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. e du/thir dc ir c uit_2015/832PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

______

No. 14

- 1204

______

IN RE: SEMCRUDE L.P., et al.,
Debtors

Thomas L. Kivisto,

Appellant

______
On Appeal from United States Bankruptcy Court

for the District of Delaware (08

- bk

- 11525 )
Honorable Brendan L. Shannon, U.S. Bankruptcy Judge

______
Argued December 9, 2014
Before: FUENTES, FISHER and KRAUSE

, Circuit Judges

.

(Filed: August 5, 2015 )2 Paul R . Bessette, Esq. ARGUED James P. Sullivan, Esq. King & Spalding 401 Congress Avenue
Suite 3200 Austin, TX 78701 Counsel for Appellant

Andrew S. Hicks, Esq. Adam P. Schiffer, Esq. ARGUED
Schiffer Odom Hicks & Johnson
700 Louisiana
Suite 2640 Houston, TX 77002

Gary F. Seitz, Esq.
Gellert Scali Busenkell & Brown
601 Walnut Street The Curtis Center, Suite 280 South Philadelphia, PA 19106
Counse l for Appellees

______

OPINION OF THE COURT

______3 FISHER, Circuit Judge

. Thomas L. Kivisto, co

- founder and former President
and CEO of Sem Crude L.P., a n Oklahoma

- based oil and gas

company, allegedly drove SemCrude into bankruptcy through
his self

- dealing and speculative trading strategies.
SemCrude ’s Litigation Trust sued Kivisto, and the parties reached a settlement agreement and granted a mutual relea se of all claims . One month later, a group of SemCrude ’s former limited partners (collectively, “Oklahoma Plaintiffs”)
sued Kivisto in state court , alleging breach of fiduciary duty, negligent misrepresentation, and fraud. Kivisto filed a n
emergency moti on to enjoin the state action on the theory that
the Oklahoma Plaintiffs’ claims deriv ed from the Litigation Trust’s claims, which the U.S. Bankruptcy Court for the
District of Delaware granted. On appeal, the U.S. District
Court for the District of Delaw are reversed, concluding that the claims were possibly direct and remanded. The Bankruptcy Court thereafter adopted the District Court’s order in its entirety and denied injunctive relief. Because we conclude that the claims are derivative, w e will rever se.

I.
A.

Kivisto co

- founded SemCrude in Tulsa, Oklahoma

, in
2000 and served as its President and CEO until 2008.
SemCrude provided transportation, storage, distribution, and
other oil

- and

- gas services to crude oil producers and refiners
across North Amer ica’s energy corridor. By 2006, SemCrude became one of the largest privately

- held companies in the
United States , with assets worth almost $14 billion. In 2007 and 2008, however, SemCrude was driven into bankruptcy , the cause of which is disputed by the parties. Kivisto blames the company’s collapse on, among other4 market factors, rising oil prices and tight credit markets that

were inhospitable to Kivisto’s previously successful trading strategy. The Oklahoma Pl aintiffs , on the other hand, blame
Kivist o for “engag[ing] in a patter n of egregious self

- dealing
and relate d

- party transactions, commingl[ing] personal and corporate funds, and ma[king] wildly speculative trades for
his own benefit ” that allegedly caused SemCrude billion s of
dollars in losses

. Appellees’ Br. at 2 n.1. In particular, they allege that Kivisto used SemCrude ’s funds to place bets on oil for his personal benefit through a trading company that he
owned with his wife

, Westback Purchasing Company , LLC (“Westback”) , causing SemCrude to incur a $290 million
receivable ; and engaged in high

- risk , double

- or

- nothing
trades on behalf of SemCrude

, stripping SemCrude of its ability to finance its operations and causing over $ 3 billion in losses. App. 333

- 43

. The Oklahoma Plaintiffs further al lege that Kivisto
concealed these decision s and actively misrepresented
SemCrude ’s financial health and stability in order to induce them to invest additional capital or retain their investments in
SemCrude . They specifically assert that Kivisto , among ot her things, mis repre sented that SemCrude ’s “ trading position s

were always ‘ delta neutral ’ ” and that it “ ‘ close d its positions
in it s trading books every day

, ’ ” and concealed the existe nce of his personal trading scheme as well as SemCrude ’s trade

exposure and attendant risks

. App. 338

. The Oklahoma
Plaintiffs claim that “ Kivisto made these misrepresentation s to [the Oklahoma] Plaintiffs during shareholders’ meetings,

‘ informative unithold er meetings, ’ and other meetings

— both formal and informal” in 2000; 200 1; April and September
20 02; July 2003; December 2004; and later. App. 338. In “reli[ance] upon Kivisto’s representations,” the Oklahoma Plaintiffs allege that they “contributed millions of dollars to5 Sem [ Crude ] throug h capital contributions made [i] n ”
December 2000; November 2002; December 2003; January 2005; a nd May 2006. App. 338

