Aiding and abetting breach of fiduciary duty
Good faith as a defense to a charge of fraud
Caring is shared! A recent case from the California Court of Appeal dealt with aiding and abetting a violation of fiduciary duty. Nasrawi v. Buck Consultants LLC, 179 Cal.Rptr.3d 813, 14 Cal.Daily Op. Serv. 12,672, 2014 Daily Journal D.A.R. 14,927 (Nov. 6, 2014), 179 Cal.Rptr.3d 813, 14 Cal.Daily Op. Serv. 12,672, 2014 Daily Journal D.A.R. 14,927 (Nov. 6, 2014), 179 Cal.Rptr
“A defendant is liable for aiding and abetting another in the commission of an intentional tort, such as a violation of fiduciary duty, if the defendant “knows the other’s conduct constitutes a breach of duty and provides significant assistance or encouragement to the other to act.” (1) A third party’s violation of fiduciary duties owed to plaintiff; (2) defendant’s actual knowledge of that breach of fiduciary duties; (3) substantial assistance or encouragement by defendant to the third party’s breach; and (4) defendant’s conduct was a substantial factor in causing plaintiff harm.” 225 Cal.App.4th 1451, 1478; American Master Lease LLC v. Idanta Partners, Ltd (2014) CACI No. 3610.
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An person sold the plaintiff fraudulent investments in Hampton v. Equity Trust Co. No. 03-19-00401-CV, 2020 Tex. App. LEXIS 5674 (Tex. App.—Austin, July 23, 2020, no pet.); No. 03-19-00401-CV, 2020 Tex. App. LEXIS 5674 (Tex. App.—Austin, July 23, 2020, no pet.). The defendant was a victim of a Ponzi scheme, and he had advised the plaintiff to open a retirement account with Equity Trust Company. The plaintiff’s self-directed IRA, from which the plaintiff made the investments, was held by Equity Trust Company. The plaintiff sued the person for various claims and Equity Trust Company for aiding and abetting breach of fiduciary duty after the scheme came to an end. The plaintiff won a jury trial and the trial court found Equity Trust Company guilty of aiding and abetting breach of fiduciary duty.
The court determined that there is no aiding and abetting violation of fiduciary duty charge in Texas since the Texas Supreme Court has never used those terms. However, it is clear that in Texas, there is a claim for understanding involvement in a violation of fiduciary duty. 138 Tex. 565, 160 S.W.2d 509, 514; Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Tex. 565, 160 S.W.2d 509, 514; Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Tex (1942). The following are the general elements of a knowing-participation claim: 1) the presence of a fiduciary relationship; 2) the third party was aware that it was engaging in the violation of that fiduciary relationship; and 3) the third party was aware that it was participating in the breach of that fiduciary relationship. Harford Life Ins. Co. v. Meadows, 492 F.3d 634, 639 (5th Cir. 2007).
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The case of In re Oracle Corp. Derivative Litigation looked at whether a fiduciary for an acquired company would help and abet a buyer’s fiduciary’s breach of duty. Yes, almost everything is theoretically possible. But what if the violation of duty is merely due to the buyer overpaying the seller? Since the target fiduciaries have a responsibility to optimize price, this is an exceptional situation.
This case concerned Oracle’s purchase of NetSuite. To bring an action for aiding and abetting a violation of fiduciary duty to Oracle stockholders, the plaintiff would allege, among other items, that the NetSuite defendants intentionally aided Oracle fiduciaries who remained defendants in the breach.
Delaware law, for example, does not enforce an obligation to talk absent a fiduciary or contractual arrangement.
The lead plaintiff argued that the NetSuite defendants violated their own obligations to Oracle by offering substantial assistance to two Oracle defendants—the supposed substantial aid was silence on the history of key transactional negotiations.
How to use practical law
In In Re Baker Hughes Inc. Merger Litig., C.A. No. 2019-0638-AGB (Del. Ch. Oct. 27, 2020), the Delaware Court of Chancery refused to dismiss claims that Baker Hughes Incorporated (“Baker Hughes”CEO )’s breached his fiduciary duty of care by failing to include unaudited financial statements of GE O&G in a proxy statement soliciting t As a result, the Court determined that (1) the stockholder vote was uninformed, and (2) Revlon, Inc. v. McAndrews & Forbes Hldgs., Inc., 506 A.2d 173 required increased scrutiny under Revlon, Inc. v. McAndrews & Forbes Hldgs., Inc., 506 A.2d 173 (Del. 1986). (“Revlon”), rather than the Corwin v. KKR Financial Holdings LLC (125 A.3d 304, 306 (Del. 2015) business judgment analysis, was used to determine whether plaintiffs had properly pleaded a predicate violation of fiduciary duty by the Baker Hughes board for purposes of an aiding and abetting lawsuit against General Electric Company (“GE”). Except for Baker Hughes’ CEO, who was named as a defendant in the action solely in his capacity as an officer of Baker Hughes, none of the Baker Hughes directors were named as defendants in the action at the time of its decision.