vague. Tricontinental fails to allege with particularity just what
acts or statements by PwC are fraudulent, as required by Rule 9(b).
Alleging that PwC lent an “aura of professionalism” to the
proceedings does not meet this standard.

As there has been no significant or controlling change in the
law or facts of this case since my previous order, the motion for

reconsideration is DENIED.

ENTER ORDER:
Lure 2 Buhlh-

Elaine E. Bucklo
United States District Judge

Dated: April 15, 2003


significant change in the law” as described in Bank of Waunakee.
Enron is equally inapposite. The Enron plaintiffs, a class of
investors in the failed energy company, filed suit against the
corporation and numerous companies that provided it with
professional services, including banks, law firms, and _ the
accounting firm Arthur Andersen, alleging that these companies
participated in massive securities fraud. The court, finding that
the complaint stated a claim against Arthur Andersen, adopted
language taken from an amicus brief filed by the Securities and
Exchange Commission, and wrote that “when a person, acting alone or
with others, creates a misrepresentation [on which the investor-
plaintiffs relied], the person can be liable as a primary violator
fof §10(b)]...if...he acts with the requisite scienter.” Enron, at
*76 (emphasis added). But Tricontinental does not allege that PwC
created any of the allegedly fraudulent documents, merely that it
“reviewed and provided assurance” regarding certain reports
provided to investors. To call PwC the “creator” of documents into
which it had no input as to either content or form, but which it
merely endorsed, is a stretch of the concept of creation.
Tricontinental’s final argument is that because PwC met with
the plaintiffs and “actively participated in the negotiation” of
the transaction it should be considered a “manipulative or
deceptive device or contrivance” under §10(b). But as I discussed

in my previous order, these allegations remain conclusory and


Minute Order Form (06/97)

United States District Court, Northern District of Minois

Name of Assigned Judi ai Sitting Judge if Other
oe Magistrate Judge Blaine E. Bucklo ‘an Assigned Judge
CASE NUMBER 01 C 5526 DATE 4/15/2003
CASE Tricontinental Industries, et al. vs. Anixter, et al.
TITLE

[in the following box (a) indicate the party filing the motion, c.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.)

MOTION:

DOCKET ENTRY:

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

(2) Oo Brief in support of motion due

GB) Qo Answer brief to motion due___. Reply to answer briefdue____.

(4) Oo Ruling/Hearing on set for____at

(5) im} Status hearing[held/continued to] [set for/re-set for}on ss setfor_ at,

(6) o Pretrial conferencefheld/continued to] [set for/re-set for]on__——ssetfor__——sat_

(7) a Trial[set for/re-set for] on __at.

(8) Qo [Bench/Jury trial] [Hearing] held/continued to ___at

(9) Oo This case is dismissed [with/without} prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) ClLocal Rule 41.1 OFRCP41(a)\(1) 0 FRCP41(a)(2).

(10) | [Other docket entry] Plaintiffs motion to reconsider the order of 1/18/02 is denied. Plaintiff's

motion for leave to supplement the motion for leave to file amended complaint and plaintiffs motion for
leave to file amended complaint are granted. Enter Memorandum Opinion and Order.

dl ff {For further detail see order attached to the original minute order.]

No notices required, advised in open court.

6

No notices required.

Y | Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

date mailed notice
courtroom

MP} deputy’s

dept MPs
initials

Date/time received in
central Clerk’s Office maiting deputy initials



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

TRICONTINENTAL INDUSTRIES LTD.,

)
et al., )
Plaintiffs,
v. No. 01 C 5526
ALAN B. ANIXTER, et al., DOCKETED
Defendants. ) APR 16 2003

MEMORANDUM OPINION AND ORDER

On September 21, 1998, Tricontinental Industries, Ltd. and
Tricontinental Distribution, Ltd. (“Tricontinental”) sold assets to
Anicom, Inc. (“Anicom”) in exchange for Anicom stock.
Tricontinental sued individual officers and directors of Anicom as
well as PricewaterhouseCoopers, LLP (“PwC”), an accounting firm
that provided auditing and consulting services to Anicom in the
time surrounding the transaction, for violations of the Securities
Acts of 1933 and 1934, and for violations of several Illinois laws.
On January 18, 2002, I granted PwC’s motion to dismiss the claims
against it on the grounds that it was a secondary actor that had
made no representations to the alleged victims of the scheme, and
thus could be liable for fraud only under an “aiding and abetting”
theory, which the Supreme Court has explicitly rejected. Central
Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511
U.S. 164, 191 (1994). Tricontinental now moves for reconsideration

of that order on the grounds that new law and new evidence warrant


reevaluation of the issue of PwC’s primary liability under §10(b)
of the Securities and Exchange Act and Rule 10b-5. I deny the
motion.

A motion for reconsideration may be granted on the basis of “a
controlling or significant change in the law or facts since the
submission of the issue to the Court.” Bank of Waunakee v.
Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990).
Tricontinental argues that two opinions issued during 2002, as well
as new evidence of PwC’s level of involvement in the transaction at
issue, constitute such a significant change in law and facts.
However, Tricontinental misreads the two cases it cites and
misinterprets the new facts it offers.

The two new cases Tricontinental points to are SEC v.
Zandford, 535 U.S. 813 (2002) and In re Enron, No. H-01-3624, 2002
U.S. Dist. LEXIS 25211 (S.D. Tex. Dec. 19, 2002). Zandford, a
Supreme Court case, is of course controlling authority that would
justify reconsideration of a previous order if it altered relevant
law, but it effected no change in the law I applied in this case.
I dismissed the claims against PwC because it was a secondary,
rather than a primary, actor, and thus it could not be held liable
for securities fraud. Zandford involved only one actor, a
securities broker who lied to and stole from his clients. It has no
impact on the liability of secondary actors, such as a fraudulent

broker’s auditors. Thus, it cannot be considered a “controlling or