Full opinion text
ORDER THRASH, District Judge. These are six related actions for breach of contract and securities fraud. They were consolidated for discovery but not for trial. The actions arise out of a series of transactions in 1999 in which the Defendant Infocure acquired companies owned by Plaintiffs in exchange for Infocure stock. The Plaintiffs suffered large losses when the Infocure stock price collapsed in early 2000. After settling with Infocure, Plaintiffs seek to recover damages from the law firm that represented Infocure in the acquisitions. The Plaintiffs move for partial summary judgment on their securities fraud claims. The Defendant Morris, Manning & Martin moves for summary judgment as to all claims. In my opinion, the securities fraud claims against Morris, Manning & Martin are barred by recent Supreme Court and Eleventh Circuit precedent restricting the liability of law firms participating in securities transactions, and the breach of contract claims fail due to the absence of an attorney client relationship. Therefore, I am granting the Defendant’s motions and denying the Plaintiffs’ motion. In the complicated securities transactions involved in these cases, culpability on the part of the client does not translate into liability on the part of the attorneys. I. BACKGROUND These actions arise out of four transactions whereby Infocure Corporation acquired the companies previously owned by the Plaintiffs. In the four transactions at issue, the owners of the acquired companies received stock in Infocure in exchange for relinquishing their ownership of the companies. Infocure, a publicly traded corporation headquartered in Atlanta, was a leading national provider of information technology and services targeted to healthcare providers. The transactions at issue made the Plaintiffs “purchasers” of Info-cure stock, giving rise to obligations under the federal and state securities laws. A THE FOUR TRANSACTIONS 1. HAFNER/GLENTEC Plaintiff Joseph Hafner was the President and sole shareholder of Ardsley M.I.S., Inc., d/b/a Glentec Business Computers, Inc. (“Glentec”). Glentec was a Pennsylvania corporation in the business of developing, marketing and supporting a product known as “orthoware.” This product is a PC-based practice management software package for orthodontic professionals. On July 3, 1999, a Letter of Intent was executed between Richard Perlman, Chairman of Infocure, and Haf-ner, by which Infocure agreed to purchase all of Hafner’s interest in GlenTec for a number of unregistered shares of Infocure Common Stock. (Pla.’s Motion, Ex. G, Letter from Infocure Corp. to Hafner of 7/2/99.) Hafner and Infocure anticipated registration of the shares after the closing of the transaction. On August 18, 1999, during the closing of the GlenTec transaction in Atlanta, it was specifically negotiated between Hafner and Infocure that Haf-ner’s Registration Rights Agreement (“RRA”)would contain the following language: The Company [Infocure] will file with the SEC a registration under the Securities Act on Form S-3 covering the Registrable Securities, on or before October 31,1999, at its expense. (Pla.’s Motion, Ex. R, Registration Rights Agreement § 2 at 2.) Until the shares were subject to an effective registration statement with the SEC, they were not tradeable on national securities markets. GlenTec and Plaintiff Hafner were represented in this transaction by the Philadelphia law firm of Frank & Rosen. Defendant Morris, Manning & Martin (“MM & M”) represented Infocure during the course of the transaction. Richard Haury led the team from MM & M, accompanied by associates Bradley Pruitt and Duncan Spears. A few days prior to the closing, Infocure declared a two-for-one stock split. In mid-August, 1999, Plaintiff Hafner received stock certificates totaling the post-split amount of 209,016 shares. Because the stock was unregistered, these certificates contained a legend restricting the marketability of the shares. On or about September 17, 1999, Duncan Spears of MM & M sent a “Notice of Intent to File Registration Statement” to Plaintiff Hafner in Pennsylvania. This First Notice, by its terms, offered Hafner the opportunity to register all 209,016 shares of his unregistered Infocure stock. Hafner consulted with Duncan Spears on several occasions as to the proper manner in which to complete the application in the First Notice. Spears advised and instructed Hafner as to the appropriate completion of the application, with which Hafner complied. Plaintiff Hafner timely completed and returned the First Notice to MM & M, care of Spears, requesting registration of all 209,016 shares of his Infocure stock. On this date, the share price closed at $21.56 on the NASDAQ market (reflecting the two-for-one split). Despite Plaintiff Haff-ner’s request to register all of his stock, MM & M failed to register half of the total amount. Upon realizing that only 104,508 of his shares had been registered, Plaintiff Hafner immediately contacted Spears to inquire as to the registration of the remainder of the stock. Spears indicated he would investigate the matter. Because of Plaintiff Hafner’s need for liquidity, he sold 94,057 shares of his registered stock on the NASDAQ following the publication of Infocure’s Third Quarter 1999 financials. The sale was accomplished in small blocks over a four day period from November 16 to 19, 1999, at between $17.00 and $20.00 per share. The October 31,1999, deadline for the registration of Hafner’s remaining stock came and went' without full registration. Plaintiff Hafner alleges that MM & M filed another, unrelated registration statement in mid-October on behalf of Infocure, but which did not contain his shares. Both Infocure and the attorneys at MM & M responded to Hafner’s inquiries by telling him that a registration statement would be filed shortly, and that it was delayed because of accounting difficulties at Infocure. MM & M sent Hafner a subsequent “Notice of Intent to File Registration Statement” on or about November 11, 1999. Plaintiff Hafner again promptly completed and returned the second notice to Spears, requesting the registration of his remaining unregistered shares. Despite this second request, it is undisputed that no S-3 or registration statement which included his shares was filed in November, 1999. No registration statement for Hafner’s unregistered shares was filed until April, 2000. By then the price for Infocure stock had fallen to $6.00 per share. Plaintiff Hafner asserts no securities claims. His only claim is for breach of contract. Jurisdiction is based upon diversity of citizenship. 