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Aiding and abetting breach of fiduciary duty massachusetts general hospital aiding and abetting uk law definition

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The suit alleges that Sterling and its co-defendants breached their fiduciary duties to Adeptus Health Inc. Specifically, the suit alleges that Sterling forced Adeptus to buy out its position at artificially inflated prices shortly before Adeptus collapsed into bankruptcy. Each year, D Magazine honors up-and-coming attorneys in Dallas by publishing its list of the best lawyers under 40 in Dallas.

Honorees are nominated by their peers and selected by an anonymous panel of esteemed local lawyers. The case will now proceed to discovery. This accolade recognizes U. Specifically, the Court ruled that a transferee on inquiry notice of a fraudulent transfer may not satisfy a good-faith defense under the Texas Uniform Fraudulent Transfer Act, unless the transferee conducted a diligent investigation.

Reid Collins had filed an amicus brief seeking such a ruling on behalf of the National Association of Bankruptcy Trustees. The ruling is a significant victory for trustees, receivers, and other plaintiffs in fraudulent transfer litigation, not only in Texas, but also in other jurisdictions around the country. See opinion here. See complaint here.

The lawyers and law firms selected by editors and reporters from ALM and the National Law Journal have demonstrated repeated success in cutting-edge work on behalf of plaintiffs over the last 15 months. In overruling the demurrer, the Court held that ratification is not a defense to fraudulent transfer claims under California law and that California recognizes a cause of action for aiding and abetting fraudulent transfers.

Discovery in the case is ongoing. See Opinion here. See Decision here. This latest honor comes as Reid Collins celebrates its 10th anniversary and marks one of the most successful years in its history. Reid Collins is thrilled to announce that William T. Reid, IV, a founding partner of the firm, has been recognized by Texas Lawyer in its inaugural Trailblazers series. This series spotlights individuals that are sincerely innovators and thought leaders in their practice.

Reid Collins is pleased to announce that eight of its attorneys have been named to the Lawdragon Leading Plaintiff Financial Lawyers in America for This Guide, first published in , presents a curated look at the best of the U. The panel addressed risk assessment, cost management strategies, alternative fee arrangements, mediation and arbitration as alternatives to litigation, and communicating with in-house counsel and stakeholders.

See event here. On September 12, , Reid Collins filed suit in the U. The presentation addressed equipment valuation as well as business valuations used to measure damages caused to a destroyed business. The answer to this question will have a significant effect on fraudulent transfer litigation, not only in Texas, but also in other jurisdictions around the country.

See brief here. Compiled by the only publication dedicated exclusively to identifying elite litigation attorneys, the list recognizes the most notable up-and-coming trial lawyers in the United States. See profile here. Having now survived two attempts at dismissal, all of the claims will now proceed to discovery.

In a key ruling on July 16th, the U. RCT brought the lawsuit on behalf of Founder Ray DiFalco to dissolve the company in September and proceeded to trial within three months. In his May 17, , decision, Chancellor Andre G. IDS holds the patents to the abuse-deterrent technology. Chancellor Bouchard ruled a liquidating trustee should be appointed for IDS within five days. RCT and its clients are hopeful that this ruling will facilitate development of new products using the technology, thereby helping to solve the opioid crisis currently plaguing this country.

The suit alleges breach of fiduciary duty of loyalty that Sterling Partners owed as a controlling stockholder, unjust enrichment, and aiding and abetting breaches of fiduciary duty. Certain former Adeptus officers and directors are also named as defendants in the suit. The suit alleges breach of fiduciary duty claims against former officers of FCER. To this point, Credit Suisse has lost this dispute three times—before a jury that found Credit Suisse fraudulently induced Claymore, before a trial court that found Credit Suisse materially breached its contractual obligations, and before the Texas Court of Appeals that affirmed the judgment in its entirety.

But as Claymore argues in its response, the unanimous decision by the Texas Court of Appeals, which applied longstanding New York substantive law, and enforced the plain and unambiguous terms of the underlying agreement, does not warrant review by the Texas Supreme Court.

RCT is thrilled to announce that William T. The claims were presumed dead as a result of the application of the section e safe harbor. Using its experience from Merit Management and other fraudulent transfer cases, RCT thoroughly analyzed the transactions in light of recent developments in the law and repleaded the claims to avoid the section e defense. RCT is, once again, on the cutting edge of the law concerning the pursuit of complicated fraudulent transfer claims.

See Third Amended Complaint here. Madden is a long-standing member of the ABI, and this new role is the culmination of those many years of service. The session included interviews with lawyers and other professionals who worked on cases involving COMI determinations about how decisions were taken, drawing out the dynamics and pressure at work behind the scenes. For more information click here. IDS holds a patent to technology that gives abuse deterrent characteristics to common opioid painkillers.

The FDA has approved two such products thus far, including the only immediate release abuse deterrent opioid product approved by the FDA to date. Unfortunately, deadlock and governance dysfunction within IDS have crippled the company and no progress has been made on new product development.

The suit alleges, inter alia , fraud and breach of fiduciary duty claims seeking millions of dollars of damages and the return of Ms. See complaint and exhibits here. RCT has been named as one of five finalists for Plaintiff Firm of the Year by Benchmark Litigation, a leading guide to litigation firms and attorneys in the United States and Canada.

The winner will be announced at a ceremony in New York on February 28, Founding partner William T. Reid, IV has been named as one of five finalists for Plaintiff Attorney of the Year by Benchmark Litigation, a leading guide to litigation firms and attorneys in the United States and Canada. They discussed various judicial opinions, including recent opinions addressing the Ponzi presumption and the mere conduit defense in fraudulent transfer litigation.

See video here. The motions sought to avoid liability for the fraud and breach of contract claims asserted by plaintiffs, a group of funds managed by Highland Capital Management. The court rejected both the personal jurisdiction and merits-based defenses asserted by defendants. Plaintiffs also assert that Evans-Freke and Mayo used the Celtic corporate structure to bleed out the assets of the issuing entity and the related guarantors in an attempt to ensure plaintiffs could not recover the payment due on the notes.

