Full opinion text
OPINION AND ORDER MELINDA HARMON, District Judge. Pending before the Court in G-02-0299 are the following motions: (1) Defendant JPMorgan Chase & Co.’s motion for a summary judgment (# 99) dismissing with prejudice Plaintiffs American National Insurance Company, American National Investment Accounts, Inc., SM & R Investments, Inc., American National Property and Casualty Company, Standard Life and Accident Insurance Company, Farm Family Life Insurance Company, and Farm Family Casualty Insurance Company’s claims for aiding and abetting a primary violation of the Texas Securities Act (“TSA,” Tex. Stat. Rev. art. 531-33), statutory fraud (Texas Business & Commerce Code § 27.01), common law fraud, and civil conspiracy to commit fraud, in connection with Plaintiffs’ purchases of certain Enron-related securities; (2) Plaintiffs’ motion for trial setting (# 72); (3) Defendant’s motion to compel production of settlement agreements and related documents pursuant to Fed.R.Civ.P. 26(e) (# 116); and (4) Plaintiffs’ motion for status conference (# 133). Because the Court’s resolution of Defendant’s motion for summary judgment could moot the other motions, the Court addresses it first. I. Defendant’s Motion for Summary Judgment Two threshold matters limit the scope of review of Defendant’s summary judgment motion. First, Plaintiffs and Defendant agree that the Court has previously made determinations that invalidate Plaintiffs’ TSA claims; therefore Plaintiffs state they do not urge them again here (# 105 at 2; # 109 at 1). In re Enron Corp. Sec., Derivative & “ERISA" Litig. (Am. Nat’l Ins. Co. v. Royal Bank of Canada), 540 F.Supp.2d 759, 797-99 (S.D.Tex.2007) (the “RBC decision”). In addition, Plaintiffs represent, and Defendant accepts, that they will not prosecute their common-law simple fraud claims against JPMorgan Chase. # 105 at 2; # 109 at 1. Therefore to clarify the record in this action against JPMorgan Chase, the Court grants Defendant’s pending motion for summary judgment as to the TSA and common-law fraud claims. Second, Defendant has expressly restricted its motion for summary judgment on the remaining claims to the absence of competent evidence on the single element of causation (Plaintiffs must prove their losses were the direct and proximate result of JPMorgan Chase’s actions, and not of the myriad other factors that caused Enron’s collapse) in both their statutory fraud claim and their civil conspiracy-to-defraud claim. Therefore the Court does not address arguments raised in the briefing about any of the other elements in the remaining statutory fraud and civil conspiracy-to-commit-fraud claims. A. Remaining Causes of Action The controlling pleading is the Second Amended Complaint (#25), minus those claims dismissed by the Court in its March 12, 2007 Opinion and Order # 61 and now summary judged supra here. 1. Statutory Fraud, Section 27.01 of the Texas Business and Commerce Code (Vernon 2008) Plaintiffs allege that Defendant conspired to violate and aided and/or abetted Enron in Enron’s making material false misrepresentations and omissions for the purpose of inducing Plaintiffs to enter into contracts for the purchase of Enron securities, violations of Section 27.01. They claim that Enron was a primary violator of the statute. The elements of a primary violation of Texas Business and Commerce Code § 27.01(a) in relevant part are: (a) Fraud in a transaction involving real estate or stock in a corporation or joint stock company consists of a (1) false misrepresentation of a past or existing material fact, when the false representation is (A) made to a person for the purpose of inducing that person to enter into a contract; and (B) relied on by that person in entering that contract .... Under section 27.01(b), “A person who makes a false representation ... commits the fraud described in Subsection (a) of this section and is liable to the person defrauded for actual damages.” Under section 27.01(c), “A person who makes a false representation ... with actual awareness of the falsity thereof commits the fraud described in Subsection (a) of this section and is liable to the person defrauded for exemplary damages. Actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness.” See also Larsen v. Carlene Langford & Associates, Inc., 41 S.W.3d 245, 249 (Tex. App.-Waco 2001) (plaintiffs “can establish a statutory fraud claim under section 27.01 ... by showing: 1. a representation of material fact; 2. which is false; 3. made to induce a person to enter a contract; 4. which was relied upon by that person in entering the contract; and 5. which caused injury [emphasis added by the Court].”), citing Scott v. Sebree, 986 S.W.2d 364, 371 (Tex.App.-Austin 1999, pet. denied); in accord Robbins v. Capozzi, 100 S.W.3d 18, 26 (Tex.App.-Tyler 2002). Statutory fraud differs from common law fraud “ ‘only in that it does not require proof of knowledge or recklessness as a prerequisite to the recovery of actual damages.’ ” Id. Because the statute is derived from common law fraud, Plaintiffs must show that they actually and justifiably relied upon Enron’s allegedly fraudulent misrepresentations. Haralson v. E.F. Hutton Group, Inc., 919 F.2d 1014, 1025 & n. 4 (5th Cir.1990), abrogated on other grounds, Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995). Plaintiffs allege that Defendant JPMorgan Chase was a secondary violator of the statute. Section § 27.01(d) in relevant part addresses secondary liability for aiding and abetting a primary violator: A person who (1) has actual awareness of the falsity of a representation ... made by another person and (2) fails to disclose the falsity of the representation ... to the person defrauded, and (3) benefits from the false representation ... commits the fraud described in Subsection (a) of this section and is liable to the person defrauded for exemplary damages. Actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness. In Glazener v. Jansing, No. 03-02-00796-CV, 2003 WL 22207226, *5 (Tex. App.-Austin Sept. 25, 2003), appellants argued that they could not be held liable for actual damages under section 27.01(d) because it expressly provided only for exemplary damages against a person who knows of, fails to correct, and benefits from another’s misrepresentations. The Austin appellate court rejected that argument, pointing out that section 27.01(d) also expressly states that a person who has actual awareness of the falsity of the other person’s misrepresentation, remains silent, and benefits from it, commits the fraud described in section 27.01(a), and that section 27.01(b) states that a person who commits the fraud described in section 27.01(a) is liable for actual damages. Therefore a person who knows of another’s misrepresentations, fails to disclose them to the person defrauded, and benefits therefrom can be liable for both actual and exemplary damages under the statute. Id. Two appellate courts have concluded that the Texas Supreme Court’s definition of “actual awareness” in a DTPA case “ “would be similar, if not identical’ ” to that for section 27.01 of the Texas Business & Commerce clause: actual awareness “does not mean merely that a person knows what he is doing; rather, it means that a person knows what he is doing is false, deceptive, or unfair. In other words, a person must think to himself at some point, Tes, I know this is false, deceptive, or unfair to him, but I’m going to do it anyway.’ ” Woodlands Land Development Co. v. Jenkins, 48 S.W.3d 415, 426 (Tex.App.-Beaumont 2001), and Scott v. Sebree, 986 S.W.2d 364, 371 (Tex.App.-Austin 1999, pet. denied), citing St. Paul Surplus Lines Ins. Co. v. Dal-Worth Tank Co., 974 S.W.2d 51, 53-54 (Tex.1998). 2. Common-Law Civil Conspiracy to Defraud Plaintiffs allege that Defendant conspired with Enron to participate in deceptive transactions, including twelve Mahonia transactions, that would allow Enron to disseminate false financial information in filings with the SEC (overt acts) and promulgate information that would mislead credit rating agencies and the investing publicly generally. A civil conspiracy is composed of two or more persons combining to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.1983). The elements of a cause of action for civil conspiracy in Texas are (1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as the proximate result. Juhl v. Airington, 936 S.W.2d 640, 644 (Tex.1990); Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex.2005). To impose liability on a defendant for civil conspiracy to defraud, plaintiff must establish (1) that there was such a conspiracy and (2) that the particular defendant, here JPMorgan Chase, agreed with one or more of the conspirators about the claimed illegal object of the conspiracy and intended to have it brought about. Ward v. Sinclair, 804 S.W.2d 929, 931 (Tex.App.-Dallas 1990), citing Zervas v. Faulkner, 861 F.2d 823, 836 (5th Cir.1988). The “meeting of the minds” element is “to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means.” Transport Insurance Co. v. Faircloth, 898 S.W.2d 269, 278 (Tex.1995). “[T]here must be a preconceived plan and unity of design and purpose.” Goldstein v. Mortenson, 113 S.W.3d 769, 779 (Tex.App.-Austin 2003) (“A conspiracy to defraud on the part of two or more persons means a common purpose, supported by a concerted action to defraud, that each has the understanding that the other has that purpose.”). “ ‘There must be an agreement or understanding between the conspirators to inflict a wrong against, or injury on, another, a meeting of the minds on the object or course of action, and some mutual mental action coupled with an intent to commit the act which results in injury; in short, there must be a preconceived plan and unity of design and purpose, for the common design is of the essence of the conspiracy.’ ” Id. See also Laxson v. Giddens, 48 S.W.3d 408, 410 (Tex.App.-Waco 2001) (“One without knowledge of a conspiratorial plan or scheme to injure another by the commission of a particular wrong cannot share the intent to injure such other, [emphasis in original]”). “For a civil conspiracy to arise, the parties must be aware of the harm or the wrongful conduct at the beginning of the combination or agreement [or when the party joins the conspiracy] .... One cannot agree, expressly or tacitly, to commit a wrong about which he has no knowledge.” Firestone Steel Products Co. v. Barajas, 927 S.W.2d 608, 614 (Tex.1996), citing Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, 719 (Tex.1995) (“[C]ivil conspiracy requires specific intent. For a civil conspiracy to arise, the parties must be aware of the harmful or wrongful conduct at the inception of the combination or agreement.”); Schlumberger, 435 S.W.2d at 857 (“[O]ne without knowledge of a conspiratorial plan or scheme to injure another by commission of a particular wrong cannot share the intent to injure the other.”). Nevertheless, “[t]he agreement need not be formal; rather, the understanding may be tacit; and it is not essential that each conspirator have knowledge of the details [of the conspiracy]; inferences of concerted action may be drawn from participation in the transactions.” J.T.T. v. Chon Tri, 111 S.W.3d 680, 684 (Tex.App.-Houston [1st Dist.] 2003) (citing Bourland v. State, 528 S.W.2d 350, 354 (Tex.Civ.App.-Austin 1975, writ ref'd n.r.e.)), reversed on other grounds, 162 S.W.3d 552 (Tex.2005). On the other hand, “[t]he fact that a conspirator is not present at, or does not participate in, all of the conspiratorial activities does not, by itself, exonerate him.” United States v. Ashley, 555 F.2d 462, 467 (5th Cir.1977), cert. denied sub nom Leveriette v. United States, 434 U.S. 869, 98 S.Ct. 210, 54 L.Ed.2d 147 (1977); see also United States v. Thomas, 686 F.Supp. 1078, 1087-88 (M.D.Pa.1988) (quoting Ashley). “[I]t is axiomatic that it is not necessary for each conspirator to have entered into the unlawful agreement at its inception.” Id. at 468. “A person may participate in a conspiracy without knowing the identities of all the other co-conspirators.” Id., citing United States v. Capo, 791 F.2d 1054, 1066 (2d Cir.1986). “[A] changing cast of characters does nothing to lessen the fact of one conspiracy. Once the existence of a common scheme of conspiracy is shown, ‘slight evidence is all that is required to connect a particular defendant with the conspiracy.’ ” Id. at 467. The district court in Ashley opined, “Further, even if this case does present circumstances of changing and overlapping membership and activities, they were all directed toward a common goal. In such circumstances, ‘most courts have found, as we do here, sufficient evidence to uphold a jury verdict reflecting a single conspiracy.’ ” 555 F.2d at 468, citing United States v. Beasley, 519 F.2d 233, 246 (5th Cir.1975). In addition, “a co-conspirator is bound by the overt acts of other conspirators taken in furtherance of the conspiracy, whether or not said co-conspirator was a member of the conspiracy at the time .... ” Thomas, 686 F.Supp. at 1088. Conspiracy is a derivative tort because recovery is not based on the conspiracy, i.e., the agreement, but on the injury from the underlying tort, here allegedly fraud. Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex.1996). “The gist of a civil conspiracy is the damage resulting from commission of a wrong which injures another, and not the conspiracy itself’; in other words, it is the injury resulting from an act done pursuant to the conspiracy’s common purpose that gives rise to the cause of action, not the existence of the conspiracy itself. Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 856 (Tex.1968); see also Alford Chevrolet-Geo v. Jones, 91 S.W.3d 396, 403 (Tex.App.-Texarkana 2002, pet. denied) (It is not the agreement, but the injury to the plaintiff from an act done pursuant to the common purpose that gives rise to a cause of action for civil conspiracy), citing Carroll v. Timmers Chevrolet, 592 S.W.2d 922, 925 (Tex.1979). Therefore, under the allegations here, the wrong which JPMorgan Chase conspired with Enron to accomplish, i.e., Enron’s fraudulent financial reporting to mislead the investing public and the credit rating agencies, must be shown to have proximately caused Plaintiffs’ damages. Thus to be liable for conspiracy, a defendant must also participate to some degree in the underlying fraud. Id. Furthermore, to establish a conspiracy to defraud, the plaintiff must prove both a civil conspiracy and the underlying fraud. Conger v. Danek Med., Inc., 27 F.Supp.2d 717, 721-22 (N.D.Tex.1998), citing American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 438 (Tex. 1997). Proximate cause is composed of two elements, cause-in-fact and foreseeability. City of Gladewater v. Pike, 727 S.W.2d 514, 517 (Tex.1987), citing Williams v. Steves Industries, Inc., 699 S.W.2d 570, 575 (Tex.1985); McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 903 (Tex.1980); and Missouri Pac. R. Co. v. American Statesman, 552 S.W.2d 99, 103 (Tex.1977). “Cause in fact means that the omission or act involved was a substantial factor in bringing about the injury and without which no harm would have occurred.” Gladewater, 727 S.W.2d at 517, citing McClure, 608 S.W.2d at 903. “The word ‘substantial’ is used to denote the fact that the defendant’s conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called ‘philosophic sense,’ which includes every one of the great number of events without which any happening would not have occurred.” Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex.1995). “Even if the injury would not have happened but for the defendant’s conduct, the connection between the defendant and the plaintiffs injuries may be too attenuated to constitute legal cause.” Hunt, 1999 WL 1201689, at *3 (citing Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995) (“At some point in the causal chain the defendant’s conduct may be too remotely connected with the plaintiffs injury to constitute legal causation,” a determination that “‘mandates weighing of policy considerations [citations omitted].’ ”)), abrogated on other grounds, Ford Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex.2007). “Foreseeability requires that the actor, as a person of ordinary intelligence, would have anticipated the danger that his ... act created for others.” City of Gladewater, 727 S.W.2d at 517, citing Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 549-50 (Tex.1985). “Foreseeability does not require the actor to anticipate the manner in which injury will occur.” Univ. Preparatory School v. Huitt, 941 S.W.2d 177, 180 (Tex.App.-Corpus Christi 1996, writ denied). “All that is required is that the injury be of such a general character as might reasonably have been anticipated, and the injury should be so situated with relation to the wrongful act that the injury to him or to one similarly situated might reasonably have been foreseen.” Id. “Proximate cause cannot be satisfied by mere conjecture, guess, or speculation.” IHS Cedars Treatment Center of DeSoto, Texas, Inc. v. Mason, 143 S.W.3d 794, 798-99 (Tex.2004); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). “There can be more than one proximate cause of an event.” Olson, 980 S.W.2d at 893; see also Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). Under Texas law a plaintiff does not need direct evidence to satisfy causation. Tompkins v. Cyr, 202 F.3d 770, 782 (5th Cir.2000). “Circumstantial evidence and reasonable inferences therefrom are a sufficient basis for a finding of causation.” Id., citing Texas Dept. of Transportation v. Olson, 980 S.W.2d 890, 893 (Tex.App.-Fort Worth 1998), citing Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 459 (Tex.1992). “Establishing causation requires facts sufficient for the fact-finder reasonably to infer that the defendants’ acts were a substantial factor in bringing about the injury.” Id., citing Purina Mills, Inc. v. Odell, 948 S.W.2d 927, 936 (Tex.App.-Texarkana 1997). Whether something constitutes a proximate cause of an event is a question “of fact particularly within the province of a jury.” Olson, 980 S.W.2d at 893; see also El Chico Corp. v. Poole, 732 S.W.2d 306, 314 (Tex.1987); Strakos v. Gehring, 360 S.W.2d 787, 792 (Tex.1962). It can be a question of law for the court where there is no material dispute about the evidence and the circumstances are such that reasonable minds could not come to a different conclusion. Hunt v. Killeen Imports, Inc., No. 03-99-00093-CV, 1999 WL 1201689, *3 (TexApp.-Austin Dec. 16, 1999, pet. denied), citing Missouri Pac. R.R. Co. v. American Statesman, 552 S.W.2d 99, 104 (Tex.1977). It may also be a question of law for the court when the relationship between the defendant’s acts or omissions and the plaintiffs injuries is attenuated or remote. Id., citing Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 (Tex.1991). Typically a conspiracy is proved by circumstantial evidence. Schlumberger, 435 S.W.2d at 858, citing Jernigan v. Wainer, 12 Tex. 189 (1854). “Circumstantial evidence may be used to establish any material fact, but it must constitute more than mere suspicion.” Transport, 898 S.W.2d at 278, citing Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 927-28 (Tex.1993) (“some suspicion linked to other suspicion produces only more suspicion, which is not the same as evidence.”); Schlumberger, 435 S.W.2d at 858 (“vital facts may not be proved by unreasonable inferences from other facts and circumstances”; any vital fact must be proved “by evidence amounting to something more than a mere scintilla”). Where the circumstantial evidence is meager, “if ‘circumstances are consistent with either of two facts and nothing shows that one is more probable than the other, neither fact can be inferred.’” Transport Ins., 898 S.W.2d at 278, quoting $56,700 in U.S. Currency v. State, 730 S.W.2d 659, 662 (Tex.1987). Circumstantial evidence can include acts by or statements of the alleged conspirators. International Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567, 581-82 (Tex.1963) (“The general rule is that conspiracy liability is sufficiently established by proof showing concert of action or other facts and circumstances from which the natural inference arises that the unlawful overt acts were committed in furtherance of common design, intention, or purpose of the alleged conspirators .....It is not required that each and every act of a conspirator be shown to have been in concert with the others or that it be established by direct evidence that all combined at a give time prior to each transaction. Inferences of concerted action may be drawn from joint participation in the transactions and from enjoyment of the fruits of the transactions.”). “Once a conspiracy is proven, each co-conspirator ‘is responsible for all acts done by any of the conspirators in furtherance of the unlawful combination.’ ” Carroll v. Timmers Chevrolet, 592 S.W.2d 922, 926 (Tex.1979) (quoting State v. Standard Oil Co., 130 Tex. 313, 329, 107 S.W.2d 550, 559 (1937)); Akin v. Dahl, 661 S.W.2d 917, 921 (Tex.1983). On the other side of the coin, “an alleged conspirator is not liable for an act not done in pursuance of the common purpose of the conspiracy.” Carroll, 592 S.W.2d at 928. A finding of civil conspiracy imposes joint and several liability on all conspirators for actual damages resulting from acts in furtherance of the conspiracy. Carroll, 592 S.W.2d at 925. “[C]ivil conspiracy ‘came to be used to extend liability in tort ... beyond the active wrongdoer to those who have merely planned, assisted, or encouraged his acts.’ Once a conspiracy is proven, each co-conspirator ‘is responsible for all acts done by any of the conspirators in furtherance of the unlawful combination.’ ” Id. at 925-26, quoting W. Prosser, Handbook of the Law of Torts § 46 at 293 (1971), and State v. Standard Oil Co., 130 Tex. 313, 107 S.W.2d 550, 559 (1937). B. Standard of Review Summary judgment under Federal Rule of Civil Procedure 56(c) is appropriate when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” A dispute of material fact is “genuine” if the evidence would allow a reasonable jury to find in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Initially the movant bears the burden of identifying those portions of the pleadings and discovery in the record that it finds demonstrate the absence of a genuine issue of material fact; the movant may, but is not required to, negate elements of the nonmovant’s case to prevail on summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Lujan v. National Wildlife Federation, 497 U.S. 871, 885, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir.1998). If the movant meets its burden and points out an absence of evidence to prove an essential element of the nonmovant’s case on which the nonmovant bears the burden of proof at trial, the nonmovant must then present competent summary judgment evidence to support the essential elements of its claim and to demonstrate that there is a genuine issue of material fact for trial. National Ass’n of Gov’t Employees v. City Pub. Serv. Board, 40 F.3d 698, 712 (5th Cir.1994). “[A] complete failure of proof concerning an essential element of the nonmoving party’s case renders all other facts immaterial.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548. “ ‘[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment ....’” State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir.1990), quoting Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Nor is the ‘mere scintilla of evidence’ sufficient; ‘there must be evidence on which the jury could reasonably find for the plaintiff.’ ” Id., quoting Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505. The Fifth Circuit requires the nonmovant to submit “ ‘significant probative evidence.’ ” Id., quoting In re Municipal Bond Reporting Antitrust Litig., 672 F.2d 436, 440 (5th Cir.1982), and citing Fischbach & Moore, Inc. v. Cajun Electric Power Co-op., 799 F.2d 194, 197 (5th Cir.1986). Conclusory allegations unsupported by evidence will not preclude summary judgment. National Ass’n of Gov’t Employees v. City Pub. Serv. Board, 40 F.3d at 713; Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir.1996). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th Cir.1999), citing Celotex, 477 U.S. at 322, 106 S.Ct. 2548, and Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505. The court must consider all evidence and draw all inferences from the factual record in the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); National Ass’n of Gov’t Employees v. City Pub. Serv. Board, 40 F.3d at 712-13. C. Defendant’s Summary Judgment Argument (# 99 and 100) Defendant contends that it is entitled to summary judgment as a matter of law because Plaintiffs cannot demonstrate proximate causation for their statutory fraud and conspiracy-to-commit-fraud claims. Defendant insists that Plaintiffs fail to present any evidence that JPMorgan Chase caused Plaintiffs’ losses, an essential element of these causes of action. See Mumphord v. First Victoria Nat’l Bank, 605 S.W.2d 701, 704 (Tex.Civ.App.-Corpus Christi 1980) (“There must be pleading and proof of a pecuniary loss suffered which is directly traceable to and which resulted from the false representation upon which the injured party relied.”); In re Enron Corp. Sec., Derivative & “ERISA” Litig., 310 F.Supp.2d 819, 831 (S.D.Tex.2004) (“ ‘Similar to loss causation, the proximate cause element of common law fraud requires that plaintiff adequately allege a causal connection between defendants’ nondisclosures and the subsequent decline in the value of [the] securities.’ ”), quoting Emergent Capital Investment Management, LLC v. Stonepath Group, Inc., 343 F.3d 189, 197 (2d Cir.2003). Defendant insists that Plaintiffs must demonstrate that Defendant’s wrongful conduct (either by engaging in a series of structured transactions that were purportedly improperly accounted for by Enron or by engaging in a series of transactions that deprived Enron of sufficient funds to remain afloat in 2001) caused the decline in Enron’s stock price, as well as Enron’s inability to repay its debt obligations. Defendant charges that despite intensive fact discovery, Plaintiffs have failed to do so. Furthermore, Defendant argues, when a plaintiffs alleged injury is complex, as here, lay testimony is insufficient; testimony is required to prove proximate causation. Praytor v. Ford Motor Co., 97 S.W.3d 237, 241 (Tex.App.-Houston [14th Dist.] 2002) (“To establish causation, a plaintiff must prove the defendant’s conduct caused an event and that event caused the plaintiff to suffer compensable damages. The causal link between the event sued upon and the plaintiffs injuries must be shown by competent evidence. Lay testimony will suffice when general experience and common sense will enable a lay person fairly to determine the causal nexus, [citations omitted]”). See also Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex.2006) (“Proof other than expert testimony will constitute some evidence of causation only when a layperson’s general experience and common understanding would enable the layperson to determine from the evidence, with reasonable probability, the causal relationship between the event and the condition. Expert testimony is required when an issue involves matters beyond jurors’ common understanding.”); Brown v. Rreef Management Co., No. 05-06000942-CV, 2007 WL 1829725, at *1 (Tex.App.-Dallas June 27, 2007) (“When a lay person’s general experience and common sense will not enable that person to determine causation, expert testimony is required.”). It is well established that injuries arising from securities fraud cases are complex. Nathenson v. Zonagen, Inc., 267 F.3d 400, 413 (5th Cir.2001); In re Elec. Data Sys. Carp. Sec. Litig., 226 F.R.D. 559, 571 (E.D.Tex.2005). To hold JPMorgan Chase liable, Defendant maintains that competent expert testimony is required to demonstrate that the loss in value of Plaintiffs’ Enron securities is directly attributable to JPMorgan Chase’s actions or transactions in this complex case, in which Plaintiffs “have alleged myriad misstatements by Enron and others as a result of scores of transactions and analyst reports, any one of which could have caused all or none of Plaintiffs’ losses.” # 100 at 16. They have failed to meet this requirement. Defendant highlights the district court opinion, following remand from the Fifth Circuit, in In re Zonagen, Inc. Sec. Litig., 322 F.Supp.2d 764 (S.D.Tex.2003). In Zonagen, the district court granted summary judgment for the defendants on federal securities claims because the record was “almost entirely devoid of any proof of loss causation.” Id. at 781. The court determined that although the plaintiffs provided expert testimony that generally spoke to the effect of a report on the company’s stock price, the expert did not address whether defendants’ particular misstatements had any effect on the stock. Id. In particular, the court found that the expert’s opinion was deficient for failure to “undertake an independent statistical analysis” to determine how the specific misstatements at issue affected the stock price when made or “to determine whether and how much any