Full opinion text
SAND, District Judge. I. FACTS AND PARTIES TO THIS LITIGATION This proceeding, which consists of at least ten separate lawsuits and approximately eighty plaintiffs and fifty defendants, comes before us for purposes of all pretrial matters pursuant to 28 U.S.C. § 1407 (1982) and an Order of the Judicial Panel on Multidistrict Litigation. Following transfer to this Court, plaintiffs filed a Consolidated Complaint and an Amended Consolidated Complaint, the latter relating to only one of plaintiffs’ sixteen causes of action. We consider these two complaints in tandem in deciding the motions to dismiss and for summary judgment now before the Court. Plaintiffs’ (“Investors”) claims arise from their purchase of Gas Reclamation Units (“Units”) from defendant Gas Reclamation, Inc. (“GRI”) pursuant to a Private Placement Memorandum (“PPM”) dated April 12, 1984. In addition to GRI and certain of its officers and agents, the defendants named in the Consolidated Complaint include: various brokerage houses and investment advisors; a number of banks that financed Investors’ notes; the insurance company that issued bonds to secure the notes and its insurance agent; an accounting firm hired by GRI to conduct certain financial and management services; and a number of individuals associated with these parties. Plaintiffs allege that these defendants perpetrated and aided and abetted a securities fraud that affected approximately 400 investors throughout the United States. The Units sold by GRI to investors consisted of an agreement to purchase from GRI a gas recovery and refrigeration plant and an agreement that GRI would install and maintain the plant on behalf of each investor. The gas plants attached to natural gas wells and were to condense the natural gas through refrigeration into liquid natural gas. GRI was to market the liquid natural gas, with investors sharing in resulting profits. The total consideration for each Unit varied between $79,000 and $83,000. Typically, investors paid five percent in cash. The balance was funded pursuant to the terms of certain promissory notes which investors executed concurrently with the purchase of the Units and for which plaintiffs paid a commitment fee. The notes were “payable to or ultimately endorsed” over to one of several banks — either Privatbanken, Intercontinental (“IMC”), Connecticut, Ensign, First City or Morris County (hereinafter collectively referred to as the “Banking Parties”). Consolidated Complaint 1164. In connection with the execution of these promissory notes, investors were required to execute bonding agreements so that Northwestern National Insurance Company (“Northwestern”) would issue bonds securing payment. Peat, Marwick, Mitchell & Co. (“Peat Marwick”) is alleged to have rendered accounting services to GRI in connection with the sale of Units. The Consolidated Complaint alleges that each of the Investors was fraudulently induced to invest in GRI as a result of a securities fraud perpetrated through nineteen misrepresentations and thirty-five omissions made in connection with the offering. These omissions and misrepresentations were allegedly made by the so-called “GRI Parties” and “Broker Parties,” the latter consisting of Haas Securities Corp. (“Haas”), Austin Davenport Associates, Inc. (“Austin Davenport”), Management Consulting Group, Inc. (“Management Consulting”), and some of their agents. In addition, the Investors allege that through a variety of acts the Broker Parties, Banking Parties, Northwestern and its agent Financial Guaranty, Peat Marwick, and others “substantially assisted or participated” in the primary securities law violations of GRI and the Broker Parties. The alleged misrepresentations and omissions of material fact involve, inter alia, the production capability of gas plants, their worth, and past performance; GRI’s ability to market the natural gas; the expenses associated with the offering; the terms of investors’ financing; the need for registration with the Securities and Exchange Commission (“SEC”); and the involvement of certain persons with the offering. GRI filed for Chapter 11 Bankruptcy in February 1985. The following month, and continuing through February 1986, investors filed suit asserting numerous federal and state statutory and common law claims. II. MOTIONS TO DISMISS The Broker Parties, Banking Parties, Northwestern, Peat Marwick, and Financial Guaranty have moved to dismiss Investors’ Consolidated Complaint. Financial Guaranty’s motion to dismiss was converted to a motion for summary judgment by this Court. That motion will be addressed separately, following a discussion of the arguments set forth by the other defendants in support of their motions to dismiss under Rules 12(b)(6) and 9. In considering these motions to dismiss, the court of course is bound by well established principles: the court should not dismiss the complaint pursuant to Rule 12(b)(6) “unless it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir.1985). Furthermore, the court is restricted to evaluating the face of the pleading. Id. A. The Gas Reclamation Systems are Securities Defendant Peat Marwick claims that this Court lacks subject matter jurisdiction over the Investors’ claims because in its view, the gas reclamation units purchased by Investors are not “investment contracts” and therefore securities within the purview of the federal securities laws. See 15 U.S. C.A. § 77b(l) (West Supp.1986). The court in Securities and Exchange Comm’n v. W.J. Howey Co., 328 U.S. 293, 298-99, 66 S.Ct. 1100, 1102-03, 90 L.Ed. 1244 (1946), held that “[a]n investment contract ... means a contract, transaction or scheme whereby a person [1] invests his money [2] in a common enterprise and [3] is led to expect profits solely from the efforts of the promoter or a third party____” Peat Mar-wick contends that the reclamation plants, do not satisfy the second, “common enterprise” requirement as set forth in Howey. We disagree. As noted by both parties, this Court recently reviewed the three tests employed in this Circuit to determine whether a “common enterprise” is present — the “broad vertical commonality,” “narrow vertical commonality,” and “horizontal commonality” tests. We agreed with other courts in this district which rejected the “broad vertical commonality” test as inconsistent with Howey. Cahill v. Contemporary Perspectives, Inc., [1986-87] Fed.Sec.L.Rep. (CCH) 1192,720 (S.D.N.Y.1986) [Available on WESTLAW, DCT database]. The Court finds no need to revisit that issue here, particularly in view of the Court’s conclusion that the reclamation units meet the requirements for one of the other two applicable standards, that of “narrow vertical commonality.” The standard for narrow vertical commonality as articulated by the court in Mechigian v. Art Capital Corp., 612 F.Supp. 1421, 1426-27 (S.D.N.Y.1985), requires a tie between the fortunes of the investor and the investment’s promoter such that these fortunes rise and fall together. See also Cahill [1986-87] Fed.Sec.L.Rep. at 93,491; Savino v. E.F. Hutton & Co., 507 F.Supp. 1225, 1237 (S.D.N.Y.1981). The investment at issue here required that each investor purchase one or more gas reclamation plants, or “Units,” from the promoter, GRI. The investor thereafter would receive 62 percent of the gross profit resulting from sales of liquid gas