Full opinion text
MEMORANDUM OPINION AND ORDER ROBERT M. DOW, JR., District Judge. On November 1, 2005, ABN AMRO, Inc. (“ABN”) filed a first amended complaint against Deutsche Bank Aktiengesellschaft (“Deutsche Bank”), Eirles Four Limited (“Eirles”), Capital International Limited (“Capital”), Sarco Holdings (“Sarco”), and Dhananjay Hajela (“Hajela”), alleging securities fraud and other state and federal claims in connection with a chain of back-to-back sales of secured notes issued by Eirles (“Series 42 Notes”). ABN claims that Defendants’ collective omission of material information about the Series 42 Notes — specifically, that there was an absolute restriction on their sale within the United States or to a U.S. person- — led to ABN’s purchase of the Notes, and that ABN suffered $44 million in damages because of this omission. The ten-count Complaint alleges violations of federal and state securities laws (Counts I, II, III, and IV), common law fraud (Count V), violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (Count VI), unjust enrichment (Count VII), negligent misrepresentation (Counts VIII and IX), and “alter ego liability” (Count X). Eirles, as well as Sarco and Hajela (“Sarco/Hajela”), have filed motions to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2) [127, 166]. Eirles and Deutsche Bank (“Eirles/Deutsche Bank”) and Sarco/Haje-la also have filed motions to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) [124, 163]. Capital has filed an answer [123] to the first amended complaint and is not subject to this opinion. For the reasons discussed below, the Court finds that it has personal jurisdiction over all of the nonresident Defendants. The Court also finds that Plaintiff has adequately stated a claim on all counts of its first amended complaint. Therefore, the Court respectfully denies Defendants’ motions to dismiss. I. Factual Background This case arose out of the alleged botched sale of the Series 42 Notes, worth an estimated $105 million. FAC ¶¶ 1, 5. The Notes were to be issued by Eirles and its issuing agent, Deutsche Bank, and Plaintiff alleges that Sarco acted as Deutsche Bank and Eirles’ sales agent to arrange purchasers for the Notes. Id. ¶ 1. According to the original plan for the issuance, Eirles and Deutsche Bank were to issue the Notes to Capital, a broker-dealer in the Isle of Man, which was to distribute the Notes to ABN. Id. ¶ 5. ABN then planned to sell the Notes to its customer, Hopewell Capital Group, Inc. (“Hopewell”), a U.S. broker-dealer, which planned to sell them to Sterling Capital Management (“Sterling”), another U.S. broker-dealer, and other end purchasers. Id. Initially, ABN planned to act only as a clearing agent in the transaction. Id. ¶ 3. At Capital’s insistence, however, ABN agreed to act as a principal for Hopewell, guaranteeing Hopewell’s purchase of the Series 42 Notes, because neither Capital nor Hopewell could afford to finance the transaction. Id. All parties to the transaction allegedly agreed that ABN would act as a “riskless principal,” which meant it would serve only as a “pass through” for the Notes between Capital and Hopewell. Id. ABN expected its role to be minimal — allegedly little more than that of a clearing broker. Id. ABN’s only interest in the transaction was the payment of a regular clearing fee. Id. ABN entered into a Principal Letter Agreement with Capital, which ABN alleges confirmed that the Series 42 Notes were exempted securities, and ABN also received copies of term sheets drafted by Deutsche Bank. Id. ¶ 4. ABN alleges that none of the documentation ABN received regarding the Notes mentioned any restrictions on the sale of the Notes. Id. The Series 42 Notes were issued on July 15, 2003, and on that same day were distributed from Eirles to Deutsche Bank, through Capital, to ABN in a series of virtually simultaneous transactions. Id. ¶ 5. However, the remaining parties in the chain of distribution reneged on the deal, and ABN was left holding the Notes, for which it had paid $97.9 million. Id. Weeks after the deal fell through, while ABN was working with Hopewell and others to arrange for another buyer of the Notes, ABN received for the first time a copy of a Series 42 Supplemental Programme Memorandum, which governed the Series 42 Notes. Id. ¶ 6. ABN alleges that the original Programme Memorandum contemplated sales of the Notes in the United States. Id. ¶ 9. The Supplemental Memorandum, however, allegedly revealed to ABN for the first time that the Series 42 Notes were restricted from being “offered, sold, resold, delivered or transferred within the United States or to, or for the account or benefit of, U.S. persons.” Id. ¶ 6. ABN alleges that it would not have participated in the transaction if it had been aware of this “absolute restriction.” Id. ¶ 7. After much difficulty, ABN ultimately sold the Notes for forty-seven cents on the dollar, resulting in a loss exceeding $44 million. Id. ABN commenced this action against Eirles and Capital for alleged violations of Sections 5 and 12 of the Securities Act of 1933 (“Securities Act”), 15 U.S.C. §§ 77e(a), 77e(c), and 771(a)(1), among other claims. Id. ¶ 8. ABN also filed suit in state court against Hopewell, Sterling, and their principals. Id. During jurisdictional discovery in the federal case, ABN alleges that it discovered a larger fraudulent scheme by Eirles, Deutsche Bank, Capital, Sarco, and Sarco’s sole shareholder, officer, and director, Dan Hajela. Id. In its first amended complaint, ABN alleges that, from the inception of the transaction to its completion, Eirles and Deutsche Bank, and their agents Capital and Sarco, engaged in a fraudulent scheme to distribute the Series 42 Notes into the United States without disclosing the relevant absolute prohibition on such distribution. Id. ¶ 12 II. Discussion of Rule 12(b)(2) Motions to Dismiss for Lack of Personal Jurisdiction A. Legal Standards In a motion to dismiss claims under Rule 12(b)(2), “[t]he plaintiff bears the burden of demonstrating personal jurisdiction.” Central States, S.E. & S.W. Areas Pension Fund v. Reimer Express World Corp., 230 F.3d 934, 939 (7th Cir.2000) (citing RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1276 (7th Cir.1997)). The Court draws all reasonable inferences consistent with the complaint in the plaintiffs favor. See Quantum Color Graphics, LLC v. Fan Ass’n Event Photo GmbH, 185 F.Supp.2d 897, 904 (N.D.Ill.2002) (citing Sapperstein v. Hager, 188 F.3d 852, 855 (7th Cir.1999)). When the Court rules on a defendant’s motion to dismiss for lack of personal jurisdiction based on the submission of written materials, “the plaintiff need only make out a prima facie case of personal jurisdiction,” Purdue Research Foundation v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir.2003) (collecting cases; internal quotations omitted), but the Court may consider affidavits submitted by the parties, see, e.g., RAR, Inc., 107 F.3d at 1275; Zurich Capital Mkts. v. Coglianese, 388 F.Supp.2d 847, 855 (N.D.Ill.2004). In fact, if the defendant submits affidavits or other evidence in opposition, “the plaintiff must go beyond the pleadings and submit affirmative evidence supporting the exercise of jurisdiction.” Purdue Research, 338 F.3d at 783. The Seventh Circuit instructs that “[i]n evaluating whether the prima facie standard has been satisfied, the plaintiff ‘is entitled to the resolution in its favor of all disputes concerning.relevant facts presented in the record.’ ” Id. at 782 (quoting Nelson v. Park Indus., Inc., 717 F.2d 1120, 1123 (7th Cir.1983)). “Any conflicts in the pleadings and affidavits are to be resolved in the plaintiffs’ favor, but the court accepts as true any facts contained in the defendants’ affidavits that remain unrefuted by the plaintiffs.” Interlease Aviation Investors II (Aloha) L.L.C. v. Vanguard Airlines, Inc., 262 F.Supp.2d 898, 904 n. 3 & 905 (N.D.Ill.2003) (collecting cases); accord, e.g., RAR, Inc., 107 F.3d at 1276. B. Prima Facie Showing of Personal Jurisdiction 1. General principles of personal jurisdiction This case involves both federal and state claims. The Seventh Circuit has held that in federal question cases, a plaintiff must establish two things to demonstrate personal jurisdiction over a defendant. In cases involving statutes that provide for nationwide service of process, the plaintiff must demonstrate that (i) haling the defendant into court accords with the Due Process Clause of the Fifth Amendment, and (ii) the defendant is amenable to service of process from the court. See, e.g., United States v. De Ortiz, 910 F.2d 376, 381-82 (7th Cir.1990) (citation omitted); see also Perry v. Delaney, 5 F.Supp.2d 617, 619 (C.D.Ill.1998); Lifeway Foods, Inc. v. Fresh Made, Inc., 940 F.Supp. 1316, 1318 (N.D.Ill.1996). The federal securities acts at issue here provide for nationwide service of process, 15 U.S.C. §§ 77v, 78aa, and Defendants do not appear to be specifically challenging service on those claims. To be clear, however, when a federal statute that creates a cause of action prescribes its own rules for service of process, “the Federal Rules provide that service made according to the statute is effective to establish personal jurisdiction over the defendant, regardless of whether a court of the state encompassing the federal district could exercise personal jurisdiction over the defendant.” Waeltz v. Delta Pilots Ret. Plan, 301 F.3d 804, 807 n. 3 (7th Cir.2002) (citing Fed.R.Civ.P. 4(k)(l)(D) and collecting cases). In such a case, the personal jurisdiction analysis turns on whether the defendant has certain minimum contacts with the United States as a whole, such that this Court’s exercise of personal jurisdiction over the defendant would not violate the Due Process Clause of the Fifth Amendment. Id. (collecting cases); see also Central States, S.E. and S.W. Areas Pension Fund, 230 F.3d at 946 n. 10. With respect to ABN’s state law claims, this Court has personal jurisdiction if an Illinois court would have jurisdiction. See Purdue Research, 338 F.3d at 779. There are three inquiries concerning personal jurisdiction that generally must be considered: (i) state statutory law, (ii) state constitutional law, and (iii) federal constitutional law. See RAR, Inc., 107 F.3d at 1276. In Illinois, however, the personal jurisdiction statute has extended its jurisdiction to the limits permitted by the due process guarantees of the federal and state constitutions, 735 ILCS 5/2-209(c), and therefore the Illinois statutory and constitutional inquiries essentially collapse into the Illinois constitutional inquiry. That means the Court need only consider whether an assertion of personal jurisdiction over Defendants would comport with state and federal constitutional standards. See RAR, Inc., 107 F.3d at 1276 (under Illinois law, the personal jurisdiction analysis applicable for federal district court sitting in diversity “collapsefs] into two constitutional inquiries — one state and one federal”). The Illinois Supreme Court has stated that the federal and Illinois Due Process Clauses are distinct, see Rollins v. Ellwood, 141 Ill.2d 244, 152 Ill.Dec. 384, 565 N.E.2d 1302, 1316 (1990), but as the Seventh Circuit has noted, Illinois courts have provided little concrete guidance, if any, about what differences exist between the state and federal due process standards. See RAR, 107 F.3d at 1277 (“We are unaware of — and the parties have not cited — any Illinois case decided on state constitutional grounds that deals with this question.”). Because federal courts are naturally “hesitant to venture unguided into Illinois state constitutional law,” id., precedent has foregone the opportunity to speculate about how Illinois law might address such questions. Id. Therefore, to the extent that the Court analyzes whether it could assert personal jurisdiction over Defendants, the analysis will proceed in relation to the federal Due Process Clause. See id. Personal jurisdiction can be found in either of two forms, general or specific. Plaintiff does not assert general jurisdiction over any Defendants, nor is it likely that it could have done so. General jurisdiction over a defendant allows a defendant to be sued in the putative forum regardless of the subject matter of the litigation, see Purdue Research, 338 F.3d at 787, and the constitutional requirement for general jurisdiction is “considerably more stringent” than that required for specific jurisdiction. Id. A finding of general jurisdiction must be based on defendant’s “continuous and systematic general business contacts” with the forum state. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). These contacts must be “so extensive as to be tantamount to [defendant] being constructively present in the state.” Purdue Research, 338 F.3d at 787. Because Plaintiff does not assert general jurisdiction over Defendants, the Court does not reach the issue and instead focuses its analysis on whether there is specific jurisdiction. A court sitting in Illinois has specific personal jurisdiction over a nonresident defendant consistent with due process if two conditions are satisfied: the defendant must have (i) minimum contacts with the state such that (ii) exercising personal jurisdiction does not offend traditional notions of fair play and substantial justice. Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 109, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (internal quotation marks and citation omitted); see also International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). First, the defendant must have “minimum contacts” with Illinois such that the defendant has purposely availed itself of “the privilege of conducting activities within [Illinois], thus invoking the benefits and protections of its laws.” Asahi, 480 U.S. at 109,107 S.Ct. 1026 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)) (internal quotation marks omitted); see also International Shoe Co., 326 U.S. at 316, 66 S.Ct. 154. The defendant, rather than the plaintiff or a third party, must create the contacts. See, e.g., Purdue Research, 338 F.3d at 780. “This requirement ensures that a defendant’s amenability to jurisdiction is not based on fortuitous contacts, but on contacts that demonstrate a real relationship with the state with respect to the transaction at issue.” Id. Moreover, where a plaintiff asserts that this Court has specific personal jurisdiction over a nonresident defendant, the cause of action asserted by the plaintiff must “arise out of’ or be “related to” the contacts that occurred in Illinois. See, e.g., Hyatt v. Coco, 302 F.3d 707, 713 (7th Cir.2002); see also Burger King, 471 U.S. at 472, 105 S.Ct. 2174. The exercise of jurisdiction in such a case is proper based on a state’s interest in providing