Full opinion text
OPINION AND ORDER HARMON, District Judge. Pending before the Court in the above referenced cause are two motions inter alia: (1) Plaintiffs Public Employees’ Retirement System of Ohio (“PERS”), State Teachers’ Retirement System of Ohio (“STRS”), School Employees’ Retirement System of Ohio (“SERS”), and Ohio State Highway Patrol Retirement System’s (“HPRS’s”) (collectively, the “Ohio Retirement Systems’ ”) motion for leave to file an amended complaint and for the Cincinnati Retirement System (“Cincinnati”) and the Ohio Tuition Trust Authority (“OTTA”) to join in the Ohio Retirement Systems’ Amended Complaint (instrument #54); and (2) the Ohio Retirement Systems, Cincinnati, and OTTA’s motion to strike the Sur-Reply Briefs of Proposed Defendants Goldman Sachs & Co. and the Outside Directors and for order that all parties and proposed Defendants seek leave of Court prior to filing sur-reply briefs (# 86). Since these motions were filed, the New-by class in H-01-3624 was certified on July 5, 2006, #4836. The Ohio Retirement Systems, Cincinnati, and OTTA filed a statement opting out of the class (# 94, filed on July 18, 2006), giving notice pursuant to the Court’s July 11, 2003 order (# 1561 in H-01-3624), as amended on July 11, 2006 (# 4848 in H-01-3624), that they were filing an amended complaint, in essence what they were seeking leave to do in the motions listed above, “without waiving any rights arising from (or asserted in) the motion for leave to amend and motion to join.” Both scheduling orders clearly stated that if Plaintiffs were amending their complaints after opting out, unless as a matter of right, Plaintiffs must request leave of court. Thus the Court finds the motions listed above are still pending and apply to the permissibility of the filing of the new complaint, join-der of Cincinnati and OTTA as Plaintiffs in the instant suit, addition of federal securities claims, and suing additional Defendants in the amended complaint filed on August 17, 2006, # 97 in H-02-4778. The Court addresses the motion to strike first because it affects the scope of review of the motion for leave to amend and to join. I. Motion to Strike Plaintiffs seek to strike the two sur-reply briefs on the grounds that (1) they were filed without leave of court and (2) Defendants “simply repackage arguments already asserted in their respective opposition briefs” and Defendants are not permitted to make new arguments that could have been raised in Defendants’ responses. Both Defendants respond that they are not aware of any federal, local or Court rule that requires a party to seek leave before filing a sur-reply, but that if the Court requires such, they request leave to file such a motion. Bank of America Corporation and Banc of America Securities LLC also filed a surreply (#89), which reiterates the same point. In addition, Goldman Sachs states that it “believes its sur-reply will assist the Court in ruling on the merits of the original motion, especially in light of plaintiffs’ omnibus reply brief, which fails to address many of the arguments raised in the separate briefs filed in opposition to their motion.” This Court observes that the Lacker court, 147 F.Supp.2d at 539, relied on the Northern District of Texas’ then-in-effect Local Civil Rule 7.1, which, after a motion had been filed, permitted a response by the nonmovant and then a reply by the movant. The equivalent of that rule does not currently exist in the Southern District of Texas. Moreover, the Northern District of Texas follows the rule that generally a court should not consider arguments raised for the first time in a reply brief. Pennsylvania General Ins. Co. v. Story, No. Civ. A. 3:03CV0330-G, 2003 WL 21435511 (N.D.Tex. June 10, 2003), citing the following cases: Lacker, 147 F.Supp.2d at 539; Blanchard and Company, Inc. v. Heritage Capital Corp., No. 3:97-CV-690-H, 1997 WL 757909 at *1 (N.D.Tex. Dec.1, 1997); Springs Industries, Inc. v. American Motorists Ins. Co., 137 F.R.D. 238, 240 (N.D.Tex.1991). Nevertheless, in Pennsylvania General, Chief Judge Fish concluded that “no ‘palpable injustice’ exists where the nonmovants are given a chance to respond, as would be the situation if the court were to grant the instant motion for leave to file a surreply.” 2003 WL 21435511 at *1, citing Blanchard at*l and Springs Industries at 240. Here Plaintiffs filed an omnibus reply; after reviewing it and the surreplies the Court finds that allowing Defendants’ sur-replies will cause no prejudice as long as the surreplies respond to previous briefs and do not raise new legal arguments. This Court is capable of determining whether a surreply raises new legal arguments and ignoring them if it does. Here it finds no such new theories. Instead the Court finds that the Goldman, Sachs & Co.’s surreply points to three points previously made in its opposition and argues that Plaintiffs have failed to address them in Plaintiffs’ reply and have therefore conceded them by silence. Similarly, the Outside Directors highlight arguments made in their opposition that they claim Plaintiffs have failed to rebut in their reply to insure that Outside Directors’ “relatively straightforward entitlement to relief is not obscured by the white noise of Plaintiffs’ ambitious, ‘Omnibus Reply.’ ” Bank of America Corporation and Banc of America Securities LLC similarly have not crossed the line by arguing new legal theories. Moreover Plaintiffs’ objection to the surre-plies is conclusory, and they have not identified any specific points in the surreplies as inappropriate. Accordingly, because there are no new arguments being made and there is no prejudice, the Court denies the motion to strike the sur-replies. II. Motion for Leave and to Join in Amended Complaint As has often happened in this Multidis-trict Litigation, there is a broad spectrum of judicial responses to the issues raised by the motion under review. The Court first summarizes the motion, responses, and reply, then sets out what it has determined should be the applicable law relating to the issues raised by the parties, and thereafter applies that law to resolve the questions. The Court also points out the law and pleading standards for issues that it finds should be more appropriately addressed by motions to dismiss in response to the viable portions of Plaintiffs’ proposed amended complaint. A. Pleadings Relating to Plaintiffs’ Motion for Leave to Amend and to Join 1. Plaintiffs’ Motion The Ohio Retirement Systems filed their original complaint against numerous Defendants in Ohio state court on September 4, 2002, asserting claims for common law fraud and deceit, aiding and abetting common law fraud, conspiracy to commit fraud, and negligent misrepresentation under Ohio law, as well as violation of the Texas Securities Act, Tex. Civ. Stat. Art. 581-33. Lehman Brothers Holdings, Inc. removed the action, based on diversity and “related to” bankruptcy jurisdiction, to the United States District Court for the Southern District of Ohio, from which it was transferred to this Court on December 6, 2003 by the Judicial Panel on Multidistrict Litigation for inclusion in MDL 1446. On January 7, 2003, the undersigned judge ordered it coordinated with Newby for pretrial proceedings in MDL 1446. In their motion, the Ohio Retirement Systems seek to amend the complaint to add