Full opinion text
OPINION FARNAN, District Judge. I. INTRODUCTION Presently before the Court in this putative securities class action are a number of motions filed by both parties: (1) Defendants’ motions to dismiss the second consolidated amended complaint (“complaint”), (2) Plaintiffs’ motion to disqualify Hutchins, Wheeler & Dittmar as counsel for the Lee Defendants, (3) Plaintiffs’ motion for class certification, (4) Plaintiffs’ motion to file third consolidated amended complaint, and (5) two motions to compel filed by Plaintiffs. For the reasons stated, the Court will (1) grant in part and dismiss in part both Defendants’ motions to dismiss, (2) deny Plaintiffs’ motion to disqualify HW & D, (3) grant Plaintiffs’ motion for class certification, (4) grant in part and deny in part Plaintiffs’ two motions to compel, and (5) deny Plaintiffs’ motion to file third consolidated amended complaint. A. The Parties 1. The Plaintiffs Plaintiff Ronald Goldstein purchased twenty units of Fund II on November 10, 1989. Plaintiff William Seidel purchased ten units of Retirement Fund II on November 10, 1989. 2. The Funds ML-Lee Acquisition Fund II, L.P. (“Fund II”) and ML-Lee Acquisition Fund (Retirement Accounts) II, L.P. (“Retirement Fund II”) (together with Fund II designated “the Funds”) are Delaware limited partnerships. In addition, both are closed-end mutual funds. The Funds are business development companies under the Investment Company Act and reporting companies under the 1934 Act. Fund II is authorized to borrow money, and thus Fund II is distinguishable from Retirement Fund II in that certain tax-exempt investors cannot invest in Retirement Fund II. 3. The Lee Defendants Defendant Thomas H. Lee Advisors II, L.P. (“Advisors II”), also a Delaware limited partnership, serves as the investment adviser to the Funds. Individual defendant Thomas H. Lee (“Lee”) is an individual general partner of the Funds and of Advisors II. Defendant Thomas H. Lee, Co. (“the Lee Co.”) is a sole proprietorship owned by Mr. Lee. The Lee Co. formed Advisors II and several of its managers have interests in and are advisors to Advisors II. The other individual general partners of the Funds are Vernon R. Alden, .Joseph L. Bower, and Stanley H. Feldberg (“IGPs”). Defendant T.H. Lee Mezzanine II (“Lee II”), a Massachusetts business trust, is an administrative general partner of Advisors II. 4. The Merrill Lynch Defendants Merrill Lynch & Co., Inc. (“Merrill”) is a Delaware corporation. Merrill Lynch, Pierce, Fenner & Smith, Inc. (“MLPF & S”), a wholly owned subsidiary of defendant Merrill, is the underwriter for the Funds’ offering. ML Mezzanine II, Inc. (“ML Mezzanine”), also a wholly-owned subsidiary of Merrill, is the sole general partner of defendant Mezzanine Investments II, L.P. (“Mezzanine Investments”). Mezzanine Investments is a limited partnership, with Advisors II serving as its sole limited partner. Mezzanine Investments serves as the managing general partner of the Funds. ML Fund Administrators, Inc. (“Administrators”), a Delaware corporation and another wholly-owned subsidiary of Merrill, is the administrator of the Funds. 5. The Individual Defendants Individual Defendants Matthew D. Castag-na, Rosalie Y. Goldberg, Robert Miller, Frederick J.C. Butler, Kevin K. Albert, Greene, Warren C. Smith, Jr., and J. Huston McCullough (“Individual Defendants”) are the officers and directors of the managing partners of the Funds. 6.Hutchins, Wheeler & Ditimar Defendant HW & D is a law firm which serves as general counsel to the Funds. HW & D advised the Securities and Exchange Commission (“SEC”) that the Funds would not make any investments in companies that were controlled by Lee Co. in absence of an exemptive order under section 57(a) of the Investment Company Act. B. Relevant Non-parties 1. Fund I ■ Like the Funds, Fund I is a Delaware limited partnership. Lee and the individual general partners of the Funds serve as the individual general partners of Fund I. Thomas H. Lee Advisors I (“Advisors I”) serves as the investment advisor to Fund I. The officers and directors of Advisors I serve as officers and directors of Advisors II. 2. Hills Department Stores, Inc. Hills Department Stores, Inc. (“Hills”) is a Delaware corporation that has been controlled by Lee since 1985. Both Fund I and Funds invested in Hills. Most, if not all, of Lee II’s officers and directors and Advisor II’s limited partners and officers owned stock in Hills. Throughout the late 1980’s, Hills was in a precarious financial condition. Funds II eventually invested in Hills. Subsequently, Hills filed for bankruptcy. 3. Petco Animal Supplies Inc. Petco Animal Supplies, Inc. (“Petco”) is a Delaware corporation. On July- 20,1988, Lee Co., Fund I, and Drexel Burnham Lambert, Inc. (“Drexel”), among others acquired the predecessor to Petco through a leveraged buyout. Fund I and Lee Co. acquired 18.5% and 4.5% respectively of Petco Holding Company (“PHC”). Petco was a wholly owned subsidiary of PHC. By November-30, 1988, Fund I owned 24.7% of PHC common stock. Fund I also owned several million dollars worth of Petco’s debt securities. Drexel also acquired a significant amount of Petco’s debt securities as well as approximately 7.6% of PHC common stock. Funds II eventually made various unsuccessful investments in Petco, including a purchase of Petco debt securities from Drexel. 4. Stanley Interiors Stanley Interiors is a Delaware corporation. Fund I and Lee Co. owned approximately 60% and 40% respectively pf the common stock of Stanley Holding Company (“SHC”). As of October 16, 1992, all outstanding stock of Stanley was held by Stanley Acquisition Corporation, a wholly-owned subsidiary of SHC. Fund I also purchased significant amounts of Stanley’s debt securities. The Funds eventually made an unsuccessful investment in Stanley debt securities. II. DISCUSSION Plaintiff Seidel commenced suit on February 3, 1992 and plaintiff Goldstein filed a substantially identical complaint on February 5, 1992. Plaintiffs’ claims are based upon sections 11,12(2) and 15 of the Securities Act of 1933 (“1933 Act”), sections 10(b) and 20 of the Securities Exchange Act of 1934 (“1934 Act”), Rule 10b-5 promulgated pursuant to section 10(b) of the 1934 Act, sections 17(j), 36, 48 and 57 of the Investment Company Act of 1940 and Rule 17j promulgated pursuant to section 17(j) of the Investment Company Act.. The following factual allegations form the basis of the substantive causes of action spelled out in the Complaint. Plaintiffs purchased the limited partnerships of the defendant Funds between November 10,1989 and January 5, 1990. Plaintiffs allege they were induced to make their investments on the basis of a materially false Prospectus. Plaintiffs contend the Prospectus was false because it stated specific investment guidelines would be followed and that the investment adviser or its affiliates would make contemporaneous coinvestments in the mezzanine investments in managed companies made by the Funds. Plaintiffs further contend the Prospectus was false in- stating that until at least 75% of each of the Funds’ net offering proceeds had been invested or committed to investment Advisors II and its affiliates would act exclusively on behalf of the Funds. Finally, Plaintiffs assert the Prospectus also falsely stated that no specific investments had been contemplated for the Funds prior to the offering. Through a public offering between November 