NOT RECOMMENDED FOR PUBLICATION

File Name: 24a0248n.06

No. 23-5538

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JRS PARTNERS, GP, et al.,

Plaintiffs-Appellees,

v.

LEECH TISHMAN FUSCALDO & LAMPL, LLC, et al.,

Defendants-Appellants.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE MIDDLE 

DISTRICT OF TENNESSEE

OPINION

Before: STRANCH, LARSEN, and DAVIS, Circuit Judges.

LARSEN, Circuit Judge. The plaintiffs in this case are victims of a Ponzi scheme 

orchestrated by Chris Warren. They previously obtained a default judgment against Warren in 

federal district court. Now, they bring several claims of negligence and fraud against the lawyer 

and the law firm that represented Warren’s fraudulent company. The district court dismissed the 

plaintiffs’ state-law claims as time-barred, and it dismissed their federal securities-fraud claims for 

failure to meet the heightened pleading standards of the Private Securities Litigation Reform Act. 

For the following reasons, we AFFIRM in part and REVERSE in part. 

I.

A.

Chris Warren is the architect of a Ponzi scheme that he ran through his business, Clean 

Energy Advisors, LLC (CEA). CEA operated two funds—Solar IV and UIF—that purported to 

invest in solar energy projects in North Carolina and elsewhere in the United States. But these
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projects did not exist, and Warren “misappropriated the investment funds to create an illusion of a 

continuing prosperous enterprise.” R. 88, Am. Compl., PageID 1570. 

The plaintiffs are a partnership, three trusts, and a natural person who, together, lost 

millions of dollars to Warren’s fraudulent scheme. Jack Tyrrell is a partner in the plaintiff 

partnership and a trustee of two of the plaintiff trusts. Pat Ortale is a trustee of the third plaintiff 

trust and also an individual plaintiff. The plaintiffs first became acquainted with CEA in 2014, 

when they received a private offering memorandum inviting them to invest in Solar IV. As they 

considered investing in the fund, they conducted due diligence, reviewed satellite imagery of solar 

farms purportedly constructed by CEA, and spoke with Warren. When the plaintiffs asked to 

speak to CEA’s legal counsel, Warren referred them to defendant Brett Mankey, a partner at 

defendant law firm Leech Tishman Fuscaldo & Lampl, LLC (Leech Tishman). Leech Tishman 

had been hired to serve as CEA’s general counsel, and Mankey was the “lead attorney” working 

in that capacity. Id. at 1567–68. 

In October 2014, Tyrrell spoke with Mankey by phone, seeking to ensure that Solar IV was 

a legitimate investment. Mankey told him that Leech Tishman represented CEA and Solar IV and 

that the firm had relevant experience. Mankey further confirmed “the accuracy of the 

representations made to him by Chris Warren about” power purchase agreements that supposedly 

existed between the relevant solar projects and Duke Energy, and he stated that “there were no red 

flags” about Warren, CEA, or Solar IV. Id. at 1575. “[A]fter receiving advice and representations 

from Mankey during their due diligence phase,” the plaintiffs invested in Solar IV. Id. at 1571. 

Warren later approached Tyrrell and Ortale to inform them of another investment 

opportunity, this time in a fund known as UIF. Tyrrell and Ortale began another due-diligence 

review, seeking both to “validate the ongoing performance of Solar IV” and to “better understand 
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an insurance policy that would purportedly guarantee their investment in UIF.” Id. at 1576. Ortale 

emailed Warren asking that he either provide a copy of the UIF insurance policy or “arrange a call 

with CEA’s legal counsel to provide assurance that Solar IV was a ‘done deal.’” Id. Warren 

arranged a call between Ortale and Mankey. During the call, Mankey represented that: (1) “the 

Solar IV fund had closed to new investors in December 2014 with approximately $60 million of 

capital” comprising fifteen projects that had contracts with Duke Energy; (2) all of these projects 

were “installed and producing”; and (3) “Travelers Insurance had provided the wrap insurance 

policy for the fund, which was in force and effect.” Id. at 1577–78. Mankey did not tell Ortale 

that neither he nor anyone at Leech Tishman had ever “seen any of the operative documents [for 

Solar IV] or taken any independent steps to verify the information” they had received from Warren. 

Id. at 1578. 

After the call, Ortale sent a follow-up email to Mankey with questions about the respective 

tax advantages for UIF’s general and limited partners. After consulting tax attorneys at the firm, 

Mankey explained that “UIF would be structured to provide certain tax benefits to investors like 

the Plaintiffs.” Id. at 1579.

Ortale continued to question Mankey about UIF. In an email copied to Tyrrell and Warren, 

Ortale asked about the relationship between a term in a supposed agreement with Duke Energy 

and the purported insurance policy. Mankey said he would respond after he looked at the policy. 

Warren then chimed in, claiming that “the revenue stream in UIF was completely insured in the 

event of default by the utility company . . . and in the event of storm damage.” Id. at 1580. Ortale 

responded: “Brett [Mankey], as legal counsel to the partnership, do you concur?” Id. Mankey 

wrote: “After reviewing the list of insurance coverage exclusions provided by Chris [Warren] as 

well as the language governing the same in a standard Duke [Energy power purchase agreement], 
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I concur that the risk of storm damage should be covered.” Id. Mankey further noted that the 

policy’s exclusions for cyber risk, governmental action, war, terrorism, and nuclear hazard were 

“very standard coverage exclusions.” Id. Despite these representations by Mankey and Warren, 

no insurance policy existed, and Mankey “never told Plaintiffs that neither he, nor anyone else at 

Leech Tishman, had ever actually reviewed an insurance policy issued by Travelers Insurance 

covering either UIF or Solar IV.” Id. at 1580–81. 

Mankey and Leech Tishman also promoted CEA’s funds to others. In October 2015, 

Mankey emailed another individual to connect him to a CEA manager, attaching promotional 

materials. And in July 2015, another Leech Tishman partner emailed UIF promotional materials 

to at least two people. Neither Mankey nor Leech Tishman ever told the plaintiffs that they were 

promoting CEA’s funds to others.