. They a lso allege that “Kivisto was particularly aggressive in his efforts to induce [the Oklahoma] Plaintiffs to make their 2006 capital contributions. ” App. 338. On or about May 25, 2006, during a lunch meeting at Southern Hills Country Club in Tulsa that occurred one day before a capital
contribution deadline

, “ Kivisto approached certain of the [Oklahoma] Plaintiffs and made several statements clearly
intended to ind uce them to make these capital contributions. ” App. 338. He allegedly told some of the Oklahoma Plaintiffs that “you’ve got 24 hours to get your money in,” and “you don’t want to miss this one,” emphasizing that the value of
their shares would increase s ubstantially in the future and that failing to make the contribution s would cause them financial
loss . App. 338

- 39 (internal quotation marks omitted)

. Those
Oklahoma Plaintiffs contributed several million d ollars to
SemCrude shortly thereafter.
In esse nce, the Oklahoma Plaintiffs claim that, as a result of their personal dealings with Kivisto, they “ acted and/or forewent certain actions in reliance upon Kivisto’s
mis representations and omissions.

. . . [This is] illustrated, in part, by the millions of dollars [the Oklahoma] Plaintiffs paid

to Sem [ Crude ] in the form of capital contributions. ” App.
350. They distinguish themselves from other limited partners because they allege that Kivisto’s misrepresentations were made specifically to them. They als o distinguish themselves
as “non

- insider” limited partners, claiming that all other limited partners held board or management positions or were involved in “sweetheart side deals” with Kivisto, which allowed these “insiders” to obtain information not avail able to6 the Oklahoma Plaintiffs or dissuaded them from disclosing Kivisto’s alleged misconduct

. Appel lees’ Br. at 2.

B.
On July 22, 2008, Sem Crude, its parent company, SemGroup L.P., and certain direct and indirect subsidiaries (collectively, “ SemCrude ”) filed for C hapter 11 bankruptcy in the U.S. Bankruptcy Court for the District of Delaware. The
Ban kruptcy Court entered a confirmation o rder o n October 28, 2009, confirming SemCrude ’s plan of r eorganization

. The reorganization p lan established a Litigati on Trust and
transferr ed to it the claims belonging to SemCrude ’s bankruptcy estate

. The Litigation Trust was therefore entitled to pursue SemCrude ’s claims and distribute the money it
recovered to SemCrude ’s creditors

. In 2009, the Litigation Trust 1 asse rted against Kivisto,
certain former SemCrude officers , and Westback thirty claims related to breach of fiduciary duty, breach of contract, fraudulent transfer, and unjust enrichment. See App. 61

- 150

. Following mediation, the parties reached a $30 millio n settlement agreement ( that was paid out of the directors’ and officers’ liability insurance policies) and granted a mutual
release of all claims . The Litigation Trust also discharged
Kivisto and the other SemCrude officers from liability to any party fo r contribution or indemnity relating to the released claims. The Bankruptcy Court app roved the settlement agreement o n November 19, 2010.

1 More precisely, the Litigation Trust was substituted as the plaintiff in an adversary proceeding brought by an unofficial committee of SemCrude’s unsecured cr editors.7 One month later, o n December 22, 2010, the
Oklahoma Plaintiffs 2 filed suit against Kivisto and PriceWaterhouseCooper s LLP (“PwC”), SemCrude ’s pre

bankruptcy auditor

, in the Tulsa Coun ty District Court in
Oklahoma. Asserting injuries allegedly separate and distinct from the inju ries sustained by SemCrude , the Oklahoma
Plaintiffs sought money damages from Kivisto for bre ach of fiduciary duty, negligent misrepres entation, and fraud, and
from Pw C for professional negligence and a violation of the Oklahoma Accountancy Act. See App. 325

- 53. PwC removed the case, but the U.S. District Court for the Northern
District of Oklah oma remanded the case back to state court. Ultimately, although PwC is not a party to this appeal, the Bankruptcy Court enjoined the action against PwC as derivative on October 7, 2011, 3 and the District Court affirmed that order on November 15, 2012.
O n May 4, 2011, Kivisto filed an emergency motion in the Bankruptcy Court to enjoin the Oklahoma Plaintiffs’ lawsuit from proceeding in state court and, specifically, to
enforce the confirmation order, the terms of the reorganization p lan , and the settleme nt agreement . He alleg ed that the Oklahoma Plaintiffs’ claims belonged to the Litigation Trust and had been released. SemCrude and the Litigation Trust joined the motion.

2 The Oklahoma Plaintiffs include Cottonwood Partnership, L.L.P; Dunbar Family Partnership, L.P.; Rosene Family L.L.C.; Warren F. Kruger; Katherine A. Kruger; David S. Kruger; and Kathryn E. Shelley.