10, 1989 and January 5, 1990, 33,584 investors purchased Units in the Funds worth approximately $400,360,000. On April 3, 1990, after extensive consideration by the partners of the Funds and Advisors II, Funds invested $48,500,000 in Hills by purchasing 15% Junior Notes due 1998. At the time Hills was a financially ailing company in which several of the Defendants had existing interests. ¶ 162 Prior to the Funds’ investment in Hills, Lee Co. owned 19.1% of Hills common stock ¶ 105, and Lee owned 45.9% of one series and 60% of another series of the preferred stock of Hills Stores, a wholly owned subsidiary of Hills ¶ 110. Lee served as director of both Hills and Hills Stores between 1985 and December 31, 1991. ¶ 111 At the time of the Funds’ investment in Hills, Advisors II did not make a contemporaneous investment in Hills. ¶ 153 Defendants failed to obtain exemptive orders from the S.E.C. as Plaintiffs assert they' were required under section 57 of the Investment Company Act. ¶ 163 Hills filed for protection under Chapter 11 of the Bankruptcy Code within one year of the investment of the Funds investment in Hills. ¶ 168 The Funds’ 1990 Annual Report (issued April 1, 1991) disclosed the investment and its lack of success. ¶ 169 On April 6, 1990, the Funds purchased an interest in Petco Corporation, another financially ailing corporation in which certain Defendants had preexisting interests. ¶ 185 Following a leveraged buyout transaction in July 1988, Defendant Lee Co. controlled Pet-co Holding Corporation (“PHC”), which in turn controlled Petco. ¶ 171 Lee Co. also controlled Funds I. By March 5, 1990, Lee Co. and Funds I controlled 35.9% of PHC’s common stock. ¶ 179 On April 5,1990, Drex-el, or persons affiliated with Drexel owned approximately 7.6% of Petco’s common stock or warrants to purchase Petco’s common stock. ¶ 188 On April 6, 1990, Defendants caused the Funds to purchase (at 70% of face value) $500,000 worth of Petco 15.5% Extendable Notes from Drexel. ¶ 185 Defendants failed to obtain necessary exemptive orders from the S.É.C. as required under section 57 of the Investment Company Act. ¶ 186 Neither Advisors II nor its affiliates made contemporaneous investments as required under the Prospectus. ¶186 On November 16, 1990, the Defendants approved a further investment of approximately $459,000 in Petco 14% Subordinated Bridge Notes due March 1, 1991. ¶ 193 Again, Defendants failed to obtain exemptive orders from the S.E.C. ¶ 194 On April 19, 1991, the Defendants caused an additional investment of approximately $379,000 to be made in Petco Bridge Notes. ¶ 196 Defendants again failed to obtain necessary exemptive orders from the S.E.C. as allegedly required under section 57 of the Investment Company Act. ¶ 197 As of January 17,1989, Lee Co. and Funds I controlled a corporation called Stanley Holding Corporation (“SHC”), a subsidiary of which was Stanley Corporation (“Stanley”). ¶ 199-200 At some time prior to July 5,1991, the Defendants caused the Funds to invest $523,673-, in 10% Stanley Preferred Stock. ¶ 203 On July 5, 1991, the Funds and SHC purchased Stanley 10% Preferred Stock at the same price and in approximately the same amounts from Nortek, Inc. ¶204 At the same time the Funds sold a nine month option to SHC on the block of Stanley 10% Preferred Stock for 5% of the purchase price of the stock. ¶204 SHC and the Funds were under the common control of Lee, and thus SHC was related to the Funds under the Investment Company Act. ¶205. Defendants obtained an exemptive order from the SEC as required-under section 57 of the Investment Company Act. ¶ 205 However, according to the Plaintiffs, the transaction engaged in went beyond the terms of the application for the exemp-tive order, which related only to an equity coinvestment. ¶ 205 Plaintiffs allege that the purchase of the option also required an exemptive order by virtue of the relationship between SHC, Lee and the Funds, and that no such order was obtained. ¶ 206 The Funds’ 1991 Form 10-K statement filed on March 30,1992 stated that the Funds had ceased accruing income from the investment in Stanley due to “unrealized depreciation.” ¶ 207 Plaintiffs finally allege that each of the described investments in Hills, Petco and Stanley violated the terms of the Prospectus as well as the guidelines set out for the investments of the Funds. ¶209 A. The Original Defendants’ (“Defendants”) Motion to Dismiss Defendants offer three arguments in support of their motion to dismiss Plaintiffs’ federal securities law claims. First, Defendants contend that the complaint should be dismissed for failure to plead compliance with the applicable limitations period. Second, Defendants aver there is no implied private action based upon “controlling person” or “aider and abettor” liability under the Investment Company Act. Third, the Defendants assert that the allegations of the Complaint fail to allege primary violations of either Section 17(j) of the Investment Company Act or Rule 17j-l promulgated thereunder. In addition, because the federal causes of action are subject to dismissal before trial, Defendants urge the Court to also dismiss the supplemental state law claims. In considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must consider as true all facts alleged by plaintiff. Conley v. Gibson, 356 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). 1. Private Rights of Action under Investment Company Act Plaintiffs assert claims under sections 17(j), 36, 48 and 57 of the Investment Company Act and Rule 17j-l promulgated pursuant to section 17(j). Defendants contend, and Plaintiffs concede, that no explicit private right of action exists under any of these provisions. Defendants argue that the Court should not find that any implied private rights of action exist. a. Implied Rights of Action In absence of explicit congressional authorization for permitting a private right of action where it appears that Congress intended for a private right of action to exist. See Karahalios v. National Federation of Federal Employees, Local 1263, 489 U.S. 527, 532-33, 109 S.Ct. 1282, 1286-87, 103 L.Ed.2d 539 (1989). Unless such “congressional intent can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist.” It is also an “elemental canon” of statutory construction that where a statute expressly provides a remedy, courts must be especially reluctant to provide “additional remedies.” Id. (quoting Thompson v. Thompson, 484 U.S. 174, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988)), (citation omitted). In this regard, there is one express private right of action under the Investment Company Act. In the Investment Company Amendments Act of 1970, Pub.L. No. 91-547, 84 Stat. 1413, Congress added section 36(b). Section 36(b) provides for a private right of action by a security holder against the investment adviser “with respect to the receipt of compensation for services, or payments of a material nature” for a breach of the adviser’s fiduciary duty. 15 U.S.C. § 80a-35(b); see also Tannenbaum v. Zeller, 552 F.2d 402, 416-17 (2d Cir.), cert. denied, 434 U.S. 934, 98 S.Ct. 421, 54 L.Ed.2d 293 (1977); Bancroft Convertible Fund, Inc. v. Zico Invest. Holdings, Inc., 825 F.2d 731, 735 (3d Cir.1987). Congress again amended the Investment Company Act in 1980 in the Small Business Investment Incentive Act of 1980, Pub.L. No. 96-477, 94 Stat. 2275 (1980). The House Report on Pub.L. No. 96-477 states, in