§ 1821(k) and thereby authorizing the FDIC to sue directors for "disregard of a duty of care . . . as such terms are defined and determined under applicable state law," appears to have accepted state law as governing the fiduciary duties of directors of federally insured savings institutions.
Accordingly, although it may be tempting to some to create a uniform body of federal law governing all aspects of federal savings institutions, there is no evident need or basis to do so. The mere fact that the regulations governing CrossLand are in most respects comprehensive but are silent on a particular point is not a sufficient basis for creating from wholecloth a new federal common law where state law is adequate for every apparent federal regulatory purpose.
It is true that even in the absence of a statutory or regulatory basis for the creation of federal common law, courts may create such law if necessary to further "uniquely federal interests." Texas Industries, 451 U.S. at 640. However, no federal agency or official is a party to this suit or has any stake in its outcome. Plaintiffs have not identified any "uniquely federal interests" that would be impeded if the case were to proceed in a New York state court under New York law. And to the extent courts favoring a federal common law of fiduciary duties have discussed the existence of "unique federal interests" in a uniform federal rule, they typically have stressed only the "unique federal interests in the uniform regulation of the federally chartered savings and loan associations that can only properly be protected by the application of a federal rule of decision." See Eureka Federal Sav. and Loan Ass'n v. Kidwell, 672 F. Supp. 436, 439 (N.D. Cal. 1987) (holding that federal common law governed the fiduciary duties of directors of a federal savings and loan and provided the basis for federal jurisdiction). See also City Federal Sav. and Loan Ass'n v. Crowley, 393 F. Supp. 644, 656 (E.D. Wis. 1975) ("The federal common law governing the internal affairs of federal savings and loan associations includes the usual common law fiduciary duties"). As discussed above, the effectiveness of federal regulation, while surely of importance, is not threatened by continued reliance on state courts and state law governing directors' fiduciary duties.
Although plaintiffs contend that the jurisdictional issue in this case is a question of first impression in this Circuit, they do invoke one decision by the Court of Appeals for this Circuit, Murphy v. Colonial Federal Sav. & Loan Ass'n, 388 F.2d 609 (2d Cir. 1967) (Friendly, J.), which they claim demonstrates both the existence of unique federal interests warranting a federal cause of action and the need for federal common law to complete the existing federal statutory and regulatory scheme governing CrossLand. Murphy held that where an existing federal regulation authorized shareholder voting for directors either in person or by proxy, but was silent as to dissidents' right to know the identities of shareholders eligible to vote, dissident shareholders were entitled by "federal law" to receive the shareholder list they sought. 388 F.2d at 611. Although its discussion on point is sketchy, the Murphy court stated that the question, "which requires a fleshing out of the [Federal Home Loan Bank] Board's regulations, is one of federal law." Id. The Murphy decision is not in any way determinative of the issue in this case. Murphy was simply an exercise in the construction of federal regulations whose sketchy language required the court to "flesh out" their provisions in order to achieve the regulations' purpose.
B. Fiduciary Duties as Implicit in Federal Regulatory Scheme
Plaintiffs next assert that "federal law" governs "because the Debt Securities were issued pursuant to the federal statutory and regulatory scheme governing savings and loans under the Home Owners Loan Act" (HOLA), 12 U.S.C. § 1464. This theory overlaps somewhat plaintiffs' common law arguments rejected above. The only new element is the claim that the determination of directors' duties arises directly under HOLA and regulations issued pursuant to it.
The argument is without merit. Although HOLA and other statutes and extensive federal regulations define many aspects of the constraints on and operation and obligations of federal savings institutions, they neither define the duties of savings bank directors nor grant federal jurisdiction over disputes involving those duties. The mere fact that the regulation in question authorizes the issuance of notes, 12 C.F.R. § 545.20, and that the dispute here involves CrossLand's obligations on notes, is too remote from the central issue of this case -- whether the defendant directors violated their fiduciary duties -- to provide a jurisdictional foundation.
C. Implied Right of Action Under 12 U.S.C. § 1821(k)
Plaintiffs' final asserted basis of federal jurisdiction is that a private right of action is implied by 12 U.S.C. § 1821(k). That statute reads:
A director or officer of an insured depository institution may be held personally liable for monetary damages in any civil action by, on behalf of, or at the request of the [Federal Deposit Insurance] Corporation, which action is prosecuted wholly or partially for the benefit of the Corporation . . . for gross negligence [or] disregard of a duty of care [or] intentional tortious conduct, as such terms are defined and determined under applicable State law.
By its own terms, the statute provides only for suits "by, on behalf of, or at the request of the FDIC," and is explicitly limited to cases "wholly or partially for the benefit of the Corporation." Nothing in the words of the statute or any legislative history suggests that the statute impliedly provides a private cause of action.
Moreover, plaintiffs do not assert this implied right of action in the complaint, and it cannot properly be presented through argument on a motion to dismiss. See Levy v. City of New York, 726 F. Supp. 1446, 1452 n.6 (S.D.N.Y. 1989). However, to prevent what would be a futile exercise in repleading, the claim's merits are considered below.
The controlling factors in determining whether an implied private cause of action is available are:
. . . whether the plaintiff is a member of the class for whose benefit the statute was enacted; whether Congress intended to create a private right of action; whether a private right of action is consistent with the underlying purpose of the legislative scheme; and whether the matter is traditionally relegated to state law.