Mary Scanlan v. Marshall Eisenberg

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1657

M ARY B UCKSBAUM SCANLAN,

Plaintiff-Appellant,

v.

M ARSHALL E ISENBERG , et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:09-cv-05026—John F. Grady, Judge.

A RGUED S EPTEMBER 28, 2011—D ECIDED JANUARY 20, 2012

Before B AUER, W OOD and T INDER, Circuit Judges.

B AUER, Circuit Judge. Mary Bucksbaum Scanlan

(“Scanlan”) is a current beneficiary of several dis-

cretionary trusts. Scanlan brought claims of legal mal-

practice and breach of fiduciary duty against the trustee

and her lawyers. The district court dismissed all of

her claims with prejudice and ruled that Scanlan

lacked Article III standing because she did not allege

facts showing a likelihood that the trusts’ corpus were

2 No. 11-1657

insufficient to pay her discretionary distributions.

We reverse and remand.

I. BACKGROUND

A. The Trusts and the Parties

Scanlan was born in 1969 and is the daughter of Martin

Bucksbaum. Bucksbaum and his brother developed

shopping centers eventually founding General Growth

Properties, Inc. (“GGP”), one of the largest traded real

estate investment trusts in the United States, with

$34 billion in total market capitalization and $3 billion

in annual revenues. GGP currently trades around

$14 per share1 on the New York Stock Exchange under

the ticker, GGP.

Beginning when Scanlan was a child, her father and

uncle established six trusts (the “Trusts”), naming

Scanlan as the primary beneficiary. Each of the Trusts

authorizes the corporate trustee, General Trust Company

(the “Trustee”), to distribute “all or as much of the net

income or principal, or both” of the trust to Scanlan “as

the Trustee deems to be necessary for her support” or

“in her best interests.” No other person is eligible to

receive any distributions from the Trusts during

Scanlan’s lifetime, and Scanlan’s children are contingent

remaindermen.

The law firm of Neal, Gerber & Eisenberg, LLP (the “Law

Firm”), through two of its partners, Marshall Eisenberg

1

As of December 20, 2011, GGP closed at $14.52.

No. 11-1657 3

(“Eisenberg”) and Earl Melamed (“Melamed”) generally

represented Scanlan throughout her adult life when she

needed legal advice. At the same time, they represented

both the Trustee and GGP. In addition to his legal repre-

sentation of GGP, Eisenberg also served as the Secretary

of GGP from April 1993 through October 2008; Eisenberg

and Melamed both own GGP stock.

Eisenberg and Melamed personally control General

Trust Company. For example, Eisenberg is its majority

owner, its president, a member of its board of directors,

and one of the three members of its Trust Committee.

Melamed serves on General Trust Company’s board of

directors, serves as its Secretary, and is the second mem-

ber of its Trust Committee.

B. The Stock Purchases

In 2007 and 2008, the Trusts purchased hundreds of

millions of dollars of additional GGP stock. These pur-

chases were financed with the proceeds of a loan

secured by a pledge of the Trusts’ assets. At the time of

the purchases, the Trusts were already heavily invested

in GGP stock, which constituted over 65% of the

Trusts’ assets. Eisenberg and Melamed approved the

GGP stock purchases in their capacity as officers and

directors of the Trustee, and the Law Firm, together

with Eisenberg and Melamed, provided legal advice

concerning the transaction.

On April 16, 2009, GGP declared bankruptcy. Scanlan’s

Trusts suffered more than $200 million in losses due to a

drop in GGP stock purchased in 2007 and 2008.

4 No. 11-1657

C. The Lawsuit

Scanlan brought an action on August 17, 2009, naming

the Trustee, the Law firm, Eisenberg, and Melamed as

defendants (collectively, the “Defendants” or “Appellees”).

On June 30, 2010, Scanlan filed an amended complaint,

which added her children as plaintiffs based on their

status as contingent beneficiaries of the Trusts. Because

her children are minors, Scanlan is suing on their behalf.