The case will now proceed into discovery. RCT is pleased to announce that Marc Dworsky, a nationally renowned attorney and former Munger Tolles partner, has joined the firm. William T. In addition, Eric D. A leading guide to litigation firms and attorneys in the United States and Canada, Benchmark Litigation determines rankings through detailed peer reviews and case examinations. See announcement here. On September 26, , the U. See Newman v. The complaint asserts claims for, among other things, breach of contract for defaulting on notes issued by one of the Celtic entities and guaranteed by a number of the other Celtic entities.

The complaint alleges that Stephen Evans-Freke and John Mayo used their web of Celtic entities to reduce the assets available to satisfy the notes, which were due in and remain unpaid, and that they are liable for the debt owed by their entities as alter egos. See decision here. The claims assert that defendants, including George Economou and a group of his companies, received hundreds of millions of dollars in fraudulent conveyances while Ocean Rig UDW was a Marshall Islands company.

The Court has asked for additional briefing and set the matter for further argument on August 29, Listen to argument: Part 1 Part 2. Michael, who earned his J. RCT is pleased to announce that it has been ranked as a top litigation firm in the edition of Chambers USA, a well-known guide to the leading lawyers and law firms in the United States.

Shaughnessy , 88 N. Despite its articulation of that standard, the Bottom decision was unsparing in its assessment that an aiding and abetting breach of fiduciary duty claim cannot be made in North Carolina. It said:. The court finds that no such cause of action exists in North Carolina. It is undisputed that the Supreme Court of North Carolina has never recognized such a cause of action. Shaug hnessy , 88 N. First Interstate Bank of Denver, U. Like in Tong v. Regional Property Development Corp.

But the Business Court has never dismissed that type of claim on the basis that it is not recognized in North Carolina. It is inevitable that that is going to happen, but until then, the Court will find another way to dismiss those claims. Don't waste your time making that claim. He received his law degree from the University of North Carolina at Chapel Hill, with honors, in After graduation from law school, Mack was law clerk to Judge Frank W.

Bullock, Jr. He has also served as Skip to main content. New Articles. Rogoff and Julia D. Console, Jr. Costigan and Joseph J. Cole-Johnson and Rachel V. Oehninger and Geoffrey B. Buckley-Norwood and Sarah R. Gross and Marc D.

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In late , Founder's attorney advised Defendant that the actions of the Operating Group's members were in breach of their fiduciary duties owed to Plaintiff and that any compensation received by the Operating Group belonged to Plaintiff. Soon thereafter, the company formed by the Operating Group, New Company, cancelled the license agreement with Plaintiff and proceeded to engage in real estate transactions without Plaintiff, the first of which closed in November After Founder commenced arbitration and obtained an award against members of the Operating Group, those parties settled their disputes.

Under the settlement, Founder received entitlement to a percentage of New Company's shares based on his majority interest in Plaintiff. Meanwhile, Plaintiff filed a separate action in California state court against Defendant and its partners. In the absence of a fiduciary relationship with the plaintiff, may a defendant be sued for aiding and abetting a breach of fiduciary duty?

Under California law, there are two different theories pursuant to which a person may be liable for aiding and abetting a breach of fiduciary duty. One theory requires that the aider and abettor owe a fiduciary duty to the victim and requires only that the aider and abettor provide substantial assistance to the person breaching his or her fiduciary duty. On this theory, California law treats aiding and abetting a breach of fiduciary duty similar to the separate tort of conspiracy to breach a fiduciary duty i.

The second theory arises when the aider and abettor commits an independent tort and requires the aider and abettor make "a conscious decision to participate in tortious activity for the purpose of assisting another in performing a wrongful act. The Court found that Plaintiff proceeded on the second theory of aiding and abetting liability. Plaintiff pleaded and proved that: defendants had actual knowledge of the fiduciary duties owed by members of the Operating Group to Plaintiff; defendants provided these fiduciaries with substantial assistance in breaching their duties; and defendants' conduct resulted in unjust enrichment.

The Court rejected defendants' argument that the claims were by barred by the statute of limitations. While the Court agreed with Plaintiff that the restitutionary remedies of unjust enrichment and disgorgement were proper, it instructed the trial court to limit the amount of available restitution to the net profit attributable to the underlying wrong.

In any potential business transaction, individuals, as well as officers, directors, partners and other persons acting for or on behalf of an entity, need to be aware of the potential for liability. This principle applies even where such persons themselves do not have a fiduciary relationship with any individual, partnership, LLC, or corporation involved in the transaction. The Court's holding is consistent with California's common law approach to potential liability for aiding and abetting a tort.

Liability may be imposed on one who aids and abets the commission of an intentional tort if the person knows the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act. However, the decision does not undermine the agent's immunity rule under California law. As a general matter, the rule bars claims for aiding and abetting or conspiracy against employees and other agents, including attorneys, who act solely as their principal's agent and do not personally share the duty alleged to have been violated.

See, e. Bank, Mass. Second, however, where a bank has sufficient notice of wrongdoing, that notice may give rise to a duty on the part of the bank to make further inquiry, see, e. Atlantic Natl. Pilgrim Trust. Thus, for example, the Supreme Judicial Court has said that when a transaction is a "badge of fraud" it may give rise to "a duty" on the part of the bank "to interfere to prevent" a misappropriation. See ibid. Although there is no Massachusetts case addressing a chronic insufficiency of funds in a client trust account, in applying similar principles in a parallel circumstance there, as a matter of New York law , the United States Court of Appeals for the Second Circuit vacated the dismissal of some of the plaintiffs' complaints against the defendant banks and stated:.

Nevertheless, a bank may be liable for participation in such a diversion, either by itself acquiring a benefit, or by notice or knowledge that a diversion is intended or being executed. Adequate notice may come from circumstances which reasonably support the sole inference that a misappropriation is intended, as well as directly.