In April 2017, Warren provided the plaintiffs with an audit letter supposedly issued by 

accounting firm CohnReznick. The plaintiffs found the letter suspicious, so they contacted 

CohnReznick and learned that it had never audited CEA. The plaintiffs planned to confront 

Warren about this, but before they could do so, on May 5, 2017, several of the plaintiffs received 

“victim notification letters” from the FBI. Id. at 1582–83. These letters identified the plaintiffs as 

“possible victim[s] of crime.” Id. at 1583. At the FBI’s request, Tyrrell and Ortale met with agents 

on May 23, 2017.

During the meeting, the agents told Tyrrell and Ortale that they were investigating Warren, 

CEA, and the funds, and they advised them that other investors in the funds had been able to 

redeem their investments. At the agents’ suggestion, the plaintiffs “began a coordinated effort to 

seek a redemption of their investments.” Id. At that time, they “still did not know whether their 

money was lost.” Id.
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Beginning in June 2017, Tyrrell communicated with Warren about redeeming the 

investments, and Warren assured him that he would execute the redemption. But Warren 

repeatedly delayed, and he ceased communications in August 2017 without ever redeeming the 

investments.

On August 21, 2017, the plaintiffs had a phone call with Mankey, because they had begun 

“to question the advice and representations” he had made and “the legal work provided by Leech 

Tishman.” Id. at 1585. Mankey told the plaintiffs that he and Leech Tishman had “simply 

accepted what Mr. Warren told him at face value, and failed to do any of his own diligence into 

Mr. Warren, CEA, or the Funds.” Id. He also stated that he had never seen “a single” power 

purchase agreement between CEA and Duke Energy and, indeed, that he had not received 

“anything [with respect to documentation] that [he] normally would [have] representing someone 

in a fund.” Id. (alterations in original). And Mankey admitted to the plaintiffs that he thought 

Warren was “very squirrelly,” that Warren was difficult to work with and “reticent to pay Leech 

Tishman for its work,” and that Mankey was concerned that Warren was “using Leech Tishman’s 

name to sell UIF after the fact.” Id. at 1586.

On September 14, 2017, the plaintiffs entered into a tolling agreement with Leech Tishman. 

The parties agreed not to count the period from September 14, 2017, to April 1, 2019, “in 

determining the applicability of any statute of limitations, laches, or any other defense based on 

the lapse of time in any action or proceeding brought by either party against the other.” R. 17-5, 

Tolling Agreement, PageID 405.

B.

On May 31, 2019, the plaintiffs sued Mankey and Leech Tishman in federal district court, 

alleging legal malpractice, negligent and fraudulent misrepresentation, negligent retention and 
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supervision, and civil conspiracy.1 After some of those claims were dismissed under Federal Rule 

of Civil Procedure 12(b)(6), the plaintiffs filed an amended complaint. The amended complaint 

added a negligence claim against Leech Tishman and federal securities-fraud claims against both 

Mankey and Leech Tishman.

The defendants again moved to dismiss, and the court granted those motions in part. As 

relevant here, the court determined that the securities-fraud allegations did not satisfy the 

heightened pleading standards applicable to those claims and that the negligence claim was barred 

by the statute of limitations. But the court denied the motions to the extent they sought dismissal 

of the claims of negligent and fraudulent misrepresentation and negligent retention and 

supervision, concluding that this request was barred by Rule 12(g)(2). At the close of the 

pleadings, the defendants filed Rule 12(c) motions for judgment on the pleadings as to the 

remaining claims. The court granted those motions on the ground that the remaining claims were 

barred by the statute of limitations.

The plaintiffs timely appealed. 

II.

In this appeal, the plaintiffs challenge the district court’s ruling that their negligence claim 

against Leech Tishman and their negligent- and fraudulent-misrepresentation claims against both 

1 This was not the first legal action to result from Warren’s fraudulent scheme. In September 2017, 

a partially overlapping group of plaintiffs sued Warren, CEA, and others involved in the scheme. 

See JRS Partners, GP v. Warren, No. 3:17-cv-1258, Dkt. 1 (M.D. Tenn. Sept. 13, 2017). In May 

2018, the court entered a default judgment against Warren, ordering him to pay approximately $35 

million to those plaintiffs. See JRS Partners, GP v. Warren, 2018 WL 4945230, at *1–2 (M.D. 

Tenn. May 8, 2018). Shortly thereafter, in June 2018, a federal grand jury charged Warren with 

twelve counts of fraud and money laundering. See United States v. Warren, No. 3:18-cr-153, Dkt. 

1 (M.D. Tenn. June 27, 2018). Warren pleaded guilty to two counts, and he was sentenced to 108 

months of imprisonment and ordered to pay over $15 million in restitution. See United States v. 

Warren, No. 3:18-cr-153, Dkt. 58 (M.D. Tenn. June 21, 2019). 
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defendants were time-barred. They also challenge the dismissal of their federal securities-fraud 

claims against Leech Tishman for failure to adequately plead scienter. We review de novo a 

district court’s dismissal under Rule 12(b)(6) or (c). Conlon v. InterVarsity Christian Fellowship, 

777 F.3d 829, 832 (6th Cir. 2015); Jackson v. City of Cleveland, 925 F.3d 793, 806 (6th Cir. 2019). 

We consider the state-law claims before turning to the federal securities-fraud claims. 

A.

Rule 12 motions are normally “inappropriate vehicle[s] for dismissing a claim based upon 

the statute of limitations.” Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012). That is 

because the statute of limitations is an affirmative defense on which a defendant bears the burden 

of proof, Surles v. Andison, 678 F.3d 452, 458 (6th Cir. 2012), and a plaintiff has “no obligation 

under Rule 8 to plead compliance with the statute of limitations,” Michalak v. LVNV Funding, 

LLC, 604 F. App’x 492, 493 (6th Cir. 2015). However, if “the allegations in the complaint 

affirmatively show that the claim is time-barred,” dismissal at the pleading stage is appropriate. 

