remaining Section 10(b) claim. Accordingly, we make no finding on the private cause of action issue at this time.
3. Aiding and Abetting Securities Fraud
Long Grove, Much Shelist, and S & F have moved to dismiss the aiding and abetting claims against them (Counts XI-XIII) for failure to state a claim. In order to state a cause of action for aiding and abetting, Lewis must show that "each person alleged to be an aider, abettor, or conspirator himself committed one of the 'manipulative or deceptive' acts or otherwise met the standards of direct liability (save for the fact that he did not offer or sell the securities)." Barker v. Henderson, Franklin, Starnes and Holt, 797 F.2d 490, 495 (7th Cir. 1986). In addition, Lewis must show (1) that someone committed a primary violation; (2) that positive law obliges the abettor to disclose the truth; and (3) that the abettor fails to do this with the same degree of scienter necessary for the primary violation. DiLeo v. Ernst & Young, 901 F.2d 624, 628 (7th Cir.), cert denied, 112 L. Ed. 2d 312, 111 S. Ct. 347 (1990). Allegations of aiding and abetting under these requisites must also satisfy Rule 9(b) of the Federal Rules of Civil Procedure. Id at 629. In particular, the case against an aider and abettor "may not rest on a bare inference that the defendant 'must have had' knowledge of the facts. The plaintiff must support the inference with some reason to conclude that the defendant has thrown in his lot with the primary violators." Barker, 797 F.2d at 497. Lewis' complaint falls short of these requirements.
First, the allegations do not suggest that any of the three defendants affirmatively committed manipulative or deceptive acts in connection with the purported fraud of Richards and Hermann. Significantly, with reference to Richards as the primary actor, Lewis' complaint against Long Grove actually predicates the company's liability on the failure to play any role whatever in Richard's purported fraud. By the same token, there are no allegations in the complaint that either S & F or Much Shelist had anything to do with Richards and his activities. With reference to Hermann as the primary actor, the only conduct of S & F that is alleged with any particularity is that S & F advised Hermann regarding the structuring of Metro Partners and prepared the offering memorandum for the Metro Partners transaction. Lewis has not alleged, however, that there was anything fraudulent about either the structuring of the offering or of the offering materials. Similarly, Much Shelist is alleged to have rendered advice to Hermann in connection with the structuring and formation of Metro Uptown and to have drafted and approved the documentation relating to the sale of Metro Uptown. Here too, however, Lewis does not allege that there was anything wrong with either the structuring of the Metro Uptown transaction or with its supporting documentation. Thus, as to both Metro Partners and Metro Uptown, the only activity that S & F or Much Shelist participated in has not been alleged to have been wrongful in any way.
Second, Lewis' claims fail to properly allege that the defendants had knowledge of Richards or Hermann's fraud. Regarding the sufficiency of allegations of scienter, the Seventh Circuit has held that, "although Rule 9(b) does not require particularity with respect to the defendants' mental state, the complaint still must afford a basis for believing that the plaintiffs could prove scienter." DiLeo, 901 F.2d at 629. As to Long Grove, we again point out that Lewis' claim itself is predicated on the fact that Long Grove failed to learn of any of Richards' wrongdoing.
Hence, the complaint fully contradicts any suggestion that Long Grove possessed the requisite scienter of Richards' purported conduct. In addition, there are no allegations that S & F or Much Shelist had any knowledge as to Richards' activities. With respect to Hermann's activities, absent some indication or evidence that S & F or Much Shelist must have had reason to know that the business information being supplied by Hermann was false or materially incomplete, we have no basis from which to infer scienter. A boilerplate allegation--which is all that we have here -- that a defendant "knew or acted in reckless disregard" of the alleged fraud will not suffice to state a claim for aiding and abetting.
