being Transferred.
Anything contained in this Agreement to the
contrary notwithstanding, there are expressly
excluded from the Purchased Assets the following:

koe
(c) claims or rights against third
parties relating to any Excluded Asset or
Excluded Obligation;

wk

(i) all liabilities or obligations
under any contracts, agreements, licenses,
personal property leases, commitments, purchase
orders, sales orders, and other agreements not
effectively assigned under this Agreement or
under any Related Document;

Second APA § 1.2.

- 10 -


Passenger Corp., 981 F.2d 962, 963-64 (7th Cir. 1992).
Additionally, on a motion to dismiss, a determination of the
proper choice of law is limited to being made on the same facts
as can otherwise be assumed true on a Rule 12(b) (6) motion,
including additional consistent facts that the plaintiff concedes
are true. See Calkins v. Dollarland, Inc., 117 F. Supp. 2d 421,

430 (D.N.J. 2000); First Wali Street Capital Corp. v.

International Property Corp., 1998 WL 823619 *7 (S.D.N.Y.

Nov. 25, 1998); Employers Mutual Casualty Co. v. Key

Pharmaceuticals, Inc., 1992 WL 8712 *8, 9, 11 (S.D.N.Y. Jan. 16,

1992).

Defendants contend that, under the Second APA, any right
to a refund of the 1996 and 1997 Bonuses was transferred to AAS
and therefore the Bell entities could not have assigned to
Hartford any right to sue based on those Bonuses. The Second APA
is referred to in the Complaint, but is not attached to the
Complaint. Although referenced, the Second APA is not central to
any claim made by Hartford. Hartford's contract claim is based
on the First APA. The fraud and fiduciary duty claims are also
related to the First APA. Moreover, all the claims are based on
conduct that occurred before the Second APA went into effect.
Nevertheless, attached to defendants’ motion to dismiss and
relied upon regarding the assignment argument are the table of

contents, six contract pages, and one schedule of the Second APA.


Pursuant to a July 2, 1997 Asset Purchase Agreement (the
"Second APA"), the assets of Bell SportRack were sold to Advance
Accessory Systems Canada, L.L.C. ("AAS"). The Second APA
provided that the fiscal year 1997 Bonuses were to be paid prior
to the sale and AAS assumed Bell Canada's obligation to pay the
Bonuses for fiscal year 1998 and thereafter. In July 1998, AAS
informed Bell Canada that the Bonuses had been based on
performance reports containing false and misrepresentative
figures. The present lawsuit seeks damages related to the fiscal
year 1996 and 1997 Bonuses. There is no claim for damages based
on any fiscal year 1998 Bonuses that may have been due from AAS.

In the present lawsuit, it is alleged that defendants are
responsible for the alleged misrepresentations. Bell Corp.
subsequently filed a claim under Hartford's insurance policy. In
January 2000, Bell Corp. and Hartford settled the insurance
claim. Under the settlement, Bell Corp. assigned to Hartford all
of its rights, claims, and causes of action against Maynard,
Bedard, Boivin, and "all persons and entities acting on their
behalf in connection with the events" contained in Bell Corp.'s
insurance claim.

Hartford's complaint contains three counts. Count I is
labeled as a fraud claim against the three individual defendants.
Count II is labeled as a breach of contract claim against

Maynard, Bedard, and 2987988 Inc. Count III is labeled as a


resolve this issue on a motion to dismiss. First, as to the
choice of law issue, Hartford's factual allegations must be taken
as true and, in any event, the facts necessary to decide the
choice of law issue are only marginally developed. But even
assuming it were to be held that Quebec law applies, it is not
clear that there are no set of facts consistent with the
allegations of the complaint under which it would be clear that
Quebec law excludes the possibility of the separate fraud and
fiduciary duty claims. Third, even if the court were to rule in
defendants' favor on this issue, it would not affect discovery in
this case. Hartford would still be able to pursue the same
allegations under the rubric of a contract claim. Perhaps the
scope of recoverable damages would be more narrow, but that would
be unlikely to affect the scope of discovery, especially
considering that the fraud and fiduciary duty claims would still
not be dismissed as to Boivin. For the foregoing reasons, the
court will not resolve the choice of law issue or the related
issue of the scope of noncontractual claims.

Still to be considered is the question of whether Count I

satisfies the requirements of Fed. R. Civ. P. 9(b). Rule 9(b)

°(... continued)
the First APA and who is not named in the contract count.
Hartford's Quebec law expert summarily states that the contract
rule relied upon by defendants could not possibly apply to
Boivin.

- 14 -


identifies the individuals' positions at the companies. Id.
GZ 11-12. The misrepresentations are identified as the
overreporting of fiscal year 1996 and 1997 net sales figures.
Id. 97 22. The fraudulent acts are further identified as
"Creating and recording fictitious invoices on the books of the
SportRack Division; Recording sales to fictitious customers;

Churning of invoices, i.e., generating sales invoices that were

subsequently reversed through credit memos; Intentionally failing
to issue credits for returned inventory; Pre-booking of invoices
at the time of ordering for merchandise which was never shipped;
Recording sales at the time of ordering and again at the time of
shipment; Recording non-revenue transfers as sales, such as
transfers of merchandise to company warehouses; [and] Changing
due dates on invoices to misrepresent true aging of accounts
receivable." Id. @ 21.

Thus, the time, place, content, and method of
misrepresentation are identified. The fraudulent actors are also
sufficiently identified. It is not necessary to specifically
identify which of the particular defendants was directly
responsible for each act of fraud; identification of their
positions within the organization is sufficient at this point in
the litigation. See Bell Enterprises Venture v. Santanna Natural
Gas Corp., 2002 WL 1609417 *6 (N.D. Ill. Dec. 12, 2001); Petri v.