its residents with a convenient forum for redressing injuries inflicted by nonresidents. See Burger King, 471 U.S. at 473, 105 S.Ct. 2174. It also reflects a sense that out-of-state individuals who derive economic benefit from their activities in a state should have to account for the consequences of their acts within that state. Id. at 473-74, 105 S.Ct. 2174. The nonresident defendant’s activities in the forum state must be substantial enough, however, that he should have reasonably foreseen being haled into court there. Id. at 474, 105 S.Ct. 2174. But as long as the defendant purposefully directed his business efforts toward the other state, the actual physical presence of the defendant in that state is not necessary. Id. at 476, 105 S.Ct. 2174. Moreover, if a substantial connection is made with the forum, even a single act can support jurisdiction. Id. at 476 n. 18, 105 S.Ct. 2174. Second, compelling the defendant to litigate in Illinois also must not offend “traditional notions of fair play and substantial justice.” Asahi, 480 U.S. at 113, 107 S.Ct. 1026; International Shoe Co., 326 U.S. at 316, 66 S.Ct. 154. In this regard, assertion of jurisdiction must be reasonable in light of the burden it would place on the defendant, the plaintiffs interest in obtaining relief, the interests of Illinois, the judicial system’s interest in efficient resolution of controversies, and the “shared interest of the several States in furthering fundamental substantive social policies.” Asahi 480 U.S. at 113, 107 S.Ct. 1026. In this case, Plaintiff does not assert personal jurisdiction over Defendants Eirles based on that entity’s own contacts with Illinois; instead, Plaintiff argues that Eirles’ agents and subagents’ contacts with Illinois, all of which are related to the claims in this case, are attributable to Eirles. With respect to Sarco and Mr. Hajela, there appears to be a factual dispute over whether these two Defendants had direct contact with Plaintiff in Illinois; however, Plaintiff also asserts personal jurisdiction over Sarco and Mr. Hajela based on the contacts of their agents with Plaintiff in Illinois. In response, Defendants argue that even if the agency relationships alleged by Plaintiff existed, the putative agents were acting outside the scope of their authority when they induced ABN to enter the Series 42 Notes transaction as a principal. As discussed in detail below, the forum-related activities of an agent and a sub-agent are imputable to the principal and are counted as the principal’s contacts for jurisdictional purposes. See Master Tech Products, Inc. v. Smith, 181 F.Supp.2d 910, 913 (N.D.Ill.2002). Furthermore, Plaintiff has stated a prima facie case of agency. Finally, the alleged agents have sufficient minimum contacts with Illinois such that haling them into court for claims based on those contacts does not violate Due Process. It follows that this Court has personal jurisdiction over all of the Defendants in this case. 2. Personal jurisdiction based on agency As stated above, in Illinois an agent’s contacts with a state may be attributed to the principal for purposes of establishing personal jurisdiction. See Master Tech Products, Inc., 181 F.Supp.2d at 913 (“The Illinois long-arm statute expressly authorizes personal jurisdiction over a person for acts done ‘through an agent.’ ”) (quoting 735 ILCS 5/2 — 209(a)). The parties do not argue whether federal or state agency law applies, but the federal common law of agency is similar to Illinois agency law, and both accord with the Restatement of Agency. See Opp v. Whea-ton Van Lines, Inc., 231 F.3d 1060, 1064 (7th Cir.2000) (collecting cases). All of these authorities recognize that, to bind the principal, the agent must have either actual or apparent authority, or the principal must ratify the agent’s unauthorized actions. See, e.g., Anetsberger v. Metropolitan Life Insurance Co., 14 F.3d 1226, 1234 (7th Cir.1994). Actual authority may be express or implied. Opp, 231 F.3d at 1064 (quoting C.A.M. Affiliates, Inc. v. First American Title Ins. Co., 306 Ill.App.3d 1015, 1021, 240 Ill.Dec. 91, 715 N.E.2d 778 (1st Dist.1999)). An agent has express authority when the principal explicitly grants the agent the authority to perform a particular act. Id. An agent has implied authority for the performance or transaction of anything reasonably necessary to effect execution of his express authority. Id. In other words, implied authority is actual authority that is implied by facts and circumstances and it may be proved by circumstantial evidence. Id. Only the words or conduct of the alleged principal, not the alleged agent, establish the authority of the agent. Id. (quoting C.A.M. Affiliates, Inc., 306 Ill.App.3d at 1021, 240 Ill. Dec. 91, 715 N.E.2d 778). Moreover, under the doctrine of apparent authority, a principal will be bound not only by the authority that it actually gives to another, but also by the authority that it appears to give. Opp, 231 F.3d at 1065 (citing Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill.2d 17, 31, 241 Ill.Dec. 627, 719 N.E.2d 756 (1999)). “ ‘Apparent authority arises when a principal creates, by its words or conduct, the reasonable impression in a third party that the agent has the authority to perform a certain act on its behalf.’ ” Id. (quoting Weil, Freiburg & Thomas, P.C. v. Sara Lee Corp., 218 Ill.App.3d 383, 390, 160 Ill.Dec. 773, 577 N.E.2d 1344 (1st Dist.1991)). Where an agent has acted outside the scope of his authority, “a principal may ratify the act or render it obligatory upon himself, and such subsequent assent and ratification is equivalent to original authority and confirms that which originally was unauthorized.” American Ins. Co. v. Meyer Steel Drum, 1990 WL 92882, at *3 (N.D.Ill. June 27, 1990) (quoting Advance Mortg. Corp. v. Concordia Mut. Life Ass’n, 135 Ill.App.3d 477, 484, 90 Ill.Dec. 225, 481 N.E.2d 1025 (1st Dist.1985)). Put differently, ratification is “the equivalent of authorization, but it occurs after the fact, when a principal gains knowledge of an unauthorized transaction but then retains the benefits or otherwise takes a position inconsistent with nonaffirmation.” Progress Printing Corp. v. Jane Byrne Political Committee, 235 Ill.App.3d 292, 310, 176 Ill.Dec. 357, 601 N.E.2d 1055 (1st Dist.1992) (citing Hofner v. Glenn Ingram & Co., 140 Ill.App.3d 874, 883, 95 Ill.Dec. 90, 489 N.E.2d 311 (1st Dist.1985)). Generally, the question of ratification turns on the principal’s intent to affirm. Progress Printing Corp., 235 Ill.App.3d at 310, 176 Ill.Dec. 357, 601 N.E.2d 1055. Like authority, ratification need not be express; it may be inferred from surrounding circumstances, “including long-term acquiescence, after notice, to the benefits of an unauthorized transaction.” Id.; see also Athanas v. City of Lake Forest, 276 Ill.App.3d 48, 57, 212 Ill.Dec. 686, 657 N.E.2d 1031 (2nd Dist.1995) (“A principal, * * * can ratify the actions of its agent by not repudiating the agent’s actions once it has knowledge of the actions, or by accepting the benefits of the actions.”). Of significance in this case, “although normally a principal’s actual knowledge of the transaction is essential, one whose ignorance or mistake was the result of gross or culpable negligence in failing to learn the facts will be estopped as if he had full knowledge of the facts.” Progress Printing Corp., 235 