Cataldo, 676 F.3d at 547.

There are three components to the statute-of-limitations defense in Tennessee law: “the 

length of the limitations period, the accrual of the cause of action, and the applicability of any 

relevant tolling doctrines.” Redwing v. Cath. Bishop for the Diocese of Memphis, 363 S.W.3d 436, 

456 (Tenn. 2012). Each of these components is at issue here. Broadly speaking, the parties 

dispute: (1) whether a one-year or a three-year limitations period applies, (2) whether the face of 

the complaint reveals the accrual date of the claims, and (3) what effect to give to a tolling 

agreement between the plaintiffs and Leech Tishman. 
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1.

Our first task is to identify the relevant limitations period. The district court determined 

that Tennessee’s one-year statute of limitations for legal malpractice claims governed all of the 

plaintiffs’ state-law claims. We conclude that the district court was right as to the claims of 

negligence and negligent misrepresentation, but that it erred in applying this limitations period to 

the claim of fraudulent misrepresentation. 

Tennessee’s statute of limitations for legal malpractice provides: 

Actions and suits against licensed public accountants, certified public accountants, 

or attorneys for malpractice shall be commenced within one (1) year after the cause 

of action accrued, whether the action or suit is grounded or based in contract or tort.

Tenn. Code Ann. § 28-3-104(c)(1). This limitations period can apply even if there is no 

attorney‐client relationship between the parties, so long as “the cause of action asserted against the 

defendant attorneys is one for malpractice in the performance of their [professional] duties.” Sec.

Bank & Tr. Co. v. Fabricating, Inc., 673 S.W.2d 860, 863 (Tenn. 1983); see also Hanson v. 

Rudnick & Wolfe, 992 F.2d 1216, 1993 WL 100084, at *6 (6th Cir. 1993) (table). 

Under Tennessee law, courts must identify the governing statute of limitations by 

ascertaining “the gravamen of each claim.” Benz-Elliott v. Barrett Enters., LP, 456 S.W.3d 140, 

149 (Tenn. 2015). “[T]his rather elliptical phrase refers to the ‘substantial point,’ the ‘real 

purpose,’ or the ‘object’” of the claim. Redwing, 363 S.W.3d at 457 (citation and footnote 

omitted). To ascertain the gravamen of a claim, Tennessee courts look to (1) “the legal basis of 

the claim” and (2) “the type of injuries for which damages are sought.” Benz-Elliott, 456 S.W.3d 

at 151. The gravamen is “not dependent upon the ‘designation’ or ‘form’ litigants ascribe to an 

action.” Id. at 148 (quoting Redwing, 363 S.W.3d at 457); cf. Pera v. Kroger Co., 674 S.W.2d 
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715, 719–20 (Tenn. 1984) (explaining that a breach-of-contract claim could be subject to the real 

property statute of limitations).

Negligence and Negligent Misrepresentation. We agree with the district court that the 

gravamen of the plaintiffs’ negligence and negligent-misrepresentation claims was professional 

malpractice. In their negligence claim, the plaintiffs alleged that Leech Tishman, through certain 

of its tax attorneys, breached its “duty to act as a reasonable law firm would in analyzing the tax 

structure of the UIF Fund.” R. 88, Am. Compl., PageID 1596. Those attorneys allegedly gave tax 

advice to Mankey (who in turn relayed it to the plaintiffs) without ever “review[ing] the underlying 

documents,” which did not exist. Id. And in their negligent-misrepresentation claim, the plaintiffs 

alleged that Mankey and Leech Tishman, who, “[a]s a lawyer and a law firm, . . . are held to a 

higher standard than a lay person,” communicated false information to them about CEA’s funds. 

Id. at 1598. Specifically, the plaintiffs claimed that the defendants “fail[ed] to verify the accuracy 

of any information they transmitted to Plaintiffs, fail[ed] to review documentation that a lawyer 

would normally expect to review when representing entities like CEA,” and “merely parrot[ed]” 

what Warren had told them. Id. The defendants had committed these alleged wrongs despite being 

“in a position to describe the inner workings of CEA and the Funds” by virtue of their role as 

“general counsel and outside counsel.” Id. These claims are straightforwardly based on the 

defendants’ alleged failure “to meet the requisite standards of [their] profession.” PNC 

Multifamily Cap. Institutional Fund XXVI Ltd. P’ship v. Bluff City Cmty. Dev. Corp., 387 S.W.3d 

525, 546 (Tenn. Ct. App. 2012) (citation omitted). Moreover, the plaintiffs claimed that their 

injuries flowed from their reliance on the tax attorneys’ “negligen[t]” analysis of the fund’s tax 

structure and on Mankey’s “negligent misrepresentations” about CEA and the funds. R. 88, Am. 
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Compl., PageID 1597, 1599. In sum, the legal basis of the claims and the type of injuries for which

the plaintiffs seek damages establish that the gravamen of the claims is professional malpractice.

Relying primarily on Ticor Title Insurance Co. v. Smith, 794 S.W.2d 734 (Tenn. Ct. App. 

