**UN PUBLISHED**  UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

**No. 11**  **- 1704** 
GERALD R. TERRY; ANN T. ROBBINS; JANE T. EVANS, on their own behalf and on behalf of a class of others similarly situated , Plaintiffs

– Appellants ,
v. SUNTRUST BANKS, INC ., Defendant

– Appellee , and THEODORE L. CHANDLER, JR.; CHRISTINE R. VLAHCEVIC; G. WILLIAM EVANS; RONALD B. RAMOS; DEVON M. JONES; STEPHEN CONNER , Defendants
.

**No. 11**  **- 1707** 
ANGELA M. ARTHUR, as Trustee of the Arthur Declaration of Trust, dated December 29, 1988 , and all similarly situated; VIVIAN R. HAYS, an individual , and all others similarly situated; LEAPIN EAGLE LLC, a limited liability company , and all others similarly situated; DENISE J. WILSON, an individual , and all others similarly situated , Plaintiffs

– Appellants ,
v.2 SUNTRUST BANKS, INC . , a Georgia corporation , Defendant

– Appellee , and G. WILLIAM EVANS, an individual; STEPHEN CONNOR, an individual , Defendants
.

Appeal s from the United States District Court for the District of South Carolina , at Anderson
. Joseph F. Anderson, Jr. , District Judge. ( 8:09

- cv - 00415

- JFA ; 8:09

- cv - 01739

- JFA )
Argued : May 17, 2012 Decided: July 2, 2012

Before AGEE, DA VIS, and WYNN , Circuit Judges.

Affirmed by un published opinion
. Judge Davis wrote the opinion, in which Judge Agee and Judge Wynn joined.

**ARGUED:** Thomas G. Foley, Jr., FOLEY BEZEK BEHLE & CURTIS, LLP, Santa Barbara, California, for Appellants. Cory Hohnbaum, KING & SPALDING, LLP, Charlotte, North Carolina, for Appellees. **ON BRIEF:**  Cheryl F. Perkins, WHETSTONE MYERS PERKINS & FULDA, LLC, Columbia, South Carolina, James R. Gilreath, GILREA TH LAW FIRM, Greenville, South Carolina, for Appellants Gerald R. Terry, Ann T. Robbins, Jane Evans; Robert L. Brace, HOLLISTER AND BRACE, Santa Barbara, California, for Appellants Angela M. Arthur, Vivian R. Hays, Leapin Eagle LLC, Denise J. Wilson.

Unp ublished opinions are not binding precedent in this circuit.3 DAVIS, Circuit Judge : In th e s e diversity action s, consolidated for pre

- trial proceedings in the District of South Carolina by the Judicial Panel on Multi

- District Litigation ( “ JPML ” ) , the distri ct court dismissed with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6) all claims against Appellee SunTrust Banks, Inc. (“ SunTrust ” )
. 1 The principal question presented is whether LandAmerica 1031 Exchange Services, Inc. (“LES”), which (before it file d a petition in bankruptcy) acted as a “qualified intermediary” (“QI”) in the exchange of investment properties pursuant to 26 U.S.C. § 1031(a)(1) , assumed fiduciary duties with respect to the proceeds of the sale of the relinquished propert ies
. Appellants ( “ the Exchangers ” ) are the named representatives of putative classes consisting of approximately 400 member s that engaged LES as a QI between February and

1 The Exchangers brought other claims that are not at issue in this appeal, includ ing claims against several individual officers and directors of LES and its corporate parent, LandAmerica Financial Group, Inc. (“LFG”). The individual defendants, the claims against whom have been and remain stayed, are Theodore L. Chandler, Jr. (Chairman an d Chief Executive Officer of LFG), Stephen Conner (Senior Vice President of LES and LFG), G. William Evans (Executive Vice President and Chief Financial Officer of LFG, director and officer of LES), Ronald B. Ramos (Vice President and Treasurer of LES and Senior Vice President and Treasurer of LFG), and Devon M. Jones (Vice President and Assistant Treasurer of LES and LFG). Among the claims against the individual defendants are allegations of fraud , discussed infra at 27

- 38
.4 November 2008 . The district court ruled LES did not a ssume fiduciary duties; thus Sun Trust

- – which had held LES’s general operating account, sold LES certain securities, and extended LES a line of credit

– - could not be liable for aiding and abetting the breach of a fiduciary duty by LES. T he district court also dismiss ed the Exchanger s’ claim of civil conspiracy. We affirm.

I. First, we address the claim of aiding and abetting breach of fiduciary duties. We review a district court’s dismissal pursuant to Rule 12(b)(6) de novo. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. , 591 F.3d 250 , 253 (4th Cir. 2009). We assume all well

- pled facts are true, and draw all reasonable inferences in favor of the plaintiff
. Id. T he “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on i ts face.’” Ashcroft v. Iqbal , 556 U.S. 662 , 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that th e defendant is liable for the misconduct alleged.” Id. We begin with an explanation of the statutory and regulatory framework out of which this dispute arose. We then5 summarize the district court ’ s rulings. Finally, we explain why we discern no error by th e district court.
A. Ordinarily, if a person owns real property for business or investment purposes that has risen in value over time (i.e., has a low adjusted basis and a high fair market value), the property owner incurs capital gains tax es upon sellin g the property. In some circumstances, however, a property owner may defer the recognition of capital gains if the property is “ held for productive use in a trad e or business or for investment” and if the owner “ exchange [ s ]” the property (known as “relinqu ished property”) for another property “of like kind” (known as “replacement property”)
. 26 U.S.C. § 1031(a)(1)
. T he property owner must identify replacement property “of like kind” within 45 days of the sale of the original property, and must close on the new property within 180 days of the original sale. Moreover, the property owner must not actually or constructively receive the proceeds of the sale of the first property. 26 C.F.R. § 1.1031(k)

– 1(f)(2). The Internal Revenue Service has defined four “safe harbors” available to ensure a determination of non

receipt: a “qualified escrow account,” a “qualified trust,” a “qualified intermediary,” or certain security or guarantee arrangements. See id. § 1.1031( k)

