            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         February 4, 2009

                                       No. 08-10053                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

CARLY ELIZABETH ADAMS

                                                  Defendant-Appellant

                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:07-CR-111-4

Before O’CONNOR, Associate Justice (Ret.),* WIENER and STEWART, Circuit
Judges.
PER CURIAM:**
       Defendant-Appellant Carly Elizabeth Adams pleaded guilty to possession
of stolen mail in violation of 18 U.S.C. § 1708. She now appeals her sentence,
claiming that the district court erred in applying an offense-level enhancement

       *
        The Honorable Sandra Day O’Connor, Associate Justice of the United States Supreme
Court, (Ret.), sitting by designation pursuant to 28 U.S.C. § 294(a).
       **
          Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 08-10053

for an offense that involved at least 50 but less than 250 victims. Finding no
reversible error, we affirm.
                      I. FACTS AND PROCEEDINGS
      On January 17, 2007, Burleson (Texas) Police Department officers
encountered two of Adams’s co-defendants in a Wal-Mart parking lot. The
officers took them into custody, at which time they asked the officers to deliver
propane to Adams’s residence so that Adams and others at the residence could
have heat. When the officers arrived, they received Adams’s permission to enter
the home. The officers then observed in plain view various identifications, credit
cards, and mail. They requested and obtained Adams’s consent to search the
residence. The search revealed additional credit cards and identifications as
well as pieces of mail addressed to different locations and to individuals other
than those living at the residence. A grand jury subsequently indicted Adams
for possession of stolen mail in violation of 18 U.S.C. § 1708. Although Adams
and the government did not reach a plea agreement, she pleaded guilty.
      At Adams’s preliminary hearing in the district court, Postal Inspector
Mona Hernandez testified that she discovered more than 100 pieces of mail in
the RV and, even though she did not “recall specifically,” made a “rough
estimate” that she had identified more than 50 victims. On cross-examination,
Adams did not question Inspector Hernandez’s estimate. The U.S. Probation
Officer’s pre-sentence report computed Adams’s total offense level based on an
enhancement pursuant to section 2B1.1(b)(2)(B) of the United States Sentencing
Guidelines (the “Guidelines”) for an offense that involved at least 50 but less
than 250 victims. Adams filed objections to the pre-sentence report including,
inter alia, a challenge to that enhancement because the pre-sentence report
positively identified only 24 victims. The government explained that the pre-
sentence report identified only those victims associated with restitution or loss-
amount calculations, but that Inspector Hernandez had determined that there

                                        2
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were at least 50 “victims,” a term defined to include each individual whose mail
was taken without however requiring that any financial loss have been
incurred.1 The government also stated that at sentencing Inspector Hernandez
would be available to testify. Indeed, Adams had the opportunity at sentencing
to cross-examine Inspector Hernandez but asked no questions related to the
enhancement for number of victims. The district court adopted the pre-sentence
report’s factual findings and enhanced Adams’s offense level by four levels
because the offense involved at least 50 but less than 250 victims. This timely
appeal followed.
                                       II. ANALYSIS
A.     Standard of Review
       We review a district court’s application of the Guidelines de novo and its
factual findings for clear error.2 A factual finding is not clearly erroneous as long
as it is “plausible in light of the record as a whole.”3 “However, there must be an
acceptable evidentiary basis for the court’s factfindings at the sentencing
hearing.”4 Recent Supreme Court cases addressing an appellate court’s review
of district court’s sentencing decisions, e.g., Gall v. United States, Kimbrough
v. United States, and Rita v. United States, do not “purport to alter our review
of the district court’s construction of the Guidelines or findings of fact.”5

       1
          The government also represented that its case agent had received additional
information regarding the victims and that this information would be included in an addendum
to the pre-sentence report. The government filed an addendum that did not disclose any
specific victim-related information. It also appears that defense counsel never received such
data.
       2
           United States v. Cisneros-Guiterrez, 517 F.3d 751, 764 (5th Cir. 2008).
       3
           Id. (internal quotation marks and citation omitted).
       4
           United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995).
       5
           Cisneros-Guiterrez, 517 F.3d at 764 (citing Gall v. United States, 128 S. Ct. 586

                                               3
                                       No. 08-10053

B.     Claimed Sentencing Error
       The sole issue that Adams asks us to resolve is whether the government
provided adequate evidence to support the district court’s conclusion that she
possessed the undelivered mail of at least 50 different victims. The commentary
to the Guidelines directs that in cases involving the taking of undelivered United
States mail, the term “victim” includes “any person who was the intended
recipient, or addressee, of the undelivered United States mail.”6
       The party that seeks an adjustment to the base offense level under the
Guidelines, here the government, must prove by a preponderance of the evidence
that the adjustment is warranted.7 In this case, the district court overruled
Adams’s objections and adopted the pre-sentence report and its addendum as the
court’s findings of fact. Courts typically adopt a pre-sentence report’s factual
findings because,
             [g]enerally, a PSR bears sufficient indicia of reliability to
       permit the district court to rely on it at sentencing. The PSR,
       however, cannot just include statements, in the hope of converting
       such statements into reliable evidence, without providing any
       information for the basis of the statements. Normally, the
       defendant has the burden to show that the information relied on in
       a PSR is inaccurate. The rebuttal evidence presented by the
       defendant must show that the PSR’s information is materially
       untrue, inaccurate or unreliable.8

(2007); Kimbrough v. United States, 128 S. Ct. 558 (2007); Rita v. United States, 127 S. Ct.
2456 (2007)).
       6
         U.S. SENTENCING GUIDELINES MANUAL § 2B1.1 cmt. n.4(C)(i) (2008); see United States
v. Wise, 447 F.3d 440, 446 (5th Cir. 2006) (per curiam) (“[W]e must consider the commentary
to the Guidelines as authoritative.”).
       7
         United States v. Dabeit, 231 F.3d 979, 983 (5th Cir. 2000) (per curiam), overruled on
other grounds by United States v. Reyna, 358 F.3d 344, 347, 350 (5th Cir. 2004).
       8
          United States v. Taylor, 277 F.3d 721, 724 (5th Cir. 2001) (internal quotation marks
and citations omitted) (emphasis added); see also United States v. Alford, 142 F.3d 825, 832
(5th Cir. 1998) (“A district court may adopt facts contained in the PSR without further inquiry
if the facts have an adequate evidentiary basis and the defendant does not present rebuttal

                                              4
                                         No. 08-10053

“[I]nformation in the PSR that is unrebutted by the defendant bears sufficient
indicia of reliability to be considered evidence by the district court.”9 Further,
mere objections are not competent rebuttal evidence.10
       We have not had occasion to determine whether a district court may rely
on an approximation of the number of victims for sentencing purposes in
undelivered mail cases. Two related sentencing issues are instructive, however,
in reaching our conclusion that, here, the district court did not clearly err.
       First, the Guidelines commentary related to calculating the amount of loss
caused by an offense11 provides support by analogy for permitting estimations
of the number of victims in an undelivered-mail case. When a court calculates
the amount of loss, it “need only make a reasonable estimate of the loss” because
“[t]he sentencing judge is in a unique position to assess the evidence and
estimate the loss based upon that evidence.”12 A court bases its estimation on
“available information” including various factors such as the “approximate
number of victims multiplied by the average loss to each victim.”13 To permit or
even require courts to approximate the number of victims when calculating
enhancements for amount of loss, but to prohibit such approximations when

evidence.”). Adams, citing Taylor, misinterprets the extent to which a district court is entitled
to rely on a pre-sentence report. The burden to produce evidence rebutting a pre-sentence
report is typically on the defendant. Taylor only states that a portion of this burden shifts to
the government when a defendant enters a plea agreement involving use immunity. See 277
F.3d at 727. Adams did not enter into such an agreement.
       9
            United States v. Roush, 466 F.3d 380, 388 (5th Cir. 2006).
       10
            United States v. Solis, 299 F.3d 420, 455 (5th Cir. 2002).
       11
           See U.S. SENTENCING GUIDELINES MANUAL § 2B1.1 cmt. n.3(C); see also id.
§ 2B1.1(b)(1).
       12
            Id. § 2B1.1 cmt. n.3(C).
       13
         Id. § 2B1.1 cmt. n.3(C)(iii) (emphasis added); see United States v. Krenning, 93 F.3d
1257, 1269 n.20 (5th Cir. 1996).

                                                5
                                        No. 08-10053

calculating enhancements for the number of victims would be illogical in the
extreme.
       Second, a commentary to the Guidelines explicitly permits approximations
in at least one other context. In controlled-substance cases, approximations of
drug quantity are sometimes permissible.14                   And, although a court’s
approximation must bear “sufficient indicia of reliability to support its probable
accuracy,” a district court is entitled to rely on the pre-sentence report in the
absence of rebuttal evidence that demonstrates inaccuracy.15 We have approved
of such approximations even when a calculation’s accuracy was questionable at
best. For example, in United States v. Alford, the district court accepted the pre-
sentence report’s conclusion regarding the number of kilograms of marijuana
that was attributable to the charged offenses.16 On appeal, the defendant in
Alford challenged the reliability of the pre-sentence report’s calculation, arguing
that it was based in part on the testimony of a witness who, on cross-
examination, had conceded that the quantities to which he testified “were
guesses and that the actual quantities could have been smaller.”17 Although in
that defendant’s view, the district court should have assumed a smaller quantity
for sentencing purposes, we held that the district court did not clearly err in
calculating the quantity of marijuana as it did.18 “The fact that [the witness’s]
testimony was somewhat imprecise did not preclude reliance on it for sentencing

       14
          See U.S. SENTENCING GUIDELINES MANUAL § 2D1.1 cmt. n.12 (allowing for
approximations of the quantity of controlled substances when “there is no drug seizure or the
amount seized does not reflect the scale of the offense”).
       15
            United States v. Franklin, 148 F.3d 451, 460 (5th Cir. 1998) (quoting U.S.
SENTENCING GUIDELINES MANUAL § 6A1.3(a)); see United States v. Ayala, 47 F.3d 688, 690 (5th
Cir. 1995).
       16
            142 F.3d 825, 832 (5th Cir. 1998).
       17
            Id.
       18
            Id.