3 Prior to the Oklahoma Plaintiffs’ suit

, the Litigation Trust sued PwC in the Tulsa County District Court for professional negligence, breach of fiduciary duty, and a
violation of the Oklahoma Accountancy Act.8 The Bankruptcy Court granted the motion to enjoin all
three claims on October 7, 2011. It explained that the Oklahoma Plaintiffs’ claims were derivative causes of action
for the following re asons: (1) “[T]he injury suffered by the
Oklahoma Plaintiffs is no differe nt from the injury suffered by SemCrude as a result of Kivisto’s wrongfu l conduct ”; (2)
the Oklahoma Plaintiffs did not show that Kivisto owed them

a ny duties distinct from his fiduciary duties owed to SemCrude and it s other equity holders; and (3) any recovery would be deemed equity in SemCrude ’s estate and, therefore,
the Ok lahoma Plaintiffs would not be entitled to recovery
outside the terms of the reorganization plan. App. 19. The parties agreed to stay the lawsuit in state court pending final resolution of these proceedings.
The Oklah oma Plaintiffs appealed to the Distr ict
Cou rt, and, o n November 15, 2012, the District Court reversed and remanded the Bankruptcy Court’s order on all
three claims. The District Court explained that the Bankruptcy Court did not properly consider the Oklahoma Plaintiffs’ claims that they had been separately harmed and
found that there was a sufficient basis to conclude that they
had been

. As to negligent misrepresentation and fraud, it pointed to Kivisto’s misrepresentations to the Oklahoma Plaintiffs “

personally to induce them to make capit al contributions.” App. 36. As to breach of fiduciary duty, it pointed to “the length and nature” of Kivisto’s relationship
with the Oklahoma Plaintiffs and the “trust and confidence reasonably placed by [the Oklahoma] Plaintiffs in the integrity and loy alty of Kivisto.” App. 37 (internal quotation marks omitted)

. Therefore, since the Oklahoma Plaintiffs sufficiently alleged distinct duties, they “may be able to
demonstrate entitlement to a recovery separate from9 Sem[Crude].” App. 37. The District Cou rt thereafter denied Kivisto’s motion for rehearing on March 12, 2013. On remand, the Bankruptcy Court denied Kivisto’s
motion to enjoin t he negligent misrepresentation and fraud claims, but granted the motion with respect to the breach of fiduciary duty claim. This order was entered on July 2, 2013,
and b oth Kivisto and the Oklahoma Plaintiffs appealed . O n October 30, 2013, the Bankruptcy Court amended its order and “adopt[ed] and incorporate[d] by reference herein the legal analysis, findings of fact a nd conclusions of law of the District Court’s November 15, 2012 [] [o]rder, in its entirety.” App. 6. It therefore denied Kivisto’s motion to enjoin with respect to all three claims. Kivisto timely appealed from the
amended order.

II.

Because Kivisto’s motion to enjoin is related to the
C hapter 11 reorganization plan and requires a determination
that the Oklahoma Plaintiffs’ claims are property of the Litigation Trust, the Bankruptcy Court had subject

- matter jurisdiction under 28 U.S.C. §§ 1334 and 157(b )(2)(A). This Court exercises jurisdiction over Kivisto’s direct appeal pursuant to certification by the Bankruptcy Court, the District Court, and the parties acting jointly under 28 U.S.C. § 158(d)(2). 4

4 The Bankruptcy Court certified Kivisto’s request for
d irect appeal to the Third Circuit i n its October 30, 2013,
amended order ; the parties jointly certified the appeal on November 22, 2013; and t he District Court certified the parties’ joint request on March 11, 2014, and Kivisto’s
request on March 31, 2014. This Court authorized the appeal on January 21, 2014.10 This Court “review[s] the Bankruptcy Court’s factu al findings under a clearly erroneous standard and exercise[s] plenary review over legal issues.” In re Emoral, Inc. , 740 F.3d 875, 879 (3d Cir. 2014). Whether a claim is derivative or direct is a question of (state) law, see Official Comm. of
Unsecured Creditors v. R.F. Lafferty & Co. , Inc. , 2 67 F.3d 340, 348 (3d Cir. 2001)

, so we exercise plenary review

. W hile we review a court’s denial of injunctive relief for abuse of discretion, plenary review of the issue of derivative status is appropriate here b ecause “[a] district court by definition
abuses its discretion when it makes an error of law.” Koon v. United States , 518 U.S. 81, 100 (1996).