Ill.App.3d at 310, 176 Ill.Dec. 357, 601 N.E.2d 1055 (citation and internal quotation marks omitted). Although the principal may act on a presumption that a third party will not be negligent in failing to ascertain the extent of an agent’s authority, see Sphere Drake Insurance Ltd. v. American General Life Insurance Co., 376 F.3d 664, 673-74 (7th Cir.2004), it is the principal’s duty to monitor its agents to make sure they are not exceeding their authority, see Progress Printing Corp., 235 Ill.App.3d at 309, 176 Ill.Dec. 357, 601 N.E.2d 1055 (“[A] third party’s duty in this regard [to verify an agent’s authorization] does not obviate a principal’s own duty to third parties, which is to exercise reasonable diligence in monitoring its agents’ activities so that they are not exceeding their authority.”). Perhaps most important at this stage of the litigation, the existence and scope of an agency relationship are questions of fact unless the relationship is so clear as to be undisputed. See, e.g., McNamee v. Sandore, 373 Ill.App.3d 636, 651, 312 Ill.Dec. 111, 869 N.E.2d 1102 (2nd Dist.2007) (“While agency is a legal concept, the existence and scope of an agency relationship is a fact-intensive inquiry reserved for the finder of fact unless the parties’ relationship is so clear as to be undisputed.”). As stated at the outset, Plaintiff need only make out a prima facie case to establish personal jurisdiction. Here, the parties have submitted affidavits and other record evidence, as is proper on a Rule 12(b)(2) motion. All factual disputes supported by Plaintiffs evidence must be resolved in Plaintiffs favor, as must those disputes for which Defendants do not offer evidentiary support. With these rules in mind, the Court addresses the two motions to dismiss for lack of personal jurisdiction. C. Defendant Eirles 1. Evidence of Agency Eirles’ primary argument that this Court lacks personal jurisdiction over it is that, even assuming Deutsche Bank and Capital were Eirles’ agents in carrying out the Series 42 Notes transaction, “those actions were directly contrary to the express instructions of Eirles that the Notes could not be sold in the United States and were made without Eirles’ knowledge.” Eirles 12(b)(2) Mem. at 8. To be clear, Eirles expressly concedes for the purposes of its Rule 12(b)(2) motion that ABN has adequately alleged Deutsche Bank was Eirles’ agent (and apparently that Deutsche Bank was authorized to appoint Capital as its subagent). Id. at 8 n. 3. Eirles argues merely that those putative agents were acting outside the scope of their authority when they sold the Series 42 Notes to ABN, a U.S. entity. As discussed below, however, ABN has put forth enough evidence to support its prima facie case of an agency relationship. Factual disputes such as whether those agents were acting in the scope of their authority must be resolved in Plaintiffs favor at this stage of the litigation. Plaintiff has sufficiently supported its allegations with evidence to refute Eirles’ evidence that the putative agents were acting outside the scope. ABN alleges that Eirles and Deutsche Bank entered into a series of global agreements relating to the Series 42 Notes transaction, under which Deutsche Bank was to procure purchasers of the Notes, arrange for the distribution of the Notes, and provide information about the Notes to actual and prospective purchasers. Deutsche Bank hired Sarco to help find purchasers for the Notes. In the months leading up to the July 15, 2003 closing of the Notes transaction, Sarco allegedly employed a number of sales agents in the United States to help it procure purchasers and set up a distribution chain for the Notes. These agents included Dan Cod-dington, Hans Karundeng, and Sam Re-cile. See, e.g., PI. Ex. 42 (an email from Hajela requesting quick payment of his fee from Deutsche Bank so he can pay his salespeople); PL Ex. 12 (stating that Haje-la and the sales agents would split the fee Hajela made on the deal); Pl. Ex. 5 at 23-25 (Hajela stating that Recile had no association with Sarco but that he had introduced Hajela to Karundeng); PL Ex. 5 at 114-15 (Karundeng and Recile are associated with Hopewell); Pl. Ex. 48 (email from Capital’s Anthony Long to Hopewell’s president, Franklin Ogele, confirming sale, and forwarded to Recile). Sarco also located Hopewell as a potential purchaser and provided Hopewell with an indicative term sheet for the notes. Throughout this process, “Sarco was directing Hopewell in its role as purchaser, which Hajela has admitted was under his ‘control’ and at his ‘disposal.’ ” Pl. Opp. to Eirles Mot. at 5. Soon after Sarco brought in Hopewell as a purchaser, Sarco secured Capital as an intermediary and as Deutsche Bank’s counterparty. Capital and Sarco approached ABN and insisted that ABN act as a principal in the Notes transaction, guaranteeing Hopewell’s purchase. Hopewell was an ABN client, and, initially, ABN had agreed only to act as a clearing agent for Hopewell. The ultimate chain of distribution was meant to be from Eirles to Deutsche Bank to Capital to ABN to Hopewell. ABN alleges that Deutsche Bank, Eirles’ agent, was fully aware that Sarco and Capital were soliciting U.S. entities to enter into the deal, and that Deutsche Bank was aware of ABN’s participation sometime before the closing. ABN cites numerous emails and phone calls supporting this assertion, most of which are between Deutsche Bank’s Paul Levy and either Sarco’s Mr. Hajela or Capital’s Mr. Long. These communications tend to indicate, collectively, that Mr. Levy knew Sarco and Capital were soliciting U.S. purchasers for the Notes and, in fact, that he (and Deutsche Bank) condoned such solicitation. See, e.g., Pl. Ex. 42 (July 21, 2003 email from Hajela to Levy regarding payment of Hajela’s fee following the closing, and stating, “Any further delays would not further good will with the sales people I have to pay * * * ”); Pl. Ex. 118 at 2-3 (June 10, 2003 phone call from Long to Levy with Long stating, “what I haven’t * * * received * * * is the list of all five signatures that I want * * * from the States * * * * So, um, I’m going to have to wait to speak to Dan when he gets here * * * * ”); Pl. Ex. 122 at 5 (June 19, 2003 phone call between Capital’s Robert Floate and Levy with Levy asking “Do you have what you need from Dan’s U.S. guy?”); Pl. Ex. 122 at 2 (Floate saying “I’ve had from the States overnight the relevant — most of the relevant documentation as you sent out last night signed off.”). Moreover, Plaintiff presents sufficient evidence to support a prima facie case that Capital was acting directly as Deutsche Bank’s agent, as well as acting as Sarco’s agent. For example, in its Answer, Capital admits that Deutsche Bank, “directly and through Sar-co, was actively involved in and maintained ultimate control over the sale and distribution of the Series 42 Notes.” Capital’s Ans. ¶ 90. Capital further admits that it followed all of Deutsche Bank’s directions and requirements (Id. ¶ 125), and that it had actual authority from Deutsche Bank to distribute, arrange, and make representations about the Series 42 Notes (Id. ¶ 134). Capital’s Mr. Long testified at his deposition that Deutsche Bank controlled the terms of the Notes and Deutsche Bank and Sarco had control over the form and structure of the referenced portfolio and the credit default swap underlying the Notes. Pl. Ex. 