1990), the plaintiffs protest that it is premature to identify a statute of limitations because factual 

development might show that the defendants were functioning as agents, not lawyers, for CEA 

and Warren. But Ticor simply demonstrates that malpractice is not always the gravamen of a claim 

brought against attorneys. See id. at 737 (“[T]he fact that one is a lawyer does not prevent his 

becoming the agent of another for purposes other than the practice of his profession.” (citation 

omitted)). It does not follow that the gravamen of a claim cannot, in appropriate cases, be 

ascertained at the pleading stage. Indeed, the Supreme Court of Tennessee has explained that the 

“fact-intensive” effort to ascertain the gravamen of a claim “requires a careful examination of the 

allegations of the complaint.” Benz-Elliott, 456 S.W.3d at 151 (emphasis added). At this stage, 

the plaintiffs enjoy the benefit of having their allegations taken as true. So taken, their negligence 

and negligent-misrepresentation claims are based solely on the defendants’ negligent failure to 

satisfy professional standards in the performance of their duties as lawyers. As the district court 

concluded, the plaintiffs’ allegations “do[] not leave the door open for an alternative theory of 

liability.” R. 135, Order, PageID 2080. In other words, the plaintiffs pleaded that it was the 

defendants’ negligent discharge of their professional duties—their failure to verify information on 

which they relied in rendering legal advice—that injured them, and they did not plead any 

alternative theory of injury in these counts. Accordingly, the district court was correct to apply 

Tennessee’s one-year malpractice statute of limitations to the claims of negligence and negligent 

misrepresentation.
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Fraudulent Misrepresentation. The district court erred, however, in reaching that same 

conclusion as to the claim of fraudulent misrepresentation. To be sure, this count of the complaint 

is substantially similar to the count alleging negligent misrepresentation. Like the latter, the 

fraudulent-misrepresentation count alleged that Mankey made misrepresentations to the plaintiffs 

while he “was working on behalf of Leech Tishman as CEA’s general counsel.” R. 88, Am. 

Compl., PageID 1600. The plaintiffs also repeated the assertion that, “[a]s a lawyer and a law 

firm, Defendants are held to a higher standard than a lay person,” and that the defendants “were in 

a position to describe the inner workings of CEA and the Funds.” Id. At first blush, these 

allegations suggest that the legal basis of the claim is, again, professional malpractice. But unlike 

the negligent-misrepresentation claim, this count of the complaint further alleges that, when the 

defendants made the misrepresentations, “they either knew [their statements] were false or acted 

with reckless disregard as to their truth or falsity.” Id. And the factual background in the complaint 

provides at least colorable support to that characterization—alleging that Mankey made specific, 

technical representations about CEA’s funds without ever reviewing anything that could 

substantiate those representations, and suggesting that Mankey acted with the purpose of 

promoting the funds.

The knowing-or-reckless allegation, taken in the context of the complaint’s broader 

allegations, shifts the basis of the claim from malpractice to fraud. See PNC Multifamily Cap., 

387 S.W.3d at 546 (“[C]omplaints asserting claims for intentional misconduct against a 

professional, including fraud and misrepresentation, . . . do not sound in legal malpractice.” 

(brackets and citation omitted)). True, the claim is premised upon essentially the same factual 

background as the prior claims, but it relies on an alternative characterization of the defendants’ 

wrongdoing—as fraudulent rather than negligent. See id. at 549 (describing the difference between 
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fraudulent and negligent misrepresentation); Metro. Gov’t of Nashville & Davidson Cnty. v. 

McKinney, 852 S.W.2d 233, 237 (Tenn. Ct. App. 1992) (explaining that fraudulent 

misrepresentation requires a “false representation . . . made either knowingly or without belief in 

its truth or recklessly”). And the Supreme Court of Tennessee has emphasized that “parties may 

assert alternative claims and defenses” that “may well be subject to differing statutes of 

limitations.” Benz-Elliott, 456 S.W.3d at 148; see also id. at 148–49 (rejecting an approach by 

which a court would have to “identify a single gravamen from a complaint that alleges alternative, 

and potentially inconsistent, claims”). In other words, although the defendants’ role as legal 

counsel to CEA provided the occasion for the alleged wrongdoing, the basis of this claim is 

ultimately the allegation that the defendants knowingly or recklessly misled the plaintiffs, not that 

they were negligent in discharging their professional duties. 

The type of damages the plaintiffs requested also supports the conclusion that the gravamen 

of the claim is fraud, not malpractice. See id. at 151. Unlike the negligence and negligentmisrepresentation claims, which requested only compensatory damages, the fraudulentmisrepresentation claim additionally sought punitive damages because of the defendants’ 

recklessness. In Tennessee, “punitive damages are restricted to cases involving only the most 

egregious of wrongs”; accordingly, they may be awarded only if a defendant acted intentionally, 

fraudulently, maliciously, or recklessly. Barnett v. Lane, 44 S.W.3d 924, 928 (Tenn. Ct. App. 

2000) (cleaned up). The requested damages likely would not be justified by a malpractice injury 

stemming only from “failure . . . to meet the requisite standards of the [legal] profession.” PNC 

Multifamily Cap., 387 S.W.3d at 546 (citation omitted); cf. Benz-Elliott, 456 S.W.3d at 152 

(concluding that the gravamen of the claim was breach of contract, in part because the requested 

remedy of “[s]pecific performance . . . is available solely for breach of contract claims”). 
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The defendants do not point us to any Tennessee authority that would suggest that the 

gravamen of this claim is, in fact, legal malpractice. The unpublished district court decisions on 

which they rely—Keszthelyi v. Tune, Entrekin & White, P.C., 2008 WL 1869740 (E.D. Tenn. Apr. 

23, 2008), and Melton v. Bank of Lexington, 2008 WL 11411307 (W.D. Tenn. Dec. 18, 2008)—

were decided before the Supreme Court of Tennessee clarified its gravamen test in Benz-Elliott. 

So they lack any analysis of the controlling test. 

Nor does Mankey’s reliance on cases from Ohio or Kentucky get him anywhere. In Wilkey 

v. Hull, the court decided at summary judgment that, as a matter of Ohio law, the plaintiff’s claim 

was “based upon facts that constitute allegations of legal malpractice,” rather than fraud. 598 F. 

Supp. 2d 823, 830 (S.D. Ohio 2009), aff’d, 366 F. App’x 634 (6th Cir. 2010). It did not apply 

Tennessee’s gravamen test. And Mankey’s reliance on Kentucky caselaw, see Seiller Waterman, 

LLC v. RLB Props., Ltd., 610 S.W.3d 188, 203–04 (Ky. 2020); Abel v. Austin, 411 S.W.3d 728, 

737–39 (Ky. 2013), is similarly unavailing because Kentucky’s malpractice statute of limitations 

is framed much more broadly than Tennessee’s. It governs civil actions “arising out of any act or 

omission in rendering, or failing to render, professional services for others,” Ky. Rev. Stat. Ann. 