III.
“T he derivative injury rule holds that a shareholder

. . . may not sue for personal injuries that result directly from injuries to the corporation.” In re Kaplan , 143 F.3d 807, 811

- 12 (3d Cir. 1998) ( applying Illinois law). The rule is premised on the legal fiction of corporate existence, in which

“ an injury to the corporate body is legally distinct from an injury to another person. ” Official Comm. of Unsecured
Creditors , 267 F.3d at 348. Under Oklahoma law

, which the parties concede controls here, the derivative injury rule does not apply when a shareholder allege s that he or she “ sustained any loss in ad

dition to the los s sustained by the corporation

. ” Dobry v. Yukon Elec

. Co

. , 290 P.2d 135, 138 (Okla. 1955) (emphasis added) . This standard extends to limited11 partnerships. 5 Okla. Stat

. Ann. tit. 54, § 500

- 100 1A(b) (“A partner commencing a direct action under this section is required to plead and prove an actual or threatened injury that is not solely the result of an injury suffered or threate ne d to be suffered by the limited partnership.”).
W e discuss the Oklahoma Plaintiffs’ claims for (A) negligent misrepresentation and fraud 6 and (B) breach of fiduciary duty in tu rn. The Court ultimately concludes that
the Oklahoma Plaintiffs fail to show “any loss in addition to”
SemCrude ’s loss and, therefore

, that the ir claims derive from the claims released by the Litigation Trust

.

5 Under Oklahoma law, we may rel y upon corporate as well as partnership case law in analyzing the derivative/direct
nature of the Oklahoma Plaintiff s ’ claims because the determination is substantially the same in the corporate and
limi ted partnership contexts. See Lenz v. Associated Inns &
Rests

. Co. of Am. , 833 F. Supp. 362, 379 n.18 (S.D.N.Y. 1993) ( applying Oklahoma law); see also Adco Oil Co. v.
Rovell , 357 F.3d 664, 666 (7th Cir. 2004) (construing Oklahoma law and applying the der ivative injury rule in a limited partnership context).

6 The District Court and the parties treat negligent misrepresentation and fraud together in light of their doctrinal similarity under Oklahoma law. See App. 36 (citing Roberson v. PaineWebber, Inc.

, 998 P.2d 193, 197 (Okla.
Civ. App. 1999) (stating the elements for fraud); Ragland v. Shattuck Nat’l Bank , 36 F.3d 983, 991 ( 10th Cir. 1994) (stating the elements for negligent misrepresentation) )

.12 A.

1.
Before analyzing whether the Oklahoma Plaintiffs’
claims state derivative or direct causes of action , we lay out the analytical framework established by the Supreme Court of
Oklahoma in Dobry v. Yukon Electric Company , 290 P.2d at
138. The parties agree that Dobry creates the governing
standard for determining the derivative status of claims in
Oklahoma

. The Dobry Court considered whether the plaintiff

stockholder could bring a direct claim against the directors of

a corpor ation whose fraudulent conduct resulted in loss “by depriving [the shareholder] of dividends which he might
otherwise have received or by depressing the value of his stock.” Id. at 137. Adopting the universal principles underlying the derivative injury r ule, t he Court explained that
there is no individual loss in such a situation : In view of the legal concept of corporate entity
under which stockholders as such lose their individualities in the individuality of the corporation as a separate and distinct p erson, and of the fact that stockholders by investing their money in the corporation recognize it as the person primarily entitled to control and manage its use for the common benefit of all the stockholders, it is a well

- established general
rule that a st ockholder of a corporation has no personal or individual right of action against third persons, including officers and directors of the corporation, for a wrong or injury to the corporation which results in the destruction or depreciation of the value of h is stock, since the wrong thus suffered by the stockholder is13 merely incidental to the wrong suffered by the corporation and af

fects all stockholders alike

.

Id. (quoting H.A. Wood, Stockholder’ s Right t o Maintain (Persona l) Action Against Third Pe rson as Affected by Corporation’ s Right of Action for t he Same Wrong

, 167
A.L.R. 280 (1947) ) (emphasis added)

. In other words, the Court underscored, where the alleged loss stems from management’s wrong to the corporation that incidentally
affects the shareholder ’s stock and affects all shareholders alike, the rights are derivative. This is because “ ‘ [i] t was not

as individuals that plaintiffs suffered detriment and damage,
but as stockholders in common with others similarly situated. No fraud or deceit was pra cticed on plaintiffs, nor was any illegal act performed to their detriment, which was not common to all persons similarly situated in their legal
relations to defendants. ’ ” Id. at 138 (quoting Stuart v.
Robertson

, 248 P. 617, 619 (Okla. 1926))

. T he Court reiterated the following rule: “ ‘ If the plaintiff has sustained no loss in addition to the loss to the corporation, the action cannot be maintained as an individual even though the wrongful acts were done with the specific
intent of injuring the plaintiff

. ’ ” I d. at 137 (quoting 1 2B Fletcher Cyc. Corp. § 5914). It concluded that “[i] n the instant case the plaintiff did not allege . . . that he sustained any loss in addition to the loss sustained by the corporation. His loss was only incidental to the cor poration’s loss and
under the rules set forth her ein, his rights were derivative. ”

I d. at 138

. With this backdrop, we turn to whether the Oklahoma Plaintiffs allege direct claims

— that is, whether they allege loss “in addition to” SemCrude ’s loss.14 2.

