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advisors aided and abetted any underlying breach of fiduciary duty fails.146 As important,

a claim for aiding and abetting involves the element that the aider and abettor have

“knowingly participated” in the underlying breach of fiduciary duty.147 The complaint is

devoid of facts suggesting that any of the defendant advisors had any reason to believe

they were assisting in a breach of fiduciary duty against Trenwick America, a wholly-

owned subsidiary of Trenwick, by acting in the capacities they did for Trenwick, in

particular in connection with non-self dealing mergers involving Trenwick’s acquisition

of other public companies.

Second, for identical reasons, the count in the complaint purporting to state a

claim for “conspiracy to breach fiduciary duties” is equally defective.

Third, the fraud count in the complaint fails against the defendant advisors for the

same reasons it fails against the Trenwick and Trenwick America directors. The

allegations in the complaint do not satisfy Rule 9(b) and Trenwick America as an entity

could not have reasonably relied to its detriment on statements of fact its board and sole

owner allegedly knew to be false. Thus, without an underlying claim of fraud, the claim

that the defendant advisors conspired with the boards of directors also fails.

146

,

, 780 A.2d 1075, 1096-97 (Del. 2001) (explaining the

existence of a viable underlying claim for breach of fiduciary duty is a necessary element of an

aiding and abetting claim).

147 (“A third party may be liable for aiding and abetting a breach of a corporate fiduciary's duty to the stockholders if the third party ‘knowingly participates’ in the breach.”) (citing

, 490 A.2d 1050, 1057 (Del. Ch. 1984)); 519 A.2d 116, 131 (Del. Ch. 1986) (dismissing aiding and abetting and conspiracy to breach

,

fiduciary duty claim because the plaintiff did not establish the defendants knowingly participated

in the breach).

82

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