pertinent part: The rationale for implying private rights of action under the securities laws beyond those actions expressly provided for had been well articulated by the Supreme Court when it observed that implied private rights of action allowing shareholders to sue to remedy their losses would significantly assist the congressional goal of promoting fair corporate suffrage. But in recent years, the Supreme court turned its focus toward a strict construction of statutory language and expressed intent. The -Committee wishes to make plain that it expects the courts to imply private rights of action under this legislation, where the plaintiff falls within the class of persons protected by the statutory provision in question. Such a right would be consistent with and further Congress’ intent in enacting that provision, and where such actions would not improperly occupy an area traditionally the concern of state law. In appropriate instances, for example, breaches of fiduciary duty involving personal misconduct should be remedied under Section 36(a) of the Investment Company Act. With respect to business development companies, the Committee contemplates suits by shareholders as well as by the Commission, since these are the persons the provision is designed to protect, and such private rights of action will assist in carrying out the remedial purposes of Section 36. H.R.Rep. No. 1341, 96th Cong., 2d Sess. 28-29 (1980), reprinted in 1980 U.S.C.C.A.N. 4800, 4810-11 (footnotes omitted) (quoted in Bancroft Convertible Fund, 825 F.2d at 735-36). The United States Court of Appeals for the Third Circuit observed that “[c]learly, the Committee Report expressly approves the position of those courts which, following the 1970 amendments, held that private causes of action should be implied from the Investment Company Act.” Bancroft Convertible Fund, 825 F.2d at 736. Given the stated intent of Congress, the Third Circuit held that a private right of action existed under section 12(d)(1)(A) of the Investment Company Act. Id. “Section 12(d)(1)(A) of the Investment Company Act prohibits an investment company from acquiring more than three percent of the outstanding voting stock of another investment company.” Id. at 733. The Third Circuit was unpersuaded by the argument that a private cause of action should not be implied because prior to the congressional amendments there had been no case law suggesting the existence of a private cause of action under that section of the Investment Company Act. Id. Furthermore, the Third Circuit stated that the defendant had failed to make a persuasive argument suggesting congressional intent to treat the conduct proscribed under section 12(d)(1)(A) any differently for the purpose of private enforcement than any of the prohibitions in the Investment Company Act that were designed to protect investors. Id. see also Lessler v. Little, 857 F.2d 866 (1st Cir.1988) (recognizing private cause of action under section 17(a)(2) of the Investment Company Act which prohibits investment advisers of registered investment companies and affiliates of the investment advisers from purchasing assets of that registered investment company), cert. denied, 489 U.S. 1016, 109 S.Ct. 1130, 103 L.Ed.2d 192 (1989); Fogel v. Chestnutt, 668 F.2d 100 (2d Cir.1981) (recognizing implied rights of action for damages under section 36(a) of Investment Company Act where advisers or directors breach fiduciary duty), cert. denied, 459 U.S. 828, 103 S.Ct. 65, 74 L.Ed.2d 66 (1982); Meyer v. Oppenheimer Management Corp., 764 F.2d 76, 86-88 (2d Cir.1985) (implying private right of action under section 15(f) of Investment Company Act); Krome v. Merrill Lynch & Co., 637 F.Supp. 910 (implying private rights of action under sections 10(b), 15(a-b), 17(a), 22, 34(a), and 36 of the Investment Company Act), vacated in part, 110 F.R.D. 693 (S.D.N.Y.1986); Jerozal v. Cash Reserve Management, Inc., 1982 WL 1363 (S.D.N.Y.1982) (implying private rights of action under sections 15, 35(b), 47(a) of the Investment Company Act); Cambridge Fund, Inc. v. Abella, 501 F.Supp. 598, 622-23 (S.D.N.Y.1980) (implying private right of action under 36(a) and 37 of the Investment Company Act). It is clear from the foregoing discussion that Congress intended, in appropriate circumstances, for courts to imply private rights of action under the Investment Company Act, and that courts have consistently recognized such private rights of action. What remains to be determined is whether the circumstances in this case are such that the Court should imply private rights under the particular sections upon which Plaintiffs rely in the Complaint. To make this determination, the Court must ascertain whether “the plaintiff falls within the class of persons protected by the statutory right in question.” Bancroft Convertible Fund, 825 F.2d at 736 (quoting H,R.Rep. No. 1341, 96th Cong., 2d Sess. 28-29 (1980), reprinted in 1980 U.S.C.C.A.N. 4811). Once the Court decides whether private rights of action should be implied under the sections that Plaintiffs have alleged Defendants violated, the Court will consider the question of whether Plaintiffs can proceed against Defendants under Plaintiffs’ theories of primary and secondary liability. b. Section 17Q) of the Investment Company Act In Count VIII of the Complaint, Plaintiffs assert a claim against Defendants for violations of section 17(j) of the Investment Company Act and Rule 17j-l promulgated thereunder. This Count relates to the Hills and Stanley transactions.. The Complaint alleges that defendant Lee is primarily liable based upon his control over Funds, Hills and SHC for Hill’s and SHC’s allegedly fraudulent, deceitful or manipulative acts or practices with respect to their transactions with the Funds. The Complaint also alleges that all other Defendants are secondarily liable as aiders and abettors with respect to the Hills transaction, and all Defendants except Lee and HW & D are secondarily liable as aiders and abettors with respect to the Stanley transaction. Section 17(j) essentially prohibits persons affiliated with a registered investment company from engaging in fraudulent, deceptive, or manipulative acts or practices in connection with the purchases or sales of securities held or to be acquired by an investment company. On the record before it, the Court finds that Plaintiffs, as limited partners in the Funds, are within the class of persons to be protected by section 17(j). No reported decision relating specifically to section 17(j) has been found. However, other courts have implied private rights of action under other subsections of 15 U.S.C. § 80a-17. See Lessler v. Little, 857 F.2d at 873 (implied private right of action under 15 U.S.C. 80a-17(a)(2)); Krome, 637 F.Supp. at 919 (implied private right of action under 15 U.S.C. § 80a-17(a)). Thus, the Court concludes that an implied private right of action exists under section 17(j). Accordingly, the Court finds that Count VIII states a cognizable cause of action against defendant Lee. The Court will address the potential liability of the remaining Defendants in its discussion of aider and abettor liability. c. Section 36(a) of the Investment Company Act Plaintiffs, in Count VII, allege a claim against all Defendants for a violation of section 36(a) of the Investment Company Act. This Count alleges that Lee, Mezzanine Investments, Alden, Bower, and Feldberg, as directors or officers of the Funds, and