In her amended complaint, Scanlan complains that the

Trustee’s purchases of GGP stock were not made in

her best interests, but instead to further (1) her lawyers’

own financial interest in retaining GGP as a client; (2) the

interests of other members of the Bucksbaum family

who managed GGP (whom her lawyers also repre-

sented); (3) Eisenberg and Melamed’s personal interests

as shareholders; and (4) Eisenberg’s interest as Secretary

of GGP.

Specifically, Scanlan brings claims against the Trustee

for breaching its fiduciary duties of loyalty, prudence,

and disclosure when it purchased the GGP stock in 2007

and 2008. Scanlan also brings claims against her lawyers

for breach of fiduciary duty, legal malpractice, and

aiding and abetting the Trustee’s breach of its fiduciary

duty. Lastly, Scanlan seeks equitable relief, including

(1) restoration of the Trusts’ corpus; (2) the removal of

the Trustee; (3) an accounting and books and records

request; (4) modification of the Trusts to provide her

with power to remove the Trustee; (5) the disgorgement

of attorneys’ fees; and (6) punitive damages.

No. 11-1657 5

D. Procedural Context

On October 28, 2009, the Defendants filed a Rule 12(b)(1)

motion arguing that Scanlan was improperly seeking a

direct payment of damages. In her response, Scanlan

claimed that she was seeking an order compelling the

Defendants to restore the Trusts’ corpus. During the

argument on the motion, the district court raised,

sua sponte, the issue of whether Scanlan might lack

Article III standing because she was a discretionary

beneficiary. The Trustee’s attorney all but made

Scanlan’s argument for her, first, conceding that Scanlan

had standing to seek restoration of the corpus, but then

agreeing to take that issue under advisement and re-brief

the issue if the district court preferred.

On October 14, 2010, the district court ruled that

Scanlan lacked Article III standing and dismissed all of

her claims with prejudice. Specifically, the district court

held that Scanlan lacked standing unless she could

allege “facts showing a likelihood that the corpus of

the trusts would ever be insufficient to pay all of her

discretionary distributions to which [she] might become

entitled during her lifetime.” This appeal followed.

The issue on appeal, then, is a narrow one: whether

Scanlan has constitutional standing to assert her claims

in federal court. We find that she does and reverse

the district court.

II. DISCUSSION

We review a district court’s decision to grant a

Rule 12(b)(1) motion to dismiss for lack of standing

6 No. 11-1657

de novo, accepting as true all facts alleged in the

well-pleaded complaint and drawing all reasonable

inferences in favor of the plaintiff. Family & Children’s

Ctr., Inc. v. School City of Mishawaka, 13 F.3d 1052, 1057

(7th Cir. 1994).

The burden to establish standing is on the party in-

voking federal jurisdiction—here, Scanlan—and the

elements she must show are:

(i) an injury in fact, which is an invasion of a legally

protected interest that is concrete and particularized

and, thus, actual or imminent, not conjectural or

hypothetical; (ii) a causal relationship between the

injury and the challenged conduct, such that the

injury can be fairly traced to the challenged action

of the defendant; and (iii) a likelihood that the

injury will be redressed by a favorable decision.

Lee v. City of Chicago, 330 F.3d 456, 468 (7th Cir. 2003)

(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992)).

To satisfy the injury-in-fact requirement, Scanlan “must

establish that [she] has sustained or is immediately in

danger of sustaining some direct injury.” Wis. Right

to Life, Inc. v. Schober, 366 F.3d 485, 489 (7th Cir. 2004)

(quoting Tobin for Governor v. Ill. State Bd. of Elections,

268 F.3d 517, 528 (7th Cir. 2001)). “Mere speculation

is not enough to establish an injury in fact.” Id.