Having such knowledge, the bank is under the duty to make reasonable inquiry and endeavor to prevent a diversion. Although small overdrafts [in a client trust account] are generally insufficient to trigger a duty of inquiry, the bank's duty may be triggered by chronic insufficiency of funds. Lerner, F. While we reiterate that banks ordinarily have no duty to monitor the use of funds placed in deposit accounts, under the principles articulated in those Supreme Judicial Court cases, the evidence of Citizens Bank's knowledge of the chronic insufficiency of funds in a client funds account, if proven, would trigger a duty of reasonable care on the part of Citizens Bank to all those who, like Go-Best, subsequently placed funds in that account, to make reasonable inquiry and to endeavor to prevent a diversion.

Kask, Mass. For this reason, summary judgement is rarely appropriate in negligence cases, and is "especially disfavored" where, as here, knowledge is at issue. Pratt v. Martineau, 69 Mass. Viewed in the light most favorable to Go-Best, the evidence in the record raises a question of fact whether Citizens Bank exercised reasonable care when it failed to endeavor to prevent a diversion, which it might have done by complying with applicable Massachusetts Rules of Professional Conduct, adopted by the Supreme Judicial Court, requiring it to report overdrafts on the client account, see Mass.

And a "bank's evident default in the performance of its regulatory obligation to make a report of. The evidence in the record at this summary judgment stage indicates that, although Citizens Bank was aware of the chronic overdrafts in the client funds account, it never reported dishonored checks to the Board of Bar Overseers, nor did it take any steps to investigate the matter. The evidence indicates that, when confronted about this, Wong was nervous and stated, "I never should have done it.

Citizens Bank argues that it owed no duty because this account was not, in fact, a trust account covered by rule 1. It argues in the alternative that it did not know the client account was a trust account, if it was. An account is a trust account subject to the rules of professional conduct, however, if funds in it are held "for clients and in any other fiduciary capacity in connection with a representation.

There is sufficient evidence in the record viewed in the light most favorable to Go-Best indicating that the account held client funds in trust consistent with this definition to present a genuine issue of fact about the nature of the account. Moreover, this account was also labeled a "client account. Assuming the client account was a trust account, whether Citizens Bank knew or should have known that it was also presents a question for the fact finder.

The rules of professional conduct state that "[l]awyers or law firms maintaining trust accounts shall take all steps necessary to inform the depository institution of the purpose and identity of such accounts. In this case, the evidence indicates that Goldings asked that the account be denominated "Morris M. These facts alone raise a genuine issue as to what Citizens Bank knew or should have known about the nature of the account.

Citizens Bank also argues that, even if the client account was a trust account, any duty Citizens Bank had would have extended only to clients of Goldings or MHG whose funds were deposited in the account. The plaintiff in this case, Go-Best, was not a client. The dissent agrees with Citizens Bank's argument and concludes that the principles articulated in Lerner should apply only where the person whose funds were on deposit in a trust account and who alleges they were lost through the bank's negligence was a client of the attorney or firm holding the funds in that account.

Citizens Bank's argument misperceives the nature of the duty. It is foreseeable that any party that allows its funds to be deposited into a trust account may be injured in the event of a fraudulent scheme of misappropriation, whether or not that party was a client. A nonclient party like Go-Best may have reasonably believed that the client account, by its nature as a trust account, was subject to bank supervision. Citizens Bank's duty, and its relationship with those whose funds were deposited in the account, has nothing whatever to do with the technical relationship between the depositors and Goldings.

The viability of their claims did not depend upon the bank's "actual knowledge" that these depositors were clients with escrow agreements with the bank. See Lerner, F. Further, and perhaps most important, imposition of a duty running to all whose funds are deposited in client trust accounts, rather than only to clients, does not impose any additional burden upon the bank.

If a bank holds a client account, it is required to take reasonable care in the face of chronic overdrafts. This will be true whether the account exclusively holds client funds or not. Indeed, it is likely that the bank will know nothing about the source of any of the particular funds held at any particular time in any client account. To limit recovery only to clients thus would immunize a bank proven to have caused through its negligence losses that would otherwise have been actionable on the arbitrary ground that they happen to have been incurred by nonclients.

Finally, Citizens Bank argues that application of the principles of our case law to impose a duty in the circumstances alleged would "change the landscape of the banking industry and is plainly unworkable as a matter of public policy. But the principles we apply today have been similarly applied in New York, the banking center of the United States, where they appear neither to have proven unworkable nor to have led to dramatic consequences for the banking industry.

In the absence of evidence to the contrary, this suffices to answer Citizens Bank's objection. Causation and damage. As to causation and damage, there is sufficient evidence in the record, viewed in the light most favorable to the nonmoving party, that Go-Best incurred damage. This leaves only the question whether the evidence raises a genuine issue whether any such damage was proximately caused by Citizens Bank's negligence. Proximate causation is a question of fact ordinarily left to the jury.

Mullins v. Pine Manor College, Mass. Edwards, 62 Mass. This evidence, taken in the light most favorable to Go-Best, raises a genuine issue of material fact on the question of proximate cause. Citizens Bank argues that a causal connection is lacking because there is no evidence in the record that demonstrates Citizens Bank knew of any specific fraudulent transaction involving the funds Go-Best had transferred to the client account.

The general rule is that a bank has no liability for a fiduciary's misuse of funds in a fiduciary account absent knowledge of that misuse. Fourth Natl. A bank may presume that a fiduciary will apply funds in such an account to their proper purposes. But the allegation here is not that the bank has a general obligation to oversee fiduciary accounts. The allegation here is that, through negligent failure to adhere to its legal duties with respect to client trust accounts, a duty triggered only by the chronic insufficiency of funds in this client account, the bank allowed the account to continue operating with the "client account" moniker, and the protections it implied, such that Goldings was able to continue his fraudulent scheme to Go-Best's detriment.

In order to find proximate causation the jury thus need not conclude that the bank was aware of the specifics of any particular transaction in the account. We emphasize that we are not holding that Citizens Bank was negligent in this case. That has not been proven, and it is a question on which we express no opinion; it is one for the fact finder.