new federal securities law claims under the Securities Act of 1933 and the Securities Exchange Act of 1934 and to add certain new defendants to both these new federal claims and to the state law claims in their original complaint. They further maintain that their fraud allegations are pleaded in significantly more detail in the proposed amended complaint, found at Ex. A to the Declaration of Sidney S. Liebsman, # 56 in H-02-4788, and virtually identical to the amended complaint (# 97) that was filed without leave on August 17, 2006. The motion for leave to amend (# 56) was filed on September 15, 2005, two and a half months before the cut-off for fact discovery, November 30, 2005. Plaintiffs expressed concern that if they did not seek leave to amend at that time, but instead complied with the Court’s July 11, 2003 order staying the filing of amended complaints in this action until a class had been certified in Newby and in Tittle, some of the proposed new claims might become time-barred. As noted, the order certifying the Newby class was not entered in H-01-3624 until July 5, 2006, # 4836; a class was certified in Tittle, H-01-3913, on June 7, 2006, # 1191. Plaintiffs argue that the July 11, 20Ó3 order should be construed as having tolled the applicable statutes of limitations: “[Wjhere a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right.” Piotrowski v. City of Houston, 237 F.3d 567, 577 n. 14 (5 th Cir.2001) (applying Texas law). See also Versluis v. Town of Haskell, Okla., 154 F.2d 935, 942 (10th Cir.1946)(“it is ... well recognized ... that ‘whenever a person is prevented from exercising his legal remedy by some paramount authority, the time during which he is thus prevented is not to be counted against him in determining whether the statute of limitations has barred his right.’ ”). Moreover, Plaintiffs emphasize that additional rounds of depositions after the close of discovery might be necessary because of the new claims and new Defendants if the amendment were delayed. Cincinnati and OTTA ask permission to join the Ohio Retirement Systems as Plaintiffs with the filing of the new complaint for reasons of economy and efficiency. Moreover, they fear that in waiting until the Neiuby class is certified to request joinder with leave to amend, their state-law claims might become time-barred. These two, as putative class members in the Newby action until opting out, claim entitlement to the protections of the American Pipe tolling doctrine for the claims they seek to assert in the proposed amended complaint and request that the Court determine that they have a right to such benefits and protections, even though they seek to file a complaint before the Court ruled on class certification. Joseph v. Wiles, 223 F.3d 1155, 1166-68 & n. 9 (10th Cir.2000) (holding that the American Pipe tolling doctrine (filing of a class action under Federal Rule of Civil Procedure 23 tolls statute of limitations, from the time the class action is filed to the time class certification is denied) applies to claims of a putative class member who opts out before a class is certified: “Defendants’ potential liability should not be extinguished simply because the district court left the class certification issue unresolved. Consequently we conclude that American Pipe tolling applies to the statute of repose governing [plaintiffs] action.”). They argue that denial of class certification should not be a prerequisite to availing themselves of the benefits of the American Pipe tolling doctrine. Realmonte v. Reeves, 169 F.3d 1280, 1284 (10th Cir.1999)(citing cases from the Eight, Ninth, and Third Circuits finding that the “denial of certification” requirement for American Pipe tolling is illogical and irrelevant). But see In re WorldCom Inc. Sec. Litig., 294 F.Supp.2d 431, 451-52 (S.D.N.Y.2003)(refusing to allow 147 opt-out plaintiffs to benefit from American Pipe tolling in the absence of a decision on class certification); Rahr v. Grant Thornton LLP, 142 F.Supp.2d 793, 800 (N.D.Tex.2000)(“None of the judicial efficiency purposes of the doctrine is served by applying it to plaintiffs who voluntarily pursue their individual claims even before the court determines whether the class is viable”)- Cincinnati and OTTA assert that application of the doctrine here would serve judicial efficiency because it would avoid “prosecuting related claims of closely aligned parties on two different tracts.” Even if the Court should find that tolling under American Pipe does not apply, Cincinnati and OTTA maintain that the filing of this motion for leave to amend should toll their state-law claims. Stafford v. Clark Const. Co., 901 F.Supp. 232, 233 (E.D.Tex.1995)(“The statute of limitations on a cause of action is tolled as soon as a motion for leave to file an amended complaint is filed.”); Bradley v. Armstrong Rubber Co., 46 F.Supp.2d 583, 586 (S.D.Miss.1999)(holding that the filing of a motion to amend with the proposed amended complaint before the statute of limitations had run “tolled the statute of limitations on the added Plaintiffs’ claims for a reasonable time.”). Cincinnati and OTTA insist that the American Pipe tolling doctrine should toll the statutes of limitations for their state-law claims as well as the new federal securities law claims because they involve the same facts, evidence and witnesses (stemming from the massive fraud at Enron) as Newby. Sellers v. Bragg, No. 04 C 3663, 2005 WL 1667406, *6 (N.D.Ill. July 13, 2005); In re Linerboard Antitrust Litig., 223 F.R.D. 335, 351 (E.D.Pa.2004)(same); In re Indep. Serv. Org. Antitrust Litig., Civ. No. MDL-1021, 1997 WL 161940 (D.Kan. Mar.12,1997). 2. ■ Non-Party Outside Directors’ Response (# 59) The Outside Directors object that amendment would be futile because all applicable statutes of limitations on the purported new claims against them expired well before Plaintiffs filed the motion for leave to amend. Pan-Islamic Trade Corp. v. Exxon Corp., 632 F.2d 539 (5th Cir.1980)(the court need not grant leave to amend where it would be futile to do so), cert. denied, 454 U.S. 927, 102 S.Ct. 427, 70 L.Ed.2d 236 (1981); FDIC v. Conner, 20 F.3d 1376, 1385 (5th Cir.1994)(court should deny leave to amend for futility where movant seeks to assert a claim on which limitations has expired). The Outside Directors insist that Plaintiffs’ alternative tolling theories, asserted in a useless effort to revive time-barred claims, lack merit because (1) Plaintiffs are not entitled to class tolling since they filed separate actions before a decision on class certification; (2) even if applicable, American Pipe would not apply to Ohio State common-law claims because they were not, and could not have been, asserted in the Newby class action; (3) the Court’s July 11, 2003 scheduling order did not prevent Plaintiffs from filing suit against the Outside Directors and thus it cannot be a basis for tolling, equitable or otherwise; and (4) the “relation back” doctrine under Fed.R.Civ.P. 15 does not apply to new parties, such as the Outside Directors. Plaintiffs seek to bring three claims, two of them common law, against the Outside Directors: (1) aiding and abetting common-law fraud; (2) negligent misrepresentation; and (3) violation of Section 18 of the Securities Exchange Act of 1934, 15 U.S.C. § 78r. The Outside Directors argue that an amendment to add