Boston Children's Heart Foundation, Inc. v. Nadal-Ginard

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1053

BOSTON CHILDREN'S HEART
FOUNDATION, INC.,

Plaintiff - Appellee,

v.

BERNARDO NADAL-GINARD,

Defendant - Appellant.

No. 95-1136

BOSTON CHILDREN'S HEART
FOUNDATION, INC.,

Plaintiff - Appellant,

v.

BERNARDO NADAL-GINARD,

Defendant - Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Selya and Boudin, Circuit Judges,

and Lisi,* District Judge.

* Of the District of Rhode Island, sitting by designation.

Laura Steinberg, with whom Cynthia M. Clarke, Katherine J.

Ross, Lisa F. Sherman and Sullivan & Worcester were on brief for

Bernardo Nadal-Ginard.
Alexander H. Pratt, Jr., with whom Paul R. Devin, James H.

Belanger, Robin E. Folsom, William M. Cowan and Peabody & Arnold,

were on brief for Boston Children's Heart Foundation, Inc.

January 12, 1996

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LISI, District Judge.
LISI, District Judge.

I. INTRODUCTION
I. INTRODUCTION

These appeals present us with the classic tale of a corporate

officer who, when caught using corporate funds for personal gain,

resists making amends for his misdeeds. In this instance, Dr.

Bernardo Nadal-Ginard was alleged to have misappropriated the

funds of the corporation of which he had served as both an

officer and director, the Boston Children's Heart Foundation

("BCHF"). Following an eighteen-day bench trial, the district

court found that Nadal-Ginard violated his fiduciary duties to

BCHF, and entered judgment in its favor in the amount of

$6,562,283.02. Notwithstanding allegations of error by both

parties, we affirm the district court s decision.

II. BACKGROUND
II. BACKGROUND

Plaintiff-appellee BCHF is a non-profit corporation organized for

the purposes of conducting medical research in the field of

cardiology and providing medical services to patients at Boston

Children's Hospital ("Hospital"), a teaching hospital affiliated

with Harvard Medical School ("Medical School"). The defendant-

appellant, Nadal-Ginard, was the president and a member of the

Board of Directors of BCHF ("Board"). Nadal-Ginard was also

Chairman of the Department of Cardiology ("Department") at the

Hospital, as well as a member of the faculty of the Medical

School.

Nadal-Ginard first became associated with these

entities in 1982, when he accepted the chairmanship and faculty

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position. Approximately one year later, with the assistance of

Boston attorney Douglas Nadeau, BCHF, a tax-exempt Massachusetts

corporation created to conduct the Department's clinical

activities, was organized.1 Like the other departments'

corporations, the Operating Agreement between the Hospital and

BCHF explicitly acknowledged the independent status of the

foundation. Indeed, control of the foundation was given to

BCHF's three directors: Nadal-Ginard, Donald Fyler, and Michael

Freed.2 Nadal-Ginard also served as president of BCHF until

1993, when the circumstances leading to this litigation began to

surface.

In addition to his duties at the Hospital, Medical

School, and BCHF, Nadal-Ginard accepted a position as an

investigator with the Howard Hughes Medical Institute ("HHMI") in

1986. In this position, he directed the activities of the Howard

Hughes Medical Institute Laboratory of Cellular and Molecular

Cardiology at the Hospital. Nadal-Ginard received a substantial

salary and some optional fringe benefits as compensation for his

services.

1 In 1980, the Hospital's Board of Trustees had adopted a Group
Practice Policy Statement which permitted the Hospital's
individual departments to conduct their clinical activities
through tax-exempt corporations established pursuant to chapter
180 of the Massachusetts General Laws. At the time BCHF was
established in 1983, several other corporations already had been
formed, all with the assistance of Nadeau. Twelve of the
Hospital's fifteen departments ultimately established chapter 180
corporations.

2 Fyler served on the Board until his retirement in 1989. On
December 31, 1989, James E. Lock was named as Fyler's
replacement.

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There were never any questions as to Nadal-Ginard's

qualifications as a scientist and a physician. Several questions

did arise, however, with respect to certain actions Nadal-Ginard

took with respect to setting his salary, establishing a severance

benefit plan, and using BCHF funds for personal expenses. On

November 12, 1993, BCHF filed suit claiming that Nadal-Ginard

breached his fiduciary duties to the corporation.3 Following a

bench trial, the district court found most of the allegations to

be true and awarded damages to BCHF.

On appeal, Nadal-Ginard alleges that the district court

committed a plethora of errors in deciding in favor of BCHF.

BCHF cross-appeals on several issues which the district court

decided in favor of Nadal-Ginard. We examine each of these

alleged errors in the context of their common factual bases.

III. BCHF SALARY CLAIMS
III. BCHF SALARY CLAIMS

Nadal-Ginard's first allegation of error relates to the

district court's finding that he violated his fiduciary duties to

BCHF by setting his BCHF salary without making any disclosure to

the Board of his receipt of an annual salary from HHMI. The BCHF

Articles of Organization authorized the payment of reasonable

compensation to its employees and members. The Hospital's Group

Practice Policy Statement defined the procedures to be used in

calculating the compensation, delegating exclusive authority to

the BCHF president to determine the compensation levels of all

3 BCHF filed its complaint in Massachusetts Superior Court.
Pursuant to Nadal-Ginard's motion, the case was removed to the
United States District Court on November 29, 1993.

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BCHF members, including his or her own compensation. During his

tenure, Nadal-Ginard acted in accordance with the provisions

contained in these documents.

The district court found that Nadal-Ginard's setting

his own salary constituted a self-interested transaction under

Massachusetts law. As such, the validity of this action depended

on whether the other Board members had approved the corporate

action after receiving all information relevant to the decision.