§ 413.245 (emphasis added), but Tennessee’s applies only to civil actions “for malpractice,” Tenn. 

Code Ann. § 28-3-104(c)(1) (emphasis added). Mankey has given us no reason to think that, 

despite these significant statutory differences, Kentucky caselaw provides suitable guidance for 

applying the gravamen test articulated by the Supreme Court of Tennessee.

In sum, even though the count asserting a claim of fraudulent misrepresentation contains 

language invoking the professional duties of lawyers, the legal basis of the claim and the type of 

injury for which damages are sought reveal that the gravamen of this claim is not professional 
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malpractice but fraud. The district court therefore erred in deciding that Tennessee’s one-year 

malpractice statute of limitations governed this claim. 

2.

The next step in evaluating a statute-of-limitations defense is to determine when the 

plaintiffs’ claims accrued. We agree with the district court that the negligence and 

negligent‐misrepresentation claims accrued no later than May 23, 2017.

“The concept of accrual relates to the date on which the applicable statute of limitations 

begins to run.” Redwing, 363 S.W.3d at 457. Tennessee employs a “specific formulation” of the 

discovery rule to identify the accrual of a legal malpractice cause of action. Carvell v. Bottoms, 

900 S.W.2d 23, 26 (Tenn. 1995). Under this rule, a claim of legal malpractice accrues when the 

plaintiff (1) suffers injury as a result of the defendant’s negligence and (2) knows or “in the 

exercise of reasonable diligence” should know “that this injury was caused by [the] defendant’s 

negligence.” Id. at 28; see also Redwing, 363 S.W.3d at 458 (explaining that discovery “include[s] 

not only the discovery of the injury but also the discovery of the source of the injury”). This rule 

does not, however, “delay the accrual of a cause of action . . . until the plaintiff knows the full 

extent of the damages or until the plaintiff knows the specific type of legal claim it has.” Redwing, 

363 S.W.3d at 459 (citations omitted).

An injury for purposes of the first prong “may . . . take the form of the plaintiff being forced 

to take some action or otherwise suffer ‘some actual inconvenience,’ such as incurring an 

expense.” John Kohl & Co. P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn. 1998)

(citation omitted). For instance, in John Kohl & Co., the defendant lawyer provided the plaintiffs 

with erroneous tax advice. Id. at 530–31. The court concluded that the requisite “injury” occurred 

when the plaintiffs received a letter from the IRS that required their accountant to clarify 
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discrepancies in their tax return. Id. at 533. It was immaterial that the IRS had not, at that time, 

taken formal action against the plaintiffs, because “it was unnecessary for the plaintiffs to have 

suffered all the injurious effects or consequences of the defendants’ negligence in order for the 

statute to begin running.” Id. Similarly, here, the complaint reveals that the plaintiffs had been 

injured by the time they met with the FBI because they were forced to take action to investigate

their possible victimization and to attempt to recover their money. It does not matter that the 

plaintiffs were not yet certain that their money was lost. That question goes to their knowledge of 

the extent of the injury, which is not the relevant inquiry. See id.; Redwing, 363 S.W.3d at 459. 

The first prong of the discovery rule was therefore satisfied by May 23, 2017.

The second prong was also satisfied at that time. Taken as true, the plaintiffs’ allegations 

show that, in the exercise of reasonable diligence, they should have known by May 23, 2017, that 

the defendants’ false statements were a source of their injury. See Cataldo, 676 F.3d at 547

(dismissal on the pleadings is appropriate if “the allegations in the complaint affirmatively show 

that the claim is time-barred”). The complaint shows that, by May 23, 2017, the plaintiffs: knew 

that they had relied on Mankey’s and Leech Tishman’s representations of key facts about CEA’s 

funds; had investigated and confirmed that Warren sent them a fraudulent audit letter; had 

contacted and met with the FBI to learn about Warren’s fraudulent scheme; and were planning a 

coordinated effort to retrieve their money. The dedicated efforts that were underway by May 23, 

2017, demonstrate that the plaintiffs were “aware of facts sufficient to place a reasonable person 

on notice” that Mankey and Leech Tishman had provided them with false information that led to 

their injury. Sherrill v. Souder, 325 S.W.3d 584, 595 (Tenn. 2010); see also Redwing, 363 S.W.3d 

at 459 (“Once a plaintiff gains information sufficient to alert a reasonable person of the need to 

investigate the injury, the limitation period begins to run.” (cleaned up)). That is enough to satisfy 
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the discovery rule, even if the plaintiffs did not at that time “know the specific type of legal claim 

[they] ha[d] [against the defendants], or that the injury constituted a breach of the appropriate legal 

standard.” John Kohl & Co., 977 S.W.2d at 533.

In sum, the plaintiffs’ negligence and negligent-misrepresentation claims accrued no later 

than May 23, 2017.2 

3.

The final step is to determine whether the limitations period must be tolled. The plaintiffs 

contend that a tolling agreement tolled the limitations period with respect to their claims against 

Leech Tishman. We agree.

A tolling agreement is “governed by contract law,” so we “interpret [the agreement] as 

written according to its plain terms.” Tenn-Fla Partners v. Shelton, 233 S.W.3d 825, 829 (Tenn. 

Ct. App. 2007). The plaintiffs and Leech Tishman entered into an agreement stating that the period 

of September 14, 2017, through April 1, 2019, was not to be included “in determining the 

applicability of any statute of limitations, laches, or any other defense based on the lapse of time 

in any action or proceeding brought by either party against the other.” R. 17-5, Tolling Agreement, 

PageID 405.3

Leech Tishman maintains that the claims against it are barred “by operation of law.”

Specifically, Leech Tishman explains that the claims are based on its vicarious liability for the acts 

2 We need not consider whether a different accrual analysis applies to the 

fraudulent‐misrepresentation claim. We have concluded that it is not subject to the one-year statute 

of limitations, and the defendants have not argued that it is nonetheless time-barred under some 

other limitations period. 