the aiding and abetting common law fraud is futile because “Ohio does not recognize claims for aiding and abetting common-law fraud; one who engages in any way in fraudulent behavior is liable for fraud itself, not as an aider and abettor to fraud.” Federated Mgt. v. Coopers & Lybrand, 137 Ohio App.3d 366, 738 N.E.2d 842, 853 (2002). The Ohio statute of limitations for negligent misrepresentation is four years, and the discovery rule does not apply, insist the Outside Directors. Dancar Properties, Ltd. v. O’Leary-Kientz, Inc., No. C-030936, 2004 WL 2974067, *2, 2004-Ohio-6998 (1 Dist., Dec.23, 2004), appeal not allowed, 105 Ohio St.3d 1546, 827 N.E.2d 328, 2005-0hio-2188 (Ohio May 11, 2005)(“negligent misrepresentation is not among the specifically enumerated cause of action for which the discovery rule applies under R.C. 2305.09”); Chandler v. Schriml, No. 99AP-1006, 2000 WL 675123, *2 (Ohio App. 10 Dist. May 25, 2000). Thus even if the proposed amended complaint were deemed filed on September 15, 2005, when Plaintiffs filed their motion for leave to amend, the complaint would have to assert misrepresentations made after September 15, 2001 or they are time-barred; Plaintiffs’ claims rest on Enron financial statements made by the Outside Directors before that date. As for alleged violation of § 18, Outside Directors contend that the period of repose in 15 U.S.C. § 78r(c) (“No action shall be maintained to enforce any liability created under this section unless brought within a year after the discovery of the facts constituting the cause of action and within three years after such a cause of action accrued.”) has expired. The Outside Directors emphasize that Plaintiffs have moved for leave to amend in an existing individual action filed before the Court ruled on class certification. They maintain that “[t]he vast weight of recent authority, especially in complex multidistrict litigation such as this, makes clear that American Pipe tolling is not afforded to plaintiffs who file separate actions or ‘opt out’ prior to a decision on class certification. Plaintiffs’ claims are therefore untimely, and leave to amend should be denied.” # 59 at 6. See Wyser-Pratte Co., Inc. v. Telxon Corp., 413 F.3d 553, 568-69 (6th Cir.2005)(holding that a private action plaintiff in a large securities fraud action forfeited the right to class tolling by filing suit before a decision on class certification); In re WorldCom, Inc., Sec. Litig. 294 F.Supp.2d 481, 452 (S.D.N.Y.2003);. In re Ciprofloxacin Hydrochloride Antitrust Litig., 261 F.Supp.2d 188, 221 (E.D.N.Y.2003); Rahr v. Grant Thornton LLP, 142 F.Supp.2d 793 (N.D.Tex.2000); Stutz v. Minn. Mining & Mfg. Co., 947 F.Supp. 399, 404 (S.D.Ind.1996); Wachovia Bank & Trust Co. v. Nat’l Student Mktg. Corp., 461 F.Supp. 999, 1013 (D.D.C.1978). Moreover argue Outside Directors, even if the tolling doctrine did apply generally, it would not toll the Ohio state common law and statutory claims, which were not asserted in Newby and could not have been because they would have been preempted by the Securities Litigation Uniform Standards Act (SLUSA), 15 U.S.C. § 77p(b)(l)(“no covered class action based upon the statutory or common law of any State or subdivision thereof may be maintained in any State or Federal court by any private party alleging an untrue statement or omission of a material fact in connection with the purchase or sale of a covered security”). The Outside Directors conclude that therefore the “Ohio Plaintiffs [who had filed their own lawsuit to pursue claims under Ohio law before any class was certified] had no legitimate reason to believe or expect that the class action tolled their Ohio state law claims.” # 59 at 9. Outside Directors further argue that the July 11, 2003 scheduling order did not provide a basis for tolling, nor did it bar Plaintiffs from filing a new lawsuit against new parties; Plaintiffs elected to wait to file a new suit against new parties until after limitations expired. Even if Plaintiffs believed that the scheduling order prevented them from filing new suits, their remedy was to seek leave of court before limitations expired, not to sit on their hands. Plaintiffs are not entitled to equitable tolling. Nor does the “relation back” doctrine of Fed. R. of Civ. P. 15(c) apply to the proposed claims against new parties, including Outside Directors, to revive these time-barred claims, Outside Directors contend. That doctrine applies only when the action would originally have been brought against a new party “but for mistake concerning the identity of the proper party,” as opposed to a strategic decision not to sue or a lack of knowledge regarding the identity of a given party. Outside Directors were sued in a number of actions, and there could be no mistake as to who they were. Finally, Outside Directors insist they would suffer undue prejudice if the Court were to grant the motion for leave to amend because the depositions of four key Ohio Plaintiffs’ representatives (Jana Harris, Richard Curtis, Timothy Steitz, and Timothy Viezer) took place before Plaintiffs filed their motion. S. Response of the Bank Defendants Named in the Original Complaint (#62) Citigroup Inc., Credit Suisse First Boston LLC (fik/a Credit Suisse First Boston Corp.), JPMorgan Chase & Co., Lehman Brothers Holdings Inc., and Merrill Lynch (collectively, “Originally Named Bank Defendants”) object to Plaintiffs’ request for a court finding that the statute of limitations on all new proposed claims has been tolled. They maintain that the issue is improperly raised in a motion for leave to amend and that they will address the issue in responsive pleadings to the amended complaint, if the Court allows it to be filed. J. Response of Certain Non-Party Financial Institutions (# 61) The Royal Bank of Scotland pic, National Westminster Bank Pic, Barclays PLC, Barclays Bank PLC, Barclays Capital Inc., Deutsche Bank AG, Deutsche Bank Securities Inc., Deutsche Bank Trust Company Americas, Royal Bank of Canada, and Toronto Dominion Bank (collectively, “Non-Party Banks”), which Plaintiffs seek to name as Defendants in the proposed amended complaint, are charged with aiding and abetting common law fraud, negligent misrepresentation, and violations of § 10(b) and 20(a) of the Securities Exchange Act of 1934. These newly proposed Financial Institution Defendants also disagree with Plaintiffs that Plaintiffs have been barred by the July 11, 2003 scheduling order from filing suit against the proposed new defendants and charge that Plaintiffs are in actuality attempting, “albeit in a back handed fashion, ... to revive already time-barred claims by pointing to a non-existent impediment and asking that it be removed.” # 64 at 1. Plaintiffs are also improperly “asking for advance determinations on the tolling of limitations in various circumstances as to claims they propose to file.” Id. at 1-2. They ask the Court to deny the motion in all respects as to the Non-Party Banks. 