Everest Investors 8 v. Whitehall Real Estate Limited Partnership XI

The question on this appeal is whether a nonfiduciary defendant can be liable for conspiring with a fiduciary defendant to breach the fiduciary’s duty to the plaintiff. The answer, in our view, is sometimes yes and sometimes no. When the nonfiduciary is an agent or employee of the fiduciary, the nonfiduciary is entitled to the benefit of the “agent’s immunity rule” (and thus not liable on a conspiracy theory) unless the nonfiduciary was acting for its own benefit. If the nonfiduciary is neither an employee nor agent of the fiduciary, it is not liable to the plaintiff on a conspiracy theory because a nonfiduciary is legally incapable of committing the tort underlying the claim of conspiracy (breach of fiduciary duty). Since the answer in this case is “no,” we affirm the order of dismissal that is the subject of this appeal.

Facts

A.

Everest Investors 8, LLC (and related entities included in our references to Everest) sued McNeil Investors, Inc. (and related individuals and entities included in our references to the General Partners, all of whom were in one way or another involved with several McNeil limited partnerships), and Whitehall Real Estate Limited Partnership XI…