Advis-ors II, as the .investment adviser to Funds, committed primary violations of section 36(a). These Defendants allegedly breached their fiduciary duties to the investors by: (1) approving the Funds’ investments in Hills, Pet-co and Stanley without obtaining necessary exemptive orders; (2) approving a non-guideline investment in Hills without obtaining approval of a majority of disinterested directors; (3) engaging in self-dealing by investing in the financially ailing Hills, Petco and Stanley in which Defendants or their affiliates had existing investments; and (4) withholding information in the Prospectus concerning their intent to invest in financially ailing enterprises in which the Defendants held substantial interests. As discussed above, Congress explicitly created a private right of action under section 36(b) for breaches of fiduciary duty with respect to a registered investment company. The private cause of action explicitly included, in section 36(b), however, is limited only to claims relating to the compensation or payment paid to officers, directors, members of any advisory boards, and principal underwriters of the investment company who breach their fiduciary duties to the investment company. Nonetheless, House Report No. 1341 accompanying the 1980 amendments to the Investment Company Act makes clear in its discussion of private rights of action that Congress intended that “in appropriate instances, for example, breaches of fiduciary duty involving personal misconduct should be remedied under Section 36(a) of the Investment Company Act.” H.R.Rep. No. 1341, 96th Cong., 2d Sess. 28-29 (1980), reprinted in 1980 U.S.C.C.A.N. 4810-11 (footnotes omitted) (quoted in Bancroft Convertible Fund, 825 F.2d at 735-36). Thus, the Court believes Congress intended courts to continue to imply private rights of action for conduct proscribed under section 36(a). Therefore, insofar as Count VII of the Complaint contains allegations of breaches of fiduciary duties by Lee, Mezzanine Investments, Alden, Bower, and Feldberg, as directors or officers of Funds, and Advisors II, as the investment adviser to Funds, Plaintiffs have stated a cognizable cause of action. The remaining Defendants (Lee Co., Lee II, Merrill, MLPF & S, Mezzanine, Mezzanine Individual Defendants, Administrators, HW & D, and Funds) are alleged to be secondarily liable as aiders and abettors. Again, the Court will address their potential liability in the section discussing aider and abettor liability. d. Section 57 of the Investment Company Act, 15 U.S.C. § 80a-56 In Counts IV-VI Plaintiffs assert claims against all Defendants for violations of sections 57(a)(l-2), 57(a)(4) and 57(d) of the Investment Company Act. These Counts relate to the failure of Defendants to obtain the requisite exemptive orders from the SEC prior to engaging in the challenged transactions. (1) Count IV — Sections 57(a)(1) & (2) Plaintiffs’ theory in Count IV is that Funds were related to Hills, Petco and Stanley by virtue of the common control of Lee and other Defendants over the Funds and Hills, Petco and Stanley. Plaintiffs allege that ex-emptive orders were required under section 57(a)(1), (2) because the Funds were related to Hills, Petco and Stanley. In Count IV, Plaintiffs challenge the Hills transactions on the grounds that, because Hills and the Funds were related, either Hills or the Funds were required to obtain exemptive orders before Hills could sell its securities to the Funds. Plaintiffs allege that defendant Lee is primarily liable due to his control over both the Funds and Hills. All other Defendants are alleged to be secondarily liable due to their relationship to either Hills or the Funds. HW & D is allegedly liable due to its assistance in consummating the Hills transactions with the knowledge of Lee’s control over both the Funds and Hills. With respect to Petco, Count IV alleges that the Petco transactions were accomplished without obtaining' the requisite ex-emptive orders. Plaintiffs attack all three investments in Petco securities, all of which were consummated without obtaining exemp-tive orders from the SEC. Plaintiffs allege that Petco and the Funds were related because Lee controlled both Petco and the Funds. Plaintiffs attack the first Petco transaction (the April 6, 1990 transaction with Drexel), alleging that, because Drexel controlled Pet-co and Petco and the Funds were related, Drexel was related to the Funds. Plaintiffs therefore allege that either Drexel or the Funds were required to obtain exemptive orders before Drexel could .sell the Petco securities to the Funds. Plaintiffs allege that all Defendants, because of their respective relationships with the Funds, each other, and Petco, and because of their assistance in consummating the sale, are secondarily liable with respect to the sale of the Petco securities by Drexel to the Funds without the requisite exemptive orders. With regard to the second and third Petco transactions (the November 16, 1990 and April 19, 1991 sale of Bridge Notes), Plaintiffs allege that either Petco or the Funds were required to obtain exemptive orders from the SEC. Plaintiffs allege that Defendants Lee, Lee Co., IGPs, Merrill, MLPF & S, and the Individual Defendants, because of their control over the Funds, Fund I and Petco, are primarily liable for failing to obtain the requisite exemptive orders. Plaintiffs allege that Defendants Lee II, Advisors II, Mezzanine Investments, Mezzanine, Administrators, and HW & D are secondarily liable with respect to the failure to obtain the requisite exemptive orders by virtue of their relationships to Petco and the Funds and their assistance in consummating, the sale. Plaintiffs also attack the Stanley transaction for the failure to obtain an exemptive order. Plaintiffs allege that Defendants Lee, Lee Co., the IGPs, Merrill, MLPF & S and the Individual Defendants controlled Fund I, SHC, and the Funds. Plaintiffs allege, therefore, that the Funds and SHC were related. Because SHC and the Funds were related, Plaintiffs allege that SHC or the Funds were required to obtain an exemptive order from the S.E.C. prior to the Funds selling SHC the option to buy. the Stanley 10% Preferred Stock. “In purchasing the option to buy the Stanley 10% Preferred Stock from the Funds without the requisite exemptive order, SHC violated § 57(a)(2).” ¶ 257. Plaintiffs allege that Defendants Lee, Lee Co., the IGPs, Merrill, MLPF & S and the Individual Defendants are primarily liable due to their control over SHC. Plaintiffs allege that Defendants Lee II, Advisors II, Mezzanine Investments, Mezzanine, and Administrators are secondarily liable with respect to the failure to obtain the requisite exemptive orders by virtue of their relationships to SHC and the Funds and their assistance in .consummating the sale. (2) Count V — Section 57(a)(1) In Count V of the Complaint, Plaintiffs allege that an exemptive order was also required under section 57(c) and Rule 17d-l promulgated under section 17 of the Investment Company Act to effect the Stanley transaction. Plaintiffs allege that the failure to obtain the requisite exemptive order violated section 57(a)(4).' Plaintiffs allege that Defendants Lee, Lee. Co., the IGPs, Merrill, MLPF & S and the Individual Defendants are primarily- liable based upon their control of SHC. Plaintiffs allege that Defendants Lee II, Advisors II, Mezzanine Investments, Mezzanine, Administrators, by virtue of their