2. MEDFAX Plaintiffs Habermeier, Runde, and Weintraub were shareholders of Medfax Corporation, a South Carolina corporation in the business of providing computer hardware and software to healthcare providers in the field of radiology. As part of its acquisition strategy, Infocure also approached Medfax Corporation in the late Spring of 1999. On August 2, 1999, a Letter of Intent was executed between Perlman, of Infocure, and Runde for the Medfax Plaintiffs, by which Infocure agreed to purchase Medfax in exchange for unregistered Infocure stock. The Letter of Intent for the Medfax Plaintiffs called for registration of their stock by Infocure in three equal blocks, on September, 10, 1999; December 10, 1999; and February 10, 2000. (Pla.’s Motion, Ex. H, Letter from Infocure Corp. to Runde, Ha-bermeier and Weintraub of 8/2/99.) Consistent with this understanding, and in conjunction with the Medfax closing, Infocure and the Medfax Plaintiffs entered into a Registration Rights Agreement stating that: The Company will file, at its expense, with the SEC a registration statement (which may be on Form S-3 if the Company is eligible to use such forms) covering one-third (]é) of the Registrable Securities on September 7,1999 (the “First Registration”). The Company shall use its best efforts to cause the First Registration to be effective by the SEC at the earliest date possible following September 7, 1999. The Company will file, at its expense with the SEC under the Securities Act, a second registration statement (which may be on Form S-3 if the Company is eligible to use such form) covering one-third ($) of the Registrable Securities on December 10, 1999 (the “Second Registration”). The Company shall use its best efforts to cause the Second Registration to be declared effective by the SEC on December 21, 1999. The Company will file, at its expense with the SEC a third registration statement (which may be on Form S-3 if the Company is eligible to use such form) covering the remaining one-third (1/3) of the Registrable Securities on or before February 10, 2000 (the “Third Registration”). The Company shall use its best efforts to cause the Third Registration to be declared effective by the ■SEC on February 21, 2000. (Pla.’s Motion; Ex. S, Registration Rights Agreement, § 2 at 2.) In connection with the closing of the transaction, MM & M gave MedFax an opinion letter which will be discussed in detail below. On August 30, 1999, MedFax and Infocure consummated the merger by means of a pooling-of-interests merger. On or about September 8, 1999, stock certificates for 235,089 shares of Infocure Common Stock were delivered to Haber-meier, 280,412 shares to Runde, and 149,-675 shares to Weintraub. These certificates contained legends restricting the marketability of the shares as unregistered securities. A registration statement for approximately one third of the shares, which were consideration for the merger transaction, was filed by Infocure on behalf of Plaintiffs and other shareholders on September 24, 1999. Infocure filed another, unrelated, registration statement in mid-October, 1999, with the SEC which did not include any of Plaintiffs’ remaining shares. Plaintiffs did not receive notice of Infoeure’s intent to file another Form S-3 with the SEC in October, 1999. December, 1999 came and went without Infoeure filing a registration statement as it had agreed to do in the Registration Rights Agreement for the second block of Plaintiffs’ shares. Through January of 2000, the price of Infoeure stock rose sharply. On January 24, 2000, Infoeure stock closed at its all-time high of $36,625 per share. During conversations in January and February of 2000, between Plaintiff Robert Runde and representatives of Infoeure, Runde was informed that Infoeure had, without notice to Runde or the other Plaintiffs, intentionally delayed the December 10, 1999, registration of Plaintiffs’ shares because Infoeure had suspended all sales of stock under its current SEC filings. No registration statement was filed for Plaintiffs’ stock in February, 2000. The Med-Fax Plaintiffs were represented in the transaction by the North Carolina law firm of Robinson Bradshaw & Hinson; Defendant MM & M represented Infoeure. The Medfax Plaintiffs bring securities fraud claims in addition to breach of contract claims under state law. 8. MEMMINGER/SDM Plaintiff Memminger was the President and principal shareholder of Scientific Data Management, Inc. (“SDM”), a Michigan corporation founded in 1982. SDM was in the business of developing, marketing and supporting computer software for the management of medical offices. On June 27, 1999, Infoeure and Memminger signed a Letter of Intent by which Info-cure agreed to purchase all of Memminger’s interest in SDM for unregistered shares of Infoeure stock. (Pla.’s Motion, Ex. F, Letter from Infoeure Corp. to Memminger of 6/27/99.) The Memminger Letter of Intent called for registration of all of Memminger’s Infoeure stock “upon demand” by Memminger following the publication of 30 days’ combined financial statements, and stated that Infoeure anticipated that all of Memminger’s stock would be available for sale by September or October of 1999. (Pla.’s Motion, Ex. F, Letter from Infoeure Corp. to Memminger of 6/27/99, ¶ 2 at 1-2.) In another pooling-of-interests transaction, SDM merged with Infoeure on August 31, 1999. This transaction involved a simultaneous contract execution and closing. In conjunction with that closing, Info-cure and Memminger signed a Registration Rights Agreement which provided as follows: At any time following the date on which the requirements of SEC Accounting Series Release Nos. 130 and 135 have been met, the Company will file with SEC a registration under the Securities Act on Form S-3 covering the Registrable Securities at its expense. The Company shall use its best efforts to effect such registration of the Registrable Securities at the earliest date possible after filing with the SEC; provided, however, that if the Company has filed with the SEC a registration statement for an underwritten public offering of Common Stock which has not been declared effective by the SEC as of the date of filing such registration statement pursuant to this Section 2, the Company shall not be required to cause the registration on Form S-3 pursuant to this Section to be declared effective until the underwritten registration statement has been declared effective by the SEC. (Pla.’s Motion, Ex. U, Registration Rights Agreement, § 2 at 2.) Furthermore, Mem-minger’s Registration Rights Agreement goes on, at Section 4, titled “Obligations of the Company”, to state as follows: Whenever the Company is required by the provisions of the [RRA] to use its best efforts to effect the registration of [Memminger’s stock, Infoeure] shall: A. Prepare, and as soon as possible, file with the SEC a registration statement with respect to the Registrable Securities ... (Pla.’s Motion, Ex. U, Registration Rights Agreement, § 4.) Memminger’s RRA defines the term “Registrable Securities” as all of Memminger’s unregistered Infocure stock. (Pla,’s Motion, Ex. U, RRA at 1). SDM and Plaintiff Memminger were represented in the merger by the Detroit firm of Berry Moorman, P.C., led by attorney Robert Hudson. MM & M again served as Infocure’s attorney. Plaintiff Memminger, together with the Medfax Plaintiffs, are referred to as the August Plaintiffs. Plaintiff Memminger asserts securities fraud and breach of contract claims. Jh CDL Plaintiffs Gary Weiner, William Daca-mara, Richard Souviron, and Joel Schram, were each shareholders of CDL Healthcare Systems, Inc. (“CDL”), a Florida corporation which was in the business of providing computer hardware and practice management software to healthcare providers. Infocure agreed to acquire the stock of CDL in exchange for a total of 109,658 shares of Infocure common stock, valued at approximately $22.08 per share. As consideration for their CDL stock, Plaintiffs Souviron and Weiner each received 31,709 shares of Infocure stock. Dacamara received 19,592 shares. Schram received 4,465 shares personally, and