Because whether a suit is derivative or direct is drawn
from t he face of the complaint, se e 12B Fletcher Cyc. Corp. §
5913 , our analysis is drawn from the state

- court petition f iled by the Oklahoma Plaintiffs against Kivisto.

The Oklahoma Plaintiffs’ f irst claim for distinct loss is
based on Kivisto’s alleged face

- to

- face misrepresentations
and omissions directed at the Oklahoma Plaintiffs during formal and informal limited partner meetings

, in particular the
2006 lunch meeting at the Southern Hills Cou ntry C lub, and
based on their alleged status as “non

- insider” limited partners

. They allege th at they relied on Kivisto’s inducement by (a ) making additional capital contributions and ( b ) forego ing opportunities to sell their limited partner units

. Kivi sto counters that the Oklahoma Plaintiffs are functionally indistinguishable from any other investor who acted upon or forewent opportunities to sell their limited partner units as a result of Kivisto’s misrepresentations and
omissions. He argues that all SemCrude limited partners suffered the same loss of capital on a pro rata basis as a result of his alleged misconduct and, therefore , the Oklahoma Plaintiffs’ “[r]espective losses dif fer only in amount, not in kind, ” making their claims derivative. Appel lant’ s Br. at 30. We agree

. “I t is well settled that an injury done to the stock and capital of a corporation by the negligence or misfeasance of its officers and directors is an injury done to the whole body of stockholders in common, and not an injury for which a single stockholder can sue.” Stuart , 248 P. at 619 (inte rnal quotation marks omitted); se e also 12B Fletcher Cyc. Corp. § 5913 (“The reasoning behind this rule is said to be that a diminution in the value of corporate stock resulting15 from som e depreciation or injury to corporate assets is a direct injury only to the corporation; it is merely an indirect or incidental injury to an individual shareholder.”)

. Nor may claims for corporate mi smanagement be brought directly. See
Weston v. Acme Too l, Inc. , 441 P.2d 959, 962 (Okla. 1968) (“The remedial rights of minority stockholders with respect to wrongs committed against the corporation by the officers and directors in the management of corporate affairs are derivative rights . . . .”). According ly , to the extent the Oklahoma Plaintiffs’ claims are masked claims for a diminution in value of their limited partner units as a result of Kivisto’s mismanagement , the ir claims are derivative of the claims released by the Litigation Trust

. See Lipton v. News Int’l, Plc , 514 A.2d 1075, 1078 (Del. 1986), disapproved of on other grounds by Tooley v. Donaldson, Lufkin & Jenrette,
Inc. , 845 A.2d 1031 (Del. 2004) (“ [W] e must look to the nature of the wrongs alleged in the body of the complaint, not to the plain tiff’s desi gnation or stated intention.”); Arent v.
Distribution Scis. , Inc. , 975 F.2d 1370, 1373 (8th Cir. 1992) (“[T]he fact that plaintiffs framed the harm as a direct fraud [does] not permit them to go forward on a claim that [i]s, at its core, derivat ive.”). Of course, the Oklahoma Plaintiff s oppose this
characterization and attribute their injury before SemCrude ’s bankruptcy in 2008 to the various times when the Oklahoma
Plaintiffs contributed additional capital or retaine d their
investments as a resu lt of Kivisto’s inducement

. They argue that, at the times they were induced to contribute, the capital they received was not worth what they paid. However, closer scrutiny reveals that the gravamen of the Oklahoma Plaintiffs’ injury is the demise of SemC rude as a result of Kivisto’s alleged misconduct

. Th at is, th e course of conduct underlying the Oklahoma Plaintiffs’ alleged loss

— i.e.,16 Kivisto’s failure to disclose his risky trades or self

- dealing or actively misrepresenting SemCrude ’s trading positions

— is
the exact same conduct underlying the alleged cause of
SemCrude ’s bankruptcy and, therefore, the Litigation Trust’s
released claims against Kivisto

. See App. 326 ( asserting in their state court petition that Kiv i sto’s specul ative trading strategy and self

- dealing caused the Oklahoma Plaintiffs to “los [ e ] the full value of their limited partnership units when
Sem [ Crude ] declared bankruptcy in July 2008”)

. T h us, th e Bankruptcy Cour t got it right the first time it passed on the issue: “[T]he injury suff

ered by the Oklahoma Plaintiffs is no
differe nt from the injury suffered by SemCrude as a result of Kivisto’s wrongful conduct. Indeed, the Oklahoma Plaintiffs’ alleged loss of capital went hand

- in

- han d with the titanic
losses that SemCrude suffered in th e run

- up to its bankruptcy filing.” App. 19. The Oklahoma Plaintiffs’ alleged injury
therefore derive s from SemCrude’s injury

. See, e.g.