The district court’s standing inquiry, and more specifi-

cally, its injury-in-fact analysis, focused primarily on the

current value of the Trusts’ assets. Having found that

No. 11-1657 7

Scanlan did not allege any facts indicating that the

value of the Trusts’ corpus—approximately $800 mil-

lion—would ever be insufficient to fund any potential

“support” and “best interests” payments, the district

court concluded that Scanlan did not suffer an injury

in fact for purposes of Article III. To put it differently,

Scanlan’s legally protected interest arising out of her

status as a discretionary beneficiary, according to the

district court, is limited to her interest in potential dis-

cretionary payments made pursuant to the Trusts’ instru-

ments. And without an injury to that specific interest,

the court concluded, Scanlan has no injury in fact. We

disagree with that characterization of Scanlan’s interest.

That Scanlan must suffer an invasion of a legally pro-

tected interest is a principle of federal law. But the nature

and extent of Scanlan’s interest as a beneficiary of a

discretionary trust, and therefore, whether that interest

can form the basis of a federal suit, depend on the law

that defines the rights of a discretionary beneficiary.

FMC Corp. v. Boesky, 852 F.2d 981, 993 (7th Cir. 1988); see

also Bochese v. Town of Ponce Inlet, 405 F.3d 964, 981 (11th

Cir. 2005); Cantrell v. City of Long Beach, 241 F.3d 674,

684 (9th Cir. 2001). In this case, that is the law of Illinois.

So we look to see whether according to Illinois law

a discretionary trust beneficiary has the kind of stake

that Article III requires.

So stated, this is an issue that has meager precedent.

The Restatements (Third) of Trusts, Section 94, addresses

who may bring a suit against a trustee for breach of trust,

and therefore, provides some guidance on this topic. See

8 No. 11-1657

In re Estate of Lieberman, 909 N.E.2d 915, 922 (Ill. App. Ct.

2009). Section 94, which is entitled, “Standing to Enforce

a Trust,” provides:

A suit against a trustee of a private trust to enjoin or

redress a breach of trust or otherwise to enforce the

trust may be maintained only by a beneficiary or by

a co-trustee, successor trustee, or other person acting

on behalf of one or more beneficiaries.

The Restatements (Third) of Trusts, § 94(1).

Comment b to § 94 then explains who qualifies as

a “beneficiary” with standing to bring suit to redress a

breach of trust:

A suit to enforce a private trust ordinarily . . . may be

maintained by any beneficiary whose rights are or

may be adversely affected by the matter(s) at issue.

The beneficiaries of a trust include any person

who holds a beneficial, present or future, vested or

contingent . . . . This includes a person who is eligible

to receive a discretionary distribution . . . .

Id. § 94, cmt. b.

Clearly then, Comment b provides that a beneficiary of

a discretionary trust whose rights are “adversely af-

fected” has standing to enforce the trust. But Comment b

poses, rather than answers, the question: What does

it mean for a discretionary beneficiary’s rights to be

“adversely affected”? Again, the Appellees argue that

Scanlan’s rights as a discretionary beneficiary are not

“adversely affected” until the Trustee fails to make a

distribution in which she is entitled to under the terms

No. 11-1657 9

of the Trusts. Only after that showing will Scanlan have

standing, the Appellees claim. Such a rigid standard is

not supported by trust law authority, which indicates

that a discretionary beneficiary’s rights include some-

thing more than just an interest in potential distributions.

In Illinois, a beneficiary has an equitable interest in the

trust property. Parkway Bank & Trust Co. v. Northern Trust

Co., 572 N.E.2d 1055, 1058 (Ill. App. Ct. 1991); Farkas v.

Williams, 125 N.E.2d 600, 605 (Ill. 1955) (“The declaration

of trust immediately creates an equitable interest in the

beneficiaries . . . .”); Gordon v. Gordon, 129 N.E.2d 706, 708

(Ill. 1955); Norris v. Estate of Norris, 493 N.E.2d 121, 126 (Ill.