5. Response of Goldman Sachs & Co. (#65) Plaintiffs’ amended complaint asserts claims for aiding and abetting common law fraud, negligent misrepresentation, and violations of § 10(b) and § 20(a) against another proposed new Defendant, Goldman Sachs & Co. (“Goldman Sachs”). Goldman Sachs joins in the arguments of other proposed Defendants that absent tolling, the statutes of limitations have run on the federal and state claims, but in the interests of efficiency, does not repeat them. # 67 at 11 n. 3. It concurs with Defendants that nothing in the July 11, 2003 order prevented Plaintiffs from seeking leave to amend or filing a new lawsuit against Goldman Sachs and the other new Defendants. Plaintiffs also cannot argue that the July 11, 2003 order extended the statutes of limitations. Plaintiffs’ effort to invoke the American Pipe tolling doctrine fails, as explained by the other proposed Defendants. Even if the doctrine did apply to these Plaintiffs, it would not apply to claims against Goldman Sachs because Goldman Sachs was not named as a Defendant in the original Newby complaint nor is it today a Defendant in any Enron class action alleging fraud. The only pending Enron class action claim against Goldman Sachs is solely for a § 11 violation relating to an offering of Exchangeable Notes, which the Ohio Plaintiffs do not claim to have purchased. Goldman Sachs further objects that contrary to the statement in the July 11, 2003 order of this Court that the claims the Court had dismissed were not be reasserted in new pleadings, Plaintiffs’ proposed amended complaint asserts conclusory fraud claims identical to the allegations made by another plaintiff against Goldman Sachs, indeed “obviously ... copied from the rejected Silvercreek pleading, sometimes verbatim,” in Silvercreek Mgm’t, Inc. v. Salomon Smith Barney, et al. (H-02-3185, # 67 (inter alia dismissing common law fraud and negligent misrepresentation claims under New York law against Goldman Sachs) and #74 (stating inter alia that the earlier dismissal of common law claims was with prejudice and -they should not be addressed again)). Goldman Sachs charts the parallel allegations in the proposed amended complaint here and the Silvercreek pleadings. # 65 at 4-6. It argues that the fraud claim here should be dismissed for the same reasons as those claims .in Silvercreek, failure to comply with Fed.R.Civ.P. 9(b), and that the negligent misrepresentation claim under Ohio law, like that under New York law, should be dismissed because Plaintiffs failed to plead a type of “special relationship,” necessary to give rise to a duty on the part of Goldman Sachs to Plaintiffs. Nor have Plaintiffs alleged that Goldman Sachs owes them any duty. Aside from parallel allegations in Silver-creek, noting that the proposed new claims are based on allegedly overly-bullish ratings issued by Goldman Sachs, Goldman Sachs argues that it is now well established that a plaintiff alleging that an analyst issued a false statement of opinion must allege particularized facts showing that the analyst did not believe what he wrote at the time it was written. See, e.g., Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1094-96, 111 S.Ct. 2749, 115 L.Ed.2d 929 (1991); Nolte v. Capital One Fin. Corp., 390 F.3d 311, 315 (4th Cir.2004) (“[Ujnder Virginia Bankshares, the complaint must allege that the opinion expressed was different from the opinion actually held by the speaker.”); Podany v. Robertson Stephens, Inc., 318 F.Supp.2d 146, 153-54 (S.D.N.Y.2004)(“The sine qua non of a securities fraud claim based on false opinion is that defendants deliberately misrepresented a truly held opinion”). Goldman Sachs contends that Plaintiffs have failed to plead a single fact suggesting that the analyst, David Fleischer, who issued the bullish opinions, did not believe what he wrote at the time despite the fact that he has been deposed. Nor have Plaintiffs satisfied the requirements under Dura Pharmaceuticals v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005)(plaintiffs must allege not only that they bought securities in an inflated market but that a corrective disclosure that the rating or report was false caused the stock to decline), for pleading loss causation. Lentell v. Merrill Lynch & Co., 396 F.3d 161, 172-73 (2d Cir.2005), cert. denied, -U.S.-, 126 S.Ct. 421, 163 L.Ed.2d 321 (2005). In the complaint Plaintiffs claim that Enron’s stock steeply declined despite Goldman Sachs’ continued positive ratings. 6. Corrected Response of Bank of America Corporation (“BAC”) and Banc of America Securities LLC (“BAS”) (collectively, “Bank of America”) (#66 and 70) The proposed complaint asserts claims against BAC and BAS under §§ 10(b) and 20(a) of the 1934 Act and common-law fraud, negligent misrepresentation, aiding and abetting fraud, and conspiracy to commit fraud under Ohio state law. The claims under sections 10(b) and 20(a) allege that Bank of America participated in the falsification of Enron’s financial results through its involvement in (1) the Bammel and Rawhide transactions, (2) structuring and funding of LJM2 Co-Investment, L.P. Partnership (“LJM2”), and (3) the Marlin Water Trust II Notes offering (“Marlin Notes Offering”). The Bam-mel transaction closed in December 1997, and the Rawhide, in December 1998. Bank of America argues that § 10(b) and derivative § 20(a) control-person claims arising out of these two transactions are time-barred (and were before the July 30, 2002 effective date of the Sarbanes-Oxley Act) by the three-year statute of repose then governing under Lampf Pleva, Lip-kind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 364, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991)(based on §§ 9(e) and 18(a) of the 1934 Act and § 13 of the 1933 Act, the Supreme Court held that a claim under the federal securities statutes must be brought one year from date of discovery or, at the latest, three years from date of violation). Bank of America also asserts that since LJM2 was funded in December 1999, so Plaintiffs’ proposed amended complaint’s § 10(b) and § 20(a) claims based on it, which may not have expired at the time of Sarbanes-Oxley’s enactment, are time-barred by the extended five-year statute of repose established in Section 804 of the Sarbanes-Oxley Act, 28 U.S.C. § 1658, which expired in December, 2004. It maintains -that any later claims connected to that partnership are also barred by the two-year statute of limitations in Section 804 of the Sarbanes-Oxley Act, because Plaintiffs were on inquiry notice of these claims no later than April 8, 2002 when the Newby Consolidated Amended Complaint, which contained allegations against BAC relating to L JM2, was filed. That two-year statute of limitations would also bar claims relating to the Marlin Notes Offering, which took place in July 2001, urges Bank of America, because Plaintiffs were on inquiry notice no later than October 11, 2002, when virtually identical complaints (asserting claims under §§ 10(b) and 20(a) and common law fraud and negligent misrepresentation claims against BAC and BAS) in connection with the Marlin Notes Offering were filed in two consolidated actions, one in the Southern District of New York, the other in the Southern District of Texas: Abbey Nat’l Treasury Servs., plc v. Credit Suisse First Boston Corp., No. 02-CV-1241 in the Southern District of New York, and H-02-3869 in the Southern District of Texas. Exs. 1 and 2 to Corrected Appendix, # 70. Furthermore, any § 10(b) claims relating to Bank of America’s analyst reports about Enron from 1997 to 2001 are time-barred by the two-year statute of limitations in Sarbanes-Oxley because Plaintiffs were on notice of possible misstatements in those reports