obtained from his particular Unit, with the remaining profit retained by GRI as its fee for operating the Unit at the well site. While the contract required GRI to maintain the well site, any costs of the well system exceeding GRI’s 38 percent share of profits were borne exclusively by the investor. Peat Marwick does not dispute that under this arrangement GRI’s fortunes would indeed rise with its investors by reason of profitable yields from the reclamation units. Rather, Peat Marwick bases its conclusion that there is no vertical commonality on its opinion that the “Investors seem to have overlooked ... that GRI would not share in the investors’ losses in the event that the plants were not successful.” See, e.g., S.E.C. v. Goldfield Deep Mines Co. of Nevada, 758 F.2d 459, 463 (9th Cir.1985) (profit-splitting arrangement where promoter’s and investor’s fortunes were dependent on promoter’s unique ore processing technique and both profits and losses shared, held to be investment contract). Peat Marwick relies on the proposition previously cited in a footnote by this Court, that where the fortunes of the promoter-defendants would not fall with that of the investors, that is, where “ ‘defendants could do no worse than maintain their position after the purchase,’ ” the test of narrow vertical commonality has not been fulfilled. Cahill, [1986-87] Fed.Sec.L.Rep. at 93,491 n. 1 (quoting Mechigian, 612 F.Supp. at 1427). Peat Marwick therefore contends that since the investors ultimately bore costs connected with their Units that exceeded GRI’s 38 percent share of profits, the test has not been met here. Peat Marwick’s interpretation of the narrow vertical commonality test is too limiting to support a reasonable definition of a “common enterprise” and hence an investment contract under the securities laws. First, it is clear that GRI’s fortunes would in fact literally “rise and fall” with those of the investors depending on the varying level of profits derived from the reclamation units over time, regardless of the apportionment of losses in the event of a shortfall. This concept was recognized by the court in Savino, 507 F.Supp. at 1230, 1239, a case which found vertical commonality. There, the plaintiff investor agreed to pay his stockbrokers a bonus equal to ten percent of the profits obtained from their management of his stock option account although losses accrued solely to the plaintiff. Id.; accord Silverstein v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 618 F.Supp. 436, 438-40 (S.D.N.Y.1985) (no common enterprise existed where commissions on a trade by trade basis were the only compensation derived from plaintiff’s account). Furthermore, the only two cases cited by Peat Marwick for the proposition that there is no vertical commonality where “defendants could do no worse than maintain their position after the purchase” can be easily distinguished from the case at hand. Mechigian, 612 F.Supp. 1421 (S.D.N.Y.1985), involved plaintiff’s one-time purchase of a lithographic plate from defendants who were to market the artwork. Plaintiff’s unsuccessful allegations of a common enterprise were grounded solely on the alleged commonality of interest in the success of the venture resulting from the utilization of nonrecourse financing where there had been an artificially inflated purchase price. The deal did not contemplate a long-term profit-splitting arrangement as in the instant case. Similarly, this Court’s decision in Cahill, [1986-87] Fed.Sec.L.Rep. at 93,491, involved sale of the print films for manufacture of books funded in large part by non-recourse promissory notes. We based our decision that there was no vertical commonality creating a common enterprise between buyer and seller on our opinion that their fortunes were not tied together — the contract provided that royalties were to be shared not during the entire course of the venture as in the case at hand, but only until the nonrecourse mortgage was paid off, after which time the purchaser was to take all. We subsequently added in a footnote Mechigian’s observation that there is no narrow vertical commonality where defendants can do no worse than maintain their position after the purchase. That proposition, however, cannot be interpreted to be an absolute condition of an investment contract. Unlike the present case, in neither Mechigian nor Ca-hill did the promoter and investor share indefinitely in the venture’s profits. In both cases, it was the absence of such indefinite profit-sharing that was sufficient to disqualify the arrangements as investment contracts under the securities laws. The courts did not need to decide whether the seller could do no worse than maintain its position in order to conclude that the instruments at issue were not securities. In Cahill, the court simply observed that this was the case, without making it the basis of its decision. To the extent, if any, that Mechigian held this factor dispositive, the Court must disagree. A contract where the promoter’s and buyer’s fortunes are forever linked by profit-sharing, even when losses are not shared, can be an investment contract and hence a security. See, e.g., Savino, 507 F.Supp. at 1239. In this sense, the investment at issue here resembles the transaction involved in In re Energy Systems Equipment Leasing Securities Litigation (No. MDL-637), 642 F.Supp. 718, 736 (E.D.N.Y.1986), which the court found to be an investment contract for purposes of the securities laws. There, the investor entered into long-term lease and service agreements involving energy conservation devices. Under the agreement, the investor leased the system from the promoter, who first undertook to locate an end-user for the conservation device, and then installed and maintained the system. Revenues based on profits realized from the energy savings of end-users were shared between the promoters and the investors. However, the arrangement contemplated that the investor would pay rent to the promoter even if the promoter failed to successfully market the system to end-users. Although the investor alone bore this risk of loss, the court held, and we so conclude in the instant case, that the investors fortunes were “inextricably and directly tied” to the fortunes of the promoters. Id. at 736. Because we find that an investment contract exists under the test for narrow vertical commonality, the Court need not reach the parties’ arguments with respect to the question of horizontal commonality. Furthermore, because the scheme here is an investment contract and thus a security under federal law, it similarly qualifies as a security under both the Martin and Texas Securities Acts. See, e.g., Cahill, [1986-87] Fed.Sec.L.Rep. at 93,491; Westchester Corp. v. Peat, Marwick, Mitchell & Co., 626 F.2d 1212, 1216-17 (5th Cir.1980). B. Section 10(b) 1. Primary Violations by the Broker Parties It is settled law that a plaintiff in an action under section 10(b), 15 U.S.C. § 78j(b)(1982), or Rule 10b-5, 17 C.F.R. § 240.10b-5 (1986), must allege that the defendant has misrepresented or omitted to state material facts in connection with the purchase or sale of a security, that the plaintiff relied upon such misrepresentations or omissions to his detriment, and that the misrepresentations or omissions were made with scienter. See, e.g., Bloor v. Carro, Spanbock, Londin, Rodman & Fass, 