                                                   130 Nev., Advance Opinion      78
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                PAUL GUILFOYLE, AN INDIVIDUAL;                      No. 60478
                AND CITYPOINT, LLC, A NEW YORK
                LIMITED LIABILITY COMPANY,
                Appellants,
                vs.
                                                                          F
                OLDE MONMOUTH STOCK                                           OCT 02 2014
                TRANSFER COMPANY, CO., INC.,
                Respondent.                                          13   4 0101
                                                                          7 i

                           Appeal from a district court order granting summary
                judgment. Eighth Judicial District Court, Clark County; Kathleen
                Delaney and Susan Scann, Judges.
                           Affirmed.

                Gordon Silver and Michael N. Feder and Joel Z. Schwarz, Las Vegas;
                Goodwin Procter, LLP, and Lloyd Winawer, Menlo Park, California,
                for Appellants.

                Lionel Sawyer & Collins and Charles H. McCrea, Jr., and Ketan D.
                Bhirud, Las Vegas,
                for Respondent.


                BEFORE THE COURT EN BANC.

                                               OPINION

                By the Court, PICKERING, J.:
                           We consider the liability of a stock transfer agent to a
                stockholder for giving an allegedly incomplete and misleading answer to a
                question about its requirements for removing a restrictive legend on his
                stock. Under NRS 104.8401 and NRS 104.8407 a transfer agent must, on

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(0) I947A                                                                          )14   3nz-io
                proper request, register a transfer of securities without unreasonable
                delay. But these statutes do not support liability here because the
                stockholder did not ask the transfer agent to remove the legend and
                reissue him clean shares and, without a request to act, the agent's
                statutory duty to register a requested transfer does not arise. The
                stockholder's common law claims also fail, because they are not supported
                by competent evidence. We therefore affirm summary judgment for the
                transfer agent.
                                                     I.
                            Appellants Paul Guilfoyle and Citypoint, LLC (collectively
                Guilfoyle), held stock in Pegasus Wireless Corp., a Nevada corporation.
                Respondent Olde Monmouth Stock Transfer Co., Inc. was the transfer
                agent for Pegasus. Guilfoyle's stock carried the following legend
                restricting its sale: "The shares represented by this certificate have not
                been registered under the Securities Act of 1933, as amended and may not
                be sold or transferred without registration under said Act or an exemption
                therefrom." Guilfoyle believed that he had held the stock long enough and
                met the other requirements needed to qualify his stock for an exemption
                from registration under Securities and Exchange Commission (SEC) Rule
                144, 1 and he asked John Lechner, a restricted securities client advisor at
                Deutsche Bank Securities, Inc. (DBS), about removing the restrictive
                legend so the stock could be resold. Lechner in turn asked Barbara

                       'Rule 144 provides a safe harbor under section 4(1) of the Securities
                Act of 1933, 15 U.S.C. § 77a et seq., and permits shareholders to sell their
                restricted securities, provided they meet certain conditions, including
                volume and holding period limitations, and adequate public information is
                available. 17 C.F.R. § 230.144 (2013).



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                  Walters, a DBS employee, to look into it. Walters located a telephone
                  number and email address for Pegasus and left word that she wanted
                  "their corporate counsel information . . . [s]o that we [could] request an
                  opinion to remove the legend."
                              Key to this appeal, Walters also called and spoke to someone
                  at Olde Monmouth, Pegasus's transfer agent. Walters' call to Olde
                  Monmouth was essentially anonymous. She did not identify herself, the
                  company she worked for, or Guilfoyle, saying only that she was calling
                  from a brokerage firm about a client holding restricted Pegasus stock.
                  Olde Monmouth has no record of the call, and Walters has given varying
                  accounts of it. In her deposition, Walters testified that she said "we were
                  looking to locate corporate counsel" information for Pegasus; in the
                  affidavit she furnished Guilfoyle, Walters avers that she asked Olde
                  Monmouth "to provide the name of counsel from whom it would accept a
                  legal opinion that the restrictive legends could be removed from Pegasus
                  stock certificate." Either way, Olde Monmouth responded by giving her
                  the name and contact information for a lawyer named John Courtade,
                  whom Pegasus had written Olde Monmouth several weeks earlier to
                  designate as its counsel for legend removals under SEC Rule 144.
                              According to Walters, her telephone conversation with Olde
                  Monmouth was brief, lasting "[m]aybe longer than a minute, not longer
                  than five." When the call ended, Walters called Courtade. He expressed
                  surprise that someone at Olde Monmouth had given her his name and said
                  he could not provide an opinion letter unless directed to do so by Pegasus.
                  Walters did not call Olde Monmouth back to tell them about Courtade's
                  rebuff or communicate with Olde Monmouth again concerning Pegasus
                  stock.