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purposes because a district court may consider ‘estimates of the quantity of
drugs for sentencing purposes.’”19 Recognition that an amount could have been
smaller was nothing more than an acknowledgment that the amounts were
estimates rather than precise calculations.20 Additionally, the defendant offered
no rebuttal evidence to establish that the quantity of marijuana attributed to
him in the pre-sentence report was materially untrue.21                     Under all the
circumstances, the sentencing court’s conclusion regarding quantity was
plausible and thus not clearly erroneous.22
      Even though the instant case is not drug-related, the Guidelines neither
explicitly condone nor explicitly forbid approximations of the number of victims
in undelivered mail cases. Moreover, the drug-calculation framework, when
viewed in pari materia with the loss-calculation commentary, demonstrates the
logic of permitting estimates of the number of victims in undelivered mail cases:
The loss-calculation commentary confirms the propriety of permitting estimates,
and our drug-quantity precedent establishes that reliance on even rough
estimates does not constitute clear error per se.
      Further, in United States v. Perez, an unpublished and thus non-
precedential opinion, we considered a defendant’s objection to the same
enhancement Guideline as the one at issue in the instant case.23 There, we held
that the district court did not err in enhancing the defendant’s sentence on the
ground that there were at least 50 victims.24 The district court had based its

      19
           Id. (quoting United States v. Sherrod, 964 F.2d 1501, 1508 (5th Cir. 1992)).
      20
           Id.
      21
           Id.
      22
           Id.
      23
           102 F. App’x 388, 389 (5th Cir. 2004) (per curiam) (unpublished).
      24
           Id.

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                                       No. 08-10053

finding on the pre-sentence report and the testimony of an agent that “some 71
check-cashers and other endorsers were victimized.”25                    Without further
elaborating on the strength of the government’s evidence, we concluded that the
“evidence was plausible and uncontradicted by any defense evidence.”26 We thus
held that the district court’s factual finding of the number of victims was not
clearly erroneous.27 This disposition is consistent with finding no clear error
when a district court relies on rough estimates of the number of victims.
      Given this analysis, we hold that a district court does not clearly err per
se in an undelivered mail case when it relies on a bona fide estimate of the
number of victims. On the discrete facts of the instant case, the district court
was free to disregard Adams’s unsworn conclusional assertions that the pre-
sentence report was inaccurate.28 We have previously rejected a defendant’s
contention, unsupported by any rebuttal evidence, that a district court erred in
crediting a portion of a pre-sentence report which stated that she stole $8,000.29
Adams’s case is not distinguishable: The mere observance that a pre-sentence
report does not identify each victim by name does not constitute material
rebuttal evidence. Further, when she had the opportunity to cross-examine
Inspector Hernandez about her estimate of the number of victims, Adams failed
to do so. Having failed to make any such effort or to present any rebuttal
evidence, Adams has not established that the district court’s factual
determination lacks plausibility. And, the pre-sentence report’s calculation is
not merely a “bald assertion”; it is supported by Inspector Hernandez’s

      25
           Id.
      26
           Id.
      27
           Id.
      28
           See United States v. Caldwell, 448 F.3d 287, 291 (5th Cir. 2006).
      29
           See United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998).

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                                         No. 08-10053

testimony.      The district court did not clearly err in making the factual
determination that Adams’s offense involved at least 50 but less than 250
victims.30 Accordingly, we affirm the court’s imposition of a four-level sentence
enhancement pursuant to section 2B1.1(b)(2)(B) of the Guidelines and affirm the
resulting sentence as well.
AFFIRMED.

       30
           Our deferential standard of review dictates this result on the facts of the subject case.
We note, however, that the district court adopted the pre-sentence report’s factual finding and
credited Inspector Hernandez’s testimony based on scant evidence. Were we reviewing the
district court’s decision de novo, we would be troubled, perhaps dispositively so, by the lack of
an explanation for the basis underlying the “rough estimate” of the number of victims.

                                                 9


 Review of 1988 Opinion Concerning the Applicability of Section
  504 of the Rehabilitation Act to Individuals Infected with HIV

T h e 19 8 8 O ffice o f Legal C o u n se l o p in io n a c c u ra te ly d e sc rib e s the d u tie s im p o se d b y s e c tio n 5 0 4 o f the
     R e h a b ilita tio n A ct w ith re sp ec t to in d iv id u a ls in fe c te d w ith the H u m a n Im m u n o d e fic ie n c y V irus

T h e s u b se q u e n t p a ssa g e o f th e A m e ric a n s w ith D isab ilitie s A ct d id n o t a lte r the a n aly sis o f c a se s a ris
     in g u n d e r th e R eh a b ilitatio n A ct, a lth o u g h an a m e n d m e n t to s e c tio n 5 0 4 n o w re q u ire s re fe re n c e to
     sta n d a rd s set fo rth in th e A D A

A p p lic a tio n o f th e s tan d a rd s s e t forth u n d e r sec tio n 5 0 4 in an y p a rtic u la r c ase re q u ire s c o n sid e ra tio n o f
     cu rre n t scie n tific u n d e rsta n d in g o f H IV in fe c tio n . A d v a n ce s in the s c ie n tific u n d e rs ta n d in g o f H IV
     in fe c tio n s in c e 1988 m a y u n d e rm in e so m e o f th e d is c u s s io n in the 1988 o p in io n a b o u t th e a p p lic a
     tio n o f th e se s tan d a rd s to in d iv id u a l c ase s

                                                                                July 8, 1994

                                                M e m o r a n d u m O p in io n f o r t h e
                               A s s is t a n t A t t o r n e y G e n e r a l f o r A d m in is t r a t io n

   You have asked us whether an Office o f Legal Counsel M emorandum of Sep
tember 27, 1988, 12 Op. O.L.C. 209 (1988), entitled “A pplication of Section 504
of the Rehabilitation Act to HIV-Infected Individuals,” (“ 1988 O.L.C. M em oran
dum ”) accurately reflects the state of the law on this issue. That memorandum
concluded that section 504 of the Rehabilitation Act, 29 U.S.C. § 794, bars dis
crimination against individuals infected with the Human Im munodeficiency Virus
(“H IV ”), whether or not the infection has resulted in illness. Cf. S ch ool Bd. o f
N assau County v. Arline, 480 U.S. 273 (1987) (holding that section 504 bars dis
crimination on the basis of infection with tuberculosis, but reserving the question
whether the Act applies to asymptomatic carriers of infectious diseases).
   W e have reviewed the 1988 O.L.C. M emorandum, and have concluded that it
accurately describes the duties imposed by section 504 of the Rehabilitation Act
with respect to individuals infected with HIV. We do, however, have a few com
ments to update the analysis o f that M emorandum.

                     A. Im pact o f the A m erican s with D isa b ilities A c t o f 1990

    First of all, we note that section 504 of the Rehabilitation Act has been amended
to indicate that

             [t]he standards used to determine whether this section has been
             violated in a complaint alleging em ployment discrimination under

                                                                      141
                                      Opinions o f the O ffice o f L eg a l Counsel

           this section shall be the standards applied under title I of the Ameri
           cans with D isabilities Act o f 1990 (42 U.S.C. 12111 et seq.) and the
           provisions o f sections 501 through 504, and 510, of the Americans
           with D isabilities Act of 1990 (42 U.S.C. 12201-12204 and 12210),
           as such sections relate to employment.

29 U.S.C. § 7 94(d).1 Because the anti-discrim ination in employment provisions of
the Am ericans with Disabilities A ct (“A D A ”) were in large part modeled on those
established in the Rehabilitation Act, and because the legislative history of the
ADA reaches the sam e conclusions as to the reach of the Rehabilitation Act as did
the 1988 O.L.C. M emorandum and indicates an intent to codify those conclusions
as the standards for evaluating cases brought under the ADA, this amendment to
section 504 o f the Rehabilitation A ct for the most part reinforces rather than sup
plants our earlier analysis.2 Furtherm ore, the ADA specifically states that,
“[e]xcept as otherw ise provided in this chapter, nothing in this chapter shall be
construed to apply a lesser standard than the standards applied under title V of the
Rehabilitation Act o f 1973 or the regulations issued by Federal agencies pursuant
to such title.” 42 U.S.C. § 12201 (citation om itted).3 As a general matter, there
fore, the passage o f the ADA requires reference to the standards set forth in that
statute in litigation involving the Rehabilitation Act, but it does not alter the analy
sis of cases arising under the Rehabilitation Act, and indeed indicates that the in
terpretation o f the Rehabilitation A ct set forth in the 1988 O.L.C. M emorandum
was correct.
    Specifically, the text and legislative history of the ADA confirm that:
    1.     HIV infection, w hether or not an individual has developed any overt symp
toms as a result o f that infection, is a disability under the Rehabilitation Act and
under the A m ericans with Disabilities Act. See S. Rep. No. 101-1 16, at 22-24
(listing “infection with the Human Im m unodeficiency Virus” as a disability; citing

    1 In a d d itio n , the term ’‘d isab ility ” has been su b stitu ted for the term “handicap” in section 504(a) of the
R ehabilitatio n A ct, 29 U S.C § 7 9 4 (a)
    2 See, e g , H R R ep N o 101-485, pt 2, at 5 2 -5 7 , 67-70, 76, 149 (1990), rep rin ted in 1990 U S.C C A N .
303, 334-39, 34 9 -5 2 , 358, 4 3 2 , id. pt 3, at 29, 33 -3 5 , 40, 42, 4 5 -4 6, reprinted in 1990 U S C C A .N 451,
455-57, 462, 4 6 4 , 4 6 8 -6 9 , S R ep N o 101-116, at 22, 25-26, 31, 36, 40 (1989) (all stating that the basic
anti-d iscrim in atio n p ro v isio n s in title I o f the A D A are m odeled on those set forth in section 504, and m
som e instan ces e x p licitly en d o rsin g the interpretations o f section 504 set forth in A r h n e , 480 U S 273, and
in the 1988 O .L C. M em o ran d u m ), se e also H .R . C onf. Rep. N o 101-596 (1990); Equal Em ploym ent O p
portunity for Individuals W ith D isabilities, 5 6 Fed R eg 35,7 2 6 (1991) (S upplem entary Inform ation to
regulatio n s c o d ified at 29 C F R pt 1630) (‘‘T h e form at o f part 1630 reflects congressional m tent, as ex
pressed in the leg islativ e histo ry , that the regulations im plem enting the em ploym ent provisions of the ADA
be m odeled on the reg u latio n s im plem enting sectio n 504 o f the R ehabilitation A ct o f 1973 *’)
      T he leg islativ e history notes, fo r exam ple, th a t the provisions o f the ADA setting forth requirem ents for
the provision o f access to p u b lic accom m odations by providers w ho do not receive federal funding are less
strin g en t than the co rresp o n d in g provisions o f the R ehabilitation A ct addressing the provision of access to
publicly funded a cco m m o d atio n s           E .g . H R Rep. N o 101-485, pt 3, at 69-70, reprinted m 1990
U S C C A N. at 4 9 2 -9 3 N o su ch explicit d ifferen ces ex ist with respect to the em ploym ent provisions o f the
tw o Acts.