4 at 77. He also testified that, as long as Capital complied with Deutsche Bank’s procedures, Long believed Capital was authorized by Deutsche Bank to act as its distribution agent. Pl. Ex. 4 at 103. Mr. Long testified, “We were acting at the direction of Deutsche Bank and Sarco.” Pl. Ex. 4 at 76. Plaintiff also points to a number of phone calls between Mr. Long and Mr. Levy that support the notion that Capital was working as Deutsche Bank’s agent. Pl. Ex. 107 at 3; PI. Ex. 116 at 8-10 (Long and Levy-discussing lining up people for the trade and getting “the right bit of paper” circulating among the parties); PI. Ex. 125 at 3-5 (Long and Levy discussing a problem with one of the clients arranged by Dan Hajela); PI. Ex. 126 at 3 (Long saying to Levy “We are ready to follow your instructions really”); PL Ex. 127 at 2-5 (discussing changes Levy is making to term sheets for a particular trade). Perhaps most compelling, Eirles expressly admits that it exercised no oversight over Deutsche Bank in how Deutsche Bank carried out its duties procuring purchasers and selling the Notes. See Pl. Ex. 1 at 176-77 (Eirles’ Director Mr. Whelan explaining that Eirles does not supervise Deutsche Bank and leaves compliance requirements to Deutsche Bank); PL Ex. 1 at 180 (“[Djoes Eirles have any checks in place to ensure that its selling restrictions are adhered to? A. No, we don’t ... the notes are all sold to Deutsche Bank so the question of selling restrictions just typically does not arise.”); PL Ex. 1 at 181 (Eirles had no procedures in place to police its selling restrictions because “we don’t feel that the selling restrictions are applicable after that original sale.”); Pl. Ex. 1 at 183 (Mr. Whelan stating that he believes the selling restrictions still apply after the sale to Deutsche Bank but that he does not think it is Eirles’ duty to monitor them); PL Ex. 1 at 197 (“Q. What procedures does Eirles have in place, if any, to ensure that Deutsche Bank complies with this provision which indicates that it will not communicate directly or indirectly with a United States person if that person is a purchaser or perspective [sic] purchaser? A. Eirles does not have any procedures in place for that.”); PL Ex. 1 at 218 (Q. What procedures does Eirles have to ensure the “arranger will comply with all relevant laws, regulations, and directives” in each jurisdiction where it “purchases, offers, sells, or delivers the notes?” A. “None, apart from having legal opinions from outside counsel.”). This evidence supports Plaintiffs argument that, even if Deutsche Bank was acting outside the scope, Eirles ratified Deutsche Bank’s conduct by failing to monitor its activities. See Progress Printing Corp., 176 Ill.Dec. 357, 601 N.E.2d at 1066-67 (“[A] third party’s duty in this regard [to verify an agent’s authorization] does not obviate a principal’s own duty to third parties, which is to exercise reasonable diligence in monitoring its agents’ activities so that they are not exceeding their authority.”). Moreover, it is undisputed that Eirles went forward with the transaction, closed the deal, and then paid interest on the Notes to ABN for months afterwards. PL Ex. 95 ¶¶ 4-5 (declaration of David Boemo, an executive director in ABN’s finance department, that Eirles paid ABN five quarterly interest payments on the Notes totaling .almost $7.8 million and that Eirles never provided notice of an intent to redeem the Notes). This, too, supports Plaintiffs ratification argument. See Progress Printing Corp., 176 Ill.Dec. 357, 601 N.E.2d at 1067 (Ratification is “the equivalent of authorization, but it occurs after the fact, when a principal gains knowledge of an unauthorized transaction but then retains the benefits or otherwise takes a position inconsistent with nonaffirmation.”). Eirles argues that after the transaction closed it was no longer responsible for the sale or for monitoring the sales restrictions, but that assertion simply raises yet another question of fact. It does not undercut Plaintiffs prima facie case of agency. Again, Eirles’ chief argument against Plaintiffs prima facie case of agency is that it expressly prohibited Deutsche Bank from selling the Series 42 Notes in the United States, and that therefore, Deutsche Bank and the other putative agents were acting outside the scope of their authority when they sold the Notes to ABN. In support of that argument, Eirles cites to three documents that include the U.S. sales restriction: the Structured Investment Terms Module 9.1.1.2 (Purchase of Notes), the Supplemental Programme Memorandum for the Series 42 Notes, and the Purchase Agreement between Deutsche Bank and Capital. The Structured Investment Terms Module states that “[t]he Notes may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except to the extent permitted by the applicable Supplemental Programme Memorandum.” Eirles App. Ex. D. The Supplemental Programme Memorandum states that “[t]he Notes may not be offered, sold, resold, delivered or transferred within the United States or to, or for the account or benefit of, U.S. persons (as such term is defined in Regulation S under the Securities Act).” FAC, Ex. 11 at 47. The Purchase Agreement between Deutsche Bank and Capital provided that Capital was not allowed to sell or distribute the Notes to any U.S. Person and required any purchaser from Capital to agree that it would not sell to any U.S. Person either. See Eirles App. Ex. B. Eirles argues that, based on these documents, the sale to ABN constituted an act outside the scope of any authority Deutsche Bank and its subagent might have had. There are problems with Eirles’ argument, at least at this stage of the litigation. First, the Supplemental Programme Memorandum did not exist until after the Series 42 Notes transaction closed. Second, none of the other documentation cited expressly prohibited sales to U.S. persons. Plaintiff argues with respect to the substantive securities fraud claims that it reasonably believed the transaction was exempt under Regulation S, which, although restrictive, is less restrictive than the absolute restriction on U.S. sales included in the Supplemental Programme Memorandum. In some circumstances, Regulation S allows sales to or through U.S. persons. ABN argues that, other than the Supplemental Programme Memorandum, all of the documentation cited by Defendants was consistent with a Regulation S transaction, and for that reason ABN was not on notice of the absolute restriction when it decided to enter the transaction. That argument, when applied to the agency question, creates at least a fact issue about whether the downstream agents (Capital in particular) were aware of the restriction and therefore acting outside the scope of their authority when they sold to ABN. If ABN was not on notice of the absolute restriction, potentially other parties to the transaction were not aware of it either. More to the point, ABN argues that the absolute restriction was added to the terms of the Notes to maximize Eirles/ Deutsche Bank’s profits and minimize their regulatory obligations, but that Eirles/Deutsche Bank always intended to set up a “sham” transaction that would have the appearance of an offshore deal but would actually consummate in a sale to U.S. persons. See FAC ¶ 9. Given those allegations, the fact of the absolute restriction’s inclusion in one document, which was not issued