Breach of Fiduciary Duty. Lack of Temporal Limit in Extension Clause; Forfeiture; Undue Delay; Prejudice; Futility. * * * * * * * * * * * * * * * * * * * * * * * * Xxxxxxx X. Xxxx and Xxxxxx X. Xxxxxx, Aegis Law Group, LLP, 000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, X.X., 00000, for Plaintiff. Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxx, Xxxxxx X. Xxxxxx, and Xxxxxxx X. Xxxxxxx, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, D.C., 20044, for Defendant. MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S MOTION FOR LEAVE TO AMEND ANSWER TO ASSERT COUNTERCLAIMS
Breach of Fiduciary Duty. On Justifiable Expectations of Loyalty and Their Consequences, 48 Ariz. L. Rev. 925, 950 (2006). Agents, therefore, generally do not owe a fiduciary duty to their principals in constructing the terms of the agent’s employment and compensation. Restatement (Second) of Agency § 390 cmt. e (1958); see also Action Real Estate Corp. x. Xxxxxxxx, 000 X.X.0x 502, 504 (Iowa 1981) (finding that no fiduciary duty exists under Iowa law requiring that a real estate agent explain the terms of a real estate brokerage agreement). A fiduciary duty may arise in the negotiation of the agency contract where the circumstances show that the “creation of the relationship involves peculiar trust and confidence, with reliance by the principal upon fair dealing by the agent” in drafting the agreement. Restatement (Second) of Agency § 390 cmt. e; see also Restatement (Third) of Agency § 8.11 cmt. c. The Second Restatement provides the following illustration of this type of fiduciary duty: P, an ignorant person, visits A, an attorney, asking for advice concerning the prosecution of a claim. A honestly advises P to bring suit but obtains from P a promise to pay A an exorbitant sum in compensation, representing tacitly that it is the usual fee for such services. The transaction between A and P is rescindable if A has taken advantage of his position as the adviser of P to obtain an unduly large compensation. Restatement (Second) of Agency § 390 cmt. e, Illustration 6. So too, the Supreme Court of Illinois upheld a trial court’s finding that an agent owed a fiduciary duty to disclose the meaning of its fee agreement where an investment firm trading in commodity options represented that, unlike other firms, it was not charging exorbitant commissions when, in fact, the firm concealed the true extent of its profit by disguising a portion of its compensation as an ambiguous “foreign service fee.” Xxxxxx x. Xxxxxxx Commodities, Inc., 000 X.X.0x 734, 738-41 (Ill. 1994). Defendant has not alleged any facts or legal authority showing that Plaintiff owed Defendant a fiduciary duty in creating the brokerage agreement at issue. The Restatement only suggests finding a pre-agency fiduciary duty where the principal places “peculiar trust and confidence” in the agent during the negotiation of the brokerage agreement, and this fiduciary duty is imposed to protect vulnerable and unknowledgeable parties from an agent’s potential attempt to strike an unfair bargain. As an independent establishment of the ...
Breach of Fiduciary Duty. A breach of the Indemnitee’s fiduciary duty, except, to the extent permitted under the Companies Law, for a breach of a fiduciary duty while the Indemnitee acted in good faith and had reasonable grounds to assume that such act would not harm the Company’s interests;
Breach of Fiduciary Duty. Any fiduciary who, while acting as or serving as a fiduciary, breaches any of the responsibilities, obligations or duties imposed upon him or her by the Trust Agreement or by law shall be personally liable to make good to the Trust any losses resulting from such breach, and to restore to the Trust any profits which may have been made through the use of the Trust assets. In addition, such fiduciary shall be subject to other equitable or remedial relief as the court may deems appropriate, including his or her removal as a fiduciary, and reimbursement to the Trust of attorneys’ fees and costs incurred by the Trust as a result of a breach of fiduciary responsibility by a Trustee. The Trust may, on advice of counsel, utilize Trust assets to pay attorney’s fees and costs incurred in the defense of an individual Trustee accused of breaching his or her fiduciary responsibility, provided that such Trustee consents, by written agreement, to reimburse the Trust for such attorneys fees and costs if such trustee is found by a court of competent jurisdiction, after all appeals have been exhausted or the time for same has run, to have in fact breached his or her fiduciary responsibility to the Trust and /or its participants.
Breach of Fiduciary Duty. Any breach of fiduciary duty of the Managing Member.
Breach of Fiduciary Duty. 26. The Receiver incorporates paragraphs 1 through 25 as if fully set forth herein.
Breach of Fiduciary Duty. No director of the Company will be liable to the Company or the stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability is not permitted by Section 102 of the General Corporation Law of the State of Delaware, as amended from time to time.
Breach of Fiduciary Duty. (a) General Principle Governing Liability to Account 95. The principle, accepted by the courts below, is that the fiduciary cannot be permitted to retain a profit or benefit which he has obtained by reason of his breach of fiduciary duty (Consul Development, at p.393; Queensland Mines, at p.401). A fiduciary is liable to account for a profit or benefit if it was obtained (1) in circumstances where there was a conflict, or possible conflict of interest and duty or (2) by reason of the fiduciary position or by reason of the fiduciary taking advantage of opportunity or knowledge which he derived in consequence of his occupation of the fiduciary position.
Breach of Fiduciary Duty. Khoobehi Properties argues that Louisiana law clearly obligates limited liability companies like Baronne Development to disclose material information about the LLC to members like Khoobehi Properties, and imposes liability on the LLC when that duty is breached by a member or other representative of the LLC. Khoobehi Properties’ position is unsupported by Louisiana law. None of the provisions of the Louisiana Limited Liability Companies Act, La. R.S. 12:1301 – 12:1370, state that the LLC owes a fiduciary duty to its members. Because the LLC is a fictional juridical entity, it can act only through its members; therefore, the statutes set forth the duties that members of the LLC owe to each other, not duties that the LLC owes to its members. La. R.S. 12:1314(A)(1) states that the manager “[s]hall be deemed to stand in a fiduciary relationship to the limited liability company and its members and shall discharge his duties in good faith, with the diligence, care, judgment, and skill which an ordinary prudent person in a like position would exercise under similar circumstances.” As the managing member of Baronne Development, KFLP owed the fiduciary duty to its fellow members of the LLC, including Khoobehi Properties. To argue that the LLC itself owes a fiduciary duty to its members is to essentially posit that all of the members of the LLC have a fiduciary duty to themselves and to all of their fellow members, which is clearly contrary to the plain language of La. R.S. 12:1314. Accordingly, we find that the facts as alleged in Khoobehi Properties’ petition do not set forth a cause of action against Baronne Development for breach of fiduciary duty.
