Full opinion text
ORDER EISELE, District Judge. The defendant’s motion to dismiss is presently before the Court. The motion has been briefed, supplementally briefed, rebriefed and letter briefed by both sides, and is now more than ready for disposition. For the reasons set forth below, the motion will be granted in part and denied in part. I. Beneath its legal and factual complexity, this is a relatively straightforward professional negligence case. FirstSouth, F.A. used to be a federally chartered and insured, publicly held savings and loan association. On December 4,1986, the Federal Home Loan Bank Board declared that FirstSouth was insolvent and appointed the Federal Savings and Loan Insurance Corporation (FSLIC) as the failed thrift’s sole receiver. Upon enactment of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (“FIRREA”), FSLIC was dissolved, and all of its assets, including the FirstSouth receivership, were transferred to the FSLIC Resolution Fund. As the appointed manager of that Fund, the Federal Deposit Insurance Corporation (FDIC) succeeds FSLIC as the receiver for FirstSouth. FirstSouth hired the national accounting firm of Deloitte Haskins & Sells (DH & S) to perform independent audits of the thrift for three fiscal years preceding FirstSouth’s failure (fiscal 1983, 1984, and 1985). In 1989, DH & S merged with Touche Ross, another national accounting firm, creating a single general partnership under the name of De-loitte & Touche. Deloitte & Touche is the legal successor to DH & S. The FDIC now brings this professional malpractice ease against Deloitte & Touche and Deloitte Haskins & Sells (collectively, “Deloitte”) to recover “damages in excess of $400 million arising from DH & S’s negligent performance of audits at FirstSouth.” First Amended Complaint (“Comp.”) at ¶ 1. The FDIC summarizes its claim as follows: If DH & S had conducted competent audits of FirstSouth and had submitted proper reports, the institution’s outside directors and regulators would have been informed of FirstSouth’s serious problems and could have taken timely remedial action. DH & S deprived FirstSouth and federal regulators of material information thereby permitting imprudent transactions to continue unchecked and losses from them to mount. The defendants are liable for losses arising from transactions which FirstSouth would not have engaged in if DH & S had done its job right. Comp., at ¶ 3. The Complaint then goes on, at considerable length, to describe particular transactions that demonstrate Deloitte’s negligence. The FDIC explains, however, that the events it mentions in its Complaint do not comprise an exhaustive list, but merely represent examples of the kind of malpractice that DH & S committed in providing accounting services to FirstSouth. Deloitte’s position, in essence, is that the FDIC’s Complaint pleads facts which, if accepted as true, conclusively demonstrate that FirstSouth’s own conduct, and not that of its. professional advisors, caused the thrift’s losses. According to Deloitte, it cannot, as a matter of law, be held liable for failing to tell FirstSouth what FirstSouth already knew, or for the results of actions that FirstSouth would have taken regardless of, or even in spite of, what'its accountants said. From that simple and sensible premise, Deloitte fashions a proximate cause argument and a comparative fault argument. Whichever principle of tort law the defendant invokes, however, its arguments follow from the same basic idea: the FDIC — which, as First-South’s receiver, can only bring claims that would be available to the thrift — cannot show that Deloitte is legally responsible for the losses described in the Complaint, because the facts the Complaint alleges show that FirstSouth deserves all, or at least most, of the credit for causing its own problems. The defendant also argues that the plaintiffs claims based on work performed for the 1983 audit are barred by the applicable statute of limitations. II. Deloitte has moved for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that the FDIC has failed to state a claim for which relief may be granted. In considering this motion, the Court will construe the Complaint favorably to the plaintiff and accept its allegations as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). “[A] complaint should not be dismissed for failure to state a claim 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.” Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101, 2 L.Ed.2d 80 (1957). III. The first question that the Court must address is always important but rarely so difficult: who, or what, exactly, is the plaintiff? According to the FDIC, it “brings this action as Receiver for FirstSouth for the benefit of FirstSouth and its depositors and creditors.” Comp, at ¶ 10. Thus, the FDIC purports to represent a collection of interests and entities. Deloitte has objected to this multiple personality approach, arguing that the FDIC is nothing more than the thrift’s receiver, and cannot represent anyone or anything other than the legal interests of FirstSouth. The import of this dispute is plain. If the FDIC can take the form of creditors and depositors, it might be able to distance itself from any misconduct of First-South’s management that may have at least contributed to the losses for which it is trying to hold Deloitte responsible. In its recent decision FDIC v. Ernst & Young, 967 F.2d 166 (5th Cir. Aug. 3, 1992), the U.S. Court of Appeals for the Fifth Circuit recognized the significance of this question of plaintiff identity. In Ernst & Young, the FDIC, as receiver for a failed savings and loan association (Western Savings Association), sued the S & L’s accountants — Arthur Young & Company and its successor, Ernst & Young (“EY”) — for negligence and breach of contract. The theory of the complaint was very similar to the one the FDIC has presented here. As the Fifth Circuit described it: “The FDIC alleges that Western suffered $560 million in damages resulting from Arthur Young’s audits because if the audits had been accurate, Western’s board of directors or government regulators would have prevented further losses.” Ernst & Young, 967 F.2d at 169. In concluding its summary of the case, the Fifth Circuit commented: Critically important to the ultimate resolution of the case is the FDIC’s decision to bring this suit only as assignee of a claim by Western against the auditors. The FDIC has authority to sue EY in its own behalf or on behalf of Western’s creditors, but it chose not to do so. Id. Here, like in Ernst & Young, it is “critically important” to determine who and what the FDIC represents in this case. The FDIC is not attempting to bring this action on its own behalf as a government agency; it does not claim to represent the legal interests of regulators, insurers, or the American public. Unlike its posture in Ernst & Young, however, the FDIC has asserted that it is suing on behalf of an S & L’s creditors, as well as its depositors. The parties have confined their arguments addressing this issue to the question of whether the FDIC possesses the statutory power to bring this action on behalf of First-South’s depositors and creditors. Deloitte contends that FSLIC had no such authority, and that the FDIC, because it inherited an existing, pre-FIRREA receivership, cannot claim new powers — such as an ability to represent creditors and depositors — that it only acquired from