3 The parties apparently amended the tolled period in this agreement several times. The plaintiffs 

state that the period referenced above reflects the final agreement, and the defendants have not 

contested this assertion.
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of its agents—Mankey and the tax attorneys. When the plaintiffs sued Leech Tishman, it observes, 

the statute of limitations had already run as to the agents. And, under Tennessee law, a claim 

“against a principal is precluded ‘when the plaintiff’s claim against the agent is procedurally barred 

by operation of law before the plaintiff asserts’” its claim against the principal. Taylor v. Miriam’s 

Promise, 2019 WL 410700, at *10 (Tenn. Ct. App. Jan. 31, 2019) (quoting Abshure v. Methodist 

Healthcare-Memphis Hosps., 325 S.W.3d 98, 106 (Tenn. 2010)). Thus, in Leech Tishman’s view, 

the plaintiffs allowed their claims against Leech Tishman to become procedurally barred by failing 

to preserve them against Leech Tishman’s agents before the expiration of the limitations period—

and the tolling agreement did not save the claims from the operation of this common-law rule. 

Leech Tishman’s argument conflicts with the plain terms of the tolling agreement. Even 

though Leech Tishman attempts to characterize its position as an “operation of law” or “vicarious 

liability” defense, its argument amounts to an assertion that the plaintiffs’ claims were barred by 

the lapse of time. It is no matter that the statute of limitations had run as to the agents when the 

plaintiffs brought their claims against Leech Tishman, the principal. The agreement does not 

provide special rules for vicarious-liability claims. It simply says, in blanket terms, that the tolled 

period shall not be used to “determin[e] the applicability of any statute of limitations . . . or any 

other defense based on the lapse of time.” R. 17-5, Tolling Agreement, PageID 405. By those 

terms, the parties contracted around any time-based common-law rule that Leech Tishman could 

have invoked, including the defense that the vicarious-liability claims were extinguished by the

running of the statute of limitations as to Leech Tishman’s agents.4

4 Leech Tishman cites two Ohio appellate decisions. See Taft, Stettinius, & Hollister, LLP v. 

Calabrese, 69 N.E.3d 72 (Ohio Ct. App. 2016); Seniah Corp. v. Buckingham Doolittle & Burrows, 

LLP, 109 N.E.3d 69 (Ohio Ct. App. 2018). But Leech Tishman makes no effort to analyze these 

cases, or to explain why it believes the Supreme Court of Tennessee would follow them. So we 

do not consider them further. See Williamson v. Recovery Ltd. P’ship, 731 F.3d 608, 621 (6th Cir. 
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Therefore, the tolled period must be excluded from consideration in evaluating Leech 

Tishman’s time-based defense. The district court erred in failing to do so.5 See Beckwith v. LBMC, 

P.C., 2019 WL 1306201, at *5 (Tenn. Ct. App. Mar. 21, 2019) (vacating a trial court’s dismissal 

of a claim as time-barred because “the tolling agreement stopped the running of the statute of 

limitations during the tolling period”).

4.

In light of our analysis of the various aspects of the defendants’ statute-of-limitations 

defenses, we draw the following conclusions as to which of the plaintiffs’ claims are time-barred. 

Contrary to the district court’s determination, the fraudulent-misrepresentation claim 

against both defendants is not barred by the statute of limitations. As discussed above, the 

gravamen of the claim is fraud, not malpractice, so it is not subject to the one-year statute of 

limitations for malpractice claims. And Mankey and Leech Tishman have not argued that the 

claim is time-barred under some other limitations period. In any event, it appears that a three-year 

statute of limitations should apply to the claim. See Tenn. Code Ann. § 28-3-105(1) (providing 

for a three-year statute of limitations for “[a]ctions for injuries to personal or real property”). So, 

assuming an accrual date of May 23, 2017, the plaintiffs filed suit comfortably within this 

2013) (“Issues adverted to in a perfunctory manner, without some effort to develop an argument, 

are deemed forfeited.”).

5 Leech Tishman observes that, in a pair of cases decided together, the Supreme Court of Tennessee 

cited the district court’s opinion with apparent approval. See Ultsch v. HTI Mem’l Hosp. Corp., 

674 S.W.3d 851, 867 (Tenn. 2023); Gardner v. Saint Thomas Midtown Hosp., 674 S.W.3d 834, 

848 (Tenn. 2023). But these cases contain no discussion of the district court’s opinion, and they 

have nothing to do with tolling agreements. Rather, the Supreme Court of Tennessee appears to 

have cited the opinion as an example of a case articulating the relevant vicarious-liability 

principles. It is a far stretch to read these citations as an endorsement of the district court’s analysis 

of an issue not before the Supreme Court of Tennessee, and we decline to make that inferential 

leap. 
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limitations period on May 31, 2019. We reverse the district court’s dismissal of this claim as to 

both defendants.

The district court also erred in dismissing the claims of negligence and negligent 

misrepresentation against Leech Tishman. As the district court concluded, the gravamen of these 

claims is malpractice, so they are subject to a one-year statute of limitations. But, even though the 

plaintiffs filed suit after the limitations period had run, their tolling agreement with Leech Tishman 

preserved the claims. Because the district court failed to enforce the tolling agreement according 

to its plain terms, we reverse the dismissal of these claims as to Leech Tishman.6

The negligent-misrepresentation claim against Mankey, however, was properly dismissed. 

The plaintiffs did not enter into a tolling agreement with Mankey, so their filing of suit on May 

31, 2019—more than one year after the claim accrued on May 23, 2017—was not timely. We 

affirm the dismissal of this claim as to Mankey.

B.

The plaintiffs next challenge the dismissal of their claims under §§ 10(b) and 20(a) of the 

Securities Exchange Act of 1934 against Leech Tishman. Because the viability of the § 20(a) 

claim turns on that of the § 10(b) claim, we focus our attention on the latter. 