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                R eview oj 1988 Opinion Concerning the A pplicability o f Section 504 o f the
                            R ehabilitation Act to Individuals Infected with H IV

the 1988 O.L.C. M emorandum for the proposition that those infected with HIV
have “ [a] physical or mental impairment that substantially limits one or more of the
major life activities of such individual” within the meaning of both Acts; and d e
scribing disability definition generally); H.R. Rep. No. 101-485, pt. 2, at 51-54
(same), reprin ted in 1990 U.S.C.C.A.N. at 333-36; id. pt. 3, at 28-30 (same), r e
prin ted in 1990 U.S.C.C.A.N. at 450-52; see also 29 C.F.R. pt. 1630 app. at 403-
OS (1993) (Interpretive Guidance to § 1630.2(j)) (stating that HIV infection is in
herently “substantially limiting” within the meaning of both Acts). Indeed, the
need to protect those infected with HIV from discrimination in employment was
frequently cited by those supporting the bill. See, e.g., S. Rep. No. 101-116, at 8,
 19 (citing views of the President’s Commission on the Human Im munodeficiency
Virus Epidemic); 136 Cong. Rec. 10,872-73 (1990) (remarks of Rep. W eiss); id. at
 10,912-13 (remarks of Reps. McCloskey and W axman); id. at 17,292-93 (rem arks
of Rep. W axman).4 Furthermore, both the ADA and the Rehabilitation Act include
within the definition of an individual with a disability an individual who, even
though he or she has no actual physical or mental impairment or history of such
impairment, is regarded as having an impairment. 42 U.S.C. § 12102(2)(C)
(ADA); 29 U.S.C. § 706(8)(B) (Rehabilitation Act). This definition often will
provide an additional basis for concluding that those infected with HIV are pro
tected by section 504.
    2. The definitions of “discrim ination” and of “qualified individual” under the
ADA are drawn from the definitions o f these terms set forth in the section 504
regulations. See 42 U.S.C. §§ 12111(8) (definition of “qualified individual with a
disability”) and 12112 (definition of “discrimination”); H.R. Rep. No. 101-485, pt.
3, at 32-33 (“qualified individual”), reprinted in 1990 U.S.C.C.A.N. at 454-55; id.
at 35 (“discrim ination”), reprin ted in 1990 U.S.C.C.A.N. at 457.
    3. The legislative history indicates that the use of the term “direct threat” in the
ADA is designed to “codify” the ruling of the A rline case discussed *in the 1988
O.L.C. M em orandum .5 The ADA indicates that an employer may raise as a de

    4 In addition, recent cases construing the R ehabilitation Act have held that HIV infection is a disability
w ithin ihe m eaning o f the Act E.g , Buckingham v U nited S ta te s, 998 F 2 d 735 (9th C ir. 1993), C halk v
U nited States D ist C ourt, 840 F 2 d 701 (9th C ir 1988), R oe v D istrict oj C olum bia, 842 F Supp 563
(D .D C 1993), vacated a s m o o t, 25 F.3d 1115 (D C . C ir 1994); D oe v D istrict oj C olum bia, 796 F Supp
559 (D .D C . 1992); R ay v. S chool D ist., 666 F Supp 1524 ( M D Fla 1987); Thom as v A ta sc a d e ro U nified
S chool D ist ,6 6 2 F Supp 376 (C D C al. 1987).
    5 In addressing the issue o f the effect o f the risk posed by an infectious disease on an in d iv id u a l's q u alifi
cations for a jo b , A rlin e indicated that "[a} person w ho poses a sig n ijicant risk o f com m unicating an in fe c
tious disease to others in the w orkplace will not be otherw ise qualified for his or her jo b if reasonable
accom m odation will not elim inate that risk “ 480 U S. at 287 n. 16 (em phasis added) T he C ourt stated that
in m aking a ju d g m en t as to w hether a person is qualified for a jo b , the em ployer should take into account
       [findings of] facts, based on reasonable m edical ju d g m en ts given the state o f m edical know ledge,
       about (a) the nature o f the risk (how the disease is transm itted), (b) the duration o f the risk (how
       long is the carrier infectious); (c) the sev en ty o f the risk (w h at is the potential harm to third p a r
       ties) and (d) the probabilities the disease will be transm itted and will cause varying degrees of
       harm.

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                                    Opinions o f ih e O ffice o f L egal C ounsel

fense to a claim o f discrimination under the Act the argument that the employee
was not otherw ise qualified for the jo b because he or she posed a “direct threat to
the health or safety o f other individuals in the workplace.” 42 U.S.C. § 12113(b).
The statute defines “direct threat” as a “significant risk to the health or safety of
others that cannot be eliminated by reasonable accom m odation,” 42 U.S.C.
§ 12111(3), apparently drawing on the “significant risk” language used by the A r
line Court. 480 U.S. at 287 n.16. A s noted above, the legislative history indicates
that this language is intended to “codify” the standard set forth in Arline. H.R.
Rep. No. 101-485, pt. 3, at 34,45-46, reprin ted in 1990 U.S.C.C.A.N. at 456, 468-
69; see a lso id., pt. 2, at 56-57, 150, reprin ted in 1990 U.S.C.C.A.N. at 338-39,
433; H.R. Conf. Rep. No. 101-596, at 60, reprin ted in 1990 U.S.C.C.A.N. at 568;
S. Rep. No. 101-116, at 27-28, 40. In addition, the Equal Employment Opportu
nity Com m ission has issued regulations implementing the Act that use the test set
forth in A rlin e for evaluating the risk posed by an employee with disabilities. 29
C.F.R. § 1630.2(r) (1993) (defining “direct threat” and requiring that employer
consider “(1) [t]he duration of the risk; (2) [t]he nature and severity of the potential
harm; (3) [t]he likelihood that the potential harm will occur; and (4) [t]he immi
nence of the potential harm”);6 29 C.F.R. pt. 1630 app. at 410-11 (Interpretive
G uidance to 29 C.F.R. § 1630.2(r)) (employer must consider “objective, factual
evidence,” rather than “subjective perceptions, irrational fears, patronizing atti
tudes, or stereotypes,” and must determ ine that there is a “high probability o f sub
stantial harm ,” rather than merely a “speculative or remote risk”). While the point
is not free from doubt, the Interpretive Guidance also indicates that an employer
may consider whether the individual would pose a direct threat to his or her own
safety. Id.
   4.      The text and legislative history of the ADA indicate that the definition of
reasonable accom m odation is to include the possibility of reassignment, a question
that was unsettled under the Rehabilitation Act before the recent amendment. 42
U.S.C. § 12111(9) (ADA definition of “reasonable accom m odation”); S. Rep. No.
101-116, at 31-32 (indicating that “reasonable accom m odation” under the ADA
includes the possibility o f reassignment); see a lso Barbara A. Lee, Reasonable
A ccom m odation U nder the Am ericans with D isabilities Act: The Lim itations o f
R ehabilitation A ct P recedent, 14 Berkeley J. Empl. & Lab. L. 201, 206, 235-43
(1993) (arguing that for this reason, case law interpreting the Rehabilitation Act
that indicates that em ployers need not consider reassignment to meet their duties to

Id at 288 (q u o tin g B rief fo r American M ed ical A ssociation as A m icus C u n ae 19, brackets in original).
Furtherm o re, the C o u rt stated lhat “ fi]n m ak in g these findings, courts norm ally should defer to the reason
able m edical ju d g m e n ts o f public health o fficials.” Id
   6 T h e reg u latio n fu rth er p rovides that the d eterm in atio n w h eth er an individual poses a direct threat
       sh all b e b ased on an individualized assessm en t o f the individual s present ability to safely p er
       form the essential functions o f the job. T his assessm ent shall be based on a reasonable m edical
      ju d g m e n t that relies on the most current m edical k n o w led g e and/or on the b est available o bjec
       tive ev id en ce.
29 C .F .R § 1630.2(r).

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               R eview o f 1988 Opinion C oncerning the A pplicability o f Section 504 o f the
                            Rehabilitation A ct to Individuals Infected with H IV

provide reasonable accommodation should not be relied upon as precedent in suits
brought under the ADA). Because neither statute purports to list all conceivable
reasonable accommodations, see 42 U.S.C. § 12111(9) (ADA); 29 U.S.C. § 794
(Rehabilitation Act), and because the Rehabilitation Act indicates that the stan
dards of the ADA are to be used to determine whether the Rehabilitation Act has
been violated, 29 U.S.C. § 794(d), reassignment must be considered a possible
reasonable accommodation under the Rehabilitation Act as well. See a lso Buck
ingham v. U nited S tates , 998 F.2d 735 (9th Cir. 1993) (Postal Service must con
sider, as a possible accommodation, relocating HIV-infected employee to area of
country with better health care services for those infected with the virus).
   5. The legislative history of the ADA clearly states that the term “undue hard
ship” for purposes of the ADA, and by implication section 504, see 29 U.S.C. §
794(d), is not to be construed as referring to the standard set forth in Trans W orld
Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) (construing Title VII as requiring an
employer to accommodate religious beliefs only if it could be done with no more
than a “de minimis” cost to the em ployer).7 Rather, the ADA defines “undue hard
ship” as “an action requiring significant difficulty or expense.” 42 U.S.C.
§ 12111(10)(A). Among the factors to be considered in determining whether the
difficulty or expense involved would be “significant” are the “overall financial
resources” o f the entity that must take the action. 42 U.S.C. § 1211 l(10)(B )(ii)
and (iii).