the enactment of the 1989 legislation. The FDIC has responded that under 12 C.F.R. §§ 548.2(f) and 549.3(a), regulations that were in effect when FirstSouth went into receivership, FSLIC did in fact have the power to “institute ... any legal proceeding ... and in every way to represent the association, its members and creditors.” Sup.Res. at 21 n. 7. FIRREA, the FDIC argues, only provided statutory affirmation of a power that had already been exercised pursuant to valid, existing regulations. The regulations the FDIC cites do in fact authorize receivers (and conservators) of federal associations to represent the associations’ creditors and members. However, even given the authority to do so, the Court has concluded that under Arkansas law, the FDIC has not stated a viable claim on behalf of creditors or depositors in this case. In Robertson v. White, 633 F.Supp. 954 (W.D.Ark.1986), a district court applying Arkansas law noted that “[a]s a general rule, an accountant is liable to persons not in privity with him only for fraudulent misrepresentations, not for negligent ones.” Id. at 970. Under this general rule — -which is sometimes referred to as the “Ultramares exception” because of its creation by Chief Judge Cardozo in Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931) — third parties to a client-accountant relationship cannot sue the accountant for negligence, even if they have suffered harm as a result of their reliance on the accountant’s work. In limiting accountants’ liability for negligence to those with whom an accountant is in privity, Chief Judge Cardozo explained: If liability for negligence exists, a thoughtless slip or blunder, the failure to detect a theft or forgery beneath the cover of deceptive entries, may expose accountants to liability in an indeterminate amount, for an indeterminate time to an indeterminate class. The hazards of a business conducted on these terms are so extreme as to enkindle doubt whether a flaw may not exist in the implication of a duty that exposes to these consequences. Ultramares, 174 N.E. at 444. Not all jurisdictions have followed this rule. Under New Jersey law, for example, accountants owe a duty to all foreseeable users of audits who rely on the audits to their detriment. See H. Rosenblum, Inc. v. Adler, 93 N.J. 324, 461 A.2d 138 (1983); see also Wiener, Common Law Liability of the Certified Public Accountant for Negligent Misrepresentation, 20 San Diego L.Rev. 233, 260 (1983) (advocating New Jersey approach because it (1) serves “the dual functions of compensation for injury and deterrence of negligent conduct” and (2) promotes fairness by treating accountants like other parties sued for negligence). The Restatement takes a middle-ground approach, under which an accountant owes a duty (1) to third parties which the accountant intends, or knows the client intends to supply with information, and (2) to a limited group of unknown third parties — those injured in reliance on an audit in a transaction which the accountant intended to influence by its audit, or knew that its client intended to influence by the audit. See Restatement (Second) of Torts, § 552; see generally, Gromley, The Foreseen, the Foreseeable and Beyond, Accountants’ Liability to Non-Clients, 14 Seton Hall L.Rev. 528 (1984). The Robertson court recognized that other states and some “academic opinion” (including that of the American Law Institute) had rejected Ultramares, and that third parties had recently “enjoyed a limited measure of success” in bringing negligence claims against accountants. Robertson, 633 F.Supp. at 954 (citing cases). Notwithstanding this movement away from the traditional rule, however, Robertson held that it remained the law in Arkansas. No Arkansas court or federal court applying Arkansas law has reached a different conclusion since. Robertson, then, is controlling authority in this ease, and the Ultramares rule applies. The parties have focused their arguments on the availability and effect of defenses based on notions of proximate cause or comparative fault. Taking a step or two back in the elements of a tort case, however, the FDIC’s negligence claim cannot survive without the existence of a cognizable duty of care. And under Arkansas law, DH & S only owed such a duty to a party with whom it was in privity. The plaintiff has not alleged that Deloitte was in privity with anyone but its client, FirstSouth. Thus, regardless of the FDIC’s power to bring suit “for the benefit of’ depositors and creditors, the Court must dismiss any claim for negligence that did not originally belong to FirstSouth. This legal conclusion provides a significant part of the answer to the question of who or what the plaintiff is in this case. The FDIC may or may not occupy precisely the same legal position that FirstSouth would have occupied in bringing this suit. The Court has not made that determination. What has been decided, however, is that the FDIC will not be able to distinguish itself from FirstSouth through its power to represent the thrift’s creditors and depositors. The FDIC has tried to do what it elected not to do in Ernst & Young, swpra, but Arkansas law will not permit it to succeed. As a result, what the Fifth Circuit said at the outset of its discussion in Ernst & Young can also be said here: “[T]he effect of the auditor’s alleged negligence on third parties is legally irrelevant to the determination of the present case.” Ernst & Young, 967 F.2d at 169. IV. Next, the Court will consider Deloitte’s proximate cause and comparative fault arguments. A. Proximate Cause and the Imputation Issue Deloitte argues that even if it was negligent in performing the FirstSouth audits, its negligence could not have been the proximate cause of the losses the FDIC describes in its Complaint. This is a very difficult but not impossible position to maintain. Causation is a question of fact normally reserved for the trier of fact. See AMI Civil 3rd 601-503 (citing cases). Deloitte argues, however, that the allegations set forth in the Complaint, if accepted as true, establish that FirstSouth knew everything that Deloitte allegedly failed to tell it; as a matter of law and logic, the defendant reasons, Deloitte’s negligence could not have caused FirstSouth’s losses, because perfect accounting would have only given FirstSouth a more accurate restatement of the information it actually knew and used to make the decisions that resulted in its failure. In order to accept this argument, the Court would have to be persuaded, under the standard governing Rule 12(b)(6) motions: first, that certain individuals at FirstSouth already knew what Deloitte allegedly failed to tell it; second, that the knowledge those individuals possessed must, under the principle of imputation, be viewed as knowledge held by the thrift; and third, that the FDIC as the thrift’s receiver, must occupy the same position that FirstSouth would occupy, and thus be subject to the same defenses that Deloitte could assert against its former client, if FirstSouth had brought this claim. Deloitte cannot accomplish the first of these three tasks. In the Court’s view, the FDIC’s allegations fail to establish that DH & S did not tell FirstSouth anything that FirstSouth did not already know. Undoubtedly, the individuals at FirstSouth conducting the transactions described in the Complaint knew what they were doing. The Court accepts the FDIC’s argument, however, that