Full opinion text
Order on Pending Motions HORNBY, District Judge. I. Introduction The Multidistrict Litigation Panel transferred these two lawsuits here because of the pendency of MDL No. 1361 (In re Compact Disc Litigation). All defendants have moved to dismiss both complaints. I Grant the motions to dismiss all the federal claims for failure to state a claim upon which relief can be granted (05-cv-118, Counts I — III, V-VII). That dismissal is with prejudice. I Grant the Lawyer defendants’ motion to dismiss all the remaining claims against them on grounds of abstention. That dismissal is without prejudice, and applies to all remaining counts in both lawsuits. I Grant the other defendants’ motions to dismiss all the state law claims against them on the merits and with prejudice in both lawsuits except as to two counts against Trans World, Count XI in 05-cv-118, and Count V in 05-cv-149 (Aiding and Abetting Breach of Fiduciary Duty). There, the dismissal is on grounds of abstention and without prejudice. At the end of this opinion, I also resolve a handful of related motions. II. Procedural Background The plaintiff, John Deep, is proceeding in this court without a lawyer. He filed the first of these two lawsuits, 05-cv-118, as an adversary proceeding in Bankruptcy Court for the Northern District of New York in 2004. Compl., In re Deep, Adv. Proc. No. 04-90037 (Bankr.N.D.N.Y Feb. 11, 2004). District Judge Kahn withdrew the bankruptcy reference, Deep v. Recording Indus. Ass’n of America, No. 04-mc-055 (N.D.N.Y. Feb. 7, 2005). Deep then amended his complaint. The MDL Panel transferred the lawsuit here on June 21, 2005. Deep v. Recording Indus. Ass’n of America, No. 05-cv-205 (N.D.N.Y. Jun. 21, 2005). Deep then amended his complaint once again, adding new parties. Second Am. Compl., No. 05-cv-118 (Docket Item 34). Deep filed the second lawsuit, 05-cv-149, as a complaint in New York State Court, Albany County, in 2005. Compl, Deep v. Record Indus. Ass’n of America, No. 50-05 (N.Y.Sup.Ct. May 4, 2005). He later removed it to the Northern District of New York under 28 U.S.C. § 1452 (removal of state court actions arising in or related to bankruptcy proceedings). Notice of Removal, Deep v. Recording Indus. Ass’n of America, No. 05-cv-693 (N.D.N.Y. Jun. 3, 2005). The MDL Panel transferred it here on August 1, 2005. Deep v. Recording Indus. Ass’n of America, No. 05-cv-693 (N.D.N.Y. Aug. 1, 2005) (order transferring case). Deep then amended the complaint in this court, adding new parties. First Am. Compl, No. 05-cv-149 (Docket Item 8). The complaint in the first lawsuit is now 128 pages and 551 paragraphs long. In it, Deep has named over 30 different defendants. Second Am. Compl. The second lawsuit asserts the same state law claims as the first lawsuit, but no federal claims. First Am. Compl. Both complaints name as defendants a lawyer and two law firms: David Boies, Esq.; Boies, Schiller & Flex-ner, LLP; and Straus & Boies, LLP (“the Lawyers”); Trans World Entertainment Corp. (“Trans World”); and numerous entertainment entities including record companies, motion picture studios, and the Recording Industry Association of America (“RIAA”) (collectively “the Record and Movie Companies”). Because the factual allegations and claims in the second lawsuit mirror those of the first lawsuit (except for omitting the federal claims), I shall refer primarily to the first lawsuit 05-cv-118, and its Second Amended Complaint. In his Second Amended Complaint, Deep covers a number of newsworthy topics of the past few years, including Attorney David Boies’s representation of Vice President A1 Gore in Bush v. Gore, Compl. ¶ 2; the Napster litigation, id; investigations of Tyco, Adelphia and accounting firm Deloitte & Touche, id ¶¶ 19, 26; kickbacks and payola in the music industry extending to “a major chain of radio stations,” Clear Channel, id ¶ 112; investigations by New York Attorney General Elliot Spitzer, id ¶¶ 113-14; congressional testimony of singer Sheryl Crow before the late Congressman Sonny Bono, id ¶ 135; bootlegging of CDs and DVDs, id ¶¶ 107-09; proper accounting rules for the recording industry, Id ¶¶ 121-31; and the controversy over an arrangement by which Attorney David Boies and his related law firms allegedly steered client business to a litigation support company, Amici LLC, without disclosing his or his family’s ownership of Amici, id ¶¶ 11-20. Deep describes an alleged conspiracy by which “Labels and Studios” schemed to inflate their revenue and profits by paying kickbacks to Trans World, a distributor. The conspiracy allegedly involved bribes, slush funds, fraudulent accounting practices, bid-rigging, kickbacks, and other devices, id ¶¶ 93-96 ffi; phantom credits and other practices by which the “Labels and Studios” defrauded artists of their rightful royalties, id. ¶¶ 132-40; and a variety of other apparently sordid dealings (for example, “a massive fraud in which consumers, investors and artists are deceived,” id. ¶ 104). Deep claims the following relationship to the events he describes. He says that he invented a method of determining the price a consumer is willing to pay for an item online, a method that Deep says can be used successfully for “targeted marketing of discounted prices,” id ¶ 31; in another part of the complaint, the invention becomes one for downloading video-on-demand, id. ¶ 396; and he also refers to it as “sharing with buddies,” id. ¶ 78. At the time, Deep called his invention Aimster. Deep shopped the invention to Trans World and in September 2000 obtained a meeting with Trans World. Attending were Trans World CEO Robert Higgins, Trans World CFO John Sullivan, and Boies-Schiller lawyer Michael Endler. Id. ¶ 78. During the meeting, Higgins introduced Deep to a person named Bill Duker. Id. ¶ 79. After the meeting, “in a private discussion,” Higgins told Deep that he would ask Bill Duker to represent Higgins in purchasing an interest in Deep’s invention. Id. ¶ 80. Duker and Deep met later accordingly, and discussed how Deep’s invention could be used and the structure for benefiting Higgins. “Bill Duker then advised [Deep] that [Deep] engage Boies-Schiller as [Deep’s] lawyers.” Id. ¶ 88. Duker agreed to contact attorney David Boies on Deep’s behalf. Id. “[A]s a result of Bill Duker’s promise to [Deep] in September 2000 ... David Boies sent his letter to [Deep] dated November 15, 2000,” thereby allegedly agreeing to represent Deep. Id. ¶ 89. Deep now claims that David Boies and related law firms had an undisclosed conflict of interest because they were representing Trans World at the same time in the In re Compact Disc Litigation in this court. Compl. ¶ 163. According to Deep, that undisclosed conflict infected all that followed, including how Deep paid Boies (allegedly in part through an ownership option in Aimster that ended up in a company controlled by Boies’s family); the structuring of Deep’s deal with Trans World; concealed payments by Boies to Duker, who then allegedly used the money to buy Deep’s assets on behalf of Trans World and the Labels and Studios, Compl. ¶ 3, or according to later allegations, on behalf of all these entities and Boies as well, id. ¶¶ 5, 10; the use of these and other payments in creating Amici, Id. ¶ 11, which Boies or Boies’s family allegedly controlled; Amici’s unauthorized use of Deep’s Aimster technology to conduct Amici’s business of litigation support services, id. ¶¶ 