1 United States Court of Appeals,

Fifth Circuit.

No. 93-3183.

RESOLUTION TRUST CORPORATION, Plaintiff-Appellant,

v.

Louis A. MIRAMON, Jr., et al., Defendants-Appellees.

June 21, 1994.

Appeal from t he United States District Court for the Eastern

District of Louisiana.

Before JOHNSON, GARWOOD, and JOLLY, Circuit Judges.

JOHNSON, Circuit Judge:

The Resolution Trust Corporation (RTC) sued several officers

and directors (collectively, "the defendants") of a failed savings

and loan institution alleging 1) negligence, 2) breach of fiduciary

duty and 3) gross negligence. Under Fed.R.Civ.P. 12(b)(6), the

dist rict court dismissed the negligence and breach of fiduciary

duty claims h olding that they failed to state a claim on which

relief could be granted. The district court then certified this

case pursuant to Fed.R.Civ.P. 54(b) and the RTC appeals. We

AFFIRM.

FACTS AND PROCEDURAL HISTORY

For purposes of this appeal, only a brief recitation of the

facts is needed. On August 7, 1989, the Federal Home Loan Bank

Board closed South Savings and Loan Association ("South Savings"),

a federally-insured, state-chartered institution located in

Slidell, Louisi ana. The Federal Savings and Loan Insurance

Corporation (FSLIC) was initially appointed as receiver, but, after1 Pub.L. No. 101-73, 103 Stat. 183 (1989).

2 the passage o f the Financial Institutions Reform, Recovery and

Enforcement Act (FIRREA) 1 on August 9, 1989, the RTC succeeded the

FSLIC as receiver.

On August 9, 1992, the RTC filed the instant action against

the defendants who were former directors or officers of S outh

Savings. The RTC sought to recover losses suffered by South

Savings allegedly caused by the defendants' negligence, breach of

fiduciary duties and gross negligence.

The defendants mo ved to dismiss, under F.R.Civ.P. 12(b)(6),

the causes of action for negligence and breach of fiduciary duty

contending that these theories failed to state claims on which

relief could be granted. In making these motions, the defendants

argued that section 1821(k) of FIRREA established gross negligence

as a national standard of liability for directors and officers of

federally-insured depository institutions. The RTC, by contrast,

argued that federal common law survived the passage of FIRREA and

allows actions against directors and officers of d epository

institutions based on simple negligence.

The district court found that section 1821(k) did set a

federal standard of care of gross negligence and that any federal

common law to the contrary was preempted. As the RTC's negligence

and breach of fiduciary duty claims alleged lesser standards of

liability than gross negligence, the district court granted the

defendants' motions and dismissed those claims. The district court

then certified this case for interlocutory review pursuant to3

Fed.R.Civ.P. 54(b).

Accordingly, the RTC now appeals the district court's

dismissal of its causes of action against the defendants based on

sim ple negligence and breach of fiduciary duty contending that

despite section 1821(k), these causes of action remain viable under

the federal common law. The defendants responded and were joined

by the American Bankers Association and Independent B ankers

Association of America who filed an amicus curiae br ief which

voiced that group's position that section 1821(k) created a federal

standard of gross negligence. Lastly, in a supplemental round of

briefing, the RTC advances for the first time that even if it has

no causes of action for simple negligence or breach of fiduciary

duty under federal common law, those causes of action are available

under Louisiana state law.

DISCUSSION

The issues in this case inv olve questions of statutory

construction which we review under a de novo standard of review.

Cruz v. Carpenter, 893 F.2d 84, 86 (5th Cir.1990).

1. Federal Common Law

The issue herein is whet her the RTC can sue directors or

officers of federally-insured depository institutions for simple

negligence and breach of fiduciary duty under the federal common

law. The district court held that the RTC could not because the

court found that federal common law had been preempted by the plain

language of section 1821(k) which the court held established gross

negligence as the federal standard of care. This section states,2 Two circuit courts have addressed the similar issue of

whether state common law is preempted by § 1821(k) and have held

that state common law standards which allow causes of action

against directors and officers of federally-insured institutions

based on simple negligence are not preempted. FDIC v. Canfield,

967 F.2d 443, 448 (10th Cir.) (en banc), cert. denied, --- U.S. -

---, 113 S.Ct. 516, 121 L.Ed.2d 527 (1992); FDIC v. McSweeney,

976 F.2d 532, 538 (9th Cir.1992), cert. denied, --- U.S. ----,

113 S.Ct. 2440, 124 L.Ed.2d 658 (1993). These courts concluded

that state law is preempted only to the extent that states

attempt to insulate directors and officers by establishing a more

forgiving standard of care than gross negligence. Canfield, 967

F.2d at 447; McSweeney, 976 F.2d at 539. We do not decide this

question today.