– 1 (g).6 B.
T he Exchangers chose the qualified intermediary option, and engaged LES as a QI between February and November 2008
. As IRS regulations require, LES’s role was to “acquire [] the relinquished property from the taxpayer, transfer [] the relinquish ed property, acquire[] the replacement property, and transfer [] the replacement property to the taxpayer.” Id. § 1.1031(k)

– 1(g)(4)(iii)(B). The Exchangers all e xecuted the same Exchange Agreement , which, among other things, enumerated the parties’ rights w ith respect to the “Exchange Funds”

-- the proceeds LES would receive upon selling the relinquished property, decreased by remaining debts on the property, real estate commissions, closing costs, and other expenses
. 2 As for the E xchange F unds, LES agreed in § 2(a) of the Agreement to “hold” the m a nd “apply” them toward the purchase of replacement properties . LES also agreed in § 3(a) to “deposit” the funds in a n account at SunTrust and to “unconditionally guarantee the return and availability of the Exchan ge Funds” as well as certain rates of “guaranteed interest.” The Exchangers , for their part, agreed in § 2(c) that LES would have “ sole and exclusive possession, dominion, control and use of all Exchange

2 A sample Exchange Agreement is at J.A. 822

- 32 . All citations to sections of the agreement are to that sample agreement.7 Funds” during the course of the exchange, and that t he Exchangers would have “ no right, title, or interest in or to the Exchange Funds or any earnings thereon , ” as well as “no right, power, or option to demand, call for, receive, pledge, borrow or otherwise obtain the benefits of any of [the] Exchange Funds ,” other than the right to receive any remaining balance of the
E xchange F unds after LES purchased replacement property. The Exchangers also acknowledged that LES would “invest[]” the Exchange Funds, and that “the amount of the Exchange Funds may be in exc ess of the maximum amount of deposit insurance carried by [SunTrust]
. ” As compensation for LES ’s services, the Exchangers agreed to pay fees of approximately $750 to $1,000 per exchange.
T he Agreement also provided the following:

• Section 6(b) recites that LES was “entering into this Exchange Agreement solely for the purpose of facilitating taxpayers’ exchange” (emphasis and capitalization omitted);

• Section 6(c) limit s LES’s duties to those “expressly set forth herein , ” and provide s that “ no add itional duties or obligations shall be implied hereunder or by operation of law or otherwise ”;

• Section 11 , an integration clause , provide s : “This Exchange Agreement contains the entire understanding between and among the parties hereto.”8 LES abided by its contractual obligation to sell the Exchangers’ relinquished property, and received the net proceeds. LES deposited the E xchange F unds in its general operating account, a money market account at a SunTrust bank in Virginia (the “3318 account”). LES failed, however, to complete the exchanges.
P rior to agreeing to serve as the Exchangers’ Q I, LES had used other property owners’ exchange funds in part to buy hundreds of millions of dollars of auction rate securities ( “ ARS ” ). ARS are long

- term variable

- rate debt securities with interest rates or dividends that are reset at frequent intervals . Most of the ARS held by LES had been sold to LES by SunTrust Robinson Humphrey, Inc. (“STRH”), a SunTrust

- related entity
. In February 2008, the auctions through which AR S interest rates were set began to fail, and the ARS market froze.
LES held ARS with a par value of $290.5 million , but the frozen market left those securities with a liquidation value of only a small percentage of par
. With those assets frozen, LES’s liqu id
assets were insufficient to acquire replacement properties for the property owners under existing exchange agreements. While
LES eventually declared bankruptcy, it did not do so immediately. Rather, apparently hoping the ARS market would normalize, LES continued to enter into new exchange agreement s, including those with the Exchanger s, allegedly using new9 exchange funds to cover old exchanges as they came due

-- an arrangement the Exc h anger s call a Ponzi scheme
. C. LES filed for Chapter 11 bankruptcy on November 26, 2008. One of the issues before the bankruptcy court was whether the Exchange Funds (a) became the property of LES when they were received in the SunTrust account, in which case the Exchangers would be limited to a pro rata share of the assets in LES’s bankruptcy estate , or (b) remained the property of the Exchangers , in which case the Exchangers would be entitled to preferential recovery of those funds
. As explained in detail below, the Bankruptcy Court concluded the Exchange Funds becam e LES’s property, and therefore were subject to pro rata distribution in bankruptcy. Frontier Pepper’s Ferry, LLC v. LandAmerica 1031 Exch. Serv. ( In re LandAmerica Fin. Group
Inc. ), No. 08

- 35994, 2009 WL 1269578 (Bankr. E.D. Va. May 7, 2009); see also Mil lard Refrigerated Servs., Inc. v. Landamerica 1031 Exhange Servs. ( In re LandAmerica Financial Group, Inc. ), 412 B.R. 800, 815 (Bankr. E.D. Va. 2009) (reaching the same conclusion with respect to a minority of the property owners whos e funds were held in s egregated rather than commingled
accounts at SunTrust ). After that issue was resolved in favor of LES’s trustee, the trustee ratably distributed LES’s remaining assets among10 LES’s creditors, including the Exchangers
. The Exchangers recovered only a portio n of the Exchange Funds from LES in that process. They then turned their attention to SunTrust (among others, see supra n.1) , for the role it allegedly played in the loss of the Exchange Funds. The Arthur plaintiffs filed suit in the Southern District of California and the Terry plaintiffs filed suit in South Carolina state court. The Terry action was removed to federal court and the JPML consolidated the cases in the District of South Carolina for pretrial proceedings and discovery. After the district court dismissed certain claims against SunTrust in a consolidated amended complaint , for failure to plausibly allege that SunTrust knew abou t “LES’s [a]ctivities , ” In re § 1031 Exchange Litigation , 716 F. Supp. 2d 415, 42 8 (D.S.C. 2010) (“ Terry I ”), the plaintiffs filed a second amended complaint (“SAC”) on October 6, 2010. In the SAC, the Exchangers asserted three claims against SunTrust, t wo of which are at issue on appeal: aiding and abetting LES’s breach of fiduciary duty, and civil conspiracy. 3
In their aiding

- and

- abetting claim against SunTrust , the Exchangers allege that LES owed fiduciary duties to the

3 We address the conspiracy claim infra at 27

- 38. The SAC also alleged conversion and aiding and abetting conversion; the Exchanger s have not appealed the dismissal o f those claims.11 Exchanger s and that SunTrust kno wingly “assisted LES in breaching its fiduciary duties to Exchangers.” (SAC ¶5.) 4 They allege th at SunTrust not only knew that LES’s assets were tied up in the frozen ARS market, but also that “ neither [LES ’s parent] LFG no r LES had a rolling source of liq uid assets to fund exchanges other than the daily influx of new Exchange Funds. ” (SAC ¶12.) SunTrust and LES, they allege, “plan[ned] . .