at the latest on January 16, 2002, when the original complaint (Appendix Ex. 3, #70) with similar allegations of fraud and negligent misrepresentation was filed against BAS in Silvercreek Management v. Salomon Smith Barney, Inc., No. H-02-3185. Ex. 3, id. Bank of America further contends Plaintiffs’ own pleadings also demonstrate that inquiry notice was given on October 16, 2001 when Enron announced it was taking a non-recurring charge of over $1 billion in the third quarter of 2001, with a resulting sharp decline in the price of Enron stock. The original Newby complaint was filed six days later. On October 31, 2001 the SEC commenced an investigation of Em-on. In November 2001, Enron announced it was restating its financial results for the period from 1997 through 2000. Then, on December 2, 2001, Enron filed for bankruptcy. If these events did not trigger the running of the statute of limitations, Bank of America insists that the filing of the Sil-vercreek complaint (Ex. 3 to Corrected Appendix, # 70) on January 16, 2002 certainly did. Plaintiffs did not file their motion for leave to amend until September 15, 2005. Bank of America also argues that the Ohio state-law claims, which all arise from the sale of Enron securities, are time-barred by the two-year statute of limitations and/or four-year statute of repose for securities fraud claims contained in the Ohio Securities Act, with the same means and dates indicated above giving Plaintiffs the requisite inquiry notice. Plaintiffs also had notice of the facts underlying the claims relating to Bammel no later than March 28, 2003 when the proposed amended complaint in Silvercreek was filed with claims against BAS similar to those made by the Ohio Plaintiffs. Claims arising out of the Rawhide transaction were asserted in the proposed amended complaint in Sil-vercreek and in the First Amended Consolidated Complaint in Newby, which was filed on May 14, 2003, more than two years before Plaintiffs filed their motion for leave to amend. Finally, insists Bank of America, all of Plaintiffs’ state-law claims were barred by the Ohio Securities Act’s four-year statute of repose to the extent that they relate to purchases of Enron securities that were made more than four years before Plaintiffs filed their motion for leave to amend. Thus according to the Bank of America, the state-law claims based on LJM2, the Marlin Notes Offering, and Bank of America’s analyst reports, as well as the December 1997 Bammel transaction, are time-barred because Plaintiffs had inquiry notice of them more than two years before they filed their motion for leave to amend. State-law claims based on the December 1998 Rawhide transactions are also time-barred because the March 29, 2003 Silver-creek Proposed Amended Complaint referenced the transaction, while the May 2003 Newby complaint alleged it was a disguised loan. Furthermore the Enron North America Corp. Bankruptcy Examiner concluded that the evidence was “insufficient to support a conclusion that BofA acted improperly respecting Rawhide.” The Goldin Report, Appendix VII, p. 87. Bank of America further contends that all the state-law claims based on purchases of Enron securities before September 15, 2001 are barred by the four-year statute of repose in the Ohio Securities Act. While pointing out that Ohio has adopted American Pipe tolling, Bank of America maintains that American Pipe tolling is inapplicable (1) to claims against BAS because BAS was not named as a defendant in the April 2002 Newby Consolidated Complaint; (2) to claims based on Bammel and Rawhide because the April 2002 Newby complaint against BAC did not reference those transactions nor provide any notice of claims arising from them, contrary to Plaintiffs’ assertion, and because the Bammel transaction fell outside the putative class period of October 19, 1998 to November 27, 2001; and (3) to Plaintiffs’ state-law claims because the April 2002 Newby complaint did not and could not have asserted state-law claims because of SLUSA preemption. Plaintiffs’ proposed claims against BAC and BAS are based on different legal theories and different facts than those asserted against BAC in the April 2002 Newby complaint. Even if tolling were applicable, it would not save the claims regarding LJM2, the Marlin Notes Offering, and Bank of America’s analyst reports because the claims would still be too late: Plaintiff would only be entitled to tolling during the approximately eight and a half months that the § 10(b) claim against BAC in the April 2002 Newby complaint was pending and these claims would still have been untimely asserted. Bank of America joins the other proposed Defendants in insisting that the Court’s July 11, 2003 scheduling order did not toll the applicable statutes of limitations; the order did not refer to tolling the statutes. Bank of America insists that statutes of repose are not subject to equitable tolling. Nor did the order prevent Plaintiffs from filing a timely new suit against BAC and BAS or from seeking permission to amend their complaint. A number of parties have filed new actions since it was issued and a number have moved for leave to amend. Plaintiffs fail to cite any classes in which a scheduling order was found to toll limitations. Moreover if they can move for leave to amend in 2005, they could have done so earlier. Nor do the proposed claims “relate back” to claims in the original complaint because Plaintiffs do not argue that their failure to name BAC and BAS as Defendants in that original complaint was the product of a mistake. Bank of America also contends that Plaintiffs’ claims are futile because in New-by on December 20, 2002, the Court dismissed the § 10(b) fraud claim against BAC, based in part of the purported investment of BAC or its executives in LJM2. # 1194. It also dismissed the common-law fraud claim for pleading insufficiency on December 11, 2003 in Silver-creek, # 67 in H-02-3185, which charged BAS with structuring and investing in LJM2 and participating in the Bammel transaction. The July 11, 2003 scheduling order made clear that in new pleadings the parties should not reiterate allegations and claims that the Court had previously rejected. Finally, allowing amendment late in the litigation after the close of fact discovery on November 30, 2005 would severely prejudice Bank of America, which would be sued for the first time. Furthermore the allegations that have been proposed lack the specificity required by the PSLRA and by Rule 9(b) for fraud. In sum, argues Bank of America, the Court should deny Plaintiffs’ motion because all of the proposed claims against BAC and BAS are time-barred and/or have been dismissed by this Court. 