754 F.2d 57, 61 (2d Cir.1985); Savino v. E.F. Hutton & Co., Inc., 507 F.Supp. 1225, 1231 (S.D.N.Y.1981). In the context of Rule 10b-5, scienter includes an intent to defraud, the knowing use of a device, scheme, or artifice to defraud, and at least where there is a fiduciary duty, reckless disregard for the truth. See, e.g., Lanza v. Drexel & Co., 479 F.2d 1277, 1301 (2d Cir.1973) (en bane); Rolf v. Blyth, Eastman Dillon & Co., Inc., 570 F.2d 38, 44 (2d Cir.), cert. denied, 439 U.S. 1039, 99 S.Ct. 642, 58 L.Ed.2d 698 (1978). The Broker Parties, and in particular Austin Davenport and Management Consulting, as well as certain of their agents and employees named in the Consolidated Complaint, contend that plaintiffs have not presented any facts with respect to the alleged wrongdoing of these defendants under section 10(b), and move for dismissal under Rule 12(b)(6) and 9(b). However, it is apparent that the complaint affords these defendants fair notice of the nature of plaintiffs’ claims and the grounds upon which they rest. Credit & Finance Corp. Ltd. v. Warner & Swasey Co., 638 F.2d 563 (2d Cir.1981). Paragraphs 69 and 70 sufficiently detail numerous alleged misrepresentations and omissions made by defendants that give rise to inferences of primary Rule 10b-5 violations. Defendants assert, however, that plaintiffs failed to allege the critical component of an intent to deceive as required by Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). To the contrary, paragraph 88 of the Consolidated Complaint alleges that the Broker Parties “intended to deceive ... or acted with reckless disregard____” Rule 9(b) permits knowledge and intent to be averred generally. See Ross v. A.H. Robins Co. Inc., 607 F.2d 545 (2d Cir.1979). This liberal pleading requirement combined with the factual allegations of misrepresentations and omissions alleged in paragraphs 69 and 70 give rise to an inference that defendants had knowledge of the facts or recklessly disregarded their existence. See id. at 558; IIT v. Cornfeld, 619 F.2d 909 (2d Cir.1980). The complaint thus offers defendants adequate information to frame a response. Ross, 607 F.2d at 558. 2. Aiding and Abetting Liability The requirements for establishing aiding and abetting liability in this Circuit are well settled. Plaintiff must prove (1) a securities law violation by the primary wrongdoer; (2) knowledge of the purported violation on the part of the aider and abettor; and (3) conduct by the aider and abettor constituting substantial assistance in achieving the primary wrongdoer’s fraud. Armstrong v. McAlpin, 699 F.2d 79, 91 (2d Cir.1983). The Banking Parties, Northwestern, and Peat Marwick have moved to dismiss Investors’ first cause of action which asserts that those defendants violated section 10(b) by aiding and abetting the primary fraud of the GRI and Broker Parties. Pointing out that the complaint alleges merely that they acted recklessly, the Banking Parties first assert that the complaint is defective because it does not allege they acted with the requisite scienter. The banks argue that by reason of their nonfiduciary relationship to plaintiffs and what they term the “routine services” rendered plaintiffs, the Investors must allege, not recklessness, but that defendants intended to violate the securities laws. See, e.g., Armstrong, 699 F.2d at 91 (where there is no fiduciary duty, the assistance rendered must be knowing and substantial). However, the banks have failed to acknowledge the significance of the fact that in addition to pleading recklessness, the Investors also alleged in Paragraph 90 of the Consolidated Complaint that defendants “knew or should have known” of the fraud alleged. See also Consolidated Complaint ¶ 78. Combined with Investors’ allegations of misrepresentations and omissions by the GRI and Broker Parties, this allegation of “knowledge” is sufficient as a matter of pleading to survive this motion to dismiss. See Chemical Bank v. Arthur Andersen & Co., 552 F.Supp. 439 (S.D.N.Y.1982), rev’d on other grounds, 726 F.2d 930 (2d Cir.), cert. denied, 469 U.S. 884, 105 S.Ct. 253, 83 L.Ed.2d 190 (1984); IIT, 619 F.2d at 923-24. Furthermore, the additional clause “should have known” does not change this result as the phrase is used only in the disjunctive. IIT, 619 F.2d at 924. Finally, in response to defendants’ contentions that plaintiffs have failed to support their allegation of knowledge with any factual basis, the Court finds that one might reasonably infer knowledge and intent from the allegations of substantial assistance, constituting circumstantial evidence and considered in combination, contained in several paragraphs of the Consolidated Complaint. Such allegations include, among others, participation in atypical financing transactions and the sale, at a discount, of promissory notes among defendants. See Ross, 607 F.2d at 558; Woods v. Barnett Bank of Fort Lauderdale, 765 F.2d 1004, 1010 (11th Cir.1985); Woodward v. Metro Bank of Dallas, 522 F.2d 84, 96-97 (5th Cir.1975). The Court further finds that the Consolidated Complaint properly pleads substantial assistance, because it alleges acts of the aider and abettors that could have proximately caused the harm on which the primary liability is predicated. Bloor, 754 F.2d at 62. Without reaching the question whether those allegations consisting of inaction would be sufficient in and of themselves to find substantial assistance, the Court concludes that the Investors have alleged active wrongdoing by these defendants satisfying the substantial assistance requirement. These include, inter alia, allegations that the defendants reviewed and approved the first PPM, devised the marketing and financing scheme for GRI, and engaged in atypical financing transactions. Consolidated Complaint 1179; see, e.g., Woodward, 522 F.2d at 97 (discussing relationship between atypicality and knowledge). These allegations are issues of fact that cannot be determined on a motion to dismiss prior to discovery. See Armstrong, 699 F.2d 79; see also, e.g., Tucker v. Janota [1979] Fed.Sec.L.Rep. (CCH) 1196,701, at 94,711 (N.D.Ill.1978) (bank’s participation based on standing loan arrangements and knowledge of primary wrongdoer’s misrepresentation adequate for aiding and abetting liability). For the foregoing reasons, the Court finds that the Investors have stated a claim sufficiently under section 10(b) and denies the motion to dismiss made by those defendants referred to in paragraph 79 of the Consolidated Complaint. We reach a different conclusion with respect to the motion made by Peat Marwick to dismiss the claims filed against it by the Abish Investors, the only plaintiffs naming Peat Marwick as a defendant. The Abish Investors do not allege in the Consolidated Complaint that Peat Marwick was in any way associated with the only disclosure document specifically referred to in the Consolidated Complaint, GRI’s private placement memorandum dated April 12, 1984 — a date apparently preceding the commencement of Peat Marwick’s relationship with GRI by several months. Furthermore, the Investors do not allege that Peat Marwick conducted an audit of GRI, rendered an opinion on any GRI financial statements, or made any affirmative representations to Investors. Rather the Consolidated Complaint alleges that Peat Mar-wick, in addition to having knowledge of the