until after closing, does little to support Eirles/Deutsche Bank’s theory that the putative agents were acting outside the scope of their authority. On the contrary, it tends to support Plaintiffs theory that the agents were doing exactly what they were told to do. In any event, at this stage all factual disputes must be resolved in ABN’s favor. The Court finds that Plaintiffs allegations support its pri-ma fade case, and that any allegations that the putative agents were acting outside the scope must await later stages of the litigation. Finally, Eirles argues that ABN may not base personal jurisdiction on apparent authority. That is incorrect as a matter of law. See New Process Steel, L.P. v. PH Group Inc., 2002 WL 31253886, at *2 (N.D.Ill. Oct. 8, 2002); Avesta Sheffield, Inc. v. Olympic Continental Resources, 2000 WL 198462, at *4 (N.D.Ill. Feb. 14, 2000) (“Establishing personal jurisdiction over a defendant through an agent is also consistent with the due process clause * * * * An agent’s authority can be actual or apparent, with circumstantial evidence used to establish the existence and extent of the authority.”) (citations omitted; emphasis added). Moreover, as discussed above, Eirles concedes for the purposes of its motion that Deutsche Bank (and ostensibly the other subagents) were acting as Eirles’ agents. Therefore, ABN’s argument is based on actual authority, not apparent authority. In sum, because ABN has presented evidence that Deutsche Bank, Sarco, and Capital all were acting as agents or sub-agents of Eirles; because there are factual disputes over whether the agents and sub-agents were acting in the scope of their authority; and because there is undisputed evidence that Eirles did not oversee Deutsche Bank’s activities with respect to the Series 42 Notes transaction, strongly suggesting that Eirles ratified the agents’ actions in any event, the Court finds that Plaintiff has met its burden of showing a prima facie case of agency. 2. Contacts with Illinois and Fairness The next question is whether Eirles’ agents’ contacts with the United States generally and with Illinois in particular are sufficient to exercise personal jurisdiction over Eirles in this case. The Court finds that they are. In particular, Plaintiff alleges that Capital, Sarco, and Hopewell, all acting on behalf of Deutsche Bank (and derivatively of Eirles), sought out ABN to solicit it to enter the deal. Plaintiff presents evidence that, between April and July 2003, Capital engaged in more than twenty-five phone calls with ABN in Chicago or Hopewell in New Jersey, and between ten and twenty e-mails with-ABN or Hopewell. See, e.g., PI. Ex. 4 at 32 (Long Deposition stating there were “[bjetween one and two dozen” phone calls with ABN, all in Chicago); id. at 33 (“The majority” of those calls were initiated by Capital.); id. at 34, 148. Plaintiff also presented evidence that Sarco communicated terms of the Notes to ABN, reviewed the Notes documentation, instructed Capital and Hopewell as to what Deutsche Bank required, and acted as a conduit of information between Deutsche Bank, Capital, ABN, Hopewell, and the purported end purchasers. ABN signed a purchase agreement with Capital, and Capital has admitted that it insisted on having ABN participate in the deal. The mere existence of a contract with an out-of-state party does not automatically establish personal jurisdiction over that party, Burger King, 471 U.S. at 478, 105 S.Ct. 2174, but “[t]he requisite contacts * * * may be supplied by the terms of the agreement, the place and character of prior negotiations, contemplated future consequences, or the course of dealings by the parties.” Mellon Bank (East) PSFS, Nat. Ass’n v. Farino, 960 F.2d 1217, 1223 (3d Cir.1992) (citing Burger King, 471 U.S. at 479, 105 S.Ct. 2174). Where an agent seeks out contacts with the forum resident, initiates negotiations, and actively pursues them with the knowledge that they are in the United States, that can be enough to establish personal jurisdiction. Aircraft Guar. Corp. v. Strato-Lift, Inc., 974 F.Supp. 468, 474 (E.D.Pa.1997). Here, there is more than just a contract between the parties, and more than just actively pursued negotiations. Plaintiff alleges intentional torts. That makes the personal jurisdiction inquiry somewhat simpler. The Seventh Circuit has repeatedly held that tortfeasors must expect to be haled into Illinois courts for torts where the injury took place there. See Janmark, Inc. v. Reidy, 132 F.3d 1200, 1202 (7th Cir.1997) (“[T]he state in which the injury (and therefore the tort) occurs may require the wrongdoer to answer for its deeds even if events were put in train outside its borders.”); Indianapolis Colts, Inc. v. Metropolitan Baltimore Football Club Limited Partnership, 34 F.3d 410, 411-12 (7th Cir.1994). Here, not only did the injury allegedly occur in Illinois, Plaintiff alleges that Capital, Sarco, and Sarco’s sales agents sought out ABN to solicit it to enter the deal. Those actions constitute sufficient contacts with Illinois to warrant exercising personal jurisdiction over them in a case based on those contacts. The sales agents “purposefully directed [their] business efforts toward the other state,” and therefore “the actual physical presence of the defendant in that state is not necessary.” Burger King, 471 U.S. at 476, 105 S.Ct. 2174. The alleged agents have sufficient minimum contacts with Illinois, and as discussed above these contacts may be imputed to Eirles for the purpose of establishing personal jurisdiction. Finally, the Court finds that compelling Defendants to litigate in Illinois does not offend “traditional notions of fair play and substantial justice.” Asahi, 480 U.S. at 113, 107 S.Ct. 1026; see also International Shoe Co., 326 U.S. at 316, 66 S.Ct. 154. In this regard, assertion of jurisdiction must be ■ reasonable in light of the burden it would place on the defendant, the plaintiffs interest in obtaining relief, the interests of Illinois, the judicial system’s interest in efficient resolution of controversies, and the “shared interest of the several States in furthering fundamental substantive social policies.” Asahi, 480 U.S. at 113, 107 S.Ct. 1026. Plaintiff alleges federal securities fraud and damages of $44 million. Securities fraud is an intentional tort. Defendants knew their actions targeted an Illinois resident. Moreover, Defendants are sophisticated securities broker-dealers, a global investment bank, and a special purpose entity created by that bank. Exercising personal jurisdiction over them will not be an unfair burden. In this regard, it bears emphasizing that Eirles is a special purpose entity created by Deutsche Bank, which is not challenging personal jurisdiction. Plaintiff alleges, and Eirles does not deny, that Eirles is a shell company that does not meaningfully exist apart from Deutsche Bank. See Pl.’s Opp. at 11-12. In light of all the facts currently before the Court for purposes of this motion, the Court finds it reasonable to compel Eirles to litigate in Illinois. D. Defendants Sarco/Hajela Sarco/Hajela concede that the Court has personal jurisdiction over them with respect to the federal claims, but argue that if the federal claims are dismissed, the pendent state claims should be dismissed as well for, inter alia, lack of personal jurisdiction. The Court disagrees. ABN has put forth sufficient