We conclude only that summary judgment should not have entered on Go-Best's claim of negligence against Citizens Bank and that it must be reversed. Aiding and abetting. In light of the evidence described above, again taken in the light most favorable to Go-Best, the portion of the order dismissing Go-Best's claim against Citizens Bank for aiding and abetting Goldings's fraud, breach of fiduciary duty, and conversion must also be reversed.

Given the evidence that an employee of Citizens Bank intentionally and improperly transferred money into the client account, whether Citizens Bank knew of Goldings's fraudulent use of the client account presents a genuine issue of a material fact. In dismissing these claims, the judge erroneously concluded that the knowledge requirement of aiding and abetting liability cannot be satisfied without proof of Citizens Bank's knowledge of Goldings's particular alleged misuse of Go-Best's funds.

Such a reading is too narrow. Our law requires only that "the defendant actually knows about 'its substantial, supporting role in an unlawful enterprise. Miles, Inc. Philip Morris, Inc. As described above, the chronic overdrafts and insufficiency of funds in the client account demonstrated a very high likelihood of the misuse of the account by Goldings.

See post at n. But again, this misperceives the significance of the character of the person or entity whose funds are on deposit in a client trust account. The ordinary rule is that a tortfeasor is liable for the reasonably foreseeable consequences of its actions.

If Go-Best's claims are proven, the injury to any and all individuals with funds on deposit in the client account would have been reasonably foreseeable. Again, this is not to say that Citizens Bank did indeed provide knowing assistance to Goldings. That has not been proven. But there is at least a genuine issue of material fact about Citizens Bank's state of mind. Turning to the misrepresentation claim, Go-Best argues before us that Citizens Bank's act of labeling the client account "client account" amounted to the provision by Citizens Bank of false information because it did not provide the oversight that, Go-Best argues, that label implies, and that Go-Best relied upon that misrepresentation to its detriment.

Citizens Bank argues that the complaint does not satisfy the heightened pleading standard of Mass. We agree. In various places in the complaint it is alleged that the client account was maintained at Citizens Bank and was labeled "client account," that Go-Best reasonably believed this was a trust account monitored by the bank, that "Goldings had been using the Citizens Bank client funds account to perpetrate criminal activity with the help of Citizens Bank's employees," and that Go-Best reasonably relied to its detriment on "its understanding of the nature" of the client account.

Go-Best appears to argue that it can be inferred from the complaint, though it is never in terms asserted, that Citizens Bank falsely labeled the account "client account," and that it did so with knowledge of that falsity. Nonetheless, the complaint does not anywhere allege that Citizens Bank even through Goldings provided Go-Best any material that had the name of the account on it.

Citizens Bank similarly concealed the fraudulent and unlawful activity that had occurred through Goldings' trust account. The primary purpose of rule 9 b is to place the defendant in a fraud case on notice of the specific acts that are alleged to have been fraudulent. In this case the complaint did not "warn[] [Citizens Bank] adequately concerning the particular statements which constituted the alleged fraud so that they could prepare their defense. Jablonski, Mass. Consequently, summary judgment on the misrepresentation count was properly granted.

Conversion and accounting. Finally, summary judgment also properly entered on the other two claims against Citizens Bank. Indeed, Go-Best does not seem to contend otherwise. The evidence is insufficient to create a genuine issue of material fact whether Citizens Bank itself failed to return Go-Best's funds when they were in its possession and Go-Best requested their return, which would be essential to a judgment against Citizens Bank for conversion of the plaintiff's funds.

See Marshall Vessels, Inc. Wright, Mass. See also Gossels v. Fleet Natl. Similarly, there is no evidence to raise a genuine issue whether there was a fiduciary relationship between Go-Best and Citizens Bank. This is an essential element of the cause of action for an accounting. See Ball v. Harrison, Mass. Omni Publications Intl. Summary judgment in favor of Citizens Bank on these counts, as well as on the misrepresentation count, will be affirmed.

The judge separately granted summary judgment in favor of Goldings's former partners, William S. Edmands, on Go-Best's claims of aiding and abetting Goldings's alleged fraud, conversion,. If, viewing the evidence in the light most favorable to the nonmoving party, Go-Best, we find no genuine issue as to any material fact, and the partners have demonstrated their entitlement to judgment as a matter of law, we will not disturb that judgment.

Arcidi v. Viewed in the light most favorable to Go-Best, as relevant to the claims against the partners the summary judgment record reveals the following:. There is deposition testimony of Hawkes that he understood the account to be a trust account subject to rule 1. Hawkes further testified that Goldings was the largest originator of business at the firm.

The record reveals that MHG's own client trust accounts were monitored daily by the firm's accounting department. Margaret Franchi, the controller-accounting manager at MHG, testified in a deposition that disbursements could be made from the MHG accounts only through a disbursement request made to her. The accounting department would have to authorize any such disbursement. The evidence indicates that the accounting department kept records of each separate client fund held within the firm's trust accounts.

Before funds could be disbursed, an attorney requesting such disbursement had to, among other things, identify the particular client fund from which the disbursement was being made. Deposition testimony reveals, however, that, unlike the firm's own trust accounts, the client account was not monitored by anyone at the firm, nor did anyone at the firm other than Goldings.

Indeed, Franchi testified that at one point Richard Lyon, the firm administrator who apparently began his duties in early , raised with her the possibility of her supervising the client account, which she said she would not do unless the account was audited by providing documentation for each client whose funds were held in the account. There was no way I was going to take an individual account over not knowing what was there. She was informed of this by her supervisee, Nanette LeBlanc, who had noticed the withdrawal in her review of the daily report sent to the firm by Citizens Bank.

Similarly, Hawkes testified that Goldings frequently did not follow the firm's written case intake policy, saying, "Morris wasn't great at getting engagement letters signed," and that he was "sure there were [other] ways which he did not follow the policy. When the funds were not replaced the next day, Franchi telephoned the bank, where she spoke with Wong, the Citizens Bank employee, who, as described above, was "very.