12-13 (which, without the benefit of Deep’s involvement, was defective, id. ¶ 19); all resulting in a conspiracy “to manipulate the market for digital music and movies by fraudulently financing and controlling [Deep’s] business using undisclosed kickbacks and earn outs,” id. ¶ 22. The scheme or conspiracy allegedly continued into Deep’s bankruptcy proceedings. Id. ¶ 23. According to Deep, the named lawyersflaw firms conspired with other lawyers and with one of Deep’s accountants, as a result of which these others received excessive and undisclosed compensation, id. ¶ 24; and they concealed litigation from Deep (here Deep refers to the notorious Tyco and Adelphia disputes, matters of national media interest), and in particular the settlement of In re Compact Disc Litigation in this District, id. ¶ 26. Deep claims to have lost and seeks to recover over $1 billion because of the settlement of the In re Compact Disc Litigation in this District; over $10 million in an undescribed controversy with AOL; over $1.02 billion in the In re Aimster Copyright Litigation in the Northern District of Illinois; $10 million paid by Tyco and Adelphia to Amici; $40 million paid by other Boies-Schiller clients to Amici; and unknown other amounts. Id. ¶ 30. The nub of Deep’s allegations appears to be his claim that his invention, Aimster, was worth a lot of money; but that the Lawyers, Trans World, Duker, and the “Labels and Studios” all stole it from him or prevented its success (for varying reasons), and were wrongly enriched at his expense. He makes claims of fraud on this court in the In re Compact Disc Litigation settlement and on other courts in other cases; claims under federal antitrust laws, SarbanesOxley, federal RICO, and federal bankruptcy law (automatic stay and fraudulent transfer); claims under New York antitrust and consumer protection law and New York common law involving breach of fiduciary duty, aiding and abetting the fiduciary breach, breach of contract, negligence, conspiracy, tor-tious interference with business relations, piercing the corporate veil, declaratory and injunctive relief, and constructive trust for unjust enrichment. III. Whether Deep’s Claims are Barred or Released by the Settlement in MDL 1361 The Record and Movie Companies argue that Deep’s complaints should be dismissed in their entirety because all his claims are released and barred under the settlement order entered in In re Compact Disc Litigation. Record & Movie Cos. Mot. to Dismiss Second Am. Compl. & Incorporated Mem. of Law (“Record & Movie Cos. Mem.”) at 32-36 (Docket Item 44). Trans World adopts their arguments. Trans World Mot. to Dismiss & Incorporated Mem. of Law (Trans World Mem.) at 28 (Docket Item 42). It is well-established that “[i]n an appropriate case, an affirmative defense may be adjudicated on a motion to dismiss for failure to state a claim.” In re Colonial Mortgage Bankers Corp., 324 F.3d 12, 16 (1st Cir.2003). Nevertheless, I conclude that the defendants’ argument fails; Deep’s claims are not barred or released. The In re Compact Disc Litigation court-approved settlement resolved consumer claims related to allegedly higher prices paid for compact discs at retail during the period 1995-2000. See In re Compact Disc Litig., MDL. No. 1361, 2003 WL 21685581, *9 (D.Me. Jul.18, 2003). The plaintiff class there asserted that the higher prices were due to an antitrust conspiracy (music manufacturers, distributors, and retailers) to stabilize minimum advertised prices. By contrast, none of Deep’s claims, antitrust or otherwise, involves a consumer injury at all. Instead, his antitrust theories are based on his being a market participant or competitor, not a consumer; the rest of his claims are premised on an entirely different set of facts involving other court proceedings in which he has been involved, alleged misconduct by the Lawyers, or a business relationship that he had with Trans World. Because his claims are not those asserted or resolved in In re Compact Disc Litigation, they are not barred or released by that case’s Final Judgment and Order. IV. Rule 12(B)(6) Analysis In deciding the motions to dismiss, I “accept as true all the factual allegations in the complaint and construe all reasonable inferences in favor of the plaintiff! ].” Alternative Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001). I construe Deep’s complaint liberally, considering the fact that he is proceeding without a lawyer, Ahmed v. Ro-senblatt, 118 F.3d 886, 890 (1st Cir.1997), and I will dismiss only if “it appears to a certainty” that Deep cannot “recover under any set of facts” consistent with the allegations set forth in his two complaints. Me. Coast Mem’l Hosp. v. Sargent, 369 F.Supp.2d 61, 63 (D.Me.2005) (quoting State St. Bank & Trust Co. v. Denman Tire Corp., 240 F.3d 83, 87 (1st Cir.2001)). I apply New York law to the state claims; all parties assume that it applies and none contests that assumption. A. Fraud on the Court Deep asserts fraud on the court as Count I of both lawsuits. The Second Amended Complaint bases this claim upon his allegation that the Lawyers represented Trans World in the In re Compact Disc Litigation without his knowledge at the same time that they were representing Deep elsewhere, Compl. ¶ 299; Deep’s assertion that the Lawyers knew that the representations were adverse, id. ¶ 300; the Lawyers’ letter to this court in July 2005 denying any impropriety, id. ¶¶ 301-02; the absence of any waiver by Deep, id. ¶ 303; and his assertion that the Lawyers “deliberately concealed from this Court” the relationship Deep had with Trans World, id. ¶ 305, and failed to provide discovery. Deep says that there was “related fraud perpetrated” upon the Northern District of Illinois in In re Aimster Copyright Litigation, Id. ¶ 309, and upon the Eastern District of Virginia in AOL v. John Deep, id. ¶ 310. Under Fed.R.Civ.P. 60(b), Deep asks to have the judgment vacated in this and other courts. He apparently also seeks damages for “fraud upon the court.” PL’s Opp’n to Mot. to Dismiss (“Opp’n”) at 1-4 (Docket Item 57). In seeking to dismiss this count, the Lawyers argue that Deep has failed to state a cause of action or even allege damages, focusing their attention on the July 2005 letter. Lawyers Mem. at 18. Deep responds that the July 2005 letter was only the “begin[ning] ... assertion,” and adds allegations from other Counts. Opp’n at 11-12. Although he does not develop it in his opposition, Deep’s Second Amended Complaint does have a lengthy section devoted to his factual allegations of fraud on the court. Compl. ¶¶ 172-228. Fraud on the court occurs when “a party has sentiently set in motion some unconscionable scheme calculated to inter-fere with the judicial system’s ability impartially to adjudicate a matter.... ” Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989); Geo. P. Reintjes Co., Inc. v. Riley Stoker Corp., 71 F.3d 44, 48 n. 5 (1st Cir.1995). It requires “the most egregious conduct involving a corruption of the judicial process itself.” Roger Edwards, LLC v. Fiddes & Son Ltd., 427 F.3d 129, 133 (1st Cir.2005) (quoting 11 Charles A. Wright, Arthur R. Miller & May Kay Kane, Federal Practice & Procedure § 2870 (2d ed.1995)). The courts’ power to deal with such fraud is inherent and rooted in equity, for courts “cannot lack the power to defend their integrity against unscrupulous marauders.... ” Aoude, 892 F.2d at 1119. (1) The