Section 10(b) makes it unlawful “[t]o use or employ, in connection with the purchase or 

sale” of securities, “any manipulative or deceptive device or contrivance in contravention” of rules 

promulgated by the Securities and Exchange Commission. 15 U.S.C. § 78j(b). That statute and 

SEC Rule 10b-5 promulgated thereunder prohibit “fraudulent, material misstatements or 

6 The negligence claim was added in the plaintiffs’ amended complaint, which was filed on May 

17, 2021, but the district court noted that Leech Tishman did not contest that this claim “relates 

back to the time of the filing of the original complaint.” R. 110, Order, PageID 1888 n.14; see

Fed. R. Civ. P. 15(c)(1). Nor has Leech Tishman challenged this ruling on appeal, so the argument 

is waived. 
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omissions in connection with the sale or purchase of a security.” Frank v. Dana Corp., 547 F.3d 

564, 569 (6th Cir. 2008) (citation omitted). To state a claim under § 10(b) and Rule 10b-5, a 

private litigant “must allege, in connection with the purchase or sale of securities, the misstatement 

or omission of a material fact, made with scienter, upon which the plaintiff justifiably relied and 

which proximately caused the plaintiff’s injury.” La. Sch. Emps.’ Ret. Sys. v. Ernst & Young, LLP, 

622 F.3d 471, 478 (6th Cir. 2010) (quoting Frank, 547 F.3d at 569).

This case concerns the scienter element, which is subject to the heightened pleading 

standards established by the Private Securities Litigation Reform Act (PSLRA), 15 U.S.C. 

§ 78u‐4(b)(2). City of Taylor Gen. Emps. Ret. Sys. v. Astec Indus., Inc., 29 F.4th 802, 810 (6th 

Cir. 2022). The PSLRA requires that, “with respect to each act or omission alleged,” a plaintiff 

“state with particularity facts giving rise to a strong inference that the defendant acted with the 

required state of mind.” 15 U.S.C. § 78u-4(b)(2)(A). In Tellabs, Inc. v. Makor Issues & Rights, 

Ltd., the Supreme Court established a three-step framework for evaluating scienter allegations 

under this “strong inference” standard. 551 U.S. 308, 322–23 (2007). First, as with any Rule 

12(b)(6) motion, we must accept the complaint’s factual allegations as true. Id. at 322. Second, 

we must consider the complaint’s allegations collectively, or holistically, including any documents 

incorporated into the complaint by reference and any matters of which we may take judicial notice. 

Id. at 322–23. Third, we must take into account “plausible opposing inferences,” because an 

inference is only “strong” if it is “at least as compelling as any opposing inference one could draw 

from the facts alleged.” Id. at 323–24. “The strength of an inference cannot be decided in a 

vacuum”; so, to survive a motion to dismiss, the allegations must give rise to an inference of 

scienter that is “strong in light of other explanations.” Id.
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One way to establish scienter in a securities-fraud case is to demonstrate that the defendant 

acted recklessly. City of Taylor, 29 F.4th at 812. “Recklessness requires more than negligence 

and is akin to conscious disregard.” Doshi v. Gen. Cable Corp., 823 F.3d 1032, 1039 (6th Cir. 

2016) (internal quotation marks and citation omitted). A court typically will not draw an inference 

of recklessness without “multiple, obvious red flags” that demonstrate an “egregious refusal to see 

the obvious, or to investigate the doubtful.” Id. (citations omitted).

The district court did not err in determining that the plaintiffs’ allegations did not overcome 

the PSLRA’s “daunting” pleading standard. City of Taylor, 29 F.4th at 807. The plaintiffs’ 

securities-fraud claims against Leech Tishman are premised upon Mankey’s conduct.7 Taken 

holistically, the plaintiffs’ allegations as to Mankey’s state of mind amount to this: after Warren 

connected Mankey with the plaintiffs, Mankey confidently provided them with specific, technical 

representations about CEA’s funds without ever reviewing the documents that would be necessary 

to substantiate his representations and despite later admitting that he viewed Warren as “very 

squirrelly,” reticent to pay, and difficult to work with; moreover, construing the allegations 

generously in the plaintiffs’ favor, we can infer that Mankey intended to promote CEA’s funds.

Conspicuously missing from the plaintiffs’ complaint is any suggestion that Mankey 

affirmatively ignored any doubts or suspicions that he harbored. There are no allegations that, at 

any of the times that Mankey made misrepresentations to the plaintiffs, he suspected anything was 

amiss with Warren or had any concerns about CEA or the funds. See 15 U.S.C. § 78u-4(b)(2)(A) 

(requiring a plaintiff to particularly allege that “the defendant acted with the required state of mind” 

“with respect to each act or omission alleged”). Indeed, the only allegations going to Mankey’s 

7 The district court concluded, and Leech Tishman does not now dispute, that Leech Tishman’s 

scienter may be established by way of allegations of Mankey’s scienter. 
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thoughts on Warren come from the plaintiffs’ phone call with Mankey in late August 2017, at least 

three and a half months after the FBI uncovered Warren’s scheme. Mankey’s last communication 

with the plaintiffs before that call, however, appears to have been in September 2015—nearly two 

years prior. The allegations of Mankey’s comments on the August 2017 phone call do not raise a 

strong inference that Mankey had any suspicions about Warren when he communicated with the 

plaintiffs years earlier, let alone that Mankey acted recklessly in ignoring any such suspicions. 

Nor do the plaintiffs allege any “obvious red flags” that Mankey disregarded. Doshi, 823 

F.3d at 1039 (citation omitted). The only affirmative reasons for suspicion are Mankey’s afterthe-fact assessments that Warren was “very squirrelly,” “difficult,” and “reticent” to pay his legal 

fees—none of which can be said to be an obvious red flag that Warren was perpetrating a largescale fraud. R. 88, Am. Compl., PageID 1586. The complaint makes clear, too, that Warren 

ultimately did pay his legal fees, which might reasonably have assuaged any concerns Mankey 

might have had about the validity of Warren’s enterprises. And Mankey’s admission that he was 

concerned that Warren was using Leech Tishman’s name to sell his fund was also made during the 

August 2017 phone call, and it is expressly framed as a concern “after the fact.” Id. 

