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DENTEN v. MERRILL LYNCH

May 30, 1995

DONNA DENTEN, Plaintiff,
v.
MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., and MARY S. WEBSTER, as Independent Executor of the Estate of Charles L. Webster, Deceased, Defendants.



The opinion of the court was delivered by: JAMES F. HOLDERMAN

 JAMES F. HOLDERMAN, District Judge:

 Defendant Merrill Lynch, Pierce, Fenner & Smith, Inc. ("Merrill Lynch") has moved for a dismissal of plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, defendant's motion is denied in part and granted in part.

 BACKGROUND

 Shortly after her divorce in 1990, plaintiff was solicited by Charles Webster ("Webster") to become a client of Merrill Lynch. Webster was an Executive Vice President of Merrill Lynch, where he had been a broker and employee for over twenty years. Plaintiff's father had been a long-standing client of Merrill Lynch, with Webster as his principal contact. Based on her father's positive experience with Merrill Lynch and because of the resources and reputation of Merrill Lynch, plaintiff agreed to become a client of Merrill Lynch and have Webster handle her account.

 According to plaintiff, Webster was to take care of the necessary paperwork to have an account opened on plaintiff's behalf at Merrill Lynch. Webster later advised plaintiff that an account had been opened. Based on Webster's position and tenure with Merrill Lynch, plaintiff claims that she had every reason to believe that Webster was authorized to open new accounts at Merrill Lynch.

 After plaintiff became a client, Webster began calling plaintiff from his Merrill Lynch office almost everyday, regarding investment opportunities of which Webster knew through Merrill Lynch. Plaintiff would also call Webster at his Merrill Lynch office. On several occasions, plaintiff met with Webster at Merrill Lynch's Chicago office. Webster sent various notes and letters to plaintiff's home on Merrill Lynch letterhead and in envelopes bearing Merrill Lynch's name and address.

 According to plaintiff, Webster explained to plaintiff that given the nature of her assets, she needed a conservative investment strategy that would generate a steady flow of income. Webster promised to identify one or more investments at Merrill Lynch for plaintiff which would fit her needs.

 Beginning in 1991, Webster advised plaintiff that he had an extremely safe and stable investment for her in a radio station network. Webster also discussed this potential investment with plaintiff's father. Webster stated that if plaintiff and her father would purchase a majority of the radio station network stock, the network would be renamed "The Denten Broadcasting Company." At Webster's suggestion, a mortgage was taken out on plaintiff's home in the amount of $ 700,000, and the proceeds were invested in the network.

 In October 1991, Webster filed articles of incorporation for entities called Webster Broadcasting, Inc. with the Illinois Secretary of State. According to plaintiff, Webster, without her knowledge, listed himself as sole shareholder of the corporation formed to own and control the radio stations, leaving plaintiff with no ownership of her investment which was in excess of $ 1,200,000.

 In late August 1992, plaintiff's father died. Sometime before his death, he gave Webster a letter addressed to plaintiff and directed Webster to deliver the letter to plaintiff when he died. In his letter, plaintiff's father described where he had hidden cash, jewelry and other valuable items for his daughter to retrieve upon his death. When plaintiff's father died, plaintiff claims that Webster opened the letter, and retrieved the valuables for himself. Plaintiff alleges that on September 8, 1992, Webster deposited the cash retrieved from The Dentens' home into his own bank accounts.

 Also on or about September 8, 1992, John Verbockle, a General Manager and Vice President of Merrill Lynch, contacted plaintiff. At Verbockle's request, plaintiff met him, Merrill Lynch's counsel, and other Merrill Lynch representatives from New York at Merrill Lynch's Chicago office. During this meeting, the radio stations and Webster were discussed. The Merrill Lynch representatives told plaintiff that Webster was recently dismissed for "inappropriate conduct with clients." According to plaintiff, at this meeting Merrill Lynch accepted responsibility for Webster's actions and told plaintiff that she would recoup her lost investments from Merrill Lynch. Plaintiff claims that the Merrill Lynch representatives told plaintiff that the matter would be solved to her satisfaction.

 Plaintiff filed suit against Mary Webster, as executor of the estate of Charles Webster, and Merrill Lynch on November 12, 1993. After Merrill Lynch's first motion to dismiss was granted, plaintiff filed an amended complaint alleging the following counts against Merrill Lynch: 1) violation of Securities Exchange Act, 15 U.S.C. § 78j(b); 2) violation of Securities Exchange Act, 15 U.S.C. § 78t; 3) aiding and abetting Webster's violations of § 10(b) of the Securities Exchange Act; 4) violation of Illinois Securities Law, 815 ILCS 5/1-19; 5) violation of Illinois Consumer Fraud Act, 815 ...


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