other event might have increased or decreased [the company’s] stock price.” Id. at 782. Thus the expert’s opinion “d[id] not constitute evidence of loss causation.” Id. Defendant contends that this is a complex case in which Plaintiffs have alleged numerous misstatements by Enron and others as a result of scores of transactions and analyst reports, any one of which could have caused all or none of Plaintiffs’ losses. Plaintiffs’ claim depends on demonstrating the loss in value of Plaintiffs’ Enron securities that is directly attributable to Defendant. Pointing to the transcript of Plaintiffs’ expert Dr. Kenneth McCoin’s testimony, Defendant further observes that Dr. McCoin, did not opine on causation; indeed when specifically asked whether he had analyzed causation or otherwise determined who or even whether anyone was responsible for Plaintiffs’ losses, Dr. McCoin unambiguously responded in the negative. # 100 at 16-17. Defendant contends that to avoid summary judgment, Plaintiffs must, but have failed to, demonstrate through fact witnesses, documents, or expert witnesses, that, among the myriad other factors that in any way caused Enron to collapse into bankruptcy, Defendant’s alleged wrongdoing (engaging in a series of structured finance transactions that purportedly were improperly accounted for by Enron or engaging in a series of transactions that deprived Enron of enough funds to remain operative in late 2001) directly caused the decline in Enron’s stock price and Enron’s inability to repay its debt obligations. For all these reasons Defendant requests the Court to grant its motion for summary judgment on Plaintiffs’ statutory fraud and conspiracy to defraud claims against JPMorgan Chase. D. Plaintiffs’ Response (# 105) Plaintiffs reject as “flawed” Defendant’s argument that Plaintiffs must prove that JPMorgan Chase’s structured finance transactions, which allegedly were improperly accounted for by Enron, or transactions that deprived Enron of sufficient funds to remain operating in late 2001 caused the price of Enron’s stock to decline, rendered Enron unable to repay its debt obligations, and resulted in Enron’s collapse. Plaintiffs also disagree with JPMorgan Chase’s contention that Plaintiffs need a causation expert to prove their claims. They insist that while “parts” of Defendant’s “causation theory are arguably relevant to a federal securities section 10(b) claim or a common law simple fraud claim, the theory is wholly inapplicable to their Texas causes of action, and thus not material, to Plaintiffs’ live causes of action.” # 105 at 3. In sum, they contend that Defendant fails to make a legal argument that would support summary judgment. Because Plaintiffs are alleging that Defendant is a secondary violator under section 27.01(d) and that Enron is a co-conspirator in a common-law conspiracy, Plaintiffs maintain that they need only demonstrate that their losses were caused by Enron’s actionable false representations, and not by Defendant’s transactions or misrepresentations. See Mumphord, 605 S.W.2d at 704 (plaintiffs must plead and prove “a pecuniary loss suffered ... which resulted from the false representations upon which the injured party relied”). Plaintiffs have clearly alleged that they relied on misrepresentations by Enron and by rating agencies that were also duped by Enron, both of which are actionable when Enron is a co-conspirator or when Defendant committed a secondary violation of the fraud statute, section 27.01(d), premised on Defendant’s wrongful silence. Plaintiffs’ conspiracy-to-commit-fraud claim does not depend on JPMorgan Chase’s misrepresentations to Plaintiffs. The correct analysis is whether Plaintiffs’ losses are attributable to actionable false statements (or fraudulent nondisclosure) by any co-conspirator. Plaintiffs insist that they only need to show that the damages were the proximate result of the conspiracy’s conduct, and not that Defendant’s transactions and/or misrepresentations directly caused Enron’s collapse. Potash Corp. of Saskatchewan, Inc. v. Mancias, 942 S.W.2d 61, 65 (Tex.App.-Corpus Christi 1997, no writ) (to demonstrate causation, a plaintiff “must show that his damages were proximately caused by a conspiracy to commit unlawful acts in order to accomplish a particular object.”), citing Juhl v. Airington, 936 S.W.2d 640, 644-45 (Tex.1996). “Once a civil conspiracy is found, each co-conspirator is responsible for the action of any of the co-conspirators which is in furtherance of the unlawful combination.” Akin v. Dahl, 661 S.W.2d 917, 921-22 (Tex.1983) (citing Carroll v. Timmers Chev., Inc., 592 S.W.2d 922, 926 (Tex.1979)). Thus because Defendant participated in the conspiracy, Defendant is liable for Enron’s acts, made in furtherance of a plan to falsify Enron financial statements. Bentley v. Bunton, 94 S.W.3d 561, 619 (Tex.2002) (“A person who joins in a conspiracy is jointly and severally hable ‘for all acts done by any of the conspirators in furtherance of the unlawful combination.’ .... All the plaintiff must show for the alleged conspirators to be held jointly and severally liable is that they ‘acted in pursuance of the common purpose of the conspiracy.’ ”), citing Carroll, 592 S.W.2d at 926, 928. See Bentley, 94 S.W.3d at 619 (“[O]ur jurisprudence does not require the trial court to separately submit each co-eonspirators’s civil conspiracy damages. When the jury found that liability for a civil conspiracy existed, this finding requires the legal conclusion to impose joint and several liability on the co-conspirators.”). The Texas Supreme Court further stated, “Thus if a conspiracy is proven, it can extend liability in tort beyond the active wrongdoer to those conspirators who may have merely planned, assisted, or encouraged the wrongdoer’s acts.” Bentley, 94 S.W.3d at 619, citing Carroll, 592 S.W.2d at 926. They conclude that JPMorgan Chase is responsible for Enron’s acts in furtherance of Enron and Defendant’s agreement to falsify Enron’s financial statements; a co-conspirator does not have to participate in every fraudulent act to be liable for the damages caused by the conspiracy. Plaintiffs charge that Defendant seeks summary judgment on an incorrect construction of the law of conspiracy. Plaintiffs also insist that Section 27.01(d) liability does not depend on Defendant’s transactions or misrepresentations to Plaintiffs. Plaintiffs do not need to show that Defendant’s bad acts caused Enron’s collapse. Plaintiffs need only first demonstrate that Enron committed a primary violation of section 27.01, and then show Defendant’s secondary violation under section 27.01(d). Defendant has not challenged any element of Enron’s alleged primary violation. Defendant’s only conduct relevant to the section 27.01(d) claim is Defendant’s wrongful silence regarding its actual awareness of Enron’s fraudulent statements; evidence of Defendant’s transactions and misrepresentations are not material to the statutory claim. With respect to a causation expert, Plaintiffs claim that Defendant fails to cite applicable law for the need for one where, as here, Plaintiffs injuries, i.e., monetary losses, are not complicated. Plaintiffs are not addressing complicated accounting issues. Furthermore they charge that Defendant ignores opinions of three of Plaintiffs’ experts that raise