Finding that Nadal-Ginard failed to disclose his HHMI income to

the other Board members, information the court found material to

any discussion by the Board regarding the appropriate amount of

his BCHF compensation, the court held that Nadal-Ginard violated

his fiduciary duties. Accordingly, the court awarded damages

equal to three years of his BCHF salary, an amount totaling

$801,172.90.

Nadal-Ginard alleges that the district court committed

two errors relating to his BCHF salary. First, he challenges the

court s finding that he breached any fiduciary duties through his

participation in the Board's salary decision. Second, he argues

that the district court erred in denying a quantum meruit offset

to any liability arising from such participation. We address

these contentions separately.

A. Breach of Fiduciary Duty
A. Breach of Fiduciary Duty

Nadal-Ginard contends that the district court ignored

"well-established law and stipulated facts" in finding that he

breached his fiduciary duties to BCHF with respect to his BCHF

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salary. Specifically, he argues that his compensation was at all

times "fair and reasonable" in light of the services he rendered,

precluding any such finding. We disagree.

The basic standard of care of corporate officers or

directors is well-established under Massachusetts law. In

essence, it is the "standard of complete good faith plus the

exercise of reasonable intelligence." Murphy v. Hanlon, 79

N.E.2d 292, 293 (Mass. 1948). Under this standard, officers or

directors are not responsible for mere errors of judgment or want

of prudence in the performance of their duties. See Sagalyn v.

Meekins, Packard & Wheat, Inc., 195 N.E. 769, 771 (Mass. 1935).

Further, if officers or directors act in good faith, albeit

imprudently, they are not subject to personal liability absent

clear and gross negligence in their conduct. See Spiegel v.

Beacon Participations, Inc., 8 N.E.2d 895, 904 (Mass. 1937).

This basic standard of care is enhanced in situations

when an officer or director engages in self-dealing. See Johnson

v. Witkowski, 573 N.E.2d 513, 522 (Mass. App. Ct. 1991). Courts

subject these transactions to "vigorous scrutiny," obligating the

officers or directors to prove two elements: first, that the

officer or director acted in good faith with respect to the

transaction; and, second, that the transaction is inherently fair

from the corporation s point of view.4 Crowley v.

4 We stop at this point to note the fact that the district court
correctly found that corporate bylaws permitting conflicts of
interest by its officers or directors do not relieve that
individual of his obligation to act in good faith. See, e.g.,

Spiegel v. Beacon Participations, Inc., 8 N.E.2d 895, 907 (Mass.

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Communications for Hospitals, Inc., 573 N.E.2d 996, 1000 (Mass.

App. Ct. 1991); see also Winchell v. Plywood Corp., 85 N.E.2d

313, 317 (Mass. 1949). The former element requires a corporate

officer to fully and honestly disclose any information relevant

to the transaction, thereby permitting a disinterested decision

maker to exercise informed judgment. See, e.g., Dynan v. Fritz,

508 N.E.2d 1371, 1378 (Mass. 1987); Cooke v. Lynn Sand & Stone

Co., 640 N.E.2d 786, 791 (Mass. App. Ct. 1994). The latter

element emanates from the officer's or director's responsibility

"to refrain from taking an undue advantage of the corporation,"

and gives rise to a fiduciary breach in a situation where an

officer determines his or her salary when that individual s

salary exceeds the fair value of services rendered. Sagalyn v.

Meekins, Packard & Wheat, Inc., 195 N.E. at 771; see also Heise

v. Earnshaw Publications, 130 F. Supp. 38, 40 (D. Mass. 1955).

The district court found a lack of good faith on

Nadal-Ginard's part as a result of two factual findings: first,

that Nadal-Ginard failed to disclose his HHMI salary and benefits

to the other BCHF directors; and, second, that this information

was material to any decision concerning the amount of Nadal-

Ginard's BCHF salary. We accept the former as true, as Nadal-

1937) (stating that organic documents which create conflicts of
interests for directors or officers provide no immunity to those
individuals for acting in bad faith). We need not elaborate on
this finding, as it is not challenged on appeal.

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Ginard alleges no error with respect to this finding.5 Nadal-

Ginard suggests error with respect to the latter finding,

however, arguing that the district court reached this conclusion

because it erroneously believed that BCHF and HHMI paid him for

the same or related research activities. Specifically, Nadal-

Ginard argues that the district court "grossly mischaracterized"

the services Nadal-Ginard rendered to BCHF and its affiliates.

In so doing, we believe that it is Nadal-Ginard who offers a

mischaracterization.

The district court found only that the HHMI salary

information "was material to any decision on the appropriate

compensation paid by BCHF for the same or related research

activities . . . ." Trial Court Opinion, p. 32. Nowhere in its

opinion did the court conclude that Nadal-Ginard engaged in the

same or related work for both BCHF and HHMI. Rather, this

statement merely indicates that the court believed that the BCHF

Board, armed with the information about the HHMI salary, might

have found that Nadal-Ginard engaged in similar or related

research. Indeed, in the succeeding paragraph, the court stated

5 At one point, Nadal-Ginard did suggest that his relationship
with HHMI amounted to an outside business activity, one that did
not constitute an usurpation of a BCHF corporate opportunity. He
argues that the absence of any such usurpation eliminates the
need for the disclosure of the relationship. We disagree. The
issue at bar does not concern the propriety of Nadal-Ginard's
relationship with HHMI. Indeed, there has been no suggestion
that Nadal-Ginard entered this relationship in violation of his
agreement with BCHF. As a result, his disclosure obligation did
not arise from the fact of his relationship with HHMI, but rather
because of his involvement in a self-interested transaction. We
note, however, that the terms of his agreement with HHMI
precluded Nadal-Ginard from accepting his BCHF salary.

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that "[i]f the defendant had disclosed his salary from [HHMI],

BCHF may have determined" that it could have used part of Nadal-

Ginard's salary for other purposes. Trial Court Opinion, p. 32

(emphasis added). Because we believe that the district court did

not make the finding Nadal-Ginard suggests is erroneous, we find

no error on the part of the district court.