. to conceal the scheme from new Exchangers” until LES somehow came up with money to plug the gap in its balance sheet. (SAC ¶18.) The plaintiffs further allege SunTrust aided and abetted LES’s actions because it had a financial incentive to do so: Not only did SunTrust h o ld LES’s operating account ; it als o had sold
ARS to LES through STRH and had extended LES a $200 million revolving line of credit . SunTrust, they allege, hoped that by helping LES operate its alleged Ponzi scheme, LES would be more likely able to repay a portion of the $100 million outstan ding on the line of credit. The Exchangers also allege that SunTrust committed common law civil conspiracy. They allege that certain agents or representatives of SunTrust, includ ing its Deputy General

4 The SAC and attached exhibits appear at pages 743

- 1160 in the Joint Appendix, and at ECF No. 130 on the district court’s docket. We will refer to the Exchangers’ allegations by the numbered paragraphs in the SAC where they appear.12 Counsel and Senior V ice President Brian Edwards , and representatives Samuel Ballesteros, Kris Anderson, Bill Mayfield, Linda Burras and Sheridan Reese , “engaged in concerted action” with the individual defendants (Allen, Ramos, Conner, Jones and Chandler) “for the united purpose” of (1) breaching LES’s fiduc iary duties to the Exchangers, and (2) “defrauding the Exchangers out of their Exchange Funds.” (SAC ¶209.) The district court dismissed the aiding

- and

- abetting claim primarily because it concluded LES did not owe the Exchangers a fiduciary duty
. See In re IRS § 1031 Exchange Litigation , MDL No. 8:09

- mn - 2054

- JFA, 2011 WL 2444805 (D.S.C. June 15, 2011) (“ Terry II ”)
. It also dismissed the conspiracy claim
. See Terry
I , 716 F. Supp. 2d at 427

- 28 (dismissing without prejudice the conspiracy claim in the fi rst amended complaint); Terry II , 2011 WL 2444805, at * 6 (dismissing the conspiracy claim in the second amended complaint). The Exchangers timely appealed.
D . The principal question presented in this appeal is the legal issue of whether LES plausibly owed a fiduciary duty to the Exchangers. The Exchangers offer three alternative theories for why the Agreement created a fiduciary relationship between themselves and LES: (1) the Exchange Funds were held by LES in
trust ; (2) LES was the Exchangers’ agent ; and /or (3) LES served

as a real estate broker
. As evidence of LES’s alleged fiduciary13 status, they point to language in the Agreement, particularly LES’s commitment to “hold” the exchange funds and “apply” them toward the purchase of replacement properties , a s well as evidence of trade usage and extrinsic evidence of the parties’ intent . We are not persuaded by any of those theories that reversal is warranted. 1
. (a) The Exchangers first argue LES was a fiduciary because the Agreement created either an expre ss or resulting trust, with LES as the trustee. 5 An express trust is created when the parties “affirmatively manifest an intention that certain property be held in trust f or the benefit of a third party. ” In re Dameron , 155 F.3d 718, 722 (4th Cir. 1998)
. A resulting trust is “an indirect trust that arises from the parties’ intent or from the nature of the transaction and does not require an express declaration of trust.” 1924 Leonard Rd., LLC v. Roekel , 636 S.E.2d 378, 383 (Va. 2006). When a trust has been created, the beneficiary remains the “equitable owner of the trust property.”
In re Dameron , 155 F.3d at 722 (quoting Broaddus v. Gresham , 26

5 The parties agree that Virginia law governs the question whether LES was a fiduciary. The district court below considered whether to certify the question of LES’s fiduciary status to the Virginia Supreme Co urt or the California Supreme Court. All parties oppo sed certification.14 S.E.2d 33, 35 (Va. 1943)). 6 The Exchangers argue that under the Agreement they “reserved an equitable interest in their exchange proceeds” and limited LES’s role to “hold[ing]” those funds and applying them toward the purchase of replacement property; therefore, they argue, LES held the funds in trust. 7 They rely on three categories of evidence to show that LES held t he funds in
trust: (1) the language of the Agreement ; (2) custom and usage in the QI industry ; and (3) extrinsic evidence of the parties’ intent. As for the language of the Agreement , the Exchangers point to four terms or phrases : (1) LES’s obligation was to “hold” the funds and “apply” them toward replacement properties, see § 2(a) (“to hold and apply the Exchange Funds in accordance with the terms and conditions of [the] Exchange Agreement.”); § 2(c) (referring to the funds “held by L ES”)
. ( 2 ) § 3(a) provides that LES “will deposit the Exchange Funds” in a SunTrust account, and discloses that “the amount of the Exchange Funds may be in excess of the

6 Virginia law also recognizes constructive trust s, which arise “by operation of law, independently of the intention of the parties, ” In re Dameron , 155 F.3d at 722 . T he Exchangers do not argue a constructive trust was formed; their argu ment is that the parties intended to create a trust.