control of the Funds are secondarily liable with respect to the failure to obtain the exemptive orders necessary to engage in the joint transaction with Stanley. (3) Count VI — Section 57(d) In Count VI, Plaintiffs allege that if the Hills transaction did not require an exemp-tive order under section 57(a)(1), then it required an exemptive order under section 57(d). Plaintiffs allege that the Hills transaction required an exemptive order under section 57(d) for the following reasons: the transaction was not approved by a majority of disinterested general partners (allegedly there were none); the terms of the transaction were not reasonable and fair to the partners of the Funds; the investment involved overreaching on the part of the Funds; the transaction was inconsistent with the policy of the Funds as expressed in its SEC filings; the general' partners failed to record in the minutes of the Funds their findings concerning the transaction. Plaintiffs allege that defendant Lee, due to his control over Hills, is primarily liable for the failure to obtain the section 57(d) exemp-tive order. Plaintiffs also allege that Defendants Alden, Bower, and Feldberg are primarily liable because they held an interest in Hills. Plaintiffs allege that all other Defendants are secondarily liable for aiding and abetting the consummation of the Hills transaction without obtaining the necessary ex-emptive orders. Section 57 of the Investment Company Act was added by Congress in 1980 as part of the Small Business Investment Act. See Pub.L. No. 96-477 § 57, 94 Stat. 2280. Section 57 parallels section 17 of the Investment Company Act and it generally prohibits business development companies from effecting or participating in certain transactions in which conflicts of interest might be present, unless explicit procedures are satisfied. The protective system which is established by the bill is similar to that applicable to registered investment companies under section 17 of the Act, and rules thereunder, but is modified to address concerns relating to unique characteristics presented by business development companies. H.Rep. No. 96-1341, 96th Cong., 2d Sess. 45 (1980), reprinted in 1980 U.S.C.C.A.N. 4827. The House Committee on Interstate and Foreign Commerce noted in their report concerning section 57 that “[t]he prohibitions contained in sections 57(a) and (d) are similar to those found in sections 17(a) and 17(d) of the Act.” Id. There can be no question that Congress intended for section 57 and section 17 to be construed similarly because Congress expressly included in section 57 a provision stating that the rules and regulations promulgated by the SEC pursuant to section 17 were to apply to sections 57(a) and (d) until the SEC adopts rules and regulations pursuant to section 57. See 15 U.S.C. § 80a-56(i). Given that section 57 is analogous to section 17 and the Court has concluded that a private right of action exists under section 17, it is consistent for the Court to conclude that a private right of action exists under section 57. The Court also notes that the House Report quoted above, which accompanied the enactment of section 57 specifically stated that “[w]ith respect to business development companies, the Committee contemplates suits by shareholders as well as by the Commission.” H.R.Rep. No. 1841, 96th Cong., 2d Se'ss. 29 (1980), reprinted in 1980 U.S.C.C.A.N. 4811 (footnotes omitted) (quoted in Bancroft Convertible Fund, 825 F.2d at 735-36). Further, the nature and purpose of sections 57(a) and (d) support finding a private right of action. These sections protect investors in business development companies by ensuring that the SEC act as a watchdog over transactions between the business development companies and its affiliates. By failing to obtain the requisite exemptive orders, affiliated persons avoid making public their questionable transactions, and thus avoid alerting both the SEC and their investors about such transactions. For these reasons, the Court concludes that a private right of action exists under sections 57(a) and (d). 2. Primary Liability as “Controlling Persons” Plaintiffs allege that various Defendants are liable as primary violators of sections 17 and 57 on the basis of their ability to control or influence Hills, Petco, and Stanley. Plaintiffs contend that such liability exists under the Investment Company Act on the basis of both section 2(a)(9) which defines “control” and section 48 which applies to “Procuring violationfs]” of the Investment Company Act. Section 2(a)(9) provides in pertinent part: “Control” means the power to exercise a controlling influence over the management or policies of a company, unless such power is solely the result of an official position with such company. Any person who owns beneficially, either directly or through one or more controlled companies, more than 25 per centum of the voting securities of a company shall be presumed to control such company. Any person who does not so own more than 25 per centum of the voting securities of any company shall be presumed not to control such company. A natural person shall be presumed not to be a controlled person within the meaning of this subchapter. 15 U.S.C. § 80a-2(a)(9). Defendants appropriately note that section 2(a)(9) is merely a definition, and not the basis for imposing liability. The Court agrees. However, the Court concludes that section 48 can provide a basis for imposing liability. See Jerozal v. Cash Reserve Management, Inc., 1982 WL 1363 at *6 (S.D.N.Y. August 10, 1982) (finding cause of action under section 48(a) against various controlling or dominating directors of investment fund). Section 48 of the Investment Company Act provides in pertinent part: Procuring violation of subchapter; obstructing compliance (a) It shall be unlawful for any person, directly or indirectly, to cause to be done any act or thing through or by means of any other person which it would be unlawful for such person to do under the provisions of this subchapter or any rule, regulation, or order thereunder. 15 U.S.C. § 80a-47. While the Defendants contend that section 48 is materially distinguishable from section 20(a) of the 1934 Act, which was a basis for the Jerozal court’s determination that section 48(a) was a basis for controlling person liability, the Court concludes that a proper reading of section 48(a) supports finding such liability. Section 48(a) proscribes any actions taken “to cause” another to take actions that are unlawful under the Investment Company Act. Thus, insofar as Plaintiffs allege that the transactions at issue in the Complaint were undertaken illegally between “affiliated” entities and that the alleged controlling Defendants caused those actions to be taken, the Court concludes those controlling Defendants can possibly be held accountable under section 48(a). 3. Aider and Abettor Liability Under the Investment Company Act Plaintiffs seek to proceed against several of the Defendants under a theory of secondary liability for aiding and abetting violations of the Investment Company Act by other Defendants who are primarily liable. Defendants contend that, assuming this Court were to find a private right of action under the sections Plaintiffs allege the Defendants violated, the Court should limit such liability in the same manner that Congress limited the one expressly recognized private right of action in the Investment Company Act, found at 15 U.S.C. § 80a-35(b) (“Section 36(b)”). Section 36(b) states, in pertinent part, that “No such action ... shall be brought or maintained against any person other than the recipient of such compensation or payments, and no damages or other relief shall be granted against any person other than the recipient of such compensation or payments.” 