Notwithstanding the district court's finding of an

absence of good faith, Nadal-Ginard argues that he could not have

breached his fiduciary duties to BCHF because his salary was at

all times fair and reasonable. In so doing, however, Nadal-

Ginard neglects to address the first predicate of the legal

analysis. When, as in this case, a court finds that an officer

failed to act in good faith, it follows that a fiduciary breach

exists, and the need to determine whether or not an officer's

salary is objectively reasonable is obviated.

B. Quantum Meruit Offset
B. Quantum Meruit Offset

Nadal-Ginard next suggests that, even if the district

court correctly found that he breached his fiduciary duties, it

erroneously calculated his liability for this breach to be the

total compensation he received from BCHF after November 12,

1990.6 Nadal-Ginard contends that principles of equity,

specifically the theory of quantum meruit, required the district

6 BCHF argues in its cross-appeal that the district court
incorrectly applied a three-year statute of limitations on its
cause of action, and therefore, its damages should include
amounts equal to the compensation Nadal-Ginard received prior to
November 12, 1990, as well. We address this claim below. See

infra part VII.A.

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court to exclude from BCHF's damages that portion of Nadal-

Ginard's salary which represented the reasonable value of the

services he rendered to BCHF. Nadal-Ginard alleges two ways in

which the district court erred with respect this issue.

First, Nadal-Ginard argues that the district court

erroneously decided that it was precluded from applying such an

offset in cases in which a defendant has committed an unexcused

fiduciary breach. We dispense with this allegation forthwith, as

even a cursory review of the district court's opinion fails to

reveal such a pronouncement. Indeed, the district court

expressly assumed that it was permitted to weigh such

considerations: "I assume, without deciding, that a court has

authority when determining the appropriate measure of damages for

breach of fiduciary duty, in a context such as this, to weigh the

harm caused by the defendant's breach with the benefits to the

plaintiff from the defendant s overall performance of his

duties." Trial Court Opinion, pp. 46-47.

Nadal-Ginard next asserts that the district court erred

in factoring the harm to BCHF's reputation that resulted from his

fiduciary breach into its damages equation. Although Nadal-

Ginard couches this claim in terms of a denial of what he refers

to as a quantum meruit offset, in reality, he is challenging the

method by which the district court applied the quantum meruit

analysis. In whatever light this allegation is viewed, however,

it must fail.

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Under Massachusetts law, trial courts are vested with

the discretion to determine the amount of damages for fiduciary

breaches according to the peculiar factors of each individual

case. See Chelsea Industries, Inc. v. Gaffney, 449 N.E.2d 320,

327 (Mass. 1983); Lydia E. Pinkham Medicine Co. v. Gove, 20

N.E.2d 482, 486 (Mass. 1939). Notwithstanding the existence of

this discretion, courts have consistently followed the same

routine in determining whether such an offset is warranted. We

examine Nadal-Ginard's allegation of error after synthesizing

this routine.

Most courts begin their analyses with the baseline

proposition that a court can require a corporate officer,

director, or trust agent or employee to forfeit the right to

retain or receive his or her compensation for conduct in

violation of his or her fiduciary duties. See, e.g., Chelsea

Industries, Inc. v. Gaffney, 449 N.E.2d at 326-27; Lydia E.

Pinkham Medicine Co. v. Gove, 20 N.E.2d at 486. Such a

forfeiture can be required even absent a showing of actual injury

to the employer. See Chelsea Industries, Inc. v. Gaffney, 449

N.E.2d at 327. Indeed, "[a] trustee who commits a breach of

trust or an agent who is guilty of disloyal conduct . . .

imperils his right to compensation." Lydia E. Pinkham Medicine

Co. v. Gove, 20 N.E.2d at 486 (emphasis added).

The courts next proceed to determine whether they

should stray from the baseline and require a disloyal employee to

repay only that portion of his or her compensation, if any, in

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excess of the value of his or her service to the employer. See,

e.g., Chelsea Industries, Inc. v. Gaffney, 449 N.E.2d at 327;

Anderson Corp. v. Blanch, 162 N.E.2d 825, 830 (Mass. 1959); Lydia

E. Pinkham Medicine Co. v. Gove, 20 N.E.2d at 486. Courts weigh

two factors when contemplating whether such a deviation is

warranted: first, whether the defendant has met his or her

burden of establishing the value of the services rendered, see

Chelsea Industries, Inc. v. Gaffney, 449 N.E.2d at 327; and,

second, the nature of the defendant's conduct, see, e.g.,

Production Mach. Co. v. Howe, 99 N.E.2d at 36. It is only when a

court is satisfied that a defendant has established the value of

his services, and that his or her conduct was not egregious, that

such an offset is factored into the damage equation.

Nadal-Ginard asserts that the district court erred in

examining the harm to the reputation, services, and functions of

BCHF that would naturally flow from the public disclosure of

Nadal-Ginard's conduct because the plaintiff failed to prove such

harm. In so asserting, Nadal-Ginard has the right church, but

wrong pew.

Nadal-Ginard is correct in his assertion that a

plaintiff normally can recover only those damages which he or she

has proven to have incurred. See Hendricks & Assocs., Inc. v.

Daewoo Corp., 923 F.2d 209, 217 (1st Cir. 1991); Snelling &

Snelling of Mass., Inc. v. Wall, 189 N.E.2d 231, 232 (Mass.

1963). In this instance, however, the district court was not

factoring the reputational harm into its damage calculations.

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Rather, the court considered this harm only in its analysis of

whether an equitable offset to the damages to which BCHF was

entitled was warranted. The court committed no error in doing

so.7

In charging that BCHF failed to meet its burden in

proving damages, Nadal-Ginard overlooks the fact that the main

reason the district court denied the offset was because he failed

to meet his. That is, the district court found the evidence he

presented with respect to the value of his services to be

"conflicting and speculative at best." Trial Court Opinion, p.