his pension plan received 1,311 shares. The closing of this transaction occurred on December 30,1999. The actual stock closing price of Infocure stock on the NASDAQ market on that day was $31.00 per share. Plaintiffs Weiner, Schram, Dacamara and Souviron have brought a joint action asserting securities law and state law fraud claims, but no breach of contract claims. The CDL Plaintiffs were represented by the Miami law firm of Akerman, Senterfitt & Eidson L.L.P., acting principally through partner Teddy Klinghoffer and associate Andrea Fisher. As in the other transactions, Infocure was represented by MM & M. On December 30, 1999, the CDL Plaintiffs executed their closing documents, and faxed them to MM & M to complete the closing of the merger between CDL and Infocure. During the closing, it was determined that Infocure would acquire the stock of CDL in exchange for a total of 109,658 shares of Infocure common stock, which on that day closed at $31.00 per share. The CDL Plaintiffs, collectively, received 88,800 shares, with the rest being distributed to the minority shareholders of CDL, who are not parties to this action. Infocure specifically represented in the Agreement and Plan of Merger executed in connection with the CDL transaction that: Since November 30, 1999, there has not been any material adverse change in the business, operations, properties, assets, or financial condition of [Infocure], and no event has occurred and, to [Info-cure’s] knowledge, no circumstance exists that is likely to result in a material adverse change other than with respect to general domestic or international economic conditions. (Pla.’s Motion, Ex. SSS, CDL Agreement and Plan of Merger at 14.) As a condition precedent to the consummation of the merger, MM & M, as counsel to Infocure, gave an Opinion Letter to CDL. The Opinion Letter states at Paragraph 5 that: 5. The execution and delivery by [Info-cure] of the Acquisition Documents to which it is a party do not, and if [Info-cure] were to perform [its] obligations under the Acquisition Documents such performance would not, result in any: (ii) Violation of any existing federal or state constitution, statute, regulation, rule, order, or law to which [Infocure] or [its] respective assets are subject. (Pla.’s Motion, Ex. TTT, Letter from MM & M to CDL Healthcare Systems, Inc. of 12/30/99 [hereinafter “Opinion Letter”].) In support of the Opinion Letter, Fine, Price and Perlman each signed and executed Officer’s Certificates to MM & M on behalf of Infocure. The Officer’s Certificates state, at Paragraph 12, as follows: 12. Nothing has come to our attention that has caused us to believe that the representations, warranties and covenants in the Agreement, as of the Closing Date and as of, the date hereof, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading. (Pla.’s Motion, Ex. UUU, CDL Infocure Officer’s Certificate.) The CDL Plaintiffs assert that MM & M and Infocure knew, at some time well prior to December 30, 1999, that Infocure had failed to timely register (i) 104,508 of Joseph Hafner’s shares, (ii) 140,122 of Joseph Memminger’s shares, and (iii) 232,111 of the Medfax shareholders’ shares. This was a total of 476,741 shares which were left unregistered in violation of the August Plaintiffs’ Registration Rights Agreements. On December 30, 1999, Infocure’s closing price was $31.00 per share, which meant that these unregistered shares would have had a value of over $14 Million on that date, had the shares been registered and available for sale. On November 10, 1999, according to MM & M’s December 16, 1999 bill for services rendered to Infocure, Brewer of MM & M reviewed “the registration rights of all related parties in order to create a form of registration rights follow-on checklist” for Infocure. Follow-up time entries indicate that MM & M was by this time aware of at least Hafner’s missed October 31,1999 deadline and the attendant breach of Hafner’s Registration Rights Agreement. (Pla.’s Motion, Ex. II, Bill no. 162408 from MM & M to Infocure of 12/16/99.) Meanwhile, only one-half of Memminger’s shares were registered on October 7, 1999, and the registration deadline for the Medfax Plaintiffs’ second block of shares, December 10, 1999, had come and gone without the registration of that block of shares. In addition, on December 30, 1999, Info-cure and MM & M each also knew that Infocure had yet to publish the retroactively restated audited financial statements which were mandated by Regulation S-X as a result of the acquisition by Infocure of Datamedic on November 9, 1999, thus precluding them from filing an S-3 Registration Statement for the August Plaintiffs’ shares. Further, according to Cochran, Infocure’s Rule 30(b)(6) designee, Infocure knew that, as a result of its rapid pace of acquisitions in late 1999, its change in business model, and other year-end accounting issues, Infocure did not have the manpower resources available to undertake the necessary filing of the audited restated financials, and that they probably would not be filed until they were included in the 1999 Form 10-K. (Pla.’s Motion, Ex. K, Cochran Dep. at 63-67.) That 10-K was not filed until March 30, 2000. Therefore, according to Plaintiffs, Infocure and MM & M each knew, as of December 30, 1999, that the last third of the Medfax shareholders’ shares was not reasonably likely to be registered by the February 10, 2000 deadline. These additional unregistered Medfax shares had a value of approximately $7,285,000 at $31.00 per share, as of December 30,1999. Also on December 30, 1999, Plaintiffs assert that Infocure and MM & M each knew that trading under the outstanding shelf registration statements had been suspended without notice to any shareholder from December 20 until December 23, 1999, in violation of the Registration Rights Agreements of the August Plaintiffs. They also were aware of the significant possibility of further suspensions in the not-too-distant future, because of several events identified by Infocure’s corporate designee. These events included the adoption of a new business strategy, merger discussions with Per-Se Technologies in late October, 1999, and merger discussions with WebMD in late 1999, and more seriously in January of 2000. Cochran, the corporate designee, testified that these events rose to the level of materiality which would have required the corporation to suspend trading under the outstanding shelf registration statements. (Pla.’s Motion, Ex. WV, Cochran Dep. at 113-115.) Lauren Burnham, a securities lawyer at MM & M who handled significant Infocure matters including the suspension of trading under shelf registration statements, concurred in this assessment. (Pla.’s Motion, Ex. WWW, Burnham Dep. at 417-18.) In fact, Infocure did, once again, suspend trading under the outstanding prospectuses between January 16, 2000, and February 24, 2000, again halting, without any notice, the ability of the August Plaintiffs to trade in their unsold but registered shares during that time period. Plaintiffs assert that this amounted to the unlawful withholding from the market of approximately another 350,000 shares of stock belonging to the August Plaintiffs, which, as of December 30, 1999, at $31.00 per share, had a market value of almost $11,000,000.00. Plaintiffs’ theory posits that these events constitute breaches of the August