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Corbett-Wallace Corp. The general elements for a knowing-participation claim are: 1 the existence of a fiduciary relationship; 2 the third party knew of the fiduciary relationship; and 3 the third party was aware it was participating in the breach of that fiduciary relationship. Meadows v. Harford Life Ins. Filter Res. The trial court was not required to submit a separate question on knowing participation.
September 1, The former employer also sued other defendants for aiding and abetting the former employee in that breach of fiduciary duty. The defendants filed a motion for summary judgment, arguing that Texas does not recognize an aiding-and-abetting breach-of-fiduciary-duty claim. So, it is really hard to understand how the Austin Court of Appeals issued an opinion reversing and rendering that there is no aiding and abetting cause of action when there is a knowing participation cause of action.
The plaintiff sued Equity Trust Company for assisting a Ponzi scheme criminal, presented evidence of same to a jury, and the jury returned a verdict that Equity Trust Company did assist in that breach of fiduciary duty. The court of appeals did not reverse the judgment because the evidence was insufficient or because there was some defense to the claim.
David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. Skip to main content. New Articles. Collins and Ryan H. Giger and Todd H.
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Opper and Ryan J. Finally, the plaintiff must have suffered actual damages because of the breach. Many states, including Delaware, adopt these four elements almost to the letter. See , e. Townson , A. Other states, such as New York, recite only three elements but leave intact the same basic requirements of breach by another, knowing participation by defendant, and damages to plaintiff.
See, e. Citibank , F. What Lawyers and Clients Should Know Recent Delaware and New York decisions illuminate key lessons lawyers should be equipped to share with clients and heed themselves. Singh v. Attenborough , A. Kaufman v. Cohen , A. The Supreme Court of Delaware rejected this requirement, which it felt inappropriately broadened the claim. Jervis , A. Final Thoughts Though the aiding and abetting breach of fiduciary duty claim continues to gain traction, the conduct underlying these alleged violations is conduct that could give rise to liability even absent the state common law aiding and abetting breach of fiduciary duty claim.
In Kaufman , the First Department provided greater insight on the requirements for a claim of aiding and abetting a breach of fiduciary duty Kaufman, A. The case involved two partners in a partnership who brought action against Irwin Cohen, a third partner. The partners alleged that Cohen had breached his fiduciary duty when he undertook a disputed real estate transaction.
The plaintiffs further asserted that a business entity affiliated with Cohen, Falchi L. Plaintiffs sought recovery from Falchi on the theory of aiding and abetting. The court in Kaufman relied on an earlier decision of the U. Nike, F. The court concluded that the trial court had improperly dismissed the underlying breach of fiduciary duty claim, but when it turned to the second element, it held that the facts alleged were insufficient to support a finding that the defendant knowingly participated in the breach.
The court reasoned that the knowing participation requires both a mental component and an action component, and that defendants must have actual knowledge of the breach of fiduciary duty and render substantial assistance to the breaching party. The standard that courts use vary from constructive knowledge to actual knowledge, however, actual knowledge is the prevailing standard set forth by most courts in analyzing aiding and abetting claims.
Kaufman requires a plaintiff to allege facts demonstrating that the defendant had actual knowledge of the breach of fiduciary duty that occurred Kaufman, A. Galasso, 83 A. Even the terms courts use when referring to this third element are not uniform Holmes v.
Young , P. For instance, some courts have found that substantial assistance does not require physical acts; advice or encouragement may be sufficient to find a secondary actor liable for aiding and abetting Halberstam v. Welch , F. Cadena , P. In addition, although substantial assistance or encouragement typically takes the form of affirmative acts, some courts have found that silence or inaction constitutes substantial assistance Schiller v.
Strangis , F. Mass, Nonfeasance may also result in substantial assistance where the secondary actor consciously intended his silence to assist the primary actor in a wrongful act SEC v. Coffey , F. State courts seldom address causation in detail while analyzing a claim for aiding and abetting a breach of fiduciary duty, but Kaufman makes it clear that the substantial assistance prong requires proximate causation.
Some Commercial Division courts have followed the Kaufman analysis in dismissing claims for aiding and abetting the breach of fiduciary duty. Plaintiff then brought an aiding and abetting claim against additional defendants who allegedly helped Weissman solicit merchants and customers to compete with New CPS. Legend Bank, N.
See Garcia v. Vasilia , U. The court then held in a footnote, however, that Texas does recognize a knowing participation claim:. Although the Supreme Court of Texas has not explicitly recognized a cause of action for aiding and abetting, it does recognize a cause of action for knowing participation in a breach of a fiduciary duty. Hartford Life Ins. Corbett-Wallace Corp. Salamone , U. The court held that the receiver pled more than a simple negligence-type claim and asserted affirmative misconduct that justified a separate claim for participation in breaches of fiduciary duties:.
These pleaded facts demonstrate that Taylor has not simply recast, and thereby fractured, a professional negligence claim based on what Rothstein Kass allegedly failed to do.
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