Lawyers (a) MDL 1361 In re Compact Disc Litigation, District of Maine, 2001— present Deep’s primary claim of fraud on the court deals with the In re Compact Disc Litigation in this court. Deep claims that his Lawyers’ undisclosed conflict of interest worked a fraud upon this court and caused him financial harm. Compl. ¶¶ 304-11. Deep states that the Lawyers did not disclose their simultaneous representation to him or the court, and that this nondisclosure caused him financial harm because he was made a party to the In re Compact Disc Litigation settlement (by dint of his relationship with Trans World) and yet was excluded from sharing in the settlement proceeds. Id. ¶ 308. He requests as relief “all damages proximately caused by the fraud upon the court.” Id. ¶ 311. I have already explained that Deep’s claims are not those of the consumer class in In re Compact Disc Litigation. He has no standing to open the judgment or to challenge the adequacy of discovery in that lawsuit. Moreover, Deep’s allegations do not demonstrate a fraud on this court. An undisclosed conflict of interest may be grounds for a malpractice lawsuit against the Lawyers, but alone it does not meet the Aoude or Roger Edwards standard for vacating a judgment. Cf. Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 264, 64 S.Ct. 997, 88 L.Ed. 1250 (1944) (fraud on the court “involves far more than an injury to a single litigant”); Wright, et al., supra, § 2870 (“Nondisclosure by a party or the party’s attorney has not been enough [to find fraud on the court].”); United States v. Buck, 281 F.3d 1336, 1342 (10th Cir.2002) (“[0]nly the most egregious misconduct, such as bribery of a judge or members of a jury, or the fabrication of evidence by a party in which an attorney is implicated will constitute a fraud on the court. Less egregious misconduct, such as nondisclosure to the court of facts allegedly pertinent to the matter before it, will not ordinarily rise to the level of fraud on the court.”) (quoting Weese v. Schukman, 98 F.3d 542, 552-53 (10th Cir.1996)). In his opposition to the motion to dismiss, Deep refers only in passing to his claim that this court has jurisdiction to, and should, examine and set aside the judgments of other courts for fraud. Opp’n at 16. Nevertheless, I examine each of his other claims. (b)In the Northern Disti'ict of New York, April, 2001 Deep alleges that his former lawyers also committed a fraud on the court in the Northern District of New York in April, 2001. The Lawyers allegedly represented Deep there. Compl. ¶¶ 172-75. The alleged fraud on that court occurred, Deep contends, when the Lawyers did not tell him that they were simultaneously representing Trans World in In re Compact Disc Litigation. Id. ¶ 177. Deep does not allege that the Lawyers misrepresented their unrelated representation of Trans World to the Northern District of New York court itself. I conclude, therefore, that Deep’s allegations are insufficient. (c) In the Department of Justice Investigation, Summer, 2001 Deep alleges that the Department of Justice investigated the Record and Movie Companies for certain antitrust violations in the summer of 2001. Id. ¶ 178. He states that he was asked to provide information relevant to the investigation during an interview, and that the Lawyers advised him “not to answer any questions involving Tran World,” because Trans World “would be providing its own information ... separately.” Id. ¶ 180. Deep asserts that Trans World purposefully never provided its own information. Id. ¶ 184. Quite simply, this is not a claim for fraud on the court. The Department of Justice is not a court. (d) In the Judicial Panel on Multidis-trict Litigation, the Eastern District of Virginia and the Northern District of Illinois, December, 2001 It is difficult to understand the thrust of these allegations at ¶¶ 186-204. Apparently, Deep alleges that the Lawyers had the same conflict of interest in these other courts that they had in this court (ie., that they represented Trans World in In re Compact Disc Litigation while they represented Deep before these other courts). See id. ¶ 202. To the extent that this is the claim, it fails for the reasons already given, that an undisclosed conflict of interest does not rise to fraud on the court. Deep might also be alleging that David Boies and Boies, Schiller & Flexner committed malpractice by retaining Straus & Boies as “liaison counsel in Virginia,” or by not taking certain actions during discovery, or by continuing to represent him even after Boies, Schiller & Flexner acknowledged that it had a conflict of interest. Id. ¶¶ 188-90. He might be alleging that Straus & Boies also committed malpractice. Id. ¶ 189. Such claims fail for the reason given already: malpractice is a wrong visited upon a “single litigant,” not a fraud upon the court. (e) In the Northern District of New York Bankruptcy Court, throughout 2002 Deep alleges that the Lawyers represented him in Bankruptcy Court while they represented Trans World here in In re Compact Disc Litigation, that this was an undisclosed conflict of interest, id. ¶ 211, and that the Lawyers committed malpractice by failing to conduct discovery in his cases properly, id. ¶¶ 205-10. These allegations fail to state claims of fraud on the court, for the reasons I have given previously. (f) In the Northern District of Illinois, September through November, 2002 Deep alleges that during his bankruptcy case he identified AbovePeer Inc. (one of his companies) as having an adverse interest in his bankruptcy estate. Id. ¶¶ 212-14. Because of this conflict between him and AbovePeer, he asked Boies, Schiller & Flexner to withdraw its representation of him in the Northern District of Illinois in the copyright case, In re Aimster Copyright Litigation. Id. ¶215. He asserts that the firm moved to withdraw, but failed to disclose the potential conflict of interest as a reason. Id. ¶ 216. As I have already said, failure to disclose a conflict is not a fraud upon the court. The motion to withdraw was denied, however, id. ¶ 217, and Deep alleges that the “concealment of its conflict of interest was a fraud perpetrated upon the court that caused [him] to be subject to an injunction entered on October 30, 2002, that shut down [his] business,” id. ¶ 220. In an effort to demonstrate that the “concealment” was a fraud on the court, Deep asserts that his lawyers later renewed the motion, this time including as a reason the potential conflict of interest, and “[a]s a result of Boies Schiller finally admitting ... its conflict of interest to the court, [the] motion to withdraw was granted.” Id. ¶ 226. Not only is there still no allegation of the necessary affirmative misrepresentation, but there is also nothing in the court’s order to support Deep’s interpretation. The court stated: [A] partner in the firm of Boies, Schiller & Flexner advised this Court that the firm and Defendant Deep “reached an agreement” on September 17, 2002 that its withdrawal “would be in Defendant’s best interest.” [The lawyer] explained that there is a “difference between client and counsel as to the manner in which the action should be defended” that prevents counsel “from rendering effective assistance ... to Defendants.” This Court deems that Defendants’ counsel have demonstrated that good cause exists for their withdrawal from representing Defendants in this matter. We therefore grant Defendants’ counsel motion to withdraw. In re Aimster Copyright Litig., No. 01-C-8933 (N.D.Ill. Nov. 4, 2002) (Docket Item 58) (citations removed). I make no determination as to whether there is any basis for bar discipline or a legal malpractice lawsuit against the Lawyers. But there is no sufficient allegation to support Deep’s claim of fraud on the court. I therefore Dismiss Count I as to the Lawyers from both complaints. (2) The Record and Movie Companies Deep does not allege in the complaint that the Record and Movie Companies committed fraud on the court. Therefore, I Dismiss Count I as to the Record and Movie Companies from both complaints. (2) Trans World The complaint, taken as a whole, could fairly be read to allege that Trans World had knowledge of the Lawyers’ simultaneous representation of Deep and Trans World in all the foregoing courts or fora. See Compl. ¶ 88 (alleging that an agent of Trans World, Bill Duker, advised Deep to retain the Lawyers). Nevertheless, this Count fails as to Trans World for the same reasons that it fails as to the Lawyers: Deep has not alleged that Trans World made any affirmative misrepresentation to a court. Therefore, I Dismiss Count I as to Trans World from both complaints. B. 60(b)(3) Fraud Deep says that if his claim for fraud on the court does not survive, he should be able to proceed under Fed.R.Civ.P. 60(b)(3), Opp’n 14-16, which permits attack on a final judgment for “fraud ... of an adverse party.” Deep has not provided factual allegations in his complaint to support such a claim. It therefore fails. C. Sarbanes-Oxley Claim This is Count VII of the Second Amended Complaint (05-cv-118). It is not asserted in the First Amended Complaint (05-cv-149). In this Count, Deep alleges that the defendants conspired to violate the Sar-banes-Oxley Act, 18 U.S.C § 1513(e). Compl. ¶¶ 492-93. A liberal reading suggests that Deep is alleging that the defendants took harmful action against him because he “conveyed truthful information to the Department of Justice ... relating to the possible commission [by the Record Companies] of the federal offenses of criminal antitrust violations and securities fraud.” Compl. ¶ 178. In retaliation for this “whistleblowing,” Deep contends, Hilary Rosen (the president of a Record Company defendant) directed Robert Higgins (the president of Trans World) to “fire” Deep by telling Higgins over the phone “Let’s just work this out.” Compl. ¶ 184. The Record and Movie Companies argue that U.S.C. § 1513(e) creates no private cause of action, and that only 18 U.S.C. § 1514A confers a private right of action to remedy whistleblowing. Because section 1514A requires an actual employment relationship, they contend that Deep may not assert this claim. Record & Movie Cos. Mem. at 29-30. Trans World and the Lawyers adopt these arguments. Trans World Mem. at 30; Lawyers Mem. at 8 n. 9. Deep concedes that he was not an employee (and thus cannot meet the requirements of 18 U.S.C. § 1514A), Opp’n at 19, but argues that “Congress implied a private cause of action for a class of persons like [him] [with 18 U.S.C. § 1513(e)], though it did not expressly provide one,” id. at 20. 18 U.S.C. § 1513(e) prohibits “knowingly, with the intent to retaliate, tak[ing] any action harmful to any person ... for providing to a law enforcement officer any truthful information relating to the ... possible commission of any Federal offense....” 18 U.S.C. § 1513(e). But this provision is criminal, not civil. It prescribes fines or imprisonment of up to ten years as punishment. See Camero v. Boston Scientific Corp., 433 F.3d 1, 10 (1st Cir.2006) (18 U.S.C. § 1513 “provides] criminal sanctions for retaliation”) (emphasis supplied). It therefore does not grant Deep a private right of action. Private citizens “lack[ ] a judicially cognizable interest in the prosecution or nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973); see also Cok v. Cosen-tino, 876 F.2d 1, 2 (1st Cir.1989) (per curiam) (“Generally, a private citizen has no authority to initiate a federal criminal prosecution.”). As the Seventh Circuit has stated: Criminal statutes, which express prohibitions rather than personal entitlements and specify a particular remedy other than civil litigation, are ... poor candidates for the imputation of private rights of action.... [T]he Supreme Court has been unwilling to treat criminal laws as implying private entitlements ... and has held that the victims of crime therefore lack any legal right to compel a criminal prosecution. That reluctance to form private entitlements from criminal prohibitions blocks the judicial creation of private rights of action as well. Chapa v. Adams, 168 F.3d 1036, 1038 (7th Cir.1999) (citations omitted); see also Alexander v. Sandoval, 532 U.S. 275, 289, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (“Statutes that focus on the person regulated rather than the individuals protected create no implication of an intent to confer rights on a particular class of persons.”) (quoting California v. Sierra, Club, 451 U.S. 287, 294, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981) (quotation marks omitted)). Accordingly, I Dismiss Count VII from the 05-cv-118 complaint as to all defendants. D. Federal Antitrust Claims These are Counts II and III of the Second Amended Complaint (05-cvll8). They are not asserted in the First Amended Complaint (05cvl49). In Counts II and III, Deep asserts both per se and rule of reason violations of § 1 of the Sherman Act, 15 U.S.C. § 1, alleging wide-ranging antitrust conspiracies involving all the defendants. Although Deep mentions various alleged promotional schemes and kickbacks, his allegations boil down to three theories of antitrust conspiracy. First, he asserts that the defendants engaged in a price-fixing conspiracy to maintain the minimum prices of retail CDs, and that he was harmed as a provider of a technology that calculated discount prices of CDs. Second, he alleges that the defendants engaged in a concerted refusal to license copyrighted musical recordings in order to prevent competition in online music distribution. Third, he asserts that the defendants engaged in a price fixing conspiracy and a concerted refusal to license copyrighted movies in order to prevent competition in the online “video-on-demand” market. The Record and Movie Companies assert that Deep’s antitrust claims should be dismissed because he has failed to allege antitrust standing or antitrust injury, and that he is otherwise an improper plaintiff according to the factors of Associated General Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). Record & Movie Cos. Mem. at 12-20. They also argue that he has not sufficiently alleged a conspiracy. Record & Movie Cos. Mem. at 20-23. Trans World and the Lawyers adopt these arguments. Trans World Mem. at 28-30; Lawyers Mem. at 8. The First Circuit has instructed that the six factors set forth in Associated General Contractors “must be evaluated on a case-by-case basis to determine whether a plaintiff has standing to bring an antitrust action.” Serpa Corp. v. McWane, Inc., 199 F.3d 6, 10 (1999). Although, no single factor is dispositive, “the absence of antitrust injury weighs heavily against a grant of standing.” Sullivan v. Tagliabue, 25 F.3d 43, 47 n. 9 (1st Cir.1994). Antitrust injury is an “injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful.” Serpa Corp., 199 F.3d at 10 (quoting Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977)). “[T]he presumptively ‘proper’ plaintiff [to allege an antitrust injury] is a customer who obtains services in the threatened market or a competitor who seeks to serve that market.” SAS of Puerto Rico, Inc. v. Puerto Rico Tele. Co., 48 F.3d 39, 44 (1st Cir.1995). The First Circuit has made it clear that suppliers are not preferred plaintiffs. Id. In general, suppliers are “held not to have suffered ‘antitrust injury’.... ” Id. Suppliers may have an antitrust claim if the supplier “is a participant in the very market where competition is impaired.” Id. (I) The alleged conspiracy to maintain minimum retail CD prices Deep asserts that the record companies conspired to maintain the minimum advertised price of retail CDs, thereby maintaining higher prices for consumers. See, e.g., Compl. ¶¶351, 355, 363-64. He asserts that in order to maintain their prices, the Record Companies exerted financial pressure on Trans World to “impose increased pricing policies, rather than use” Deep’s technology, id. ¶ 351; “prosecuted unlawful and sham litigation” against Deep “to interfere with and delay” development of his technology, id. ¶ 356; and “prevented [Trans World] from performing its contractual obligation to [Deep] ... to track and make payments of promotional funds ... ”, id. ¶ 365. As a consequence of these combined actions, Deep alleges, he “was effectively forced out of ... business.” Id. ¶ 380. Under this first theory of antitrust conspiracy, Deep alleges impaired competition in the retail CD market. Deep does not allege, however, that he was a consumer who paid a higher price for CDs or that he was a competitor adversely affected by the minimum advertised pricing. Instead, Deep alleges that he developed a technological product (Aimster), which he licensed to Trans World. That technology, Aimster, was designed to determine a consumer’s discount CD price online, and was intended to be used by Trans World in its retail sale or distribution of CDs. Deep expected to receive profits based on Trans World’s use of his technology. Id. ¶ 336 (alleging that Deep would be entitled to “remuneration based on [Trans World’s] conduct of business” in consideration for granting Trans World exclusive rights to his “targeted-marketing invention.”). Deep does not bring his claim as either a consumer or a competitor in the CD retail market but as a supplier of a technological product that Trans World (a CD distributor) refused to use. As a supplier he is disfavored as a plaintiff. SAS of Puerto Rico, 48 F.3d at 44. Although the First Circuit has recognized that “there may be some instances where presumptively disfavored plaintiffs do have standing to bring an antitrust action,” see Seipa Corp., 199 F.3d at 12, Deep has not provided any reason why he fits the exception, and “good cause” is required. SAS of Puerto Rico, 48 F.3d at 45. Furthermore, Deep’s injuries flow from an alleged breach of contract, unlawful transfer of proprietary information, and breach of fiduciary duty. These are not the type of injury that the antitrust laws were meant to protect. I conclude that Deep does not have standing to bring a claim under this theory of antitrust conspiracy. (2) The alleged conspiracy to prevent licensing of online music Deep also alleges that certain Record Companies “persistently and concertedly refused to license any online distribution of their copyrighted works by any entity other than their own” online distributors. Compl. ¶ 386. This concerted refusal to license was effective, he maintains, because these defendants “controlled access to over 85% of the world’s copyrighted musical works.” Id. ¶ 385. Such conduct, if proven, can constitute a violation of the antitrust laws. Data Gen. Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147, 1185 n. 63 (1st Cir.1994); Primetime 2k Joint Venture v. Nat’l Broad. Co., Inc., 219 F.3d 92, 103 (2d Cir.2000) (“[a] concerted refusal to license copyrighted [works] in order to prevent competition ... is a boycott that, if proven, violates” antitrust law) (citing Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 212, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959); Broadcast Music, Inc. v. Columbia Broad. Sys., Inc., 441 U.S. 1, 19, 99 S.Ct. 1551, 60 L.Ed.2d 1 (1979)). Deep does not allege, however, that he sought and was denied a license by the record companies. Instead he alleges that during “the early stages of [his] business, [he] entered into exclusive licensing agreements with Trans World.... ” Compl. ¶ 387. Deep asserts that the Record and Movie Companies gained “proprietary information about and control over” his contract with Trans World. Id. ¶ 390. He further asserts that the defendants transferred this proprietary information to Mu-sicNet on or about October 2004 and that approximately six months later MusicNet was sold for “an amount in excess of $25 million [], the benefit of which directly resulted from the transfer to MusicNet of [his] proprietary information.... ” Id. ¶¶ 390-91. But that sort of injury is not the concern of the antitrust laws: [A]ntitrust injury [is] an injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful. The harm should reflect the anticompetitive effect either of the violation or of anti-competitive acts made possible by the violation. It should, in short, be the type of loss that the claimed violations ... would be likely to cause. Consequently, a proper plaintiff must prove more than injury causally linked to an illegal presence in the market. Serpa Corp., 199 F.3d at 10 (internal citations and quotation marks omitted). Without an allegation that he was denied a musical recording license, and that this led to harm, I conclude that Deep does not have standing to bring a claim under this theory of antitrust conspiracy. (3) The alleged conspiracy to restrain the video-on-demand market Deep alleges that all the defendants engaged in anticompetitive activity in the “video-on-demand” market. Compl. ¶¶ 405, 407. “Video-on-demand services allow consumers to order and watch theatrical motion pictures through a personal computer at any time, 24 hours per day, 7 days per week.” Id. ¶ 392. Deep asserts that he was a competitor in this market, contending that his Aimster technology “was designed to be used for the technology and services necessary to provide” this service. Id. ¶ 394. He alleges that he entered into licensing agreements with Trans World to distribute movies using the Aimster system, and that all the defendants, beginning at an unknown date, “acted in concert to conspire and combine to fix prices, organized a group boycott of Aimster, reneged on their licensing agreements that [the defendants] promised [him] were negotiated, and otherwise tried ... to destroy Aimster’s viability.” Id. ¶ 408. As before, it appears that Deep is alleging that the defendants engaged in a concerted refusal to license and to fix prices. Although Deep has asserted that he was injured by the defendants “conspiracy and combination,” id., what he fails to allege in this count is any factual underpinning for an antitrust conspiracy. For an alleged antitrust conspiracy to survive a motion to dismiss, the plaintiff must “allege a factual predicate concrete enough to warrant further proceedings.... ” DM Research, Inc. v. College of American Pathologists, 170 F.3d 53, 55 (1st Cir.1999) (emphasis original). Although “almost any agreement