Finally, since the securities laws do not impose a general duty to speak, id. at 628, even if S & F and Much Shelist knew of Hermann's material misrepresentations or omissions, their liability for aiding and abetting ultimately must rest on a duty to disclose. Barker, 797 F.2d at 497 (lawyers are not required to tattle on their clients in the absence of a duty to disclose); see also LHLC Corp., 842 F.2d 928. Lewis' allegations, however, fail to indicate any basis upon which to conclude that either S & F or Much Shelist owed a fiduciary duty to Lewis giving rise to a duty to disclose. As far as we can glean from the complaint, S & F and Much Shelist rendered services as attorneys for Hermann and the partnerships only in connection with the sale of the securities to purchasers such as Lewis. Under such a circumstance, the firms had no duty to advise Lewis of any ongoing fraud. See, LHLC, 842 F.2d at 932-33. Accordingly, we dismiss the aiding and abetting claims found in Counts XI-XIII.
4. Public Injury or General Effect on Consumers Under the Illinois Consumer Fraud Act
Count V alleges a violation of the Illinois Consumer Fraud Act. Ill. Rev. Stat. ch. 121 1/2, paras. 262 et seq. Richards and Hermann argue that this claim is barred because it fails to state a public injury or a general effect on consumers. This is an issue which, until recently, had generated conflicting opinions both in state and in federal court. Compare Blake v. State Farm Mutual Automobile Insurance Co., 168 Ill. App. 3d 918, 523 N.E.2d 85 (1st Dist. 1988) (allegation of public injury or general harm was necessary); Bonfield v. Aamco Transmissions, Inc., 708 F. Supp. 867 (N.D. Ill. 1989) (same); UNR Indus., Inc. v. Continental Ins. Co., 623 F. Supp. 1319, 1331 (N.D. Ill. 1985) (same); with Haroco Inc. v. American National Bank and Trust Co., 647 F. Supp. 1026 (N.D. Ill. 1986); In re CLDC, 18 Bankr. 797 (N.D. Ill. 1982). Recently, however, the state legislature has settled this issue by amending the act to specifically provide that "proof of a public injury . . . or an effect on consumers generally shall not be required". See Ill. Rev. Stat. ch. 121 1/2, para. 270a § 10a (1990 cumulative pocket part). Richards nevertheless argues that this statute cannot be applied retroactively to protect persons not previously included within its scope. See Reichelt v. Urban Invest. & Dev. Co., 577 F. Supp. 971, 976 (N.D. Ill. 1984). We do not find that principle applicable in this case. The amendment did not alter clear precedent on the issue; in essence, it merely clarified the purpose of the act in light of the divergent precedent on the issue. The legislature has merely adopted its preferred view and codified it. Consequently, we find that Lewis was not required to allege a public injury or general harm in order to state a claim under the Illinois Consumer Fraud Act. Accordingly, Richards' motion to dismiss Count V on this basis is denied.
C. Motion to Strike/Judgment on the Pleadings (Count X)
Lewis has moved to strike certain portions of Hermann's answer to Count X and has additionally moved for an order granting judgment on the pleadings on Count X of the complaint. Count X seeks to enforce a personal and unconditional guaranty that Hermann allegedly signed that guaranteed Metro Uptown's obligations under the serial notes issued to Lewis. Lewis contends that Hermann's denial of certain averments in the amended complaint and Hermann's affirmative defense of economic duress should be stricken because Hermann did not assert these matters in his answer to identical averments in Lewis' original complaint. We deny the motion to strike for the reason we have outlined above in connection with Hermann's assertion of a statute of limitations defense. See Section A, subsection 1, above.
With respect to the motion for judgment on the pleadings, Hermann admits in his answer that he signed the guaranty and that the terms of the provisions of the guaranty speak for themselves. We find no ambiguity in the terms of the guaranty, and, in any event, it is undisputed that Metro Uptown's bankruptcy filing constitutes a default under the terms of the guaranty, thereby giving Lewis the right to enforce the guaranty against Hermann. In opposition to judgment on the pleadings, however, Hermann claims that his affirmative defense of economic duress raises issues of fact which, if proved, would defeat recovery. We reject that contention.
In his answer, Hermann maintains that Lewis was already obligated pursuant to a subscription agreement to pay for the serial notes in question when due. He claims economic duress based on the allegation that, notwithstanding Lewis' former obligation, Lewis
engaged in the wrongful act of defaulting on its obligation to pay for these notes and then demanded that Hermann execute a guaranty and reduce the amount loaned. In so doing, [Lewis] took undue advantage of. . . Hermann's business concerning these notes and thereby forced . . . Hermann to execute this guaranty against his free will.