evidence to state a prima fade case based on Mr. Hajela’s own contacts with Illinois. See PL’s Opp. to Sarco/Hajela Mot. at 9 (bullet list of recorded telephone calls and emails wherein Mr. Hajela references communications with ABN AMRO in Chicago). Sarco/Hajela have challenged Plaintiffs evidence with evidence that Mr. Hajela did not actually speak to people at ABN AMRO, even though that is what he said he did in the aforementioned phone calls and e-mails. Rather, in a second declaration filed with Sarco/Hajela’s reply brief, Mr. Hajela stated that in those phone calls and e-mails he was using a shorthand method of communication to simplify things. Instead of explicitly saying he was going to talk to Mr. Recile, who was going to talk to someone at Hopewell, who was going to talk to someone at ABN AMRO, Mr. Hajela often simply stated that he was going to talk to someone at ABN AMRO. At this stage of the litigation, this factual dispute must be resolved in Plaintiffs favor. That being the case, the Court finds that Plaintiff has submitted enough evidence that Sarco/Hajela communicated directly with ABN to establish its prima fade case. Moreover, and as discussed more fully above, Plaintiff has put forth sufficient evidence that Capital was Sarco’s agent in soliciting ABN to act as a principal in the Notes transaction. Sarco/Hajela do not deny that Mr. Hajela discussed the transaction with Capital’s Mr. Long at length, and that Mr. Hajela worked with Mr. Long and others to put the transaction together. On the contrary, Sarco simply argues that “(1) the Sarco Defendants did not control the alleged agents; and (2) the alleged agents acted on their own behalf, not Sarco’s.” Sarco Reply at 10. In other words, Sarco/Hajela argue that the “alleged agents” were not agents at all. Sar-co/Hajela argue that “[s]everal documents” show that Mr. Hajela did not control Capital, but Defendants offer only two concrete examples. First is an e-mail in which Mr. Hajela asked Capital to “[l]et me know if any of the above causes a problem for you.” Sarco Reply at 11 (citing PL’s Ex. 4-2). Under Defendants’ rationale, “[i]f CIL had been under Sarco’s control, CIL’s views would have been irrelevant.” Sarco Reply at 11. The Court disagrees. It’s equally possible Mr. Hajela was just being polite. Second, Sarco/Hajela cite to a phone call between Mr. Long and Mr. Hajela in which, according to Sarco/Hajela, “Mr. Long of CIL instructed Mr. Hajela that, among other things, he wanted AAI to take the principal risk of guaranteeing Hopewell via a letter.” Id. (citing Pl.’s Ex. 109). Sarco/Hajela do not cite to a particular page number, though it appears that the letter referred to may be mentioned on page 12 of the cited transcript. Still, a review of the entire phone call suggests that Mr. Long is working for Mr. Hajela (and that both of them are working for Deutsche Bank) as much as or more than it suggests that Mr. Hajela is working for Mr. Long. More important, and as discussed above, agency is a question of fact. Any factual dispute raised by Sarco/Hajela must be resolved in Plaintiffs favor at this stage of the litigation. Therefore, the Court finds Plaintiff has adequately pleaded that Capital was working as Sarco’s agent. Sarco/Hajela offer similar responses to Plaintiffs agency allegations with respect to Mr. Recile and the other alleged sales agents — that the Sarco Defendants did not control them and that, even if they did, Plaintiff has presented no evidence that the alleged agents had the right to bind Sarco. Because the Court finds that Plaintiff has put forth sufficient evidence that Capital was Sarco’s agent, it need not reach the issue of whether Plaintiff has made out a prima facie case that Recile, Coddington, and Karundeng were also acting as Sarco’s agents. However, the Court notes that Sarco’s argument is not supported by the case law — the cases support the proposition that evidence of control is enough to make out a prima facie case of agency, regardless of whether there is also evidence that the putative agent had the right to bind the principal. See, e.g., Brown v. Sears Roebuck & Co., 2002 WL 31438395, at *2-3 (N.D.Ill. Oct. 29, 2002) (explaining that allegations of control, or “subservancy” are sufficient to state a prima facie case of agency). Furthermore, Sarco/Hajela has not put forth evidence affirmatively suggesting that Recile, Coddington, and Karundeng were not Sarco’s agents. Sarco points out that ABN presented no agreements between Sarco and the alleged sales agents, that the agents stood to benefit personally from their involvement in the transaction, and that Sarco itself was not a purchaser or seller of the Notes. None of these facts contradict Plaintiffs agency argument. For this independent reason, the Court finds that Plaintiff has adequately pleaded that Recile, Coddington, and Karundeng were acting as Sarco’s agents in soliciting ABN AMRO to enter the Series 42 Notes Transaction. In sum, the Court finds that Plaintiff has adequately alleged that Sarco has sufficient minimum contacts with Illinois to exercise personal jurisdiction over him. Plaintiff has alleged and presented evidence that Sarco directly contacted ABN AMRO for the purpose of soliciting its participation in the Series 42 Notes transaction. Plaintiff has also alleged and submitted evidence that Capital, Recile, Cod-dington, and Karundeng were acting as Sarco’s agents in soliciting ABN AMRO. As discussed more fully above in the section relating to Eirles, these agents’ contacts with Illinois are also sufficient such that haling them' into Illinois courts on claims based on those contacts comport with Due Process. The Court therefore finds that Plaintiff has established a prima facie case of personal jurisdiction over Sar-co/Hajela, with respect to both the federal and state claims. III. Rule 12(b)(6) Motions to Dismiss for Failure to State a Claim A. Legal Standard In evaluating the motions to dismiss, the Court accepts all of Plaintiffs well-pleaded allegations in the Complaint as true and draws all reasonable inferences in Plaintiffs favor. Stachon v. United Consumers Club, Inc., 229 F.3d 673, 675 (7th Cir. 2000). The Court need “ ‘not strain to find inferences favorable to the plaintiffs’ which are not apparent on the face of the complaint,” however. In re Allscripts, Inc. Secs. Litig., 2001 WL 743411, at *4 (N.D.Ill. June 29, 2001) (quoting Coates v. III. State Bd. of Ed., 559 F.2d 445, 447 (7th Cir.1977)). Plaintiffs non-fraud claims will survive a motion to dismiss for failure to state a claim so long as the Complaint sets forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). As discussed below, however, the state and common law fraud claims must meet the heightened pleading requirements of Rule 9(b), and the federal securities fraud claims must meet the even higher pleading requirements of the Private Securities Litigation Reform Act. B. Count I — Failure to Register In Count I, ABN AMRO alleges violations of Sections 5(a), 5(c), and 12(a)(1) of the Securities Act of 1933 (“Securities Act”), 15 U.S.C. §§ 77e(a), 77e(c), and 77i(a)(l) against Eirles and Capital for failure to file a registration statement regarding the Series 42 Notes. Eirles moves to dismiss these claims, arguing that (1) the Notes transaction was a private placement exempt from the Securities Act’s registration requirement, and (2) Eirles is not a statutory “seller” and therefore is not covered by the registration provisions of the Act. As discussed below, the Court finds that Plaintiff has adequately pleaded its registration claim. Therefore, the Court respectfully denies Eirles’ motion to dismiss Count I. 1. “Seller” under Section 12(a)(1) Section 5(a) of the Securities Act makes it unlawful to sell or deliver unregistered securities in interstate commerce. 