33. Close examination of the record evidences nothing to suggest

that the district court erred in reaching such a conclusion.

Nowhere in the record is there any evidence of the specific value

of Nadal-Ginard's services. Indeed, Nadal-Ginard relies only on

broad, self-aggrandizing statements in support of his argument.

Having addressed all of Nadal-Ginard's allegations of

error relating to his BCHF salary, we turn our sights to the next

area in which he alleges error, that is, with respect to his

claim of entitlement to indemnification from BCHF.

IV. INDEMNIFICATION CLAIM
IV. INDEMNIFICATION CLAIM

Nadal-Ginard contends that the district court, "in a

rush to judgment," failed to thoroughly address his claims for

7 Even if the court's actions could be construed as invoking the
general damages rule, the exception to the rule is at work here.
That is, a plaintiff whose cause of action is based on an
officer s fiduciary breach is not required to show that it
suffered any injury in order to recover the officer's
compensation. See Chelsea Industries, Inc. v. Gaffney, 449

N.E.2d at 328.

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indemnification by BCHF. Specifically, he argues that the court

neglected to review the facts underlying two BCHF decisions, both

instances in which the court found Nadal-Ginard's participation

to amount to fiduciary breaches. Accordingly, he requests that

this court reverse the district court's denial of his

indemnification claims with respect to each decision. For

several reasons, we decline the invitation.

A thorough examination of the district court's opinion

does not bear out Nadal-Ginard's main contention. Indeed, while

the district court did not include a recitation of the facts

underlying these decisions in its indemnification discussion, it

had no reason to do so, as it had examined both circumstances in

great detail in previous sections of the opinion. The fact that

it incorporated these findings by reference into the

indemnification discussion does not constitute error. As such,

we turn to examine the validity of the district court's

conclusions.

We begin our analysis by examining the two grounds on

which Nadal-Ginard asserts his entitlement. Nadal-Ginard first

claims a right to indemnification from BCHF based on Article VIII

of the BCHF Bylaws.8 This provision provides that BCHF will

8 Article VIII of the BCHF Bylaws provides, in pertinent part:

Any person threatened with or made a
party to any action, suit or other
proceeding by reason of the fact that he
. . . is or was a Director, officer,
employee or other agent of the
Corporation . . . shall be indemnified by
the Corporation against all liabilities

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indemnify any liabilities and expenses incurred by an officer or

director because of the position he or she holds. There is a

prerequisite that must be satisfied in order to be entitled to

indemnification, however: the BCHF director, officer, or

employee must have acted in good faith in the reasonable belief

that his or her action was in the best interests of BCHF.

Nadal-Ginard turns to Chapter 180, Section 6C, of the

Massachusetts General Laws for further support of his

indemnification claim. This statute provides that a officer or

director of a corporation shall not be held liable for the

performance of his or her duties if performed "in good faith and

in a manner he reasonably believes to be in the best interests of

the corporation, and with such care as an ordinarily prudent

person in a like position . . . would use under similar

circumstances." Mass. Gen. L. ch. 180, 6C. The statute

provides that an officer or director acts in good faith when

acting on, inter alia, the advice or opinions of counsel,

providing the officer or director did not have knowledge

regarding his or her actions that would cause such reliance to be

unwarranted. See id.

and expenses, . . . except that no

indemnification shall be provided for any

person with respect to any matter as to

which he shall have been adjudicated in

any proceeding not to have acted in good

faith in the reasonable belief that his

action was in the best interests of the

Corporation . . . .

Plaintiff's Exhibit #4, p. 17 (emphasis added).

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It is the latter portion of the Massachusetts statute

on which Nadal-Ginard relies in asserting his claim. He argues

that BCHF should indemnify him for damages arising out of two

transactions, as, in both cases, he acted on the advice of an

attorney. We examine the merits of these claims after first

reviewing the underpinnings of the transactions in question.

The first fiduciary breach arose out of his involvement

in determining his BCHF salary. We need not tarry in reviewing

the circumstances underlying this transaction, as we have already

devoted a good portion of the opinion to doing so. See supra

part III. We need only make note of the new wrinkle that Nadal-

Ginard adds in his effort to obtain indemnification: his

contention that he acted as he did because Nadeau represented to

him that to do so was legal.

The second fiduciary breach for which Nadal-Ginard

claims a right to indemnification arose out of his actions in

directing BCHF funds to be deposited into a Guardian Life

Insurance Escrow Account, established for the purpose of paying

premiums to the Guardian Life Insurance Company on a $6,000,000

life insurance policy in Nadal-Ginard's name.9 The court found

that Nadal-Ginard did not, at any time, disclose the existence of

the Escrow Account to the other BCHF Board members, nor did he

obtain authorization to make payments to such an account.

9 In its opinion, the district court noted that the evidence
showed that, in addition to being used to make premium payments
for the life insurance policy, the funds in the Escrow Account
were used to pay Nadal-Ginard's federal and state income taxes,
as well Nadal-Ginard's personal mortgage loan application fee.

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Because this transaction was clearly self-interested, the court

held that the payment of BCHF funds to the Escrow Account

amounted to a breach by Nadal-Ginard of his fiduciary duty of

loyalty, and therefore included the sum total of the payments in

its judgment for BCHF.

The basis for Nadal-Ginard's indemnification argument

for the Escrow Account damages mirrors that with respect to his

compensation. He argues that the Guardian Escrow Account was

"the brainchild" of Gary Banks, an attorney to whom Nadal-Ginard

turned for advice in 1987. Nadal-Ginard claims that because

Banks created the Guardian Life Insurance Escrow Account, he

should have been able to assume that it was structured in

conformity with the law. As a result, he argues that he is

entitled to indemnification for the portion of the damages

equaling the BCHF payments to the Escrow Account.

