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Measuring and Defending Economic Damages in Breach of Fiduciary Duty Tort Claims Casey D

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Measuring and Defending Economic Damages in Breach of Fiduciary Duty Tort Claims Casey D Fiduciary Duty Thought Leadership Best Practices Discussion Measuring and Defending Economic Damages in Breach of Fiduciary Duty Tort Claims Casey D. Karlsen and Jacob Jackson, Esq. Breach of fiduciary duty tort claims often incorporate complex legal topics and damages analyses. Some of these legal and damages-related topics are summarized in this discussion. From a legal perspective, this discussion summarizes the law under which a plaintiff may seek to recover economic damages, the circumstances where lost profits may be awarded, and the effect on damages of a heightened standard of care placed on fiduciaries. This discussion then presents three methods that analysts commonly use to measure economic damages—the before-and-after method, the yardstick (or comparable) method, and the sales projections “but for” method. NTRODUCTION awarded, and the effect on damages of a heightened I standard of care placed on fiduciaries. A fiduciary relationship is one in which one party This discussion also summarizes three methods holds a legal or ethical relationship of trust with for measuring economic damages: another party (or group). Asset managers, trustees, and banks are a few of the common fiduciaries. 1. The before-and-after method Fiduciaries usually have power over the assets of 2. The yardstick method beneficiaries, who may or may not hold legal title 3. The sales projections method to those assets. The trust fiduciary is under significant obliga- This discussion summarizes the variables that tions to: damages analysts may consider when measuring lost 1. put the beneficiary’s interest first, profits in breach of fiduciary duty tort claims. 2. avoid conflicts of interest, and Finally, this discussion integrates these topics 3. not profit without the beneficiary’s knowl- into an illustrative example. edge and consent. LEGAL LIABILITY BACKGROUND When the fiduciary’s actions cause a break in this trust (a “bad act”), the beneficiary may bring a legal cause of action and may pursue lost profits. Sources of Law The path to recovering lost profits is somewhat To understand legal liability in the context of a unique to a breach of fiduciary duty. breach of fiduciary duty, legal liability and standards This discussion summarizes the law under which of care should first be understood. Broadly, legal a plaintiff may seek to recover economic damages, liability arises from one of two bodies of law: tort the circumstances in which lost profits may be law or contract law. www .willamette .com INSIGHTS • SPRING 2018 19 Contract law provides forward-looking remedies of a contract are essentially the duty of each party. with the intent of placing the wronged party in the The concept of duty is commonly used in the tort position in which they would have been, had the law context. other party not breached the deal. On the other hand, tort law is restorative and Determining the Duty of a Defendant attempts to place a wronged party back to where The process of defining a duty depends on the type they were before the harm. In this way, contract of legal action. A defendant’s duty in a contract is law is forward looking and tort law is rearward look- typically easier to ascertain than in a tort dispute, ing. assuming a well-written contract. What a potential To know which body of law to apply to a situa- defendant needs to do to avoid liability can literally tion, legal counsel typically looks to whether or not be in black and white. there is a contract. If there is a contract that has The duty in tort law is sometimes fluid and guid- been breached, contract law applies. Where some- ed by vague standards. A common, and the lowest, one has been harmed in a way that was not a breach duty is to act as a reasonable person. That is, gener- of contract, tort law applies. ally, everyone in every situation has a duty to exer- As with most legal matters, exceptions abound. cise reasonable caution against every reasonably In the case of fiduciary relationships, many states foreseeable plaintiff. Understandably, many lawsuits have adopted laws allowing for tort claims even have revolved around the concept of reasonableness when a contract exists. States have also adopted to identify what the defendant’s duty actually was. laws providing for certain duties and obligations, Where states have created tort causes of action, whether or not these items actually appeared in the the duty element is often written into state statutes. disputed contract or were even agreed to by the par- The courts will interpret these statutes, but usu- ties of the complaint. ally duty is more precisely defined in these circum- States commonly have laws that provide specific stances. guidelines for damages in a