                            B. Changes in Scientific Understanding

   Finally, we would note that advances in the scientific understanding of HIV in
fection since 1988 may undermine som e o f the discussion in our earlier opinion
about the application of these standards to individual cases. See, e.g., 12 Op.
O.L.C. at 219-20, 229-30 (citing exam ples of situations in which it was thought
that an individual infected with HIV might pose a direct threat to the health or
safety of others).
   Thus, for example, recent studies suggest that the risk of transmission from a
health care worker to a patient is actually quite low. See, e.g., Centers for Disease
Control and Prevention, Update: Investigations o f P ersons T reated b y HIV-
Infected Health Care Workers — U nited States, 41 Morb. & Mort. W kly. Rep. 329
(1993) (No. 17); National Commission on AIDS, P reventing HIV Transm ission in

    7     See S. R ep No 101-116, at 36 (discussing H ardison)', 29 U S.C § 7 9 4 (d ) (slating that standards o f
A D A apply in R ehabilitation Act cases), H R. Rep No 101-485, pt 2, at 87 (provision is derived from
R ehabilitation Act and should be applied consistently with pro v isio ns construing that A ct), rep rin te d in 1990
U S.C C A N. at 369; Lee, supra, at 206-07, R obert L B urgdorf, Jr., The A m erica n s w ith D isabilities A ct-
A na lvsts a n d Im plications oj a Second-G eneration C ivil R ig h ts Statute, 2 6 H arv C.R - C L L Rev. 413,
462-63 (1991)

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                                      Opinions o f th e O ffice o f L eg a l C ounsel

H ealth C are S ettings 7, 1 1-12, 15-18 (1992).8 The Centers for Disease Control
have suggested guidelines for control of transmission of the virus that reflect this
information. Centers for Disease Control and Prevention, R ecom m endations f o r
P reven tin g Transm ission o f Hitman Im m unodeficiency Virus an d H epatitis B Virus
to P atients D uring Exposure-Prone In vasive P roced u res , 40 Morb. & Mori. Wkly.
Rep. 1 (1991) (No. RR-8); see a ls o National Commission on AIDS, supra
(discussing CD C G uidelines and other publications addressing techniques for pre
venting transm ission o f HIV in health care settings).9
   W e do not attem pt to review the scientific data here, but we would emphasize
that a determ ination under the ADA, and thus by implication under section 504,
that an individual poses a “direct threat to the health or safety of other individuals
in the w orkplace,” 42 U.S.C. § 12113(b), which is to say “a significant risk to the
health or safety o f others that cannot be eliminated by reasonable accommodation,”
42 U.S.C. § 12111(3) (emphasis added), must be made on an individualized basis,
using the four-prong test set forth in A rlin e , 480 U.S. at 287-88, and adopted by the
statute and regulations. See 42 U.S.C. § 12111(3); 29 C.F.R. § 1630.2(r) (restating

     8 Indeed, the C en ters fo r D isease Control h a v e indicated that the only docum ented cases o f transm ission
from a h ealth care w o rk er lo a p atien t are those involving a Florida d e ntist w ho infected six o f his patients
through u n know n m eans 41 M orb & Mort W kly. Rep. at 331, see also N ational C om m ission o n AIDS,
supra, at 7 As o f 1993, the C en ters for D isease C ontrol had review ed the cases o f 19,036 patients treated by
57 H IV -in fected h ealth care w orkers 41 M orb. & Mort W kly. Rep at 329
     9 W hile co u rts typically h ave upheld restrictions on health care w orkers, see, e g , B radley v U niversity o f
T ex M .D . A n d e rso n C a n cer C tr , 3 F.3d 922 (5 th Cir. 1993), cert denied, 510 U S 1119 (1994), L eckelt v
B oa rd o f C o m m 'r s o f H osp. D ist N o /, 909 F 2d 820 (5ih C ir 1990); D oe v W ashington U niv., 780 F
Supp. 628 (E .D . M o 1991), ihe reasoning o f these cases o ften appears to be based on outdated medical
inform atio n o r w eak scientific analysis that g re a tly ov erstates the risks posed by such w orkers and thus may
not app ly the statu te app ro p riately C f In re W estch ester C o u n tv M ed. C tr , D epartm ent of Health & Human
S ervices, D ep artm en tal A pp eals B oard, D ocket N o 91-504-2, D ecision No. 191 (A pr 20, 1992) (restrictions
on d u tie s o f H IV -p o sitiv e p h arm acist violated R eh ab ilitatio n A ct; federal funding to hospital term inated).
     W e w o u ld e m p h asize that the standards set forth in 29 C F R. § 1630 2(r) for determ ining w hether an
individual p o ses a d irect th re a t m u st be applied to health care w orkers as well as to w orkers in other fields
A ccordingly, c u rren t m edical inform ation and con sid eratio n o f the risks posed by the essential functions of
the jo b m ust form ihe basis fo r a decision In light o f the cu rren t view s o f the C enters for D isease Control
that the risks p o sed by H IV -in fected health c a re w orkers are, in m ost health care settings, rem ote or nonex
istent, w e th in k that p ro p er application o f 29 C .F R. § 1630 2(r) frequently will result in a finding that the
w orker does n o t pose a d ire c t threat.
     For m ore g en eral d iscu ssio n o f the risks p o sed by H IV infection in o th e r settings, see C halk v. U nited
S tates D ist C o u rt, 840 F 2d 701, 710 (9th C ir. 1988) (g ran tin g prelim inary injunction reinstating HIV-
m fected ju n io r high school, teach er to classro o m duties, reaso n ing that C halk had “strong probability of
success on the m erits" o f his R ehabilitation A c t claim b ecau se there w as no evidence to support a risk o f
tran sm issio n ), G lo v er v E a stern Nebraska C o m m u n ity O ffice o f R etardation, 6 86 F Supp 243 (D Neb
 1988) (m an d ato ry hepatitis B V irus 0 ‘HBV” ) and HIV testing o f em ployees o f agency assisting mentally
retarded c lie n ts not ju stifie d ; there was in su fficien t ev id en ce that infection w ould pose a danger to others),
a ff'd , 867 F 2d 461 (8th C i r ), cert, denied, 4 9 3 U S. 932 (1989).
     For d iscu ssio n o f the risk in public safety p rofessions, see R oe v. D istrict o j C olum bia, 842 F. S upp 563
(D D .C 1993) (lim itatio n s on activities o f firefig h ter infected w ith HBV unjustified, as firefighter w ould not
pose dire c t th re a t w hen perfo rm in g m outh-to-m outh re su scitatio n ; in reaching this conclusion, the court
noted that h o sp itals g en erally do not bar H B V -infected em p lo y ees from perform ing C PR ), vacated as m oot,
25 F 3d 1115 (D .C C ir 1994); D o e v D istrict o f C olum bia, 7 9 6 F Supp 559 (D .D .C . 1992) (refusal to hire
H IV -in fecied ap p lican t violates R ehabilitation Act, as ind iv id u al does not pose direct threat), cf. A nonym ous
Firem an v. C ity o f W illoughby, 779 F S u p p 402 (N .D O h io 1991) (firefighter and param edics may be
tested fo r H IV in lig h t o f risk)

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           R eview o f 1988 O pinion C oncerning the A pplicability o f Section 504 o f the
                        R ehabilitation A ct to Individuals Infected with H IV

definition of “direct threat” set forth in Arline)', H.R. Conf. Rep. No. 101-596, at
60 (Section 12111(3) is intended to codify the test set forth in A rline), reprin ted in
1990 U.S.C.C.A.N. at 568; S. Rep. No. 101-116, at 27-28 (same). Furthermore, a
determination that an individual poses a direct threat must be based on information
about the essential functions of the particular jo b at stake and on current scientific
information about the nature of the risks involved; speculative concerns, including
unfounded and exaggerated fears of transmission risks, may not be relied upon to
defend a conclusion that an individual poses a direct threat. See, e.g., 29 C.F.R. pt.
1630 app. at 410-11 (Interpretive Guidance to 29 C.F.R. § 1630.2(r)).
    Similarly, while the 1988 O.L.C. M emorandum, 12 Op. O.L.C. at 220, sug
gested that persons infected with HIV are subject to “dementia attack” and there
fore may be unqualified for jobs in which a sudden loss of mental faculties could
pose a safety risk, this discussion may be subject to misinterpretation. The discus
sion of hypothetical HIV-related problems in the 1988 O.L.C. M emorandum was
not intended to be relied upon for litigation purposes, and the reference to dem en
tia attacks was intended to refer only to the risk that an individual suffering from
HIV-related dementia might occasionally be particularly severely affected. It is
certainly true that an individual with symptoms o f dementia, whether related to
HIV or not, may not be “otherwise qualified” for certain jobs. However, neither
the 1988 O.L.C. Memorandum nor any other source of which we are aware indi
cates that HIV-induced dementia occurs suddenly and thus would pose certain of
the risks described in that memorandum. Furthermore, unpublished data com piled
by the Centers for Disease Control and Prevention on June 30, 1993 indicated that
less than 6% of adults known to the CDC to have AIDS were also known to have
HIV-related encephalopathy, the most common cause of HIV-related neurological
symptoms. See Centers for Disease Control and Prevention, A du lt Fem ale AIDS
C ases by D isease: C D C AIDS D ata as o f June 30, 1993 (indicating that 5.1077%
were affected); and Centers for Disease Control and Prevention, A dult M ale AIDS
Cases by D isease: C D C AIDS D ata as o f June 30, 1993 (indicating that 5.5688%
were affected). Other sources indicate that neurological problems are most com
mon in individuals with advanced HIV disease. E.g., Richard W. Price, et. al., The
Brain in AIDS: Central N ervous System HIV-1 Infection an d AIDS D em entia
Complex, 239 Science 586 (Feb. 5, 1988). Accordingly, we would caution readers
that an argument that an individual is not otherwise qualified for a job because of
the risk of dementia, like arguments based on the risk of transmission, must be
grounded in scientific evidence that such a risk exists with respect to that individ
ual, and is relevant to the determination whether the individual is otherwise quali
fied for the job.