At trial, Nadal-Ginard did not prevail on either

argument. First, the district court discredited Nadal-Ginard's

contention that he relied upon the advice of the attorneys.

Second, the district court found that neither attorney ever

affirmatively advised Nadal-Ginard as to the legality of his

actions in either transaction. On appeal, Nadal-Ginard does not

challenge the district court's interpretation of either the BCHF

Bylaw or the Massachusetts statute. Instead, he contends that

there was insufficient evidence on which to support the court's

conclusions.

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In reviewing this claim, we are mindful that we review

findings of fact for clear error. See Texaco Puerto Rico, Inc.

v. Department of Consumer Affairs, 60 F.3d 867, 875 (1st Cir.

1995). When those findings of fact are based on the credibility

of witnesses, great deference is given to the district court's

findings. See Maness v. Star-Kist Foods, Inc., 7 F.3d 704, 708

(8th Cir. 1993), cert. denied, 114 S. Ct. 2678 (1994); cf. Inwood

Lab., Inc. v. Ives Lab., Inc., 456 U.S. 844, 855 (1982). Indeed,

"[i]n the absence of egregious lapses in such a perception,

appellate courts leave it undisturbed." Charves v. Western Union

Telegraph Co., 711 F.2d 462, 464-65 (1st Cir. 1983).

Here, we find no error. Nadal-Ginard points to nothing

in the record, nor do we find anything on our own, to suggest

that the district court's discrediting of Nadal-Ginard's

testimony is egregious. Indeed, the district court pointed out

that Nadal-Ginard failed to comply with the requirements in the

documents as he understood them, never mind comply with

interpretations offered by counsel. Further, there is ample

evidence in the record unrelated to these transactions which

lends support to the district court's findings.

Even assuming that Nadal-Ginard's credibility was not

at issue, Nadal-Ginard fails to clear the next hurdle. That is,

Nadal-Ginard fails to direct this court to any place in the

record evidencing the fact that either attorney advised Nadal-

Ginard that he was legally entitled to act as he did. An

attorney's representation as to the legality of a particular

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corporate structure does not mean that an officer or director can

act in any manner he or she chooses within the confines of that

structure. Indeed, an officer is bound further by the confines

of the law. So it is here: the fact that both Nadeau and Banks

advised Nadal-Ginard that the corporate structures in question

were legally valid does not absolve Nadal-Ginard from liability

incurred by his improper actions. Accordingly, we find no error

on the part of the district court, and now proceed to address

Nadal-Ginard's two remaining allegations of error.

V. THE BANKS PLAN
V. THE BANKS PLAN

In 1985 or early 1986, the Board of Directors adopted a

severance benefit plan, referred to as the "Nadeau Plan," by

written consent.10 In early 1987, Nadal-Ginard presented the

Board with what he claims was a reconstruction of the Nadeau

Plan, a document that he contends was lost. In so doing, Nadal-

Ginard did not inform the Board that the Banks Plan provided far

more in benefits for Nadal-Ginard than the Nadeau Plan had. In

1992, upon Nadal-Ginard's initiative, the Banks Plan was

terminated and Nadal-Ginard received benefits in the form of cash

and securities valued at over $4,000,000.

The district court made several findings with respect

to the creation and adoption of the Banks Plan. First, it found

the terms of the plan to be so markedly different from the Nadeau

10 The district court found no evidence as to the exact date the
directors adopted this plan. However, it did find sufficient
evidence to conclude that it was legally adopted. This finding
is not challenged on appeal.

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Plan that Nadal-Ginard's actions could not be construed as a

genuine effort to reconstruct the Nadeau Plan. Second, the

district court found that Nadal-Ginard's benefits under the Banks

Plan were of such a magnitude, and structured in such a way, that

had they been disclosed at the time the plan was presented to the

Board, the plan would not have been approved by the Board. The

district court concluded that Nadal-Ginard breached his fiduciary

duties to BCHF with respect to his involvement in the creation of

the plan and its presentation to the Board. Accordingly, the

court awarded damages to BCHF in the amount of $4,082,273.50.

While Nadal-Ginard disputes the district court's

factual findings, he does not challenge them on appeal. Rather,

Nadal-Ginard contends that ERISA explicitly exempts these types

of severance benefit plans from its fiduciary duty provisions.

Further, he alleges that 29 U.S.C. 1144, which provides for the

preemption of state law by ERISA, precludes the evaluation of

Nadal-Ginard's actions in light of fiduciary responsibilities

defined by state law.

The district court did not address the issue of the

whether the fiduciary provisions of ERISA applied to the Banks

Plan or whether it fell within the category of unfunded plans

which are excluded from the scope of those fiduciary standards.

The court did find that the fiduciary obligations created under

Massachusetts law were more favorable to Nadal-Ginard than those

imposed by ERISA, and, therefore, that a fiduciary breach under

Massachusetts law would necessarily constitute a breach of the

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ERISA fiduciary obligations, if applicable. As neither party

challenges the conclusion that the Banks plan is exempt from

ERISA's fiduciary provisions, we concentrate solely on whether

ERISA preempts the application of state law in this instance.

"'ERISA is a comprehensive statute designed to promote

the interests of employees and their beneficiaries in employee

benefit plans.'" Ingersoll-Rand Co. v. McClendon, 498 U.S. 133,

137 (1990) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85,

90 (1983)). In vast detail, ERISA imposes participation,

funding, and vesting requirements on such plans, as well as

establishes uniform standards for pension and welfare plans,

including rules concerning reporting, disclosure, and fiduciary

responsibility. See id. An inherent part of this system is

section 514(a), which provides that ERISA supersedes "any and all

State laws insofar as they may now or hereafter relate to any

employee benefit plan . . . ." 29 U.S.C. 1144(a); see also

Ingersoll-Rand Co. v. McClendon, 498 U.S. at 137. The statute

defines the term "State law" to include "all laws, decisions,

rules, regulations, or other State action having the effect of

law, of any State." 29 U.S.C. 1144(c)(1); see also Carlo v.

