Full opinion text
MEMORANDUM OPINION AND ORDER (Public Version) JAMES O. BROWNING, District Judge. THIS MATTER comes before the Court on: (i) the Director Defendants’ Motion to Dismiss Second Amended Complaint, filed February 5, 2009 (Doc. 142)(“Directors’ Motion”); (ii) Defendants Westland’s and SunCal’s Motion to Dismiss and Joinder in the Director Defendants’ Motion to Dismiss, filed February 5, 2009 (Doc. 143) (“Westland and SunCal Motion”); and (iii) The D.E. Shaw Defendants’ Motion to Dismiss Plaintiffs Second Amended Complaint, file February 26, 2009 (Doc. 152) (“D.E. Shaw’s Motion”). The Court held a hearing on April 3, 2009. In an earlier opinion, the Court dismissed a number of allegations in this case, some with leave to amend and some without, and upheld the sufficiency of the remaining allegations. See Lane v. Page, 581 F.Supp.2d 1094, 1132 (D.N.M.2008). Since then, Lead Plaintiff Lawrence Lane has amended his Complaint to add new allegations and has also added new Defendants to this action. The primary issues here are: (i) whether the Court should allow the new allegations which the Court has not given leave to amend; (ii) whether Lane has sufficiently pled the alleged damages of former shareholders; (iii) whether various allegations in the latest Complaint are material or otherwise actionable under § 14(a) of the Securities Exchange Act of 1934 (“Exchange Act”), 15 U.S.C. § 78n(a) (“§ 14(a)”); whether the statute of limitations bars the claims against the D.E. Shaw Defendants ; and (v) whether the claim against the D.E. Shaw Defendants under § 20(a) of the Exchange Act, 15 U.S.C. § 78t(a) (“§ 20(a)”), is adequately pled. The Court concludes that Lane’s new allegations on topics which the Court dismissed without express leave to amend are properly before the Court. Because a plaintiff must adequately plead economic loss, however, and because Lane’s allegations in this respect are conclusory, the Court will dismiss the Complaint. This deficiency, however, may be relatively technical, so the Court will give Lane ten days to seek leave to amend. While the Court does not prejudge whether such amendment will be allowed, because there appears to be a likelihood that amendment would be proper and because the various other issues have already been briefed and argued, the Court will also address the remaining issues, and these rulings will apply if the Court allows Lane to amend his Complaint and revive his action. Most of Lane’s amendments are insufficient to cure the deficiencies the Court has previously identified, but two sets of allegations have been sufficiently supplemented to support a claim: (i) the allegations regarding proxy solicitors; and (ii) the allegations regarding the fairness statement. Additionally, the Court will not reverse its holding on those allegations that the Defendants again challenge, but which the Court has already found sufficient. The Court also finds that the allegations about D.E. Shaw’s role in the merger not being disclosed can support a claim. Finally, with respect to the § 20(a) claim against the D.E. Shaw Defendants, the Court cannot, at this time, rule as a matter of law that the statute of limitations has run on the claim, and the Court finds that Lane’s allegations will support a claim for control-person liability. FACTUAL BACKGROUND This case concerns a dispute over the merger of Defendant Westland Development Co., Inc. and Defendant SunCal Companies Group. Much of the background of this case and of the claims that Lane is bringing are laid out in detail in the Court’s earlier opinion. See Lane v. Page, 581 F.Supp.2d at 1099-1104. The Court will not reiterate the history of the merger. Many new allegations have been included in the latest Complaint, however, and the Court will describe those new allegations and their relationship to the earlier allegations. Because this is a motion to dismiss, Lane’s allegations are assumed to be true, and the Court will therefore describe the facts as if the allegations were true. 1. Conñicts of Interest. Lane alleges that the proxy statement circulated as part of the vote on the merger with SunCal (“Proxy”) failed to adequately disclose conflicts of interests for various Westland directors. These allegations fall into two categories. First, Lane alleges that the Proxy does not disclose that Defendants Barbara Page, Westland’s president, chief executive officer, and chief financial officer and Sosimo Padilla, West-land’s chairman and executive vice president, had employment agreements that were sweetened to gain their support for the merger. Second, Lane alleges that the Proxy did not properly disclose that several directors were promised lifelong trusteeships in the Atrisco Heritage Foundation or directorships in Atrisco Oil & Gas LLC (“Atrisco LLC”). a. Employment Agreements. According to the Proxy, Page was “employed as Westland’s president and chief executive officer under a renewable six year employment agreement” that also provided for seven times her annual salary as a severance payment for involuntary termination. Exhibit A to Second Amended Complaint, SEC Schedule 14A Definitive Proxy for Westland Development Co., Inc. at 30 (issued September 20, 2006)(Doc. 145-2)(“Proxy”). The Proxy also stated that Padilla, Westland’s chairman and executive vice president, had a consulting agreement with similar severance terms. See id. In his earlier Complaint, Lane alleged that the Proxy misrepresented or omitted information regarding these agreements, which Lane contends had “been secretly modified to secure [Page’s and Padilla’s] support for the merger.” Lane v. Page, 581 F.Supp.2d at 1102 (citing Amended Complaint for Violation of §§ 14(a) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 14a-9 ¶¶ 39-40, at 15, filed September 17, 2007 (Doc. 50) (“FAC”)). Lane has made new allegations in support of his contention that the Proxy inadequately disclosed Page’s and Padilla’s possible conflicts of interest. First, Securities and Exchange Commission (“SEC”) rules require accurate disclosure of Page’s and Padilla’s interests. See Second Amended Complaint for Violation of § § 14(a) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 14a-9, ¶40, at 20, filed February 9, 2009 (Doc. 145) (“SAC”) (citing 17 C.F.R. § 240.14a-101, Item 5(a)(1)). Second, during a May 2006 meeting, Westland’s board “discussed additional items they needed to be included in SunCal’s offer in order for it to be considered superior, which specifically included defendants Page and Padilla’s employment agreements.” SAC ¶ 40(a), at 20. Third, Page’s and Padilla’s contracts did not originally contain the terms disclosed in the Proxy. Rather, the agreements “were modified to provide additional terms after Page voted against” the Sun-Cal merger and after Padilla expressed concerns to the board about “numerous problems” with the SunCal merger. Id. ¶ 40(b), at 20 (emphasis in original, internal quotation marks omitted). These new terms were added to Page’s and Padilla’s agreements “as an inducement to obtain their endorsement” of the merger. Id. b. Trusteeships and Directorships. The Proxy reveals that Westland directors could receive positions in either the Atrisco Heritage Foundation or Atrisco LLC. Westland’s existing board was given the power to appoint trustees to the Atrisco Heritage Foundation, and the Proxy opined that it was likely that “one or more” Westland directors would become a trustee. Proxy at 31. Additionally, Atrisco LLC’s directors were to be drawn from Westland’s directors, although the Proxy said that particular directors have not yet been chosen. See id. The First Amended Complaint asserted “that the Proxy failed to disclose that ‘at least four Westland directors were promised lifelong trusteeships’ at the Foundation or on the board of Atrisco LLC, and that instead of receiving ‘customary fees’ for their service, they were going to receive outsized ‘lucrative annual retainers.’ ” Lane v. Page, 581 F.Supp.2d at 1102 (quoting FAC ¶42, at 16). Lane has two new allegations regarding the directorships and trusteeships. Lane alleges: According to internal correspondence, the D.E. Shaw Group and SunCal used these lifetime directorships in Atrisco LLC to their advantage and to the detriment of Westland shareholders. In fact, the D.E. Shaw Group and SunCal offered to increase their contribution to Atrisco LLC by $200,000 to ensure the allegiance of these four directors: “The four young Board members have an interest in running the [Atrisco] LLC and if we go to them and tell them that we think they need more money to run it for the first couple of years we may get some real mileage out of that.” This inducement was not disclosed in the Proxy Statement. SAC ¶ 42(a), at 21. Only after the Proxy was mailed and “70% of the votes were cast” were the Atrisco LLC directors disclosed to Westland shareholders. Id. ¶ 42(b), at 21. Nine days after the Proxy was distributed and five weeks before the shareholder vote, however, a Form 10-SB was filed with the SEC on behalf of Atrisco LLC identifying the Westland directors chosen for Atrisco LLC. See SAC ¶ 42(b), at 21. This supplement was not filed under Westland’s name, although between September 20 and November 6, 2006, the Defendants filed supplemental proxy materials in Westland’s name. See id. 2. Market-Check Process. Seven pages of the Proxy are devoted to describing what the Proxy calls the market-check process. Another three pages detail the first contemplated merger with ANM Holdings, Inc. The market-check process began following the execution of the merger agreement between Westland and ANM. As the Proxy describes the process, it consisted largely of Westland entertaining a series of competing offers to acquire the company. See Proxy at 19-26. The Proxy opined that “Westland’s board of directors had every reason to believe that the post-signing market check would be effective in maximizing shareholder value by finding the best acquisition proposal for Westland.” Id. at 27. In his First Amended Complaint, Lane alleges that “Westland never actively solicited prospective bidders to secure the best value for the company.” Lane v. Page, 581 F.Supp.2d at 1102 (citing FAC ¶ 46, at 19). Several new allegations regarding the market check and the background of the merger are contained in the most recent Complaint. The “Background of the Merger” section of the Proxy describes board members raising concerns over the Westland-ANM merger, but the board minutes from the time do not reflect such concerns. SAC ¶ 46(a), at 24-25. According to Lane, this fact establishes that either the minutes were falsified or that the Proxy is false. See id. ' D.E. Shaw Group and SunCal were aware of the lack of an effective process, observing that the “sales ‘process has been mis-managed by a very unsophisticated board.’ ” SAC ¶ 46(b), at 25. Westland’s board did not attempt to value the company’s assets or hire an appraiser. See id. ¶ 46(c), at 25. Board member and Defendant Ray Mares, Jr. admitted to not having much discussion about the possible ANM merger, and Defendant Randolph Sanchez, who worried about losing potentially valuable water and mineral rights, suggested hiring a financial advisor to solicit bids, but the proposal was dropped because a similar attempt was unsuccessful in the 1980’s. See id. ¶ 46(d), (e) & (g), at 25-26. Westland’s in-house counsel, Thad Turk, stated that he would not sell Westland “due to the Company’s 300-year history.” Id. ¶ 46(f), at 25. Five directors wanted to sell at a higher price, while Page and Padilla felt that Westland should sell, but wanted to wait to see if more offers came in. See id. ¶ 46(h)-(i), at 26. “As late as January 24, 2006, defendant Benavidez still had ‘serious concerns with several issues in the amended merger agreement’ with ANM and defendant Sanchez was ‘still concerned about potential gas and oil reserves.’ ” Id. ¶ 46(j). When the process reached the merger agreement with SunCal, Page voted against the agreement. See id. ¶ 45(k). 3. Valuation of Westland Stock. Two different valuations of Westland stock are disclosed in the Proxy. The first opinion, from 2001, valued Westland at about $87.00 per share, see Proxy at 16, while the second opinion, from 2005, valued Westland at about $180.00 per share, see id. at 27. Both opinions came from the firm CBIZ Valuation Group. Initially, Lane alleged that two undisclosed facts undermined the reliability of these valuations and thus ultimately rendered false and misleading the Proxy’s declaration that a price of $815.00 per share was fair: (i) that the 2001 opinion originally valued Westland at $249.00 per share, before being lowered on Page’s orders; and (ii) that Westland’s vice president of sales, Brent Lesley, had made an internal appraisal that valued Westland at more than twice that of the 2005 opinion. See Lane v. Page, 581 F.Supp.2d at 1102-03 (citing FAC ¶¶ 47-48, at 20-21). In the Second Amended Complaint, Lane pleads several new facts regarding Lesley and his internal valuation. After two decades working for Westland, Lesley “was the person at Westland primarily responsible for determining the value of Westland’s land,” and Page and Padilla both “routinely relied upon Mr. Lesley’s analysis of Westland’s land.” SAC ¶ 48(a), at 27-28. In August 2005, at Page’s request, Lesley prepared a “value menu” of Westland’s land holdings. Id. at 27. This value menu concluded that Westland’s land was worth $377 million, or $474.00 per share, not including Westland’s interest in the Cordero Mesa. See id. An earlier internal valuation from June 16, 2005, which valued 2,500 acres of Westland property at $78 million, was incorporated into the August valuation Lesley prepared. See id. at 28. Westland relied upon this earlier June valuation when rejecting an offer to buy those 2,500 acres for $33 million. See id. 4. Proxy Solicitors. According to the Proxy, “Westland expected] to make arrangements with and compensate approximately 90 individuals to assist in the solicitation” of proxies from shareholders. Proxy at 16. Westland never hired any proxy solicitors. In the First Amended Complaint, Lane alleged that most of the Defendants “were aware that Westland never hired any proxy solicitors, but that SunCal retained all the proxy solicitors, ‘who secretly received lucrative payments for delivering votes in favor of the’ merger.” Lane v. Page, 581 F.Supp.2d at 1103 (citing FAC ¶ 57, at 25). Now Lane adds two new allegations. He states that “SEC Regulations require[ ] the proxy statement to ‘state the names of the persons by whom the cost of solicitation has been or will be borne, directly or indirectly.’ ” SAC ¶ 58, at 38 (quoting 17 C.F.R. § 240.14a-101, Item 4(2)). Additionally, “just two days after the Proxy Statement was filed with the SEC, SunCal filed additional proxy materials that included telephone call scripts for use by SunCal solicitors.” SAC ¶ 58, at 38 (emphasis in original). 5. Board’s Statement of Fairness. According to the Proxy, Westland’s board of directors thought the SunCal merger was “fair to, and in the best interests of Westland and Westland’s shareholders.” Proxy at 26. The board held this belief, “in part, because the cash consideration to be received by holders of Westland common stock is fair, from a financial point of view, to the Westland shareholders.” Id. at 6. Lane alleged that “these statements were false and misleading, because several directors admitted in depositions that they did not seek independent valuations in connection with the merger or otherwise endeavor to ‘ascertain the value of what the Board was selling,’ and took no affirmative actions to maximize shareholder value.” Lane v. Page, 581 F.Supp.2d at 1126 (quoting FAC ¶ 49, at 21). In the Second Amended Complaint, Lane adds several new allegations in connection with his contention that the fairness statement was false and misleading. Starting with the ANM offer, the director Defendants did not believe that the $200.00 per share offered was enough, but nonetheless declared it to be a fair price. See SAC ¶ 49(a), at 29. As with the ANM offer, the board opined that the SHNM and SunCal offers were fair, despite believing otherwise. See id. at 29-30. The board members did not believe that the merger was fair because the merger price was less than the price in Lesley’s value menu. See id. ¶ 49(b), at 30. One reason that the board did not seek an appraisal or hire outside help was that the board did not want to merge or be bought out. See id. Page voted against the SunCal merger agreement, Defendant Troy Benavidez abstained from voting, and, during the shareholder vote, four of the nine directors did not vote their shares in favor of the merger, while a fifth voted less than half his common shares for the merger. See id. 6. Oil and Gas Disclosures. Land is Westland’s primary asset. For a lucky owner, with land may come oil, gas, and other valuable mineral deposits, but in the Proxy, Westland’s management said they did not know if there was “oil, natural gas, coal bed methane gas or any other natural resource under Westland’s land,” and that they were “not aware of any commercially successful drilling on the property.” Proxy at 7. Initially, Lane alleged that these statements were false and misleading because of four contrary facts that should have been disclosed: (i) that Westland’s board of directors had been informed that between 100 and 500 million barrels of oil could be located on Westland property; (ii) that Defendant Sanchez had expressed his concern at an August 29, 2005, board meeting about losing valuable water and mineral rights; (iii) that Westland had received an offer from Savant Resources to lease all of Westland’s property for oil and gas exploration; and (iv) that Tecton Energy LLC had offered to expand its existing oil and gas exploration lease from 7,000 to 30,000 acres. Lane v. Page, 581 F.Supp.2d at 1103 (citing FAC ¶ 52, at 23). Now that the Court has found these first two allegations immaterial, Lane has added several new allegations. According to Lane, on August 29, 2005, Page told the board that oil broker Knute Lee had reported that 100 to 500 million barrels of oil could be found on Westland property, which could be worth hundreds of millions to Westland if recovered. See SAC ¶ 52(a), at 34. This estimate was based on a U.S. Geological Survey, and “Lee’s firm planned to drill as soon as they can schedule a drilling rig.” Id. (internal quotation marks omitted). To further support his allegations, Lane also points out that, in an August 2005 letter, Tecton Energy had written that it had “studied the Albuquerque Basin for years and believes substantial quantities of natural gas can be profitably recovered.” Id. ¶ 52(d), at 34 (internal quotation marks omitted). Additionally, Lane adds an allegation that Westland’s board concluded that Tecton Energy’s offer to expand its lease should be included in Westland proxy material. See id. 7. The Tax Increment Development District. In discussing the board of directors’ views on the merger, the Proxy asserted that Westland was a somewhat “unattractive” acquisition target because it held a “vast amount of undeveloped land” that would be very expensive and time consuming to develop. Proxy at 27. Westland also faced “significantly increasing costs ... to develop its own land,” because the City of Albuquerque would not bear infrastructure costs associated with recent Westland developments. Id. at 28. Originally, Lane alleged that the Proxy “failed to mention that ‘SunCal had arranged to take advantage of an October 2006 Tax Increment Development District (“TIDD”) which allowed SunCal to utilize tax dollars to fund infrastructure costs associated with the development of Westland.’ ” Lane v. Page, 581 F.Supp.2d at 1103 (citing FAC ¶ 51, at 22). In his latest Complaint, Lane adds a significant number of allegations regarding the failure to disclose SunCal’s plans for using a TIDD to help fund development. Over the years, Westland has retained consultants and lawyers “to assist in efforts to take advantage of various public improvement district financing opportunities,” SAC ¶ 51(a), at 32, and Westland Vice President Leroy Chavez “was intimately familiar with the City’s procedures and public improvement financing opportunities” from his time on the Albuquerque City Council’s Impact Fee Committee, id. ¶ 51(b), at 32. In 2005, Westland hired lobbyists to work on its behalf on impact fees and public improvement financing, and was involved in litigation with the City of Albuquerque over the allocation of impact fees. See id. ¶ 51(c) & (d), at 32. An article appearing in New Mexico Business Weekly in February 2006 explained that Westland and ANM were working behind the scenes to get backing for development of Westland property and that Westland and the City of Albuquerque had been in development talks for nearly a year. See SAC ¶ 51(e), at 32. SunCal expected that it would be able “to capitalize on and continue Westland’s efforts to secure development entitlements,” retaining “Westland employees familiar with the local political landscape for this task.” Id. ¶ 51(g), at 33. Additionally, the merger agreement stated “that Westland would assist SunCal by continuing its efforts to obtain the entitlements.” Id. ¶ 51(h), at 33. 