7 Although the Exchangers do not specify whether they believe an express or resulting trust was formed, in these circumstances the question presented is the same regardless: whether the Agreement and the surrounding circumstances reveal the parties’ intent that LES would hold the Exchange Funds in trust for the benefit of the Exchangers
.15 maximum amount of deposit insurance carried by the depository institution [ i.e., SunTr ust].” ( 3 ) In § 3(a) LES “unconditionally guarantee [d] the return and availability of the Exchange Funds.” (4) § 6(b) limits LES’s role to one “solely for the purpose of facilitating taxpayers’ exchange
. ” These terms are evidence of LES’s trustee stat us , the Exchangers argue, because the y “direct [] that the Funds be used and applied ” for a specific purpose, Appellant’s Reply Br. at 18 , and belie a conclusion that LES “ received full ownership of the exchange funds with the right to spend the funds however it chose.” Appellants’ Br. at 41. The Exchangers also point to industry custom and usage . They argue that the QI industry “ promotes, through marketing materials and its industry trade group, the recognition that qualified intermediaries are fiduci aries owing fiduciary duties to protect and preserve the monies they handle. ” Appellant’s Br. at 52 . For example, t he Code of Ethics and Conduct of the Feder ation of Exchange Accommodators , the national trade group for qualified intermediaries, provides th at exchange accommodators such as LES “shall have the responsibility to act as custodian for all exchange funds,” “shall invest exchange funds in investments which meet the ‘Prudent Investor Standard,’” shall not “knowingly commingle[]” exchange funds with operating accounts , and shall not invest exchange funds “in16 a manner that does not provide sufficient liquidity to meet the Exchange Accommodator’s contractual obligations to its clients and does not preserve the principal of the exchange funds.” J.A. 95. Finally, although they concede that some provisions run contrary to their interpretation , the Exchangers argue that at
most those provisions render the Agreement ambiguous ; given the ambiguity we may rely on extrinsic evidence, which , they argue, shows t hat the parties considered LES a trustee. For example, LES’s website described E xchange F unds as “ H eld in T rust , ” (SAC ¶161) ; an “Executive Summary” that LES provided to SunTrust stated that LES “serves in a fiduciary capacity ” for its
customers (SAC ¶6 ; J.A. 846) ; LFG’s 10

- K referred to E xchange
F unds as “the customer’s funds,” which “are held by us for the benefit of our customers and are there fore not included as our
assets ” (SAC ¶9) ; m inutes of an October 1, 2008, LFG Investment Funds meeting stated t hat “the company is acting in a fiduciary capacity, with the funds ultimately belonging to the retail client ” (SAC ¶139) ; and an October 6, 2008, letter from LFG to the Nebraska Department of Insurance, which described LES’s exchange agreements as “a speci alized form of escrow.” (SAC ¶140 ; J . A . 1137. ) In addition, in an October 7, 2008, letter to SunTrust, LFG’s general counsel stated that LES “holds [Exchange Funds] in escrow as a fiduciary ,” and invests them “on behalf of17 its customers,” “ until the funds (with the related earnings) are returned to customers to complete the 1031 exchange.” (SAC ¶94 ; J.A. 1056. ) The district court rejected these arguments, as had the bankruptcy court that oversaw the LES bankruptcy , where, as here, the Exchangers argued tha t they retained an “equitable interest in the ownership of the Exchange Funds” and accordingly LES’s rights to the funds were limited to those of a trustee. The courts reasoned , to the contrary, that by entering the Agreement the Exchangers “ relinquished any and all interests in the [ E xchange F unds] , including the equitable interest that a beneficiary of a trust would retain in trust property ,” an action that is “ inconsistent with the establishment of a trust .” Frontier Pepper’s Ferry , 2009 WL 1269578, at *9 ; see also Terry
II , 2011 WL 2444805 , at *4 (“[F] or those reasons expressed by the bankruptcy court in Frontier Pepper’s Ferry , . . . the court finds that Virginia law would not impose a fiduciary relationship between LES and the Plaintiffs under the facts of this case through either an express or resulting trust .”). (b) Under Virginia law , a contract “must be construed as a whole to determine the parties’ intent with respect to specific provisions.” Westmoreland

- LG&E Partners v. Virginia Elec. &
Power Co. , 486 S.E.2d 28 9, 294 ( Va. 1997) . I f a contract is18 “ complete, unambiguous, and unconditional ,” evidence of prior or contemporaneous oral negotiations is “generally inadmissible to alter, contradict, or explain the terms ” of the contract. I d. Whether a contract is ambiguous depends on whether its language

“ admits of being understood in more than one way , ” id. , that is, whether “its parts can be read together without conflict,” Doswell Ltd. P’Ship v. Virginia Elec. & Power Co. , 468 S.E.2d 84, 88 ( Va. 1996)
. If a contract’s “parts can be read together without conflict,” a court “must construe the language as written.” Id. Unlike such parol evidence, “[e] vidence that contract phrases or terms have acquired, by custom in the locality, or by

usa ge of the trade, a peculiar meaning not attached to them in their ordinary use is admissible even though the phrases or terms themselves are unambiguous. ” Doswell , 468 S.E.2d at 90
. Such evidence of “usage of trade” is admissible to “ ascertain [] the meanin g of the parties’ agreement ,” “ give particular meaning to specific terms of the agreement ,” and/or “ supplement or qualify the terms of the agreement ,” Va. Code Ann. § 8.1A

303(d) , so long as “the usage in question operated upon the minds of the parties in using the language which was emp loyed in the contract
. ” Westmoreland , 486 S.E.2d at 293
. Thus, the question presented is whether the language of the Agreement, as “supplement[ed] or qualif[ied]” by relevant19 evidence of trade usage, Va. Code Ann. § 8.1A

- 30 3(d), unambiguously exclude s any interpretation that LES assumed the fiduciary duties of a trustee . We conclude it does. First, the bankruptcy court correctly observed, “not only is there an absence of any language that the parties intended to
create a trust ”; the language above “ actually evidences an intent not to do so.” Frontier Pepper’s Ferry , 2009 WL 1269578, at *9 (emphasis in original)
. T he Exchangers expressly granted
to LES “ sole and exclusive possession, dominion, control and use of all Exchang e Funds” du ring the course of the exchange. They disclaimed any “ right, title, or interest in or to the Exchange Funds or any earnings thereon .” They also disclaimed any “right, power, or option to demand, call for, receive, pledge, borrow or otherwise obt ain the benefits of any of [the] Exchange Funds,” other than the right to receive any remaining balance of the
E xchange F unds after LES purchased replacement property. The Agreement disclaimed all duties other than those “expressly set forth herein,” and provided that “ no additional duties or obligations shall be implied hereunder or by operation of law or otherwise ” ( § 6(c)). The Agreement also stated that it