Plaintiffs’ Registration Rights Agreements and the potential damages flowing therefrom, were clearly material as a matter of law to Infocure and the CDL Plaintiffs as of December 30,1999. Neither Infocure nor MM & M revealed the facts and circumstances giving rise to these potential claims against the company. The Opinion Letter and Officer’s Certificates specifically represented to the CDL Plaintiffs in their Agreement and Plan of Merger that no material litigation was threatened or pending, and that management knew of no circumstances then-existing which could give rise to material litigation: 4.6 Litigation. Except as may be disclosed in the Infocure SEC Reports, there are no suits, arbitrations, actions, claims, complaints, grievances, investigations or proceedings pending or, to the Knowledge of Infocure ... Threatened against Infocure ... that, if resolved against Infocure ... could be reasonably expected to have a Material Adverse Effect [on Infocure] or a material adverse effect on their ability to consummate the Merger and the other transactions contemplated hereby. Section 4.7 of the Agreement reads as follows: 4.7 Disclosure. No representation, warranty or covenant made by Infocure ... in this Agreement or any Exhibit hereto contains any untrue statement of a material fact or omits to state a material fact required to be stated herein or therein or necessary to make the statements contained herein or therein not misleading. (Pla.’s Motion, Ex. SSS, CDL Agreement and Plan of Merger at 36.) Additionally, MM & M issued an Opinion Letter, signed by Richard Haury, which stated as follows: [W]e confirm to you that to our knowledge, except as to disclosed in the Parent SEC Reports, no litigation or other proceeding against [Infocure] or any of [Infocure’s] assets which would have a material adverse effect on the operation of the businesses of [Infocure] is pending or overtly threatened by a written communication to [Infocure]. (Pla.’s Motion, Ex. TTT, CDL MM & M Opinion Letter at 4.) Infocure closed on the CDL Plaintiffs’ transaction, acquiring their business for Infocure common stock. According to Plaintiffs, Infocure disclosed none of the risks of their business model change nor any of the factors leading to Infoeure’s substantial economic downturn (discussed in detail below), and furthermore remained wholly silent as to the potential claims of the August Plaintiffs. B. BUSINESS EVENTS AT INFO-CURE 1. GOLDMAN, SACHS RETENTION On July 14, 1999, Infocure retained the investment banking firm of Goldman, Sachs in connection with possible strategic alternatives that might be available for Infocure, including a possible sale of Info-cure to another company. (Pla.’s Motion, Ex. L, Letter from Goldman, Sachs & Co. to Perlman of Infocure of 7/14/99.) The Atlanta law firm of King and Spalding (K & S) represented Infocure in connection with its dealings with Goldman Sachs. K & S attorneys met with the Board of Directors of Infocure on July 23, 1999, to inform the Board as to their responsibilities under applicable securities laws to disclose material non-public corporate information to investors. (Pla.’s Motion, Ex. MMM, Memo from K & S to Infocure Corp. of 7/23/99.) K & S informed the Directors in a written memorandum that, under Basic v. Levinson, 485 U.S. 224, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988), Infocure was required to disclose material, non-public corporate information to owners of target companies in upcoming acquisitions. (Pla.’s Motion, Ex. MMM, Memo from K & S to Infocure Corp. of 7/23/99.) A disclosure of Goldman, Sachs’ retention was made to Plaintiff Hafner during the acquisition of GlenTec Corporation. Infocure, however, did not disclose the existence of the Goldman, Sachs retention to any of the other Plaintiffs. Infocure’s securities lawyers, MM & M, made no such disclosure either. Plaintiffs assert that Infocure and MM & M made an affirmative decision not to disclose the retention to the other Plaintiffs. g. DATAMEDIC ACQUISITION Throughout most of 1999, Infocure was engaged in merger discussions with a corporation known as Datamedic. Datamedic marketed healthcare practice management software, and had revenues in excess of $20 million. (Pla.’s Motion, Ex. NNN, S-4 Datamedic Form of 9/27/99.) After lengthy negotiations a merger agreement was announced in September, 1999. The Datamedic transaction closed on November 9, 1999. (Pla.’s Motion, Ex. K, Cochran Dep. at 69.) The Datamedic S-4, filed on September 27, 1999, contains a detailed time-line of that transaction. (Pla.’s Motion, Ex. NNN, S^i at 41-42.) Plaintiffs assert that all of the dates for the Da-tamedic transaction coincide with significant dates in the acquisitions involving the August Plaintiffs. For example, the Da-tamedic Final Letter of Intent, defining the price terms of the acquisition and other terms of the deal, was signed by all of the parties to that transaction on July 16, 1999. (Pla.’s Motion, Ex. J, Letter from Infocure Corp. to Christopher, Datamedic Corp. of 7/16/99.) On August 17,1999, just one day prior to the Hafner closing, Lauren Burnham, a senior securities attorney with MM & M, made a time-sheet entry noting that she had a conference to “discuss disclosure issues related to proposed acquisition and filing S-3 resale registration statement and S^l for initial issuance of shares in connection with the Datamedic acquisition.” (Pla.’s Motion, Ex. P, Bill No. 156527 from MM & M to Infocure Corp. of 9/9/99.) The Datamedic Board of Directors met with representatives of Info-cure on August 25, 1999. On August 26, 1999, Infocure principals met with Da-tamedic principals at Datamedic’s offices in Boston, “to discuss the timing of the transaction and further negotiate terms and conditions of the transaction.” (Pla.’s Motion, Ex. NNN, S-4 at 42.) Richard Haury, the transactional partner at MM & M who was handling the deal, traveled to Boston to “finalize agreements” on August 26-27, 1999. (Pla.’s Motion, Ex. KK, Bill No. 156638 from MM & M to Infocure Corp. of 9/9/99.) The Datamedic transaction was approved by Datamedic’s Board of Directors on August 31, 1999, the same day as Memminger’s closing and only one day after the Medfax Plaintiffs’ transaction. Plaintiffs argue that Infocure, its attorneys, and accountants, all viewed the acquisition of Datamedic as the acquisition of a “significant subsidiary” by Infocure, under the terms of Regulation S-X, 17 C.F.R. § 210.01, et seq., in that the revenues of Datamedic represented more than ten percent (10%) of the combined revenues of the post-closing entity. Under Regulation S-X, the acquisition of a “significant subsidiary” by a publicly traded company such as Infocure requires a retroactive restatement of audited financial statements for the preceding three years. 