Full opinion text
OPINION WOLIN, District Judge. Before the Court is a motion under Federal Rule of Civil Procedure 12(b)(6) by defendants The Prudential Insurance Company of America (“Prudential”), Arthur F. Ryan and Donald G. Southwell (together the “individual defendants”) to dismiss the consolidated amended complaint of the putative national class (the “complaint”) in this MDL proceeding. The parties argued the motion before this Court on April 16, 1996. For the reasons set forth herein, the motion will be granted in part and denied in part. BACKGROUND As plaintiffs’ counsel stated at oral argument, the document which the Court must evaluate to decide this motion is a “relatively bare-bones complaint” (Transcript p. 37) which was drafted under a tight deadline. No doubt, plaintiffs’ counsel risked pleading in “bare-bones” style mindful that the Court would dismiss deficient claims, if any, without prejudice. Plaintiffs were correct; however, the Court warned plaintiffs’ counsel at oral argument, and reiterates the admonition here, that its next Rule 12(b)(6) dismissal of claims pleaded herein will be with prejudice. The Court has found much of the complaint to be deficient, and will dismiss several of plaintiffs’ claims without prejudice. On the other hand, the standard for dismissal under Rule 12(b)(6) is a high one, and the Court has allowed several claims to go forward despite considerable doubt as to their ultimate merits. In sum, this opinion will likely not be the final word in framing the issues ultimately to be resolved in this case. Plaintiffs may successfully replead some of their claims, and Prudential may prevail on some its arguments at the summary judgment stage. ALLEGED FACTS This is a well-publicized putative class action which charges one of the largest mutual insurance companies in this country with various improper insurance sales practices. This legal problem is apparently not unique to Prudential; numerous other mutual insurance companies face similar allegations in other courts. In this action, plaintiffs claim Prudential churned their accounts in several manners, sold insurance products which it mischaracterized as other types of investment plans, and took unauthorized loans against cash values they had amassed in their insurance policies. The complaint defines “churning” as a term “commonly used in the life insurance industry to describe the act of removing, through misrepresentations and omissions, the cash value, including dividends, from an existing life insurance policy or annuity (either by lapse of that policy or annuity or by borrowing therefrom) and then using that cash value to acquire a new life insurance policy” and states that churning “normally results in” a financial detriment to the policyholder, while the selling agent earns a large commission and Prudential reaps administrative fees. (¶¶ 30-31) Many of the putative class plaintiffs purchased variable appreciable life insurance policies (“VAL policies”), during the proposed class period of January 1, 1980 to the present. Plaintiffs claim Prudential, through its sales and marketing materials and presentations, mischaracterized the VAL policies as other types of investment plans rather than as insurance. The putative class asserts that Prudential engaged in a widespread scheme to target relatively unsophisticated consumers — particularly those who had entered or were about to enter retirement and/or had amassed large cash reserves in existing insurance policies — and convince them to purchase new insurance products, often representing that the customers could pay for them with income streams from insurance policies they already owned. In actuality, plaintiffs allege, Prudential knew that these representations were false and that these customers would likely have to satisfy their premium obligations out of cash values, rather than earnings, from their prior policies. To support these allegations, plaintiffs contend that Prudential provided its agents with forms known as Ordinary Policy Status Records and Debt Ordinary Policy Status Records, which provided information on individual policyholders’ accumulated cash values in Prudential policies. Additionally, plaintiffs allege, Prudential management provided its agents with standardized sales presentations, policy illustrations and other marketing materials which set forth, among other things, misleading information about the cost and value of the products they were selling. Specifically, plaintiffs charge that Prudential marketing materials (1) misrepresented the risks and potential benefits of paying for new insurance with the income stream from existing policies; (2) failed to disclose that the payment plans the company offered involved a high degree of risk that cash values of prior policies would be depleted to pay premiums on newer policies; (3) miseharaeterized the insurance as an investment or savings account, pension maximization or retirement plan, college tuition funding plan, mutual fund or other investment or savings vehicle, and failed to disclose its lack of suitability to fulfill the objectives typically offered by such investment plans; and/or (4) failed to disclose that they were based upon inflated dividend scales, values, assumptions and interest rate projections which Prudential must have known to be false or unrealistic because they were inconsistent with Prudential’s own internal forecasts and projections. Plaintiffs contend that “[t]he false information given to each policyholder was virtually the same because Prudential agents were trained to present the same false information, and to conceal the same type of information from, plaintiffs and other Class members” (IT 43); that Prudential provided its agents with computer hardware and software which helped to standardize their sales presentations, and that Prudential disseminated sales presentations which it required its agents to commit to memory. (¶ 46) Plaintiffs claim that “[ajlthough dividend disclosure forms were purportedly required to be given to prospective policy purchasers explaining the potential instability of Prudential’s dividend, this was not done.” (¶ 47) Plaintiffs also allege that Prudential provided its agents nationwide with “disbursement request forms” which, when signed by a policyholder in blank, allow Prudential agents to manipulate the funds generated by consumers’ policies in various ways; for example, this would allow a Prudential agent to take out a loan against one policy to pay the premium on another without notifying the policyholder. (¶¶ 38-39) Finally, plaintiffs allege that, without informing them, Prudential subjected customers who purchased dividend-participating policies within the class period to an additional risk arising out of the fact that, at the beginning of the class period, the company had created a new class of dividend participating policies which, unlike earlier policies, “did not enjoy the benefit of a cushion created by the pooling of premium proceeds with proceeds from all other policies invested over many years.” (¶¶ 49-51) The complaint asserts nine causes of action against Prudential and the two individual defendants. During and shortly after oral argument, however, plaintiffs agreed to withdraw all claims against the individual defendants as well as their claim for breach of contract against Prudential. Accordingly, the Court will dismiss without prejudice all of plaintiffs’ claims