“ contain [ed] the entire understanding between and among the parties hereto ” (§ 11). For these rea sons, the Agreement unambiguously did not create a trust.20 The aspects of the Agreement the Exchangers focus on do not render the Agreement ambiguous. LES’s obligation to “hold” and “apply” the funds toward replacement properties is equally susceptible to interpretations that LES was or was not a fiduciary; the unavoidable impact of the provisions quoted above, however, is that the parties did not inten d to create a trust. Moreover, although § 2 (c) does not specifically disclaim fiduciary duties, that absen ce is far from dispositive, because it is the meaning of the Agreement as a whole, not § 2 in particular, that controls whether LES was a trustee. Finally, we recognize that LES’s assumption of “purely contractual” duties, Appellee’s Br. at 25, does not ne cessarily mean that LES was not a trustee; it is the nature of the duties LES assumed in the Agreement that determines whether LES was a fiduciary
. See Frank H. Easterbrook & Daniel R. Fischel, Contract and Fiduciary Duty , 36 J.L. & Econ. 425, 446 (1993) ( “ Contract and fiduciary duty lie on a continuum best understood as using a single, although singularly complex, algorithm.” ) ; see also Victor Brudney, Contract and Fiduciary Duty in Corporate Law , 38 B.C. L. Rev. 595 (1997) (discussing the overlap between contractual duties and fiduciary duties) . Nonetheless, our reading of the Agreement is the same as that of the bankruptcy and district courts
. The Agreement unambiguously precludes a finding that LES held the
E xchange F unds in trust.21 T he evidence of trad e usage proffered by the Exchangers also does not alter this conclusion. According to th e Exchangers, they may not have been required to grant LES “sole and exclusive possession, dominion, contro l and use of all Exchange Funds. ” Other exchange accommodator s apparently do not require that exchangers grant QIs such a replete bundle of rights to the proceeds of the sale of relinquished property. Cf. In re Exchanged Titles , 159 B.R. 303 , 305 (Bankr. C.D. Cal. 1993) (finding that a different exchange agreement b y a different accommodator was “ambiguous” as to “whether the parties intended to transfer both legal and equitable rights” to the relinquished property or rather legal title only). But it is
LES’s E xchange A greement, not that of other QI s, that we must

co nsider, and that Agreement unambiguously did not render LES a
trustee. Finally, we note that the Exchangers, in electing to rely on a safe harbor under § 1031, were not required to use a qualified intermediary. As mentioned above, the Treasury regulations allow exchangers to use, among other things, a “qualified escrow” or a “qualified trust
. ” As the bankruptcy judge explained in one of the related adversary proceedings: Instead of using either of these available options, th e parties chose the “qualified intermediary” safe harbor.
. . . The parties did not in addition separately satisfy the terms and conditions of the Treasury Regulations for the creation of either a22 qualified escrow or a qualified trust. . . . [T] he parties’ decision to eschew the escrow and trust provisions of the tax code in favor of a different safe harbor evidences that there was no intention to create a trust relationship. Millard Refrigerated Servs. , 412 B.R. at 815
. This reasoning is sound.
In sum , w e hold that t he parties’ Exchange Agreement unambiguous ly did not render LES a trustee with respect to the
E xchange F unds. Accordingly, and because the Agreement is “complete” and “unconditional,” Virginia law precludes our consideration of extrinsic evide nce of the parties’ intent. 2
. The Exchangers next argue that LES was “acting as an agent on behalf of the Property Owners to consummate these exchange transactions
. ” Appellant’s Br. at 35
. An agency relationship arises under Virginia law when one person manifests consent to another “ that the other shall act on his behalf and subject to his control .” Murphy v. Holiday Inns, Inc. , 219 S.E.2d 874, 876 ( Va. 1975) (quoting Restatement (Second) of Agency § 1 (1958) ). When a principal

- agent relationship exists, the agent is obligated “to interpret the principal’s statement of authority, as well as any interim instructions received from the principal, in a reasonable manner to further purposes of the principal that the a gent knows or should know, in light of facts that the agent knows or should know at the time of acting.” Restatement (Third)23 of Agency § 1.01 cmt. e. Virginia characterizes such duties as those of a fiduciary. See Banks v. Mario Indus. , 650 S.E.2d 687 , 695 ( Va. 2007) (“[O]nce an agency relationship was established, [ the agent s ] necessarily owed a fiduciary duty to [the principal ]
. ”). “ It is op en to question,” however, “whether an agent’ s unconflicted exercise of discretion as to how to best carry out the ag ent ’ s undertaking implicates fiduciary doctrines. ” Restatement (Third) of Agency § 1.01 cmt. e . As evidence that LES was the Exchangers’ agent, the Exchangers argue LES “was subject to [their] direction” in various ways, such as identifying the replacement property and the buyer of the relinquished property, as well as setting the purchase price. Appellant’s Br. at 60

- 61. Moreover, the Treasury Regulation governing QI s characterizes a QI as acquiring and transferring relinquished properties “either on its own behalf or as the agent” of a party to the transaction, 26 C.F.R. § 1.1031(k)

- 1(g)(4)(iv)(B) ; because LES “explicitly did not contract on its own behalf , ” the Exch angers argue, it must have been their “agent.” Appellant’s Reply Br. at 16. Finally, they argue, t he safe

- harbor regulation states that for purposes of determining whether a taxpayer received property (and thereby whether the taxpayer is eligible for § 103 1 treatment), the QI is treated “ as if [it] is not the agent of the taxpayer.” 26
C.F.R. § 1.1031(k)

- 1(g)(4) (emphasis added) . This language, the24 Exchangers argue, implies that LES was their agent “for all other purposes.” Appellant’s Br. at 62. Finally, t hey argue, under Virginia law “an agency relationship is not one that can be disclaimed.” Appellant’s Reply Br. at 19 (citing Murphy , 219 S.E.2d at 875 )
. In response, SunTrust argues that although “ LES was contractually obligated to facilitate Appellants’ p urchase of replacement property,” the nature and extent of that obligation did not render LES the Exchangers’ agent. Appellee’s Br. at 42. We agree. In a wide variety of contexts, p arties e xecute
contracts , like the Agreement here, that allow one party to direct another to perform certain actions. Such obligations do not automatically create fiduciary relationship s . Only those where the agent assents to act “ on the principal’s behalf and subject to the principal’s control ” does a fiducia ry relationship arise. Cf. Restatement (Third) of Agency § 1.01 . A s explained above, the Exchangers granted LES “ sole and exclusive” possession and use of the Exchange Funds, and disclaimed any

