Civil Liability for Aiding and Abetting

Civil liability for aiding and abetting provides a cause of action that has been asserted with increasing frequency in cases of commercial fraud, state secundes actions, hostile takeovers, and, most recently, in cases of businesses alleged to be supportive of terrorist activities. The U.S. Supreme Court, in its 1994 decision in Central Bank of Denver, N.A. v. First Interstate Bank of Denver, ended decades of aiding and abetting liability in connection with federal secundes actions. However, the doctrine since has flounshed in suits arising from prominent commercial fraud cases, such as those concerning Enron Corporation and Parmalat, and even in federal secundes cases some courts continue to impose relatively broad liability upon secondary actors. This article reviews Central Bank and its limitations, before turning to an analysis of the elements of civil liability for aiding and abetting fraud. The article then similarly identifies and analyzes the elements of liability for aiding and abetting breach of fiduciary duty, which predominantly concerns professionals, such as accountants and attorneys, that are alleged to have assisted wrongdoing by their principal. The analysis then examines aiding and abetting liability in the context of particular, frequently -occurring, factual matrices, including banking transactions, directors and officers, state securities actions, and terronsm. The article concludes by summarizing emerging pn'nciples evident from judicial decisions applying this very flexible and potent source of civil liability.