against defendants Arthur F. Ryan and Donald G. Southwell, as well as plaintiffs’ Third Cause of Action for breach of contract. Plaintiffs allege a multitude of allegedly fraudulent insurance sales practices; various class members may have fallen prey to one or more among them. The five named plaintiffs whose claims are at issue on this motion, for example, raise different combinations of issues and claims. The Court will summarize them briefly: Nicholson’s Claims Plaintiff Carol Nicholson (“Nicholson”) is the executrix of the estate of her husband, who died in 1994. Nicholson alleges that a Prudential agent contacted the couple in 1986 and told them Mr. Nicholson needed additional insurance. She claims her husband agreed to purchase the new insurance after Prudential advised him that he could acquire an additional policy with no out-of-pocket expense because earnings from policies they already owned would cover the premiums on the new policy, and that these payments could occur automatically if he signed certain forms in blank. (¶¶ 63-66) She claims they relied on the agent’s representations because he “had greater knowledge and experience in life insurance products and purported to act in their best interests.” (¶ 74) The complaint asserts that “[a]t various times after purchasing” the new policy, the Nicholsons “received notices from Prudential which they did not understand, and which were inconsistent with the representations made by (their agent), including notices about policy loans and the lapse of the [new policy].” (¶ 68) However, Nicholson claims Prudential told them to ignore the notices and assured them that Prudential would “resolve” the issue. (¶¶ 69-70) It was only after Mr. Nicholson’s death in 1994, Nicholson claims, that she discovered that earnings and dividends on the original policies were not sufficient to pay all of the premiums on the new policy and that Prudential had authorized loans against the original policies which had considerably diminished these policies’ values. (¶ 72) Dorfner’s Claims Plaintiff Martin Dorfner (“Dorfner”) asserts that he purchased a VAL policy in April 1991 based upon a Prudential agent’s representation that dividends from two life insurance policies he already owned would pay the premiums on the VAL policy “for at least eight years.” (¶ 78) In July 1992, he alleges, the premium due on his VAL policy was paid out of the proceeds of a $680.61 loan taken against one of his original life insurance policies without his knowledge or authorization. Dorfner asserts that he did not learn of the unauthorized loan until March 1994 (¶ 84), less than one year before he filed his action. He claims he has been damaged “because the cash value and death benefit of his whole life insurance policies have been reduced through the unauthorized policy loans.” (¶ 85) The Ruchases’ Claims The claims of plaintiffs Vincent and Elizabeth Kuchas (the “Ruchases”) are not set forth clearly. They allege that they purchased two whole life policies from Prudential in 1983 and that their Prudential agent recommended that they purchase a VAL policy in 1987. At this time, they allege, they told the agent “that they wanted a retirement investment similar to an IRA and had no interest in purchasing additional life insurance.” (¶ 87) The Ruchases then allege that Prudential represented that “the VAL was an investment product almost identical to an IRA and was not an insurance product with a small investment feature” and that, in partial reliance on that representation, they purchased two VAL policies. (¶ 88) Although the complaint does not plead the date on which the Ruchases purchased these VAL policies, Prudential has attached copies of two 1987 VAL policies, one for Mr. Kuchas and one for Mrs. Kuchas. The Ruchases plead that, “[s]ometime later,” they told Prudential they could no longer afford the premiums on both their original whole life policies and their VAL policy and that their agent assured them they need not pay premiums on the original policies because they would “pay for themselves.” (¶¶ 89-90) They assert that “[s]ometime after they purchased the VAL policies,” Prudential informed them that they would have to continue to pay premiums on their original policies or the policies would lapse, but that when they questioned their agent about this he assured them they “need pay only what they could afford.” (¶ 91) Accordingly, they allege, they remitted an unspecified number of “small monthly payments in an amount they could afford toward the premiums on the initial policies.” (¶ 92) They aver that, although Prudential later claimed it had attempted to return the checks, they never received them. (¶ 92) The complaint further alleges that “[during the time the Kuchas’ [sic] were dealing with” their Prudential agent, he “often had them sign forms in blank, assuring them that he would take care of everything; that he was not making any money from these transactions; and that they should just trust him.” (¶ 93) They assert that in 1992 they discovered that Mrs. Kuchas had more life insurance than Mr. Kuchas had, and asked their agent to equalize their death benefits, and that it was not until 1994 that they learned that their original policies had lapsed and “had loans against them” which the Kuchases had not authorized. (¶¶ 94-95) The harm they allege is that they “have been forced to pay additional funds to get their original policies reinstated and are still making payments to keep their VAL policies in force.” (¶ 96) They also assert that a 1992 VAL policy, not mentioned at any prior point in the complaint, has lapsed. (¶ 96) The Armless’ Claims The Court will not dwell long on the claims of plaintiffs Allan and Phillis Amlee (the “Amlees”), as Prudential has argued that they are time-barred on the face of the complaint and plaintiffs have not challenged that assertion. The Amlees claim Prudential sold them a VAL policy, representing that they “would never have to make a premium payment” for it because dividends from life insurance policies they already owned would cover the cost. (¶¶ 97-99) The complaint also alleges that in approximately July 1986 the Amlees were told “that they would have to pay additional premiums to keep the VAL policy from lapsing, as the dividends from their prior policies were insufficient.” (¶ 102) Upon receipt of this information, and allegedly upon the advice of their Prudential agent, the Amlees took out loans on their original policies in an effort to keep up with their premium obligations on the VAL policy; nevertheless, their efforts failed, the policy lapsed, and Prudential has told the Amlees that they still owe the company over $5,000. (¶¶ 103-104) The Amlees assert numerous common law claims against Prudential. Prudential claims, and plaintiffs do not dispute, that the longest statute of limitations that applies to the Amlees’ claims ran six years after the Amlees discovered the facts which constitute their cause of action. Prudential asserts, and this Court agrees, that from the face of the complaint it appears that the Amlees became aware of the wrongdoing they allege in 1986, when Prudential first informed them that they would have to remit out-of-pocket premium payments on their VAL policy and that dividends from their original policies would not cover these costs. As the Amlees did not file their claims until 1995, their claims are time-barred. Accordingly, the Court will dismiss the