Reed Rolled Thread Die Co., 49 F.3d 790, 793 (1st Cir. 1995).

Congress included 514(a) to ensure uniformity in such plans by

preventing states from imposing divergent obligations upon them.

See Simas v. Quaker Fabric Corp. of Fall River, 6 F.3d 849, 852

(1st Cir. 1993).

-22-

The Supreme Court has repeatedly interpreted the

preemption provision to cover any state law that "has a

connection with or reference to" an ERISA plan. District of

Columbia v. Greater Washington Board of Trade, 506 U.S. 125, ,

113 S. Ct. 580, 583 (1992); see also Mackey v. Lanier Collection

Agency & Service, Inc., 486 U.S. 825, 829 (1988); Shaw v. Delta

Air Lines, Inc., 463 U.S. 85, 96-97 (1983). Indeed, this

provision is to be read expansively, see Rosario-Cordero v.

Crowley Towing & Transp. Co., 46 F.3d 120, 122 (1st Cir. 1995),

and has the effect of preempting any state law that refers to, or

has a connection with, covered benefit plans, "even if the law is

not specifically designed to affect such plans, or the effect is

only indirect." District of Columbia v. Greater Washington Board

of Trade, 506 U.S. at , 113 S. Ct. at 583 (citations and

internal quotation marks omitted). Such a preemption is also

worked "regardless of whether there is a 'comfortable fit between

a state statute and ERISA's overall aims.'" Simas v. Quaker

Fabric Corp. of Fall River, 6 F.3d at 852 (quoting McCoy v. MIT,

950 F.2d 13, 18 (1st Cir. 1991), cert. denied, 504 U.S. 910

(1992)).

State laws that have merely a "tenuous, remote, or

peripheral connection with a covered benefit plan" may not be

preempted by ERISA. Rosario-Cordero v. Crowley Towing & Transp.

Co., 46 F.3d at 123 (citation and internal quotation marks

omitted). Such is normally the case with respect to laws of

general applicability. See District of Columbia v. Greater

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Washington Board of Trade, 506 U.S. at n.1, 113 S. Ct. at 583

n.1; Rosario-Cordero v. Crowley Towing & Transp. Co., 46 F.3d at

123; Combined Mgt, Inc. v. Superintendent of the Bureau of

Insurance, 22 F.3d 1, 3 (1st Cir.), cert. denied, 115 S. Ct. 350

(1994). A court cannot conclude that a state law is one of

general applicability, and as such is not preempted by ERISA,

based on the form or label of the law, however. See Carlo v.

Reed Rolled Thread Die Co., 49 F.3d at 794 n.3; Zuniga v. Blue

Cross and Blue Shield of Michigan, 52 F.3d 1395, 1401 (6th Cir.

1995). Absent precedent on a closely related problem, the

inquiry into whether a state law "relates to" an ERISA plan or is

merely "tenuous, remote, or peripheral" requires a court to look

at the facts of particular case. See Rosario-Cordero v. Crowley

Towing & Transp. Co., 46 F.3d at 125 n.2.

Here, the alleged breach of fiduciary duty relates to

Nadal-Ginard's action in establishing the Banks Plan without

disclosing information that a self-interested fiduciary would be

required to reveal to his fellow directors. Nadal-Ginard's

misconduct preceded the formal adoption of the plan. The legal

determination that Nadal-Ginard's conduct constitutes a fiduciary

breach does not require the resolution of any dispute about the

interpretation or administration of the plan. Further, the

application of state law in this instance does not raise the core

concern underlying ERISA preemption. Indeed, the fact that

Nadal-Ginard chose an ERISA plan rather than some other form of

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compensation is peripheral to the underlying claim that Nadal-

Ginard breached his corporate responsibilities.

This being the case, it cannot be said that

Massachusetts fiduciary law must be preempted in this instance.

Therefore, we turn to address the merits of the district court's

conclusion that Nadal-Ginard's actions violated his fiduciary

duties.

As Nadal-Ginard does not allege error with respect to

the law which the district court applied in reaching its

conclusion, we need not revisit the duties of good faith and full

disclosure arising in self-interested transactions. See supra

part III.A. Instead, we turn without delay to review the

validity of the district court's factual findings which served as

the basis for its legal conclusion, keeping in mind, once again,

that we do so in light of the clearly erroneous standard. See

Texaco Puerto Rico, Inc. v. Department of Consumer Affairs, 60

F.3d at 874.

The district court made several findings of fact on

which it grounded its conclusion that Nadal-Ginard breached his

fiduciary duties. Chief among these was that Nadal-Ginard

intentionally had the Banks plan drafted in two parts in order

that the other Board members might enact the plan without

learning of the magnitude of his blatantly disproportionate share

of the benefits. The court determined that this effort met with

success, as it found that the other Board members did not learn

all the terms of the Banks plan until the fall of 1993. The

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court reached these factual conclusions on the basis of the

testimony of the witnesses and an examination of the plan itself.

Further, the court expressly discredited Nadal-Ginard's

assertions.

In reviewing the vast record from the district court,

we find that Nadal-Ginard fails to meet the heavy burden which

the law places on him. That is, Nadal-Ginard offers no evidence

to suggest that the district court's findings were clearly in

error. As much of the court's findings are based on credibility

determinations of the witnesses who testified at trial, we

decline to reverse the conclusions reached below.