fraud, substantially assisted in its implementation through six specified omissions and inactions. “Inaction on the part of the alleged aider and abettor ordinarily should not be treated as substantial assistance, except when it was designed intentionally to aid the primary fraud or it was in conscious and reckless violation of a duty to act.” Armstrong, 699 F.2d at 91; accord Woodward, 522 F.2d at 97. Absent a duty to speak, aider and abettor liability premised on inaction can be imposed only when “there is clear evidence of the required degree of scienter ... and a conscious and specific motivation for not acting on the part of an entity with a direct involvement in the transaction.” IIT, 619 F.2d at 927. The Abish Investors apparently recognize that their allegations of Peat Marwick’s “knowledge” fail to meet this strict scienter requirement. These parties focus instead on their contention that even though Peat Marwick made no actual representation to Investors, Peat Marwick still had an affirmative duty to them to act. However, a clear line of cases, the most widely cited of which is Gold v. DCL, Inc., 399 F.Supp. 1123 (S.D.N.Y.1973), holds that an accounting firm has no duty to disclose fraudulent misconduct and may not be adjudged as an aider and abettor under Section 10(b) where it has not given some representation or certification, such as an opinion or certified statement, or has not invited the public to rely on the firm’s financial judgment at the time. See, e.g., id. at 1127-28; Barker v. Lee County Bank, [1985-86] Fed.Sec.L.Rep. (CCH) ¶ 92,404 (N.D.Il,.1985) [Available on WEST-LAW, DCT database], aff'd sub nom., Barker v. Henderson, Franklin, Starnes & Holt, 797 F.2d 490 (7th Cir.1986); In re AM International, Inc. Securities Litigation, 606 F.Supp. 600, 606-07 (S.D.N.Y.1985); Royal Anchor, Inc. v. Tetra Finance (HK) Ltd., [1985-86] Fed.Sec.L.Rep. (CCH) ¶ 92,432, at 92,647 (S.D.N.Y.1986) [Available on WESTLAW, DCT database]; Grimm v. Whitney-Fidalgo Seafoods, Inc., [1977-78] Fed.See.L.Rep. (CCH) ¶ 96,029, at 91,610 (S.D.N.Y.1973); Fischer v. Kletz, 266 F.Supp. 180 (S.D.N.Y.1967); Wessel v. Buhler, 437 F.2d 279 (9th Cir.1971); Mendelsohn v. Capital Underwriters, Inc., 490 F.Supp. 1069 (N.D.Cal.1979); see also IIT, 619 F.2d at 927 (accountant had no independent duty to correct portions of prospectus other than financial statement it prepared); Rudolph v. Arthur Andersen & Co., 800 F.2d 1040 (11th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1604, 94 L.Ed.2d 790 (1987) (finding accountant’s duty of disclosure where accountant had prepared financial statements for prospectus). Some of these cases establish the principle that even if an audit is performed, where the accountant has not issued an opinion on financial statements, there is no special relationship with investors which imposes a duty of disclosure on the accountant. See, e.g., Gold, 399 F.Supp. at 1127; In re AM International, Inc. Securities Litigation, 606 F.Supp. at 606-07. In this case, where Peat Marwick did not even perform an audit and took no part in the preparation of the prospectus specified in the Consolidated Complaint, we fail to discern a duty of disclosure running to the Abish Investors. See, e.g., Barker, [1985-86] Fed.Sec.L.Rep. at 92,485-86 (auditor neither prepared, signed, audited or certified prospectus). This opinion is not altered by the Abish Investors’ most recent assertion in the Consolidated Complaint’s amended RICO count of “predicate acts” by Peat Marwick. These allegations which bear on the securities claims — including a claim that Peat Marwick mailed two engagement letters to GRI and “planned to and did offer and/or provide” GRI with management consulting and auditing services — are too neutral and attenuated from the primary wrongs alleged to give rise to an inference of proximate causation and substantial assistance. Furthermore, we are not swayed by the Abish Investors’ new allegation that Peat Marwick violated SEC Regulation S-X and thereby aided a fraud by preparing a compilation report without setting forth an opinion. The Abish Investors appear to misconstrue the difference between a compilation report, for which an opinion is not required and which appears to be not even covered by this regulation, and the statements accompanying Registration Statements contemplated by Regulation S-X. Compare 11 C.F.R. § 210.1-.02(a), (d) with AICPA Statement on Standards for Accounting and Review Services (“SSARS”) No. 1, Compilation and Review of Financial Statements, 2 AICPA Professional Standards (CCH) AR § 100.01, 100.12, 100.14 (December 1978). Our finding that Peat Marwick had no duty to the Abish Investors absent an affirmative representation is dispositive and mandates dismissal of other claims against Peat Marwick, including the Investors’ claim under section 17(a) of the Securities Act of 1933,15 U.S.C. § 77q(a) (1982). See, e.g., Chemical Bank v. Arthur Andersen & Co., 726 F.2d 930, 944-45 (2d Cir.), cert. denied, 469 U.S. 884, 105 S.Ct. 253, 83 L.Ed.2d 190 (1984) (“the standard for connection imposed by § 17(a) of the 1933 Act is at least as high as that of § 10(b)____”); Lanza, 479 F.2d at 1280 n. 2; Eriksson v. Galvin, 484 F.Supp. 1108, 1127 (S.D.N.Y. 1980) (essential elements are same for section 10(b) and 17(a) claims). Similarly, we must dismiss Investors’ claim of common law fraud against Peat Marwick, see, e.g., Rush v. Oppenheimer & Co., Inc., 592 F.Supp. 1108, 1112 (S.D.N.Y.1984) (common law nondisclosure is actionable provided there was fiduciary relationship or duty of disclosure arising from relationship of trust and confidence); Moser v. Spizzirro, 31 A.D.2d 537, 295 N.Y.S.2d 188, 188-89 (2d Dept.1968), aff'd mem., 25 N.Y.2d 941, 305 N.Y.S.2d 153, 252 N.E.2d 632 (1969), as well as the claim of breach of duty of care. See Ultramares Corp. v. Touche, 255 N.Y. 170, 189, 174 N.E. 441, 448 (1931); Credit Alliance Corp. v. Arthur Andersen & Co., 65 N.Y.2d 536, 551, 493 N.Y.S.2d 435, 443, 483 N.E.2d 110, 118 (1985) (conduct required on part of accountant linking them to parties which shows that accountant understood that parties relied). Accordingly, Peat Marwick’s motion to dismiss as to those claims is granted. Furthermore, since plaintiffs have been provided ample opportunity to amend their complaint and have asserted a willingness to have the Consolidated Complaint deemed a definitive statement of their claims, see Tr. at 23-28, we deny plaintiffs’ request to replead the claims against Peat Marwick. C. Section 17 Defendants have moved to dismiss the Investors’ claim under section 17(a) of the 1933 Act, 15 U.S.C. § 77q (1982), on the ground that no private cause of action exists thereunder. The motion is granted in part and denied in part. The Second Circuit recognized a private cause of action under section 17 in Kirshner v. United States, 603 F.2d 234, 241 (2d Cir.1978), cert. denied, 444 U.S. 995, 100 S.Ct. 531, 62 L.Ed.2d 426 (1979), finding that there was “little practical point” in distinguishing between section 10(b) and section 17 for purposes of inferring a private right. The Second Circuit has since indicated that this holding “may be open to reexamination” in light of subsequent Supreme Court decisions and the legislative history of section 17. See Yoder v. Orthomolecular Nutrition Institute, Inc., 751 F.2d 555, 559 n. 3 (2d