17 C.F.R. § 210.01 et seq. Until the company’s financial statements have been retroactively restated on an audited basis for the applicable time periods as required by that regulation, the company’s financial statements fail to contain material disclosures. Until compliance with Regulation S-X has occurred, no Form S-3’s may be filed with the SEC to register shares, because a registration statement on Form S~ 3, and the Prospectus accompanying that registration statement, must incorporate by reference as an exhibit the company’s current financial statements. Plaintiffs argue that Infocure and MM & M knew, or should have known, at least by August 30, 1999, that if Infocure closed on the Datamedic transaction during the Fall of 1999, this would trigger substantial additional restatement of financial statements to satisfy Regulation S-X before any additional Form S-3’s could be filed. Two separate accounting firms would have to consent to Infocure’s use for SEC filing purposes of the audited, consolidated financial statements required for three years pursuant to Regulation S-X. 17 C.F.R. § 210.01 et seq. Audited, restated and retroactive financial statements were not issued by Infocure until March 30, 2000, when Infocure filed its 1999 Annual Report on Form 10-K with the SEC. (Pla.’s Motion, Ex. XXX, 1999 10-K.) According to the Medfax Plaintiffs’ Registration Rights Agreement, the date of the registration of the first block of stock for the Medfax Plaintiffs was September 7, 1999. However, on September 7, 1999, a letter was sent to the Medfax Plaintiffs regarding Infocure’s accountants’ unwillingness to consent to the filing of an S-3 for the Medfax Plaintiffs’ shares, due to the need to restate the financials for the Medfax pooling-of-interests transaction. Only Medfax was mentioned in the letter. Infocure requested a waiver of the September 7, 1999, filing date until September 24, 1999. The Medfax Plaintiffs agreed to the extension, and signed the letter. No mention was made in this letter of the existence of the Datamedic transaction; nor was any mention made of the need to restate the financials to include the effect of the anticipated merger with Da-tamedic. The merger with Datamedic had not been consummated at this time. The time records of MM & M for August-September, 1999, however, reflect that many hours of attorney time were billed to Infocure for meetings with Infocure’s accountants for the purpose of restating In-focure’s financial statements to reflect the effect of the Datamedic acquisition. (Pla.’s Motion, Ex. Y, Bill no. 159559 from MM & M to Infocure Corp. of 10/25/99.) The Datamedic transaction was announced to the public by a Form 8-K filed with the SEC on September 24, 1999, the same day that Infocure filed the Form S-3 registering shares of stock belonging to Hafner and the Medfax Plaintiffs. (Pla’s Motion Ex. X, Infocure’s 8-K of 9/24/99; Ex. BB, Infocure’s S-3 of 9/24/99.) Three days later, on September 27, 1999, Infocure filed with the SEC a registration statement on Form S-4 for the Datamedic transaction. Plaintiffs assert that at the time of the August closings, MM & M attorneys, Brewer, Haury and Pruitt were significantly involved in the Datamedic transaction. (Pla.’s Motion, Ex. OOO, Brewer Dep. at 62-63; Ex. PPP, Haury Dep. at 45-46.) They point out that MM & M attorneys, including partners Haury and Brewer, were logging hundreds of hours in billable time on the Datamedic transaction in August, 1999. (Pla.’s Motion, Ex. PPP, Haury Dep. at 45-46.) Mr. Brewer, a securities attorney by training, has testified that he was the supervising partner on the Infocure files for MM & M with regard to securities matters. (Pla.’s Motion, Ex. OOO, Brewer Dep. at 10-11.) He also participated in significant meetings and undertook legal analysis with regard to issues of the disclosure of material information by Infocure to various acquisition targets. On August 18, 1999, the time sheet entry of Oby Brewer, Esq., a senior partner at MM & M, contained the following item: 4.4 [Hours] Extended discussion with the parties regarding issues involving the potential disclosure of Goldman, Sachs relationship in pending acquisitions; extended research regarding the disclosure strategies of various companies in connection with the retention of investment bankers and proposed sale of business; follow-on extended discussion with members of management and counsel regarding various issues; preparation of a memo to file regarding conclusions. (Pla.’s Motion, Ex. Q, Bill no. 156524 from MM & M to Infocure Corp. of 9/9/99). Haury, the MM & M partner who executed all of the opinion letters issued by MM & M in connection with all of the Plaintiffs’ closings, spent significant hours in August on the Datamedic transaction, both in Georgia and in Massachusetts. On August 26 and 27, 1999, (three days prior to the Medfax closing, and four days prior to the Memminger closing) Haury was in Datamedic’s hometown of Boston, Massachusetts, and made the following time entries in connection with the Datamedic transaction. 8.26.99 R. Haury 14.0 Preparation for and travel to Boston, Massachusetts to negotiate the final changes to the Agreement and Plan of Merger and related documents. 8.27.99 R. Haury 13.0 Finalizing Agreement and Plan of Merger and related documents in Boston Massachusetts; return trip to Atlanta, Georgia. (Pla.’s Motion, Ex. KK, Bill no. 156638 from MM & M to Infocure Corp. of 9/9/99). Plaintiffs allege that as a direct result of the closing of the Datamedic transaction, no shares of Plaintiffs’ stock from any of the August transactions in fact were registered during the time period beginning November 9, 1999, and ending when Info-cure filed its 1999 Audited Financial Statement on Form 10-K on March 30, 2000. (Pla.’s Motion, Ex. K, Cochran Dep. at 63, 233.) At a minimum, Plaintiffs assert, In-focure and MM & M knew that these undisclosed and material events substantially increased the risk that Infocure would be unable to meet the registration obligations it owed to the August Plaintiffs. The August Plaintiffs accuse MM & M of misrepresenting that Infocure was not in violation of laws when it issued its Opinion Letter, and of failing to disclose the Goldman Sachs retention and the impending Datamedic transaction. 3. CHANGE OF BUSINESS MODEL Infocure’s stock price in 1999 reflected the fact that it was a historically profitable company. Infocure’s Third Quarter 1999 Form 10-Q was filed with the SEC on November 15, 1999 (Pla.’s Motion, Ex. Oo, Infocure 1999 Third Quarter 10-Q of 11/15/99.) The 10-Q reported earnings of approximately $0.36 per share based upon a net income of $10,408,000 through the nine months ending September 80, 1999. It'was signed by Perlman, Fine and Price, who were at that time the senior officers of Infocure, being Chairman, President, and Vice President, respectively. On December 22, 1999, Infocure filed a Form 8-K with the SEC, announcing its acquisition of VitalWorks. (Pla.’s Motion, Ex. MM, Infocure’s 8-K of 12/22/99.) The 8-K consists of two paragraphs and four exhibits in the form of a press release. In it, Infocure states that: [I]t has acquired VitalWorks as part of its strategy to deliver healthcare information technology to physicians as an Application Service Provider, or “ASP.” Infocure plans to form VitalWorks.com, which will operate as a wholly-owned subsidiary of Infocure and will contain the operations of VitalWorks. In addition, Infocure will contribute to Vital-Works.com the business of those specialty practices that are most likely to adopt the ASP model. Infocure intends to conduct an initial public offering of up to 20% of the stock of VitalWorks.com during the first or second quarter of 2000. (Pla.’s Motion, Ex. MM, Infocure’s 8-K of 12/22/99 at 1-2.) Plaintiffs assert that this suggests that the main body of Infocure’s business would remain unchanged, and that only a portion would