Amlees’ claims without prejudice. Gassman’s Claims Plaintiff Norman Gassman (“Gassman”) alleges that, in or about August 1992, he sold a CD and used the proceeds to purchase a VAL policy based on a Prudential agent’s representations that such an investment “was better than a CD,” that it would pay for itself out of its own dividend income, and that it would provide a yield greater than the CD he already owned. (¶¶ 105-107) He states that, although his agent “disclosed ... that some life insurance would be included with the VAL policy, the agent omitted to disclose that the product was primarily life insurance, and that a substantial portion of the funds [he] was investing would not in fact be invested, but instead would go to pay for the agent’s commission, administrative charges, sales loads and other fees and charges to be paid to Prudential.” (¶ 108) He seeks “money damages in an amount equal to the commissions, administrative charges, sales loads and other fees and charges paid to Prudential as well as the decreased investment value of the VAL policy.” (¶ 109) RULE 9(b) MOTION Prudential claims that all of plaintiffs’ allegations which sound in fraud fail to satisfy the pleading requirements set forth in Federal Rule of Civil Procedure 9(b), which states: “In all averments of fraud or mistake, the circumstances constituting the fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other conditions of mind of a person may be averred generally.” Prudential attacks the sufficiency of plaintiffs’ pleadings on several fronts. First, it generally asserts that plaintiffs fail to allege how or why allegedly false or misleading information was false or misleading and that they refer to documents without adequately identifying or describing them. Second, Prudential claims plaintiffs’ “collectivized pleading” fails to link specific misconduct on Prudential’s part to each individual plaintiffs injuries. For instance, the company claims, the complaint fails to allege specifically that any individual plaintiff received fraudulent marketing materials or to identify the materials any particular plaintiff relied upon. Third, Prudential challenges plaintiffs’ allegations of fraudulent intent or scienter, asserting that they fail to allege that any individual Prudential agent imparted any information which he or she knew to be false at the time. Relatedly, Prudential claims that plaintiffs rely on opinions and projections to state their claims and that their allegations do not meet the special Rule 9(b) requirements for such claims. Finally, Prudential contends plaintiffs have not alleged fraudulent concealment with sufficient particularity. The Third Circuit has stated that, to satisfy Rule 9(b), a plaintiff must plead (1) a specific misrepresentation of material fact; (2) defendant’s knowledge of its falsity; (3) plaintiffs ignorance of its falsity; (4) defendant’s intention that it should be acted upon; and (5) that plaintiff acted upon it to his detriment. Shapiro v. UJB Financial Corp., 964 F.2d 272, 284 (3d Cir.), cert. denied, 506 U.S. 934, 113 S.Ct. 365, 121 L.Ed.2d 278 (1992). These pleadings must contain some grounding in specific factual allegations; mere conclusory statements will not suffice. However, in assessing a particular claim, a court should bear in mind the purposes of the rule, which are to place the defendants on notice of the precise misconduct with which they are charged, and to safeguard defendants against spurious charges of immoral and fraudulent behavior. It is certainly true that allegations of date, place or time’ fulfill these functions, but nothing in the rule requires them. Plaintiffs are free to use alternative means of injecting precision and some measure of substantiation into their allegations of fraud. Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir.1984), cert. denied, 469 U.S. 1211, 105 S.Ct. 1179, 84 L.Ed.2d 327 (1985). Thus, there is no laundry list of elements which a complaint must include to pass muster under Rule 9(b). “Perhaps the most basic consideration in making a judgment as to the sufficiency of a pleading is the determination of how much detail is necessary to give adequate notice to an adverse party and enable him to prepare a responsive pleading.” Adams v. Madison Realty & Dev., Inc., 1989 WL 41283, *5 (D.N.J.), quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1298, at 415 (1969). This Court finds that, as to their allegation of a general fraudulent scheme to defraud insurance customers, plaintiffs have provided sufficient factual allegations to place Prudential on notice of their claims and to enable the company to prepare responsive pleadings. The Court’s summary of the putative class claims above demonstrates that plaintiffs have drawn a reasonably detailed picture of the scheme they allege. They have clearly set forth the nature of the fraudulent scheme, many of its specifics, and some factual support for their allegations. While they have not specifically identified Prudential managers or high level executives who approved of or participated in the alleged scheme, their allegations that insurance agents nationwide were provided with the same customer information documents, standardized sales presentations and the like provide some basis for the inference of a company directed scheme. Moreover, “the nature of the complaint [and] the situations of the parties make it obvious that only after discovery will plaintiffs have access to information that could truly substantiate their allegations.” Lerch v. Citizens First Bancorp., Inc., 805 F.Supp. 1142, 1153 & n. 10 (D.N.J.1992). The complaint in this case compares favorably with other complaints which have passed muster under Rule 9(b). For instance, in In Re Catanella, E.F. Hutton & Co., Inc., 583 F.Supp. 1388, 1397 (E.D.Pa.1984) (citations omitted), the Court found: A course of fraudulent conduct is chronicled, including a variety of misrepresentations and omissions, the substance of which is described in the complaints. The relative knowledge of the parties is outlined and the perpetrator of the fraud identified. The breadth of the allegations convinces me that the fraud aspects of these complaints are not ‘vexatious,’ brought only to tarnish the defendants’ reputations. Although not paragons of specificity, I conclude that the allegations stated are sufficient to place defendants on notice and allow them to respond____ The complaint is not deficient for failing to state every detail that might be a proper subject for interrogatories. The complaint in this case provides a similar level of specificity. See also Kronfeld v. First Jersey Nat’l Bank, 638 F.Supp. 1454, 1464-65 (D.N.J.1986); Lerch, 805 F.Supp. at 1152-53. Nor, under these circumstances, is plaintiffs’ failure to attach specific documents to which the complaint refers, or to quote from them verbatim, fatal to their claims. Cf. In re VMS Secs. Lit., 752 F.Supp. 1373, 1386 (N.D.Ill.1990). In complex corporate fraud cases such as this one, “a description of the nature and subject matter” of the alleged misrepresentations or omissions may be sufficient “even absent allegations with respect to the exact factual context or words constituting the misrepresentation.” In re Midlantic Corp. Shareholder Lit., 758 F.Supp. 226, 231 (D.N.J.1990), citing Commodity Futures Trading Com’n v. American Metal Exchange Corp., 693 F.Supp. 168, 190-91 (D.N.J.1988). Rule 9(b) is to be applied flexibly. Id. If