15 U.S.C. § 80a-35(b)(3). Plaintiffs respond by asserting that the 1970 Senate Report on the amendments adding the private right of action in section 36(b) “indicates that the specific provisions of subsection (b) ‘should not be read by implication to affect subsection (a).’ ” (D.I. 276 at 36 (quoting S.Rep. No. 91-184, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.C.C.A.N. 4897, 4911). Plaintiffs’ out of context quotation is unpersuasive. The complete sentence in the report is as follows: “Although section 36(b) provides for an equitable action for breach of fiduciary duty as does section 36(a), the fact that subsection (b) specifically provides for a private right of action should not be read by implication to affect subsection (a).” S.Rep. No. 91-184, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.C.C.A.N. 4897, 4911). At best, the Court finds the above-quoted sentence to be ambiguous. It might be interpreted as expressing the intent of Congress to preclude private equitable actions for breaches of fiduciary duty under section 36(a). On the other hand, it might reasonably be interpreted as instructing courts to feel free to impose private rights of action, notwithstanding Congress’ failure to explicitly provide for one. Thus, what might reasonably be read as a statement limiting private actions under section 36(a), has been quoted by Plaintiffs to support a theory that increases the scope of private actions under section 36(a). Moreover, as Defendants note, Congress has created liability for civil penalties for aiding and abetting violations of the Investment Company Act under Section 9 of the Investment Company Act, which exclusively involves SEC administrative proceedings. The aiding and abetting section was added as part of the 1970 amendments, but the remedy initially was limited to removing or prohibiting violators from serving as employees or persons of influence in investment companies or affiliates of the investment advisers, depositors or principal underwriters of investment companies. See Pub.L. No. 91-547 § 4(b), 84 Stat. 1416. It was not until 1990 that Congress added provisions permitting the SEC to impose civil monetary penalties against aiders and abettors. Pub.L. No. 101-429 § 301(1, 3), 104 Stat. 941-45. Congress expressly stated that such civil monetary penalties could not be imposed for violations pre-dating the effective date of the 1990 amendments — October 15, 1990. See Pub.L. No. 101-429, § 1(c), 104 Stat. 931. Plaintiffs rely upon Wellman v. Dickinson, 475 F.Supp. 783, 834 (S.D.N.Y.1979), aff'd, 682 F.2d 355 (2d Cir.1982), cert. denied, 460 U.S. 1069, 103 S.Ct. 1522, 75 L.Ed.2d 946 (1983), to support their theory that private actions for violations of the Investment Company Act can be brought on a theory of aider and abettor liability. In Wellman, a consolidated action involving the SEC and private plaintiffs, the United States District Court for the Southern District of New York found aiding and abetting liability under the section 17(d) and 17(e) of the Investment Company Act. As Defendants correctly note, however, the District Court was applying aiding and abetting liability in the SEC enforcement action only. Id. at 791-95. In fact, the Court is aware of no decision in which a court has found that a private right of action exists under the Investment Company Act on the basis of aiding and abetting liability. Nor does the specific text of the provisions at issue support finding a private cause of acting against aiders and abettors of violations of the Investment Company Act. Section 17(j) is specifically directed at “any affiliated person or promoter or principal underwriter for a registered investment company, ... or any affiliate person” of those person listed “acting as principal.” Section 36(a) specifically limits the persons liable under that section to persons who act as “officer, director, member of any advisory board, investment adviser, or deposited; or .... principal underwriter, if such registered company is an open-end company, unit investment trust, or face-amount certificate company.” Section 56 is specifically directed to affiliated persons “acting as principals.” Thus, the explicit language of these provisions appears to preclude liability for aiders and abettors. Moreover, the legislative history of the Investment Company Act and its recent amendments do not support finding a private cause of action against aiders and abettors of violations of the Investment Company Act. Because Congress, prior to 1990, explicitly limited the scope of liability for aiders and abettors to removing or prohibiting them from exercising positions of influence with respect to investment companies, the Court is reluctant to conclude that Congress impliedly intended for courts to imply private rights of actions for money damages against aiders and abettors. Accompanying, the legislation enacting sections 9 and 56 was the above quoted House Report stating Congress’ intent that courts should imply private rights of actions. This was at a time when Congress was aware that courts had been consistently finding implied rights of action for primary violations of various provisions of the Investment Company Act. The Court concludes that had Congress intended to expand the scope of liability under private rights of action to include aiders and abettors, Congress would have done so explicitly. Even more persuasive is Congress’ silence with respect to private rights of action when amending Section 9 of the Investment Company Act in 1990 to provide for monetary penalties against aiders.and abettors. The Court is equally reluctant to find that because of the 1990 amendments, permitting the SEC for the first time to impose monetary penalties upon aiders and abettors, in which the legislative history contains no expressed opinion about private rights of action, Congress now intends that courts should permit private rights of action for monetary damages against aiders and abettors. Congress’ silence with regard to private rights of action in' expanding the penalties which the SEC could impose upon aiders and abettors for violations of the Investment Company Act counsels against finding a private right of action against aiders and abettors. Accordingly, Plaintiffs’ claims premised on aider and abettor liability will be dismissed. 