VI. DAMAGE CALCULATIONS
VI. DAMAGE CALCULATIONS

In the fall of 1993, additional misdeeds on the part of

Nadal-Ginard were discovered. Four checks made out to third

parties bore questionable endorsements, each of which had been

deposited into Nadal-Ginard's personal bank accounts. Nadal-

Ginard thereafter wrote checks to BCHF to replace the funds that

had been traced to his accounts. On October 22, 1993, the Board

met to discuss this situation. At this meeting, Nadal-Ginard

allegedly informed the Board of his intention to seek a medical

leave of absence from his various Hospital and Medical School

positions, as well as from his duties as BCHF president. Nadal-

Ginard alleges that the Board approved this request, and that he

was subsequently hospitalized for treatment of acute depression.

Nadal-Ginard's final two allegations of error concern

the methods employed by the district court in calculating BCHF's

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damages arising out of these facts. First, Nadal-Ginard alleges

that the district court erred in denying his request for an

offset in an amount equal to the disability payments to which he

claims he was entitled under the Nadeau Plan because of his

medical condition. Second, Nadal-Ginard contends that the

district court impermissibly awarded damages in an amount

equivalent to the interest BCHF would have earned on the

misappropriated funds absent Nadal-Ginard's actions. We address

each of these allegations in turn.

A. Disability Benefits
A. Disability Benefits

At trial, Nadal-Ginard argued that because the district

court nullified the Banks Plan, it implicitly confirmed the

existence of the Nadeau plan.11 Nadal-Ginard further claimed

that, as a result of his medical condition, he was totally

disabled and therefore eligible for severance benefits under the

terms of the Nadeau plan. Accordingly, Nadal-Ginard sought to

reduce the amount of damages attributed to his fiduciary

transgressions with respect to the Banks plan in an amount equal

to the Nadeau plan severance benefits.

11 As BCHF notes in its brief, the district court did not
definitively establish the existence of the Nadeau plan. Rather,
the court prefaced its analysis of the merits of Nadal-Ginard's
claim by stating merely that "[a] plausible argument can be made
that the Nadeau plan is in effect . . . ." Because neither party
explicitly addresses the validity of such an assumption, as well
as the fact that we agree with the district court's ultimate
finding that Nadal-Ginard is not entitled to such benefits, we do
not address the issues surrounding the viability of the Nadeau
plan.

-27-

The district court denied Nadal-Ginard's claim on two

grounds. First, it found evidence that suggested that Nadal-

Ginard's BCHF employment was involuntarily terminated, thereby

working a forfeiture of any benefits to which he otherwise would

have been eligible. Second, the district court found that Nadal-

Ginard had failed to prove that he was "totally disabled," and

therefore was not eligible to receive benefits under the plan.

Nadal-Ginard challenges both findings on appeal. We begin our

analysis by detailing the severance benefit framework of the

Nadeau plan.

Under section 4.1 of this plan, a participant is

eligible for severance benefits upon "Total Disability." This

condition is defined in section 2.13 of the plan as an "inability

to perform usual and customary duties for [BCHF] as a result of a

medically determinable physical or mental impairment . . . ."

Section 2.13 further provides that "[t]he receipt by a

Participant of payments under any long term disability income

insurance policy . . . shall be deemed to be . . . prima facie

evidence of such Total Disability in the absence of a contrary

finding by [a] physician."

The mere fact that an individual is eligible to receive

severance benefits as a result of a disability does not necessary

entitle him to those benefits, however. Indeed, section 4.2 of

the plan provides for the forfeiture of all benefits by

participants in certain circumstances, including BCHF's

termination of a participant's employment.

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The district court found that Nadal-Ginard was

involuntarily terminated from his position at BCHF.12 As

section 4.2 contains no language limiting the time frame during

which this provision applies, we find that the district court

correctly interpreted the provision as barring the receipt of any

benefits by Nadal-Ginard. As such, we need not address Nadal-

Ginard's claim of eligibility for the benefits as a result of his

medical condition, and we turn to address his final allegation of

error.

B. Misappropriated Checks
B. Misappropriated Checks

As we noted above, in 1993, the Board discovered that

Nadal-Ginard had misappropriated a number of BCHF checks, each

drafted between 1991 and 1992, for his personal use. The court

found that Nadal-Ginard's actions with respect to these checks

constituted breaches of his fiduciary duties. Notwithstanding

the fact that Nadal-Ginard reimbursed BCHF for the principal

amounts of these checks, the district court awarded BCHF damages

for these breaches in an amount equivalent to the interest BCHF

would have earned on the money between the time the checks were

drafted and the time Nadal-Ginard reimbursed the funds.

In alleging error with respect to this damage award,

Nadal-Ginard does not contest BCHF's right to recover an amount

equal to the interest which it would have earned on the

misappropriated funds. Rather, Nadal-Ginard contends that BCHF

failed to meet its burden of submitting evidence to prove the

12 Nadal-Ginard does not challenge this finding on appeal.

-29-

amount of its damages, as it introduced no evidence of what the

prevailing market rate was during the time in question. Nadal-

Ginard contends that the trial court erred by awarding damages in

an amount equal to the market interest rate, which it calculated

based on the auction prices of 52-week United States Treasury

bills.

Interest is compensation fixed by law for the use of

money or, alternatively, as damages for its detention. See

Perkins School for the Blind v. Rate Setting Comm'n, 423 N.E.2d

765, 771-72 (Mass. 1981); Begelfer v. Najarian, 409 N.E.2d 167,

170 (Mass. 1980). Massachusetts law differentiates between two

types of interest: interest reserved by the terms of a contract

and interest awarded by law. See Perkins School for the Blind v.

Rate Setting Comm'n, 423 N.E.2d at 772. The latter is

traditionally seen in the context of prejudgment or postjudgment

interest, the rate of which is traditionally fixed by statute and

which is calculated based on the amount of damages that a party

has sustained.

In this case, there is no question that BCHF bore its

burden of proving it was injured in an amount equivalent to the

interest it would have earned on the misappropriated funds.