Goldings subsequently telephoned Franchi. He told her to stop telephoning the bank, and that he would take care of getting the money back into the IOLTA account. At this point, Franchi brought the matter to the attention of Hawkes. According to Hawkes's deposition testimony, Franchi conveyed all this information to him. Hawkes telephoned Citizens Bank and was told that it was not a bank mistake, but rather that Goldings had specifically instructed the bank to transfer the money out of the firm's IOLTA account and put it in the client account.

Hawkes then had a meeting with Goldings, at which Goldings told Hawkes a different story from what he had told LeBlanc. Hawkes testified that he had a serious conversation with Goldings about the matter and that he, Hawkes, was "pretty angry," stating, "I think I probably lost my cool.

Hawkes testified that he believed that after his conversation with Goldings he discussed the matter contemporaneously with partners Gershwin, Peters, and Edmands. None of the partners took action to report Goldings to bar counsel or to the Board of Bar Overseers, to investigate the circumstances that gave rise to the shortfall in Goldings's client account, to monitor that account, or to prevent Goldings's continued misappropriation of funds from that account.

Franchi testified that she had "no idea" why an exception from oversight was made for the Goldings client account. The complaint does not assert a negligence claim against the partners, but rather three claims of aiding and abetting. We will assume without deciding that the record raises a jury question whether the partners' inaction in failing to monitor the client account amounted to the provision of "substantial assistance" to Goldings, permitting us to turn to the question of the state of the partners' knowledge.

Each aiding and abetting claim requires knowledge by the defendant of the principal's wrongdoing. Nutt, Mass. The partners argue that they may not be held liable without knowledge of the specific acts perpetrated upon Go-Best, something of which there is no indication in the summary judgment record. But the allegation at the root of all of Go-Best's claims of aiding and abetting against the partners is that Goldings engaged in an ongoing, fraudulent Ponzi scheme, of which Go-Best was only one of the victims.

The partners could be found to have aided and abetted the unlawful scheme without specific knowledge about the Go-Best transaction. Sovereign Bank, F. The question before us in addressing the aiding and abetting claims thus is whether the summary judgment record raises a fact question about the partners' knowledge that Goldings was engaged in such a fraudulent scheme.

See Arcidi v. The evidence here falls short. Read in the light most favorable to Go-Best, the evidence supports an inference of knowledge on the part of at least some of the partners that Goldings once misappropriated funds from the firm's IOLTA account, and knowledge of the shortfall in the client account that Goldings asserted was the reason for that misappropriation.

But there was no evidence any of the partners knew of the pattern of overdrafts that might have given them awareness that a fraudulent scheme was ongoing. There was also, it is true, evidence that Goldings sought to disburse funds in client accounts even before the checks for those funds had cleared, but this evidence, unlike evidence of a chronic insufficiency of funds, is not indicative of ongoing wrongdoing. And there is also evidence that would support an inference that Goldings did not always pay attention to other firm policies which may have been rooted, at least in part, in ethical requirements.

But, again, this does not support an inference of knowledge of an ongoing unlawful scheme. Even if the evidence would raise a jury question whether some or all of the partners should. To be sure, in some jurisdictions deliberately taking steps to avoid knowledge of wrongdoing has been held to satisfy the knowledge requirement. This is widely true in criminal prosecutions for aiding and abetting.

Guerrero, F. Giovannetti, F. Some courts have also applied this reasoning in civil actions for aiding and abetting tortfeasors. Beacon Hill Asset Mgmt. Madoff, U. September 9, But the requirement set out by the Supreme Judicial Court of knowledge of wrongdoing in the context of aiding and abetting liability, see, e. Nutt, supra at , does not by its terms extend to such conscious avoidance, sometimes also called "wilful blindness" or a "conscious course of deliberate ignorance.

Consequently, we need not and do not decide whether the evidence would raise a jury question whether the partners deliberately acted to avoid knowledge of Goldings's fraudulent scheme. Insofar as the judgment dismisses the plaintiff's claims against defendant Citizens Bank for negligence and aiding and abetting Goldings's fraud, breach of fiduciary duty, and conversion, the judgment is reversed.

All remaining portions of the judgments are affirmed. I dissent from all parts of the majority opinion which hold that the complaint stated any legally cognizable claim upon which relief can be granted against Citizens Bank of Massachusetts Citizens Bank. This was not an attorney-client or fiduciary account under Mass. Morris M. Goldings was not holding funds for Go-Best, either as a lawyer, or as a fiduciary in connection with legal representation subject to the provisions of rule 1.

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Founder, concerned about protecting Plaintiff's business method, opposed the proposed venture with Defendant and, through an amendment, restricted the Operating Group's ability to make deals without the approval of the Plaintiff's majority owners. In early , two members of the Operating Group formed a new company and arranged to be employed by it. Defendant and its managing partner became the majority owners of the new company. The Operating Group granted new company a nonexclusive license to use Plaintiff's business method.

Founder, citing non-compete provisions in the operating agreement, objected to the Operating Group's actions and asserted that the group's members did not have the authority to grant licenses on behalf of Plaintiff. Founder communicated his position to Defendant. In late , Founder's attorney advised Defendant that the actions of the Operating Group's members were in breach of their fiduciary duties owed to Plaintiff and that any compensation received by the Operating Group belonged to Plaintiff.

Soon thereafter, the company formed by the Operating Group, New Company, cancelled the license agreement with Plaintiff and proceeded to engage in real estate transactions without Plaintiff, the first of which closed in November After Founder commenced arbitration and obtained an award against members of the Operating Group, those parties settled their disputes. Under the settlement, Founder received entitlement to a percentage of New Company's shares based on his majority interest in Plaintiff.

Meanwhile, Plaintiff filed a separate action in California state court against Defendant and its partners. In the absence of a fiduciary relationship with the plaintiff, may a defendant be sued for aiding and abetting a breach of fiduciary duty? Under California law, there are two different theories pursuant to which a person may be liable for aiding and abetting a breach of fiduciary duty.