7. Norir-Parties Ian Schottlaender and Mark Wolfs Response (# Ex. 9 to #72) Former employees of Canadian Imperial Bank of Commerce (“CIBC”), Schottlaen-der and Wolf, who allegedly directed CIBC in “actively participating] in the structuring or financing of certain entities that were used to manipulate Enron’s financial results” and in “at least 11 FAS 140 Transactions during June 1998 through October 2001,” are charged with negligent misrepresentation, aiding and abetting common law fraud, common law fraud and deceit, and violations of the Securities Exchange Act. They oppose the motion for leave to amend and add them as Defendants on the grounds that Plaintiffs have been on notice of their claims against Schottlaender and Wolf for over two years but have inexcusably delayed filing suit against them. Allowing Plaintiffs to do so now would cause enormous and irrevocable harm to them, urge Schottlaender and Wolf, because they have not participated in the massive discovery up to this point. Truehart v. Blandon, 684 F.Supp. 1368, 1372 (E.D.La.1988)(denying plaintiffs’ “eleventh hour” request for leave to amend as prejudicial because amendment came fifteen months after the initial complaint was filed and would require re-opening discovery); Mayeaux v. Louisiana Health Serv. & Indem. Co., 376 F.3d 420, 427 (5th Cir.2004) (affirming denial of motion for leave to amend when case was “nearing the close of extensive discovery.”). Moreover the amendment would be futile because the claims against them are time-barred. Schottlaender and Wolf argue that Plaintiffs have conceded that they became aware of the key facts giving rise to the claims against them no later than June 2003, when Neil Batson’s Third Interim Examiner’s Report, which references both men and details their involvement with Enron-related securities while employed at CIBC, was publicized. Amended Complaint at 1; Ex. 5 to # 74. Schottlaender and Wolf charge that Plaintiffs then sat on the facts for more than two years before filing their motion for leave to amend. Furthermore, they urge, the Amended Complaint fails to present any significant, material facts about Schottlaender or Wolf that were learned since Baton’s Report was issued. Plaintiffs have also had the benefit of all the discovery in Newby. In addition, in a civil suit filed by the SEC in December 2003 naming them as Defendants along with other CIBC employees in connection with the Enron/CIBC transactions, Wolf settled with the SEC on December 22, 2003 and Schottlaender, on June 25, 2004. The SEC announced those settlements publicly, again providing notice to Plaintiffs here. Moreover both men responded to third-party subpoenas for depositions in Newby, and Wolf gave testimony on July 14-16, 2004; Plaintiffs had the opportunity to participate and to review the deposition transcripts. The lack of diligence in pursuing their claims should foreclose Plaintiffs from obtaining leave to amend. Rosenzweig v. Azurix Corp., 332 F.3d 854, 865 (5th Cir.2003)(where plaintiffs concede that new complaint did not raise any facts not previously available, the district court was within its discretion to deny leave to amend); In re Southmark Corp., 88 F.3d 311, 315-16 (5th Cir.1996)(affirming denial of leave to amend made twenty-four months after the filing of an Examiner’s Report, which detailed facts and theories incorporated in proposed Amended Complaint). Plaintiffs neglected all these sources for more than two years. Plaintiffs’ excuse that they relied on the scheduling order, of which Schottlaender and Wolf had no notice, and in which they had no input, “cannot possibly be construed to negate the right of Messrs. Schottlaender and Wolf to be named promptly in an ongoing litigation, since they were not parties to that Order.” Ex. 9 at 8 to # 72. Furthermore, even though the parties to the order understood it precluded amended pleadings, it did not, on its face, preclude filing claims against new Defendants, as was done in several of the consolidated/coordinated cases. As for futility because the statute of limitations has expired on the federal and common-law claims that Plaintiffs seek to assert against Wolf and Schottlaender, the two join in the brief filed by Daniel Ferguson, discussed next by the Court. They insist the scheduling order did not toll limitations. Even if it did, it could not apply to non-parties that were not existing parties to the litigation. 8. Daniel Ferguson’s Corrected Opposition (Ex. 10 to # 72) Daniel Ferguson is a Canadian citizen and resident who never worked in the United States and objects to the attempt by Plaintiffs, through their motion, to drag him into a four-year-old litigation in Texas on the eve of the discovery cutoff when the scheduling order did not toll limitations and did not bar new actions from being filed against new parties, and because limitations on their claims have expired, making amendment futile. Specifically he argues that the claims under the Securities Exchange Act are subject to a one-year statute of limitation and are time barred because Plaintiffs had constructive notice as early as April 2002, when Plaintiffs were put on inquiry notice because CIBC was named in the Newby complaint at that time. Plaintiffs were given actual notice as early as the summer of 2003 when the Third Interim Report of Neal Batson was filed and addressed the role of CIBC and affiliates in the Enron special purpose entity transactions. Plaintiffs again, received actual notice on December 22, 2003 when the SEC settlement with Ferguson was publicly disclosed. Ferguson also contends that the Court lacks subject matter jurisdiction over the Ohio common-law claims since there is no viable federal claim. He also argues that this Court lacks personal jurisdiction, both general and specific, over him, another basis for finding the amendment futile. Ferguson maintains that Plaintiffs have failed to allege any contacts by him with the United States. Moreover, Ferguson insists that to exercise jurisdiction over him would be unreasonable because, as a foreign national the burden would be on him to defend in this country in a complex litigation without opportunity to participate in discovery, the forum state’s interests are satisfied by the claims against CIBC and others, any relief that Plaintiffs can obtain would not depend on the addition of Ferguson to this litigation, the judicial system’s interests are satisfied, and Ferguson’s settlement with the SEC on Enron-related involvement satisfies the shared policy interests of the states. Ferguson contends that Plaintiffs had constructive knowledge of the claims against him as early as April 2002, when a CIBC affiliate was first named in the New-by complaint, triggering an obligation to investigate the nature of CIBC’s and its employees’ involvement, and actual notice as early as the summer of 2003, when Neal Batson’s Third Interim Report (Ex. D to # 72), with approximately eighty pages devoted to the role of CIBC and Ferguson mentioned dozens of times, was filed. Plaintiffs’ proposed amended complaint states that Plaintiffs included the 2003 Batson Report in their investigation before drafting their pleadings. Furthermore, Ferguson charges, Plaintiffs received additional actual notice of their claims against him on December 22, 2003 when the SEC settlement with him was publicly disclosed in a press release, and various articles were published discussing it. Ferguson argues that Section 804 of Sarbanes-Oxley with its extended statute of limitations does not apply to this case because this proceeding began before the statute was enacted, according to Ferguson with the commencement of the Newby action in 2001, which named CIBC as a party, since Plaintiffs concede that they were originally members of the Newby action. Thus the proposed federal claims are time-barred. Without a federal claim, there would be no federal jurisdiction over the proposed state-law claims and thus allowing amendment to assert them would be futile. Moreover