3 See FDIC v. Harrington, 844 F.Supp. 300, 304

(N.D.Tex.1994); FDIC v. Gonzalez-Gorrondona, 833 F.Supp. 1545,

1552 (S.D.Fla.1993); RTC v. Farmer, 823 F.Supp. 302, 307

(E.D.Pa.1993); FDIC v. Mintz, 816 F.Supp 1541, 1545

(S.D.Fla.1993); FDIC v. Bates, 838 F.Supp. 1216, 1220

4 in pertinent part, that

[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 or direction

of the Corporation

... for gross negligence, in cluding any

sim ilar conduct or conduct that demonstrates a greater

disregard of a duty of care (than gross negligence) including

int entional tortious conduct, as such terms are defined and

determined under applic able State law. Nothing in this

paragraph shall impair or affect any right of the Corporation

under other applicable law.

12 U.S.C. § 1821(k).

This issue of whether section 1821(k) preempts federal common

law has been addressed by only one other federal appellate court. 2

That court, in RTC v. Gallagher, 10 F.3d 416 (7th Cir.1993),

concluded that section 1821(k) preempted fede ral common law and

that the sole cause of action against directors and officers under

federal law was for gross negligence. This has also been the

conclusion of the majority of district courts that have addressed

this issue. 3 For the reasons stated below, we agree with these(N.D.Oh.1993); RTC v. Chapman, No. 92-3188, slip op. (C.D.Ill.

Oct. 16, 1992); RTC v. Hecht, 818 F.Supp. 894, 901 (D.Md.1992);

FDIC v. Brown, 812 F.Supp. 722, 726 (S.D.Tex.1992); RTC v.

Gallagher, 800 F.Supp. 595, 602 (N.D.Ill.1992); FDIC v. Barham;

794 F.Supp. 187 (W.D.La.1991); FDIC v. Miller; 781 F.Supp.

1271, 1275 (N.D.Ill.1991); FDIC v. Mijalis, No. 89-1316, 1991 WL

501602 (W.D.La. October 31, 1991). Contra RTC v. Hess, 820

F.Supp. 1359, 1364 (D.Utah 1993); RTC v. Kidd, No. 93-CV-0059-J,

slip op. (D.Wyo. April 16, 1993); RTC v. Gibson, 829 F.Supp.

1110, 1118 (W.D.Mo.1993); FDIC v. Nihiser, 799 F.Supp. 904, 907

(C.D.Ill.1992).

5 courts and hold that section 1821(k) preempts federal common law.

It is important to note at the outset the very limited role

o f federal common law. Federal courts are not common law courts

possessing a general power to develop and refine their own rules of

decision. Wayne v. Tennessee Valley Authority, 730 F.2d 392, 398

(5th Cir.1984), cert. denied, 469 U.S. 1159, 105 S.Ct. 908, 83

L.Ed.2d 922 (1985); E rie R.R. v. Tompkins, 304 U.S. 64, 78, 58

S.Ct. 817, 822, 82 L.Ed. 1188 (1938). Rather, the direction of

national policy by the enactment of a federal rule is "generally,

and purposely, reserv ed to the legislative branch of the

government." W ayne, 730 F.2d at 398. Federal common law is merely

a necessary expedient "resorted to "in the absence of an applicable

Act of Congress' " when federal courts are forced to consider

issues which cannot be answered from federal statutes alone.