between independent actors that restrains competition” could be the requisite conspiracy, a plaintiff still must plead such an agreement in more than conclusory terms. Id. at 55. “Conclusory allegations in a complaint, if they stand alone, are a danger sign that the plaintiff is engaged in a fishing expedition.” Id. see also In re Compact Disc Litig., 138 F.Supp.2d 25, 28 (D.Me.2001) (quoting DM Research, Inc., 170 F.3d at 55). Deep’s Second Amended Complaint fails to meet this requirement. It consists largely of conclusory assertions that there was a combination and conspiracy, coupled with an assertion that a Sony announcement of Movielink, a joint venture to distribute movies as video-on-demand, was a “device” for collusion. Compl. ¶¶ 406, 408. The factual assertions are insufficient to withstand the motion to dismiss. I Dismiss Counts II and III of the Second Amended Complaint in 05-evll8 as to all defendants. E. RICO Claim This is Count VI of the Second Amended Complaint (05-cv-118). It is not asserted in the First Amended Complaint (05-cv-149). Deep alleges that the defendants engaged in unlawful activity in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1962(c) and (d). Compl. ¶¶433-91. He asserts that they committed and conspired to commit various predicate acts including: mail and wire fraud, 18 U.S.C. §§ 1341-43, 1346; receipt and payment of monies and other things of value, 18 U.S.C. § 1954; interstate transportation of stolen property, 18 U.S.C. § 2314; criminal infringement of a copyright, 18 U.S.C. § 2319; extortion, 18 U.S.C. § 1951; and obstruction of justice, 18 U.S.C. §§ 1512-13,1519. RICO claims are subject to a heightened pleading standard, Bessette v. Avco Fin. Servs., Inc., 230 F.3d 439, 450 (1st Cir.2000), and “require[] more detailed statements of claim.... ” Garita Hotel Ltd. P’ship v. Ponce Fed. Bank, F.S.B., 958 F.2d 15, 17 n. 1 (1st Cir.1992). A RICO plaintiff must allege the following elements in order to survive a motion to dismiss: “(1) conduct, (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Bessette, 230 F.3d at 448 (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3292, 87 L.Ed.2d 346 (1985)). “Racketeering activity” is defined statutorily; it includes only the various offenses listed under 18 U.S.C. § 1961(1). A “pattern” requires at least two predicate acts of such racketeering activity, 18 U.S.C. § 1961(5), and the plaintiff must “demonstrate that the ‘predicates are related, and that they amount to or pose a threat of continued criminal activity....’” North Bridge Assoc., Inc. v. Boldt, 274 F.3d 38, 42 (1st Cir.2001) (quoting Efron v. Embassy Suites (P.R.), Inc., 223 F.3d 12, 15 (1st Cir.2000)) (emphasis original). A “RICO conspiracy claim must charge that defendants knowingly entered into an agreement to commit two or more predicate crimes.” Miranda v. Ponce Fed. Bank, 948 F.2d 41, 47 (1st Cir.1991) (dismissing conclusory conspiracy claim). Moreover, to have standing in a civil RICO claim, a plaintiff must allege that he has been “injured in his business or property by reason of’ the claimed RICO violations. 18 U.S.C. § 1964(c). In order to satisfy this requirement, a plaintiff must show “some direct relation between the injury asserted and the injurious conduct alleged.” Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 268, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992). This requires a showing of proximate cause; “[ojtherwise, plaintiffs may not recover in a civil RICO claim if their injuries are so far removed from the defendant’s acts that they are indirect and derivative.” Geo. Lussier Enter., Inc., 393 F.3d 36, 51 (1st Cir.2004). The injury must be “caused by the commission of a [section 1961] predicate act,” and not just any overt act furthering the RICO conspiracy. Miranda, 948 F.2d at 48. Here, the Record and Movie Companies, Trans World and the Lawyers all argue that Deep has failed to adequately allege: (1) an enterprise, (2) a pattern of racketeering activity, (3) the actual predicate acts themselves, (4) a conspiracy, (5) that the defendants each knowingly agreed to commit two predicate acts, and (6) that his injuries were caused by the RICO acts. Record & Movie Cos. Mem. at 23-29; Lawyers Mem. at 9-10; Trans World Mem. at 30 (adopting others’ arguments). I agree that Deep’s RICO allegations fail to state a claim upon which relief can be granted. I take each allegation in turn. (1) Mail and Wire Fraud Deep alleges that acts of mail and wire fraud, 18 U.S.C. §§ 1341, 1343, constituted predicate RICO acts. Compl. ¶ 467(a). Because Deep is alleging fraud here, he must satisfy Fed.R.Civ.P. 9(b)’s requirement that he plead the circumstances “with particularity.” The First Circuit says that “[t]his degree of specificity is no more nor less than we have required in general fraud and securities fraud cases.” New Eng. Data Servs., Inc., v. Becher, 829 F.2d 286, 290 (1st Cir.1987). Deep alleges that the defendants’ “use of the mails and wires to perpetrate their fraud involved thousands of communications,” Compl. ¶ 461, and that they “caused matter and things to be delivered” in the mail, including “correspondence, policy materials, requests for proposals, invoices, payments and CD/DVDs sent from or to Label and Studio Defendants, and the resulting Transfers of Funds made by wire transfer by Trans World....” Id. ¶ 467(a). That statement is plainly insufficient. Under Rule 9(b) the complaint is required to “go beyond a showing of fraud and state the time, place and content of the alleged mail and wire communications perpetrating that fraud.” Cordero-Hernandez v. Hemandez-Ballesteros, 449 F.3d 240, 244 (1st Cir.2006) (quoting Feinstein v. Resolution Trust Corp., 942 F.2d 34, 42 (1st Cir.1991) (emphasis added)). See Ahmed, 118 F.3d at 889 (upholding dismissal on 9(b) grounds because “pleading contains only the bald assertion that the defendants (unspecified) used the U.S. mails to [commit fraud], that the defendants (again unspecified) used the U.S. Postal Service by mailing unspecified materials, and that the defendants used wire communications”). Deep’s conclusory allegations, made only generally against the thirty-plus defendants, fall measurably short of the particularity required by Rule 9(b). The most specific allegation of mail or wire fraud in the complaint is Deep’s “Transfers of Funds” language: [U]nbeknownst to me, Trans World’s transfer of funds and loan and securities documents by wire in order to finance and gain control of my business (of $200,000 in October and again in November of 2000, of $500,000 in January of 2001 and of 4 payments of $250,000 during the period February 2001 to August 2001) (“Transfer of Funds”) were an investment at least in part of racketeering income from kickbacks paid to Trans World by the Labels and Studios, including fraudulent stock credits, unlawful profits from “clears,” and rigged bids for promotional funds, and also from interstate transportation of stolen money of numerous investors in California, New York and other states throughout the United States. Compl. ¶ 450. That assertion is obviously vague on the dates of the wire transmissions. More important, it fails utterly to identify any recipient of the wire transfers. It falls far short of Rule 9(b)’s requirement, and a defendant cannot reasonably be asked to respond to it. I heed the First Circuit’s admonition, however, that dismissal should not be