Cir.1985); see also Zerman v. Ball, 735 F.2d 15, 23 (2d Cir.1984) (declining to reach the issue); Manufacturers Hanover Trust Co. v. Drysdale Securities Corp., 801 F.2d 13 (2d Cir.1986) (same). Upon conducting this reexamination, some of the lower courts in this district have ruled that the Kirshner holding is no longer valid and that no private cause of action exists under section 17. See, e.g., Ackerman v. Clinical Data, Inc., [1985— 86] Fed.Sec.L.Rep. (CCH) 1192,207 (S.D.N.Y.1985) [Available on WESTLAW, DCT database]; Kaufman v. Amtax Planning Corp., slip op., 85 Civ. 4520 (S.D.N.Y. June 30, 1986). While Rule 10b-5 and section 17 offer plaintiffs the same relief, Yoder, 751 F.2d at 559 n. 3, these courts have concluded that sections 10(b) and 17 can be meaningfully distinguished. See, e.g., Aaron v. Securities and Exchange Commission, 446 U.S. 680, 100 S.Ct. 1945, 64 L.Ed.2d 611 (1980) (unlike section 10(b), scienter not necessary element under section 17(a)(2) and (a)(3)). This Court, however, is inclined to agree with the court in Krome v. Merrill Lynch & Co., Inc., 637 F.Supp. 910, 916-17 n. 3 (S.D.N.Y.), vacated in part on other grounds, 110 F.R.D. 693 (S.D.N.Y.1986), that Kirshner is now the controlling law in the Second Circuit. For the purposes of this present multidistrict lawsuit, “[t]his court will adhere to the law of this Circuit [and thereby find a private cause of action under section 17] until it is determined by the court of appeals to be otherwise.” Id. Until that time, our finding that Investors have stated the elements of a claim under section 10(b) requires that their claims under section 17 similarly be upheld. See Lanza v. Drexel & Co., 479 F.2d 1277, 1280 n. 2 (2d Cir.1973); Aaron, 446 U.S. at 691, 697, 100 S.Ct. at 1952, 1956. We have addressed ourselves thus far to the section 17 claims by those plaintiffs filing suit within the Second Circuit, and for the reasons stated above, deny their motions to dismiss the claims under that section. However, the law of the Fifth Circuit squarely holds that no private right of action is available under section 17 to purchasers of securities. See, e.g., Simpson v. Southeastern Investment Trust, 697 F.2d 1257, 1258 (5th Cir.1983); Landry v. All American Assurance Co., 688 F.2d 381, 387-391 (5th Cir.1982). As a result, Investors agree with defendants that the section 17 claims of investors residing in Texas (the Allen Investors, Ditto Investors, Clarke Investors, Allibone Investors, Parks and Johnson) should be dismissed. The Court therefore holds that the section 17 claims of the Texas Investors fail to state a claim upon which relief can be granted. D. Section 12 1. Statute of Limitations Defendants contend that the Investors’ claims under section 12(1) and 12(2) of the 1933 Act, 15 U.S.C. §§ 77/(1), 77/(2) (1982), should be dismissed pursuant to section 13 of the Act, 15 U.S.C. § 77m (1982), for failure to comply with the statute of limitations. Specifically, Peat Marwick argues that the section 12(1) claims should be dismissed because Investors did not file suit “within one year after the violation____” 15 U.S.C. § 77m. They urge dismissal of the section 12(2) claims on the grounds that Investors did not bring suit “within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made____” 15 U.S.C. § 77m. With respect to section 12(1), Peat Mar-wick contends that the alleged violations— the failure to register and the failure to deliver a prospectus — occurred at the time plaintiffs purchased the Units. All purchases occurred between April and November 1984. Therefore, under Peat Mar-wick’s analysis, the statute of limitations would have barred all suits filed subsequent to a year thereafter. We agree with Investors, however, that the allegations of the Consolidated Complaint are sufficient to toll the statute of limitations by virtue of the alleged fraudulent concealment of the need to register the reclamation units with the SEC. “Federal law has long been established that where a federally related cause of action has been fraudulently concealed, or where the cause of action is itself to recover for fraud, a federally established period of limitations does not begin to run until discovery.” Dyer v. Eastern Trust & Banking Co., 336 F.Supp. 890, 901 (D.Me. 1971); Katz v. Amos Treat & Co., 411 F.2d 1046 (2d Cir.1969). “The rule depends upon a clear allegation of fraudulent eoncealihent, conscious deception or bad faith on the part of the defendants.” Competitive Associates, Inc. v. Fantastic Fudge, Inc., 58 F.R.D. 121, 123 (S.D.N.Y.1973). The complaint in this case alleges that misrepresentations were made knowingly by the Broker Parties to the Investors by way of the private placement manual and orally to the effect that the offering of Units did not require registration with the Securities and Exchange Commission. The complaint also alleges that the Banking Parties, Northwestern, and Peat Marwick failed to insure that the securities sold by GRI were registered. Moreover, the complaint states that these defendants either participated directly in the sale of such unregistered securities or substantially assisted and/or conspired in such sales. The complaint does not state when plaintiffs discovered defendants’ alleged wrongdoing. However, the complaint does plead compliance with the one year statute of limitations. We agree with the court in In re Energy Systems Equipment Leasing Securities Litigation (No. MDL-637), 642 F.Supp. 718, 745 (E.D.N.Y.1986), which excused plaintiffs’ failure to plead the date that the fraud was discovered and found on facts similar to this case that a complaint under section 12(1) was properly pled for purposes of a motion to dismiss. See also Competitive Associates, Inc., 58 F.R.D. at 124 (motion to dismiss denied on statute of limitations grounds and discovery allowed where there were questions of fact regarding existence of a fraudulent scheme and time of reasonable discovery of section 12(1) violation); see also Houlihan v. Anderson-Stokes, Inc., 434 F.Supp. 1319 (D.D.C.1977). But see, e.g., Ingenito v. Bermec Corp., 441 F.Supp. 525, 552-53 & n. 26 (S.D.N.Y.1977) (averments as to time fraud discovered required). Therefore, the Court finds plaintiffs’ allegations with respect to their 12(1) claims sufficient to withstand defendants’ motions to dismiss on statute of limitations grounds. Although we view it as a close question, we similarly find that plaintiffs’ claims under section 12(2) pass muster, at least for purposes of a motion to dismiss. Peat Marwick cites cases to the effect that a pleading under section 12(2) must set forth details as to plaintiffs’ discovery of the fraud alleged and as to their exercise of reasonable diligence in seeking out evidence of such fraud. See, e.g., Krome v. Merrill Lynch & Co., 637 F.Supp. 910, 914-15 (S.D.N.Y.), vacated in part on other grounds, 110 F.R.D. 693 (S.D.N.Y.1986). However, we are persuaded that plaintiffs’ allegations that defendants concealed the fraud, specifically by misrepresenting that the investments need not be registered with the SEC, as set forth in our discussion above in connection with section 12(1), excuses plaintiffs from detailed allegations of fact at this stage of the litigation. The question whether the statute of limitations has run raises an issue of fact, see, e.g., Krome, 637 F.Supp. at 914, and defendants are not precluded from moving for summary judgment on the issue when the facts are well in hand. In the meantime, defendants’ motions to dismiss the section 12(2) claims on the grounds that they are time barred are denied. 