Milwaukee v. Illinois, 451 U.S. 304, 314, 101 S.Ct. 1784, 1791, 68

L.Ed.2d 114 (1981) (quoting Clearfield Trust Co. v. United States,

318 U.S. 363, 367, 63 S.Ct. 573, 575, 87 L.Ed. 838 (1943)). When

Congress does speak to an issue previously governed by federal

common law, the need to resort to this unusual lawmaking by the

federal courts disappears. M ilwaukee, 451 U.S. at 313-15, 1014 We do not find this conclusion to be at odds with

McSweeney, 976 F.2d at 538. The issue before the McSweeney Court

was whether a state common law standard of simple negligence was

preempted and thus any language in that opinion to the effect

that federal common law was not preempted by § 1821(k) is merely

6 S.Ct. at 1791.

In assessing whether congressional legislation has preempted

a federal common law rule, "we start with the assumption that it is

for Congress, not federal courts, to articulate the appropriate

standards to be applied as a matter of federal law." Id. at 317,

101 S.Ct. at 1792. Even so, when Congress legislates in an area

governed by common law, it is not writing on a clean slate.

Rather, there is a longstanding principle that statutes which

invade the common law are to be read with a presumption favoring

the retention of well-established principles, except when a

statutory purpose to the contrary is present. U nited States v.

Texas,

--- U.S. ----, ----, 113 S.Ct. 1631, 1634 (1993). This

principle applies to federal common law as well as state common

law. Id.

In light of this principle, we note that it is not necessary

for Congress, in order to abrogate a federal common law provision,

to affirmatively proscribe t he common law rule. M ilwaukee, 451

U.S. at 313-15, 101 S.Ct. at 1791. However, Congress must "speak

directly" to the question addressed by the common law. I d. After

considering t he plain language of section 1821(k), we find that

Congress did "speak directly" to the issue of the federal standard

of care for directors and officers of federally-insured depository

institutions thus preempting any resort to federal common law. 4dicta.

7 The starting point for any question of statu tory

interpretation is the statute itself. Absent a clearly expressed

legislative intent to the contrary, " "that language must

ordinarily be regarded as conclusive.' " Kaiser Aluminum & Chem.

Corp. v. Bonjorno, 494 U.S. 827, 110 S.Ct. 1570, 1575, 108 L.Ed.2d

842 (1990) (quoting Consumer Product Safety Comm'n v. GTE Sylvania,

Inc., 447 U.S . 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766

(1980)). In this case, the statute clearly provides that "[a]

director or officer

... may be held personally liable for monetary

damages in any civil action ... for gross negligence ... as such

terms are defined and determined under applicable State law." 12

U.S.C. § 1821(k). It is difficult to conceive how Congress could

more clearly "speak directly" to the issue of the standard of care

for personal liability of directors and officers of

federally-insured depository institutions. As Congress has spoken

to this area, the nee d to resort to federal common law no longer

exists. Thus, whatever the content of federal common law may have

been, it "must yield to Congress' clear statement that a gross

negligence standard of liability applies." Gallagher, 10 F.3d at

420.

In urging us to reach a different conclusion, the RTC contends

that the gross negligence standard set out in section 1821(k) is

not exclusive. Section 1821(k), the RTC points out, provides that

a director or officer "may" be held liable under a gross negligence

standard. If that section were meant to be exclusive, the RTC5 "Read in context, the word "may' refers to the right of the

[RTC] to bring an action under this section. "May' cannot

reasonably be read to qualify the gross negligence liability

standard and is therefore irrelevant to the substance of the

provision." Gallagher, 10 F.2d at 420 (quoting Canfield, 967

F.2d at 450 n. 4 ( Borby, J., dissenting)).

6 The savings clause provides that the RTC's rights under

other applicable law will not be impaired or affected. This

clearly implies that the RTC's rights under some law is being

impaired or affected. FDIC v. Swager, 773 F.Supp. 1244, 1248

(D.Minn.1991). Under the RTC's construction of the savings

clause, though, there is no law that is impaired or affected

because all previous common law remains effective and § 1821(k)

merely grants the RTC an additional option. Had Congress

8 argues, it would have s aid "may only." The RTC finds further

support for its argument in the general savings clause of section

1821(k) which specifically preserves any right the RTC may have

under any other applicable law. This other applicable law, the RTC

contends, includes federal common law which the RTC maintains

allows suits for simple negligence.