, Arent

, 975 F.2 d at 1374 (“[Plaintiffs’] claim also fails as a matter of law because any injury to plaintiffs was no t caused by [the corporation’s] failure to disclose. Plaintiffs were not harmed because they were unable to realiz e the true value of their
stock

— they were harmed because the true value of their stock

was zero. ”); C rocker v. FDIC , 826 F.2d 347, 35 0

- 5 1 (5t h Cir. 1987) (holding that minority shareholders’ claims that they

“ would have ” sold their stock had they known that the corporation was failing was , at its core, nothing more than a
derivative claim for diminution in the value of corporate stock).
Accordi ngly , the Oklahoma Plaintiffs are unable to show that they experienced any loss “in addition to” the other17 equity holders or, equally , the company , 7 who were injured by Kivisto’ s alleged misconduct and experienced the same
pro rata loss by investing or fai ling to divest their units

. “Where all of a corporation’ s stockholders are harmed and
would recover pro rata in proportion with their ownership of
the corporation’ s stock solely because they are stockholders,
then the claim is derivative in nature. ” Feld man v. Cutaia

, 951 A.2d 727, 733 (Del. 2008) ; see also Empire Life Ins. Co. of Am. v. Valdak Corp. , 46 8 F.2d 330, 335 (5th Cir. 1972) ( explaining that claims are derivative where “ each shareholder suffers relatively in proportion to the number of
shares he owns ” ). Try as they may to distinguish themselves from other limited partners , the Oklahoma Plaintiffs’ losses differ only in amount, not in kind.
And even if the Court found arguendo that the
Oklahoma Plaintiffs were uniquely harmed

, the Oklahoma
Plain tiffs still may not bring claims directly because they have no right to recover the losses they assert. The Oklahoma
Plaintiffs ’ asserted losses are the “millions of dollars [ they ] paid to Sem [ Crude ] in the form of [ additional ] capital contributions” at K ivisto’s specific request. App . 3 50; Appellees’ Br. at 21. However, any such recovery would be considered equity in SemCrude’s estate, which be longs to the Litigation Trust

. “ [D] estruction or depreciation of the value
of [ a shareholder’s ] stock . . . is merely incidental to the wrong suffered by the corporation and affects all stockholders alike.” Dobry , 290 P.2d at 137 ( internal quotations marks
omitted ). Accordingly, the Oklahoma Plaintiffs cannot show

7 See Jarvis v. Great Bend Oil Co. , 168 P. 450, 454 (Ok la. 1917) (“Where the injury is to the stockholders collectively it is said to be an injury to the corporation.”) (internal quotation marks omitted).18 that they are entitled to receive the benefit of recover y without showing an injury to SemCrude

. See Tooley

, 845
A.2d at 1039 (“The stockholder must demonstrate that

. . . he
or she can prevail without showing an injury to the corporation.” ). 8 The Oklahoma Supreme Court’s decision in Jarvis v.
Great Bend Oil Co. , 168 P. 450 (Okla. 1917), and Johnson v.
Render , 270 P. 17 (Okla. 1928)

, which the parties heavily dispute, drives this principle home

. In Jarvis

, a corporation’s promoters induced investors to pay an inflated price for the corporation’s st ock by fraudulently misrepresenting the price

8 Kivisto asserts for the first time on appeal that Tooley
should not be used to decide the derivative sta tus of claims in
Oklahoma . However, it appears that he specifically makes this argument with regard to Tooley ’s disavowal of the “special injury” test used to identify direct claims

. See Appellant’ s Br. at 22 n.5; see also Tooley

, 845 A.2d at 1033, 1035, 1037

- 39 (disapproving of the “special injury” concept
and establishing that the analysis must turn solely on “ (1 ) who suffered the alleged harm” and “ (2) who would receive the benefit of any recovery or othe r remedy”) ; cf. id. at 1036 (explaining that the second inquiry “ is helpful in analyzing the first prong of the analysis: what person or entity has suffered the alleged harm? The second prong of the analysis should logically follow. ”) . While we may generally look to Delaware law in construing Oklahoma corporate law, see Beard v. Love , 173 P.3d 796, 802 (Okla. Civ. App. 2007) (“[I]n the absence of Oklahoma authority we may consult decisions from the courts of Delaware and other jurisdictions concerning derivative actions.”) , we do not rely on the specia l injury test here and therefore do not reach whether Tooley is
inconsistent with Dobry on this basis.19 of an oil