8. Failure to Disclose D.E. Shaw’s Involvement. One set of allegations is new to the Second Amended Complaint. Lane alleges that D.E. Shaw was a participant in the merger and that the Proxy should have disclosed this fact. DESCO Real Estate, an entity affiliated with D.E. Shaw, owned 92.5% of SCC, the entity used to consummate the merger with Westland. See SAC ¶ 56, at 36. Correspondence between Page and Defendant Rizk reveals that Westland agreed not to disclose “the involvement of DESCO Real Estate in the transaction ” to anyone except Westland employees directly involved in the merger or under compulsion “in a judicial or administrative proceeding or as other wise required by law.” id. ¶ 56(b), at 37 (emphasis in original). The Defendants knew that D.E. Shaw’s involvement needed to be disclosed. See id. ¶ 56(c), at 37-38. PROCEDURAL BACKGROUND This is the second round of motions to dismiss in this case. On September 15, 2008, the Court issued an order granting in part and denying in part two motions to dismiss. See Order (Doc. 81). Soon thereafter the Court issued an opinion detailing its decision. See Memorandum Opinion and Order, entered September 24, 2009 (Doc. 83); Lane v. Page, 581 F.Supp.2d 1094. The Court dismissed a number of allegations, some with leave to amend, others without. Other allegations the Court upheld, finding them adequately pled. Those allegations dismissed with leave to amend were: (i) the allegations regarding Page’s and Padilla’s employment agreement being secretly modified, see Lane v. Page, 581 F.Supp.2d at 1132; (ii) the allegations regarding the board of directors’ statements that the merger was fair, because Lane had not alleged that the statements were subjectively false, see id. at 1127; (iii) the allegations involving the failure to disclose SunCal’s plans to use a TIDD, see id. at 1129; and (iv) the allegations involving the Proxy not mentioning that the board had been informed of a possible 100 to 500 million barrels of oil on Westland property, see id. at 1130. Those allegations dismissed without leave to amend were: (i) the allegations that the Proxy failed to adequately disclose potential conflicts of interests regarding appointments to the board of Atrisco LLC or as trustees of Atrisco Heritage Foundation, see id. at 1121; (ii) the allegations regarding the market-check procedures, see id. at 1125; and (iii) the allegations regarding the failure to disclose that SunCal hired all the proxy solicitors, see id. at 1131. Those allegations the Court did not dismiss were: (i) the allegations involving how Westland directors intended to vote their shares, see id. at 1123; (ii) the allegations regarding Page’s vote against the merger, see id.; (iii) the allegations regarding Page’s involvement in the 2001 valuation, see id. at 1126; and (iv) the allegations regarding the leasing offers from Savant Resources and Tecton Energy, see id. at 1129-30. After the Court’s ruling, Lane sought to amend his Complaint. Although initially against any amendment, the Defendants later withdrew their opposition, and the Court granted Lane leave to amend. See Order Granting Lead Plaintiffs Opposed Motion for Leave to Amend Complaint Pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure, entered February 5, 2009 (Doc. 144). The Second Amended Complaint retains many of the allegations from the previous Complaint, but also adds a number of new allegations and several new Defendants. The Director Defendants now move to dismiss all those allegations the Court has previously dismissed with or without leave to amend, and also ask that the Court dismiss certain allegations that it has previously allowed to remain in the ease. Westland and SunCal have joined in the Director Defendants’ motion and also added some arguments. The D.E. Shaw Defendants have filed a motion to dismiss the new allegations in the Second Amended Complaint that have recently brought them into the litigation and also join in the other motions. STANDARD FOR MOTIONS TO DISMISS Under rule 12(b)(6) of the Federal Rules of Civil Procedure, a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). The sufficiency of a complaint is a question of law, and when considering and addressing a rule 12(b)(6) motion, a court must accept as true all well-pleaded factual allegations in the complaint, and view those allegations in the light most favorable to the non-moving party and draw all reasonable inferences in the plaintiffs favor. See Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006); Hous. Auth. of Kaw Tribe v. City of Ponca City, 952 F.2d 1183, 1187 (10th Cir.1991). A complaint challenged by a rule 12(b)(6) motion to dismiss does not require detailed factual allegations, but a plaintiffs obligation to set forth the grounds of his or her entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action -will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 1965 (internal citation omitted). [T]he [Supreme] Court [of the United States] recently ... “prescribed a new inquiry for us to use in reviewing a dismissal: whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.’” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1967, 1969, 167 L.Ed.2d 929 (2007)). “The Court explained that a plaintiff must ‘nudge his claims across the line from conceivable to plausible’ in order to survive a motion to dismiss.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d at 1177 (quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. at 1974.) (alterations omitted). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d at 1177. The Supreme Court has recently expounded upon the meaning of Bell Atl. Corp. v. Twombly. Two working principles underlie [the] decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.... Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. Ashcroft v. Iqbal, — U.S.-, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009) (citation omitted). Additionally, the Supreme Court has commented: In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. Id. at 1950. RELEVANT LAW REGARDING MATERIALITY OF STATEMENTS OR OMISSIONS IN § 14(a) CLAIMS Section 14(a) of the Exchange Act provides: It shall be unlawful for any person, by the use of the mails or by any means or instrumentality of interstate commerce or of any facility of a national securities exchange or otherwise, in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors, to solicit or to permit the use of his name to solicit any proxy or consent or authorization in respect of any security (other than an exempted security) registered pursuant to section 781 of this title. No solicitation subject to this regulation shall be made by means of any proxy statement, form of proxy, notice of meeting or other communication, written or oral, containing any statement which, at the time and in the light of the circumstances under which it is made, is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading or necessary to correct any statement in any earlier communication with respect to the solicitation of a proxy for the same meeting or subject matter which has become false or misleading. 