The RTC's argument is without merit. First, the word "may" as

used in the first sentence of section 1821(k) empowers the RTC to

bring a cause of action under the gross negligence standard set out

in the rest of the sentence. The RTC, however, would have us read

that word, not as an empowerment, but rather as a qualification

which undermines the very cause of action the section creates. We

agree with the Gallagher court, though, that this term was not

meant to qualify the substantive part of the section providing for

a gross negligence standard. 5

Next, we reject the RTC's reading of the savings clause. That

clause states that "[n]othin g in this paragraph shall impair or

affect 6 any right of the Corporation under other applicabl e law."intended this result it would have drafted the clause to read

that "[n]othing in this paragraph shall impair or affect any

right of the Corporation under any applicable law." Id.

Accordingly, for this reason also, we find the RTC's construction

of the savings clause to be contrary to the plain meaning of the

statute.

7 But see Chemetron Corp. v. Business Funds, 682 F.2d 1149

(5th Cir.1982), wherein this Court quoted with approval the

following language:

The settled rule of statutory construction is that,

where there is a special statutory provision affording

a remedy for particular specific cases and where there

is also a general provision which is comprehensive

9 12 U.S.C. § 1821(k). If we were to construe that clause, as the

RTC suggests, to preserve federal common law actions for simple

negligence, th en the explicit language of the first sentence of

section 1821(k) which enunciates a cause of action for gross

negligence would be rende red a nullity. Why would the RTC ever

bring an action under section 1821(k), where it would have to prove

gross negligence, when it could bring an action under the federal

common law and only be required to prove simple negligence?

Reading the savings clause to nullify the substantive portion

of the section would violate "the elementary canon of construction

that a statute should be interpreted so as not to render one part

inoperative." Mountain States Tel. & Tel. Co. v. Pueblo of Santa

Ana, 472 U.S. 237, 249, 105 S.Ct. 2587, 2594, 86 L.Ed.2d 168 (1985)

(quoting Colautti v. Franklin, 439 U.S. 379, 392, 99 S.Ct. 675,

684, 58 L.Ed.2d 596 (1979)); I n re Dyke, 943 F.2d 1435, 1443 (5th

Cir.1991). Moreover, were we to accept the RTC's arguments, the

general savings clause would drown out the more s pecific

substantive p rovision. 7 This would be contrary to anotherenough to include what is embraced in the former, the

special provision will prevail over the general

provision, and the latter will be held to apply only to

such cases as are not within the former.

Id. at 1168, n. 51 (quoting Montague v. Electronic Corp. of

America, 76 F.Supp. 933, 936 (S.D.N.Y.1948) (citations

omitted)).

10 important canon of construction which teach es that the more

specific controls over the general. Foreman v. Prudential

Insurance Co., 657 F.2d 717, 723 (5th Cir.1981). Finally, it

simply makes no sense that Congress would establish a cause of

action in one sentence and then render it a nullity in the next.

Accordingly we find that section 1821(k)'s retention of the RTC's

rights under "other applicable law" does not preserve a right to

bring a federal common law action for simple negligence in the face

of the gross negligence language of the substantive part of the

section.

In addition, we find the RTC's arguments ba sed on the

statute's legislative history to be insufficient to change this

conclusion. In making the argument that Congress intended a

federal commo n law action for simple negligence to remain viable

after the passage of section 1821(k), the RTC relies most heavily

on the Senate Report which provides that

[Section 1821(k) ] enables the FDIC to pursue claims against

directors or o fficers of insured financial institutions for

gross negligence (or negligent conduct that dem onstrates a

greater disregard of a duty of care than gross negligence) or

for intentional tortious conduct.... This subsection does not

prevent the FDIC from pursuing claims under State law or under

other applicable Federal law, if such law permits the officers

or directors of a financial institution to be sued 1) for

violating a lower standard of care, such as simple negligence,

or 2) on an alternative theory such as breach of contract or11

breach of fiduciary duty.

S.Rep. No. 19, 101st Cong., 1st Sess., 135th Con.Rec. S6912 (daily

ed. June 19, 1989). This report, however, was not available when

the Senate initially voted on this bill. Rather, it was published

two months after the Senate initially voted. I d. at S6934.

Accordingly, this report is not entitled to substantial weight.

Gallagher, 10 F.3d at 421; C larke v. Securities Industry Ass'n,

479 U.S. 388, 407, 107 S.Ct. 750, 761, 93 L.Ed.2d 757 (1987)

(refusing to give substantial weight to a statement made by the

sponsor of a law placed into the Congressional Record ten days

after the law was passed).