automatic. Becher, 829 F.2d at 290. I assess, therefore, whether information about the defendants’ use of the mails or wires for the alleged fraud was “likely in the exclusive control of the defendants,]” id., such that Deep needs discovery on that topic first, with the opportunity to file a Third Amended Complaint to meet Rule 9(b)’s standards thereafter. Whether any mail or wire communications “were between the defendants solely or between the defendants and the plaintiff[ ] ... would affect the ... factor of whether the facts were peculiarly within the defendants’ control.” Id. at 291-92. To the extent that I can follow Deep’s reasoning on his RICO theory of mail and wire fraud, it is clear that some, if not many, of the allegedly fraudulent communications were directly to him. See, e.g., Compl. ¶ 459 (“providing me with false, misleading and incomplete information”), ¶ 461(c) (“misleading materials intended to induce me”). There was nothing to prevent Deep, therefore, from identifying dates, and himself as a recipient, in the two amended complaints he has already filed. Then the defendants would have been able to respond to a specific mail or wire transmission and admit or deny that it qualified under RICO. As the First Circuit said in another RICO case, the “underlying rationale for relaxation of pleading requirements — that the needed information is likely to be in the exclusive control of the defendant — is absent.” Efron, 223 F.3d at 16 (citation omitted). Considering Deep’s previous two revisions of his complaint, I conclude that his failure to supply specific allegations in the Second Amended Complaint makes this an inappropriate case for the generous discovery rule adopted in Becker. “Although Becker may in certain circumstances give a plaintiff a second bite at the apple, its generous formulation is not automatically bestowed on every litigant.” Feinstein, 942 F.2d at 44. In deciding which cases are appropriate for Becker discovery, the court must keep in mind the purpose of Rule 9(b), including avoiding groundless claims and strike suits, ... and ensuring that defendants have been adequately put on notice to enable them to give meaningful responses.... On the other side of the scale, the court should note the policy in favor of allowing amendments and trying cases on their merits, and against dismissals which would deny plaintiffs their day in court. Becker, 829 F.2d at 292. Here, these factors call for dismissal of the mail and wire fraud predicate acts without opportunity for further discovery. (2) Receipt and payments of monies and other things of value Deep alleges that the defendants committed the predicate act found in 18 U.S.C. § 1954. Compl. ¶ 467(d). This claim is incomprehensible, for section 1954 prohibits employees of welfare benefit or pension plans from accepting bribes. Deep’s allegations in no way implicate a welfare benefit or pension plan. (3) Interstate transportation of stolen property In his complaint, Deep makes an extremely vague allegation of interstate transportation of stolen property, see 18 U.S.C. § 2314, as a predicate act. Compl. ¶ 467(e). In his opposition to the defendants’ motion to dismiss challenging its vagueness, however, Deep does not address it. A party’s failure to oppose specific arguments in a motion to dismiss results in waiver of those issues. Graham v. United States, 753 F.Supp. 994, 1000 (D.Me.1990) (see Collins v. Marina-Martinez, 894 F.2d 474, 481 n. 9 (1st Cir.1990)) (“It is settled beyond peradventure that issues mentioned in a perfunctory manner, unaccompanied by some effort at developed argumentation are deemed waived.”). I treat it, therefore, as waived. (4)Criminal infringement of a copyright Deep alleges that as predicate acts the Record and Movie Companies criminally infringed copyrights. Compl. ¶ 467(f). See 17 U.S.C. § 506(a)(1)(A). He states that the Record and Movie Companies created CDs and DVDs' “for the primary purpose of fraudulently paying kickbacks to Trans World and/or fraudulently inflating the[ir] revenues ..., while fraudulently depriving the artists of their rightful royalties.” Compl. ¶ 467(f). The only alleged injury to Deep is that these CDs and DVDs were used “to obtain the Transfers of Funds to control and finance [his] business.” Id. It is clear from these allegations that Deep cannot meet RICO’s strict causation requirement; even assuming that the defendants did indeed infringe copyrights, the victims of these acts are the artists themselves who, as Deep alleges, were fraudulently deprived of their rightful royalties. Deep’s claimed injury, on the other hand, is precisely the “indirect and derivative” injury that does not meet the causation requirement, Geo. Lussier Enter., Inc., 393 F.3d at 51, and cannot be said to be “caused by the commission of [the] predicate act....” Miranda, 948 F.2d at 48. (5) Extortion Deep’s complaint alleges that beginning around July, 2001, Trans World and the Record and Movie Companies committed the predicate act of interfering with interstate commerce by means of extortion under 18 U.S.C. § 1951, Compl. ¶ 467(g), but there is no mention of the extortion allegation in Deep’s opposition to the motion to dismiss. Opp’n at 26 (“The- defendants each engaged in predicate acts that include mail fraud, wire fraud, money laundering, copyright infringement, obstruction of justice and racketeering [with no mention of extortion].... ”). Because the defendants challenged the sufficiency of this allegation in their motion to dismiss, Record & Movie Cos. at 27, I treat Deep’s failure to respond as a waiver of his extortion allegation. (6) Obstruction of justice Deep alleges that as predicate acts the defendants instructed him to withhold information about Trans World from Department of Justice Investigators, in violation of 18 U.S.C. § 1512 (witness tampering) and § 1519 (concealing records in a federal investigation), and that the defendants “fired” him in retaliation for conveying truthful information in that investigation, in violation of 18 U.S.C. § 1513 (retaliation against a witness). Compl. ¶¶ 467(h), 178-85. The First Circuit upheld a dismissal of a civil RICO claim based on obstruction of justice allegations very similar to Deep’s, for failure to establish a “pattern of racketeering activity” as required by 18 U.S.C. § 1961(5). Miranda, 948 F.2d at 45-46. In Miranda, the plaintiff, a bank teller, alleged that she was encouraged “to mislead federal investigators” by her superiors, and that when she cooperated with the investigation, she was fired. Id. at 43. The court viewed the separate allegations of harassment relating to a single federal investigation as only one predicate act, saying that viewing “each individual incident of harassment as constituting a [separate] predicate act .... would eviscerate the pattern requirement upon which RICO liability depends.” Id. at 46 n. 6. The Court dismissed the RICO claim saying, “[w] e believe that the effort to rest a RICO count on this jerry-built foundation [is flawed].” Id. at 45. Following Miranda, I find that Deep’s obstruction of justice allegations regarding a single federal investigation fail to demonstrate the requisite “pattern of racketeering activity” required by 18 U.S.C. § 1961(5). ****** Because the Complaint fails to allege adequately any “pattern of racketeering activity,” Deep’s 1962(c) substantive civil RICO claim must fail. As a result, I need not address