15 U.S.C. § 78n(a)(2008). Rule 14a-9, which the SEC enacted pursuant to its authority to regulate proxy solicitations under § 14(a), provides the substantive content for many claims under § 14(a). That rule provides: 17 C.F.R. § 240.14a-9 (2008)(“rule 14a-9”). The basic elements of a claim under § 14(a) and rule 14a-9 are threefold. The plaintiff must establish that: (i) the proxy statement contained a material misrepresentation or omission; (ii) that the defendants were at least negligent; and (in) that the proxy statement was an essential link in the completion of the transaction at issue. See Mills v. Elec. Auto-Lite Co., 396 U.S. at 385, 90 S.Ct. 616; Boone v. Carlsbad Bancorp., Inc., 1988 WL 341347, at *10 (D.N.M.1988)(citing Wilson v. Great American Industries, Inc., 661 F.Supp. 1555, 1562 (N.D.N.Y.1987)). The Supreme Court has made the definition of materiality in securities cases turn on a reasonable shareholder standard. “An omitted fact is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote.” TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976); Garcia v. Cordova, 930 F.2d 826, 829 (10th Cir.1991). As the Supreme Court has stated, this standard does not require proof of a substantial likelihood that disclosure of the omitted fact would have caused the reasonable investor to change his vote. What the standard does contemplate is a showing of a substantial likelihood that, under all the circumstances, the omitted fact would have assumed actual significance in the deliberations of the reasonable shareholder. TSC Industries, Inc. v. Northway, Inc., 426 U.S. at 449, 96 S.Ct. 2126. A court must look to the contemporaneous facts surrounding a representation to determine whether it was false. See Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1093-94, 111 S.Ct. 2749, 115 L.Ed.2d 929 (1991). But corporations and corporate officers also have an ongoing duty to ensure that later events do not render a disclosure misleading. The United States Court of Appeals for the Second Circuit has held that management “ ‘cannot lawfully sit by and allow shareholders to approve corporate action on the basis of a proxy statement without disclosing facts arising since its dissemination if these are so significant as to make it materially misleading, and we have no doubt that Rule 14a-9 is broad enough to impose liability for non-disclosure in’ ” such situations. SEC v. Parklane Hosiery Co., Inc., 558 F.2d 1083, 1089 n. 3 (2d Cir.1977)(quoting Gerstle v. Gamble-Skogmo, Inc., 478 F.2d 1281, 1297 n. 15 (2d Cir.1973)). Corporate directors’ opinions can be material. See SEC v. Parklane Hosiery Co., Inc., 558 F.2d 1083 at 1089-90. As the Supreme Court stated in Virginia Bankshares, Inc. v. Sandberg: Shareholders know that directors usually have knowledge and expertness far exceeding the normal investor’s resources, and the directors’ perceived superiority is magnified even further by the common knowledge that state law customarily obliges them to exercise their judgment in the shareholders’ interest. Naturally, then, the shareowner faced with a proxy request will think it important to know the directors’ beliefs about the course they recommend and their specific reasons for urging the stockholders to embrace it. 501 U.S. at 1091, 111 S.Ct. 2749. On the other hand, the Supreme Court also found “mere disbelief or undisclosed motivation, standing alone, insufficient to satisfy the element of fact that must be established under § 14(a).” Id. at 1096, 111 S.Ct. 2749. For a proxy statement to avoid being materially false or misleading, it does not need to reveal all details at issue, or use any particular language, but must create only a “sufficiently accurate picture so as not to mislead.” Kennecott Copper Corp. v. Curtiss-Wright Corp., 584 F.2d 1195, 1200 (2d Cir.1978). Among the information that need not be disclosed, according to the United States Court of Appeals for the Sixth Circuit, is so-called “soft information.” In re Ford Motor Co. Securities Litigation, 381 F.3d 563, 569 (6th Cir.2004). Soft information includes “information that is uncertain and not objectively verifiable such as ‘predictions, matters of opinion, and asset appraisals.’ ” Id. (quoting Helwig v. Vencor, Inc., 251 F.3d 540 (6th Cir.2001)). “As a matter of public policy, the SEC and the courts generally have not required the inclusion of appraised asset valuations, projections, and other ‘soft’ information in proxy materials or tender offers.” Flynn v. Bass Bros. Enterprises, Inc., 744 F.2d 978, 985 (3d Cir.1984)(collecting cases). “In assessing the need to disclose an appraised asset valuation courts have considered several indicia of reliability: the qualifications of those who prepared or compiled the appraisal; the degree of certainty of the data on which it was based; the purpose for which it was prepared; and evidence of reliance on the appraisal.” Id. (footnotes omitted). “The factors a court must consider in making such a determination are: the facts upon which the information is based; the qualifications of those who prepared or compiled it; the purpose for which the information was originally intended; its relevance to the stockholders’ impending decision; the degree of subjectivity or bias reflected in its preparation; the degree to which the information is unique; and the availability to the investor of other more reliable sources of information.” Id. at 988. LAW REGARDING CONTROL-PERSON LIABILITY Section 20(a) provides: Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. 15 U.S.C. § 78t(a). “[T]o state a prima facie case of control person liability, the plaintiff must establish (1) a primary violation of the securities laws and (2) ‘control’ over the primary violator by the alleged controlling person.” Adams v. Kinder-Morgan, Inc., 340 F.3d 1083, 1107 (10th Cir.2003)(internal quotation marks omitted). The statute does not define what it means to be a controlling person. An SEC regulation gives some content to the term control: “The term control (including the terms controlling, controlled by and under common control with) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.” 