                                                            DAW N E. JOHNSEN
                                                   D eputy A ssistan t Attorney G eneral
                                                           Office o f L egal Counsel

                                                 147


88 F.Supp.2d 326 (1999)
Roger COPLAND, et al., Plaintiffs,
v.
Jack GRUMET, et al., Defendants.
No. Civ.A. 96-3351 MLC.
United States District Court, D. New Jersey.
August 26, 1999.
*327 Peter S. Pearlman, Cohn, Lifland, Pearlman, Herrman & Knopf, Saddle Brook, NJ, for plaintiff Roger Copland.
Allyn Z. Lite, Lite, DePalma, Greenberg & Rivas, LLC, Newark, NJ, for plaintiffs Henry Billeter, Susan May Lee, David Y. Lee and Christine Overend.
Robert E. Bartkus, Morristown, NJ, for defendants Jack Grumet, Leonard Johnson, Manhattan Bagel Company, Inc., Jason Gennusa and Andrew Gennusa.
Howard Schwartz, Porzio, Bromberg & Newman, Morristown, NJ, for defendants Allan Boren, Debbie Boren and Eric Cano.

MEMORANDUM OPINION
COOPER, District Judge.
This matter comes before the Court on the motion by the class action plaintiffs for leave to file a Third Amended Complaint *328 including claims against former defendants Allan Boren ("Boren") and Eric Cano ("Cano"). Boren and Cano (hereinafter "moving defendants") oppose the motion. For the reasons stated, the motion is denied.

BACKGROUND
Because the Court is aware that the parties to this litigation are familiar with the surrounding facts and circumstances of this case, we need not repeat them herein. Instead, the Court refers the parties to our prior Memoranda and Orders entered in this case for a full recitation of the facts pertinent to the underlying dispute. We will, however, provide a brief procedural history to put the instant motion in proper context.
This Court issued a Memorandum and Order dated January 8, 1998 which dismissed claims against the moving defendants based upon (1) §§ 10(b) and 20 of the Exchange Act and Rule 10b-5, and (2) §§ 11 and 15 of the Securities Act. We also granted plaintiffs leave to file a Second Amended Complaint, identifying in the Memorandum which counts could be amended and in what manner.[1] However, we did not specify in the Order portion which counts of the Complaint could be amended. Our Order also stated that the moving defendants' motion to dismiss was granted, but did not specify whether the enumerated claims were dismissed against them with or without prejudice.
Plaintiffs filed a Second Amended Complaint which included, inter alia, five counts against the moving defendants based upon alleged violations of: (1) § 15 of the Securities Act (Count I); (2) § 10(b) and Rule 10b-5 of the Exchange Act (Counts II and IV); (3) § 20 of the Exchange Act (Count II); (4) § 20A of the Exchange Act (Count V); and (5) Section 12(2) of the Securities Act (Count III).[2] The moving defendants filed a motion to strike each of those counts from the Second Amended Complaint as well as a motion to dismiss those counts pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b). This Court granted the moving defendants' motion to strike, finding that this Court's prior Memorandum and Order had not granted plaintiffs leave to file a Second Amended Complaint which contained new and improved allegations against the moving defendants. (Order dated 5-14-99 at 3.) We also stated that if plaintiffs intended to plead additional allegations and claims against the moving defendants, it would be necessary for plaintiffs to file a formal motion seeking leave to amend their Complaint in that manner. (Id. at 4.) In addition, we denied the motions to dismiss as moot. (Id. at 6.)
Plaintiffs have now filed a formal motion seeking leave to file a Third Amended Complaint which includes the claims against the moving defendants which were the subject of defendants' motion to strike.[3] The moving defendants have opposed *329 the motion, arguing that the request is untimely. They also claim that we should deny the motion because plaintiffs had not provided them with a copy of the proposed Third Amended Complaint. Finally, the moving defendants argue that if the Court determines that the motion to amend should be granted, they wish to renew their motion to dismiss which we previously dismissed as moot.
Plaintiffs counter that the motion to amend is timely, in that plaintiffs' counsel filed it as soon as counsel became aware of the effect of this Court's ruling on the original motions to dismiss. In other words, plaintiffs' counsel claims that he understood our dismissal of the counts asserted against the moving defendants to have been without prejudice to plaintiffs' right to file an amended complaint curing the pleading inadequacies we identified therein. Moreover, plaintiffs point out that defense counsels' assertion that the motion should be denied because they do not have a copy of the proposed amended pleading is without merit, as they have had notice of the new claims asserted against their clients in the Third Amended Complaint because the claims against the moving defendants which are at issue in the instant motion are the same ones asserted initially in the Second Amended Complaint dated April 8, 1998. (Pls.' Reply Br. at 5 & n. 6.) With respect to the moving defendants' request to renew the motion to dismiss, plaintiffs state that they do not oppose that procedural request, provided that the Court consider their additional letter submitted by their counsel after briefing on that motion had been completed. (Id. & n. 7.)

DISCUSSION
Under Federal Rule of Civil Procedure 15, leave to amend shall be freely given in the absence of bad faith, dilatory motive, undue prejudice to the opposing party, or futility of amendment. See, e.g., Jablonski v. Pan American World Airways, Inc., 863 F.2d 289, 292 (3d Cir.1988). Amendment of a complaint is futile if, as amended, it would not withstand a future motion to dismiss. Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir.1983), cert. denied, 464 U.S. 937, 104 S.Ct. 348, 78 L.Ed.2d 314 (1983).
In view of the fact that the Court's January Memorandum and Order admittedly did not specify whether the dismissal of the counts against Boren and Cano was with or without prejudice to plaintiffs' right to file an amended pleading relating to those claims, we find no merit to defendants' argument that the instant motion is untimely. It is clear that once our decision on the motion to strike was filed in this case, plaintiffs reacted in a timely manner. Moreover, there is no evidence of bad faith or dilatory motive on plaintiffs' part in waiting to this point to file the instant motion. Similarly, there does not appear to be undue prejudice to the opposing defendants, as they have been aware since plaintiffs filed the Second Amended Complaint in April 1998 that plaintiffs not only sought to provide additional factual information with respect to those claims dismissed by our Memorandum and Order dated January 8, 1998, but also intended to include new counts against defendant Boren.
The Court notes, however, that as to the last inquiry, that of the futility of amendment, we must determine whether plaintiffs' proposed amended pleading is sufficient to withstand a motion to dismiss pursuant to Rule 12(b)(6). In this connection, we are compelled to analyze the merits of defendants' motion which we dismissed as moot. We will turn our attention to that analysis next.[4] The Court *330 will analyze each proposed claim asserted against the moving defendants and test the allegations pertaining to those counts against the standard of dismissal under Rule 12(b)(6) and 9(b).[5]