Moreover, examination of all of the legislative history, and

scrutiny of the sequence of events leading up to the bill's

passage, calls into question the conclusion of that report. This

law initiated in the Senate and, as originally drafted, it

explicitly provided for the exact same standard of liability which

the RTC now implores us to judicially adopt. Specifically, it

would have allowed the RTC to bring a claim "for any cause of

action available at common law, including, but not limited to,

negligence, gross negligence, willful misconduct, breach of

fiduciary duty...." S. 774, § 214(n), 101st Cong., 1st Sess. at

105-06 (calendar N. 45, April 13, 1989). In the Senate debate,

however, several senators expressed concern over this provision

fearing that it would deter qualified individuals from serving as8 In particular, Senator Heflin argued for an amendment "to

ensure that financial institutions are able to attract strong and

capable individuals as directors and officers." 135 Cong.Rec.

S4264 (daily ed. April 19, 1989). Senator Conrad also supported

Senator Heflin's request for an amendment. Id.

12 directors and officers. 8

Senator Riegle, one of the bill's floor manager's, agreed that

this was a serious concern and thus he submitted an amendment which

deleted any reference to simple negligence. 135 Cong.Rec. S4451-

52. This amendment, with only minor changes, would become section

1821(k). Speaking in favor of the amendment, Senator Sanford

stated that

these changes are essential if we are to attract qualified

o fficers and directors to serve in our financ ial

institutions.... The amendment would permit the FDIC to bring

an action or direct others to bring an action against the

directors and officers of a financial institution if the

director or officer acted with gross negligence or committed

an intentional tort.

Id. a t S4276-77. This comment reflects the deletion of a simple

negligence standard from section 1821(k).

Moreover, the House version of FIRREA, which was passed after

the Senate version and which was the version that emerged from the

conference committee and was voted into law, preserved the Senate's

removal of the simple negligence standard. S ee Pub.L. No. 101-73,

103 Stat. 183 (Aug. 9, 1989), reprinted in 1989 U.S.C.C.A.N. 86.

Further, the House-Senate Conference report confirms t h at the

standard of liability under section 1821(k) is gross negligence:

Title II preempts State law with respect to claims brought by

the FDIC in any capacity against officers or directors of an

insured depository institution. The preemption allows the

FDIC to pursue claims for gross negligence or any conduct that

demonstrates a greater disregard of a duty of care, including9 A major concern of this section was the trend in the states

of passing legislation that insulated directors and officers from

liability unless they were reckless or committed willful

breaches. Hence, one purpose was of this section was to ensure

that the RTC could bring an action for gross negligence even in

the face of contrary state law. Thus, as explained by Senator

Riegle, this section preempts state law at least to the extent

that the state law disallows an action against a director or

officer for gross negligence or for any conduct reflecting a

higher disregard of a duty of care than gross negligence. 135

Cong.Rec. S4278-79 (daily ed. April 19, 1989). As the issue we

face is whether federal common law is preempted, the issue of

insulation by forgiving state legislation is not relevant.

13 intentional tortious conduct. 9

H .R.Conf.Rep. No. 222, 101st Cong. 1st Sess. 393, 398 (1989),

reprinted in 1989 U.S.C.C.A.N. 432, 437. This conference report is

entitled to great deference inasmuch as it represen ts the final

statement of terms agreed upon by both houses of Congress. Davis

v. Lukhard, 788 F.2d 973, 981 (4th Cir.), cer t. denied, 479 U.S.

868, 107 S.Ct. 231, 93 L.Ed.2d 157 (1986).

In sum, it appears that the sponsors of the bill feared that

they could not get the votes needed for passage if they attempted

to retain the standard of liability from the original draft of the

bill which would have explicitly allowed the RTC to bring simple

negli gence actions under the federal common law. Therefore, the

sponsors dropped that standard and put in its place a federal gross

negligence standard of liability.

This conclusion that the simple neg ligence standard of

liability was removed from the statute is also supported by

postenactment legislative history. Although post-enactment

legislative history cannot be given the same weight as

contemporaneous legislative history, we would be remiss if we did10 In August 1991, the FDIC submitted to Congress a proposed

amended savings clause which provided that:

Nothing in this subsection shall impair or affect any

right of the [FDIC] under other applicable State or Federal law, including a right to hold such director or

officer personally liable for negligence.