15 U.S.C. § 77e(a). Section 5(c) of the Act requires the filing of a registration statement in order to offer or sell securities in interstate commerce. 15 U.S.C. § 77e(e). Section 12(a)(1) of the Act provides that “[a]ny person who offers or sells a security in violation of section 77e of this title * * * shall be liable * * * to the person purchasing such security from him, who may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security.” 15 U.S.C. § 77Z(a)(l). The Supreme Court has held that statutory sellers under § 12(a)(1) include “the buyer’s immediate seller” and any person who actively solicited the sale of the securities to plaintiff and did so for financial gain. See Pinter v. Dahl, 486 U.S. 622, 644 n. 22, 647, 108 S.Ct. 2063, 100 L.Ed.2d 658 (1988); accord, e.g., Steed Finance LDC v. Nomura Securities Int'l, 2001 WL 1111508, at *7 (S.D.N.Y. Sept. 20, 2001). Generally speaking, issuers such as Eirles are not statutory sellers, because they do not pass title immediately to the plaintiff purchaser. See, e.g., Pinter, 486 U.S. at 644 n. 21, 108 S.Ct. 2063 (“One important consequence of [the purchaser clause] is that § 12(1) imposes liability only on the buyer’s immediate seller; remote purchasers are precluded from bringing actions against remote sellers. Thus, a buyer cannot recover against his seller’s seller.”); Lone Star Ladies Investment Club v. Schlotzsky’s Inc., 238 F.3d 363, 370 (5th Cir.2001) (“[I]n a firm commitment underwriting, such as this one, the public cannot ordinarily hold the issuers liable under section 12, because the public does not purchase from the issuers. Rather the public purchases from the underwriters, and suing the issuers is an attempt to 'recover against [the] seller’s seller.’ ”) (quoting Pinter, 486 U.S. at 644 n. 21, 108 S.Ct. 2063). That said, as explained by the Fifth Circuit in Lone Star Ladies, “Pinter holds that a plaintiff invoking section 12 may show that an issuer’s role was not the usual one; that it went farther and became a vendor’s agent.” 238 F.3d at 370. In other words, so long as a plaintiff adequately pleads that an issuer was either its direct seller or that it actively solicited the sale, it will survive a motion to dismiss. See id. In this case, Plaintiff has done just that. It has pleaded that Eirles and Capital “directly or indirectly” used interstate commerce “to sell and offer to sell the Series 42 Notes.” FAC ¶ 226. It also has pleaded that, on information and belief, through its agents, Eirles participated in the preparation of the Supplemental Programme Memorandum and/or the Indicative Note Term Sheet, and that as a result of its participation in preparing these documents, “Eirles actively solicited the purchase of the Series 42 Notes.” Id. ¶ 230. Plaintiff essentially alleges that Eirles employed agents to actively solicit ABN and to sell to ABN. See id. ¶¶226, 230. Those allegations are sufficient to survive a motion to dismiss. See In re Enron Corp. Securities, Derivative & Erisa Litigation, 2004 WL 405886, at *27 n. 51 (S.D.Tex.2004) (“[Liability under § 12(2) is ordinarily restricted to the immediate seller of the defrauded purchaser. If none of the exceptions to this § 12(2) privity requirement are applicable, i.e., control, agency, aiding and abetting or conspiracy, each plaintiff member would have a cause of action only against his or her immediate seller * * * * ”); Endo v. Albertine, 147 F.R.D. 164, 173 (N.D.Ill. 1993) (explaining that courts will certify a class of defendants on a Section 12 claim where “an important legal relationship uniting the defendant underwriters and justifying class treatment’ is shown to exist” and that “[p]artnership [and] joint enterprise * * * may serve as such a link, since they denote some form of activity or association on the part of the defendants that warrants imposition of joint liability against the group even though the plaintiff may have dealt primarily with a single member.”) (quoting Akerman v. Oryx Communications, Inc., 609 F.Supp. 363, 375 (S.D.N.Y.1984)). Of course, Plaintiff will bear the burden of demonstrating that Eirles did solicit in a manner sufficient to satisfy Pinter if it hopes to prevail on the Section 12 claim. See Lone Star Ladies, 238 F.3d at 370. The Court finds only that Plaintiffs Section 12 claim cannot be resolved on a Rule 12(b)(6) motion, although the parties may bring the question again upon a properly developed record under Rule 56. 2. Exempt Private Placement Section 4(2) of the Securities Act of 1933, 15 U.S.C. § 77d(2), exempts from registration with the Securities and Exchange Commission “transactions by an issuer not involving any public offering.” Id. Although not defined in the Act, a “non-public offering” is “[a]n offering to those who are shown to be able to fend for themselves * * * * The focus of inquiry should be on the need of the offerees for the protections afforded by registration.” SEC v. Ralston Purina Co., 346 U.S. 119, 125, 127, 73 S.Ct. 981, 97 L.Ed. 1494 (1953). Following Ralston Purina, courts have relied on four factors in determining whether an offering is a private placement: (1) the number of offerees and their relationship to the issuer; (2) the number of units offered; (3) the size of the offering; and (4) the manner of the offering. See Doran v. Petroleum Management Corp., 545 F.2d 893, 900 (5th Cir.1977); accord Cogniplex, Inc. v. Ross, 2001 WL 436210, at *11 (N.D.Ill. April 27, 2001). Eirles focuses on these factors — and, in particular, the sophistication and bargaining power of ABN — in arguing that the Notes transaction was exempt. This may well be proved. However, the burden of proof is on the party claiming the benefit of the exemption — in this case, Eirles. See Mark v. FSC Securities Corp., 870 F.2d 331, 333 (6th Cir.1989). In other words, exemption is an affirmative defense. Doran v. Petroleum Management Corp., 545 F.2d 893, 899 (5th Cir.1977) (citing Ralston Purina Co., 346 U.S. at 126, 73 S.Ct. 981). Plaintiff need not anticipate affirmative defenses in its complaint, and ordinarily the validity of an affirmative defense cannot be resolved under Rule 12(b)(6). See, e.g., Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir.2004) (“Only when the plaintiff pleads itself out of court — that is, admits all the ingredients of an impenetrable defense — may a complaint that otherwise states a claim be dismissed under Rule 12(b)(6).”) (collecting cases); accord, e.g., Walker v. Thompson, 288 F.3d 1005, 1010 (7th Cir.2002) (discussing statute of limitations issues); Lone Star Ladies, 238 F.3d at 369 (explaining that Rule 8’s lower pleading standards apply to Section 12 claims on a motion to dismiss and that this “lower threshold of liability under section 11 and 12 of the 1933 Act as compared to the 1934 Act here [on a Rule 12(b)(6) motion] matters a great deal”). In this case, Plaintiff has adequately pleaded that the securities sold were not registered and that interstate trans