4. Have Plaintiffs Adequately Alleged a Violation of Rule 17j-l Defendants argue that Plaintiffs have failed to establish a violation of section 17(j) and Rule 17j-l. Defendants contend that in order to violate section 17(j) and Rule 17j-l an affiliated person must purchase or sell a security that is simultaneously held or to be acquired by the investment company, and that Plaintiffs have not alleged any purchase or sale of Hills’ or Stanley’s securities by anyone else at the time of the Funds’ transactions. The Complaint alleges that: Section 17(j) of the [Investment Company Act] and Rule 17j promulgated thereunder prohibit a person affiliated with a [business development company] from engaging in fraudulent, deceptive, or manipulative acts or practices in connection with the sale or purchase of securities to or from such [business development company]. Complaint, at ¶ 283. The Complaint further alleges that “Hills’ sale of its securities to the Funds and SHC’s purchase of the stock options from the Funds were acts or practices designed to defraud, deceive, or manipulate the Funds at the expense of limited partners,” Complaint, at ¶ 285, and that Lee, by virtue of his control over Hills, SHC, and the Funds, is primarily liable for Hills’ and SHC’s fraudulent, deceitful, or manipulative acts in related to the Funds’ transactions. Complaint, at ¶286. Section 17(j) was added to the 1940 Act in 1970. The legislative history demonstrates that 17(j)’s broad remedial purpose is to develop “adequate restraint on the trading of investment company insiders in the companies’ portfolio securities.” Investment Company Amendments Act of 1970, S.Rep. No. 91-184, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.Code Cong. & Admin.News 4897, 4923. Paragraph (a) of Rule 17j-l is a general anti-fraud provision designed to prohibit fraudulent trading by certain.persons affiliated with registered investment companies with respect to securities held or to be acquired by the investment company. Defendants assert that the Court should interpret section 17(j) and Rule 17j-l as applying only to those situations where an “insider” purchases or sells securities that (a) are already owned by an investment company or (b) are being considered for acquisition by the investment company. Under Defendants’ interpretation, a violation of 17(j) requires a distinct securities transaction by an “insider” at a time when such securities were separately held or to be acquired by the Funds. In support of their interpretation of Rule 17j-l, Defendants quote from the SEC’s commentary accompanying the promulgation of Rule 17j-l, where the SEC stated “the Commission has become, aware of an increasing number of situations involving parallel trading by individuals with knowledge regarding transactions anticipated or engaged in by registered investment companies.” Prevention of Certain Unlawful Activities with Respect to Registered Investment Companies, Investment Company Act Release No. 11421, [1980 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 82,679 at 83,735. Plaintiffs argue for a broader reading of Rule 17j-l. Under Plaintiffs’ reading, it would be a violation of Rule 17j-l for an access person, through his/her position of influence, to cause an investment company to purchase or sell securities already owned by that access person, particularly in situations where the access person expects to personally benefit by the investment company’s purchase or sale. Plaintiffs quote from the same SEC commentary relied upon by the Defendants. Another situation which would appear to present a conflict of interest of the type to which Sectoin [sic] 17(j) is addressed might occur where access persons already own a particular security and through their position of influence over the investment company attempt to cause the investment company to purchase, sell or hold the same security. This situation could be especially abusive where the investment strategy recommended by the access person may be expected to create a personal benefit to the access person. Investment Company Act Release No. 11421, [1980 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 82,679 at 83,735-36. Because defendant Lee is an access person as defined in Rule 17j — 1(e)(1), Plaintiffs contend that the transactions between Hills and Funds and between Stanley and Funds are the types of transactions described by the SEC as presenting a conflict of interest, and thus viola-tive of section 17(j) and Rule 173—1. Although the above quoted portion of the SEC’s commentary relates to a discussion of what investment companies should appropriately consider in fashioning required codes of ethics, the Court finds it probative on the issue of what type of conduct constitutes a violation of section 17(j) and Rule 17j-l(a). Given the SEC’s reading of section 17(j), the Court finds Plaintiffs’ interpretation of section 17(j) at least plausible; Thus, the Court is unable to conclude at this juncture that Plaintiffs would be unable to prove any set of facts which would entitle them to relief. Accordingly, the Court will deny Defendants’ motion to dismiss Count VIII for failure to state a claim. 5. Failure to Plead Compliance with Applicable Statutes of Limitations Defendants also seek to have Plaintiffs’ federal securities law claims dismissed for failure to plead sufficient facts to demons strate that these claims were filed within the applicable limitations period. At the outset, Defendants contend that the applicable limitations period for all of the federal securities claims—claims under the 1933 Act, the 1934 Act and the Investment Company Act—is one year from the discovery of the cause of action and three years from the accrual of the cause of action. Defendants further argue that compliance with the applicable limitations period is an essential element of Plaintiffs’ securities law claims which must be affirmatively pled. The Complaint was filed more than two years after Plaintiffs purchased their shares in the Funds, approximately one year and, ten months after the initial investments in Hills and Petco, approximately one year and three months after the second investment in Petco, less than one year after the third investment in Petco, and approximately seven months after the only investment in Stanley for which a specific date,has been alleged. Plaintiffs counter by first arguing that the applicable limitations period for the Investment Company Act claims is five years. Moreover, Plaintiffs assert that they have pled facts sufficient to satisfy the pleading standard with respect to the one year statute of limitations for the 1933 Act and 1934 Act claims. Prior to determining whether Plaintiffs have satisfied the pleading standards, the Court will first determine the relevant date for the statute of limitations under the Investment Company Act, the 1933 Act and the 1934 Act. a. The 1933 and 1934 Acts The parties agree that the statute of limitations applicable to Plaintiffs’ claims under the 1933 Act and 1934 Act (Counts I, II, and III) is one year from discovery of the alleged violation and three years from the date of the alleged violation. Plaintiffs’ 1933 Act and 1934 Act claims relate to the use of a false Registration Statement and Prospectus to solicit sales of Funds’ units. The parties also appear to agree that these causes of action accrued in 1989 when the Registration Statement was filed, the Prospectus was published and Plaintiffs purchased their limited partnership units. See Lamp, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, -, 111 S.Ct. 2773, 2782, 115 L.Ed.2d 321 (1991) (three year limitations period under section 10(b) commences after alleged misrepresentations). Even assuming that these causes of action accrued on the date of the last possible sale of the Funds’ units, January 5, 1990, both Complaints were filed within the three year repose time, but more than one year after the alleged fraudulent conduct occurred. In Hill v. Der, 521 F.Supp. 1370 (D.Del.1981), the Court outlined the .pleading requirements for demonstrating compliance with the statute of limitations. The Complaint must set forth [i] the time and circumstances of the discovery of the fraudulent