Outline of PMB's Reply in Support of Motion to Dismiss
A. Mr. Maciora has failed to satisfy the heightened pleading requirements of the Private Securities Litigation Reform Act, and so his claim for securities fraud must be dismissed as a matter of law.
1. Mr. Maciora fails to identify any "material" misrepresentation by PMB
2. There are no facts supporting any intent by PMB to defraud
3. Mr. Maciora admits that he did not rely on PMB's audit when deciding to acquire Mr. Zalunardo's purported shares of MEC
a. Mr. Maciora's reliance on Affiliated Ute Citizens v. United States, 406 U.S. 128, 153-54, 92 S.Ct.1456, 31 L.Ed.2d 741 (1972) is misplaced
4. Mr. Maciora's alleged damages are purely a device of his own making
B. Mr. Maciora has failed to identify facts establishing that he is an "actual purchaser" of any MEC security
C. Mr. Maciora relies on bad law to support his claim under Section 17a
D. Mr. Maciora fails to distinguish controlling law that precludes a private cause of action for aiding and abetting securities fraud
E. There is no implied private cause of action for alleged violations of Section 10a of the Exchange Act
1. The plain language of the statute, and the legislative history indicate a clear intent to preclude a private cause of action under Section 10a
2. Implying a cause of action under Section 10a is inconsistent with the statutory scheme
3. Mr. Maciora is not amongst the class of persons Section 10a is designed to protect.
F. Mr. Maciora's negligence claim is precluded by Washington, Texas and federal common law
G. Mr. Maciora fails to address, and therefore concedes dismissal of his fourth and fifth claims.
H. PMB adopts and incorporates herein its Opposition to Plaintiff's Motion for Leave to Amend and PMB's Surreply filed in support thereof
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