knowledge of particular transactions is not necessarily the same thing as knowledge of the thrift’s overall financial condition. See FDIC’s Supp.Res. at 9; Feb. 27 Opp. at 6.. Even if a single individual perpetrated each of FirstSouth’s many wrongs, that person may not have known the aggregate effect of his actions on the thrift’s well-being. Moreover, a person might know the general effect of a given act without being aware of exactly how the act has harmed or helped his company. For example, an officer who arranges to park a problem loan will know that the deal will create an inaccurate impression of higher profits and lower reserve requirements. That general understanding could be enough to motivate the officer’s actions. Accountants discovering and reporting the transaction, however, could inform the officer of precisely how inaccurate of an impression he had created. Thus, even if the knowledge of every First-South employee involved in the events that caused the thrift’s losses is imputed to First-South, a possibility remains that DH & S’s audits communicated new information to its client — or at least would have communicated new information if they had been competently done. In Ernst & Young, where the defendant-accountants prevailed on a motion for summary judgement, the undisputed facts showed that the “dominating sole owner” of Western Savings “was cognizant of the [S & L’s] financial condition.” Ernst & Young, 967 F.2d at 170, 172. Because that cognizance was imputable to Western, the court concluded that the thrift could not have relied on its accountants’ audits and that the audits could not have proximately caused Western’s losses. Id. at 170-72. In this case, the FDIC has not alleged that anyone at FirstSouth was cognizant of the thrift’s financial condition, nor does such a conclusion necessarily follow from the allegations set forth in the Complaint. Consequently, the Court cannot conclude that the FDIC has failed to state a claim for negligence for the reason that Deloitte did not, as a matter of law, proximately cause FirstSouth’s losses. Deloitte and the FDIC have advanced different positions regarding (1) the extent to which certain individuals’ knowledge should be imputed to FirstSouth and (2) the extent to which the FDIC should be held accountable for that knowledge. The Court need not take up these issues here. Nonetheless, the Court hopes to focus future discussion and perhaps to narrow the scope of what will assuredly be an extremely burdensome discovery process for both sides. In Arkansas, as elsewhere, "A corporation must necessarily act through agents, and the universal rule is that knowledge of an agent is ordinarily to be imputed to the principal.” Little Red River Levee District No. 2 v. Garrett, 154 Ark. 76, 82, 242 S.W. 555 (1922); see also, e.g., Hill v. State, 253 Ark. 512, 521-22, 487 S.W.2d 624, 631 (1972) (citing Arkansas cases articulating general rule of imputation). This universal rule, however, also has a universal exception: an agent’s knowledge will not be imputed to a corporation where the agent is acting against the corporation’s interests and for his own. Additionally, imputation may not be appropriate in eases where the relevant knowledge is held by an agent who does not exercise a sufficient degree of control over the corporation’s affairs. Cf. United States v. Little Rock Sewer Committee, 460 F.Supp. 6 (E.D.Ark.1978) (questioning whether knowledge of lower level employee would be imputed to corporation for purposes of criminal prosecution). This ease will require the Court to define and to apply the "adverse interest exception" to the general rule of imputation under Arkansas law. The FDIC argues that because controlling inside officers at FirstSouth-specifically, Mr. Weichern and Roderick D. Reed -acted "contrary to interests of FirstSouth," Comp. at ¶ 3, their knowledge should not be imputed to the thrift. Deloitte argues that while the controlling officers' actions may have ultimately harmed First-South, those actions were taken for the thrift's immediate benefit; although outsiders such as creditors and investors may have been victimized, Deloitte suggests, First-South was the direct beneficiary of its officers' wrongdoing, at least in the short term, and therefore imputation is appropriate here. This argument relies on the proposition that "[f]raud on behalf of a corporation is not the same thing as fraud against it," which is drawn from the Seventh Circuit's well-received decision Cenco, Inc. v. Seidman & Seidman, 686 F.2d 449 (7th Cir.), cert. denied 459 U.S. 880, 103 S.Ct. 177, 74 L.Ed.2d 145 (1982). Courts following Cenco have reasoned that even when officers ultimately ruin their companies — which occurs when they are caught and punished for their wrongs — their knowledge should still be imputed to the corporations, because otherwise those who previously benefitted from the misconduct would be able to escape responsibility for it. See id. at 456 (imputing knowledge of top managers to company because fraud was committed on behalf of corporation, even though “when the fraud was unmasked, [Cenco’s] market price plummetted by more than 75 percent”); see also Ernst & Young, 967 F.2d at 170-71 (following Texas law, which follows Cenco, to impute knowledge of S & L’s dominant owner-officer to S & L, and not applying adverse interest exception even though officer put S & L into insolvency by pursuing unwise and illegal practices); Seidman & Seidman v. Gee, 625 So.2d 1 (Fla.Dist.Ct.App.1992) (following Cenco and other Illinois decisions, imputing knowledge to corporation because “short-term benefit” was the important factor, not “ultimate financial demise.”). But see, FDIC v. O’Melveny & Meyers, 969 F.2d 744 (9th Cir.1992) (appearing not to consider possible short-term benefits of wrongdoing in deciding against imputation, and looking instead to ultimate adverse effect of officers’ actions). Cenco is a leading case in defining the scope of the adverse interest exception to the general rule of imputation; it is especially helpful in situations where the actions of top managers might be viewed as either beneficial or harmful to their companies, depending on the point of view one takes. Cenco, however, was decided by a federal court making an effort to predict how Illinois law would treat that case. Several states have adopted Cenco as their own, but, to the Court’s knowledge, Arkansas has not. Cenco’s popularity in other jurisdictions is not surprising, however. The decision is well-reasoned, and the Seventh Circuit was guided by “the underlying objectives of tort liability,” and not by any unique or controversial principles of Illinois law, in rendering it. Cenco, then, along with a few other decisions courts often cite in discussions of the adverse interest exception, will assist the Court in determining whether individuals like Mr. Weichern and Mr. Reed were acting adversely to the interests of FirstSouth in such a way as to shield the thrift from their knowledge. This issue will still be decided, however, under Arkansas law. The parties should make further efforts to locate Arkansas cases showing how courts in this state have dealt with comparable questions. If no such cases exist, that fact should be acknowledged before resorting to the general objectives of tort liability. Additionally, Cenco and cases like it show that in order to define the scope of the adverse interest