App. Ct. 1986). Jurisdictions examining the nature of

a discretionary beneficiary’s interest have found that,

like an ordinary beneficiary, a discretionary beneficiary

has an equitable interest in the trust property. See, e.g.,

Pritzker v. Pritzker, Case Nos. 02 CH 21426, 03 CH 7531,

at 15-16 (Cir. Ct. of Cook Cty., Ch. Div. March 5, 2004)

(“It is clear that beneficiaries of a discretional trust have

a present, existing property interest in the trust res.”);

In re Marriage of Jones, 812 P.2d 1152, 1157 (Colo. 1991)

(citing 2 A. Scott on Trusts § 130, at 409 (4th ed. 1987))

(noting that a discretionary trust beneficiary has an

equitable interest, but the beneficiary cannot force the

trustee to pay income or principal unless the beneficiary

could establish the trustee had engaged in fraud or an

abuse of discretion); Pack v. Osborne, 2008 WL 4907545,

at *3 (Ohio App. Ct. Nov. 14, 2008) (determining the

nature of the discretionary beneficiary’s interest in the

trust and concluding it was an equitable interest);

Paulson v. Paulson, 2010 ND 100, 783 N.W.2d 262, 272

(stating that a discretionary beneficiary has an equitable

10 No. 11-1657

interest in the trust assets); United States v. O’Shaughnessy,

517 N.W.2d 574, 577 (Minn. 1994) (citing Restatement

(Second) of Trusts 199 (1959)) (commenting that a dis-

cretionary beneficiary has equitable remedies against

a trustee for breach of trust).

Cases that establish a beneficiary’s equitable interest

in trust property, the Appellees argue, do not arise in

contexts involving standing and instead merely recite

general trust law principles. Yet we see no reason why

canonical principles of trust law should not be

employed when determining the nature and extent of a

discretionary beneficiary’s interest for purposes of an

Article III standing analysis. Applying those principles,

we conclude that Scanlan has an equitable interest in

the corpus of the Trusts. And it is from that equitable

interest that Scanlan acquires standing to enforce the

Trusts.

Stemming from Scanlan’s status as a beneficiary is a

fiduciary relationship between her and the Trustee that

gives rise to equitable remedies against the Trustee

for breach of trust. A trustee owes a fiduciary duty to

a trust’s beneficiaries and is obligated to carry out the

trust according to its terms and to act with the highest

degree of fidelity and utmost good faith. In re Estate of

Muppavarapu, 836 N.E.2d 74, 77 (Ill. App. Ct. 2005); Paul H.

Schwendener, Inc. v. Jupiter Elec. Co., Inc., 829 N.E.2d 818,

828 (Ill. App. Ct. 2005); Giagnorio v. Emmett C. Torkelson

Trust, 686 N.E.2d 42, 46 (Ill. App. Ct. 1997); see also Restate-

ment (Second) of Trusts § 2, cmt. b (1959); Restatement

(Second) of Trusts § 170 (1959). The fiduciary obligation

No. 11-1657 11

of loyalty flows from the relationship of the trustee and

beneficiary, and the essence of that relationship is that

the trustee is charged with equitable duties toward the

beneficiary. Home Federal Savings and Loan Ass’n of

Chicago v. Zarkin, 432 N.E.2d 831, 845-46 (Ill. 1982); Restate-

ment (Second) of Trusts § 164, cmt. h (1959); Matter of

Reiman’s Estate, 450 N.E.2d 928 (1983) (“[A] trust

involves not merely a discretionary authority, but a legal

relationship whereby the trustee is under a fiduciary

obligation to deal with property in accordance with the

instructions of the trustor for the benefit of a third

party . . . .”). So by virtue of the fiduciary relationship

between Scanlan and the Trustee, Scanlan acquires the

right to bring an action for breach of fiduciary duty.