Gatlin, 997 F. Supp. 956, 974-75 (N.D. Ill. 1997); Alumax Mill


defendant 2987988 Canada Inc. ("2987988 Inc.") were shareholders
of SportRack Canada.? Pursuant to a May 12, 1995 Asset Purchase
Agreement (the "First APA"), Bell Canada acquired SportRack
Canada which became the Bell SportRack Division ("Bell
SportRack") of Bell Canada, with its operations remaining in
Granby. Defendants remained as officers of Bell SportRack.

Also, in accordance with § 9.13 of the First APA, Bedard entered
into an employment agreement with Bell Canada (the "Bedard
Employment Agreement") and Placement Jean Maynard Inc.
("Placement") entered into a consulting agreement with Bell
Canada in which Placement agreed to provide Maynard's services as
a consultant (the "Maynard Consulting Agreement"). Under the
First APA, Maynard and Bedard were thereafter entitled to certain
bonus payments? depending on the performance of Bell SportRack,
with the Bonus provisions later being amended in April 1996 (the
"1996 Amendment"). The Bonuses were to be computed annually
based on a June 30 fiscal year. Bell Canada paid the 1996 and

1997 fiscal year Bonuses.

1Defendants represent that Maynard and Bedard were
shareholders of 2987988 Inc. and further represent that 2987988
Inc. and an individual not named in the present lawsuit were the
shareholders of SportRack Canada.

2The Complaint refers to Earn-Outs, Mondial Bonuses, and
Excess Sales Bonuses, all of which are contained in Article 3 of
the First APA. For present purposes, there is no need to
distinguish the different types of bonus payments which will be
jointly referred to as the "Bonuses."


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

HARTFORD FIRE INSURANCE COMPANY
OF ILLINOIS,

Plaintiff,

JEAN MAYNARD, RICHARD BEDARD,
CAROLINE BOIVIN, and
2987988 CANADA INC.,

SOCKET EL

)
)
)
)
)
v. ) No. 01 c 4982 see
)
)
)
FEB 2 1 2002
)

Defendants.

MEMORANDUM OPINION AND ORDER

According to the allegations of the complaint, plaintiff
Hartford Fire Insurance Company of Illinois provided to Bell
Sports Corporation ("Bell Corp.") and its subsidiary Bell Sports
Canada, Inc. ("Bell Canada") insurance coverage for losses caused
by acts of employee dishonesty. Defendants Jean Maynard
(President), Richard Bedard (Director of Operations), and
Caroline Boivin (Controller) were officers of SportRack Canada,
Inc. ("SportRack Canada"), a Canadian corporation located in
Granby, Quebec which manufactured automotive roof rack systems
for bicycles, skis, kayaks, and other recreational equipment.

Directly and/or through other entities, Maynard, Bedard, and


Contracts which are effectively assigned to the
Buyer in accordance with their respective terms;
provided, however, that all liabilities and
obligations under Article IIT and Section 2,2 (vi)
of the [First APA as amended]” of the Seller to
the extent arising out of or related to periods
prior to and including the period ending on the
date of the Closing Balance Sheet (the "Excluded
Earnout Liabilities") shall not be assumed, paid

erformed by the Buyer (it being understood

that the Seller shall satisfy the Excluded
Earnout Liabilities in full on or prior to the

Closing);

Second APA § 1.3(b) (emphasis added).

Section 1.1(a) expressly provides that Excluded Assets
were not part of the rights transferred to AAS as part of the
Purchased Assets. Consistently, § 1.2(c) provides that claims or
rights against third parties relating to an Excluded Asset or
Excluded Obligation were not transferred and § 1.2(i) defines
Excluded Assets as inter alia contractual liabilities or
obligations that were not transferred. Excluded Earnout
Liabilities are specifically designated as a type of Excluded
Obligation (§ 1.4(i)) and would also fall under the definition of
an Excluded Asset. The introductory paragraph of § 1.4 makes
clear that Excluded Assets include "liabilities or obligations

relating to the PurchaseD Assets, all of which liabilities

and obligations shall at and after the closing remain the

7Article 3 includes the obligations to pay the Bonuses at
issue in the present case.

-12-


requires that "{iJn all averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated

with particularity." The circumstances of fraud or mistake
generally include "the identity of the person who made the
misrepresentation, the time, place and content of the
misrepresentation, and the method by which the misrepresentation

was communicated to the plaintiff." Slaney v. International

Amateur Athletic Federation, 244 F.3d 580, 599 (7th Cir.), cert.

denied, 122 S. Ct. 69 (2001); General Electric Capital Corp. v.

Lease Resolution Corp., 128 F.3d 1074, 1078 (7th Cir. 1997). A

complaint must outline the alleged misrepresentations and
reasonably notify a defendant of the specifics of the alleged

fraudulent activity. Lachmund v. ADM Investor Services, Inc.,

191 F.3d 777, 782 (7th Cir. 1999); Gilmore v. Southwestern Bell

Mobile Systems, L.L.C., 2001 WL 1539157 *10 (N.D. Ill. Nov. 30,

2001); Hirata Corp. v. J.B. Oxford & Co., 193 F.R.D. 589, 592

(S.D. Ind. 2000). Fair notice is the most basic consideration.

Vicom, Inc. v. Harbridge Merchant Services, Inc., 20 F.3d 771,

777-78 (7th Cir. 1994); Winthrop Resources Corp. v. Lacrad

International Corp., 2002 WL 24248 *3 (N.D. Ill. Jan. 7, 2002);
Gilmore, 2001 WL 1539157 at *10.

The allegations identify "Maynard, acting in collusion
with Bedard and Boivin" as the individual persons who engaged in

the fraudulent conduct. Complaint @ 20. The complaint also

- 15 -