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                             Olde Monmouth has internal written "procedures for removing
                 legends under Rule 144," which, not surprisingly, draw on the Uniform
                 Commercial Code (UCC) provisions governing securities transfers and
                 SEC Rule 144 as written at the time the events in this case occurred. See
                 infra note 2. The procedures require that a registered broker/dealer
                 present the share certificates, properly endorsed, to Olde Monmouth with
                 supporting signature guarantees and documents, including "a completed
                 copy of signed and filed Forms 144," and a seller's certification "stating
                 that the shareholder is not an affiliate of the issuer, nor has been for the
                 preceding 90 days, and that the shares have been beneficially held for at
                 least one year" Additionally, "[t]he share certificate(s) should be
                 accompanied by a legal opinion from the Issued's] SEC attorney (stating
                 that the sale is not in violation but in fact is in compliance with the
                 exemption from registration requirements of Federal Securities laws)." If
                 all criteria are met, Olde Monmouth "shall immediately remove the legend
                 from the shares and transfer the shares into 'street name." If the request
                 arrives otherwise complete but with no supporting legal opinion, the
                 procedures direct that it be forwarded to the issuer's SEC attorney with a
                 request for "the appropriate legal opinion." Should a request arrive
                 supported by "a legal opinion from someone other than the Issuer's SEC
                 Attorney (an 'outside opinion')," again, the procedures direct that Olde
                 Monmouth "forward all [the] documents to and request [the appropriate]
                 legal opinion from the Issuer's SEC Attorney." Finally, if "the Issuer's
                 SEC Attorney has not responded to the request for approval of the outside
                 legal opinion after 15 days," Olde Monmouth will process the legend
                 removal request based on the outside opinion.



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                             Olde Monmouth did not disclose these internal procedures to
                 Walters or mention that Courtade was the fourth in a series of lawyers
                 Pegasus had designated as SEC counsel over the past year. But DBS
                 client adviser Lechner was a "major player in restricted securities" and
                 Walters, whose job was to "assist in obtaining legend removals from
                 stock," already knew that a Rule 144 opinion from outside counsel might
                 be used to support a request for legend removal. This is shown by
                 Walters' email to Lechner sent the day she spoke to Olde Monmouth and
                 Courtade, wherein Walters relates her lack of success rousing anyone at
                 Pegasus, her unhelpful conversation with Courtade, and a pending dispute
                 between Pegasus and an affiliate's co-founder, Tsao, over Tsao's restricted
                 stock. Noting the lack of industry consensus at that time (2006) over
                 legend removal not connected to an actual sale, she suggests Guilfoyle
                 (and Citypoint) "may want to solicit their own counsel to render an opinion
                 to remove the legend under 144(k)." 2
                             Guilfoyle never submitted his shares to Olde Monmouth with
                 a request to remove the legend. Nor, from what appears, did he bring his
                 shares to his broker, DBS, or complete DBS's form "request for removing a
                 restrictive legend," so DBS could initiate the process. He also did not
                 pursue a Rule 144 opinion from independent counsel DBS's records show
                 that Walters and another DBS employee called and emailed Pegasus




                       21n February 2008, subsection 144(k) was eliminated and
                 substantively similar provisions were added to other parts of SEC Rule
                 144. See 17 C.F.R. § 230.144(b)(1)(i) (2013). The facts giving rise to this
                 suit predated these amendments.