See Parish v. Parish, 193 N.E.2d 761, 766 (Ill. 1963); Burrows

v. Palmer, 125 N.E.2d 484, 486-87 (Ill. 1955); Restatement

(Second) of Trusts § 199 (1959).

Our conclusion in this regard is further supported

by trust law that recognizes a beneficiary’s standing is

not based on an absolute entitlement or a probability

of receiving trust assets. The mere fact that a beneficiary

may ultimately never receive trust assets does not

prevent that beneficiary from bringing a claim. For ex-

ample, a contingent beneficiary can bring an action

against the trustee—even though his interest is remote

and contingent—to protect his possible eventual interest,

i.e., to protect and preserve the trust res. Barnhart v.

Barnhart, 114 N.E.2d 378, 388 (Ill. 1953). In Illinois, there-

fore, “a trustee owes the same fiduciary duty to a con-

tingent beneficiary as to one with a vested interest

insofar as necessary for the protection of the contingent

12 No. 11-1657

beneficiary’s rights in the trust property.” Burrows,

125 N.E.2d at 486-87; see also Shaw v. Weisz, 91 N.E.2d 81,

87 (Ill. App. Ct. 1950).

If a beneficiary who may never receive the trust’s

assets stands in a fiduciary relationship with the

trustee, then so should a beneficiary of a discretionary

trust. We see no reason why a beneficiary, simply by

virtue of being the beneficiary of discretionary trust,

should be denied the ordinary equitable rights that

flow from the fiduciary duty that runs from a trustee

to a beneficiary. Included in those rights is the right

to bring an action for breach of trust.

Goodpasteur v. Fried offers further support. 539 N.E.2d

207, 208 (Ill. App. Ct. 1989). In Goodpasteur, one of the

beneficiaries of a discretionary trust sought an order

requiring the trustee to provide an inventory of trust

assets and an accounting of the trust’s receipts and dis-

bursements. Id. The appellate court rejected the trustees’

argument that the discretionary beneficiary should not

be able to bring his suit because his interest in the trust

was an “expectancy” and the real party concerned was

the remainderman. Id. at 210.

In reversing the circuit court, the appellate court rea-

soned:

Plaintiff is a named beneficiary of the trust. . . .

It is conceivable that, at the death of the beneficiaries

in plaintiff’s class, no income or principal will be left

to distribute to the [remainderman]. It is incongruous

to argue that plaintiff should not be allowed to main-

tain this action because the [remainderman], which

No. 11-1657 13

will enjoy the benefits of the trust only if funds are

left at the death of plaintiff and beneficiaries in his

class, is the party “really concerned.” Such a state-

ment implies that defendants have already decided

not to make any payments to plaintiff and the bene-

ficiaries in his class.

We are of the opinion that plaintiff is a beneficiary

eligible to have the benefit of income under

the trust. As such, plaintiff is entitled to an account

showing the receipts, disbursements and inventory

of the trust estate. . . .

Id. at 210-11.

Again, no authority requires a discretionary beneficiary

to first allege that the trust corpus is insufficient to fund

a distribution when bringing a claim for breach of trust.

That sort of inquiry has a damages flavor to it, which is

a merits, not a standing, question. See Aurora Loan Servs.

Inc. v. Craddieth, 442 F.3d 1018, 1024 (7th Cir. 2006) (“The

point is not that to establish standing a plaintiff must

establish that a right of his has been infringed; that

would conflate the issue of standing with the merits of

the suit. It is that he must have a colorable claim to

such a right.”).

The Appellees argue that Illinois trust law and Article III

are not coextensive, and the mere fact that a discre-

tionary beneficiary may have a right to sue under state

law does not ensure standing. It is true that a standing

inquiry does not necessarily end with the determination

of a state right to sue. But the Supreme Court stated in

Sprint Commc’n Co., L.P. v. APCC Services, Inc. that

14 No. 11-1657

“history and tradition offer a meaningful guide to the

types of cases that Article III empowers federal courts

to consider” and that where parties have “long been

permitted to bring” the type of suit at issue, it is “well

nigh conclusive” that Article III standing exists. 554

U.S. 269, 274-75, 285 (2008). After carefully reviewing

beneficiaries’ rights, we determined that beneficia-

ries—including discretionary beneficiaries—have “long

been permitted to bring” suits to redress a trustee’s

breach of trust.