Liebold, Federal Common Law: What & Where?, in Civil &

Criminal Liability of Officers, Directors & Professionals:

Bank & Thrift Litigation in the 1990's, 153, 161 n. 12

(Practicing Law Institute 1991) (emphasis added). Then,

after this proposal was withdrawn, Congressman Baker, at the

request of the FDIC, submitted another proposed amendment

which would have provided that there would have been no

impairment of any right of the RTC

under any provision of applicable State law or other

Federal law, including any provision of common law or any law establishing the personal liability of any

director or officer of an insured depository

institution under any standard pursuant to such law.

H.R. 3435, 102nd Cong., 1st Sess. § 228 (Comm. Markup Oct.

18, 1991).

14 not consider it. C annon v. University of Chicago, 441 U. S. 677,

687 n. 7, 99 S.Ct. 1946, 1952, n. 7, 60 L.Ed.2d 560 (1979). In

this case, we note that there have been two subsequent attempts to

amend section 1821(k) to codify a simple negligence standard. 1 0

These two attempts to reinstate a simple negligence standard belie

the RTC's position that the savings clause of section 1821(k), as

enacted, pres erves a right to sue for simple negligence under

federal common law.

At best, the RTC has shown that the legislative history to

FIRREA is muddled and sends conflicting signals. However, this

history simply does not demonstrate the kind of "clearly expressed

legislative intention" needed to overcome the plain meaning of the

statute. Kaiser Aluminum, 494 U.S. at 833-34, 110 S.Ct. at 1575.11 In Louisiana World Exposition, this Court was called on to

determine whether La.Rev.Stat.Ann. § 12:226(A) (West 1969)

described a simple negligence or a gross negligence standard of

liability. Louisiana World Exposition, 864 F.2d at 1149. This

statute established the standard of care applicable to directors

and officers of a nonprofit Louisiana corporation and it provides

that

[o]fficers and directors shall be deemed to stand in a

fiduciary relation to the corporation and its members,

and shall discharge the duties of their respective

positions in good faith, and with that diligence, care,

judgment and skill which ordinarily prudent men would

exercise under similar circumstances in like positions.

§ 12:226(A). Reading this language in light of Louisiana

case law and the commentary, this Court held that simple

negligence was not enough under this statute for personal

liability to be assessed, but rather a showing of gross

negligence was necessary. Louisiana World Exposition, 864

F.2d at 1151.

15 That "plain meaning" of the statute provides for gross negligence

as the federal standard of liability. As this statute "speaks

directly" to the issue of the standard of liability for directors

and officers of federally-insured depository institutions, we hold

that federal common law in this area is preempted. M ilwaukee, 451

U.S. at 313-16, 101 S.Ct. at 1791-92.

2. Louisiana Law

During the proceedings in the district court, and in its

first two appellate briefs before this Court, t he RTC proceeded

with the understanding that the standard of liability for directors

and officers of depository institutions under Louisiana la w was

gross negligence. This was a well-founded belief as this Court

held e xactly that in L ouisiana World Exposition v. Federal Ins.

Co., 864 F.2d 1147, 1151 (5th Cir.1989). 11 S ee also FSLIC v.

Shelton, 789 F.Supp. 1360, 1366-67 (M.D.La.1992) ("There is no12 Although section 2 of Act 586 specifically provides that

it is to be applied retroactively, the RTC argues that the this

would be ignored by the Louisiana courts because its claims were

vested before the enactment of Act 586. See Gilboy v. American

Tobacco Co., 582 So.2d 1263, 1265 (La.1991) (A statute that

changes settled law relating to substantive rights only has

prospective effect).

16 claim under Louisiana law based o n simple negligence against

officers and directors"). Further, the Louisiana legislature, in

1992, codified that standard by the enactment of Act 586 which

provides that:

A director or officer of a financial institution shall not be

held personally liable to the financial institution or the

shareholders or members thereof for monetary damages unless

the director or officer acted in a grossly negligent manner as

define d in R.S. 6:703(9) or engaged in conduct that

demonstrates a greater disregard of the duty of care than

gross negligence, including intentional tortious conduct or intentional breach of the duty of loyalty.

