“A fiduciary relationship is one founded upon trust or confidence reposed by one person in the integrity and fidelity of another. It is said that the relationship exists in all cases in which influence has been acquired and abused, in which confidence has been reposed and betrayed. The rule embraces both technical fiduciary relations and those informal relations, which exist whenever one man trusts in, and relies upon, another. Such a relationship might be found to exist, in appropriate circumstances, between close friends or even where confidence is based upon prior business dealings.” Hoyle v. Diamond, 947 F.2d 595 (2013).
The Virginia Stock Corporation Act, Va. Code § 13.1-673 et seq., and the Virginia Non-Stock Corporation Act, Va. Code § 13.1-853 et seq., mandate that the business of a corporation be managed under the direction of its board of directors (the “Board”).
In the case of the Virginia Limited Liability Company Act, it can be Members or Managers. Therefore, directors, officers or managers of Virginia LLCs and corporations owe certain common law and statutory duties to the corporation and its shareholders in their capacities as fiduciaries. Unlike Delaware law, Virginia law does not impose fiduciary duties between shareholders or between the board and minority shareholders.
To state a claim for a breach of fiduciary duty under Virginia law, you must allege:
Under Virginia law a breach of fiduciary duty claim is subject to the two-year limitations period of section 8.01-248. Fiduciary Duty claims can be sub-classified into two primary categories.
Virginia’s Stock Corporation Act provides that “A Director shall discharge his duties as a Director, including his duties as a member of a committee, in accordance with his good faith business judgment of the best interests of the Corporation.” §13.1-690.A. The Duty of Care, thus, is the affirmative duty of a Director to make informed decisions for the Corporation, after using reasonable diligence in gathering and considering material information.
Although the duty of care is sometimes expressed in terms of a fiduciary duty, it does not rise to the standard of care required of a trustee (Williams v. Fidelity Loan & Savings Co., 142 Va. 43, 128 S.E. 615 (1925). Neither the Virginia Code nor the Model Business Corporation Act categorizes the directors’ duties in terms of a fiduciary relationship. Nevertheless, the prevailing law in Virginia is clear that directors and officers must exercise some degree of care and prudence in the protection and management of corporate assets.
Case Law Examples:
The duty of loyalty has to do with the relationship between the director and the corporation or, if any, its stockholders. In dealings with the corporation or with the stockholders as a group, the director (or officer) has the same duty of fidelity which arises in dealings between a trustee and his beneficiaries( Adelman v. Conotti Corporation, 215 Va. 782, 21 S.E.2d 774 (1975); Giannotti v. Hamway, 239 Va. 14, 387 S.E.2d 725 (1990).
Furthermore, according to the Virginia Stock Corporation Act (Va. Code Ann. § 13.1-690): “A director shall discharge his duties as a director, including his duties as a member of a committee, in accordance with his good faith business judgment of the best interests of the corporation.”
This essentially means that “a director of a private corporation cannot directly or indirectly, in any transaction in which he is under a duty to guard the interests of the corporation, acquire any personal advantage, or make any profit for himself, and if he does so, he may be compelled to account therefor to the corporation” (Rowland v. Kable, 174 Va. 343, 6 S.E.2d 633, 642 (1940).
Director Conflict of Interests
Under Virginia law there is no business judgment rule shield to protect directors and officers from breach of duty of loyalty claims. Instead, once the plaintiff pleads the existence of a personal benefit to the director, the burden shifts to the D/O to prove that the transaction was fair to the corporation. In Willard v. Moneta Bldg. Supply, 515 S.E.2d 277, 287, 258 Va. 140 (Va., 1999) the court noted that
No inflexible rule can be established by which to test the “fairness” of a transaction. It depends largely on the nature and circumstances of the business action. But generally, a director must act in good faith, and the transaction must, “as a whole, [be] open, fair and honest at the time it was consummated.” Deford v. Ballentine Realty Corp., 164 Va. 436, 449, 180 S.E. 164, 169 (1935)…In sum, a transaction in which a director has a conflict of interests should bear “the earmarks of an arm’s length bargain” in order to be deemed “fair to the corporation” under Code § 13.1-691(A)(3). Pepper v. Litton, 308 U.S. 295, 306-07, 60 S.Ct. 238, 84 L.Ed. 281 (1939).
Virginia law is favorable to directors and officers compared to other states like Delaware. The applicable Virginia Code § 13.1-690 states:
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