Moreover, in FMC Corp. v. Boesky, we held that the

actual or threatened injury required under Article III

can be satisfied solely by virtue of an invasion of a recog-

nized state-law right. 852 F.2d 981, 993 (7th Cir. 1988). In

Boesky, FMC brought a claim for wrongful misappropria-

tion and misuse of its confidential business informa-

tion, which forced FMC to increase its cash distribution

to its shareholders under a revised capitalization plan.

Id. at 989-90. Finding that the distribution of FMC’s

assets to the owners of those assets was merely a move-

ment of assets between owners, the district court found

there was no injury for purposes of Article III. Id.

We reversed the district court and held that the misap-

propriation of confidential information “constitutes a

distinct and palpable injury that is legally cognizable

under Article III’s case and controversy requirement.”

Id. Basing our decision, in part, on Warth v. Seldin—which

held that injury required by Article III may exist solely

by virtue of statutes creating legal rights, the invasion

of which creates standing—we concluded that “[t]he

same must also be true of legal rights growing out of

state law.” Boesky, 852 F.2d at 993 (citing Warth v. Seldin,

No. 11-1657 15

422 U.S. 490, 498 (1975)). In fact, we pointed out that

if this were not so, “federal courts sitting in diversity

could not adjudicate some cases involving only state-

law breach-of-fiduciary claims . . . because some

actions for breach of fiduciary duty do not require

the plaintiff to show an injury.” Id.

Here, Scanlan is the beneficiary of several discretionary

Trusts, and under those Trusts, she is currently eligible

to receive all of the Trusts’ corpus. We established that

Scanlan, as a beneficiary, is owed a fiduciary duty and

that she has an interest in ensuring that the Trustee

discharge its duties with fidelity and a certain degree

of care. The Trustee and her lawyers, Scanlan claims,

breached those fiduciary duties, causing the Trusts’

corpus to lose approximately $200 million. Under these

circumstances, the Trustee’s and Lawyers’ dereliction of

their fiduciary duties is a direct invasion of Scanlan’s

protected interest in the prudent and loyal administra-

tion of the Trusts. Scanlan has therefore suffered an

injury sufficient to satisfy Article III’s case and con-

troversy requirement.

This holding is consistent with the objective of the

standing doctrine. As the Supreme Court has explained,

the purpose behind the standing doctrine is to ensure

that plaintiffs have a “personal stake in the outcome”

sufficient to “assure that concrete adverseness which

sharpens the presentation of issues upon which the

court so largely depends for illumination of dif-

ficult . . . questions.” Baker v. Carr, 369 U.S. 186, 204 (1962).

The Court has also explained:

16 No. 11-1657

[T]he standing inquiry requires careful judicial ex-

amination of a complaint’s allegations to ascertain

whether the particular plaintiff is entitled to an ad-

judication of the particular claims asserted. Is the

injury too abstract, or otherwise not appropriate, to

be considered judicially cognizable? Is the line of

causation between the illegal conduct and injury

too attenuated? Is the prospect of obtaining relief

from the injury as a result of a favorable ruling too

speculative?

Allen, 468 U.S. at 752.

Scanlan has a “required stake” in her suit; she has a

legally protected interest in Trusts’ corpus and in the

proper administration of that corpus. Her claims against

her lawyers and the Trustee are brought to protect that

interest and redress her injury by seeking to remove

the Trustee, restore the Trusts’ corpus, and disgorge

attorneys’ fees. Scanlan’s injury, therefore is not “too

abstract.” Nor is the relief she seeks too speculative.