his 1962(d) conspiracy claim. Efron, 223 F.3d at 21 (“[I]f the pleadings do not state a substantive RICO claim upon which relief may be granted, then the conspiracy claim also fails.”). I therefore Dismiss Deep’s RICO claim as to all defendants. F. Bankruptcy-Related Claims This is Count V of the Second Amended Complaint (05cvll8). It is not asserted in the First Amended Complaint (05cvl49). Deep fails to oppose the defendants’ arguments for dismissal of Count V of the Second Amended Complaint, insofar as that claim alleges a violation of the automatic stay entered in his bankruptcy proceedings, 11 U.S.C. § 362. That claim is therefore waived. As for fraudulent transfer, Deep alleges in Count V that the “Label and Studio Defendants paid, and continue to pay, promotional funds and remuneration to Trans World to which I am entitled, in an amount that Trans World has negligently failed to track or account for.” Compl. ¶ 427. The Record and Movie Companies, however, contend that “Deep had no valid interest in the property that was allegedly transferred .... ” Record and Movie Cos. Mem. at 32. Trans World adopts this argument as well. Trans World Mem. at 30. The Lawyers do not address this issue because they argue “the cause of action for fraudulent transfer ... [is] not asserted against the Attorney Defendants.” Lawyers Mem. at 17 n. 12. In Deep’s opposition, he ignores the Record and Movie Companies’ argument entirely and advances a completely different theory of fraudulent transfer, focusing on the Lawyers. See Opp’n at 46. I therefore consider the fraudulent transfer claim against the Record and Movie Companies and Trans World waived. As for Deep’s new arguments against the Lawyers in his opposition, Count Y does not support them. See Compl. ¶¶ 426-32 (no mention of lawyers). I treat the fraudulent transfer claim waived as to all defendants. * * * * * * As a result, I Dismiss With Prejudice all Deep’s federal claims. Since there are no federal claims remaining, the Lawyers urge me to abstain from deciding the state law claims against them, and to leave those claims to New York state court. For reasons that appear near the end of this opinion, I conclude that the Lawyers’ abstention arguments are well-grounded. I therefore decline to decide the state law claims against them and Dismiss Without Prejudice all remaining claims against the Lawyers. The other defendants, however, have not asked me to abstain (nor has the plaintiff Deep). I therefore address the state law claims against the other defendants although, as will appear, I decide to abstain as to one claim against Trans World in each of the two lawsuits. G. Waiver: New York Consumer Protection Act, Negligence, Conspiracy, Tortious Interference, Piercing the Corporate Veil, Declaratory and In-junctive Relief This analysis applies to Counts IV, X and XII-XV of the Second Amended Complaint (05-cv-118), and Counts IV, VI-IX of the First Amended Complaint (05-ev-149). The Record and Movie Companies assert that Deep has abandoned six claims. Record & Movie Cos. Reply Mem. in Supp. of Mot. to Dismiss (“Record & Movie Cos. Reply”) at 10 (Docket Item 63). I agree that Deep has failed to submit any opposition to the defendants’ motions to dismiss five of these claims: negligence (Count X in 05-ev-118 and Count IV in 05-cv-149); conspiracy (Count XII in 05-cv-118 and Count VI in 05-cv-149); tortious interference with contract or business relations (Count XIII in 05-cv-118 and Count VII in 05-cv-149); piercing the corporate veil (Count XIV in 05-cv-118 and Count VIII in 05-cv-149); and declaratory and injunc-tive relief (Count XV in 05-cv-118 and Count IX in 05-cv-149). I treat these claims, therefore, as waived. As for Count IV of the Second Amended Complaint in 05-cv-118, I agree that Deep has waived opposition to dismissal of his claim under New York’s Consumer Protection Act, N.Y. Gen. Bus. Law §§ 3;49 et seq. But I conclude that he has not abandoned his claim under New York’s Donnelly Antitrust Act, N.Y. Gen. Bus. Law §§ 340 et seq. (He asserts both claims in Count IV.) Deep does respond to the defendants’ arguments regarding his “antitrust injury” and their alleged anti-competitive conduct. See Opp’n at 21-26. Although he does not mention the Donnelly Act by name, and cites only federal antitrust case law, it is fair to read his opposition as opposing dismissal of his state antitrust claims as well. In the Second Amended Complaint in 05-cv-118, I therefore Dismiss Count IV insofar as it alleges New York consumer protection claims, Counts X, XII, XIII, XIV, and XV, on the basis of waiver. In the First Amended Complaint in 05-cv-149, I Dismiss the corresponding Counts IV, VI, VII, VIII, and IX. H. Donnelly Act (State Antitrust) Claim This is the second part of Count IV of the Second Amended Complaint (05-cv-118). It is not asserted in the First Amended Complaint (05cvl49). Deep asserts that the alleged federal antitrust violations violate New York’s antitrust law, the Donnelly Act, N.Y. Gen. Bus. Law, §§ 340 et seq., as well. According to the New York Court of Appeals: This court has held that the Donnelly Act, having been modeled after the Federal Sherman Act of 1890, should generally be construed in light of Federal precedent and given a different interpretation only where State policy, differences in the statutory language or the legislative history justifies such a result. X.L.O. Concrete Corp. v. Rivergate Corp., 83 N.Y.2d 513, 518, 611 N.Y.S.2d 786, 634 N.E.2d 158 (N.Y.1994) (quoting AnheuserBusch, Inc. v. Abrams, 71 N.Y.2d 327, 335, 525 N.Y.S.2d 816, 520 N.E.2d 535 (N.Y. 1988) (internal quotation marks removed)). Thus, the burden is on Deep to show that the Donnelly Act permits his claim when federal antitrust law does not. See, e.g., People v. Rattenni, 81 N.Y.2d 166, 172, 597 N.Y.S.2d 280, 613 N.E.2d 155 (N.Y.1993) (“While defendants argue that we should reject [the federal rule], they have presented no persuasive reason ... for us to depart from the Supreme Court’s interpretation of the Sherman Act”); 4A Robert L. Haig, New York Practice § 79:8 (2d ed.) (“[T]he phrasing of the Court of Appeals in [X.L.O. Concrete Corp.] suggests that the burden is on the party who contends that the federal law should not be followed .... ”). In his opposition, Deep has not argued that his New York antitrust claims differ from his federal claims. Indeed, his antitrust arguments cite only federal law. Therefore, I construe the Donnelly Act as paralleling its federal counterpart, and dismiss Deep’s New York antitrust claims for the same reasons. I. Breach of Contract Claim This is Count IX of the Second Amended Complaint (05-cv-118), and Count III of the First Amended Complaint (05-ev-149). Deep claims that he entered into contracts with Trans World and the Record and Movie Companies, and that they breached these contracts with him, thereby causing him damage. Compl. ¶¶ 505-12. Under New York law, an action for breach of contract requires proof of “(1) a contract; (2) performance of the contract by one party; (3) breach by the other party; and (4) damages.” Terwilliger v. Terwilliger, 206 F.3d 240, 246 (2d Cir. 2000) (quoting Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525 (2d Cir. 1994)). (1) The Record and Movie Companies Deep alleges no facts that could rise to the level of contract formation with the Record and Movie Companies, let alone a breach of such a contract. There