I. Count II: Liability of Boren and Cano under § 10(b) of the Exchange Act and Rule 10b-5
The moving defendants argue that they cannot be exposed to primary liability under § 10(b) and Rule 10b-5 because the gravamen of plaintiffs' allegations against these defendants in this connection is that they were directly involved in the process of creating and reviewing the financial statements of MB's subsidiary, I & J, which contained false and misleading information concerning I & J's 1995 year-end figures. (Pls.' Br. in Opp'n at 6.) Defendants argue specifically that in order to state a claim for primary liability under § 10(b) and Rule 10b-5 of the Exchange Act, plaintiffs must plead facts which show (1) that each defendant made a false or misleading statement, and (2) that the misstatements which are the subject of the action were publicly attributed to that particular defendant at the time of their dissemination. (Defs.' Br. in Supp. at 5-8; Defs.' Reply Br. at 3-4) (citing Wright v. Ernst & Young, 152 F.3d 169, 175 (2d Cir.1998).) Defendants also characterize plaintiffs' claim against Boren and Cano to state nothing more than a "corporate mismanagement" claim not actionable under § 10(b) and Rule 10b-5.
Plaintiffs counter that in order for liability as a primary violator of § 10(b) and Rule 10b-5 to attach, they need not allege that each defendant made a misrepresentation or false statement which was publicly attributed to the defendant at the time of its dissemination. (Pls.' Br. in Opp'n at 4.) Instead, plaintiffs rely upon a statement in the Second Circuit's opinion in SEC v. First Jersey Securities, 101 F.3d 1450, 1471 (2d Cir.1996), which states that "primary liability may be imposed `not only on persons who made fraudulent representations but also on those who had knowledge of the fraud and assisted in its preparation.'" Id. (citing Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir. 1994)). They also rely upon In re Kidder Peabody Sec. Litig., 10 F.Supp.2d 398 (S.D.N.Y.1998) and Carley Capital Group v. Deloitte & Touche, 27 F.Supp.2d 1324, 1334 (N.D.Ga.1998), opinions decided after our initial dismissal of the § 10(b) and Rule 10b-5 claims, arguing that the cases are factually analogous and instructive as to what level of participation in the making of the misstatements is necessary to establish primary liability under § 10(b) and Rule 10b-5 without offending the Supreme Court's decision in Central Bank of Denver, N.A. v. First Interstate Bank of Denver, *331 511 U.S. 164, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994).[6]
It is clear that plaintiffs' theory of liability under § 10(b) against Boren and Cano is predicated upon their participation in preparing I & J's 1995 year-end financial information, which was then provided to MB and subsequently incorporated into MB's publicly disseminated documents which provided MB's overall financial statistics.[7] (See Pls.' Br. in Opp'n to Mot. to Dismiss at 4) (heading under § 10(b) argument is "Boren and Cano Made False and Misleading Statements;" argument presented is that the Second Amended Complaint contains allegations which show that Boren and Cano were "responsible" for falsifying I & J and the Company's financial statements, and that the reported financial statements were "statements" within the meaning of the federal securities laws.); Pls.' Supp.Ltr.Br. dated 1-13-99 (noting that court's opinion in Carley Capital recognized that liability may attach to even those upon whom material misrepresentations have not been attributed). Moreover, it is also clear that the alleged actionable misstatements (I & J's financials) were included in the Company's public documents only by incorporation; there were no statements which were attributed to either Boren or Cano directly. With the issue framed as such, we will turn to our analysis of plaintiffs' theory of liability.
The Second Circuit in Shapiro held that a claim under § 10(b) based upon alleged material misstatements or omissions must allege that the named defendant made a material misstatement or omission indicating an intent to deceive or defraud in connection with the purchase or sale of a security. Shapiro, 123 F.3d at 720-21. The court made that ruling in the context of a § 10(b) claim asserted against an accounting firm, but that holding does not appear limited to its facts. In addition, the court in Wright reaffirmed the holding in Shapiro, and went one step further by ruling that in order to hold a secondary actor liable under § 10(b) for alleged misrepresentations, the misrepresentations must be attributed to that specific actor at the time of public dissemination. Wright, 152 F.3d at 175.
In contrast to the Second Circuit's rule, plaintiffs argue that this Court should adopt the rule set forth in Carley Capital, where the district court held that primary liability under § 10(b) will attach against an individual if that person, acting alone or with others, "creates a misrepresentation even if the misrepresentation is not publicly attributed to it." 27 F.Supp.2d at 1333. The court reached its conclusion based upon the fact that under the Second Circuit's formulation, a "secondary actor who is the actual creator and author of a material misstatement could avoid liability simply due to the concealment of his identity." Id.
In the same vein, plaintiffs argue that the district court's opinion in Kidder Peabody supports their position. There the court concluded that a plaintiff may pursue a § 10(b) claim against a defendant if the plaintiff can show that the defendants were "the original and knowing source of a misrepresentation and that defendants knew or should have known that that misrepresentation would be communicated to *332 investors."[8]Kidder, 10 F.Supp.2d at 407. Relying upon the rationale in Picard Chem. Inc. v. Perrigo Co., the court reasoned that GE was the "conduit" through which Kidder's fraudulent misstatements concerning the company's financial status were conveyed. Id. at 407-08.
This Court previously dismissed plaintiffs' § 10(b) claims against Boren and Cano, ruling that there were no allegations in the pleading that either defendant made a misrepresentation which was the subject of this lawsuit. (Mem. & Order at 35.) While we did not explicitly rely upon the Second Circuit's ruling in Shapiro, it is clear that we took the position that in order to be held liable under § 10(b) and Rule 10b-5 for making a material misstatement (or omission), there must be allegations which demonstrate that the particular defendant named in the complaint in fact made a misstatement (or omission). See Shapiro, 123 F.3d at 720 ("A claim under § 10(b) must allege a defendant has made a material misstatement or omission indicating an intent to deceive or defraud in connection with the purchase or sale of a security."); Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 1226-27 (10th Cir.1996); see also Mem. & Order at 35-36. The allegations in the proposed pleading fail to meet this standard because plaintiffs' theory is that Boren and Cano participated in the process of "cooking the books" at I & J and generating the allegedly fraudulent I & J financial data, which in turn was included in MB's public documents. However, Boren and Cano's participation in this process cannot be considered the equivalent of making the false statements themselves. See Mishkin v. Ageloff, No. 97-2690, 1998 WL 651065, at *16 (S.D.N.Y.1998) (noting that Shapiro suggests that "orchestration" of misstatements and omissions is not enough to sustain primary liability, and therefore a plaintiff must allege that each defendant has made a material misstatement or omission in order to be liable under Rule 10(b)). Moreover, we note that the Second Circuit's opinion in Wright has added a new consideration, namely that in order to hold an individual liable for material misstatements, the misrepresentations must have been attributable to that specific actor at the time of public dissemination.[9]
It is clear that under Shapiro and Wright, plaintiffs' allegations concerning *333 Boren and Cano's role in formulating, preparing and/or compiling I & J's false financial data are insufficient to hold those individuals liable under the theory that they themselves made a material misstatement actionable under § 10(b). Boren and Cano's conduct in that connection does not amount to actually making a false misrepresentation which can be attributed to them. Indeed, the allegedly false statements concerning I & J earnings, if attributable at all to an entity other than (or in addition to) MB, would be attributable to I & J. Viewing plaintiffs' allegations concerning defendants' role in generating the I & J financial statements at issue under the lens of Shapiro and Wright, it is clear that plaintiffs have not stated a claim for primary liability under § 10(b) or Rule 10b-5 as to either Boren or Cano.
We will briefly address an additional consideration raised by plaintiffs. We are aware of case law which states that "a third-party defendant may be held liable as a primary violator for materially misleading statements made by others where the third-party defendant controlled the content of the statement." Liability is imposed under these circumstances based upon agency principles. "When a defendant controls the content of another actor's statement, the actor is essentially operating as the agent of the defendant, unlike the situation wherein a defendant provides `substantial assistance' in aiding the actor's individual course of conduct." Picard Chemical Inc. v. Perrigo Co., 940 F.Supp. 1101, 1119 (W.D.Mich.1996). In such circumstances, it is the defendant's original statement which misled investors  the person who communicated the statement to investors served as a mere conduit for defendant's statement. However, even under these circumstances, "the key to determining primary liability is that plaintiff must allege that defendant was the original and knowing source of the misrepresentation." Id.
Plaintiffs' protestations notwithstanding, this theory of agency/conduit liability cannot be applied to Boren and Cano in this case, as Manhattan Bagel's public documents cannot be characterized as "conduits" for alleged misstatements attributable to Boren and Cano. At best, MB's public documents served as conduits for material misstatements attributable to I & J, but not Boren and Cano. As alleged participants in a strategy which generated I & J's false financial information, Boren and Cano are one step removed from being the actual speakers of the misrepresentations. Thus, the rationale employed in Picard does not support plaintiffs' argument. Cf. Picard, 940 F.Supp. at 1120 (where the underwriter defendants argued that there were no material misstatements attributable to them, court denied motion to dismiss, finding that their statements as to the company's growth made in reports to the public demonstrate that they were the "original source" of the fraudulent predictions).
Turning to plaintiffs' final arguments, we do not believe that the courts' opinions in Kidder or Carley Capital require us to reconsider our understanding of the scope of primary liability for making material misstatements under § 10(b) or Rule 10b-5. We reach that conclusion because we disagree with the holdings and reasoning applied in those cases. First, the district court in Carley Capital discussed the Second Circuit's holdings in Shapiro and Wright but rejected that circuit's holdings in favor of the SEC's position. In the absence of Third Circuit precedent on this point, this Court has adopted the Second Circuit's position, as it is consistent with the Supreme Court's holding in Central Bank and faithful to the statutory language of § 10(b).
With respect to the district court's decision in Kidder, we agree with defendants that it is likely that the court's holding has been called into question by Wright. However, assuming arguendo that Wright does not affect the validity of the court's ruling in Kidder, we do not agree with the district court's holding and reasoning therein. Significantly, we question the outcome in the Kidder opinion because the *334 court did not adequately explain its rationale for exposing not only Kidder (the subsidiary which allegedly misrepresented its financial information to its parent GE), but the individual defendants (employees of Kidder) to liability under § 10(b) for the misleading nature of Kidder's financial information eventually reported in GE's public documents. In our view, holding individual defendants liable under § 10(b) for the orchestration of a company's fraudulent financial reports runs afoul of the court's holdings in Shapiro and Anixter and the notion that only speakers may be held liable for their material misstatements under this aspect of Rule 10b-5 and § 10(b). See Shapiro, 123 F.3d at 720-21 ("A claim under § 10(b) must allege a defendant has made a material misstatement or omission indicating an intent to deceive or defraud in connection with the purchase or sale of securities;" court also noted that allegations of "assisting in," "participating in," "complicity in" and similar synonyms fall within the prohibitive bar of Central Bank); Anixter, 77 F.3d at 1226 n. 10 ("Some post-Central Bank cases have held that third party defendants can be liable for statements made by others, where the defendant substantially participated in preparing the statements.... To the extent that these cases allow liability to attach without requiring a representation to be made by defendant, and reformulate the substantial assistance element of aiding and abetting liability into primary liability, they do not comport with Central Bank."); Mishkin, 1998 WL 651065, at *16 ("Shapiro strongly suggests that `orchestration' of misstatements or omissions is not enough to sustain primary liability, and that a plaintiff must allege, as defendant argues herein, that a defendant made a material misstatement or omission in order to be liable under § 10(b)"). Yet, it appears that this is exactly the result which was reached in Kidder, although admittedly the court's opinion is ambiguous on this point.
What remains after an exhaustive analysis of the applicable principles surrounding primary liability under § 10(b) for material misstatements is our conclusion that plaintiff's allegations concerning Boren and Cano's "participation in" the creation and review of I & J's false financial statements fail to state a claim upon which relief may be granted. (See Sec.Am.Compl. ¶¶ 33 ("Boren participated in the creation and review of I & J's false financial statements."); id. ("[Boren] continued to meet and have discussions with Cano ... and gave ... instructions concerning the accounting treatment for certain items improperly reflected in [I & J's] year-ended financial statements.").) Accordingly, we will deny plaintiffs' motion to amend the Complaint to add a claim under § 10(b) and Rule 10b-5 against defendants Boren and Cano based upon the alleged misstatements enumerated in ¶¶ 37 to 42 of the Second Amended Complaint as futile under the 12(b)(6) standard for dismissal.