2. Definition of “Seller" In their second and third causes of action alleging violations of sections 12(1) and 12(2) of the ’33 Act, the Investors charge that the defendants “substantially participated in the offer and sale of [the] securities ... and/or conspired with the GRI Parties and Broker Parties to make such offers and sales of securities.” By its express language, section 12 applies only to sellers or offerors of securities and declares that they may be liable “to the person purchasing such security from [them].” 15 U.S.C. § 77/(1). Defendant banks, Northwestern, and Peat Marwick argue that Investors’ section 12 claims must be dismissed since Investors do not allege that these defendants actually sold the Units to Investors. We find that while the banks and Northwestern qualify as “sellers” for purposes of section 12, the same is not true for Peat Marwick, and the section 12 claims must be dismissed as against it alone. Despite the narrow language of the section, strict privity with the buyer is not a prerequisite to liability under section 12. Somerville v. Major Exploration, Inc., 576 F.Supp. 902, 913 (S.D.N.Y.1983); see Katz v. Amos Treat & Co., 411 F.2d 1046 (2d Cir.1969); Croy v. Campbell, 624 F.2d 709, 713 (5th Cir.1980). Conversely, a de minimis involvement in a securities offering is insufficient to sustain a section 12 claim. Katz v. David W. Katz & Co., [1983-1984] Fed.Sec.L.Rep. (CCH) If 99,669, at 97,687 (S.D.N.Y.1984) [Available on WESTLAW, DOT database]. What is required is that a section 12 plaintiff plead and prove that the defendant in question proximately caused the sale and injury, see, e.g., Hill York Corp. v. American International Franchises, Inc., 448 F.2d 680 (5th Cir.1971), or “substantially participated” in the transaction. See, e.g., Klein v. Computer Devices, Inc., 591 F.Supp. 270, 276 (S.D.N.Y.1984), modified on rehearing, 602 F.Supp. 837 (S.D.N.Y.1985). “Participation can include active participation in the transaction, or aiding and abetting, or conspiring with the seller.” Klein, 591 F.Supp. at 276; see also, e.g., Somerville, 576 F.Supp. at 913 (defendant must be seller’s agent, controlling person of the seller, or active participant in the sale); cf. Hill York Corp., 448 F.2d at 693 (defendants who were “motivating force” behind project held liable under section 12); Croy, 624 F.2d at 713 n. 5 (rejecting liability under aiding and abetting and controlling person standard in favor of causation test). While scienter is required for aiding and abetting liability under section 12, its necessity in the context of section 12 primary liability is, at most, uncertain. See Hokama v. E.F. Hutton & Co., Inc., 566 F.Supp. 636, 641-42 (D.Cal.1983); Lanza v. Drexel, 479 F.2d 1277, 1299 (2d Cir.1973) (dictum) (scienter required). The Consolidated Complaint in this case adequately pleads both primary and aiding and abetting liability under section 12 against the Banking Parties and Northwestern. Our finding that a claim is stated for aiding and abetting liability under section 10(b) is conclusive as to the adequacy of the aiding and abetting claim under section 12. See, e.g., Frankel v. Wyllie & Thornhill, Inc., 537 F.Supp. 730, 744 (W.D.Va.1982). With respect to primary liability, Investors’ complaint adequately sets forth allegations of meaningful participation and conspiracy by these defendants for purposes of a motion to dismiss. Although the complaint does not allege that defendant banks were in actual contact with plaintiffs at the time of sale, it does allege that the banks reviewed and approved the first private placement manual containing numerous misrepresentations, continued to finance GRI after learning that certain investors had defaulted based on claims of fraud, and purchased and sold Investors’ notes at a discount. It alleges that Northwestern, inter alia, assisted in the preparation of marketing materials for GRI and bonded the promissory notes provided by investors. At this stage of the litigation, Investors are entitled to have these allegations accepted as true. Klein, 591 F.Supp. at 276. Thus, regardless of whether, as the banks claim, the evidence will ultimately demonstrate that they merely innocently loaned money to investors in the ordinary course of their business — arguably an insufficient basis for imposing section 12 liability — at this time, the Court must assume that the Investors’ allegations of more significant and actual participation in the securities violations are valid. However, such averments of active and meaningful participation in the sale are absent from the Consolidated Complaint as it applies to Peat Marwick. As discussed in connection with section 10(b), the complaint fails to allege any significant affirmative acts or representations by Peat Mar-wick made concurrently with the sale of Units to Investors, or the existence of any misleading documents attributable to Peat Marwick that could serve as the predicate for concluding that Peat Marwick was the proximate cause or substantially participated or assisted in the sale. See, e.g., Kilmartin v. H. C. Wainwright & Co., 580 F.Supp. 604, 608 (D.Mass.1984) (substantial assistance is element of section 12 aiding and abetting claim); Mendelsohn v. Capital Underwriters, Inc., 490 F.Supp. 1069, 1087 (N.D.Cal.1979) (accounting firm held not to be “seller” on similar facts); Grimm v. Whitney-Fidalgo Seafoods, Inc., [1977— 78] Fed.Sec.L.Rep. (CCH) 1196, 029 (S.D.N.Y.1973) (accounting firm’s alleged partic ipation in section 12 violations insufficient for liability). Therefore, Peat Marwick’s motion to dismiss the section 12 claims against it is granted. E. Section 15 The Broker Parties allege that Investors’ fourth cause of action charging that the Brokers violated section 15(c)(1) of. the Securities Exchange Act, 15 U.S.C. § 78o (c)(1) (1982), should be dismissed because no private right of action exists under that section. Quite to the contrary, the Second Circuit unequivocally has held that a private right of action exists under section 15(c)(1). Opper v. Hancock Securities Corp., 367 F.2d 157 (2d Cir.1966); see also Franklin National Bank With respect to the section 15 claims filed by the Texas Investors, we agree with defendants that the law of the transferror forum applies. See, e.g., Berry Petroleum Company v. Adams & Peck, 518 F.2d 402, 408 n. 7 (2d Cir.1975). However, the Fifth Circuit has not considered whether a private right of action exists under section 15(c)(1), and we decline to predict the result should that court be faced with the issue. In the absence of any applicable Fifth Circuit law, we adopt the law of the Second Circuit with respect to the section 15 claims of all investors and find a private right of action. Therefore, defendants’ motions to dismiss the fourth cause of action are denied without prejudice to renewal should the Fifth Circuit rule during the pendency of this litigation that there is no private right of action under section 15. F. The Civil RICO Claims At the oral argument of these motions, a segment of the plaintiff class, the Abish Investors, were granted leave to replead the RICO