“ right, title, or interest in or to the Exchange Funds .” In li ght of these provisions, LES cann ot be said to have been acting on the Exchangers’ behalf and subject to their control
. Finally , although the Treasury Regulations do not prohibit a QI from being an agent of its customer, and treat a QI “as if” it
were not the Exchangers’ agent, nothing in those regulations25 requires that result either. The language of the Agreement controls, and that language is inconsistent with LES having become a fiduciary under agency law. 3
. The Exchangers’ third argument is that LES was a real estate broker, and thereby owe d them fiduciary duties. Virginia law de fines “real estate broker” as a person or entity “ who, for
compens ation or valuable consideration,” (i) sells or offers for sale, buys or offers to buy, or negotiates the purchase or sale or exchange of real estate . . . , or (ii) leases or offers to lease, or rents or offers for rent, any real estate or the improvements thereon for others. Va. Code A nn. § 54.1

- 2100. The statute expressly excludes from the definition the following: attorneys acting i n the performance of their duties; trustees , administrator s or executor s ; auctioneers ; property management companies ; and owners or lessors of property act ing “ in the regular course of or incident to the management of the property and the investment therein .” Id. § 54.1

- 2103. Real estate brokers are subject to what the Exchangers call “statutory fiduciary duties,” Appellants’ Br. at 36, namely that they (1) must “ [a] ccount in a timely manner for all money and property received by the licensee in which the seller has or may have an interest,” Va. Code Ann. § 54.1

- 2131( A ) (5) , (2) must disclose all material26 facts known to the broker, id. § 54.1

- 2131 ( A ) (6) , and (3) must not “divert or misuse any funds held in escrow or otherwise held by him for another,” id. § 54.1

- 2108. The Exchangers argue LES was a real estate broker because
LES received compensation for its role as an exchange accommodator, which invo lved selling relinquished properties and buying replacement properties , and QIs are not expressly exempt from the statutory definition of real estate brokers . We disagree. Simply put, w e believe the Virginia legislature would not have intended QIs like LES to be considered real estate broker s . QIs exist as a mechanism for qualifying taxpayers to defer the recognition of gains on investment properties. They serve a different, more specialized function than do real estate broker s as the term is commonly under stood. Moreover, and importantly, the Exchangers agreed to limit LES’s duties to those “expressly set forth” in the Agreement, and LES is more analogous to the entities listed among the exceptions than to real estate brokers. For these reasons, we hold as a matter of law that LES was not , and may not be treated as, a real estate broker under Virginia law. 8

8 SunTrust argues in the alternative that , even if the Agreement rendered LES a real estate broker under Virgin ia law, LES disclaimed any corresponding duties imposed by virtue of that status. The Exchangers argue to the extent there was such a disclaimer, it should be “void as a matter of public policy.” (Continued)27 For the foregoing reasons, r ead as a whole, the Agreements did not impose fiduciary duties on LES, and therefore the district court properly dismissed th e claim seeking to hold SunTrust liable for aiding and abetting LES’s alleged breach of fiduciary duty. 9

II. We now turn to the Exchangers’ claim alleging common law civil conspiracy , judging the sufficiency of the SAC by the same standard
. See supra at 4. Under Virginia common law, “[a] civil conspiracy is [1] a combination of two or more persons, [2] by some concerted action, [3] to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by cr iminal or unlawful means. ” Hechler Chevrolet, Inc. v. Gen
. Motors Corp. , 337 S.E.2d 744 , 748 (Va.

Appellant s ’ Reply Br. at 22

- 23 (citing Fairfax Gas & Supply Co . v. Hadary , 151 F.2d 939, 940 (4th Cir. 1945); All Bus. Solutions, Inc. v. NationsLine, Inc. , 629 F. Supp. 2d 553, 560 (W.D. Va. 2009)). Because we conclude LES was not a real estate broker under Virginia law, we need not resolve this issue.
9 Because w e conclude LES was not a fiduciary under Virginia law, we need not resolve SunTrust’s alternative argument that Virginia does not recognize a cause of action of a iding and abetting a tort
.28 1985). 10 The “unlawful act” element requires that a member of the alleged conspiracy have “committed” an “underlying tort,” Almy v. Grisham , 639 S.E.2d 182, 18 8 (Va. 2007), such as inducing a breach of contract, Catercorp, Inc. v. Catering Concepts, Inc. , 431 S.E.2d 277, 281 (Va. 1993) . Further, a claim for civil conspiracy requires that the alleged conspirators’ unlawful act have caused damages; a plaintiff may not recover for “ the mere combination of two or more persons to accomplish an unlawful purpose or use unlawful means .” Id. at 282. California law , which the district court concluded applies to the Arthur plaintiffs’ conspiracy claim, see Terry I , 2011 WL 2444805 , at *3, treats allegations of civil conspiracy in much the same way as does Virginia law , although it considers conspiracy to be “not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration .” Applied Equip
. Corp. v. Litton Saudi Arabia Ltd. , 869 P.2d 454 ,

10 Virginia also has statut ory tort of “Combination[] to injure oth ers in their reputation, trade, business or profession ,” Va. Code Ann. § 18.2

- 499 , which principally prohibits two or more persons from combining to “ willfully and maliciously injur [e] another in his reputation, trade, business or profession .” Id. That sta tute is not at issue, because the Exchangers allege only a conspiracy under Virginia common law, not a violation of § 18.2

- 499
.29 457 (Cal. 1994). “ By participation in a civil conspiracy, a coconspirator effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy. ” Id.