exception in cases such as this, courts require a much more complete factual record than the one that presently exists in this case. The Cenco court, in fashioning a rule that would best compensate victims and deter wrongdoing, carefully considered the way that alternative approaches would affect the parties involved in that law suit; the facts of the case helped to inform the Court of the kinds of interests that should be considered in deciding on a generally applicable rule of law. Here, the FDIC has alleged that Weichern and Reed, contrary to the interests of FirstSouth and in order to preserve the attractive compensation arrangements and other benefits which they received from FirstSouth, caused FirstSouth to enter into certain high-risk, speculative, unsafe, and imprudent transactions ... and did not make full, true, and complete reports to other members of FirstSouth’s Board of Directors with respect to such matters. Comp, at ¶ 3. The Complaint does not provide a more detailed account of who did what, and why, or of who benefitted. FirstSouth’s officers could have been acting to enrich the thrift’s stockholders as well as themselves; additionally, they could have inadvertently benefited other stockholders, even if then-intentions were purely selfish. If the only facts supporting an adverse interest argument are that FirstSouth ultimately failed, and that controlling officers engaging in wrongful conduct continued to draw their salaries, the plaintiffs position will be a difficult one to maintain. If, however, the officers were the only ones to ever benefit from their conduct, and if their preservation of “compensation arrangements” amounts to something comparable to looting or stealing from FirstSouth, then the adverse interest exception is likely to apply. The Court’s intention here is only to explain how a better understanding of the facts (in addition to a more careful review of the law) will be necessary to define and to apply a rule governing the question of whether the knowledge of certain officers will be imputed to FirstSouth. As the Court has already stated, the imputation issue is one that involves principles of corporations law and agency. The question of whether the FDIC can avoid accountability for knowledge imputed to FirstSouth-which the Court addresses below-is distinct from the one the Court has been discussing. Knowledge will not be imputed to the FDIC. Mr. Weichern and Mr. Reed did not work for the FDIC, and FirstSouth was not a subsidiary of the U.S. government or any government agency. If the FDIC constructively acquires knowledge held by FirstSouth officers, it will be because of a rule which requires the FDIC to "stand in the shoes" of the financial institution whose rights, powers, and privileges (including legal claims) it has received. Principles of imputation will determine what, if anything, FirstSouth's officers have left in the thrift's shoes. Principles of receivership will determine whether the FDIC has to stand in those shoes while it brings this lawsuit. More facts will also be necessary to determine whether particular officers (or other agents) of FirstSouth had sufficient control over the thrift’s activities to justify imputation of their knowledge to the corporation. At this point, there is no way to tell who did what, under what authority, even with respect to the examples of wrongdoing that the Complaint describes. In one recent ease brought by the FDIC against the professional advisors of two failed S & Ls, a district court determined that knowledge held by employees with “significant control” over relevant transactions should be imputed to the corporations. See FDIC v. Shrader & York, 111 F.Supp. 533, 535 (S.D.Tex.1991). In Ernst & Young, the Fifth Circuit reasoned that “the level of [corporate] responsibility [for its agents’ knowledge] must extend at least to the sole owner who dominated the board of directors.” Ernst & Young, 967 F.2d at 171. Similar circumstances allowed the Cenco court to avoid a difficult line-drawing task; because the facts showed that fraud was “permeating the top management of Cenco,” there was no need to address the hypothetical problem of knowledge possessed by a “lower down employee.” Courts properly avoid creating tests that will not need to be applied to the facts of the cases before them. This case may require the Court to determine precisely how far down corporate responsibility for an agent’s knowledge extends, or it may allow the Court to reach an easier conclusion that responsibility must extend at least to (or not as far as) a certain level of authority and control. Further discussion of this issue at this point would be premature. B. Defenses to Which the FDIC, as Receiver for FirstSouth, as Plaintiff, Will be Subject One thing the Court can determine here is the status of the FDIC as FirstSouth’s receiver, at least with respect to defenses based on proximate cause and comparative fault. The FDIC has argued that Deloitte should not be permitted to argue that First-South’s own actions were the sole proximate cause, or at least the primary cause, of its losses. The Court disagrees. First, it would be a dramatic departure from the most fundamental principles of tort law to prohibit Deloitte from arguing that its actions were not a proximate cause of FirstSouth’s losses. Proximate cause is an element of the plaintiffs case, and assuming this case goes to trial, the FDIC will have to prove it by a preponderance of the evidence. The FDIC has stated, “Regardless of the conduct of FirstSouth’s officers and directors, Defendants are responsible for the consequences of their audit shortcomings.” Opp. at 7. But in the Court’s view, Deloitte is certainly entitled to argue that because of “the conduct of FirstSouth’s officers and directors,” its alleged “audit shortcomings” had no “consequences” at all. (That, essentially, was the Fifth Circuit’s conclusion in affirming the grant of summary judgment against the FDIC in Ernst & Young, supra.) Comparative fault is an affirmative defense and not an element of the plaintiffs case. Deloitte has urged the Court to conclude, as a matter of law, that FirstSouth (and thus the FDIC) was at least as much at fault for the thrift’s losses as its accountants, and that therefore the plaintiff may not recover under Arkansas’ comparative fault law. The Court cannot think of a more inappropriate argument to make in the context of a 12(b)(6) motion. Whether it is ever proper to engage in a comparative fault analysis at this stage of a case — which is doubtful — the Court will not do so here. Whether expressed as a proximate cause. argument or a comparative fault argument, Deloitte’s position is that FirstSouth is responsible for its own losses. The FDIC’s position is that the conduct of FirstSouth or its managers cannot form the basis of any defense to the claim it has brought in this suit. As the Court has already stated, the standard governing Rule 12(b)(6) motions will not permit it to reach the merits of Deloitte’s proximate cause or comparative fault arguments. The FDIC is correct to point out that it is not subject to every defense that might have been brought against FirstSouth. For example, under D’Oench, Duhme & Co., Inc. v. FDIC, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942) and a related line of cases, a defendant borrower being sued by the FDIC for defaulting on a debt may not assert an affirmative defense based on undocumented, oral side agreements or fraud. The D’Oench doctrine is an exception, created by federal law, to the general rule that when the FDIC acts as the receiver for a failed financial institution, it “stands in the shoes” of that institution. See Kelley v. First Westroads Bank, 840 F.2d 554, 559 (8th Cir.1988) (“In short, the FDIC [as receiver] stands in the position of the insolvent bank.”); FDIC v. Harrison, 735 F.2d 408, 412 (11th Cir.1984) (“It has been held that when FDIC acts as a receiver and liquidating agent for a failed bank, as it did here, it merely ‘stands in the shoes of the insolvent bank.’ ”). In deciding D’Oench, the Supreme Court fashioned a rale that would promote the federal policy, which had been expressed by statute (section 12B of the Federal Reserve Act, 12 U.S.C. § 264), “to protect [the FDIC], and the public funds it administers, against misrepresentations as to the securities or other assets in the portfolios of the banks which [it] insures or to which it makes loans.” D’Oench, 315 U.S. at 456-57, 62 S.Ct. at 678-79. The Court could create a D’Oench-type exception under federal law that would protect the FDIC from defenses based upon the conduct of a thrift’s officers when the FDIC brings suit as the thrift’s receiver. However, the Court has decided that, absent statutory guidance such as that the Supreme Court relied upon in D’Oench, it should not adopt a rale that would necessarily represent a more far-reaching departure from the general rules of receivership than D’Oench and its doctrine have ever achieved. Instead, the Court is persuaded by the reasoning in Ernst & Young and FDIC v. Cherry, Bekaert & Holland, 742 F.Supp. 612 (M.D.Fla.). In those cases, like this one, the FDIC brought suit against accounting firms for professional negligence in auditing financial institutions that had gone into receivership. The district court in Cherry, Bekaert — relying on an Eleventh Circuit decision for the proposition that “the special protections afforded the FDIC by D’Oench and its. progeny are limited in scope” — refused to extend D’Oench to cases involving “defendants other than borrowers and defenses much different than those considered by the D’Oench progeny courts.” Id., 742 F.Supp. at 615. The court therefore concluded that the defendant accounting firm was entitled to assert a defense of “comparative and/or contributory negligence” against the FDIC in a professional negligence case. Id. at 613. In Ernst & Young, the Fifth Circuit cited Cherry, Bekaert in reaching a similar conclusion. The defendant accounting firm in Ernst & Young, as the Court has noted, won summary judgment because according to the court of appeals, the undisputed facts of the case showed that the accountants’ alleged negligence in auditing a thrift that later failed could not have proximately caused the thrift’s losses. Ernst & Young, 967 F.2d at 170-72. The court stated: “We affirm the district court’s holding that the FDIC is not entitled to special protection when it brings a tort claim against a third party on behalf of a defunct financial entity.” Id. at 170. In light of the magnitude of the thrift crisis and the responsibilities that have been placed upon the FDIC, Congress might act to create the kind of special protection that Ernst & Young denied the FDIC in cases where professional advisors have been negligent in performing services for federally insured financial institutions. Until it does, however — or at least until it enacts legislation expressing a federal policy that would be promoted by giving the FDIC the protection it asks for here — the Court believes that the correct approach is the one taken in Cherry, Bekaert and Ernst & Young. Therefore, Deloitte will be permitted to assert proximate cause and comparative fault defenses based upon the conduct and knowledge of FirstSouth. C. The Kind of Fault Accountants Can Compare to Their Oum When Sued for Professional Negligence Under Arkansas Law The Court has decided that Deloitte is entitled to assert a comparative fault defense against the FDIC. A question remains, however, as to the type of comparative fault defense Deloitte will be able to make. In some states, accountants sued for negligently failing to discover wrongdoing by a client’s employee may only assert a limited defense based on the client’s relative fault for the harm suffered. In those states, a client’s negligence may only provide support for an accountant’s defense to the extent the client’s negligence contributed to the accountant’s failure to perform its duties and report the truth. The first case to adopt this rule was National Surety Corp. v. Lybrand, 256 A.D. 226, 236, 9 N.Y.S.2d 554, 563 (1939). The most frequently cited recent case adopting the National Surety rule is Lincoln Grain, Inc. v. Coopers & Lybrand, 216 Neb. 433, 345 N.W.2d 300 (1984). (Lincoln Grain is popular enough to displace National Surety, at least on occasion, as the case that gives the rule its name.) Other cases following National Surety include Fullmer v. Wohlfeiler & Beck, 905 F.2d 1394 (10th Cir.1990) (decided under Utah law); Hall & Co. Inc., v. Steiner & Mondore, 147 A.D.2d 225, 228, 543 N.Y.S.2d 190, 191-92 (1989); JewelCor Jewelers & Distrib., Inc. v. Corr, 542 A.2d 72, 80 (1988), appeal denied, 524 Pa. 608, 569 A.2d 1367 (1989); Greenstein, Logan & Co. v. Burgess Marketing, Inc., 744 S.W.2d 170, 190 (Tex.App.1987); Shapiro v. Glekel, 380 F.Supp. 1053, 1058 (S.D.N.Y.1974); Cereal Byproducts Co. v. Hall, 8 Ill.App.2d 331, 132 N.E.2d 27, 29-30 (1956), aff'd, 15 Ill.2d 313, 155 N.E.2d 14 (1958). The two commentators who have considered the question also prefer the National Surety rule to one allowing accountants to assert an unrestricted defense based on a client’s negligence. See Menzel, The Defense of Contributory Negligence in an Accountant’s Malpractice Action, 13 Seton Hall L.Rev. 292 (1983); Hawkins, Professional Negligence Liability of Public Accountants, 12 Vand.L.Rev. 797 (1959). The FDIC has urged the Court to follow National Surety in ruling on Deloitte’s motion to dismiss. The National Surety rule does not bar the assertion of a contributory negligence defense but merely limits its scope~ States following National Surety allow accountants to blame their clients, but only foz conduct that contributes to the accountants mistakes, as opposed to conduct that ma~ have directly caused the clients' losses. Such a rule might not make a significant differencE in the outcome of this case. The Complaint faults Deloitte for, among other things, negligently relying on financial statements provided by FirstSouth. Instances of FirstSouth's misconduct, therefore-for example, its disclosure of false descriptions of its activities and financial status-could very well have contributed to DH & S's negligence. The Complaint does not describe a purely passive client who could only be faulted for failing to make more diligent, aggressive efforts to discover employee misconduct. (That is the situation described in National Surety and most of the cases following it.) Of course, further development of the facts must occur before the Court reaches any conclusion with respect to the question of whether First-South's wrongdoing contributed to Deloitte's wrongdoing. At this point, however, it appears that a decision to adopt the National Surety rule would not leave Deloitte without a defense based on its client’s responsibility for the