plaintiffs are able to set forth a color-able claim of fraud and afford the defendant notice as to which of its actions or communications form the basis for it without appending specific documents, their failure to do so at the preliminary pleading stage does not require dismissal of their claims. Physical copies of the documents to which the complaint refers become less crucial where the complaint alleges a scheme that chiefly involves omissions and oral misrepresentations. Here, it would be unreasonable to require plaintiffs to append copies of each and every document to which they refer in their complaint; moreover, plaintiffs’ claims do not rely exclusively upon affirmative misrepresentations contained within documents. At this stage of the litigation documentary evidence is not necessary either to enable Prudential to frame responsive pleadings or to enable the Court to evaluate the factual basis for the complaint. Should Prudential require further information as to the documents upon which plaintiffs rely, this would be an appropriate subject for interrogatories. Prudential’s “collectivized pleading” argument must be rejected as well. This Court, like other courts of this district, “abjures collective pleading and subscribes to the mandate of the rule that as to each defendant the circumstances constituting the fraud must be stated with particularity.” Adams, 1989 WL 41283 at *4. However, there is but one defendant in this case, and “less specificity is required when the complaint presents the claims of a [proposed] class and individual identification of the circumstances of the fraud as to each class member would require voluminous pleadings.” Alfaro v, E.F. Hutton & Co., Inc., 606 F.Supp. 1100, 1108 (E.D.Pa.1985) (citations omitted); see also Catanella, 583 F.Supp. at 1398 (“where the transactions are numerous and stretch over an extended period of time, less specificity is required”). On the other hand, the individual named plaintiffs’ claims should each satisfy Rule 9(b) independently. Although the complaint need not replead general allegations regarding Prudential’s scheme for each named plaintiff, it should contain sufficient detail as to each plaintiffs claims to apprise Prudential of that plaintiffs exact grounds for relief and the specific conduct that plaintiff charges. While the Court finds that the complaint satisfies this standard with respect to the claims of Gassman, Dorfner and the Nicholsons, the Court will dismiss the Ru-chases’ claims for failure to satisfy Rule 9(b). The Ruchases’ claims are set forth in paragraphs 86-96 of the complaint, and are summarized by the Court supra at pp. 593-594. From the complaint, this Court cannot discern so much as the year that any alleged misrepresentation occurred, nor what precise misrepresentations or omissions the Ruchases rely upon to state their claim, nor how their alleged damages relate to Prudential’s alleged wrongdoing. The Ruchases must replead their fraud-based claims to comply with Rule 9(b). The Court rejects Prudential’s claim that the complaint’s scienter allegations are deficient with respect to claims which rely upon fraudulent statements of opinion and projection. Although scienter may be alleged generally, Prudential is correct that a plaintiff who relies on fraudulent projections or opinions must satisfy a heightened 9(b) standard. Specifically, plaintiffs must allege not only that the projections were fraudulent; they must allege “why there was no reasonable basis for the projections.” Urbach v. Sayles, 779 F.Supp. 351, 359 (D.N.J.1991), citing In Re Craftmatic Secs. Lit. v. Kraftsow, 890 F.2d 628, 646 (3d Cir.1989). To satisfy this standard, plaintiffs must set forth specific facts indicating (1) why the charges against defendants are not baseless and (2) why additional information lies exclusively within the defendants’ control. Id., citing Craftmatic, 890 F.2d at 646. To the extent plaintiffs’ claims arise out of Prudential’s faulty projections that the company would be able to maintain high surplus and dividend rates, plaintiffs have adequately alleged the basis for their contention that Prudential knew of or recklessly disregarded the misleading nature of their statements. Plaintiffs allege that Prudential provided its customers with policy illustrations which were based upon assumptions which conflicted with the company’s own internal projections; they have also alleged that the company, by creating a new class of dividend-participating policies which would not receive the benefit of a large financial cushion from prior years, subjected policyholders to an increased risk of volatility that it did not disclose to plaintiffs. These allegations, if proved, would provide factual support for plaintiffs’ claim that Prudential knew its projections were baseless when made. ■ The heightened pleading requirements for plaintiffs alleging fraudulent projections should not and do not create an insurmountable barrier. The Third Circuit has emphasized that courts must not require that plaintiffs plead facts ‘uniquely in the defendant’s knowledge or control.’ Hence, plaintiffs pleading fraudulent projection must allege facts, available to outsiders to the enterprise or transaction, which, if true, would show that the projection could have been known to be false when made and raise an inference that the defendant knew them to be false or acted in reckless disregard of their truth or falsity. Urbach, 779 F.Supp. at 360, quoting Craftmatic, 890 F.2d at 645. Plaintiffs have satisfied this burden. Although, technically, they should allege specifically that they have conducted a reasonable investigation into their claims and that further information is within Prudential’s exclusive control pending discovery, see Shapiro, 964 F.2d at 285, the Court finds that such allegations are implicit under the circumstances of this case. The Court agrees with Prudential that plaintiffs’ allegations of fraudulent concealment fail to pass muster under Rule 9(b). The complaint simply alleges that “Prudential agents were trained” to conceal their scheme and that, “[f]or example, when Class members would receive notices describing the loans taken against their policies, Prudential agents routinely advised their customers not to worry, that the notice was a mistake, and/or that the agent would ‘take care of it.’ ” (Comply 43) Although the complaint goes on to allege that both the Nicholsons and the Ruchases received such assurances, it does not provide sufficient context for these allegations to survive Prudential’s Rule 9(b) motion. Certainly, the eonclusory allegation that Prudential, “through various devices of secrecy, affirmatively and fraudulently concealed the existence of their unlawful scheme and course of conduct” (Comply 110) adds no specificity to these contentions. A court within this circuit rejected a much more detailed allegation of fraudulent concealment in a class action similar to this one in Alfaro, 606 F.Supp. at 1109-10. Clearly, plaintiffs must particularize their allegations-of fraudulent concealment to a much greater degree than they have here. SECURITIES CLAIMS Plaintiffs Dorfner, the Ruchases, and Gass-man assert that Prudential’s conduct violated section 10(b) and Rule 10b-5 of the securities laws. The elements of a section 10(b)/Rule 10b-5 claim are: (1) a false representation of (2) a material (3) fact; (4) defendant’s knowledge or reckless disregard of its falsity and his intention that plaintiff rely on it; (5) plaintiffs reasonable reliance thereon; and (6) plaintiffs resultant loss. Lewis, 949 F.2d at 649. Prudential claims plaintiffs have failed to plead compliance with the statute of limitations for Rule 10b-5 claims. It also asserts that plaintiffs have failed to plead the third, fourth, fifth and sixth elements of the claim, namely misrepresentation of a present fact, scienter, reliance and causation. Finally, Prudential has moved to dismiss plaintiffs’ claims for secondary liability under the securities laws. The Court will address these arguments seriatim. I. Statute of Limitations Prudential claims that plaintiffs’ securities claims fail to satisfy the statute of limitations set forth in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991). Lampf created a one-year/three-year scheme under which a plaintiff must file his claim within three years of the alleged violation and within one year of “discovery of the facts constituting the violation.” Id., 501 U.S. at 363, 111 S.Ct. at 2782. The courts of this district have consistently held that plaintiffs bear the burden of pleading compliance with Lampf, because the statute of limitations it sets forth is a substantive requirement rather than a procedural one. Rolo v. City Investing Co. Liquidating Trust, 845 F.Supp. 182, 243 n. 38 (D.N.J.1994); Kress v. Hall-Houston Oil Co., 1993 WL 166274, *2 (D.N.J.) (Wolin, J.). Prudential asserts, and this Court agrees, that neither Gassman nor the Ruchases have satisfied the one-year component of the statute. The Court further finds that the Ruchases have not demonstrated compliance with the three-year limitations period. Only Dorfner has adequately plead compliance with the statement of limitations for securities fraud claims. One-Year Limitations Period The federal courts have not yet reached consensus on some of the particulars of the Lampf limitations rule. Plaintiffs argue that one point of divergence is whether the one-year period begins to run upon plaintiffs actual notice of his cause of action or upon inquiry notice. Plaintiffs assert that the Third Circuit has not yet passed on this question and urge this Court to adopt an actual notice standard. Alternatively, they assert that their complaint satisfies even the inquiry notice pleading requirements. Although the debate over inquiry notice and actual notice was a heated point of contention in the years immediately following Lampf, the federal courts have by now settled into a fairly uniform consensus that the standard is inquiry notice. Tregenza, 12 F.3d 717; Menowitz v. Brown, 991 F.2d 36, 41 (2d Cir.1993) (per curiam); Brumbaugh v. Princeton Partners, 985 F.2d 157, 163-64 (4th Cir.1993); Topalian v. Ehrman, 954 F.2d 1125, 1135 (5th Cir.), cert. denied, 506 U.S. 825, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992). Although the Third Circuit does not appear to have passed on the question specifically, it has opined — albeit in another context — that: [t]he necessity for uniform federal remedies in security cases would seem to demand recourse to a uniform federal statute of limitations ... [W]ith a nod to Cicero, you simply should not have a different Securities Act limitations period for Rome, New York, and Athens, Georgia (Non erit alia lex Romae, alia Athenis). In re Data Access Sys. Secs. Lit., 843 F.2d 1537, 1549 (3d Cir.), cert. denied, Vitiello v. Kahlowsky and Co., 488 U.S. 849, 109 S.Ct. 131, 102 L.Ed.2d 103 (1988). Although the Third Circuit is not bound by its sister circuits’ adoption of inquiry rather than actual notice as the trigger for the one-year limitations period under Lampf, plaintiffs have provided no indication that the Circuit Court will buck this distinct trend, and the courts of this district have clearly adopted the inquiry notice standard. See Rolo, 845 F.Supp. at 243 (D.N.J.1994) (citations omitted) (“discovery need not be actual; ‘discovery’ under the 1934 Act limitation provisions includes constructive or inquiry notice, as well as actual notice”); Kress, 1993 WL 166274 at *2. Moreover, a plaintiff “does not have to have notice of the entire fraud being perpetrated to be on inquiry notice.” Dodds v. Cigna Secs., Inc., 12 F.3d 346, 352 (2d Cir.1993), cert. denied, 511 U.S. 1019, 114 S.Ct. 1401, 128 L.Ed.2d 74 (1994). Rather, “the time from which the statute of limitations begins to run is not the time at which a plaintiff becomes aware of all of the narrow aspects of the alleged fraud, but rather the time at which plaintiff should have discovered the general fraudulent scheme.” McCoy v. Goldberg, 748 F.Supp. 146, 158 (S.D.N.Y.1990) (citation omitted); see also Kosovich v. Thomas James Assocs., Inc., 1995 WL 135582, *3 (S.D.N.Y.) (citing cases). To satisfy their burden of pleading compliance with the one-year prong of the statute of limitations, plaintiffs “must set forth the time and circumstances of discovery of the fraud, the reason why discovery was not made earlier, and the diligent efforts the plaintiff undertook in making such discovery.” Rolo, 845 F.Supp. at 243 n. 38 (citing cases). Prudential argues that the written documents plaintiffs received in connection with their purchases put them on immediate inquiry notice that the products they purchased were not what their agents allegedly represented them to be. Direct contradictions between alleged oral misrepresentations and written offering materials have been deemed to put the purchaser on inquiry notice in numerous cases. See, e.g., Dodds, 12 F.3d 346 (written prospectuses directly contradicting alleged oral misrepresentations put plaintiff on inquiry notice even though plaintiff had only tenth-grade education, had not read prospectuses and had told broker she could not understand them); Calvi v. Prudential Secs., Inc., 861 F.Supp. 69 (C.D.Cal.1994) (defendant wins summary judgment on limitations ground where prospectus clearly disclosed risks of investment, even though plaintiff claimed she was an unsophisticated widow who had not read them); DeBruyne v. Equitable Life Assur. Soc. of United States, 920 F.2d 457 (7th Cir.1990); Harner v. Prudential Secs., Inc., 785 F.Supp. 626 (E.D.Mich.1992), aff'd, 35 F.3d 565 (6th Cir.1994). Of course, if the written materials are to provide notice that prior or concurrent oral statements are fraudulent, they must contradict those representations directly. As this Court reads the complaint, Dorfner does not allege that Prudential misrepresented to him that his VAL policy would pay for itself, or that he did not realize that Prudential’s claim that dividends from his prior policies would pay the premiums for his VAL policy for “at least eight years” was contingent upon the amount of dividends available. Rather, Dorfner’s claims appear to arise solely out of Prudential’s alleged use of proceeds from unauthorized loans against his whole life policies to pay premiums on his 1991 VAL policy. Prudential has pointed to no specific language in any of the written materials Dorfner received that speaks to Prudential’s right to authorize loans against his policies without notifying him. Accordingly, the Court finds that Dorfner’s claims are not time-barred by the one-year limitations provision. Gassman asserts (1) that Prudential misrepresented that a VAL policy would provide a return greater than that of his CD; (2) that Prudential misrepresented that the VAL policy he purchased would generate dividends sufficient to cover premium