“ In this way, a coconspirator incurs tort liability co

- equal with the immediate tortfeasors.” Id. Like Virginia law, California law requires that “a conspiracy . . . be activated by the commission of an actual tort,” and that the “civil wrong” have “result[ed] in damage.” Id. A plaintiff alleging conspiracy

“ must show that each member of the conspiracy acted in concert and came to a mutual understanding to accompli sh a common and unlawful plan, and that one or more of them commit ted an overt act to further it.” Choate v. County of Orange , 103 Cal. Rptr. 2d 339 , 353 (Cal. Ct. App. 2000). We discern no conflict between Virginia and California law on the elements of a properly pled civil conspiracy claim as applied to the facts here , and the parties have not pointed to

one . Thus, we need not reso lve this choice

- of

- law question, and

we proceed to explain why the Exchangers have failed to state a claim for civil conspira cy under either Virginia or California law
.30 As noted , the Exchangers’ complaint , fairly read, alleges
two underlying torts: breach of fiduciary duty and fraud. 11 To the extent the alleged underlying tort was LES’s breach of fiduciary duty, the district court dismissed the conspiracy claim upon concluding that LES was not a fiduciary. See Terry
II , 2011 WL 2444805 , at *6
. We agree that, because LES did not owe the E xchangers a fiduciary duty, that theory of the Exchangers’ conspiracy claim did not allege an “unlawful act,” and thus was properly dismissed. As to the Exchangers’ conspiracy

- to

- defraud theory , they allege that SunTrust engaged in concerted action with L ES’s officers to conceal LES’s imminent collapse from the Exchangers, with the common purpose of deceiving the Exchangers into entering Exchange Agreements that they otherwise would not have entered. T he district court concluded that the complaint “ does

no t contain sufficient factual matter to move the Customers’ conspiracy claim from the conceivable to the plausible .” Terry
I , 716 F. Supp. 2d at 428. 12 That is also the basis on which

11 The conspiracy count also alleges that an object of the conspiracy was to “operate an unlawful Ponzi scheme.” J.A. 812. Becau se the “unlawful act” element requires an allegation of an underlying tort, we read this as a further allegation of either a breach of fiduciary duty or fraud.
12 The district court reached that conclusion upon dismissing the Exchangers’ first amended complaint, before they filed the second amended complaint. Because upon dismissing the (Continued)31 SunTrust argues we should affirm the dismissal of the fraud component of t he Exchangers’ conspiracy claim. See Appellee’s Br. at 49

- 50 ( arguing the claim was properly dismissed because the Exchangers “ failed to plead anything beyond conclusory allegations of the existence of the conspiracy ” and “failed to adequately allege the existence of an underlying tort”). Because this component of the Exchangers’ conspiracy claim alleges fraud, the Exchangers’ complaint must comply not only with Rule 12(b)(6) but also with Federal Rule of Civil Procedure 9(b), which requires that plaintiff s alleging fraud plead “with particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). The “circumstances” that must be pled with particularity are “the time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.” Harrison v. Westinghouse Savannah River Co. , 176 F.3d 776, 784 (4th Cir. 1999) (quoting 5 Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure: Civil § 1297, at 590 (2d ed. 1990)). The defendant’s “knowledge as to the true facts” and

latter the district court stated that it “maintain[ed] its previous finding ” that the Exchangers had failed to sufficiently plead a civil conspiracy cause of action, Ter ry II , 2011 WL 2444805, at *6, we assume the court’s rationale for dismissing the fraud component of the conspiracy claim was that the factual allegations were insufficient.32 “intent to deceive” may be pled “generally,” Fed. R. Civ. P. 9(b), but a complaint must nonetheless “ show [],” that the defendants’ knowledge and/or intent, where relevant, plausibly entitles the plaintiff to relief. Fed. Rule Civ. P. 8(a)(2); Iqbal , 556 U.S. at 678, 686

- 87. Upon reviewing the factual allegations in the Exchangers’ complaint and the attached exhibits, w e agree that the Exchangers have not shown that their factual allegations “ plausibly give rise to an entitlement to relief ” for conspiracy. Iqbal , 556 U.S. at 679. The second amended complaint alleges that by mid

- 2008, LES and its officers knew LES was insolvent, as nearly all of its assets were tied up in frozen ARS, leaving just $28 million to cover pending exchanges of over $290 million , and b y early November 2008 , LES and LFG were preparing to declare bank ruptcy . (SAC ¶118.) T hroughout this time , the Exchangers allege, the individual defendants, along with LES, LFG and SunTrust, had “actual knowledge of material adverse facts that any and all potential Exchange clients would irrefutably consider material,” including that LES ’s “financial status” was “dire ” and “that LES was operating a Ponzi scheme and applying their Funds to prior obligations
. ” (SAC ¶221.) Despite this knowledge, the Exchangers allege, and “with intent to deceive so that the Exchange Clien ts continued to deposit Funds with LES,” the individual defendants intentionally33 breached their duty “ to disclose to the Exchange Clients all material facts concerning the Exchange transactions
. ” (SAC ¶222.) Moreover, as part of the fraudulent scheme, they allege, two of the individual defendants, Ronald Ramos and Devon Jones, arranged for LFG to transfer funds from LFG as “lulling payments . ” (SAC ¶145.) These payments, which temporarily allowed LES to continue meeting some prior exchange obligations, furth er served to fraudulently conceal LES’s “insolvency and imminent failure . . . from prospective Exchange clients whose Funds were needed to keep LES going in the short term.” ( Id. ) Thus, the Exchangers allege, by intentionally failing to disclose to the
Ex changers that, if the ARS market were to remain frozen , LES would be unabl e to comply with its obligation to purchase the Exchangers’ replacement properties, the individual defendants committed fraud. Those factual allegations, which must be taken as true at this stage , satisfy the “unlawful act” element of a conspiracy claim under Virginia or California law. The Exchangers also clearly and plausibly allege that they were harmed by the failure of LES a nd the individual defendants to disclose the above facts. The remaining question is whether the Exchangers have plausibly and non