harm the thrift suffered. National Surety has not won universal acceptance. The Supreme Court of Minnesota, for example, has recently declined to follow it. See Halla Nursery v. Baumann-Furrie & Co., 454 N.W.2d 905 (Minn.1990). The parties have not cited an Arkansas decision addressing the scope of a contributory fault defense in an accountants malpractice case, and the Court is not aware of one. Therefore, the Court confronts the task of predicting how the highest court of this State would resolve the question. See Gearhart v. Uniden Corp. of America, 781 F.2d 147, 149 (8th Cir.1986). It has concluded that the Arkansas Supreme Court would be persuaded by the Minnesota Supreme Court’s decision in Halla Nursery, and would therefore permit an accountant sued for professional negligence to assert a traditional, unrestricted comparative fault defense based upon its chent’s wrongdoing. In National Surety, the defendant accountants, who had been hired to audit the plaintiff stockbroker company, failed to discover that a cashier had been embezzling funds from the brokerage. In support of its decision to reject the accountants’ defense that the plaintiff had been contributorily negligent in running its business, the Court explained: “We are ... not prepared to admit that accountants are immune from the consequences of their negligence because those who employ them have conducted their own business negligently.” National Surety, 9 N.Y.S.2d at 563. Courts following National Surety (and commentators recommending its rule) have expressed a similar view; without such a rule, they reason, accountants would achieve complete immunity from liability for negligently failing to do a job their clients properly rely on them to do. The U.S. Court of Appeals for the Tenth Circuit, for example, upon carefully considering the question, recently concluded that Utah law would adopt the National Surety approach because “the more fundamental principle is that the accountant should not be absolved of the duty undertaken by him to one reasonably relying on his audit unless the plaintiffs negligence contributed to the auditor’s misstatement in his reports.” Fullmer, 905 F.2d at 1399. The Court does not believe that a failure to follow National Surety would “absolve” accountants of their duties or provide them with immunity from liability for their negligence — at least not under a comparative fault scheme such as Arkansas’. The New York Court deciding National Surety was understandably concerned about the consequences of the approach that had been taken in Craig v. Anyon, supra, which it rejected. Under the traditional doctrine of contributory negligence in place at that time, any negligence on the part of the plaintiff established a complete bar to recovery. And in cases of undetected wrongdoing by an employee, it would not be unrealistic to assume that some carelessness (or imputed wrongdoing) on the part of the employer could always be shown. However, Deloitte points out that Arkansas, like Minnesota, has adopted a broad doctrine of comparative fault, and that therefore, the Minnesota Supreme Court’s decision in Halla Nursery provides the most appropriate guidance for a decision here. Other state courts (in addition to the Minnesota Court) have recently accepted and advanced this argument. See Devco Premium Finance Co. v. North River Ins. Co., 450 So.2d 1216, 1220 (Fla.Dist.Ct.App.1984); Capital Mortgage Corp. v. Coopers & Lybrand, 142 Mich.App. 531, 369 N.W.2d 922, 925 (1985). These decisions reason that without the harsh consequences of a contributory negligence rule, a National Surety-type exception to the broadly applicable principle of comparative fault is not necessary or desirable. The Court agrees and feels that Arkansas would as well. Accountants are capable of harmful negligence, as are their clients. The Arkansas comparative fault law is capable of recognizing and distributing fault between parties whose misconduct contributed to an actionable loss. As the State Supreme Court has stated, “The purpose of our comparative negligence statute is to distribute the total damages among those who caused them.” Stull v. Ragsdale, 273 Ark. 277, 620 S.W.2d 264, 267 (1981). The Court believes that the law can achieve its purpose in accountants malpractice actions, and that its application will not improperly protect accountants from liability for the portion of harm caused by their professional negligence.- The Court agrees with the Minnesota Supreme Court’s comments in Halla Nursery that [accountants, like other professionals, are held to a standard of care which requires that they exercise the average ability and skill of those engaged in that profession. Failure to exercise ordinary care in conducting accounting activities may expose an accountant to allegations of negligence. By the same token, the persons who hire accountants, usually businesspersons, should also be required to conduct their business activities in a reasonable and prudent manner. 454 N.W.2d at 909 (quotations and citations omitted). The Court concludes that the highest court of this State would follow the traditional Arkansas rule of comparative fault in accountants malpractice cases, because such a rule would appreciate and work to enforce the respective duties of accountants and their clients. Neither party to these disputes deserves or requires exceptional protection or exceptional exposure to suit. A comparative fault approach, unrestricted by the National Surety rule, is capable of an even-handed apportionment of liability for harm in this type of case. V. Lastly, the Court takes up the statute of limitations issue. Deloitte argues that under the applicable statute of limitations, any part of the FDIC’s claim based on DH & S’s performance of the audit for fiscal 1983 is time barred. Under Arkansas law, the limitations period for professional negligence is three years, and it begins to run at the time the tortious conduct is committed. See Ark. Stat.Ann. § 16-56-105 (1987). DH & S completed the 1983 audit by early September of 1983. FirstSouth went into receivership on December 4, 1986. Therefore, Deloitte points out, the limitations period of three years had already run when FSLIC was appointed the sole receiver of FirstSouth, and the receiver is not entitled to assert claims that were already barred by the state statute of limitations when the receiver acquired them. See Mem. at 22. The FDIC does not argue that Deloitte has misidentified the applicable statute of limitations; nor does the FDIC argue that it is entitled to bring this suit even if the limitations period had run by the time First-South went into receivership. It contends, however, that the statute was tolled — or at least could have been, depending on the resolution of factual questions — for two reasons: (1) the continuous treatment doctrine, and (2) fraudulent concealment. The Court has determined that the allegations now contained in the Amended Complaint are insufficient to support either of the FDIC’s tolling theories, and that therefore the part of the plaintiffs claim based on the 1983 audit cannot survive a motion to dismiss. A. Pleading Requirements Deloitte faults the FDIC for first raising its continuous treatment and fraudulent concealment arguments in response to the motion to dismiss. This criticism is somewhat overstated. A statute of limitations provides an affirmative defense that might be either asserted