One theory requires that the aider and abettor owe a fiduciary duty to the victim and requires only that the aider and abettor provide substantial assistance to the person breaching his or her fiduciary duty. On this theory, California law treats aiding and abetting a breach of fiduciary duty similar to the separate tort of conspiracy to breach a fiduciary duty i. The second theory arises when the aider and abettor commits an independent tort and requires the aider and abettor make "a conscious decision to participate in tortious activity for the purpose of assisting another in performing a wrongful act.

The Court found that Plaintiff proceeded on the second theory of aiding and abetting liability. Plaintiff pleaded and proved that: defendants had actual knowledge of the fiduciary duties owed by members of the Operating Group to Plaintiff; defendants provided these fiduciaries with substantial assistance in breaching their duties; and defendants' conduct resulted in unjust enrichment.

The Court rejected defendants' argument that the claims were by barred by the statute of limitations. While the Court agreed with Plaintiff that the restitutionary remedies of unjust enrichment and disgorgement were proper, it instructed the trial court to limit the amount of available restitution to the net profit attributable to the underlying wrong.

In any potential business transaction, individuals, as well as officers, directors, partners and other persons acting for or on behalf of an entity, need to be aware of the potential for liability. He granted the motion. The partners subsequently moved for summary judgment, and that motion was also granted. Separate and final judgment entered for Citizens Bank and the partners, from which an appeal was taken. We affirm the judgment for the partners on all counts against them and for Citizens Bank on three of the claims against it.

We conclude, however, that with respect to the claims of negligence and aiding and abetting a tort against Citizens Bank, judgment was not appropriate at this early stage of the proceedings. Although we describe the facts relevant to each claim at issue in this case in greater detail in the respective discussions of those claims below, the following underlying facts are set forth in the first amended verified complaint complaint. Prior to the transaction at issue here, Go-Best, a corporation organized under the laws of the British Virgin Islands with a usual place of business in Hong Kong, and an affiliated entity had entered twice into transactions with Goldings in which they lent substantial amounts of money that, they were told, was to be used for the purchase of assets in return for interest on the loans and, if the purchases were successful, a share of the profits when the assets were sold.

Go-Best alleges that, seeking to persuade Go-Best of the security of its funds, Goldings offered to hold them in the "Morris M. Goldings Client Account" the client account at Citizens Bank. In each case Go-Best or the. In these two cases, Go-Best and the affiliated entity received back their initial investment as well as what appeared to be interest and a share of purported profits.

Go-Best would receive both interest on the loan and, if the purchase was successful, a portion of the profits, if any. Go-Best asserts that, again, Goldings offered to hold the funds in the client account at Citizens Bank, assuring Go-Best that the funds would be held in trust for Go-Best, and that such accounts were stringently monitored by the bank.

The funds would then be transferred to an escrow account with PaineWebber, Inc. On or about July 14 and July 20, , Go-Best wired the funds in two instalments to the client account. In December, , following multiple inquiries by Go-Best regarding the status of the Starwood deal, Goldings informed Go-Best that he did not invest the loan as promised, that the documents Goldings had executed were fraudulent, that there were no Starwood shares, and that Go-Best's money was gone because he had used it to pay his other debts.

Goldings subsequently pleaded guilty in the United States District Court to multiple counts of mail fraud, wire fraud, and money laundering arising from his fraudulently obtaining funds from clients and from business and professional associates, his conversion of fees payable to his law firm, and his concealment of information from law enforcement and tax authorities.

He was disbarred. BD April 17, judgment of disbarment. As relevant here, Go-Best brought claims in its complaint against Citizens Bank for negligence; misrepresentation; and aiding and abetting breach of fiduciary duty, fraud, and conversion. It brought claims against the partners for aiding and.

Citizens Bank moved to dismiss the complaint for failure to state a claim upon which relief could be granted. The partners moved for summary judgment. A Superior Court judge granted both motions, rulings from which Go-Best now appeals. Standard of review. The judge below disposed of the plaintiff's claims against Citizens Bank on a motion to dismiss under Mass.

In deciding the motion, however, the judge looked beyond the four corners of the complaint. In particular, he relied upon exhibits attached to an affidavit of attorney Erik H. Langeland Langeland affidavit that was submitted by Go-Best along with its opposition to the defendant's motion to dismiss. Although the judge did not purport to convert the rule 12 b 6 motion to dismiss into a motion for summary judgment, "because the judge relied on these supplemental extra-complaint filings in entering dismissal, the ultimate dismissal was, in law, a summary judgment.

Norwegian Cruise Line, Ltd. See Doe v. XYZ Co. Gray v. Giroux, 49 Mass. We may affirm the judgment in favor of defendant Citizens Bank only if the evidence before the motion judge, viewed in the light most favorable to the nonmoving party, establishes that there are no genuine issues of material.

Augat, Inc. Liberty Mut. National Assn. Employees, Inc. First, Go-Best's complaint alleges a cause of action for negligence against Citizens Bank. The elements of a negligence claim are long established. A plaintiff must show that the defendant "owed him a duty of reasonable care, that [the defendant] committed a breach of that duty, that damage resulted, and that there was a causal relation between the breach of duty and the damage.

Brockton Hosp. Goldings Client Account. Insufficiency of funds in a trust account is a reliable signal that funds in that account are at risk of misappropriation, "revealing as it does a telling disparity between entrusted funds and fiduciary expenditures which, in turn, may be, and often is, indicative of trust withdrawals for nontrust purposes.

Amoros, A. Consequently, "[disciplinary] counsel" -- as well as banks that are subject to the requirements of bar oversight authorities, and attorneys who hold client funds -- "nationwide know from experience that a 'bounced check' on a lawyer's trust account is an obvious signal that law clients' money may. Fleet Bank, N. Indeed, Massachusetts, like other States, requires banks maintaining attorney trust accounts to report to bar oversight authorities when they dishonor for insufficiency of funds a check drawn on a trust account.