17 C.F.R. § 230.405. This regulatory definition of control is a broad definition that the United States Court of Appeals for the Tenth Circuit has cited “with approval,” Maher v. Durango Metals, Inc., 144 F.3d at 1305, and the statute itself “ ‘is remedial and is to be construed liberally,’ ” id. (quoting Richardson v. MacArthur, 451 F.2d 35, 41 (10th Cir.1971))(further internal quotation marks omitted). The Tenth Circuit “has expressly reject[ed] those decisions that may be read to require a plaintiff to show the defendant actually or culpably participated in the primary violation. Rather, once the plaintiff establishes the prima facie case [of control], the burden shifts to the defendant to show lack of culpable participation or knowledge.” Maher v. Durango Metals, Inc., 144 F.3d at 1305 (citation and internal quotation marks omitted, first alteration in original). In Metge v. Baehler, 762 F.2d 621, 631 (8th Cir.1985), the United States Court of Appeals for the Eighth Circuit adopted a test for determining when control-person liability is satisfied. First, a plaintiff must show that the defendant “actually participated in (i.e., exercised control over) the operations of the corporation in general.” Id. at 631 (internal quotation marks omitted). Second, a plaintiff “must prove that the defendant possessed the power to control the specific transaction or activity upon which the primary violation is predicated, but he need not prove that this later power was exercised.” Id. The Tenth Circuit briefly mentions Metge v. Baehler in Maher v. Durango Metals, Inc., 144 F.3d 1302 (10th Cir.1998). There, the Tenth Circuit noted that there was a potential circuit split on whether “a plaintiff must show that the alleged control person actually exercised control over the primary violator’s general affairs or whether it is sufficient to show that the control person had the power to exercise such control.” Id. at 1305 n. 8. The Tenth Circuit commented that, “although perhaps disagreeing about whether a plaintiff must show actual control over the primary violator’s general affairs, courts generally agree that the plaintiff need only show the power to control the transaction underlying the alleged securities violation and not the exercise of that power.” Id. Ultimately, the Tenth Circuit declined to rule on the potential split. To date, the Tenth Circuit standard largely tracks the language of the regulation and requires a plaintiff to indicate that the defendant “had possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.” Adams v. Kinder-Morgan, Inc., 340 F.3d at 1108 (internal quotation marks omitted). ANALYSIS After the Court ruled on the earlier motions to dismiss and granted Lane leave to amend some allegations, Lane filed his Second Amended Complaint. This new Complaint takes the Court up on its offer to replead certain dismissed claims, retains the other dismissed claims with new facts, and adds new claims and Defendants. In their motions, the Defendants urge the Court to dismiss the repled claims and the new claims, and also ask that the Court dismiss those claims that it has already found to be legally sufficient. While much of the motions before the Court thus covers familiar ground, Westland and SunCal raise a new issue: they contend that Lane has failed to sufficiently plead what the damages in this case are. The Court agrees with Westland and SunCal, and thus will dismiss the Second Amended Complaint. On the other hand, the flaw requiring dismissal is relatively technical and likely to be easily remedied. The Court will thus withhold entering final judgment and allow Lane ten days to file a motion to amend. The Court will address the various other issues raised because of the possibility of the Court allowing amendment. At the end of the day, however, the landscape on these allegations looks much as it did before this latest round of amendments and motions. Two of the sets of allegations Lane has amended, however, have been sufficiently supplemented to make them actionable, should the Court in the future allow Lane to amend his Complaint to cure the fatal deficiency regarding damages. Similarly, the new allegations regarding the failure to disclose D.E. Shaw’s involvement will support a claim. Additionally, the Court finds that the allegations against the D.E. Shaw Defendants withstand a motion to dismiss and that the Court cannot determine, at this time, that these allegations are untimely. I. THE COURT WILL NOT DISMISS WITHOUT CONSIDERATION THE ALLEGATIONS ON WHICH THE COURT DID NOT GRANT LEAVE TO AMEND. Several allegations that the Court dismissed were dismissed without the Court indicating that it would allow amendment of those claims. Although they do not concentrate on this fact, the Defendants briefly argue that, because the Court did not grant express leave to amend on some of the allegations it dismissed, the Court should summarily dismiss those allegations. The Court does not believe that approach is appropriate here and so will consider all the various allegations on the merits. As Lane correctly notes, none of the allegations were dismissed with prejudice. Rather, some of the allegations were dismissed with express leave to amend given beforehand because the Court viewed the deficiencies as tending to be technical in nature and more a matter of drafting than substance. For those claims not dismissed with leave to amend, Lane would be in the situation of any other plaintiff who has claims dismissed: he would need to seek leave from the Court before he could file any amendments. This basic understanding was what the Court expressed during the hearing on the first motions to dismiss. The Court stated that it was “granting the motion without prejudice to [Lane] amending, and then I think if there’s other allegations that you wish to amend you probably need to seek those from the Court.” Transcript of Hearing at 157:2-5 (Court)(taken May 23, 2008, filed June 27, 2008)(Doc. 69). Lane has therefore complied with the Court’s directions. He has sought leave to amend and it has been granted. Leave to amend should be freely given “when justice so requires.” Fed. R.Civ.P. 15(a)(2). A court should “generally refuse leave to amend only on a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment.” Duncan v. Manager, Dep’t of Safety, City and, County of Denver, 397 F.3d 1300, 1315 (10th Cir.2005) (internal quotation marks omitted). If the Defendants had procedural arguments against allowing amendment, then the appropriate time to raise those arguments would have been when Lane moved to amend, rather than dropping their opposition. Regardless, given the early stages of this case, and the frequent presence of the discovery stay under the Private Securities Litigation Reform Act of 1995 (“PSLRA”), the Court cannot identify any prejudice in allowing amendment. In the future, however, Lane should be aware that the Court will not allow endless amending and, in particular, that “failure to cure deficiencies by amendments previously allowed” is grounds for denial of amendment. Duncan v. Manager, Dep’t of Safety, City and County of Denver, 397 F.3d at 1315. II. LANE HAS NOT ADEQUATELY PLED INJURY. Although most of the Defendants’ arguments on the merits are aimed at specific allegations, Westland and SunCal raise an issue that challenges Lane’s § 14(a) claim — and thus the § 20 claim which rests on the § 14(a) claim — as a whole. According to Westland and SunCal, Lane has failed to adequately plead how Westland’s shareholders were harmed. Lane counters that his pleadings are sufficient and that damages are, in any event, a remedy for, and not an element of, a § 14(a) claim. Injury is something that a plaintiff must plead in a § 14(a) claim, and Lane has not adequately pled that what the injury to Westland’s former shareholders is. It is not immediately clear from their argument whether Westland and SunCal are contending that Lane has failed to plead the nature of the shareholders’ injury, the cause of the injury, or