statements, [ii] the reasons why discovery was not made earlier if more than one year has elapsed since the fraudulent conduct occurred, and [iii] the diligent efforts which plaintiff undertook in making or seeking such discovery. Id. at 1389. Reading the Complaint as a whole, the Court finds that Plaintiffs have sufficiently satisfied their pleading burden under Hill v. Der. The Complaint alleges the first date on which investors were alerted of Defendants’ alleged wrongful conduct and the circumstances of their discovery with respect to the Hills transaction — April 1,1991, Complaint at ¶ 169, the Petco transaction — March 30,1992, Complaint at ¶¶ 195-198, and the Stanley transaction — March 30, 1992, Complaint at ¶ 207. The Complaint also sets forth the reasons for Plaintiffs’ inability to discover the alleged fraud sooner, i.e. misleading Prospectus and Registration statement, in addition to other concealing conduct of the Defendants. For example, the Complaint alleges that the fact that the Funds stopped accruing interest on Peteo’s debt securities as of January 1991 was omitted from the 1990 Annual Report and not disclosed to the investors until March 30, 1992. The Court finds these allegations sufficient to overcome a motion to dismiss. As Plaintiffs have sufficiently alleged the circumstances of their discovery in accordance with Hill v. Der, the Court will deny Defendants’ motion to dismiss Counts I, II, and III. b. Investment Company Act The parties disagree as to the appropriate limitations period to be applied to the Investment Company Act claims. Plaintiffs contend that the appropriate limitations period is the five year period found in section 36(a) *of the Investment Company Act. Defendants on the other hand, urge the Court to adopt the íé year limitations period applied to the 1933 and 1934 Act claims. In determining the appropriate limitations period for claims brought pursuant to the Investment Company Act, the Court is guided by the principles set forth in Lamp, 501 U.S. 350, 111 S.Ct. 2773. In Lamp/ the United States Supreme Court set out the analytical steps “for ascertaining the appropriate limitations period for a federal cause of action where Congress has not set the time within which such an action must be brought.” Id. at -, 111 S.Ct. at 2778-79. First, where “the claim-asserted is one implied under a statute that also contains an express cause of action with its own time limitation, a court should first look to the statute of origin to ascertain the proper limitations period.” Id. at -, 111 S.Ct. at 2780. “Only where no analogous counterpart is available should a court then proceed to apply state-borrowing principles.” Id.; see also In re Taxable Municipal Bond, 1992 WL 124783 at *3-5 (discussing Lamp/). If the statute of origin does not contain any “comparable express remedial provisions” the Court must then apply the three part test for choosing between borrowing a state or federal limitations period. The first inquiry under the three part test is whether a uniform statute of limitations is appropriate. Id., 501 U.S. at -, 111 S.Ct. at 2779. Then, assuming a uniform statute of limitations is desirable, the Court must decide whether the limitations period is to be chosen from state or federal law, focusing particularly on the geographic character of the claim. Id. Finally, even if geographic considerations indicate the desirability of a federal limitations, the Court must also determine that an analogous federal source “truly affords a ‘closer fit’ with the cause of action at issue than does any available state-law source.” Id. Under this last prong, the Court should consider such factors as commonality of purpose and similarity of elements. Id. Plaintiffs contend that Lampf compels application of the five-year statute of limitations found in section 36(a) of the Investment Company Act to Plaintiffs’ implied private rights of action brought pursuant to the Investment Company Act. The Court is not persuaded that Plaintiffs’ interpretation of Lampf is correct. Lampf counseled courts that “[w]here, as here, the claim asserted is one implied under a statute that also contains an express came of action with its own time limitation, a court should look first to the statute of origin to ascertain the proper limitations period.” Id. at -, 111 S.Ct. at 2780 (emphasis added). Section 36(a) creates an express cause of action for breach of fiduciary duty by certain management personnel of an investment company. However, the five year limitations period in section 36(a) expressly applies to SEC regulatory proceedings, not private litigants. Because section 36(a) provides a remedy in favor of the SEC as opposed to, private litigants, the Court finds that it is not “comparable” to the rights of action being implied under the sections Investment Company Act at issue here. Therefore, Lampf does not mandate the application of the five year limitations period. For similar reasons, the Court rejects Defendants’ arguments that the one year period found in section 36(b) ought to be applied to Plaintiffs’ Investment Company Act claims. Section 36(b) creates a private right of action for breach of fiduciary duty related to the compensation paid by an investment company or security,holders to an investment advisor. 15 U.S.C. § 80a-35(b). As with the five year period expressly rejected by the Supreme Court in Lampf, subsection (b) focuses on a narrow, specific problem. It is therefore, not comparable to the broad implied rights of action at issue here. Accordingly, the Court concludes that Lampf does not mandate borrowing this one year period from § 36(b). Having determined that there is no comparable express remedial remedy in the Investment Company Act itself, the Court must now determine the appropriate limitations period using the three part analysis set forth in Lampf. First, the Court finds that a uniform federal statute of limitations for Investment Company Act claims is appropriate. Lampf, at -, 111 S.Ct. at 2778 (finding uniform federal period for section 10(b) claims). See also In re Taxable Municipal Bond, 1992 WL 124783 at *3-5 (reading Lampf to compel federal limitations period for Investment Company Act claims). As the Supreme Court in Lampf noted, a federal limitations period is appropriate when a rule from elsewhere in federal law clearly provides a closer analogy than available state statutes, and when the federal policies at stake and the practicalities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking. Lampf, 501 U.S. at -, 111 S.Ct. at 2778 (quotations omitted). The -Court finds that such is the case with claims under the Investment Company Act. Therefore, the next question becomes whether a federal or state period should govern. The Supreme Court has instructed the Court to pay particular attention to the geographic character of the claim. Where the provisions at issue “encompass numerous and diverse topics and subtopics,” and the claims under the statute are of a multistate nature, a uniform federal limitations period is generally desirable. Id. at -, 111 S.Ct. at 2779. Without question claims arising under the Investment Company Act are of a multistate nature, and therefore should be governed by a limitations period derived from a federal source. Finally, the Court must find determine that the borrowed federal limitations period affords a “closer fit” with the cause of action at issue than would any available state-law