- conclusorily alleged that SunTrust “combin[ed]” with LES to engage in “ concerted action ” to commit that fraud, as required by Virginia law, see Hechler Chevrolet ,34 337 S.E.2d at 748 , and “ acted in concert and came to a mutual understanding ” with the individual defendants “ to accomplish a common and unlawful plan ,” as required by California law, see Choate , 103 Cal. Rptr. 2d at 353
. For the following reasons, we conclude the Exchangers’ allegations are in sufficient
. The Exchangers do plausibly allege that, at least by October 2008 and probably before , SunTrust representatives, including Brian Edwards (its Deputy General Counsel and Senior Vice President), were aware that LES was facing “severe liquidity problems that threatened its continued viability” and that LES was using Exchange Funds “ to pay prior commitments on older Exchange Transactions
. ” (SAC ¶ 94 .) Indeed, LES provided detailed disclosures directly to SunTrust, in part because LES

was “imploring SunTrust for financial assistance which necessarily included disclosing to SunTrust all of the financial constraints both LFG and LES were operating under.” (SAC ¶ 111.) For example, LES provided to SunTrust the “Executive Summary” described above, which disclosed to SunTrust that “the credit crisis caused a portion ($290.5 [million] ) of the underlying, liquid investments of our exchange customers to become ill iquid at a time when we were holding approximately $700 million of client funds.” J.A. 847. The document also explained that “during the height of the credit crisis, outflows exceeded inflows by nearly $400 million,” and that although LES35 “expect[s] the ba lance in the investment portfolio to be under less pressure,” “it is likely that during the 4th quarter there will be a timing difference between inflows and outflows, requiring liquidity on a portion of the $290.5 million in auction rate securities.” Id. In the words of LES’s general counsel, Michelle Gluck, LES desired SunTrust to be “involve[d]” in LES’s “liquidity plan,” and thus sought to keep S unTrust apprised of its efforts . J.A. 836. Indeed, on October 23, 2008, Gluck expressed her “appreciate[ion]” that Edwards and Bill Mayfield, who was also in SunTrust’s general counsel’s office,

were “remaining in the loop.” Id. The fact that SunTrust allegedly knew all the above information does not amount to a plausible allegation that it “conspired with agent s and representatives of LES . . . and engaged in concerted action for the united purpose of . . . defrauding the Exchangers out of their Exchange Funds,” J.A. 812. To state a claim that SunTrust conspired to commit fraud, the Exchangers would have to alle ge that SunTrust not only knew about what LES was doing and failed to stop it; they would have to allege that SunTrust took concerted action with agents or representatives of LES “in furtherance” of a common purpose of defrauding the Exchangers, with a “mu tual understanding” of that
purpose . The allegations do not rise to this level.36 The principal allegations of SunTrust’s actions are the following . First, the Exchangers allege that even after SunTrust learned that LES was facing major liquidity problems, S unTrust “continue[d] to service the 3318 account and accept deposits received from unsuspecting Exchangers thereby assisting LES in processing purchases of replacement property for LES’s prior exchangers with new exchangers’ money
. ” (SAC ¶95.) SunTrust was LES’s bank; the 3318 account was at SunTrust’s Richmond branch. The fact that SunTrust allowed LES to continue to make deposits into and withdrawals from the 3318 account is a far cry from the concerted action necessary to evince a decision to conspire in the defrauding of the Exchangers. Second, the Exchangers allege that on November 29, 2007, SunTrust agreed to amend SunTrust’s Revolving Credit Agreement to “reduc[e] certain financial covenants which LFG could not satisfy” so t hat LES and LFG would not need to dis close its inability to meet LES’ s credit obligations
. (SAC ¶104.) The ARS market did not freeze until April 2008, however

-- five months after the renegotiation of the line of credit. There simply is no correlation in t hat regard plausibly supporting concerted action with an intent to defraud. Third, t he Exchangers allege that SunTrust “assisted LES between November 21, 2008 and November 25, 2008, on the eve of bankruptcy cleaning out . . . the 3318 account of all but $ 1,”37 processing “seven transfers totaling $46 million to [an account] at Smith Barney.” (SAC ¶125.) The Exchangers immediately then concede, however, that the $46 million remained available to satisfy LES’s creditors, and indeed was the subject of the dispu te in bankruptcy over whether Exchange Funds were or were not part of LES’s estate. ( Id. ) Fourth , the Exchangers all ege that in June 2008, in negotiating an amendment to LFG’s revolving line of credit , SunTrust , despite knowing that LFG was “financially i mpaired,” “avoided declaring LFG in default, which assisted LES to stay in the business to continue to solicit new Exchange Funds and perpetuate the known Ponzi scheme.” (SAC ¶107.) As the Exchangers acknowledge, however, SunTrust had decided to reduce the amount it would allow LFG to borrow on its existing line of credit. 13 SunTrust’s decision not to also declare LFG in default

13 This also rendered SunTrust’s role distinguishable from certain creditors’ alle ged role in perpetuating Edward Okun’s fraudulent scheme involving § 1031 exchange funds. In the district court the Exchangers argued SunTrust’s role was analogous to the alleged role of certain defendants in Hunter v. Citibank, N.A. , No. C 09

– 02079 JW , 20 11 WL 7462143 (N.D. Cal. May 5, 2011), which the court found sufficient to state a claim of conspiracy to commit fraud and conversion. See id. at *6. There, however, the creditor defendants decided to lend Okun “millions of dollars” knowing “that the monie s were being used to perpetuate Okun’s Ponzi scheme” by “enabl[ing] him to continue [his] misconduct through lulling payments.” Id. ; see also United States v. Okun , 453 F. App ’ x 364 (4th Cir. 2011) (affirming 1,200

- month sentence for Okun’s fraud). There i s no (Continued)38 falls short of concerted action with the purpose of defrauding the Exchangers required under Virginia and California law. Thus, the Exchangers have not alleged that SunTrust engaged in concerted action with the individual defendants, with a mutual understanding of a common purpose to defraud, required by Virginia and California law. Indeed, the allegations in the complaint an d the hundreds of pages of emails and other documents attached to the complaint belie concerted action to defraud. SunTrust repeatedly expressed its concern to LES that, by using funds in LES’s “safekeeping account” to purchase ARS, LES “may have violated its fiduciary duty and/or otherwise acted improperly with respect to these customers.” J.A. 837. Furthermore, as noted, by June 30, 2008, SunTrust had reduce d its loan commitment to LFG
. For these reasons, we conclude the Exchangers have not stated a clai m for conspiracy to commit fraud , and affirm the dismissal of t he Exchangers’ conspiracy claim
.

allegation here that SunTrust lent additional funds to LES once SunTrust knew of LES’s liquidity problems.39 I II . For the foregoing reasons, the judgment of the district court dismissing the Exchangers’ claims against SunTrust is
AFFIRMED .