Indeed, it sought to recover damages in an amount based on the

interest it would have received using the prejudgment rates

provided by statute. See Mass. Gen. L. ch. 231, 6H. The

application of that rate would have resulted in a windfall to

BCHF, however. In light of the fact that the interest is awarded

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to ensure that a party is fully compensated for its injuries, the

fact that the district court relied on the United States Treasury

bill rates to determine the applicable interest rates did not

prejudice either Nadal-Ginard or BCHF.13 Therefore, we affirm

the district court's ruling with respect this aspect of the

damage award.

VII. BCHF'S CROSS-APPEAL
VII. BCHF'S CROSS-APPEAL

Notwithstanding its agreement with most of the district

court's findings and conclusions, BCHF raises a number of errors

it alleges the court committed. We note that BCHF raises four

issues in its cross-appeal. Based on the fact that we have

already addressed the appropriate interest rate to be used in

calculating its damages for the misappropriated checks, see supra

part VI.B, as well as the fact that in its brief it concedes that

this court need not address the circumstances surrounding Dr.

Freed's testimony if we find in its favor with respect to the

Banks plan, we address its two remaining claims below.

A. Statute of Limitations
A. Statute of Limitations

BCHF first challenges the manner in which the district

court applied the Massachusetts statute of limitations to limit

its damages arising out of Nadal-Ginard's breaches. While BCHF

does not challenge the court's finding that Massachusetts law

imposes a three year limitation on breach of fiduciary duty

claims, see Mass. Gen. L. ch. 260, 2A, BCHF alleges that the

13 BCHF, in its cross-appeal, alleges that the district court
erred in not applying the prejudgment interest rate provided
under Massachusetts law with respect to these funds.

-31-

district court should have found the statute to have been tolled

because Nadal-Ginard concealed his misdeeds. As such, BCHF asks

this court to reverse the district court's judgment insofar as it

precludes the recovery of damages arising from its salary and

Escrow Account claims prior to November 12, 1990. We decline.

The general rule in Massachusetts is that a cause of

action in tort, in this case a claim based on the violation of a

fiduciary duty, must be commenced within three years of the time

the breach occurs. See id. As with any rule, however, there

exists at least one exception, which, in this case, is defined by

statute:

If a person liable to a personal action
fraudulently conceals the cause of such
action from the knowledge of the person
entitled to bring it, the period prior to
the discovery of his cause of action by
the person so entitled shall be excluded
in determining the time limited for the
commencement of the action.

Mass. Gen. L. ch. 260, 12.

In general, this statute "requires a plaintiff to show

an affirmative act of fraudulent concealment on the part of the

defendant." Maggio v. Gerard Freezer & Ice Co., 824 F.2d 123,

130 (1st Cir. 1987). Once again, however, a relevant exception

exists. In cases where "a fiduciary relationship exists between

plaintiff and defendant . . . [the] mere failure to reveal

information may be sufficient to constitute fraudulent conduct

. . . ." Id. (emphasis added); see also Puritan Medical Center,

Inc. v. Cashman, 596 N.E.2d 1004, 1010 (Mass. 1992).

-32-

The district court applied both the statutory language

and the relevant case law to the facts at hand. That is, while

it recognized that Massachusetts law no longer required a

plaintiff to show active concealment on the part of the defendant

in order to toll the statute of limitations, it found that the

law did not require a tolling per se when the cause of action

concerned the breach of a fiduciary duty of disclosure.

Concluding that the facts below differed from those in Puritan in

that the information in question was either of general knowledge

or easily accessible to the other Board members, it declined to

apply the statute's tolling provisions.

We find no error in the district court's interpretation

of the applicable Massachusetts tolling provisions. Indeed, as

the court pointed out below, the cases hold only that the breach

of a duty to disclose may be sufficient to invoke the tolling

provisions. See Puritan Medical Center, Inc. v. Cashman, 596

N.E.2d at 1010; Maggio v. Gerard Freezer & Ice Co., 824 F.2d at

130. There is no suggestion that such a breach requires the

tolling provisions to be applied in all cases. Indeed, such a

conclusion would be counterintuitive.14

An examination of the record reveals nothing to suggest

that the district court erred in refusing to find the statute

14 This would be so in a case in which Board members learned of
the non-disclosed information on their own, yet chose not to act.
In that case, they would be able to recover damages beyond the
traditional statute of limitations period notwithstanding their
inaction.

-33-

tolled. As such, we turn to address the final issue BCHF raises

in its cross-appeal.

B. BCHF Fringe Benefits
B. BCHF Fringe Benefits

BCHF's second allegation of error arises out of the

district court's findings that Nadal-Ginard failed to disclose

his HHMI employment to the Board. Specifically, BCHF argues that

the district court erred by not finding that Nadal-Ginard

breached his fiduciary duties by failing to disclose to the Board

the fact that he was receiving a fringe benefits package from

HHMI. Once again, we find no error on the part of the district

court.

The district court, applying the principles underlying

fiduciary obligations that we have already detailed, see supra

part III.A, found that BCHF failed to prove what the HHMI

benefits were and whether they were comparable to those provided

by BCHF. Thus, the court found nothing to suggest the HHMI

benefit information would have affected the outcome of the

Board's determination of Nadal-Ginard's BCHF fringe benefits

package. Therefore, it concluded that there was insufficient

evidence to find that Nadal-Ginard failed to act in good faith

with respect to the fringe benefits, and thus no basis for

finding he breached his fiduciary duties in this regard.

Having found nothing in the record to suggest that the

district court's factual finding with respect to the sufficiency

of the fringe benefit evidence was clearly erroneous, we find no

need to disrupt the district court's finding.

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VIII. CONCLUSION
VIII. CONCLUSION

For the foregoing reasons, the judgment of the district

court is affirmed. Two-thirds costs in favor of BCHF.
affirmed. Two-thirds costs in favor of BCHF

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