Although Mankey admitted that he never saw appropriate documentation for the funds, the 

allegation does not point to suspicious conduct by Warren that should have put Mankey on alert 

to the need “to investigate the doubtful.” Doshi, 823 F.3d at 1039 (citation omitted). For instance, 

a close reading of the complaint reveals that, despite their contrary suggestions, the plaintiffs do 

not allege that Mankey sought documents from Warren but was denied them, which could have 

constituted a red flag that Warren’s conduct was suspicious. Rather, all that can be gleaned from 

the complaint is that Mankey never reviewed the necessary materials before rendering advice to 

Warren or making representations to the plaintiffs. Mankey’s failure to review appropriate 
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documents may constitute professional negligence, but we have held, in the context of accounting 

errors, that “failure to follow Generally Accepted Accounting Principles is, by itself, insufficient 

to establish scienter for a securities fraud claim.” La. Sch. Emps.’, 622 F.3d at 481. Similarly, 

without more, Mankey’s failure to meet the professional standards of a lawyer does not support a 

strong inference of scienter under the PSLRA.

The plaintiffs’ reliance on SEC v. George, 426 F.3d 786 (6th Cir. 2005), is inapt. That case 

was decided against the defendants at summary judgment, id. at 790, 795, and the question whether 

a defendant has put forth evidence to create a genuine dispute as to his state of mind is not the 

same as the question whether a plaintiff has alleged facts giving rise to a strong inference of 

scienter. In any event, the evidence in George is distinguishable from the allegations here. In 

George, the relevant defendant, Steven Thorn, was an experienced stockbroker who orchestrated 

a roughly $75 million Ponzi scheme, falsely telling victims that he had a secretive, risk-free 

investment opportunity. Id. at 788. Although we concluded that Thorn was at least reckless for

“fail[ing] to witness or receive any documentation confirming that securities had been traded” with 

investors’ funds, that conclusion cannot be separated from Thorn’s role in the scheme—an 

organizer who personally controlled large sums of the victims’ funds and who used some of those 

funds for extravagant personal purchases. Id. at 789, 793, 795. We explained that Thorn 

essentially played the role of a mutual fund manager, and “a mutual fund manager assuredly could 

be expected to produce documentary records of the trades that the fund made.” Id. at 795. That 

such conduct by Thorn qualified as reckless does not mean that Mankey’s alleged failures were 

reckless. Cf. City of Taylor, 29 F.4th at 816 (explaining that, although the company’s CFO “likely 

could have done more to verify the [inaccurate] reports, that failure indicates negligence at most”). 

Mankey is alleged to have played an entirely different role with respect to CEA and its funds. 
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Nowhere is it alleged that he organized any scheme or plan, managed or had control of any funds, 

or received any compensation other than for his legal services. The allegations here are not like 

the facts of George.

Under ordinary pleading standards, the plaintiffs may have alleged facts that would permit 

a plausible inference that Mankey acted recklessly. But under the PSLRA’s heightened pleading 

standard, it is not a “powerful or cogent” inference. Tellabs, 551 U.S. at 323. The complaint does 

not point to any obvious red flags that Mankey ignored, and it does not allege anything about 

Mankey’s state of mind at the times he communicated with the plaintiffs. In addition to these 

shortcomings, the complaint and the incorporated documents contain material that affirmatively 

supports an inference of negligence. For one, the complaint states that Mankey was first connected 

to Warren by a mutual friend, Mike Zito, who worked at CEA. And in his alleged promotional 

efforts, Mankey introduced an old friend to Zito by email, “endors[ing] [them] both as good guys.”

R. 88-1, Exhs. to Am. Compl., PageID 1609. These allegations support an inference that Mankey 

himself had some level of trust that CEA was a legitimate operation. Moreover, the complaint 

implies that, until Warren’s scheme began to unravel in the summer of 2017, CEA’s funds timely 

paid their quarterly distributions to investors, which could reasonably lead Mankey and investors 

to believe that the funds were operating properly. On the whole, the plaintiffs’ allegations 

“produce a stronger countervailing inference” that Mankey, as a result of his negligence, was 

duped by Warren into repeating false representations about the supposed funds. Doshi, 823 F.3d 

at 1043. So the district court did not err in dismissing the plaintiffs’ securities-fraud claims for 

failure to state a claim under the PSLRA’s heightened pleading standard.8

8 As part of our holistic review of a plaintiff’s allegations, we normally rely on nine non-exhaustive 

factors, known as the “Helwig factors,” to decide whether the allegations give rise to a strong 

inference of scienter. See Doshi, 823 F.3d at 1039–40 (quoting Helwig v. Vencor, Inc., 251 F.3d 
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* * *

We AFFIRM the district court’s dismissal of the negligent-misrepresentation claim against 

Mankey and its dismissal of the federal securities-fraud claims against Leech Tishman. We 

REVERSE its dismissal of the fraudulent-misrepresentation claim against both defendants and its 

dismissal of the negligence and negligent-misrepresentation claims against Leech Tishman. The 

case is REMANDED for further proceedings.

540, 552 (6th Cir. 2001) (en banc)). These factors are apt for evaluating allegations of complex or 

opaque fraud schemes arising, for example, in the context of publicly traded companies, but it is 

not clear how relevant they are to a case like this one, which alleges more garden-variety fraud. 

That said, we need not take a view on the proper weight, if any, to give to the Helwig factors in 

this sort of case, because they do not favor the plaintiffs’ position anyway. At most, only one of 

those nine factors (“disregard of the most current factual information”) is implicated, and even that 

does not weigh very heavily in the plaintiffs’ favor. See id. at 1039 (quoting Helwig, 251 F.3d at 

552).