La.Rev.Stat.Ann. 6:786(B) (West Supp.1994).

In its supplemental brief to this Court, however, the RTC

switched gears and contended for the first time that the Louisiana

law applicable at the time of the events in this case w as simple

negligence. For support, the RTC looked to M ary v. T he Lupin

Foundation, 609 So.2d 184 (La.1992), which the RTC claimed rejected

the conclusion in Louisiana World Exposition and held that prior to

the enactment of Act 586, the Louisiana standard of care was simple

negligence. Further, the RTC contended that Act 586 could not be

retroactively applied to defeat the RTC's rights which had vested

prior to its passage. 12

The RTC's contenti ons in its supplemental brief raise two

troubling questions. The first is whether we can address this17

issue raised for the first time in the RTC' s third round of

appellate briefing. The second is whether we can give Act 586

retroactive effect. Fortunately, we do not need to address these

issues because we find that the Louisiana standard of liability for

directors and officers is, and was, gross negligence.

The RTC's re liance on M ary as contra authority to Louisiana

World Exposition is misplaced. In M ary, the issue before the

Louisiana Supreme Court was not the standard of liab ility for

directors and officers, but rather it was the appropriate statute

of limitations to be applied to the action brought by Dr. Mary.

The action centered around the sale of the St. Charles General

Hospital which was owned by the Lupin Foundation. Dr. Mary, a

director of the Lupin Foundation, sued certain of his codirectors

claiming that they had wrongfully and secretly received $5 million

in a side deal with the purchaser of St. Charles. M ary, 609 So.2d

at 186.

Dr. Mary did not bring this suit until nine years after the

transaction, however. Thus, the defendants challenged the basis of

the cause of action brought by Dr. Mary. If, as the defendants

argued, the facts alleged stated a claim under La.Rev.Stat.Ann. §§

12:219(C) & 12:226(D) for unlawful distribution of co rporate

assets, then a two-year statute of limitations applied. I d. at

187. Thus, Dr. Mary's claim would be time-barred. On the other

hand, if, as Dr. Mary contended, the facts alleged stated a claim

under La.Rev.Stat.Ann. § 12:226(A) for breach of fiduciary duty by

an officer or director, then a ten-year statute of limitations13 As we conclude that the Louisiana standard of liability

mirrors the federal standard set in § 1821(k), we have no

occasion to determine whether § 1821(k) would preempt a more

onerous state standard and we express no opinion in that regard.

See supra note 2.

18 applied. In that case, the claim would not be time-barred. Id.

Resolving this issue, the Louisiana Supreme Court held that

Dr. Mary's claims were not time-barred as the facts alleged stated

a c laim under La.Rev.Stat.Ann. 12:226(A) and that the ten-year

statute of li mitations applied. I d. at 188. In making this

determination, though, the Louisiana Supreme Court only decided the

basis of liability under the facts as alleged. It did not decide

the issue of the standard of care under which personal liability

could be imposed against directors or officers under section

12:226(A) as that issue was not before the court.

According ly, we see no conflict between M ary and Louisiana

World Exposition. The Louisiana Supreme Court was not attempting

to s et any standard of liability and we find no explicit or

implicit intention in Mary to reject the gross negligence standard

announced by this Court in Louisiana World Exposition, 864 F.2d at

1151. Therefore, we adhere to the conclusion of the L ouisiana

World Exposition Court and hold that even prior to the enactment of

Act 586, the standard of care under Louisiana law for the

imposition of personal liability against directors and officers was

gross negligence. 13

CONCLUSION

Section 1821(k) "speaks directly" to the issue of the standard

of liability of a director or officer of a federally-insured14 In light of this conclusion, we have no occasion to

consider whether absent § 1821(k) federal common law would govern

the duties owed their corporation by directors or officers of

state-chartered, federally-insured, financial institutions.

19 depository institution thus preempting federal common law. 14

Moreover, the federal standard of liability established by section

1821(k) is gross negligence as defined under applicable state law.

Gross negligence is also the standard to be applied under Louisiana

law. Consequently, as neither federal law nor Louisiana law

recognizes a cause of action agains t directors or officers of

depository institutions for lesser breaches of duty tha n gross

negligence, the district court did not err in dismissing the RTC's

claims for simple negligence and breach o f fiduciary duty.

AFFIRMED.