genuine issues of a material fact about the causes of Plaintiffs’ damages. # 105, Exhibits A-F. Instead Defendant relies on a number of federal securities class actions based on the “fraud-on-the-market” presumption of reliance for a section 10(b) claim, a theory that has never been adopted under Texas law, emphasize Plaintiffs. Plaintiffs further note that while a fraud-on-the-market theory frequently requires statistical evidence from an expert, such as an event study, Plaintiffs do not base their claims on such a theory of reliance. This Court has found no Texas cases that require the type and degree of evidence now mandated by the Fifth Circuit in federal securities actions to establish a presumption of reliance under a fraud on the market theory. See, e.g., Greenberg v. Crossroads Systems, Inc., 364 F.3d 657 (5th Cir.2004); Oscar Private Equity Investments v. Allegiance Telecom, Inc., 487 F.3d 261 (5th Cir.2007). Thus Plaintiffs conclude that federal decisions dealing with that fraud-on-the-market theory do not support Defendant’s contention that Plaintiffs need a causation expert. Plaintiffs insist, “No expert is required to explain that, if a company cooks its books to greatly inflate the value of its securities, a foreseeable result is a dramatic decline in the value of these securities, causing harm to the plaintiff, when the truth comes out.” # 105 at 14. See, e.g., Hamburger v. State Farm Mutual Auto. Ins., 361 F.3d 875, 884 (5th Cir.2004) (“Under Texas law, ‘[l]ay testimony is adequate to prove causation in those cases in which general experience and common sense will enable a layman to determine, with reasonable probability, the causal relationship between the event and the condition.’ ... ‘Generally, lay testimony establishing a sequence of events which provides a strong, logically traceable connection between the event and the condition is sufficient proof of causation.’ ... Therefore in determining whether lay testimony is sufficient to prove causation, Texas courts look at the nature of the lay testimony and the nature of the injury.”), quoting Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984); Qualls v. State Farm Lloyds, 226 F.R.D. 551, 555 (N.D.Tex.2005) (“In determining whether expert testimony is necessary to establish negligence, Texas courts have considered whether the conduct at issue involves the use of specialized equipment and techniques unfamiliar to the ordinary person.”). Regardless Plaintiffs insist their three experts, one in accounting (Paul Regan) and two in investment banking (William Purcell and Professor Anthony Saunders), addressed the elements of proximate cause, submitted expert reports, participated in depositions, and opined that Plaintiffs’ losses were foreseeable and that Defendant’s conduct was a substantial factor in bringing about Plaintiffs’ injury in fact. See exhibits A-F attached to # 105. They cite specific parts of the exhibits in support. E. Defendant’s Reply (# 109) Defendant contends that Plaintiffs have misrepresented Defendant’s argument, which is not that Plaintiffs must prove that Defendant’s transactions caused Enron’s collapse, but rather that Plaintiffs’ claims must be dismissed because they have not shown that their losses were caused by Defendant’s purported fraudulent transactions with Enron. While this causation standard might encompass misstatements or omissions by Enron as well as by Defendant, it does not encompass misstatements by Enron about transactions or activities that have no connection to JPMorgan Chase; “JPMorgan Chase cannot be held liable for Enron’s myriad business failures, of which it had no connection or no knowledge, or for Enron’s purportedly fraudulent transactions with other entities, which again, it had absolutely nothing to do with.” # 109 at 1. Defendant insists that “under the correct legal standard, Plaintiffs must at minimum show that the misstatements or omissions made either by JPMorgan Chase or by Enron in connection with JPMorgan Chase’s transactions proximately caused their losses.” Id. at 3. Defendant notes that Plaintiffs do not dispute that proximate causation is an element of their remaining two claims, but instead contend that they need only show Enron’s alleged misstatements caused their losses. Under Texas law of conspiracy, a defendant is not liable if it lacks knowledge of the alleged harmful acts that are the aim of the conspiracy. Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d at 614 (“Civil conspiracy requires specific intent. One cannot agree, expressly or tacitly, to commit a wrong about which he has no knowledge. One without knowledge of a conspiratorial plan or scheme to injure another by the commission of a particular wrong cannot share the intent to injure such other, [citations omitted]”). “An alleged conspirator is not liable for an act not done in pursuance of the common purpose of the conspiracy.” Carroll, 592 S.W.2d 922, 928. See also Great Nat’l Life Ins. Co. v. Chapa, 377 S.W.2d 632, 635 (Tex.1964) (“[A]n act done or a declaration made by one conspirator not in pursuance of the common object is not evidence against his co-conspirators.”). Texas case law does not hold a defendant liable for losses caused by events unrelated to the conduct plaintiffs allege the defendant to have participated in or of which it had no knowledge. Thus Defendant argues that JPMorgan Chase cannot be held responsible for such matters as the failure of Enron’s broadband business or losses is connection with Enron’s investment in the Dabhol power plant in India or for Enron’s alleged fraudulent accounting of transactions with other banks. Plaintiffs charge that Enron and JPMorgan Chase engaged in a conspiracy by entering into a specific and identified series of fraudulent transactions, but Plaintiffs have made no showing that these specific transactions, as opposed to Enron’s transactions with other entities, caused Plaintiffs’ losses. Plaintiffs’ conclusory allegations that their losses were caused by Enron’s incorrect accounting for JPMorgan Chase transactions or that they were induced to purchase Enron securities on the basis of such accounting are inadequate; they must demonstrate with competent evidence a causal connection between Enron’s allegedly improper accounting for JPMorgan Chase’s transactions and the subsequent decline in the value of their securities. Hayden v. Dunlap, 84 S.W.2d 306, 310 (Tex.Civ.App.1935) (Plaintiff must establish “not only the fraudulent representations ... as pleaded, but also the causal connection between such representations and the damages sustained.”); In re Enron Corp. Sec., Deriv. & “ERISA” Litig., 310 F.Supp.2d 819, 831 (S.D.Tex.2004) (“ ‘Similar to loss causation, the proximate cause element of common law fraud requires that plaintiff adequately allege a causal connection between the defendants’ nondisclosures and the subsequent decline in the value of ... [the] securities.’ ”). Similarly, a defendant can only be liable for a violation of section 27. 