Evidence in the record viewed in the light most favorable to Go-Best indicates that, in the months leading up to the transfer of funds by Go-Best into the client account, the client account was chronically overdrawn. The bank statement for the period ending February 28, , shows that the account was charged two "insufficient funds fees.

And the statement for the period ending June 28, -- presumably the last one prior to the transfer of Go-Best's funds into the account -- shows that the account was again charged two "insufficient funds fees. Go-Best asserts that Citizens Bank had a duty of care toward those with funds on deposit in the client account and that, in light of overdrafts in it, this duty required it to "make reasonable inquiries," and to take steps to protect funds on deposit in that account.

Go-Best asserts that Citizens Bank breached this duty, and that that breach was a proximate cause of its loss. Duty and breach. In determining the scope of the bank's duty of reasonable care, we apply well-established precepts of depositary bank liability. First, in the ordinary case, banks have no duty to monitor the use of deposit accounts they hold.

See, e. Fidelity Trust Co. See also Newburyport v. First Natl. Bank, Mass. Second, however, where a bank has sufficient notice of wrongdoing, that notice may give rise to a duty on the part of the bank to make further inquiry, see, e. Atlantic Natl. Pilgrim Trust. Thus, for example, the Supreme Judicial Court has said that when a transaction is a "badge of fraud" it may give rise to "a duty" on the part of the bank "to interfere to prevent" a misappropriation.

See ibid. Although there is no Massachusetts case addressing a chronic insufficiency of funds in a client trust account, in applying similar principles in a parallel circumstance there, as a matter of New York law , the United States Court of Appeals for the Second Circuit vacated the dismissal of some of the plaintiffs' complaints against the defendant banks and stated:.

Nevertheless, a bank may be liable for participation in such a diversion, either by itself acquiring a benefit, or by notice or knowledge that a diversion is intended or being executed. Adequate notice may come from circumstances which reasonably support the sole inference that a misappropriation is intended, as well as directly.

Having such knowledge, the bank is under the duty to make reasonable inquiry and endeavor to prevent a diversion. Although small overdrafts [in a client trust account] are generally insufficient to trigger a duty of inquiry, the bank's duty may be triggered by chronic insufficiency of funds. Lerner, F. While we reiterate that banks ordinarily have no duty to monitor the use of funds placed in deposit accounts, under the principles articulated in those Supreme Judicial Court cases, the evidence of Citizens Bank's knowledge of the chronic insufficiency of funds in a client funds account, if proven, would trigger a duty of reasonable care on the part of Citizens Bank to all those who, like Go-Best, subsequently placed funds in that account, to make reasonable inquiry and to endeavor to prevent a diversion.

Kask, Mass. For this reason, summary judgement is rarely appropriate in negligence cases, and is "especially disfavored" where, as here, knowledge is at issue. Pratt v. Martineau, 69 Mass. Viewed in the light most favorable to Go-Best, the evidence in the record raises a question of fact whether Citizens Bank exercised reasonable care when it failed to endeavor to prevent a diversion, which it might have done by complying with applicable Massachusetts Rules of Professional Conduct, adopted by the Supreme Judicial Court, requiring it to report overdrafts on the client account, see Mass.

And a "bank's evident default in the performance of its regulatory obligation to make a report of. The evidence in the record at this summary judgment stage indicates that, although Citizens Bank was aware of the chronic overdrafts in the client funds account, it never reported dishonored checks to the Board of Bar Overseers, nor did it take any steps to investigate the matter.

The evidence indicates that, when confronted about this, Wong was nervous and stated, "I never should have done it. Citizens Bank argues that it owed no duty because this account was not, in fact, a trust account covered by rule 1. It argues in the alternative that it did not know the client account was a trust account, if it was.

An account is a trust account subject to the rules of professional conduct, however, if funds in it are held "for clients and in any other fiduciary capacity in connection with a representation. There is sufficient evidence in the record viewed in the light most favorable to Go-Best indicating that the account held client funds in trust consistent with this definition to present a genuine issue of fact about the nature of the account.

Moreover, this account was also labeled a "client account. Assuming the client account was a trust account, whether Citizens Bank knew or should have known that it was also presents a question for the fact finder. The rules of professional conduct state that "[l]awyers or law firms maintaining trust accounts shall take all steps necessary to inform the depository institution of the purpose and identity of such accounts.

In this case, the evidence indicates that Goldings asked that the account be denominated "Morris M. These facts alone raise a genuine issue as to what Citizens Bank knew or should have known about the nature of the account. Citizens Bank also argues that, even if the client account was a trust account, any duty Citizens Bank had would have extended only to clients of Goldings or MHG whose funds were deposited in the account.

The plaintiff in this case, Go-Best, was not a client. The dissent agrees with Citizens Bank's argument and concludes that the principles articulated in Lerner should apply only where the person whose funds were on deposit in a trust account and who alleges they were lost through the bank's negligence was a client of the attorney or firm holding the funds in that account. Citizens Bank's argument misperceives the nature of the duty.

It is foreseeable that any party that allows its funds to be deposited into a trust account may be injured in the event of a fraudulent scheme of misappropriation, whether or not that party was a client. A nonclient party like Go-Best may have reasonably believed that the client account, by its nature as a trust account, was subject to bank supervision.

Citizens Bank's duty, and its relationship with those whose funds were deposited in the account, has nothing whatever to do with the technical relationship between the depositors and Goldings. The viability of their claims did not depend upon the bank's "actual knowledge" that these depositors were clients with escrow agreements with the bank.

See Lerner, F. Further, and perhaps most important, imposition of a duty running to all whose funds are deposited in client trust accounts, rather than only to clients, does not impose any additional burden upon the bank.

If a bank holds a client account, it is required to take reasonable care in the face of chronic overdrafts. This will be true whether the account exclusively holds client funds or not. Indeed, it is likely that the bank will know nothing about the source of any of the particular funds held at any particular time in any client account.