II. Control Person Liability against Boren and Cano (Counts I and II)
Plaintiffs also seek to amend the Complaint so as to hold Boren and Cano liable as "control persons" of MB during the class period. In Count I, plaintiffs allege that Boren and Cano are liable under § 15 of the Securities Act for an allegedly false and misleading registration statement issued by MB in March 1996. In Count II, plaintiffs allege that Boren and Cano are liable under § 20 of the Exchange Act for all of the allegedly misleading statements issued by MB and its officers during the class period. We will discuss the viability of plaintiffs' §§ 15 and 20 claims together.
"Control person" liability is predicated upon the theory that certain corporate insiders have the power and obligation to supervise or "control" the day-to-day "policy and decision-making processes" of the persons beneath them who are alleged to have committed the primary wrong. Riggs v. Schappell, 939 F.Supp. 321, 327 (D.N.J.1996). Thus, to plead control person liability, the complaint must allege facts which demonstrate that each defendant had the power or potential power to influence and control the activities of the controlled person or entity during the *335 class period. See Brown v. Enstar Group, 84 F.3d 393, 397 (11th Cir.1996) (for defendant to be liable as a control person, he must have had the power to control the company at the time the alleged fraudulent prospectus was issued); In re Gupta Corp. Sec. Litig., 900 F.Supp. 1217, 1243 (N.D.Cal.1994). Furthermore, the Third Circuit requires plaintiffs to allege that the defendants "culpably participated" in the primary wrong. Rochez Bros. Inc. v. Rhoades, 527 F.2d 880, 883-86 (3d Cir. 1975), cert. denied, 425 U.S. 993, 96 S.Ct. 2205, 48 L.Ed.2d 817 (1976); Riggs, 939 F.Supp. at 327.
Plaintiffs cannot state a claim for control person liability against Boren and Cano because plaintiffs have failed to plead facts demonstrating that they were controlling persons of the Company within the meaning of sections 15(a) and 20(a). As the moving defendants point out, our prior Memorandum and Order rejected plaintiffs' allegations of control person status against Boren and Cano as "insufficient as a matter of law." (Mem. & Order at 39.) It appears that plaintiffs' control person liability allegations are, in several respects, identical to those which we found deficient.
We reject plaintiffs' assertion of control person liability against Boren and Cano based upon their involvement in the operations of I & J. In essence, plaintiffs raise no new factual allegations demonstrating that Boren and Cano, during the class period, exerted sufficient control over MB's operations such that control liability could be appropriate. (Compare Am. Compl. ¶ 38 with Sec.Am.Compl. ¶¶ 39, 48.) We need not reiterate here what we said before with respect to those factual averments, except to note that plaintiffs' allegations could only at best show that Boren and Cano controlled I & J rather than MB.
We pause briefly to consider one additional assertion in support of control person liability which was not originally addressed in our prior opinion. Plaintiffs allege that Boren demanded that the other named defendants agree to the registration and sale of Boren's stock in March 1996. The March 1996 Public Offering allowed Boren to sell all 870,000 shares of his MB stock at an artificially inflated price. (Sec.Am.Compl.¶ 39, 48(c)(v).) Specifically, the proposed amended pleading states that Boren threatened MB and its executives that unless they agreed to the Public Offering in March 1996, Boren would sell his stock at a lower price, causing the price of the stock to drop. (Id. ¶ 39.) Plaintiffs appear to argue that Boren's threats demonstrate his control over the Company and its officers during the stated time period.
We disagree. First, we note that this allegation pertains only to Boren and thus can have no potential effect on our conclusion regarding the sufficiency of the factual allegations of control liability with respect to Cano. Second, even as to Boren, we find this allegation insufficient to support a claim of control person liability under §§ 15 or 20. Plaintiffs cite no case law, and we are aware of none on point, which would permit this Court to impose control person liability upon Boren under these stated circumstances. Accordingly, we find that amendment of the Complaint to add claims against Boren and Cano based upon control person secondary liability under §§ 15 or 20 would be futile. We will deny the motion to amend with respect to this aspect of the proposed pleading.

III. Claim under § 12(2) of the Exchange Act  against Defendant Boren
In Count III of the proposed pleading, plaintiffs contend that Boren is liable under Section 12(2) (now § 12(a)(2))[10] of the *336 Exchange Act for alleged misstatements found in MB's March 1996 Prospectus and Registration Statement, apparently based upon the theory that Boren "solicited" the March 1996 offering. (See Sec.Am.Compl. ¶ 73 ("Defendant Boren solicited the sale of Manhattan Bagel common stock in the March 1996 Offering.").) Boren claims that the allegations pertaining to his status as a statutory "solicitor" under § 12(a)(2) are insufficient as a matter of law. We agree.
Count III of plaintiffs' Second Amended Complaint would not survive a motion to dismiss under Rule 12(b)(6) because plaintiffs have not pleaded sufficient allegations pertaining to Boren's status as a statutory "solicitor" under Section 12(a)(2). (See Sec.Am.Compl. ¶ 73.) The Supreme Court in Pinter v. Dahl, 486 U.S. 622, 108 S.Ct. 2063, 100 L.Ed.2d 658 (1988), interpreted the scope of the terms "offers or sells" to include one "who successfully solicits the purchase." Id. at 644, 108 S.Ct. 2063. The Court held that solicitation liability focuses on "the relationship between the purchaser and the participant." Id. at 651, 108 S.Ct. 2063. "Solicitation" under Pinter is a term of art, which the Court described variously as the act of "urging" or "persuading" another to purchase securities. Id. at 646-47, 108 S.Ct. 2063. The Court rejected the so-called "substantial factor" test for solicitation liability, under which a defendant could be liable if his or her "participation in the buy-sell transaction [was] a substantial factor in causing the transaction to take place." Id. at 649, 108 S.Ct. 2063.
The allegations in the proposed pleading concerning Boren's status as a statutory solicitor attempt to hold him liable based upon a substantial participation theory squarely rejected in Pinter. Plaintiffs state that defendant Boren "was involved in the preparation of" I & J's accounting records, which records were subsequently reflected in the Company's March 1996 Prospectus:
Defendant Boren solicited the sale of Manhattan Bagel common stock in the March 1996 Offering and was motivated by financial gain to sell shares of Manhattan Bagel common stock in such offering. As set forth above, the March 1996 Registration Statement and Prospectus contained misstatements and omissions of material facts. Also, as set forth above, Boren was involved in the preparation of the false and misleading year-end December 31, 1995 financial statements of I & J (and thus Manhattan Bagel) which were included in the March 1996 Registration Statement and Prospectus and as the primary beneficiary of such offering, has sold 870,000 of the 900,000 shares sold in such offering for proceeds of approximately $20 million. As such, Boren is liable to plaintiffs and the members of the class.
(Sec.Am.Compl.¶ 73.) Plaintiffs' proposed pleading is deficient as a matter of law because it reveals on its face that plaintiffs' theory of solicitation rests upon Boren's participation in producing information about I & J which was incorporated into the 1996 Registration Statement and Prospectus. More importantly, there are no *337 allegations of any direct solicitation by Boren of any of the named plaintiffs. Cf. In re Westinghouse Sec. Litig., 90 F.3d 696, 716 (3d Cir.1996); In re Craftmatic Sec. Litig., 890 F.2d 628, 637 (3d Cir. 1989).[11] For these reasons, the Court will deny the motion to amend with respect to this aspect of the proposed pleading.[12]

IV. Insider Trading Claims pursuant to § 10(b) and Rule 10b-5 and § 20A of the Exchange Act (Counts IV and V)  Against

Defendant Boren
Counts IV and V of plaintiffs' proposed pleading purport to assert two causes of action against defendant Boren for alleged "insider trading." To maintain a private cause of action for "insider trading" under § 20A, a plaintiff must establish that he or she traded "contemporaneously" with the defendant. See 15 U.S.C. § 78l-1(a). Similarly, courts which have implied a private right of action under § 10 and Rule 10b-5 to recover damages for insider trading also require that a plaintiff have traded "contemporaneously" with the defendant. See, e.g., Neubronner v. Milken, 6 F.3d 666, 669-70 (9th Cir.1993) (agreeing with Second Circuit's approach and also stating that the contemporaneous requirement must be pled with particularity under Rule 9(b)).
The text of § 20A does not define the term "contemporaneous." The parties agree that the courts applying the "contemporaneous" requirement under § 10(b) and Rule 10b-5 and § 20A of the Exchange Act are split on the issue of the time period which would satisfy that element of the plaintiffs' prima facie case. Plaintiffs advocate a more flexible approach which would permit the Court to find the requirement satisfied if one of the plaintiffs traded within a few days of the named defendant's market activity. See, e.g., In re VeriFone Sec. Litig., 784 F.Supp. 1471, 1488 (N.D.Cal.1992). Alternatively, *338 defendant argues that the Court should adopt the reasoning in those cases which have required that each plaintiff seeking recovery for alleged illegal insider trading to plead that he or she traded on the same day as the defendant in order to meet the contemporaneous requirement.
The parties do not cite, nor has our research revealed, any case law from our Court of Appeals which is instructive on this point. Cf. In re Advanta Corp. Sec. Litig., 180 F.3d 525 (3d Cir.1999) (noting defendants' argument that plaintiffs had not met contemporaneous requirement but finding that dismissal was appropriate on alternative basis such that neither the district court nor the court of appeals addressed whether plaintiffs had provided sufficient allegations of contemporaneous trading under § 20A). After considering the issue of the appropriate interpretation of the contemporaneous requirement in this context, we find persuasive the reasoning applied in the cases cited by defendant. See, e.g., In re AST Research Sec. Litig., 887 F.Supp. 231, 233-34 (C.D.Cal. 1995); Buban v. O'Brien, No. 94-0331, 1994 WL 324093, at *3 (C.D.Cal. June 22, 1994); In re Aldus Sec. Litig., 1993 WL 121478 (W.D.Wash.1993) (found in Defs.' App. in Supp. of Boren's Mot. to Dismiss, Ex. A); In re Stratus Comp. Sec. Litig., No. 89-2075, 1992 WL 73555, at *5 (D.Mass. Mar. 27, 1992) (attached to Defs.' App., Ex. C.); cf. In re Cendant Corp. Litig., No. 98-1664, 1999 WL 549015, at *23 (D.N.J. July 27, 1999) (court found contemporaneous requirement was satisfied where complaint alleged that certain class representative traded on one of the days that defendant traded, February 21, 1996, as well as the following two days, February 22 and 23, 1996); Backman v. Polaroid Corp., 540 F.Supp. 667, 670 (D.Mass.1982) (court found lapse of 2 trading days between plaintiffs' trading and defendant's activities insufficient to meet contemporaneous requirement). Accordingly, we hold that in order to satisfy the "contemporaneous" requirement applied in insider trading claims under §§ 10(b) and 20A of the Exchange Act, a plaintiff must at this stage plead that he or she bought stock on the same dates on which the defendant's sales took place.
Applying that rule to the factual allegations in the proposed pleading demonstrates that the contemporaneous requirement is not satisfied here. The proposed pleading states that Boren sold stock in the Company on Tuesday, March 19, 1996. (Sec.Am.Compl.¶¶ 43.) However, the pleading does not identify a single plaintiff who purchased MB stock on that date. Although plaintiffs assert that plaintiff McKillop traded "contemporaneously" with Boren, the factual allegations indicate otherwise because the pleading discloses that McKillop did not purchase his stock in the Company until Thursday, March 21, 1996. (Id. ¶¶ 6(b), 84.) Thus there are no factual allegations which demonstrate that any of the named plaintiffs traded in MB stock on the same date as Boren. Under these circumstances, plaintiffs' insider trading claims articulated in Counts IV and V are not sufficient to withstand a defense motion to dismiss. Accordingly, we will deny plaintiffs' motion to amend to the extent that it seeks to add Counts IV and V in their present form.