01(d) if it “ha[d]actual awareness of the falsity of [the] representation or promise”; this knowledge requirement limits JPMorgan Chase’s liability to misrepresentations made by Enron in connection with transactions involving JPMorgan Chase. Like the proximate causation requirement for conspiracy, this provision forecloses liability under section 27.01(d) for conduct unrelated and unknown to Defendant. Defendant asserts that Plaintiff offers no evidence of causation with respect to either of the remaining two claims. None of the numerous lines of expert testimony cited by Plaintiffs show any causal connection between Enron’s accounting for JPMorgan Chase’s transactions and the decline in value of Plaintiffs’ Enron securities. At best the expert testimony touches only upon foreseeability; nothing relates to cause in fact. Saunders, Purcell, and Regan do not analyze whether Plaintiffs’ losses were in fact caused by Enron’s allegedly incorrect accounting for its transactions with Defendant. Defendant notes that even if the Court should find that expert evidence is not required here, summary judgment is still appropriate because the factual record is equally deficient in establishing proximate causation. # 109 at 9 n. 4. Expert evidence is needed here, insists Defendant, because the reasons behind Enron’s collapse and eventual bankruptcy are complicated and beyond the ken of the average juror. Observing that to make a determination about causation here, a jury would have to decide whether investors’ losses in fact were caused by Enron’s accounting for JPMorgan Chase’s transactions, for other entities’ transactions with Enron, for losses sustained as part of Enron’s many business failures, or none of these. Defendant does not argue that Plaintiffs have to have a separate causation expert, but only some expert testimony supporting Plaintiffs’ insistence that Enron’s accounting for JPMorgan Chase’s transactions caused their losses. Defendant maintains that case law rejects Plaintiffs’ argument that this case is not complex because it involves monetary damages. See, e.g., Board of Trustees of Fire & Police Retiree Health Fund v. Towers, Perrin, Forster & Crosby, 191 S.W.3d 185, 190 (Tex.App.-San Antonio 2005) (“In an accountant malpractice case, ‘[ejxpert testimony is usually necessary to establish ... the causal link between the plaintiffs damages and the accountant’s negligence.’ ”); Greenstein, Logan & Co. v. Burgess Marketing, Inc., 744 S.W.2d 170, 185 (Tex.App.-Waco 1987) (“Expert testimony is usually necessary to establish the requisite standard of care and skill, a departure from that standard, and the causal link between the plaintiffs damages and the accountant’s negligence.”). Defendant emphasizes that the issue of causation is critical here since the Plaintiffs have separately in other suits sought to hold multiple parties responsible for their losses, i.e., a myriad of potential causes of Plaintiffs’ losses. Byrd v. Delasancha, 195 S.W.3d 834, 838-39 (Tex.App.-Dallas 2006) (distinguishing cases requiring expert testimony as to proximate causation because they involved “multiple causes” of plaintiffs injuries such that a lay person’s “general experience and common sense” were inadequate to determine causation), citing Morgan v. Compugraphic Corp., 675 S.W.2d 729, 734 (Tex.1984). F. Plaintiffs’ Surresponse (# 112) Plaintiffs object that JPMorgan Chase’s theory, based on elements of common law simple fraud or federal securities fraud, does not apply to Plaintiffs’ eonspiracy-todefraud claim or to their secondary violation statutory fraud claim. In suggesting there were other causes of Enron’s claim, Defendant misses the crux of Plaintiffs’ causes of action, i.e., that Enron’s business failures were precisely the financial disasters that the conspiracy successfully sought to conceal. Defendant, as Movant, has the initial burden to identify a valid legal theory for summary judgment, but, argue Plaintiffs, the one it proposes is contrary to controlling law; therefore Defendant’s motion must be denied as a matter of law. Plaintiffs maintain that Defendant mischaracterizes the law, in particular in its assertions (1) that to prove their conspiracy claims, Plaintiffs must show losses that were caused by Enron’s improper accounting for JPMorgan Chase’s transactions with Enron, and (2) that section 27.01 (d)’s knowledge requirement limits Defendant’s liability to misrepresentations made by Enron involving Defendant only. Defendant cites no statutory or decisional law to support its view. To the contrary, Plaintiffs maintain that the governing conspiracy decisional law imposes joint and several liability on all co-conspirators, while the section 27.01 imposes the same liability on the secondary violator as it imposes on the primary violator. Plaintiffs insist they therefore are not required to show that Defendant’s transactions, by themselves, caused Plaintiffs’ damages — such a requirement would nullify Texas’ long established common law of conspiracy and eliminate secondary liability under the fraud statute. Plaintiffs contend that under Texas conspiracy law once two or more parties have a meeting of the minds and agree upon a course of conduct or aim that is contrary to the law, all acts in furtherance of the conspiracy create liability for all conspirators. Holloway v. Int’l Bankers Life Ins. Co., 354 S.W.2d 198, 216 (Tex.Civ.App.-Fort Worth 1962), rev’d on other grounds, 368 S.W.2d 567 (Tex.1963). The gist of a civil conspiracy is “the damage resulting from the commission of a wrong which injures another, and not the conspiracy itself.” Schlumberger Well Surveying Corp., 435 S.W.2d at 856. Defendant’s role in causation was in agreeing to pursue and in participating in acts in furtherance of the scheme to help Enron cook its books and file falsified financial statements with the SEC. All of Enron’s conduct in furtherance of this goal, not just its transactions with JPMorgan Chase, results in liability for co-conspirator JPMorgan Chase. As the Texas Supreme Court stated in Bentley, 94 S.W.3d at 619, “All the plaintiff must show for the alleged conspirators to be held jointly and severally liable is that they acted in pursuance of the common purpose of the conspiracy.” See also Viera v. State, 156 Tex.Crim. 631, 245 S.W.2d 257, 259 (1951) (“Everyone who does enter into a common purpose or design is generally deemed in law a party to every act which has before been done by others, and to every act which many afterwards be done by any of the others, in furtherance of such common design” [citation omitted].); U.S. v. Capo, 791 F.2d 1054, 1066 (2d Cir.1986) (a co-conspirator “may participate in a conspiracy without knowing the identities of all other co-conspirators”), vacated on other grounds, 817 F.2d 947 (2d Cir.1987); U.S. v. Spudic, 795 F.2d 1334, 1337 (7th Cir.1986) (“A co-conspirator need not be, and often is not, aware of everything being done to further the conspiracy.”); Carrion v. State, 802 S.W.2d 83, 91 (Tex.App.