To limit recovery only to clients thus would immunize a bank proven to have caused through its negligence losses that would otherwise have been actionable on the arbitrary ground that they happen to have been incurred by nonclients. Finally, Citizens Bank argues that application of the principles of our case law to impose a duty in the circumstances alleged would "change the landscape of the banking industry and is plainly unworkable as a matter of public policy.

But the principles we apply today have been similarly applied in New York, the banking center of the United States, where they appear neither to have proven unworkable nor to have led to dramatic consequences for the banking industry. In the absence of evidence to the contrary, this suffices to answer Citizens Bank's objection. Causation and damage. As to causation and damage, there is sufficient evidence in the record, viewed in the light most favorable to the nonmoving party, that Go-Best incurred damage.

This leaves only the question whether the evidence raises a genuine issue whether any such damage was proximately caused by Citizens Bank's negligence. Proximate causation is a question of fact ordinarily left to the jury.

Mullins v. Pine Manor College, Mass. Edwards, 62 Mass. This evidence, taken in the light most favorable to Go-Best, raises a genuine issue of material fact on the question of proximate cause. Citizens Bank argues that a causal connection is lacking because there is no evidence in the record that demonstrates Citizens Bank knew of any specific fraudulent transaction involving the funds Go-Best had transferred to the client account.

The general rule is that a bank has no liability for a fiduciary's misuse of funds in a fiduciary account absent knowledge of that misuse. Fourth Natl. A bank may presume that a fiduciary will apply funds in such an account to their proper purposes. But the allegation here is not that the bank has a general obligation to oversee fiduciary accounts. The allegation here is that, through negligent failure to adhere to its legal duties with respect to client trust accounts, a duty triggered only by the chronic insufficiency of funds in this client account, the bank allowed the account to continue operating with the "client account" moniker, and the protections it implied, such that Goldings was able to continue his fraudulent scheme to Go-Best's detriment.

In order to find proximate causation the jury thus need not conclude that the bank was aware of the specifics of any particular transaction in the account. We emphasize that we are not holding that Citizens Bank was negligent in this case.

That has not been proven, and it is a question on which we express no opinion; it is one for the fact finder. We conclude only that summary judgment should not have entered on Go-Best's claim of negligence against Citizens Bank and that it must be reversed. Aiding and abetting. In light of the evidence described above, again taken in the light most favorable to Go-Best, the portion of the order dismissing Go-Best's claim against Citizens Bank for aiding and abetting Goldings's fraud, breach of fiduciary duty, and conversion must also be reversed.

Given the evidence that an employee of Citizens Bank intentionally and improperly transferred money into the client account, whether Citizens Bank knew of Goldings's fraudulent use of the client account presents a genuine issue of a material fact. In dismissing these claims, the judge erroneously concluded that the knowledge requirement of aiding and abetting liability cannot be satisfied without proof of Citizens Bank's knowledge of Goldings's particular alleged misuse of Go-Best's funds.

Such a reading is too narrow. Our law requires only that "the defendant actually knows about 'its substantial, supporting role in an unlawful enterprise. Miles, Inc. Philip Morris, Inc. As described above, the chronic overdrafts and insufficiency of funds in the client account demonstrated a very high likelihood of the misuse of the account by Goldings.

See post at n. But again, this misperceives the significance of the character of the person or entity whose funds are on deposit in a client trust account. The ordinary rule is that a tortfeasor is liable for the reasonably foreseeable consequences of its actions. If Go-Best's claims are proven, the injury to any and all individuals with funds on deposit in the client account would have been reasonably foreseeable.

Again, this is not to say that Citizens Bank did indeed provide knowing assistance to Goldings. That has not been proven. But there is at least a genuine issue of material fact about Citizens Bank's state of mind. Turning to the misrepresentation claim, Go-Best argues before us that Citizens Bank's act of labeling the client account "client account" amounted to the provision by Citizens Bank of false information because it did not provide the oversight that, Go-Best argues, that label implies, and that Go-Best relied upon that misrepresentation to its detriment.

Citizens Bank argues that the complaint does not satisfy the heightened pleading standard of Mass. We agree. In various places in the complaint it is alleged that the client account was maintained at Citizens Bank and was labeled "client account," that Go-Best reasonably believed this was a trust account monitored by the bank, that "Goldings had been using the Citizens Bank client funds account to perpetrate criminal activity with the help of Citizens Bank's employees," and that Go-Best reasonably relied to its detriment on "its understanding of the nature" of the client account.

Go-Best appears to argue that it can be inferred from the complaint, though it is never in terms asserted, that Citizens Bank falsely labeled the account "client account," and that it did so with knowledge of that falsity. Nonetheless, the complaint does not anywhere allege that Citizens Bank even through Goldings provided Go-Best any material that had the name of the account on it. Citizens Bank similarly concealed the fraudulent and unlawful activity that had occurred through Goldings' trust account.

The primary purpose of rule 9 b is to place the defendant in a fraud case on notice of the specific acts that are alleged to have been fraudulent. In this case the complaint did not "warn[] [Citizens Bank] adequately concerning the particular statements which constituted the alleged fraud so that they could prepare their defense.

Jablonski, Mass. Consequently, summary judgment on the misrepresentation count was properly granted. Conversion and accounting. Finally, summary judgment also properly entered on the other two claims against Citizens Bank. Indeed, Go-Best does not seem to contend otherwise. The evidence is insufficient to create a genuine issue of material fact whether Citizens Bank itself failed to return Go-Best's funds when they were in its possession and Go-Best requested their return, which would be essential to a judgment against Citizens Bank for conversion of the plaintiff's funds.

See Marshall Vessels, Inc. Wright, Mass. See also Gossels v. Fleet Natl. Similarly, there is no evidence to raise a genuine issue whether there was a fiduciary relationship between Go-Best and Citizens Bank. This is an essential element of the cause of action for an accounting. See Ball v. Harrison, Mass. Omni Publications Intl. Summary judgment in favor of Citizens Bank on these counts, as well as on the misrepresentation count, will be affirmed.

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