obligations; (3) that Prudential failed to disclose to him that the VAL policy was “primarily life insurance;” and (4) that he was unaware that a “substantial portion” of his premium payments would go toward commissions, administrative charges and other fees. Gassman received documents from Prudential which directly contradict most of these alleged oral misrepresentations. First, the policy contains a separate section entitled “Dividends,” which states: We will decide each year what part, if any, of our surplus to credit to this contract as a dividend.... We do not expect to credit any dividends to this contract. If you ask us in writing on a form that meets our needs, you may choose any of these uses for any such dividend: ... (2) Premium Reduction. — We will use it to reduce any premium then due. Second, the policy clearly states, both in bold letters at the top of the first page of Gass-man’s signed application and throughout the policy, that it is a life insurance policy. Third, the application devotes much of its space to queries regarding the applicant’s medical history, providing a further indication that the product Gassman was buying was insurance. Finally, the policy details various monthly administrative charges, “sales expenses” and other fees included in the applicant’s monthly payment obligations. Clearly, these contradictions between the written materials Gassman signed and the alleged oral misrepresentations his agent made put Gassman on notice of his need to inquire further. As noted above, the Ruchases’ claims are unartfully plead. To the extent they claim damages based upon Prudential’s alleged misrepresentation that the VAL policies they purchased were almost identical to an IRA and “not an insurance product with a small investment feature,” it is clear that the written documents they received directly contradicted such a statement. The 1987 VAL policies and prospectus are filled with references to the product as “life insurance,” and the prospectus states, in bold type: “THE PURPOSE OF THESE VARIABLE APPRECIABLE LIFE INSURANCE CONTRACTS IS TO PROVIDE INSURANCE PROTECTION. NO CLAIM IS MADE THAT THE CONTRACTS ARE IN ANY WAY SIMILAR OR COMPARABLE TO A SYSTEMATIC INVESTMENT PLAN OF A MUTUAL FUND.” The Kuehases’ remaining allegations appear to concern only their original whole life insurance policies; accordingly, the Court will not examine their timeliness under the securities laws. Accordingly, the Court finds that the direct contradictions between the written offering materials and the oral misrepresentations alleged by the Kuehases and Gassman provide a strong indication that these plaintiffs were on inquiry notice of their claims more than one year before they filed them. The question remaining is what, if any, additional information this Court may consider to determine whether their claims are time-barred. Plaintiffs argue that the Court should analyze inquiry notice under the same eight-factor test used by many courts to measure the reasonableness of a plaintiffs reliance on alleged misstatements in a securities fraud case. Plaintiffs cite no authority for such an extension, and this Court finds that it would be inappropriate. Assessment of the reasonableness of a plaintiffs reliance is a subjective undertaking; inquiry notice, by contrast, is determined by “an objective reasonable’ diligence standard.” Whirlpool, 67 F.3d at 609; see also Dodds, 12 F.3d at 349 (plaintiff deemed to have discovered fraud “when a reasonable investor of ordinary intelligence” would have discovered it); Romanoff v. Mahon, Nugent & Co., 884 F.Supp. 848, 854 n. 3 (S.D.N.Y.1995) (quotation omitted) (finding plaintiffs lack of business sophistication irrelevant since “the test as to when fraud should with reasonable diligence have been discovered is an objective one”). Accordingly, this Court will not utilize the reliance test to determine whether or when plaintiffs received inquiry notice of their claims. This does not mean, however, that all examination of the context of the transaction at issue is precluded. The circuits are not in agreement regarding the extent, if any, to which considerations of a plaintiffs particular circumstances might operate to equitably toll the one-year limitations period or delay its onset. Compare Dodds, 12 F.3d at 350 (where plaintiff “has exercised reasonable care and diligence in seeking to learn the facts which would disclose fraud,” doctrine of equitable tolling might stay running of one-year statute), with Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 610 n. 3 (7th Cir.1995), quoting Tregenza, 12 F.3d at 721 (“plain import of [Lampf] is that “when knowledge or notice is required to start the statute of limitations running, there is no room for equitable tolling’ ”). The Third Circuit has not yet decided this question. Even in jurisdictions that have considered context in determining whether to delay or toll the one-year limitations period, the case law has not yet made clear exactly what factors a court should weigh. The Dodds Court would apparently have taken account of evidence “that defendants prevented or discouraged [plaintiff] from reading the prospectuses” as a factor favoring tolling, had plaintiff presented such evidence. Dodds, 12 F.3d at 352 (emphasis added). The Court in Komanoff, 884 F.Supp. at 854, considered evidence that the defendant had advised the plaintiff to ignore written contradictions of oral misrepresentations in denying summary judgment for defendants on limitations grounds. The Komanojf Court also considered “the nature of the relationship between the broker and his client” in its holding, noting that a partial explanation for the plaintiffs continued trust in the defendants was her daughter’s involvement in the transaction. Id. at 855, citing Lang v. Paine, Webber, Jackson & Curtis, Inc., 582 F.Supp. 1421, 1428 (S.D.N.Y.1984), Kravitz v. Pressman, Frohlich & Frost, Inc., 447 F.Supp. 203, 211 (D.Mass.1978). See also Lavian v. Haghnazari, 884 F.Supp. 670, 676 (E.D.N.Y.1995) (“where the determination of whether there exists a reasonable suspicion of fraud is colored by a family relationship and the heightened degree of trust that it may imbue, the procedural posture indicates against concluding inquiry notice of fraud on a Rule 12(b)(6) motion to dismiss”). None of these factors justify plaintiffs’ apparent failure to question or closely examine the written materials Prudential provided them in connection with their purchases of insurance. As stated above, although plaintiffs claim that Prudential, “through various devices of secrecy, affirmatively and fraudulently concealed the existence of their unlawful scheme and course of conduct” (ComplJ 110), these allegations of fraudulent concealment are conclusory and fail to satisfy Rule 9(b). See Alfaro, 606 F.Supp. at 1109-10. Certainly, plaintiffs make no specific assertion that Prudential attempted to prevent them from obtaining or reading the written materials which directly contradicted many of the alleged oral misrepresentations upon which they rely. See Dodds, 12 F.3d at 352 (no fraudulent concealment tolling statute of limitations where, although plaintiff allegedly told defendant she had not read and could not understand prospectuses, no allegation that defendants actually prevented or discouraged her from reading them). And, although plaintiffs allege that their relationships with their Prudential brokers were fiduciary in nature, and