CONCLUSION
We have determined that the claims asserted against the moving defendants identified in Counts I through V of the proposed pleading cannot withstand a motion to dismiss under Rule 12(b)(6). Accordingly, the Court must deny the motion as futile with respect to the remaining claims. See Massarsky, 706 F.2d at 125.
An appropriate Order accompanies this Memorandum Opinion.
NOTES
[1]  Two additional motions were considered in our January 8, 1998 Memorandum and Order: (1) a motion by defendants Manhattan Bagel Co. Inc. ("the Company," "Manhattan Bagel," or "MB"), Jack Grumet, Leonard Johnson, Jason Gennusa and Andrew Gennusa ("the Manhattan Bagel Defendants") to dismiss plaintiffs' Amended Complaint; and (2) a motion to dismiss the Overend Complaint by defendants MB, Grumet and Johnson. We denied both motions, and granted plaintiffs leave to file a Second Amended Complaint with respect to two issues. First, we permitted plaintiffs to amend the Complaint to add a plaintiff as a lead plaintiff. (Mem. & Order dated 1-8-98 (hereinafter "Mem. & Order") at 15.) Second, we permitted plaintiffs to plead additional factual information with respect to plaintiffs' claim against the Manhattan Bagel defendants under Rule 10b-5 and § 10 of the Exchange Act. (See id. at 18-19.)
[2]  Counts I and II of the Second Amended Complaint assert claims against, inter alia, Boren and Cano. Counts III through V are directed at Boren only.
[3]  The Court will refer to the Second Amended Complaint as the proposed pleading under consideration in the instant motion, as plaintiffs concede that the Third Amended Complaint, if filed, would be identical in form and content to the Second Amended Complaint filed in April 1998 prior to the Court's decision on defendants' motion to strike.
[4]  Because we are deciding whether plaintiffs' allegations are sufficient to withstand a defense motion to dismiss, the Court finds it appropriate to consider in that connection the parties' original papers and supplemental letter briefs submitted in reference to the moving defendants' motion to dismiss which the Court dismissed as moot. Accordingly, any reference to the parties' submissions made in our substantive analysis of plaintiffs' claims should be understood to refer to the parties' papers submitted in connection with that motion unless otherwise noted.
[5]  The standard for dismissal pursuant to Rule 12(b)(6) is well settled. A court may dismiss a complaint pursuant to Rule 12(b)(6) "only if, accepting all alleged facts as true, the plaintiff is not entitled to relief." Bartholomew v. Fischl, 782 F.2d 1148, 1152 (3d Cir. 1986) (citations omitted); Weinstein v. Township of Franklin, 898 F.Supp. 271, 275 n. 6 (D.N.J.1995). Additionally, all reasonable inferences that can be drawn from the plaintiff's allegations "must be accepted as true and viewed in the light most favorable to the non-moving party." Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir.1987) (citations omitted). This Court may not dismiss a complaint unless the plaintiff can prove no set of facts which would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

We also note that to the extent that plaintiffs' claims are predicated upon allegations of fraud, we must also consider in this connection Rule 9(b)'s requirements. Rule 9(b) of the Federal Rules of Civil Procedure provides that in "all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally." Fed. R.Civ.P. 9(b). Claims brought under section 10(b) of the Exchange Act must satisfy the particularity requirement of Rule 9(b). Shapiro v. UJB Fin. Corp., 964 F.2d 272, 286 (3d Cir.), cert. denied, 506 U.S. 934, 113 S.Ct. 365, 121 L.Ed.2d 278 (1992).
[6]  The Supreme Court's opinion in Central Bank eliminated the concept of aiding and abetting liability from the scope of the statute.
[7]  Section 10(b) of the Securities Act makes it unlawful to use or employ, in connection with the purchase or sale of securities, any "manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe." Pursuant to Rule 10(b), the SEC adopted Rule 10b-5. Rule 10b-5 makes it unlawful, in connection with the purchase or sale of any security, "(a) To employ any device, scheme or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, or (c) To engage in any act or practice, or course of business which operates or would operate as a fraud or deceit upon any person."
[8]  The Court notes that the factual circumstances surrounding the individual defendants' involvement in the alleged misrepresentations at issue in Kidder are similar to the instant case. General Electric, a publicly held company, had Kidder Peabody ("Kidder") as one of its subsidiaries. During the time period 1991 to 1994, an employee of Kidder engaged in a scheme to generate false profit reports for Kidder. These false figures were incorporated into Kidder's earning statements, which in turn were provided to Kidder's parent, GE. GE, in turn, published Kidder's financial figures in its public documents. After the fraudulent scheme was uncovered at Kidder, it was disclosed to the investing public and GE's stock price suffered as a result. The question presented on plaintiffs' motion for reconsideration was whether Kidder and/or its 4 employees (named defendants in the lawsuit) could be held liable under § 10(b) and Rule 10b-5 for the alleged fraudulent misstatements concerning Kidder's financial figures conveyed to the investing public in GE's public documents (i.e., GE's Annual Report and 10K Report). The court held that the misstatements found in GE's public documents presented actionable misstatements which could be considered in determining Kidder and the 4 employees' liability under § 10(b) and Rule 10b-5.
[9]  We recognize that this rule of law was pronounced in a slightly different context. Specifically, the facts of that case were that plaintiffs sought to hold an accounting firm, defendant Ernst & Young, liable under § 10(b) for allegedly fraudulent financial information contained in a company's public documents where the defendant firm approved of the figures privately but not publicly. However, there is nothing in Wright which indicates that its holding is limited to the facts of that case. Thus, we find its rationale supports our conclusion that Boren and Cano cannot be held liable under the circumstances presented here for alleged material misstatements found in MB's public documents, where there were no "statements" which were attributed to them in the public documents at issue in this case. (See Sec. Am.Compl. ¶¶ 37 to 42.)
[10]  That section provides in pertinent part:

771. Civil liabilities arising in connection with prospectuses and communications
(a) In general
Any person who
(1) offers or sells a security in violation of section 77e of this title, or
(2) offers or sells a security (whether or not exempted by the provisions of section 77c of this title, other than paragraph (2) of subsection (a) of said section), by the use of any means or instruments of transportation or communication in interstate commerce or of the mails, by means of a prospectus or oral communication, which includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading (the purchaser not knowing of such untruth or omission), and who shall not sustain the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of such untruth or omission, shall be liable, subject to subsection (b) of this section, to the person purchasing such security from him, who may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security.
15 U.S.C. § 77l(a).
[11]  We note parenthetically that our ruling in this regard is consistent with the Third Circuit's rulings in Westinghouse and Craftmatic. See Westinghouse, 90 F.3d at 717; Craftmatic, 890 F.2d at 636. In both cases, plaintiffs had alleged that defendants "solicited plaintiffs" to purchase stock in the companies at issue. See Craftmatic, 890 F.2d at 636 (quoting complaint as stating that "the section 12 defendants are sellers within the meaning of § 12(2) of the Securities Act and either sold or promoted the sale of securities directly to plaintiffs ... or solicited plaintiffs and other class members to buy such securities.") (emphasis added); see also Craftmatic, 890 F.2d at 637 (quoting complaint as stating that "each of the defendants either sold said securities directly to plaintiffs ... or solicited plaintiffs to buy Craftmatic common stock") (emphasis added). Thus, the Third Circuit found that the plaintiffs had included sufficient allegations of the defendants' active solicitation to satisfy the Supreme Court's ruling in Pinter based upon the language in the pleadings which connected defendants' "solicitation" directly to the plaintiffs. In contrast here, plaintiffs allege generally that Boren "solicited the sale of Manhattan Bagel common stock in the March 1996 offering and was motivated by financial gain to sell shares of Manhattan Bagel common stock in such offering." (Sec.Am.Compl.¶ 73.) Plaintiffs do not allege, however, that Boren "solicited plaintiffs" to purchase MB stock. The difference in language is significant here because as Pinter made clear, there is no liability under § 12(a)(2) for remote sellers. Thus, because the allegations which purport to establish Boren's statutory seller status do not contain any reference to "the relationship between the purchaser and the participant," see Pinter, 486 U.S. at 642, 108 S.Ct. 2063, they are insufficient as a matter of law.
[12]  We note that defendant also argues that plaintiffs' § 12(a)(2) claim fails to state a claim upon which relief may be granted because it does not state with sufficient particularity that plaintiff McKillop has standing to pursue such a claim. Defendant argues that the allegation that plaintiff McKillop purchased securities "pursuant to" the March 1996 Registration and Prospectus is insufficient to convey standing to sue under § 12(a)(2). But see Shapiro, 964 F.2d at 286 (noting that plaintiffs' allegation that they purchased securities "pursuant to" the company's Registration Statement was sufficient to withstand defendants' motion to dismiss). Defendant also argues that plaintiffs' § 12(a)(2) claim fails to satisfy the pleading standard set forth in Rule 9(b). We need not address these issues, however, as it is clear that plaintiffs' § 12(a)(2) claim is deficient for the reasons expressed in the text and note 11, supra.