-Austin 1990, no writ) (a co-conspirator “may enter into a conspiracy after its formation and while it is in progress and participate in the common design and be responsible for acts done in furtherance of the conspiracy.”). As for the statutory fraud claim Plaintiffs argue that Defendant’s silence (despite its knowledge, duty to disclose, failure to disclose, and benefit from nondisclosure) created liability under the express language of section 27.01(d). They insist they are not required to show Defendant’s misstatements, only its silence. Because defendant is liable under section 27.01(d) only as a secondary actor involved in transactions that purportedly helped Enron to falsify its financial statements, only Enron’s false misrepresentations (which Defendant does not challenge) are at issue. In re Enron Corp. Litig. (American Nat’l Ins. v. J.P. Morgan Chase & Co.), 388 F.Supp.2d 780, 788 (S.D.Tex.2005) (“In addition to imposing liability on a person making misrepresentations, section 27.01 also contains a provision imposing liability for actual and exemplary damages on a person who knows of another’s misrepresentation, fails to disclose the falsity to the defrauded person, and benefits from the misrepresentation.”). Thus Defendant’s argument that section 27.01(d)’s knowledge requirement limits Defendant’s liability to misrepresentations made by Enron involving Defendant is contrary to well-established law. For causation, Plaintiffs re-urge that the same evidence (including emails, memoranda, transcripts of telephone communications, deposition testimony, and various other documents), which Defendant identifies and discusses (# 112 at 9-22, with attached exhibits), for both the “meeting of the minds” element of their conspiracy-to-defraud claims and for the element of Defendant’s “actual knowledge” of Enron’s falsification of financial statements for their section 27.01(d) claims. # 112 at 9-30 and attached exhibits. Not only do Plaintiffs present factual evidence to defeat summary judgment, but they further assert that Defendant’s arguments about expert testimony lack merit. Plaintiffs’ experts analyzed and explained in ways a jury could understand the complex accounting methods and structured finance information used by Enron and Defendant that permitted Enron to report false financial results. Response, Exhibits A-F. Without further expert evidence, a jury could easily conclude that purchasers of Enron securities, who bought at artificially inflated prices, would face losses when the truth came out. Given correct interpretation of the law of civil conspiracy and statutory fraud, Plaintiffs’ experts did not need to examine Enron’s various business failures to determine which of Enron’s business problems caused Enron’ s collapse because they are irrelevant. Regarding Bankruptcy Examiner Neal Batson’s reports, Plaintiffs points out that In re FiberMark is the only decision addressing whether such reports are admissible as expert opinion over a hearsay objection. They maintain that the Fiber-Mark court ruled that bankruptcy examiner reports are admissible. 339 B.R. 321, 327 (Bkrtcy.D.Vt.2006). Batson’s reports extensively examined Defendant’s participation in Enron’s fraud, including the prepay transactions, and Plaintiffs insist that they raise fact issues relevant to Plaintiffs’ claims, including causation. Exhibit 60 to #112 is Appendix E to the Third Interim Report addressing JPMorgan Chase’s transactions (“the Bat-son Report”). Batson concluded that Defendant was aware that the prepays were the equivalent of debt and that other users of the financial statements would be unable to see through Enron’s accounting treatment the impact of the Mahonia transactions, which Batson determined had a material effect on Enron’s financial statements. Batson provided documentary and expert evidence to support his opinions: Plaintiffs cite, in addition to Bat-son’s Report, Exhibits 27; 28; A at 31, 32, 34, and 107; Exhibits 7; 18; Exhibit B at 847-48, 820-21; Exhibit C at 80; Exhibit F at 86-88, 101-02, 121-22; Exhibit D at 177-89, 344-59, 278-83, 303-07, 337, and 344; Exhibit E at 71-72; and pages in Batson’s report. Plaintiffs’ expert Paul Regan agreed with Batson that there were fact issues as to whether Defendant knowingly aided Enron in understating its debt, inflating Enron stock prices, and misrepresenting financial information. # 105 at 19 and Exs. E and F. G. Defendant’s Surreply (# 113) Defendant insists that the answer to the single issue here, i.e., whether there is evidence raising a triable issue of fact as to whether JPMorgan Chase proximately caused Plaintiffs’ loss, is “No.” Defendant maintains that Plaintiffs have presented no evidence showing that the alleged conspiracy, i.e., the transactions that JPMorgan Chase engaged in with Enron, was the proximate cause of Plaintiffs’ losses. Plaintiffs have only shown that JPMorgan Chase had knowledge of and participated in certain prepay and other transactions with Enron. None of Plaintiffs’ experts have opined whether Plaintiffs’ losses were proximately caused by Enron’s accounting for JPMorgan Chase’s transactions; they only opine about accounting and structured finance and the nature and purpose of the disputed transactions. Defendant further insists that Examiner Batson’s opinions about those transactions are not admissible, and even if they were, they do not address whether Defendant’s transactions with Enron caused Plaintiffs’ losses. Defendant argues that Plaintiffs provide hundreds of pages detailing JPMorgan Chase’s transactions with Enron that in no way relate to causation, but only to other elements of Plaintiffs’ causes of action such as a “meeting of the minds,” a “duty to disclose,” etc. Defendant reiterates that under Texas law it is not liable for any loss in the value of Plaintiffs’ Enron securities, but only for conspiracy and statutory fraud that Defendant, itself, purportedly participated in, i.e., the prepay and other transactions that it engaged in with Enron, and not for separate conspiracies that Enron may otherwise have engaged in and which JPMorgan Chase knew nothing about and not for Enron’s alleged misstatements unrelated to JPMorgan Chase’s transactions. According to JPMorgan Chase, Plaintiffs erroneously argue that if a party is shown to be a member of one conspiracy, it has also been shown to be a member of all conspiracies involving Enron. There was clearly no meeting of the minds or agreed upon course of conduct with regard to any other transactions or business activities with other financial institutions. Defendant insists that Texas law limits the scope of Plaintiffs’ conspiracy claim to only those alleged misstatements of which JPMorgan Chase was aware. Riquelme Valdes v. Leisure Res. Group, Inc., 810 F.2d 1345, 1350-51 (5th Cir.1987) (for civil conspiracy “[t]he evidence must ‘clearly establish the singular intent to defraud by each party, the common knowledge by all parties that each has such intent .... ’ ”), citing Guynn v. Corpus Christi Bank & Trust, 589 S.W.2d 764, 771 (Tex.Civ.App.-Corpus Christi 1979, writ dismissed). Moreover, rather than facilitate Enron’s demise, Defendant contends that its prepay transactions provided Enron with much-needed cash in the latter half of 2001. Furthermore the prepay transactions were reported in press reports critical of Enron’s accounting only after Enron filed for bankruptcy; therefore the decline in Enron’s securities prices could not have been caused by a curative disclosure relating to these transactions. Second, Defendant objects to the vast scope of the alleged scheme, which would encompass any conceivable misstatement by Enron, even in connection with failed businesses and transactions that have nothing to do with JPMorgan Chase. Defendant contends that Texas statutory and common law bar Plaintiffs from bringing claims based on purported misstatements or acts by Enron or other third parties of which JPMorgan C