allegations contained in the Consolidated Complaint. Subsequently, on November 13, 1986, the Abish Investors filed an Amended Consolidated Complaint (the “Amended Complaint”), which contains as a fifth cause of action renewed RICO allegations against named defendants. Various defendants move to dismiss the re-framed RICO allegations pursuant to Rule 12(b)(6). While a number of parties submitted affidavits in connection with the motions, when the Court offered to treat the submissions as summary judgment motions, all but defendant Financial Guaranty declined. Accordingly, in deciding the motions to dismiss, we have not considered matters outside the Amended Complaint and the memoranda of law submitted in connection with the motions. For the reasons we outline below, all of the motions to dismiss the RICO claims are denied except for the motion of Peat Marwick as to which decision is reserved. In Section I, we summarized the factual allegations contained in the Consolidated and Amended Complaints, and it is unnecessary to repeat them here. In deciding the present motions to dismiss the RICO counts, we accept as true all of those allegations and view them in the light most favorable to the RICO plaintiffs. George C. Frey Ready-Mixed Concrete, Inc., v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 (2d Cir.1977). The RICO defendants attack the sufficiency under F.R.Civ.P. 12(b)(6) of the Abish Investors’ claims. In this regard, the defendants argue that as a matter of law, RICO’s definitional provisions do not encompass the claims alleged here. In particular, the RICO defendants contend, inter alia, that the Amended Complaint (i) fails to plead the substantive predicate acts of racketeering activity, (ii) fails to allege the existence of a “pattern” of racketeering activity, and (iii) fails to plead the existence of a RICO “enterprise.” RICO is a powerful federal statute and Congress has directed the courts to construe it expansively. The statute contains the mandate that RICO’s provisions are to “be liberally construed to effectuate [RICO’s] remedial purposes.” Pub.L. 91-452, § 904(a), 84 Stat. 947. The Supreme Court echoed Congress’ direction in Sedima, S.P.L.R. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985), which reversed the Second Circuit’s requirement that civil RICO plaintiffs demonstrate a distinct “racketeering injury” to sustain a RICO claim. Broad construction of RICO’s civil provisions, the Supreme Court observed, “is the lesson not only of Congress’ self consciously expansive language and overall approach ... but also of its express admonition.” Sedima, 105 S.Ct. at 3286. We heed this lesson in deciding the motions before us. To state a civil claim for damages under RICO, a plaintiff must at the outset allege that the defendant has violated one of the substantive provisions of the RICO statute, commonly known as “criminal RICO.” 18 U.S.C. § 1962 (1976); see Moss v. Morgan Stanley Inc., 719 F.2d 5, 17 (2d Cir.1983), cert. denied sub nom., Moss v. Newman, 465 U.S. 1025, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984). By grounding his claim in one or more of the substantive subsections of section 1962, the RICO plaintiff declares the theory of the violation for which he seeks redress. While the Amended Complaint does not specifically identify the subsections of section 1962 on which the RICO cause of action is based, see Amended Complaint 11122, it appears from the legal memoranda that the Abish Investors claim that the defendants violated section 1962(a) and section 1962(c) of the statute. See Investors’ Memorandum of Law in Opposition to Certain Motions To Dismiss the Consolidated Complaint at 29-34. In our view, section 1962(c) is the substantive RICO provision that appears to be applicable to the factual framework which the Abish Investors depict in the Amended Complaint. Section 1962(c) provides in pertinent part: It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. By alleging a violation of section 1962(c), a plaintiff alleges that he has sustained an economic injury by virtue of the predicate acts the defendants are alleged to have committed. Sedima, 105 S.Ct. at 3286. The theory of a section 1962(a) violation is different. Section 1962(a) provides in part: It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has participated as a principal within the meaning of section 2, title 18, United States Code, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. Violation of this subsection consists of using or investing the proceeds of a pattern of racketeering activity. One who has sustained injury as a result of the investment of the proceeds may sue for a violation of section 1962(a). By contrast, it cannot be said that one who has suffered injury by reason of the predicate acts of racketeering has thereby been injured by the investment of the proceeds. Because the real nature of the Abish Investors’ RICO claim appears to flow from the allegation that the predicate acts induced them “to invest in [the] Units,” Amended Complaint II 110C(vi), we believe that section 1962(c), not section 1962(a), is the applicable statutory provision. We do not believe the Abish Investors could show, as they must, that they were injured in their business or property by reason of violations of section 1962(a). 18 U.S.C. § 1964(c) (1976). Morgan Stanley, 719 F.2d at 17. Accordingly, to the extent the Amended Complaint purports to, state a violation of section 1962(a), it is dismissed. To sustain RICO’s pleading burdens under section 1962(c), a plaintiff must sufficiently allege “(1) that the defendant (2) through the commission of two or more acts (3) constituting a ‘pattern’ (4) of ‘racketeering activity’ (5) directly or indirectly ... participates in (6) an ‘enterprise’ (7) the activities of which affect interstate or foreign commerce.” Morgan Stanley, 719 F.2d at 17 (2d Cir.1983). In addition, the RICO plaintiffs must show that they were injured in their business or property by reason of the violations of section 1962(c). As we have noted, an examination of the memoranda submitted in support of the motions to dismiss reveals that the defendants believe the Amended Complaint fails to meet virtually all of these pleading requirements. 1. Predicate Acts of “Racketeering Activity” For analytical coherence, it is useful to begin our analysis of the RICO counts with an appraisal of the RICO defendants’ assertions that the Abish Investors have not pleaded facts which state a claim that the defendants have committed predicate acts of “racketeering activity.” See, e.g., Reply Memorandum of Defendants Intercontinental Monetary Corporation, Edgar R. Eisner, Laurance H. Friedman and Richard Kelly in Support of Motion to Dismiss Plaintiffs’ Consolidated Complaint and for Sanctions or for Security for Costs at 38. Through this argument, the defendants attack the sufficiency of the Amended Complaint as it relates to the fourth of the elements of a RICO violation the Second Circuit delineated in Morgan Stanley. Id. The predicate acts of “racketeering activity” enumerated in the statute are quite broad; they include “nine state law felonies and the violation of more than 25 federal statutes.” Bankers Trust Company v. Feldesman, 648 F.Supp. 17, 34 (S.D.N.Y.1986). To be viable, a RICO complaint must allege facts which would, if proved, constitute acts