or waived. As a general rule, plaintiffs have no duty to anticipate affirmative defenses; thus, they are not ordinarily required to plead avoidance of a limitations bar. A limitations defense, however, may be asserted in a motion to dismiss. “When it ‘appears from the face of the complaint itself that the limitation period has run,’ a limitations defense may properly be asserted through a 12(b)(6) motion to dismiss.” Wycoff v. Menke, 773 F.2d 983, 984-85 (8th Cir.1985) (quoting R.W. Murray Co. v. Shatterproof Glass Corp., 697 F.2d 818, 821 (8th Cir.1983)), cert. denied, 475 U.S. 1028, 106 S.Ct. 1230, 89 L.Ed.2d 339. So, while the FDIC did not need to anticipate Deloitte’s assertion of a limitations defense by formally and expressly pleading a tolling doctrine, its Complaint does need to allege facts adequate to support the application of a doctrine on which it would rely should such a defense be raised at this stage. Because the defense has been raised, the Court will consider what “appears from the face of the complaint,” keeping in mind the standard governing Rule 12(b)(6) motions. The question these principles require the Court to consider, then, is whether the FDIC’s Complaint contains allegations which, if true, show the merit of one of its arguments as to why the statute of limitations should be tolled in this case. B. Continuous Treatment The continuous treatment doctrine originated in the context of medical malpractice actions. It operates to toll a statute of limitations during the time that a patient is receiving continuous treatment for a given illness or injury. Here, the FDIC argues that DH & S’s 1983 audit was part of a continuous course of accounting treatment that the firm provided to FirstSouth through 1986. Of the many states that apply the continuous treatment doctrine in medical malpractice cases, only two (New York and Virginia) have extended it to the context of accountants malpractice. Arkansas has not, nor has it refused to do so. The Court need not determine whether Arkansas would apply the continuous treatment doctrine to accountants malpractice cases, however, because the FDIC has not alleged sufficient facts to show continuous treatment, as the doctrine defines it, in this case. New York invented the continuous treatment doctrine in Borgia v. New York, 12 N.Y.2d 151, 237 N.Y.S.2d 319, 187 N.E.2d 777 (1962), and that decision contains the most frequently quoted statement of the doctrine’s scope. Borgia states: [W]hen the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint, the “accrual” comes only at the end of the treatment. ... The “continuous treatment” we mean, however, is treatment for the same or related illnesses or injuries, continuing after the alleged acts of malpractice, not mere continuity of a general physician-patient relationship. Id. at 779. The Complaint does not allege facts showing that the “treatment” DH & S provided to FirstSouth was for the same or related problems. Instead, the Complaint merely describes a general and ongoing accountant-client relationship. If the continuous treatment doctrine applied under the alleged facts of this case, it almost certainly would apply in every case involving an accountant that had performed audits for a client in consecutive years. That result is not acceptable, nor is it called for by the doctrine described in Borgia and adopted by the Arkansas Supreme Court in Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988). The FDIC points to three facts in support of its argument that DH & S provided First-South with continuous treatment between 1983 and 1986. See Opp. at 27. First, it points out that “DH & S conducted annual audits from 1983 to 1986_” That fact cannot suffice to show anything more than a continuing client-accountant relationship. It provides no support for an argument that the treatment involved the same condition or problem. Again, the implications of an alternative conclusion are far too sweeping: no statute would begin to run against any professional who provided any regular services to an individual or entity over a period of time. Second, the FDIC states that “FirstSouth officers consulted frequently with DH & S between audits, including seeking advice regarding how to structure transactions.” Id. One paragraph of the Complaint is cited in support of that contention, which reads as follows: From at least 1984 until late 1986, Lowery and FirstSouth’s President and Chief Operating Officer consulted frequently with Posey and Haigh. Through Posey and Haigh, DH & S provided advice to FirstSouth on numerous matters, including how to structure transactions in order to achieve desired accounting treatment. Comp, at ¶ 35. Tad Lowery worked for DH & S during the 1983 audit and then took a position with FirstSouth. William Posey and Michael Haigh worked for DH & S during the relevant time period and had significant roles in preparing the FirstSouth audits. These allegations do not describe continuous treatment of the same problem. First, the Complaint states that the consultations and advice began in 1984. It does not make any effort to connect these events, temporally, to the 1983 audit; in fact, it does not even allege that meetings occurred prior to the completion of the 1984 audit. Second, the Complaint makes no effort to connect the advice and consultations to the audits in a substantive way. It is silent as to the content of the advice the DH & S employees gave, and as to how that advice related to the work the accountants performed in auditing FirstSouth. Audits and accounting advice could be part of a continuing service that an accountant provides a client to address the same or related problems. That is not, however, what the FDIC’s Complaint alleges. The third and last fact the FDIC cites in support of its continuous treatment argument is that “[t]he interrelationship between audits is also shown by the continuing problems with many of the same troubled loans.” Opp. at 27. This is another argument that, if accepted, would toll statutes of limitations from the outset of almost any client-accountant relationship. Accountants auditing a business in consecutive fiscal years will, absent exceptional circumstances, encounter familiar transactions, assets, and liabilities. Unless a company completely reinvents itself between audits, the kind of fact the FDIC alleges here will always exist. If the continuous treatment doctrine, as Borgia cautioned, should not extend to the general professional-client relationship, the presence of transactions with a life span of more than one fiscal year cannot be enough to toll a statute of limitations. An audit is to accounting what a comprehensive annual physical examination is to medical treatment. Viewing FirstSouth as the patient and DH & S as the doctor, this helpful analogy can be expanded to include the pleaded facts of this case. By recasting the relevant events as a medical malpractice case, one can more easily appreciate why the continuous treatment doctrine cannot apply here, even if Arkansas were to extend it beyond the context in which it originated. Consider, then, the following hypothetical set of facts. Between 1983 and 1986, a patient went to a doctor for thorough yearly checkups. Each year, the doctor happily reported that the patient was in good physical condition. The patient, however, was actually suffering from an illness that the doctor carelessly overlooked from one year to the