both. This opaqueness is not necessarily then-fault, as the case law in this area is not always a model of clarity. After reviewing their arguments and the cases, however, the Court believes that Westland and Sun-Cal are challenging both the adequacy of Lane’s pleading the nature of the shareholders’ injury and the cause of that injury. To make matters more complicated, it is also not entirely clear whether the term loss causation, which is the term generally employed with respect to damages in securities cases, covers both the nature and cause of the injury. Although the name loss causation implies that the term is largely about causal connections, courts seem to use the term to cover both nature and cause. See, e.g., Jacobs v. Airlift Intern., Inc., 440 F.Supp. 540, 543 (D.C.Fla.1977). For the most part, the Court believes that drawing a distinction between the nature and the cause of an injury in a securities case is generally difficult and that the two will largely overlap. When the injury involves economic loss, identifying the injury and identifying the cause of the injury will often be significantly interconnected. The Court will thus use the term, as other courts do, to refer to both the nature and cause of the injury. Westland and SunCal initially cite a pair of district court cases for the proposition that § 14(a) plaintiffs must plead how they were damaged. The first case they cite, Jacobs v. Airlift Intern., Inc., held that a failure to allege the nature of the injury that the defendants had allegedly caused required dismissal of a § 14(a) claim because, by not pleading the nature of their injury, the plaintiffs had not pled that the proxy solicitation was an essential link between a securities violation and an injury. See Jacobs v. Airlift Intern., Inc., 440 F.Supp. at 543. Put differently, the complaint did not sufficiently demonstrate “loss causation.” Id. The other case first cited, In re Tyco Intern., Ltd., 2007 WL 1703023 (D.N.H.), dismissed a § 14(a) claim because the plaintiffs “failed to properly plead that their alleged damages were caused by misrepresentations in the proxy statements,” but relied exclusively upon an earlier case from the same court, id. at *13. That earlier case, In re Tyco Intern., Ltd., 2004 WL 2348315 (D.N.H.), grounded dismissal of a § 14(a) claim in a failure to show loss causation. Given its later reliance on its decision in the 2004 case, the court apparently found persuasive General Electric Co. v. Cathcart, 980 F.2d 927 (3d Cir.1992), which held “that damages that are subsequently caused by directors who are elected on the basis of misleading proxy statements are simply too remote from the misleading statements themselves to support a claim under § 14(a).” In re Tyco Intern., Ltd., 2004 WL 2348315 at *15 (citing General Electric Co. v. Cathcart, 980 F.2d at 933). In dismissing the claims, however, the district court stated that its reason was because the plaintiffs had “not attempted to respond to defendants’ plausible causation argument, and thus they ha[d] waived their right to object to the dismissal of the § 14(a) claims on this basis.” In re Tyco Intern., Ltd., 2004 WL 2348315 at *15. Lane briefly defends his decision not to give a fuller picture of his damages, arguing that “Westland’s shareholders were denied a fully informed choice because the Proxy was materially false and misleading and was an essential link in the accomplishment of the SunCal Merger.” Lead Plaintiffs Memorandum of Law in Opposition to Defendants’ Motions to Dismiss Second Amended Complaint at 6, n. 8, filed March 2, 2009 (Doc. 155)(“Response”). Citing Mills v. Elec. Auto-Lite Co., 396 U.S. 375, 386, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), Lane contends that, regardless, damages are a remedy for a § 14(a) claim, and not an element. During the hearing, Lane contended that Westland’s and Sun-Cal’s cases were largely inapposite here, either involving authority for 10(b) fraud claims or involving issues of expert testimony. See Transcript of Hearing at 181:15-182:9 (Robbins)(taken April 3, 2009)(“Tr.”). He also maintained that it was clear from the Complaint that the damage to the shareholders from the merger was it being completed at too low a price per share. See Tr. at 182:9-14 (Robbins). Westland and SunCal argue that Mills v. Elec. Auto-Lite Co. was about “ ‘what causal relationship must be shown between [a misleading proxy] statement and the merger to establish a cause of action’ ” under § 14(a), and not about what damages allegations were necessary. Reply of Defendants Westland and SunCal in Support of Their Motion to Dismiss and Joinder in the Director Defendants’ Motion to Dismiss at 5, filed March 20, 2009 (Doc. 166)(quoting Mills v. Elec. Auto-Lite Co., 396 U.S. at 377, 90 S.Ct. 616). They maintain that Lane must still allege his injury or damages in a sufficient fashion. West-land and SunCal also contend that Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005), requires a sufficient pleading of loss. They acknowledge that Dura Pharmaceuticals, Inc. v. Broudo was a § 10(b) case, but contend that its holding has been, and should be, applied to § 14(a) cases. To recover damages, Lane will have to eventually demonstrate that the Defendants caused shareholders some loss. See Grace v. Rosenstock, 228 F.3d 40, 47 (2d Cir.2000); 15 U.S.C. § 78u-4(b)(4) (“In any private action arising under this chapter, the plaintiff shall have the burden of proving that the act or omission of the defendant alleged to violate this chapter caused the loss for which the plaintiff seeks to recover damages.”). Lane does not appear to challenge this point. Rather, the issue is whether Lane must plead his theory of loss causation or whether that is a matter for a later date. A number of courts have held that loss causation is an element of a § 14(a) claim that must be pled. See, e.g., DCML LLC v. Danka Business Systems PLC, 2008 WL 5069528 at *2 (S.D.N.Y.)(“To state a claim under section 14(a), a plaintiff must plead loss causation, that is, the plaintiff must demonstrate that the economic harm that it suffered occurred as a result of the alleged misrepresentations.”)(internal quotation marks omitted); Kelley v. Rambus, Inc., 2008 WL 1766942 at *2 (N.D.Cal.). Other courts, without specifically stating that loss causation is an element, have considered whether loss is adequately pled under rule 12(b)(6) motions. See, e.g., In re Tyco Intern., Ltd., 2007 WL 1703023 at *13. However the courts express the matter, there appears to be a general consensus that plaintiffs must plead their injuries and the relationship of the injury to the proxy solicitation and transaction with at least some particularity. There is at least some superficial tension between these recent cases and Mills v. Electric Auto-Lite Co., which Lane cites. Upon closer inspection, however, the Court believes that this tension dissolves. In Mills v. Electric Auto-Lite Co., the Supreme Court held that “a shareholder has made a sufficient showing of causal relationship between the violation and the injury for which he seeks redress if, as here, he proves that the proxy solicitation itself, rather than the particular defect in the solicitation materials, was an essential link in the accomplishment of the transaction.” 