indictable under the listed statutes. In this sense, RICO is derivative. In the preceding sections of this Opinion, we addressed the legal sufficiency of the underlying securities fraud allegations with respect to each defendant against whom such allegations have been made. We concluded that all of these claims except for those asserted against Peat Marwick were properly pleaded and could not be dismissed as. a matter of law. Allegations which are sufficient to sustain a claim of securities fraud may also ground a claim of “racketeering activity.” With respect to Peat Marwick, there are, as we discuss infra, sufficient allegations of mail and wire fraud to sustain the RICO counts pleaded in the Amended Complaint. Accordingly, we find that the Amended Complaint adequately pleads facts which, if proved, would support the conclusion that the RICO defendants engaged in predicate acts of racketeering activity through violations of the federal securities laws. The RICO plaintiffs allege that certain of the defendants carried out the securities fraud through a series of separately indictable acts of federal mail and wire fraud. RICO’s definition of “racketeering activity” includes mail and wire fraud. 18 U.S.C. § 1961(1). The elements of an indictable offense under the federal mail and wire fraud statutes are “(1) the existence of a scheme to defraud, and (2) the use of the mails or interstate wires in furtherance of the fraudulent scheme.” Tryco Trucking Co. v. Belk Stores Services, 634 F.Supp. 1327, 1333 (W.D.N.C.1986). A scheme to defraud is a plan whose object is “to deprive one of property through fraudulent or deceptive means, such as material misrepresentation [or] concealment____” Id. The factual allegations set forth in the Amended Complaint, assumed true for the purposes of these motions, adequately allege a scheme to defraud. The Abish Investors frame a picture of falsely positive factual representations about the merits and track record of the gas reclamation program, which when communicated in the context of a packaged investment offering complete with ready financing, induced them to invest. Those defendants who allegedly used the mails and wires are alleged to have known of the false representations, or to have recklessly disregarded those representations, and in furtherance of the underlying scheme to defraud, facilitated its execution. The mail and wire fraud allegations build on the securities fraud claims pursued by all investors. The Amended Complaint alleges, inter alia, that from August through November 1984, the Broker Parties, through the mails and wires, falsely represented that “Privatbanken, Northwestern, and Peat Marwick thoroughly examined and approved of the merits of the GRI offering" and that certain checks (the “Jordan Program Checks”) representing payments for the successful production of gas from Units owned by “GRI control persons” had already been paid to the owners of those Units. Amended Complaint If 110C(v). The Abish plaintiffs also claim that from April through November 1984, defendants Northwestern, Esrine, Bianco, the Banking Parties, and Intercontinental used the interstate mails “to transmit and receive, inter alia, at least twenty applications for indemnity bonds,” which were accepted with knowledge of or reckless indifference to the use of the bonds to “falsely indicate that the securities offering by GRI was not required to be registered with the Securities and Exchange Commission,” Amended Complaint 11110C(iv). It is also alleged that between April and December 1984, defendants Roseneath, Storms, Lewis, Bradbury, Makris, Jordan and Butler used the mails to distribute private placement memoranda which they knew or should have known contained numerous false statements, Amended Complaint 1111 U0C(vi), 69, 70. In addition, the RICO plaintiffs claim that between August 1, 1984 and January 22, 1985, defendant Peat Marwick, acting “at a time when it knew or acted with reckless indifference to the fact that there had been issued in the summer of 1984 and/or that the Broker Parties and/or their employees ... were distributing to the Abish Investors from August through November of 1984, Jordan Program Checks” which allegedly were used to represent to the Abish Investors that certain GRI control persons had already received distributions by virtue of gas produced by Units they owned, used the interstate mails and wires to communicate with GRI with regard to certain engagement letters which purportedly set forth Peat Marwick’s role as a management consultant and auditor in the GRI offering. See Amended Complaint U 110C(i), (ii), (iii). Each separate use of the interstate mails or wires in furtherance of a scheme to defraud constitutes a separate crime under the mail and wire fraud statutes. See United States v. Blankenship, 746 F.2d 233 (5th Cir.1984), rehearing denied (en banc), 750 F.2d 69 (5th Cir.1984) (mail fraud); United States v. Hewes, 729 F.2d 1302 (11th Cir.1984), rehearing denied (en banc), 734 F.2d 1481 (11th Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985) (wire fraud). Examined through the prism of these legal standards, the factual allegations recited above, if true, could form the basis of indictable offenses under the federal mail and wire fraud statutes against each of the defendants named. We note, with respect to defendant Peat Marwick, that dismissal of the securities fraud claims asserted against it leaves only the allegations of multiple acts of mail and wire fraud as the predicate RICO acts. Although it is a close question, the allegations framed in the complaint, assumed true, are sufficient to withstand a motion to dismiss. If, for example, the Abish Investors were to prove that Peat Marwick, with knowledge of the scheme to defraud, mailed engagement letters that furthered the plan, such mailings would constitute mail fraud. It is not necessary that the mailing contain fraudulent statements; rather, it suffices legally if the transmissions advance the execution of the scheme. See, e.g., United States v. Vardell, 760 F.2d 189, 190-91 (8th Cir.1985). That Peat Marwick owed no duty to the investors is not controlling on the mail and wire fraud counts. Compare Royal Anchor, Inc. v. Tetra Finance (HK) Ltd., [1985-86] Fed.Sec.L.Rep. (CCH) 1192,432 (S.D.N.Y.1986) [Available on WESTLAW, DCT database] (court dismisses RICO counts, based on predicate securities law violations, asserted against accounting firm where the firm had no duty to investors and where circumstances surrounding submission of multiple pleadings suggested plaintiffs were manipulating dates in the latest complaint to avoid impact of prior dismissal). Accordingly, we conclude that the predicate acts of mail and wire fraud have been sufficiently alleged to withstand a motion to dismiss on the ground that the Amended Complaint fails to plead adequately “racketeering activity” — the fourth element of a RICO violation as outlined in Morgan Stanley. However, with respect to Peat Marwick, as we discuss infra, we have serious doubts as to whether the Abish Investors have sufficiently alleged that their injuries were sustained by reason of the purported mail and wire fraud. See discussion, infra at Section II.F.4. 2. The “Pattern” Requirement To constitute violations of RICO, a defendant’s predicate acts of “racketeering activity” must constitute