- and

- gas lease, which the corporation thereafter purchased. 168 P. at 450

- 53. The corporation sued the promoters, and the pro moters argued that the corporation did not have standing because the fraud occurred “prior to the organization of the [] corporation

. ” Id. at 453. On appeal, the
Jarvis Court held that the right of action was properly vested in the corporation because the promoters purchased the lease using c orporate funds previously paid in b y the investors collectively. In other words , the investors c ould not bring
direct claims ; the wrong complained of was fraud against the newly

- formed corporate entity, which received a lease worth less than the amount of corporate funds used to buy it. A s a result, all shareholders were affected equally (in proportion to their contributions), and “each [shareholder] will be made whole if the corporation obtains compensation or restitution from the wrongdoer. ” Empire Life Ins. Co. , 468 F.2d at 335.
On the other side of the spectrum is Johnson

. In
Johnson , the promoters of a corporation induced the plaintiff, S.P. Render, to pay an additional “bonus” for the company’s stock by misrepresenting the corporation’s value and then pocketing the bonus for their o wn benefit. 270 P. at 17

- 18

. The Court rejected appellees’ allegation that the right to sue was vested in the corporation. It explained that , unlike in
Jarvis

, “ [i] n the instant case neither the corporation nor the stockholders collectively were defraud ed of any sum whatsoever, [because] the corporation received value, d ollar for dollar, for its stock,” and because “ no breach of duty was
violated as against the corporation or the stockholder s collectively. ” Id. at 20. Rather,
The fraud complained of w as against the plaintiff, Render, individually, was a breach of duty under the original agreement between him
and the defendants . . . . The fraud arose from a20 misrepresentation as to the payment of a bonus whereby plaintiff was induced to pay a sum of

mon ey not in accord with and in violation of their original agreement.

Id . Accordingly, the Court was “ unable to see where the corporation in the instant case would have the right to maintain any action against the def endants for the recovery
and return of the sum sought to be recovered by the plaintiff

, Render. ” Id

. 9

9 The parties also dispute an unpublished, federal district court opinion, Stoner v. Ford , No. 74

- 311, 1974 WL 476 (N.D. Okla. Dec. 24, 1974) (applying O klahoma law)

, which has the least force but which we discuss here for the sake of completeness. In Stoner , the plaintiff b r ought a suit against the promoters and directors of a corporation alleging, among other things, that the defendants fraudulently ind uced
him to purchase stock in their company by failing to disclose that they watered the stock and made a secret profit. Id. at *4.
The Stoner Court considered both Jarvis and Dobry and held
that the fraudulent inducement claim was a direct claim, i.e., a “wrong[] affecting Plaintiff as an individual, distinct from any harm to the entire body of shareholders.” Id. at *5. To the

extent Stoner bears any force, it speaks to the broader principle t hat induc ing a particular individual to purchase
stock may b e a direct injury if the fraud injure s neither t he shareholders collectively n or the corporation

. Like in
Johnson

, in Stoner “t he fraud complained of had its inception before the corporation was organized. It was a personal
transaction between individual s. ” Johnson

, 270 P. at 20

- 21 (int ernal quotation marks omitted). Compared to the case at bar

, where Kivisto’s alleged misconduct induced contributions beyond the Oklahoma Plaintiffs’ pre

- existing21 Here, the Oklahoma Plaintiffs’ claims fall along the
lines of Jarvis , not Johnson

. SemCrude , not the Oklahoma Plaintiffs, had the right to pursue an action to recover from Kivisto’s frau dulent conduct towards SemCrude and its equity holders collectively

. SemCrude

, not the Oklahoma Plaintiffs in their individual capacities, was defrauded by Kivisto’s misrepresentations and omissions and injured by his alleged misconduct

. Because “ the inj ury or wrong complained of was a fraud against the corporation or its subscribers collectively,” “ th e right of action or recovery [i] s in the corporation .” Id. “Stated differently, the misconduct
alle ged by [the Oklahoma Plaintiffs ] did not injure [them] or any other [unit]holders directly, but instead only injured them indirectly as a result of their ownership of [ SemCrude ’s units].” S ee S mith v. Waste Mgmt., Inc. , 407 F.3d 381, 385 (5th Cir. 2005). Accordingly, the Oklahoma Plaintiffs’
claims for negl igent misrepresentation a nd fraud a re d erivative of the claims belonging to

— and , importantly,
released by

— the Litigation Trust.
B

. The Oklahoma Plaintiffs’ second basis for asserting
direct injuries is that Kivisto breached fiduciary duties owed

equity interests, “[t] he misrepresentations that allegedly
caused [ their ] losses injured not just [the Oklahoma Plaintiffs] but the corporation as a whole .” S ee S mith v. Waste Mgmt.,
Inc. , 407 F.3d 381, 384