such a relationship might under some circumstances operate to toll or delay the onset of the one-year limitations period, the Court has determined that plaintiffs have not adequately alleged a fiduciary relationship in this complaint. See infra pp. 71-75. Thus, the Court finds that Gassman’s and the Ruchases’ securities fraud claims are barred by the one-year limitations period set forth in Lampf. Three-Year Limitations Period A point upon which the federal courts have not yet reached consensus is the question of which event triggers the three-year limitations period: the defendant’s wrongdoing, or the plaintiffs entry into the transaction out of which her cause of action arises. Prudential asserts that the triggering event is the misrepresentation and not the purchase or sale, and that the securities claims of Dorfner and the Ruchases are therefore barred by the three-year limitations period. The only case within this Circuit since Lampf to have analyzed the three-year trigger question thoroughly, In re Phar-Mor, Inc. Secs. Lit., 892 F.Supp. 676 (W.D.Pa.1995), supports Prudential’s position. In Phar-Mor, certain corporate officers had allegedly issued financial statements which falsely reflected a profitable business when in fact the company had been operating at a substantial loss. Id. at 680. After the fraud came to light and Phar-Mor filed for bankruptcy protection, certain investors brought an action against the company’s accountants. The plaintiffs had purchased their interests at different times; the defendant moved to dismiss those whose claims arose out of a 1989 private placement on statute of limitations grounds. Those plaintiffs had purchased their interests on November 22, 1989, allegedly relying on a misleading prospectus dated November 1, 1989. They filed their complaint in between those two dates in 1992. Accordingly, the question presented to the Court was “whether a ‘violation’ occurs on the date that the alleged misrepresentation is made or whether it occurs at the time the securities are purchased.” Id. at 686. After noting a dearth of authority addressing this precise question, id. at 686-87, the Court found that the language of the Lampf opinion and of the statute the Lampf Court adopted required a holding that “the triggering event for the running of the limitations period on a section 10(b) claim is the making of the misrepresentation.” Id. at 687. The Court stated that its holding was supported by “the plain language of the opinion in Lampf,” citing the Supreme Court’s choice of the limitations provision set forth in section 9(e) of the 1934 Act, after an analysis of that provision and several others, as the rule to apply to private actions under section 10(b) and Rule 10b-5. Id. The historical background to Lampf is well-known. The now well-established private right of action for violations of section 10(b) and Rule 10b-5 is not provided for in the text of the statute; rather, it was the courts which found an “implied” right of action in the statute. Obviously, then, neither section 10(b) nor Rule 10b-5 provides a specific limitations period. For some time the federal courts each simply followed their own rules, often adopting analogous state limitations periods. Gradually, however, various courts, scholars and practitioners raised a call for a uniform limitations period, to which the Supreme Court responded with Lampf. The Lampf Court found that the most logical place to look for an appropriate statute of limitations to adopt for 10(b) and 10b-5 claims was the limitations periods which apply to other causes of action arising under the securities statutes. Lampf, 501 U.S. at 359, 111 S.Ct. at 2780. The Court narrowed its focus to sections 9(e) and 18(c) of the 1934 Act, because those limitations periods apply to securities actions which “target the precise dangers that are the focus of § 10(b).” Id., 501 U.S. at 360-61, 111 S.Ct. at 2781. Section 9(e) provides: No action shall be maintained to enforce any liability created under this section unless brought within one year after the discovery of the facts constituting the violation and within three years after such violation. 15 U.S.C. § 78i(e) (emphasis added). By contrast, section 18(c) provides: No action shall be maintained to enforce any liability created under this section unless brought within one year after the discovery of the facts constituting the cause of action and within three years after such cause of action accrued. 15 U.S.C. § 78r(c) (emphasis added). The Lampf Court specifically chose the former statute, stating: “To the extent that these distinctions in the future might prove significant, we select as the governing standard for an action under § 10(b) the language of § 9(e)....” Id., 501 U.S. at 364 n. 9, 111 S.Ct. at 2782 n. 9. The Phar-Mor Court drew the logical conclusion that: The [Lampf] Court’s recognition of the distinction between ‘violation’ and ‘cause of action’ and its adoption of the former leads us to conclude that the Court intended that the triggering event for the running of the limitations period is the making of the alleged misrepresentation, and not the accrual of the cause of action. Phar-Mor, 892 F.Supp. at 687. See also Klein v. Goetzmann, 770 F.Supp. 78, 85 & n. 8 (N.D.N.Y.1991) (citing Lampf and rejecting plaintiffs’ argument that persons who purchased within three-year period had filed timely claims, holding that “10(b) claims must be brought within three years of the violation, which means that in no case may claims based on fraudulent actions occurring outside the three-year period be maintained”). Moreover, the Phar-Mor Court held, the text of section 9(e) also compels the conclusion that the defendant’s misrepresentation is the trigger for the three-year period. The Court found that, since it is “undisputed” that the one-year period begins to run upon the plaintiffs discovery “of the facts constituting the fraudulent conduct,” Phar-Mor, 892 F.Supp. at 687, the word “violation” in the first clause of section 9(e) must refer to the fraudulent conduct rather than the purchase or sale out of which the plaintiffs cause of action arises. Therefore, the Court held, “[w]ere we to accept plaintiffs’ argument that the 3-year period of repose does not begin to run until the sale or purchase of the securities, we would be applying two different meanings to the same word as it is used in the single sentence.” Id. It is clear that the one-year period may begin to run before plaintiffs have completed the transaction out of which their claims arise; thus, it stands to reason that it is the defendant’s conduct, and not the plaintiffs sale or purchase, which triggers the three-year period as well. Other courts have interpreted Lampf differently. In Otto v. Variable Annuity Life Ins. Co., 816 F.Supp. 458, 461 n. 3 (N.D.Ill.1991) (citations omitted), the Court noted in dicta that: Even within the context of a discrete misrepresentation, the confined focus upon the timing of the misrepresentation appears discordant with the Court’s holding in Lampf that litigation instituted pursuant to § 10(b) and Rule 10b-5 ... be commenced within ... three years after [the] violation.... Indeed, a violation of § 10(b) and Rule 10b-5 is comprised not only of a misrepresentation or omission of material fact, but also includes ‘the pur-, chase or sale of any security.’ See also Randolph County Fed. Sav. & Loan Assoc. v. Sutliffe, 775 F.Supp. 1113, 1121 (S.D.Ohio 1991) (citing cases) (date of purchase, not misrepresentation, triggers three-year period because “violation is not complete until a sale or purchase occurs”); Crossen v. Bernstein, 1994 WL 281881, *7 (S.D.N.Y.), citing, inter alia, McCool v. Strata Oil Co., 972 F.2d 1452, 1460 (7th Cir.1992) (stating, without analysis, that § 10(b) action accrued on date of sale or purchase); Marks v. CDW Computer Ctrs., Inc., 901 F.Supp. 1302, 1314 (N.D.Ill.1995) (same, citing McCool); In Re Colonial Ltd. Ptrship. Lit., 854 F.Supp. 64, 84 (D.Conn.1994) (“10(b) claim must be brought within three years of the date of the alleged fraud, which in the instant case, is the date of ‘purchase’ ”); see also Rolo, 845 F.Supp. at 246 (declining to decide whether three-year period began to run upon execution of purchase contract or date of last installment payment because neither date fell within statutory period). Either position on the three-year trigger question is defensible; however, in the absence of binding authority the Court must choose a trigger, and it finds the reasoning in Phar-Mor more persuasive. The three-year statute is a “period of repose” whose purpose “is clearly to serve as a cutoff.” Lampf, 501 U.S. at 363, 111 S.Ct. at 2782. In a pre-Lampf case in which the Third Circuit adopted the same statute of limitations that Lampf subsequently adopted, the Court stated: “The legislative history in 1934 makes it pellucid that Congress included statutes of repose because of fear that lingering liabilities would disrupt normal business and facilitate false claims. It was understood that the three-year period would be absolute.” Data Access, 843 F.2d at 1546 (quotation omitted). Given the purpose of the three-year period, the rule’s trigger should be the defendant’s actions and not the plaintiffs. A contrary rule would subject many corporate entities to lengthy exposure to potential liability, as plaintiffs may assert that they took action in reliance on misrepresentations that occurred many years before. Moreover, the Lampf opinion itself summarized its holding with the statement: “As there is no dispute that the earliest of plaintiff-respondent’s complaints was filed more than three years after petitioner’s alleged misrepresentations, plaintiff-respondent’s claims were untimely.” Lampf, 501 U.S. at 364, 111 S.Ct. at 2782 (emphasis supplied). Although the Supreme Court did not specifically address the issue of what constitutes a triggering event for purposes of the three-year limitations period, this Court will not ignore an apparently clear statement of the Supreme Court’s inclination on the question. Hill v. Der, 521 F.Supp. 1370, 1385 (D.Del.1981), a pre-Lampf case in which the parties agreed, and the Court apparently accepted, that a 10b-5 action accrued at the time of purchase, is unpersuasive in light of Lampf The Court acknowledges that the Phar-Mor rule is easier to apply in cases alleging affirmative misrepresentations than it is in cases in which the alleged fraud involves omissions. As the Northern District of Illinois pointed out in Otto, 816 F.Supp. at 460, “It is axiomatic that pinpointing the time of an omission is an entirely different task than measuring the occurrence of a material misrepresentation.” Because that case involved only omissions, the Otto Court expressly declined to select a triggering event for affirmative misrepresentation cases, but found that an assessment of when an omission has taken place “can only be made with reference to the purchase or sale that the omission induced.” Id. at 461. This Court disagrees with the absolute nature of the Otto Court’s finding that the only way to determine when an omission has occurred is to look to the date of the affected transaction. While the time a wrongful omission occurs might often coincide with the date a plaintiff buys or sells a security in reliance on the omission, this is not invariably the case. It would seem preferable, and more jurisprudentially appropriate, to measure the time an omission occurs by reference to the defendant’s wrongful conduct rather than by reference to the plaintiffs action in response thereto. Because an omission of information is only wrongful in the face of a duty to disclose it, it would se.em that the time an omission occurs is the time the duty to disclose arises. Thus, this Court holds that the three-year limitations period for section 10(b) and Rule 10b-5 claims begins to run upon the date a defendant makes an affirmative misrepresentation or, in the case of an omission, upon the date a duty to disclose the withheld information arises. Dorfner filed his claims on March 4, 1995. Although he initially purchased his VAL policy outside the limitations period in 1991, he continued to make payments on the policy within the three-year period. Accordingly, to the extent he seeks relief for misrepresentations or omissions that occurred in connection with his initial purchase, his claims are time-barred. He may, however, pursue claims for misrepresentations or omissions that occurred after March 4, 1992, so long as he can demonstrate that he subsequently made further payments on the policy in reliance thereon. Dorfner’s claim that Prudential failed to disclose that it had taken an unauthorized loan against one of his insurance policies in 1992 is, therefore, not time-barred. As stated above, the Ruchases simply have not presented their claims with sufficient clarity to survive dismissal on statute of limitations grounds. As the Court has determined that their claims must be dismissed for failure to plead compliance with the one-year limitations period (as well as with Rule 9(b)), we will not undertake an extended of application of the three-year statute to them. The Court will simply note that, to demonstrate compliance with the three-year limitations period, plaintiffs would have to replead with greater specificity as to when each alleged misrepresentation or omission occurred. Conclusion For the foregoing reasons, the Court will dismiss as time-barred the securities claims of Gassman and the Ruchases. As pled, the Ruchases’ claims do not demonstrate compliance with either the one-year or the three-year limitations period, and Gassman’s claims do not satisfy the one-year portion of the rule either. The Court will deny Prudential’s motion to dismiss Dorfner’s claims on statute of limitations grounds. II. Causation One section of Prudential’s moving papers asks the Court to dismiss plaintiffs’ securities claims “because they have failed to demonstrate the defendants’ alleged misstatements or omissions were made ‘in connection with’ the plaintiffs’ purchase or sale of a VAL or pertained to a decline in the value of that purported security — the requisite loss causation.” (Ope.Br. p. 26) It is unclear whether Prudential advances the “in connection with” requirement and the loss causation requirement as separate grounds for dismissal, or whether it views these terms as two expressions of the same doctrine. Having conducted its own research on the question, this Court has come to understand that the case law has not yet defined the parameters of the causation required for a section 10(b) action either. The cases do, however, make it clear that, regardless of how we frame the causation inquiry, we must look to the particular factual circumstances presented by each case because of the varied financial products that are offered and sold to the consuming public. It is