LEXIS 6607, at *11 (N.D. Ill. May 18, 2001) (Darrah, J.). The
motion to reconsider is GraNTED as to the individual defendants and
my January 29, 2004 order is reversed as follows: Count V survives
against the individual defendants insofar as it is based on
fraudulent factual statements made in SEC filings signed by the
individual defendants.

The motion to reconsider is DENIED as to Counts IV and V
against PwC, As discussed in my previous order, plaintiffs fail to
plead sufficient facts to show that PwC had any duty to plaintiffs,
a requirement for a claim of negligent misrepresentation. The case
plaintiffs rely on, Builders Bank v. Barry Finkel & Assocs., 799
N.E.2d 30, 33 (T11. App. Ct. 2003), is inapposite, as the defendant
auditor in that case worked directly with the injured plaintiff
“personally consulting” with its representatives and “personally
providing” to the plaintiff that financial statements it had
prepared. Nothing like such intimate involvement between
Tricontinental and PwC is alleged here,

Similarly, the motion to reconsider is DENJED as to Count V. In
order to state a cause of action for fraudulent concealment, there
must be a duty on the part of the defendant to disclose the
information allegedly concealed. Tricontinental has not alleged
facts that, if true, would support its position that PwC bore such
a duty toward Tricontinental, because as I have stated in earlier

rulings in this case, an accountant has no duty to blow the whistle


of court to re-plead Counts IV and V with the support of a sturdier
set of alleged facts. They sought leave only to add two
supplemental claims, Counts VI and VII. Plaintiffs’ counsel assured
me in open court that Counts IV and V appeared in the Second
Amended Complaint “exactly as they were” in the Amended Complaint,
and that the proposed amendment presented no obstacle to the then-
pending motions to dismiss. Now that those counts have been
dismissed, plaintiffs argue that in fact, Counts IV and V are new
and improved in the Second Amended Complaint. Contrary to
plaintiffs’ argument, this court did not fail “to take into account
the relationship between the Amended Complaint and the Second
Amended Complaint,” because the Second Amended Complaint did not
“supersede the Amended Complaint” as to Counts IV and V. The new
and improved Counts IV and V simply are not before me, because I
never permitted them to be changed. Thus, in evaluating Counts IV
and V, I evaluate only the versions set forth in the original
Amended Complaint.

I erred in dismissing Count V against the individual
plaintiffs. The Amended Complaint does allege with sufficient
particularity that the individual defendants knowingly made false
factual statements in the SEC filings they signed. Lawrence E,
Jaffe Pension Plan v. Household Int’l, Inc., No. 02-C5893, 2004
U.S. Dist. LEXIS 4659, at *18 (N.D. Ill. Mar. 22, 2004) (Guzman,

J.); In re Anicom Inc. Sec. Litig., No. 00-C4391, 2001 U.S. Dist.



on improper behavior by its clients. Tricontinental, 184 F.

2d at 788,

ENTER ORDER:

fk? ae

Cue lee ae ee

Elaine E, Bucklo
United States District Judge

Dated: April & , 2004

Supp.


Minut aer Form (067)

United States District Court, Northern District of Hlinois

Nume of Assigned Judge Elaine E. Bucklo Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 01 C 5526 DATE 4/8/2004
CASE Tricontinental, et al. Vs. Anixter, et al.
TITLE
[ln the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.)

DOCKET ENTRY:

ag oO Filed motion of [ use listing in “Motion” box above. ]

Q) oO Brief in support of motion due

3) ao Answer brief to motion due . Reply to answer brief due

(4 a Ruling/Hearing on set for _ at

(5) o Status hearing[held/continued to] [set for/re-sct for] on setfor at

(6) a Pretrial conference[held/continued to) [set for/re-set for] on ___._ set for at

(7) oO Trial[set for/re-set for] on at

(8) o [Bench/Jury trial] [Hearing] held/continued to at

@) 0 This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) O Local Rule 41.1 COFRCP41(a)(1) OO FRCP41(x)(2).

(ao of [Other docket entry) Enter Memorandum Opinion and Order granting in part and denying in part
plaintiffs’ motion for reconsideration. The motion is granted as to the individual defendants and the order
of January 29, 2004 is reversed as follows: Count V survives against the individual defendants insofar
as it is based on fraudulent factual statements made in SEC filings signed by the individual defendants.
The motion is denied as to Counts TV and V against PWC.

(1) ff [For further detail see order attached to the original minute order.}

No notices required, advised in open court, Dgument

‘No notices required. ; lumber:
number of notices "

7 | Notices mailed by judge's staff.

Notified counsel by (elephone.

Dockcting to mail notices.

Mail AO 450 form, He Eh tees,

Copy to judge/magistrate judge,

courtroom wu - Waist
deputy’s
initials

MPI

Date/time received in

central Clerk's Office railing deputy witials



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

TRICONTINENTAL INDUSTRIES LTD.,
a British Columbia corporation,
and TRICONTINENTAL DISTRIBUTION
LIMITED, formerly known as
TEXCAN CABLES LIMITED, a
Canadian corporation,

Plaintiff,

v. No. 01 € 5526
ALAN B. ANIXTER, SCOTT C.
ANIXTER, CARL E. PUTNAM, DONALD
WELCHKO, individuals, and
PRICEWATERHOUSECOOPERS, LLP,

Defendants.

MEMORANDUM OPINION AND ORDER

Tricontinental Industries Ltd. and Tricontinental Distribution
Ltd., formerly known as Texcan Cables, Ltd. (collectively,
“Tricontinental”), sold assets to Anicom, Ltd. (“Anicom”’), in
exchange for Anicom stock, Tricontinental sues individual officers
and directors of Anicom as well as PricewaterhouseCoopers, LLP
(“Pwo”), 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. I have previously dismissed
the claims arising against PwC, Tricontinental Indus., Ltd. v.
Anixter, 184 F. Supp. 2d 786 (N.D. Ill. 2002), as well as the

claims against the individual officers and directors arising under

Ko


the Securities Act of 1933, Id, I have further granted the
individual defendants’ motion to dismiss with regard to certain
oral statements and press releases. Tricontinental Indus., Ltd. v.
Anixter, 215 F. Supp.2d 942 (N.D. Ill. 2002). Tricontinental filed
a first amended complaint, adding two new claims: (1) Count IV,
negligent misrepresentation on the part of PwC; and (2) Count V,
common law fraud, specifically fraudulent concealment, against both
PwC and the individual defendants. PwC moved to dismiss both
claims against it: the individual defendants moved to dismiss the
common law fraud claim against them, as wéll as to dismiss certain
Statements alleged by Tricontinental in support of its other
claims. While these motions to dismiss were pending, Tricontinental
moved to file a second amended complaint adding Counts VI and VII.
In open court, defense counsel objected to the second amended
complaint on the grounds that it might interfere with the pending
motions to dismiss. Plaintiff’s counsel assured the court that
Counts IV and V were exactly the same in the first and second
amended complaints. Based on that assurance, I permitted the entry
of the second amended complaint and proceeded to grant the motions
to dismiss in an order dated January 29, 2004. Now Tricontinental
moves for reconsideration of that ruling. J Granr in part and Deny
in part the motion to reconsider.

The plaintiffs exhibit some confusion about which version of

the complaint is under consideration. Plaintiffs did not seek leave