396 U.S. at 385, 90 S.Ct. 616. It is unclear whether this statement refers to what is known in securities litigation parlance as loss causation, as transaction causation, or as both. For there to be a link to an injury, however, there must be an injury, which implies that Mills v. Electric Auto-Lite Co. does not relieve plaintiffs of a burden to plead what their injury is. One of the few courts to have discussed loss causation in the context of Mills v. Electric Auto-Lite Co. has reached this conclusion. See Jacobs v. Airlift Intern., Inc., 440 F.Supp. at 543 (holding that, under Mills v. Electric Auto-Lite Co., a § 14(a) must plead loss causation). Additionally, the issue discussed in Mills v. Electric Auto-Lite Co. was the nature of the causal relationship that needed to be proven between materially misleading statements in a proxy solicitation and the proposed merger that prompted the solicitation. See 396 U.S. at 377, 90 S.Ct. 616. The district court had found that approval of a substantial number of minority shareholders was necessary for approval of the merger, thus showing causation, while the court of appeals had ruled that if the merger were shown to be fair, then as a matter of law it would be presumed that the proxy solicitation would have obtained the requisite number of votes even if shareholders knew of the misrepresentations and there would be no liability. See id. at 380, 90 S.Ct. 616. Disagreeing with both tests, the Supreme Court held that showing that statements or omissions in the proxy solicitation were material was sufficient to prove causation because materiality meant that the statements or omissions were related enough to the transaction for which the solicitation was conducted. See id. at 384, 90 S.Ct. 616. Taking into account the procedural history of the case, the Court believes that the Supreme Court was holding that materiality was sufficient to establish transaction causation. In other words, if the statements or omissions in a proxy solicitation are material, then a plaintiff has met his or her burden of showing that the misrepresentations or omissions caused the transaction at issue. Thus, the Court does not believe that Mills v. Electric Auto-Lite Co. holds that plaintiffs need not plead damages in a 14(a) case. Nor does Mills v. Electric Auto-Lite Co. require that they do so. In the end, Mills v. Electric Auto-Lite Co. is not on point regarding that issue. Moreover, after Dura Pharmaceuticals, Inc. v. Broudo, the Court believes that the pleading landscape has changed somewhat, at least in securities cases. As Lane points out, Dura Pharmaceuticals, Inc. v. Broudo was a § 10(b) fraud case. And the Court agrees that certain aspects of that case are concerned with § 10(b) eases and do not have a broader applicability. But part of the Supreme Court’s decision is cast at a much more general level and would apply, at a minimum, to other securities cases involving economic loss. In a separate section, after discussing an issue involving the adequacy of a causation theory, the Supreme Court stated: “Our holding about plaintiffs’ need to prove proximate causation and economic loss leads us also to conclude that the plaintiffs’ complaint here failed adequately to allege these requirements.” Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. at 346, 125 S.Ct. 1627. The Supreme Court assumed, “for argument’s sake, that neither the Rules nor the securities statutes impose any special further requirement in respect to the pleading of proximate causation or economic loss,” but nonetheless found a conclusory statement of damages — that the plaintiffs “paid artificially inflated prices for Dura[’s] securities and suffered damage[s]” — inadequate. Id. (internal quotation marks omitted, brackets in original). Artificially inflated purchase prices were not relevant economic losses, based upon an earlier portion of the opinion, “[a]nd the complaint nowhere else provide[d] the defendants with notice of what the relevant economic loss might be or of what the causal connection might be between that loss and the misrepresentation.” Id. at 347, 125 S.Ct. 1627. The Supreme Court observed: [Ordinary pleading rules are not meant to impose a great burden upon a plaintiff. Swierkiewicz v. Sorema N. A, 534 U.S. 506, 513-515, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). But it should not prove burdensome for a plaintiff who has suffered an economic loss to provide a defendant with some indication of the loss and the causal connection that the plaintiff has in mind. At the same time, allowing a plaintiff to forgo giving any indication of the economic loss and proximate cause that the plaintiff has in mind would bring about harm of the very sort the statutes seek to avoid. Cf. H.R. Conf. Rep. No. 104-369, p. 31 (1995), U.S.Code Cong. & Admin.News 1995, pp. 679, 730 (criticizing “abusive” practices including “the routine filing of lawsuits ... with only [a] faint hope that the discovery process might lead eventually to some plausible cause of action”). It would permit a plaintiff “with a largely groundless claim to simply take up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value, rather than a reasonably founded hope that the [discovery] process will reveal relevant evidence.” Blue Chip Stamps [v. Manor Drug Stores], 421 U.S. [723] at 741, 95 S.Ct. 1917 [44 L.Ed.2d 539 (1975) ]. Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. at 347, 125 S.Ct. 1627. While Dura Pharmaceuticals, Inc. v. Broudo arose in the context of securities fraud, its discussion of pleading standards is general and based upon no more onerous a standard than rule 8 of the Federal Rules of Civil Procedure. Dura Pharmaceuticals, Inc. v. Broudo’s holding about how to plead economic loss is thus applicable to this case. And Dura Pharmaceuticals, Inc. v. Broudo instructs that Lane’s “need to prove ... economic loss” to recover damages requires him “adequately to allege” that loss. 544 U.S. at 346, 125 S.Ct. 1627. (See Vogel v. Jobs, 2007 WL 3461163 at *4, 2007 U.S. Dist. LEXIS 86996 at *14 (N.D.Cal.) (applying Dura Pharmaceuticals, Inc. v. Broudo to 14(a) claim)). Given Dura Pharmaceuticals, Inc. v. Broudo’s applicability, Mills v. Electric Auto-Lite Co.’s silence on this issue, and the numerous cases indicating that a plaintiff needs to plead loss causation in a § 14(a) case, the Court concludes that Lane must adequately plead “the economic loss and proximate cause” he has in mind. Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. at 347, 125 S.Ct. 1627. This conclusion does not end the matter. At the hearing, Darren Robbins, Lane’s attorney, argued that it was clear from the Complaint that the injury here was from an insufficient merger price. While the Court agrees that there are facts from which one could draw this conclusion, reading the Complaint, without Mr. Robbins’s commentary, would not indicate that this