be “spun off’ into an ASP subscription model, through the medium of a wholly owned subsidiary. However, it appeared later that the acquisition of VitalWorks was the culmination of Infocure’s plan to shift almost entirely to a subscription based pricing plan. In March of 2000, Infocure announced the business model shift which had occurred in the fourth quarter of 1999, and identified over a dozen risk factors which existed in connection with the new ASP model and subscription pricing .plan. Some of the risk factors included in Info-cure’s March 30, 2000 Form 10-K include: (1) the model is unproven and success depends on the acceptance of this model; (2) the company must set fees in the context of an undeveloped market, and incorrect fee setting could substantially affect profitability; (3) achieving market acceptance will require substantial sales and marketing efforts and expenditures of customers; (4) if Infocure fails to enter into strategic relationships or is unsuccessful in completing the development of its Internet solutions, the offering of ASP-delivered products may be delayed or never become available; (5) transition to subscription pricing model will initially adversely impact Infocure’s cash flow. (Pla.’s Motion, Ex. XXX, complete copy of Infoeure’s 10-K at 11-16.) Plaintiffs assert that each and every one of the listed risk factors arose as of the time of the decision to convert the business model to provide ASP services on a subscription pricing basis, and should have been disclosed earlier than March, 2000. According to the Plaintiffs, the directors of Infocure could only have made the decision to switch business models after deliberately confronting and assessing these risk factors. In early 2000, Infocure reported massive losses for the fourth quarter of 1999. In-focure directly attributed millions of dollars of charge-offs and write-downs in the Fourth Quarter of 1999 to Infocure’s formal adoption of the new and admittedly unproven subscription-pricing plan and “ASP” business model. Plaintiffs contend that Infocure itself, in its public reports filed with the SEC and which were reviewed by its own auditors and attorneys, wholly attributes the swing of nearly a half-dollar per share in earnings, from positive to negative, to the ASP-subscription pricing decision. According to the “Notes to Consolidated Financial Statements” contained within Infocure’s 1999 10-K, filed on March 30, 2000, Infocure described the changes in its business plan as follows: In the fourth quarter of 1999, Infocure decided to restructure its business into a medical and a dental division, changed its product strategy to begin development of ASP-delivered products and Internet solutions, decided to transition to a subscription pricing model in connection with its change in product strategy, and completed six acquisitions. These changes in organization, product strategy and the pricing model have impacted certain of the Company’s accounting policies as described herein and have caused the Company to evaluate the carrying value of certain assets and a restructuring of its operations to position the Company to maximize its new business model ... (Pla.’s Motion, Ex. XXX, Infocure’s 10-K at 46, F-10.) The Form 10-K went on to note that the Company recorded a write-down of its investment in capitalized software in the amount of $5.6 million in 1999. (Pla.’s Motion, Ex. XXX at 47, F-ll.) As a result of Infocure’s change in business model, Infocure shortened its good-will amortization period from fifteen to three years. (Pla.’s Motion, Ex. XXX at 47, F-11.) On December 20, 1999, Infocure suspended trading under the then outstanding S-3 registration statements, because this business model transition rendered the outstanding prospectuses invalid. (Pla.’s Motion, Ex. B, Burnham Dep. at 247-48.) Infocure filed a Form 8-K on or about December 22, 1999, and resumed trading under the S-3’s on December 23, 1999. (Pla.’s Motion, Ex. MM, Infocure’s 8-K of 12/22/99.) As discussed above, the December 22, 1999, Form 8-K states that Infocure would be forming a subsidiary, “Vital-Works.com,” which was to be “a wholly-owned subsidiary” of Infocure, and Info-cure would “contribute to VitalWorks.com the business of those speciality practices that are most likely to adopt the ASP model.” (Pla.’s Motion, Ex. MM, Info-cure’s 8-K of 12/22/99 at 3.) Plaintiffs argue that the December Form 8-K did not disclose that Infocure would be providing substantially all of its services through ASP or, indeed, that Infocure itself was switching to an ASP-based model. Furthermore, the Form 8-K does not state that there would be financial ramifications as a result of a change to a subscription-based pricing model. Despite its silence in the Form 8-K, Plaintiffs assert that at the time of the business model change, Info-cure knew that there would be negative financial implications flowing from the business model change. (Pla.’s Motion, Ex. K, Cochran Dep. at 202; Exhibit PP, Perlman Dep. at 132-33.) According to the minutes of a “FY '00 Planning Meeting” held among members of the accounting department of Infocure, on or about November 5, 1999, the “Transition [to the subscription pricing model] will cause [a] sudden financial crisis.” (Pla.’s Motion, Ex. RR, Minutes of Infocure’s FY '00 Planning Meeting Notes.) Plaintiffs contend that the “sudden financial crisis” did, in fact, occur. As a result of the adoption of a subscription pricing model, nearly $20 million of intangible assets were written off by Infoeure in the fourth quarter of 1999. (Pla.’s Motion, Ex. SS, February 22, 2000 Press Release; Ex. QQ, Infoeure 10-K/A of 5/30/00; Ex. VW, Cochran Dep. at 205-07.) Substantially, as a result of those write-offs, Info-cure, a profitable company until that time, posted a $3.8 million net loss for the year 1999. (Pla.’s Motion, Ex. QQ, Infocure’s 10-K/A of 5/30/00.) The fourth quarter losses were greater than the previous nine months of cumulative earnings of over $10 million. This represents a negative swing in earnings of approximately $14 million, and generated a cumulative net loss for Infoeure for all of 1999 of $0.14 per share. (Pla.’s Motion, Ex. QQ, Infoeure 10-K/A of 5/30/00.) Plaintiffs assert that these operating losses were not disclosed to the CDL Plaintiffs or the public, until Infoeure released its operating results in a press release dated February 22, 2000. (Pla.’s Motion, Ex. SS, Press Release of February 22, 2000.) Even then, the connection between the change in business model and Infocure’s sudden and substantial losses was not fully explained until the 1999 Annual Report on Form 10-K filed on March 30, 2000. (Pla.’s Motion, Ex. XXX.) Infocure’s change to a subscription pricing model also directly resulted in Info-cure’s decision to revise the period it used to amortize goodwill from fifteen years to only three years. The goodwill carried on the books by Infoeure at that time, which was acquired substantially as a result of Infocure’s acquisitions of other businesses, exceeded $100 million. Thus, Infoeure determined, in December, 1999, to write off an extra $28,999,999 per year of goodwill. This accelerated write-off of goodwill amounted to a $3.5 million charge just for the last six weeks of the 1999 year, according to Infocure’s 1999 10-K. Changes to a subscription pricing model also caused In-focure