The Appellees argue that under some circumstances

a discretionary beneficiary’s present interest in the trust

property—before a trustee has made a distribution—is

too attenuated to be considered the beneficiary’s prop-

erty. The Appellees, therefore, urge us to conclude

that Scanlan only has an interest in her potential dis-

tributions, rather than the Trusts’ corpus. It is true that

in some circumstances, e.g., for purposes of public aid

eligibility and determining the bankruptcy estate, a

discretionary beneficiary’s interest in the trust assets

is too remote to count as property. See, e.g., Linser v. Office

No. 11-1657 17

of Attorney Gen., 2003 ND 195, 672 N.W.2d 643, 646;

In re Britton, 300 B.R. 155, 159 (Bankr. D. Conn. 2003);

In re Eley, 331 B.R. 353, 358 (Bankr. S.D. Ohio 2005). Like-

wise, in some cases, creditors are prevented from at-

taching the assets of a discretionary trust and have no

remedy against the trustee until the trustee distributes

the property. See, e.g., United States v. O’Shaughnessy,

517 N.W.2d 574, 577 (Minn. 1994); Harker v. Evatt,

44 N.E.2d 355, 357 (1942); Doksansky v. Norwest Bank

Neb., N.A., 615 N.W.2d 104, 106-10 (Neb. 2000); In re

Duncan’s Will, 362 N.Y.S.2d 788, 790 (Sur. 1974).

These rules, however, are the result of underlying

principles and policy considerations involving restraints

on involuntary alienation. Those concerns, which are not

present here, are distinct from the equitable principles

of trust law at work in this case; namely, a beneficiary’s

right to hold trustees accountable and ensure that

they properly discharge their fiduciary duties when

administering trust property. That in some contexts

Scanlan’s interest in the Trusts’ assets may not rise to

the level of a “property interest” does not negate the

fact that she and the Trustee stand in a fiduciary rela-

tionship. The same can be said of her relationship with

her attorneys.

We remain unpersuaded that our holding will lead to

any beneficiary having standing whether or not its

specific interest is affected. Only a beneficiary of a dis-

cretionary trust whose rights are “adversely affected” has

standing to enforce a trust. In claims for breach of trust,

the requirement that a beneficiary of a discretionary

18 No. 11-1657

trust must plead facts indicating that the diminution in

the trust assets had, or will ever have, a probable

adverse impact on discretionary distributions is too

demanding. Essentially that rule, which the Appellees

ask us to adopt, would insulate trustees from suits for

breach of trust. For instance, under that reasoning, a

trustee could mismanage a trust with impunity, substan-

tially reducing the assets over time, so long as there

were enough assets left in the corpus to fund a future

distribution. In fact, the larger the trust’s corpus, the

more likely that could happen. Take the Trusts in this

case for example: with nearly $1 billion in assets, it is

hard to imagine that there would ever be a situation

in which the corpus would be insufficient to fund

Scanlan’s “best interests” and “support” distributions.

Surprisingly, the Appellees admit this. The Trustee,

could, under the Appellees’ reasoning, reduce the assets

by 90%—to a paltry $100 million—and still be sheltered

from a breach of trust claim.

The Appellees’ rule ignores the fiduciary relationship

between a beneficiary and a trustee and is practicably

unworkable because the question inevitably becomes:

at what point is the trust’s corpus diminished to such

an extent that the trustee can no longer make a future

distribution? The Appellees cannot answer this ques-

tion. Nor can we. Scanlan’s standing should not turn on

whether her “best interests” and “support” needs, what-

ever they may be, will be met. The district court, therefore,

erred to the extent it concluded that Scanlan lacked

Article III standing because she did not suffer an injury

in fact.

No. 11-1657 19

III. CONCLUSION

For the reasons stated herein, we R EVERSE and

R EMAND for further proceedings consistent with this

opinion.

1-20-12