next. Some of the symptoms of the illness were always present, while others appeared and receded. All, however, would have been discovered by a doctor whose conduct met the standard of professional care. Between check-ups, the doctor gave the patient some medical advice; at present, nobody knows anything about the content of the advice, when it was given, or whether it related to the check-ups in any way. After four years, the patient died of the illness. The patient's survivors now sue the doctor for malpractice, claiming that if the doctor had discovered and informed someone about the patient’s true condition, something could have been done to treat or even to cure the patient. These facts would not call for the application of the continuous treatment doctrine. They do not describe a continuous course of treatment “for the same or related illnesses or injuries,” but instead describe a “mere continuity of a general physician-patient relationship.” Borgia, supra. The same must be said for the Complaint’s description of the relationship between DH & S and First-South. Again, the Court is not saying that the performance of audits in consecutive fiscal years can never form part of a course of providing professional services that would call for the application of the continuous treatment doctrine (in a jurisdiction that extended it to accountants malpractice cases). Accepting the FDIC’s argument, however, would mean that the performance of consecutive yearly audits would always constitute continuous treatment. The Court is not willing to accept that result, nor should it under a proper application of the continuous treatment doctrine. Because the applicable limitations period has apparently run with respect to DH & S’s preparation of the 1983 audit, the FDIC needs to have made allegations which, when accepted as true, show that the preparation of the 1983 audit was part of a continuing course of treatment for the same or a related problem. In deciding whether the FDIC has met this requirement, the Court must confine its focus to the face of the Complaint. It would be improper to consider what might have occurred here but what has not been pleaded. The mere possibility of continuous treatment, which can be imagined but which has not been alleged, is not enough; such a possibility, however, is all that appears on the face of the Complaint. The FDIC has failed to plead facts describing continuous treatment. Therefore, the Court cannot accept this argument for tolling the statute of limitations. C. Fraudulent Concealment The FDIC next argues that the statute of limitations was tolled by DH & S’s fraudulent concealment. It correctly points out that under Arkansas law, “concealment of the wrong” does operate to toll the statute of limitations in professional malpractice cases. See Ford’s, Inc. v. Russell Brown & Co., 299 Ark. 426, 773 S.W.2d 90, 92-93 (1989). The FDIC has also demonstrated that Arkansas courts have tolled statutes because of constructive fraud. See Opp. at 28-29 (citing cases). As the Court has stated, in order to survive a motion to dismiss based upon an apparently applicable limitations bar, a complaint must plead the facts required to show why the defense should not apply. This pleading standard is particularly difficult to meet when the tolling theory is based on a type of fraud, including fraudulent concealment, because of the requirement under federal and State law that fraud be pleaded with particularity. See Fed.R.Civ.P. 9(b); Ark. R.Civ.P. 9(b). Under the doctrine of fraudulent concealment, if a defendant conceals from the plaintiff the existence of a cause of action, the statute of limitations is tolled. To toll the statute, the plaintiff must allege in the complaint that: (1) the defendant concealed the conduct that constitutes the cause of action; (2) defendant’s concealment prevented the plaintiff from discovering the cause of action within the limitations period; and (3) until discovery plaintiff exercised due diligence in trying to find out about the cause of action. Pinney Dock and Transport Co. v. Penn Cent Corp., 838 F.2d 1445 (6th Cir.), cert. denied, 488 U.S. 880, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988). See also, e.g., Gibson v. United States, 781 F.2d 1334, 1345 (9th Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 979 (1987); Dymm v. Cahill, 730 F.Supp. 1245, 1255-56 (S.D.N.Y.1990). In the Court’s view, the FDIC has not come close to meeting this pleading standard. The Complaint does not contain any of the required allegations; moreover, it does not contain facts which can be collected to show the necessary elements of fraudulent concealment. The FDIC relies upon one episode to show DH & S’s fraudulent concealment of its wrongdoing. At the end of fiscal 1983, First-South recorded a loan loss reserve of approximately $3.7 million. DH & S, in performing the 1983 audit, erroneously concluded that FirstSouth had sold participations worth about $1 million in a problem loan (the “Sandpiper II” loan), and that the thrift had therefore over-estimated its anticipated loss for that loan. DH & S thus instructed First-South to reduce its loan loss reserve by $1 million to a total amount of $2.7 million, which FirstSouth did. DH & S discovered its mistake after it had issued its opinion certifying that FirstSouth’s 1983 Financials, which reported the $2.7 'million loan loss reserve, fairly presented the thrift’s financial position as of the close of fiscal 1983; nonetheless, DH & S did not require FirstSouth to restate the 1983 Financials and did not withdraw its opinion on them. Nine days after DH & S discovered its mistake, First-South removed the Sandpiper Loans from its books without showing a loss by parking them for three months with insiders. See Comp. at ¶¶ 47-53. The loans were later disposed of through additional sham transactions. See Comp. at ¶ 54 et seq. In making its fraudulent concealment argument, the FDIC states, “The Complaint alleges that DH & S engaged in a cover-up of its $1 million error in calculating the proper loan loss reserves for the 1983 audit.” Opp. at 30. First of all, the Complaint does no such thing. It alleges that DH & S discovered its mistake and did nothing about it. It does not allege that DH & S took active steps to conceal its mistake from anyone. In fact, the Complaint does not even allege that DH & S knew about the transactions through which FirstSouth transferred the Sandpiper loans. Second, even if DH & S did do something to cover up its error, the Complaint does not allege that its effort was successful. In fact, the individuals at FirstSouth who knew about the Sandpiper loans apparently knew better than to believe the accountants; otherwise, they may not have acted so quickly and effectively to remove the loans from FirstSouth’s books. Lastly, and critically, the Complaint does not allege that anyone ever took any steps to discover whether DH & S had acted wrongfully, either with respect to the Sandpiper loans or any other aspect of DH & S’s work for FirstSouth, during 1983 or afterwards. Neither the Complaint nor the FDIC’s arguments touch upon this due diligence requirement of pleading (and later proving) fraudulent concealment. Turning now to the FDIC’s constructive fraud theory, it is important not to lose sight of what the FDIC is arguing: that the statute of limitations should be tolled by DH & S’s fraudulent concealment. At times, the FDIC see