breach of fiduciary duty Generally, the process to determine legal duty in case. a breach of fiduciary duty is summarized as follows. To sum up the three types of applicable law: First, legal counsel may look to state statutes for contract law applies when a contract exists, tort law specific duties. Second, legal counsel may then look applies when a contract does not exist, and state to whether or not a contract existed between fidu- laws can modify or define those contracts and tort ciary and beneficiary. If so, the duty owed could be claims. one or a combination of these two sources. Finally, if neither state statutes nor contracts apply, then legal Elements of a Cause of Action counsel may analyze whether or not the fiduciary dropped below a reasonable standard of care, as At their cores, both contract law and tort law gener- defined by the local courts. ally require four basic elements to be shown by the party bringing a lawsuit: 1. A duty owed by the defendant to the plain- Statutory Duties Owed by a Fiduciary tiff in Washington and Oregon 2. A breach of that duty A fiduciary relationship is sacred to many states. 3. Damage to the plaintiff (whether monetary The concept of reasonableness is replaced by a duty or otherwise) of loyalty and other duties depending on the exact 4. A causal link between the breach of duty relationship. and the damage A trustee-beneficiary relationship is a good example of a fiduciary relationship. A trustee has a duty to keep beneficiaries reasonably informed These four basic elements are the building about the status of the trust, avoid personal con- blocks of nearly every civil lawsuit. flicts, and other specific requirements. Because Of these four basic elements of contract law and states may have differing laws on fiduciary duties tort law, duty reigns king. Plaintiffs want the duty and damages, this discussion focuses on Washington to be broad and expansive—while defendants want and Oregon. the duty to be defined very narrowly to show their Washington imposes duties on trustees which actions were not in violation of any duty. specifically include a duty to inform the beneficia- In a contract claim, the concept of duty is ries of “facts necessary for them to protect their replaced with the existence of a contract. The terms interests” and to “administer the trust solely in 20 INSIGHTS • SPRING 2018 www .willamette .com the interests of the beneficiaries” amongst many facts. The Washington Supreme Court stated in the other specific guidelines (RCW 11.98.072(1) and Larsen v. Walton Plywood Co. case, “lost profits will RCW 11.98.078(1)). Oregon has statutes with near- not be denied merely because a business is new if ly identical language (ORS 130.710(1) and ORS factual data is available to furnish a basis for com- 130.655(1)). putation of probable losses.”3 Washington and Oregon similarly provide guide- The sort of lost profits data discussed in the lines for damages in the trustee-beneficiary context. Larsen decision was expert testimony based on They both state, in similar words, that a trustee speculative sales numbers which assumed the plain- who breaches their duties related to a trust is liable tiff had sales volumes disproportionate to competi- for the greater of the cost to restore the trust to the tors. The court found that this was not sufficient fac- pre-breach condition or the profit the trustee made tual data as a result of the underlying speculations. through breaching the trust.1 In Gillespie v. Seattle-First National Bank, In this way, both states take a traditional torts another Washington case, the court stated the approach to damages, but also give the beneficiary degree of proof required for lost profit recovery. the profit of the bad act, if that profit was greater “[L]ost profits must be proven with reasonable cer- than the actual damages. tainty, or conversely, damages which are remote and Breaches of fiduciary duties take many forms speculative cannot be recovered.”4 and result from several types of fiduciary relation- In the Gillespie case, the court recognized the ships. As a result, legal counsel may analyze state difficult balance between this heightened standard statutes for heightened duties owed by fiduciaries and the difficulty of proving lost profits. It stated and for increased damages when a breach of fidu- that a “[p]laintiff must produce the best evidence ciary duty occurs. available and if it is sufficient to afford a reasonable basis for estimating his loss, he is not to be denied a substantial recovery because the amount of the LOST PROFITS CONSIDERATIONS damage is incapable of exact ascertainment.” In most civil cases, a plaintiff only needs to prove In the Gillespie decision, the court also went on the facts by a preponderance of the evidence. to discuss expert testimony. The court discussed Whether an issue is being decided by a judge or both: jury, the finder of fact need only to conclude that 1.
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