to revise its estimates of its account receivable collectability. This assessment contributed additional pre-tax losses of $3 million. (Pla.’s Motion, Ex. XXX, complete copy of Infocure’s 10-K at 46, F-10.) Plaintiffs assert that Infoeure continued ahead with its acquisition strategy without disclosing the risks involved with its Fourth Quarter decisions. h. CONSEQUENCES Because of the write-downs of business goodwill and other intangible assets beginning in the fourth quarter of 1999, the as-yet undisclosed but substantial attendant losses directly attributed by Infoeure to the change in business model, the impending spin-off of a subsidiary which was to be known as VitalWorks.com, Inc., and acquisition discussions with Healtheon/WedMD, Burnham, once again, suspended trading under the outstanding S 3’s on January 16, 2000. (Pla.’s Motion, Ex. W, 1/16/00 Suspension fax.) Again, no notice of this suspension was provided to any of the Plaintiffs, despite the express terms of Section 4 of each of the applicable Registration Rights Agreements, nor was any amendment made to any of the outstanding prospectuses under any of the suspended S-3’s. On January 24, 2000, Infocure’s stock price reached its all time high of $37.625 per share. (Pla.’s Motion, Ex. WW, Yahoo! INCX Stock Historical Pricing.) All Plaintiffs were foreclosed from realizing this value for a substantial number of shares. Following Infocure’s February 22, 2000, press release stating its 1999 year end earnings results, Burnham finally released the suspension on trading under the S-3’s that had lasted five and one-half weeks. The market reacted to the February 22 press release predictably, and Infocure’s stock price immediately dropped. (Pla.’s Motion, Ex. WW, Yahoo! INCX Stock Historical Pricing.) On the day of the press release, the stock was trading at $22.00 to $24.00. Within three days, the stock was trading at $15.00 to $17.00. (Pla.’s Motion, Ex. WW.) On or about March 30, 2000, Infocure filed its 1999 Form 10-K with the SEC. (Pla.’s Motion, Ex. XXX, complete copy of Infocure’s 10-K.) On April 11, 2000, Infocure filed a registration statement on Form S-3 covering the remainder of the Plaintiffs’ unregistered securities. (Pla.’s Motion, Ex. AAA, Infocure’s S-3 of 4/11/00.) On April 17, 2000, Infocure’s stock price fell to under $10.00 per share. (Pla.’s Motion, Ex. WW, Yahoo! INCX Historical Stock Pricing.) Based on these facts, Plaintiffs moved for partial summary judgment against In-focure on the breach of contract claims, and against Infocure and MM & M as to the federal and state securities law claims. Plaintiffs have since settled with Infocure Corp; the claims against MM & M remain. MM & M moves this Court for summary judgment on all the pending claims against it. II. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court should view the evidence and any inferences that may be drawn in the light most favorable to the nonmovant. Adickes v. S.H. Kress and Co., 398 U.S. 144, 158-159, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The party seeking summary judgment must first identify grounds that show the absence of a genuine issue of material fact. Celotex Corp. v, Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmovant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). III. DISCUSSION A SECURITIES LAW CLAIMS 1. RULE 10(b) 5 Section 10(b) of the Securities Exchange Act of 1934 (hereinafter “Section 10(b)”) prohibits any person from using, in connection with the sale of any security, any deceptive device in contravention of such rules and regulations as the Securities and Exchange Commission (“SEC”) may prescribe. 15 U.S.C. § 78j(b). Based on this statute, the SEC has promulgated 17 C.F.R. § 240.10b-5 (hereinafter “Rule 10b 5”) to prohibit the making of any untrue statement or omission of material fact that would render statements misleading in connection with the purchase or sale of any security. To succeed on a securities fraud claim under Rule 10b-5, a plaintiff must prove that the defendant (1) made a misstatement or omission, (2) of material fact, (3) with scienter, (4) in connection with the purchase or sale of securities, (5) upon which the plaintiff relied, (6) that proximately caused the plaintiffs injury. Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1281 (11th Cir.1999); Robbins v. Roger Properties, Inc., 116 F.3d 1441, 1447 (11th Cir.1997); Bruschi v. Brown, 876 F.2d 1526, 1528 (11th Cir.1989); Sturm v. Marriott Marquis Corp., 26 F.Supp.2d 1358, 1364-65 (N.D.Ga.1998). In Basic v. Levinson, 485 U.S. 224, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988), the Supreme Court adopted the standard of materiality set out in TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976) for Section 10b and Rule 10b-5 securities fraud actions. Following TSC Industries, an omitted fact is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote. TSC Industries, 426 U.S. at 449, 96 S.Ct. 2126. TSC Industries recognized that requiring companies to disclose every detail of corporate development would inundate shareholders with information of “dubious significance.” Id. at 231, 108 S.Ct. 978. Such a requirement would do little for informed decision-making on the part of the shareholder. Id. Materiality, for purposes of a claim under Rule 10b-5, therefore, is fulfilled when there is “a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the ‘total mix’ of information made available.” Basic, 485 U.S. at 231-32, 108 S.Ct. 978. In short, a fact is material if a reasonable investor would consider that fact important to his decision to invest. Id. at 231, 108 S.Ct. 978. Scienter is the mental state required to be proved in order to establish liability for a Rule 10b-5 securities fraud claim. The Supreme Court has defined the level of scienter necessary to support such a claim as a mental state embracing “intent to deceive, manipulate, or defraud.” Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). In the Eleventh Circuit, this mental state encompasses not only an actual intent to deceive, but also “severe recklessness.” The Eleventh Circuit has defined “severe recklessness” as follows: Severe recklessness is limited to those highly unreasonable omissions or misrepresentations that involve not merely simple or even inexcusable negligence, but an extreme departure from the standards of ordinary care, and that present a danger of misleading buyers and sellers which is either known to the defendant or is so obvious that the defendant must have been aware of it. Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1282 (11th Cir.1999) (citing McDonald v. Alan Bush Brokerage Co., 863 F.2d 809, 814 (11th Cir.1989)). For a federal securities claim, justifiable reliance means that the plaintiff “reasonably relied” on the specific alleged misstatement. Pelletier v. Zweifel, 921 F.2d 1465, 1510 (11th Cir.1991). The Eleventh Circuit explained this in Gochnauer v. A.G. Edwards & Sons, Inc., 810 F.2d 1042 (11th Cir.1987) as follows: A showing of Plaintiffs’ reliance on the misrepresented or omitted information is necessary to satisfy the fourth element of a Rule 10b-5 cause of action. This Circuit requires ‘reasonable reliance’ upon the material misrepresentations, a test of subjective reliance tempered by the requirement of ‘due diligence’ on the part of the plaintiff. Not only must an individual actually rely on the information provided, this reliance must be ‘justifiable’, i.e. with the exercise of reasonable diligence one still could not have discovered the truth behind the fraudulent omission or misrepresentation. Id. at 1046 (citations omitted). The Eleventh Circuit has delineated several factors to be applied in determining whether there was justifiable reliance: Determinations of whether an investor’s reliance was justified requires the consideration of all relevant factors, including: (1) the sophistication and expertise of the plaintiff in financial and security matters; (2) the existence of long standing business or personal relationships between the plaintiff and defendant; (3) the plaintiffs access to relevant information; (4) the existence of a fiduciary relationship owed by the defendant to the plaintiffs; (5) concealment of fraud by the defendant; (6) whether the plaintiff initiated the stock transaction or sought to expedite the transaction; and (8)[sic] the generality or specificity of the misrepresentations. No single factor is dispositive; all must be considered and balanced in determining whether reliance was justified. Bruschi v. Brown, 876 F.2d 1526, 1529 (11th Cir.1989) (citations omitted). In a case of mixed representation and omission, as opposed to a case based purely on omissions or “fraud on the market” theory, there is no presumption of reliance; rather, justifiable reliance must be shown as to the entire claim. Where the defendants are charged both with material misrepresentations and omissions, the Affiliated Ute presumption of reliance does not apply. Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 722 (11th Cir.1987), cert. denied, 485 U.S. 959, 108 S.Ct. 1220, 1221, 99 L.Ed.2d 421 (1988); In re Sahlen & Assocs., Inc. Securities Lit., 773 F.Supp. 342, 354 (S.D.Fla.1991). Finally, a plaintiff in a Rule 10b-5 action must show that his reliance upon the material misrepresentation or omission was a cause of his damages. In the Eleventh Circuit, a plaintiff need not show that the misrepresentations or omissions were the sole cause of the losses, but must “only show that it was ‘substantial,’ i.e., a significant contributing cause [of the loss].” Robbins v. Roger Props., Inc., 116 F.3d 1441, 1447 (11th Cir.1997) (citations omitted). In other words, a plaintiff will prevail when he shows that the misrepresentation or omission at issue “touches upon the reasons for the investment’s decline in value.” Id. (A) MEDFAX PLAINTIFFS MM & M’s Opinion Letter forms the basis of the Medfax Plaintiffs’ securities laws claims against the law firm. Plaintiffs assert that MM & M had an independent duty to disclose the Datamedic transaction and Goldman Sachs’ retention based on MM & M’s status as a participant, and that MM & M affirmatively made a material misrepresentation when it opined that Infocure was not in violation of any state or federal laws. In my opinion, MM & M had no duty to disclose the Datamedic negotiations or the Goldman Sachs’ retention to the Plaintiffs, and no misrepresentations were made in the Opinion Letter which are actionable under state or federal securities laws. “Any person or entity including a lawyer, accountant, or bank who employs a manipulative device or makes a material misstatement (or omission) on which a purchaser or seller of securities relies may be liable as a primary violator under 10b-5, assuming all of the requirements for primary liability under Rule 10b-5 are met.” Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 191, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994) (emphasis in original). The principal holding of the Supreme Court in Central Bank was that there is no aiding or abetting liability under Rule 10b-5. Id. at 178-79, 114 S.Ct. 1439. In other words, following Central Bank, a law firm may not be held liable for securities fraud merely because it played a substantial role in the transaction at issue. The Eleventh Circuit in Ziemba v. Cascade Int’l Inc., 256 F.3d 1194 (11th Cir.2001), recently applied the rational of Central Bank to narrow further the scope of liability of attorneys and other secondary actors in securities fraud cases. The court in Ziemba held that: [I]n order for [a secondary actor, such as a law firm or accounting firm] to be primarily liable under § 10(b) and Rule 10b-5, the alleged misstatement or omission upon which a plaintiff relied must have been publicly attributable to the defendant at the time that the plaintiffs investment decision was made. Id. at 1205. Because Plaintiffs rely on the Defendant’s Opinion Letter, they have satisfied the requirement that a statement be publicly attributed to the secondary actor. MM & M can be liable for omissions, however, only if it had a duty to disclose. The determination of whether there is a duty to disclose must be made on a ease-by-case basis, “depending on the circumstances of the case.” Id. at 1206-07. The factors identified by the Eleventh Circuit to be considered include: (1) “the relationship” between the parties; (2) their “relative access to the information” at issue; (3) “the benefit derived by the defendant” from the transaction; (4) the “defendant’s awareness of Plaintiffs’ reliance” on defendant in making its investment decision; (5) “the extent of the defendant’s knowledge”, (6) “the significance” of the omitted information; and (7) “the extent of the defendant’s participation in the fraud.” Id. at 1206. The Ziemba court added that these factors must be weighed in the context of the attorney’s obligations and duty of loyalty to his or her client. Id. at 1207 (citing Barker v. Henderson, Franklin, Starnes & Holt, 797 F.2d 490, 497 (7th Cir.1986)). Application of these factors in this case leads me to the conclusion that MM & M did not have an actionable duty to disclose to the Medfax Plaintiffs. Importantly, the Medfax Plaintiffs were represented by their own counsel who had direct access to Infocure. Their counsel could have asked any questions they wished about any of the information involved. During the closing, Plaintiff Runde consulted with his Robinson Bradshaw lawyers and continued to use the firm as his counsel after the transaction closed. (Pla.’s Motion, Ex. Q, Runde Dep. at 218-19.) No attorney client relationship existed between MM & M and Plaintiffs. In Ziemba, the Eleventh Circuit relied upon this to conclude that no securities fraud liability could be imposed on the defendant law firm. Id. at 1206. Without a fiduciary obligation, it can hardly be said that the attorney for one party owes a duty to the opposing party, who was represented by competent lawyers of his own choice. This factor weighs heavily against finding a duty to disclose on behalf of MM & M. The Medfax Plaintiffs have also failed to show that MM & M was aware of the individual Medfax Plaintiffs’ reliance on the Opinion Letter. The MM & M Opinion Letter expressly states that it is given only to the Medfax Corporation, and not to the individual Medfax Plaintiffs. Although other agreements entered into during the merger transaction were addressed to Medfax corporation and the individual Medfax Plaintiffs, the MM & M Opinion Letter was directed only to the Medfax corporation and Finova Financial Capital. Plaintiffs argue that the distinction should be ignored because the individual Medfax Plaintiffs were the sole officers,