even if there were federal jurisdiction over these proposed state law claims against Ferguson, they are barred by the two-year constructive notice limitations in Ohio Rev.Code § 1707.43, which applies because the claims arise out of the sale of securities. Nor do the claims relate back to the filing of the original complaint in this action because Ferguson was not -named as a Defendant in that pleading and Plaintiffs have not claimed mistake as to his identity when they filed the initial complaint Nor are Plaintiffs entitled to tolling under American Pipe because Ferguson was not named as a Defendant in Neioby and because Plaintiffs filed their motion for leave to amend before a ruling on class certification in Neioby. Moreover, the doctrine does not apply to the new proposed state-law claims because they were not asserted and could not have been asserted in Newby because of SLUSA preemption. Ferguson declares that amendment would be unduly prejudicial to him without opportunity to participate in fact discovery in this massive and complex litigation. He states that he retired from CIBC in 2003, settled the SEC’s charges without admitting liability that same year, and thus had every reason to believe he would no longer be forced to defend Enron-related claims. 9. Plaintiffs’ Omnibus Reply (# 79) Plaintiffs’ omnibus reply does not respond to Schottlaender and Wolf. The Court summarizes arguments not made previously in Plaintiffs’ motion. Plaintiffs insist that American Pipe tolling is to be applied broadly. Crown, 462 U.S. at 353-54, 103 S.Ct. 2392 (tolling rule “is a generous one ... preserving] for class members a range of options pending a decision on class certification.”). Moreover, applying it here would serve the policy of judicial efficiency underlying the doctrine. . They further argue that recent cases have held that tolling is applicable if the claims in the individual action are factually similar to those in the class action; they need not be identical. See, e.g., In re Linerboard Antitrust Litig., 223 F.R.D. 335, 351 (E.D.Pa.2004). Plaintiffs maintain that the state-law cláims to be asserted by Cincinnati and OTTA are premised on nearly identical allegations as the § 10(b) claims in Newby. Plaintiffs’ state-law claims require the same evidence, memories and witnesses as the claims in Newby. The facts and legal theories of their federal law claims are also virtually identical to those asserted in Newby. In addition, insist Plaintiffs, SLUSA does not prevent tolling of Cincinnati and OTTA’s state-law claims because the factual predicate underlying these claims is substantially the same as that for the class action claims. Newby put the newly proposed Defendants on notice of the substantially similar claims that Plaintiffs now seek to assert against them. Objecting to Bank of America’s argument that tolling does not apply to Plaintiffs’ claims against BAS because BAS was not a named defendant in the April 2002 Newby complaint, Plaintiffs point out that this Court previously ruled that Bank of America could not challenge the single-entity approach naming BOA rather than BAS at the motion-to-dismiss stage. In re Enron Corp. Sec., Derivative & ERISA Litig., 235 F.Supp.2d 549, 564 n. 5 (S.D.Tex.2002), or # 1999 at 4 n. 5 in Newby. Because the Rule 12(b)(6) standard applies to the motion for leave to amend, the issue cannot be resolved on this motion. Stripling v. Jordan Production Co., EEC, 234 F.3d 863, 872-73 (5th Cir.2000) (and cases cited therein)(“While this court has not specifically defined ‘futility’ in [the context of a motion to amend], we join our sister circuits that have interpreted it to mean that the amended complaint would fail to state a claim upon which relief could be granted.... As these courts have done, to determine futility, we will apply the same standard of legal sufficiency as applies under Rule 12(b)(6).... ‘The question therefore is whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief.’ ... The court may not dismiss a complaint under [R]ule 12(b)(6) ‘unless it appear beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ”). Defendants contend that Plaintiffs’ claims are futile because either they are time-barred or they fail to state claims cognizable under applicable state law; Plaintiffs insist Defendants have not met their “substantial burden” of showing the futility of the proposed claims. See, e.g., Holoway v. Triola, No. 97-2216, 1997 WL 791472, *2 (E.D.La. Dec.22, 1997)(“Courts have held that there is a substantial burden on the objecting party to show the futility of a proposed amendment, a burden not met by defendants in this case.”). Moreover, Plaintiffs contend that having to reopen discovery does not constitute undue prejudice to Defendants. Compression Labs, Inc. v. Oklahoma State Univ. Educ. & Research Found., Inc., No. 93-20622 RPA, 1995 WL 241438, *3 (N.D.Cal. Apr.19, 1995)(“The prospect of additional discovery, even if it involves deposing previously questioned witnesses across the country, does not constitute undue prejudice to the Defendant. Such additional work does not constitute grounds for denying leave to amend.”). Insisting that claims may be dismissed as time-barred only if Defendants conclusively demonstrate that on the face of the complaint alone the statute of limitations has expired, Plaintiffs argue that Defendants’ varying and at times contradictory arguments that Plaintiffs had inquiry notice of their claims, but failed to act timely, are fact-intensive issues inappropriate for resolution on a motion for leave to amend. Aetna Life Ins. Co. v. Kaufman Indep. School Dist., No. Civ. A. 3:99-CV-1085-G, 1999 WL 1134971, *2 (N.D.Tex. Dec. 8, 1999)(“The question of futility ... depends on disputed factual matters that cannot be resolved on this motion [to amend].”). Plaintiffs also point out that they filed their original complaint on September 4, 2002, after the effective date of the Sar-banes-Oxley Act (July 30, -2002), and therefore its extended two-year/five-year statute of limitations applies to Plaintiffs’ federal securities act claims against Bank of America. Bank of America also argued that claims relating to the Bammel and Rawhide transactions are time-barred. Plaintiffs respond that the proposed amended complaint does not limit its allegations against Bank of America to these two transactions, but asserts that Bank of America engaged in fraudulent activity through 1999, 2000, and 2001. Proposed Am. Complaint at ¶¶ 335, 353, 381, 392, 397-98, 468. Challenging Goldman Sachs’ argument that amendment would be futile because Plaintiffs fail to plead loss causation adequately, Plaintiffs assert that state-law claims do not require the pleading or proof of loss causation. As for the federal law claims, a corrective disclosure is not the only way to plead loss causation; the truth can “leak out” into the market and investors can lose money over time. Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005); Stumpf v. Garvey, MDL 02-1335, Civ. 03-CV-1352, 2005 WL 2127674,“ *12 (D.N.H. Sept.2, 2005). Their proposed complaint asserts that Plaintiffs purchased Enron securities at artificially high prices, inflated in part due to Goldman Sachs’ role in the fraudulent scheme at Enron, and that the news of Enron’s fraud leaked out slowly, causing a sharp decline in the price of Enron securities. Proposed Amended Complaint at ¶¶ 147, 149, 154, 157-58, 471-73, 512. Moreover, Plaintiffs’ common-law claims for conspiracy to commit fraud do not require pleading any misstatements, but only the following elements: “(1) a malicious combination; (2) two or more persons; (3) injury to person or property; and (4) existence of an unlawful act independent from the actual conspiracy.” Terry v. Carney, No. OT-94-054, 1995 WL 763971, *1 (Ohio App. Dec. 29, 1995). Plaintiffs further contend that the amended complaint addresses not just statements, but actions performed by Goldman Sachs as part of the fraudulent scheme. Plaintiffs also disagree about the discovery rule and the statute of limitations in Ohio Rev.Co'de § 2305.09 for Ohio common-law negligent misrepresentation and cite Clemente v. Gardner, No. 02-CA-00120, 2004 WL 953700, *2-3 (Ohio App. Apr. 26, 2004) to argue that the statute, which establishes a four-year statute of limitations for fraud or negligent misrepresentation, does not begin to run until the victim has discovered or should have discovered the fraud. Id. (relying on “[t]he Ohio Supreme Court interpreting R.C. 2305.09 ... that the four-year limitation period does not commence to run on claims presented in fraud until after the victim of fraud has discovered, or should have discovered the fraud-”). See also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Jaros, 70 F.3d 418, 422 (6th Cir.1995) (“Ja-ros also asserted state common law claims including: fraud, breach of fiduciary duty, and negligent misrepresentation.... Pursuant to Ohio Rev.Code § 2305.09, a four-year statute of limitations governs these Ohio common law claims. The time period begins to run when there was a reasonable opportunity to discover the actions complained of.”). Plaintiffs argue that in the absence of a decision from the Ohio Supreme Court and conflict among the intermediate appellate courts of the state, Jams should control. See, e.g., Chevron USA, Inc. v. Vermilion Parish School Board, 377 F.3d 459, 462 (5th Cir.2004) (“although we may be guided by decisions rendered by the Louisiana appellate courts, we are not strictly bound by them, particularly when the jurisprudence has not developed to the status of jurisprudence constante (a series of decisions in accord on a given issue)”); Dawn Equip. Co. v. Micro-Trak Sys., Inc., 186 F.3d 981, 989 n. 3 (7th Cir.1999) (“we normally defer to a sister circuit’s interpretation of the law of a state within its jurisdiction”); Kaiser Alum. & Chem. Sales, Inc. v. PPG Indus., Inc., No. 91-367C, 1992 WL 695317, *3 (S.D.Ind. Dec.4, 1992)(“Federal courts generally defer to state law determinations made by the United States Court of Appeals for the circuit in which the particular state is located.”). In response to Outside Directors’ contention that Plaintiffs cannot plead and establish the elements for negligent misrepresentation under Ohio law and to Goldman Sachs’ objection that Plaintiffs have not alleged the requisite duty to disclose nor shown a special relationship for a negligent misrepresentation claim (required under New York law), Plaintiffs point out that (1) under Ohio law a duty is imposed in favor of third parties who a defendant in a business role knows will rely on the information in question, DeCapua v. Lambacher, 105 Ohio App.3d 203, 663 N.E.2d 972, 974 (1995)(Ohio imposes liability on professionals who “negligently suppl[y] information for the guidance of others in their business transaction, where the recipient of the information, a foreseeable person, justifiably relies upon it”); (2) where a party chooses to speak, he has a duty to use reasonable care to disclose all facts known to it that may induce reliance or forbearance on the part of another, General Acquisition, Inc. v. Gencorp, Inc., 766 F.Supp. 1460, 1481 (S.D.Ohio 1990); and (3) Ohio courts have not restricted negligent misrepresentation claims to cases in which a fiduciary or other special relationship exists, but instead recognize such a claim in a wide variety of business contexts, i.e., Bowling Transp. Inc. v. Gregg, 103 Ohio App.3d 539, 660 N.E.2d 497, 500 (1995) (applies to conduct of auction in conducing an auction), and Sindel v. Toledo Edison Co., 87 Ohio App.3d 525, 622 N.E.2d 706, 710 (1993)(applies to purchaser’s claim against electric company). Plaintiffs have stated a claim under Ohio law because they have alleged that they relied on these Defendants’ financial statements, press releases, analyst reports, etc. A. Applicable Law The Court had determined that the following law applies. 1. Amendment of Complaint Federal Rule of Civil Procedure 15(a) provides in relevant part, A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A court has discretion in deciding whether to grant leave to amend. Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Since the language of the rule "“ ‘evinces a bias in favor of granting leave to amend,” the court must find a “substantial reason” to deny such a request. Ambulatory Infusion Therapy Specialists, Inc. v. Aetna Life Ins. Co., Civ. A. No. H-05-4389, 2006 WL 2521411, *3 (S.C.Tex. Aug. 29, 2006), quoting Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir.2004), and Mayeaux v. La. Health Serv. & Indem. Co., 376 F.3d 420, 425 (5th Cir.2004). Factors for the court to consider in determining whether a substantial reason to deny a motion for leave to amend include “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility of amendment.” Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir.1993). While Rule 15(a) does not establish a time limit for filing a motion for leave to amend, “ ‘at some point, time delay on the part of a plaintiff can be procedurally fatal.’” Smith v. EMC Corp., 393 F.3d at 595, quoting Whitaker v. City of Houston, 963 F.2d 831, 836 (5th Cir.1992), in turn quoting Gregory v. Mitchell, 634 F.2d 199, 203 (5th Cir.1981). If there is substantial delay, the plaintiff bears the burden of demonstrating that it was due to oversight, inadvertence or excusable neglect, Id., citing Gregory, 634 F.2d at 203. Where the proposed new claims are time-barred, allowing amendment is futile. Williams v. Simmons, 185 F.Supp.2d 665, 674 (N.D.Tex.2001); Columbraria Ltd. v. Pimienta, 110 F.Supp.2d 542, 549 (S.D.Tex.2000). 2. Inquiry Notice and the Statute of Limitations in Federal Securities Acts Until the effective date, July 30, 2002, of the Sarbanes-Oxley Act (“Sar-banes-Oxley”), 28 U.S.C. § 1658(b), a claim grounded in the federal securities acts had to be filed “within one year after the discovery of the facts constituting the violation and within three years after such violation.” Lampf, 501 U.S. at 364, 111 S.Ct. 2773. Section 804 of Sarbanes-Oxley extended the length of limitations for “a private right of action that involves a claim of fraud, deceit, manipulation or contrivance in contravention of a regulatory requirement concerning the securities laws,” such as claims under § 10(b) and Rule 10b-5, to the shorter of “(1) 2 years after the discovery of the facts constituting the violation; or (2) 5 years after such violation.” Pub.L. No. 107-204, 116 Stat. 745, 801 (2002). Sarbanes-Oxley’s statute of limitations/repose, however, applies only “to all proceedings addressed by this section that are commenced on or after the date of enactment of this Act,” i.e., July 30, 2002. 28 U.S