breach of fiduciary duty - practising law institute（违反信托责任u2014u2014执业法律研究所）.pdf

7 Breach of Fiduciary Duty § 7:1 General § 7:1.1 Potential Advantages to Bringing a Fiduciary Duty Claim § 7:1.2 Fiduciary Relationship Defined § 7:1.3 Circumstances in Which Accountant Is Not a Fiduciary § 7:1.4 Circumstances in Which Accountant Is a Fiduciary [A] Renders Personal Financial, Investment, or Tax Advice [B] Manages Client Assets or Business [C] ERISA Fiduciary § 7:1.5 Duties of a Fiduciary [A] Duty of Loyalty [B] Duty to Disclose Relevant Facts and Render Accounts [C] Duty of Due Care [D] Duty to Maintain Client Confidences § 7:2 Elements of Claim § 7:2.1 Existence of a Fiduciary Relationship § 7:2.2 Breach of a Fiduciary Duty § 7:2.3 Damages Resulting from Breach [A] Compensatory Damages [B] Punitive Damages [C] Prejudgment Interest § 7:2.4 Other Available Remedies [A] Avoidance of Contract [B] Restitutionary Recovery [C] Injunctive Relief [D] ERISA Remedies § 7:3 Affirmative Defense: Statute of Limitations § 7:4 Participation by an Accountant in Another Party’s Breach of Fiduciary Duty § 7:5 Apportionment and Contribution (Goldwasser Arnold, Rel. #13, 10/10) 7– 1 § 7:1 ACCOUNTANTS’ LIABILITY § 7:1 General An accountant who is a fiduciary is liable where he or she breaches his or her fiduciary duties to a client. A claim for breach of fiduciary duty is generally based upon state law, although at least one federal statute may give rise to fiduciary liability under certain circumstances, as discussed below.1 However, in appropriate cases even a state-law- based claim for breach of fiduciary duty may be brought in federal