- 85 (5th C ir. 2005); s ee also Big Lots Stores, Inc. v. Bain Capital Fund VII, LLC , 922 A. 2d 1169, 1177 (Del . Ch. 2006) (“[T] he main dividing line between direct and derivative claims styled as ‘fraudulent inducement,’ [is] whether the plaintiff has alleged some injury other than that to the corporation.” ). Thus, Stoner is inapposite.22 to them a s individuals . It is not disputed that Kivisto, as the
Presid ent and CEO of SemCrude , owed fiduciary duties to SemCrude , the Oklahoma Plaintiffs, and all other equity
holders in that role. See, e.g. , Wilson v. Harlow , 860 P.2d 793, 798 (Okla. 1993). The question is whether Kivisto owed separate and distinct fiduciary duties to the Oklahoma Plaintiffs, and whether the Oklahoma Plaintiffs were individually injured on the basis of the breach of those duties such that they are entitle d to recover separately from
SemCrude

. Oklahoma Plaintiffs argue that a separate fiduciary duty was formed based on the parties’ longstanding relationship of trust that led the Oklahoma Plaintiffs to rely on Kivisto’s superior influence and expertise. They point to
Oklahoma law that recognizes the exi stence of de facto fiduciary relationship s , in various contexts outside derivative suits, where (1) “t here is confidence reposed on one side [of a relationship] and resulting domina tion and influence on the other,” Lowrance v. Patton

, 710 P.2d 108, 111 (Okla. 1985) ; and (2) even when there is no duty to speak, someone “volunteers to speak and to convey information which may influence the conduct of the other party, ” and, as a result

, “ he or she is bound to disclose the whole truth,” C roslin v. Enerlex, Inc. , 308 P.3d 1041, 1047 (Okla. 2013). They also23 rely on an Oklahoma pattern jury charge 10 and other authority to argue that “whether a separate fiduciary [ relationship ] exist[s] is a question of fact for the jury.” Appellees’ Br. at
3 5

- 41. To be sure, these cases point to a broad interpretation of when a fiduciary du ty exists under Oklahoma law. S ee Lowrance , 710 P.2d at 11 1 (“[C]ourts of equity will not set any bounds to the facts and circumstances out of which a
fiducia ry relation ship may spring.”). However, as Kivisto emphasizes , Oklahoma courts have never identified a violation of a supposed “special duty” to a shareholder in this

context as loss “in addition to” the loss sustained by the corporation under Dobry . Nor has any ot her court to our knowledg e found a direct injury in the context of a derivative
or direct suit on the basis of a general relationship that forms
from a power imbalance or out of an obligation to speak the
truth. I f we found direct claims here, there is no reason why the other limited partner unitholders, or any other shareholder for that matter, could not bring direct claims. Indeed , it
would be difficult to cognizably adminis ter this much broader
rule the Oklahoma Plaintiffs ask us to endorse . A reviewi ng
court would be forced to determine which communications t o which equity holders and in what context s wou ld be

10 The Oklahoma Uniform Ju ry Instructions state that a jury can find a fiduciary relationship “based upon the

. . . [parties’] relationship and the other circumstances in th[e] case. A fiduciary relationship exists whenever trust and confidence are reasonably placed by one person i n the integrity and loyalty of another, and the other person knowingly accepts that trust and confidence and then undertakes to act on behalf of the person.” Okla. Unif. Jury
Instr. 26.2.24 actionable for breach of duty, which appears to undermine the principles behind the derivative injury rule. See Dobry , 290 P.2d at 137 (explai ning “the legal concept of corporate entity
under which stockholders as such lose their individualities in the individuality of the corporation as a separate and distinct person”) (internal quotation marks omitted)

. T h us, th e Bankruptcy Court was not wro ng in the first instance to
conclude that the Oklahoma Plaintiffs’ allegations for breach of fiduciary duty were insufficient. Still, even assuming arguendo that Kivisto owed the Oklahoma Plaintiffs unique , individual fiduciary duties in
addition to the d uties owed to them in their legal capacity as unit holders, the Oklahoma Plaintiffs ca n show neither that they were injured separate ly from the company or all other
unitholders on the basis of that misconduct

, n or that they were entitled to recovery of the units they alleg edly would not have
contributed or would have sold but for Kivisto’s misconduct

. Thus, f or the same reasons we provided above

, the Oklahoma Plaintiffs’ breach of fiduciary duty claim is derivative.

IV.

For the reasons set forth above, we conclude that the Oklahoma Plaintiffs’ claims are derivative of the claims rightfully belonging to , and released by, SemCrude ’s Litigation Trust. As such, we reverse the Bankruptcy Court’s order denying Kivisto’s motion to enjoin and direct it to enter

a permanent injunction forbidding the Oklahoma Plaintiffs’ claims from proceeding in state court

.