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                      several more times, to no avail. Meanwhile, Pegasus stock plummeted,
                      rendering Guilfoyle's stock essentially valueless.
                                  Sometime later, the SEC learned that two of the principal
                      officers of Pegasus had defrauded investors by, among other things,
                      issuing shares to their relatives and falsely reporting that the shares went
                      to pay off outstanding promissory notes that, in fact, were backdated and
                      bogus, thus diluting the value of legitimate investors' shares. The SEC
                      pursued the officers civilly and criminally, ultimately obtaining a consent
                      decree and convictions.
                                  Guilfoyle sued Pegasus and its defalcating officers and
                      recovered judgment against them. When Pegasus filed bankruptcy,
                      Guilfoyle commenced suit against Olde Monmouth. His theory was (and
                      is) that Olde Monmouth misled Walters into believing only an opinion
                      letter from Pegasus's corporate counsel would do when, in fact, Olde
                      Monmouth would have accepted an opinion letter from independent
                      counsel and removed the legend if Pegasus proved nonresponsive;
                      removing the legend, Guilfoyle alleges, would have enabled him to sell his
                      shares before their value fell. He also faults Olde Monmouth for not
                      advising Walters that Courtade had only recently been named and was
                      the fourth in a series of counsel Pegasus had designated over the
                      preceding year. On these bases, Guilfoyle asserted claims for: (1) violation
                      of NRS 104.8401 and NRS 104.8407; (2) negligent and fraudulent
                      misrepresentation; (3) aiding and abetting Pegasus's officers' breach of
                      fiduciary duty; and (4) conspiracy.
                                  After discovery and amendment of the pleadings, the district
                      court granted Olde Monmouth's motion for summary judgment Guilfoyle
                      appeals.

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                               Because the district court resolved this case on summary
                judgment, our review is de novo and we take the facts and the reasonable
                inferences to be drawn from them in the light most favorable to the
                nonmoving party. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d
                1026, 1029 (2005). We will affirm if the record, viewed in that light, shows
                that there is no genuine issue as to any material fact and that the moving
                party is entitled to judgment as a matter of law. NRCP 56. "Conjecture
                and speculation do not create an issue of fact." Stockmeier v. State, Bd. of
                Parole Comm'rs, 127 Nev. „ 255 P.3d 209, 212 (2011).
                                                         A.
                               At common law, "a transfer agent [could not] be held liable to
                a stockholder in damages for . . . failure to act to remove [restrictive]
                legends," or refusal to register a requested stock transfer. Kenler v. Canal
                Nat'l Bank, 489 F.2d 482, 485 (1st Cir. 1973). "Such failure or refusal was
                merely nonfeasance for which the .. . agent was liable to the corporation
                alone, and for which [the corporation] in turn was liable to those injured
                thereby, because a stock transfer agent owed no duty to a shareholder."
                12 William Meade Fletcher, Cyclopedia of the Law of Corporations § 5525
                (2004). Article 8 of the UCC, enacted in Nevada as NRS 104.8101 through
                NRS 104.8511, partially abrogates the common law as to transfer agents.
                See UCC § 8-407 cmt. 1(1994). It makes a transfer agent's duty the same
                as an issuing corporation's in performing the statutory functions involved
                in processing a request to register a transfer of securities. NIPS 104.8407. 3


                      3 Like  UCC § 8-407 (1994), NRS 104.8407 provides: "A person acting
                as . . . transfer agent . . . for an issuer in the registration of a transfer of its
                                                                        continued on next page . . .
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                              Guilfoyle asserts that Olde Monmouth violated its statutory
                 duties to him under the UCC. Since NRS 104.8407 defines a transfer
                 agent's duty in terms of an issuer's, we look to NRS 104.8401, entitled
                 "[d]uty of issuer to register transfer," in assessing Guilfoyle's UCC claim.
                 Under NRS 104.8401, "[i]f a certificated security in registered form is
                 presented to an issuer with a request to register transfer," the issuer
                 "shall register the transfer" provided the following criteria are met:
                                    (a) Under the terms of the security, the
                              person seeking registration of transfer is eligible
                              to have the security registered in his or her name;
                                    (b) The endorsement or instruction is made
                              by the appropriate person or by an agent who has
                              actual authority to act on behalf of the appropriate
                              person;
                                    (c) Reasonable assurance is given that the
                              endorsement or instruction is genuine and
                              authorized;
                                    (d) Any applicable law relating to the
                              collection of taxes has been complied with;
                                    (e) The transfer does not violate any
                              restriction on transfer imposed by the issuer in
                              accordance with NRS 104.8204;
                                    (0 A demand that the issuer not register
                              transfer has not become effective under NRS
                              104.8403, or the issuer has complied with

                 . . . continued

                 securities, in the issue of new security certificates or uncertificated
                 securities or in the cancellation of surrendered security certificates has the
                 same obligation to the holder or owner of a certificated or uncertificated
                 security with regard to the particular functions performed as the issuer
                 has in regard to those functions."



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                            subsection 2 of that section but no legal process or
                            indemnity bond is obtained as provided in
                            subsection 4 of that section; and
                                  (g) The transfer is in fact rightful or is to a
                            protected purchaser.
                "If any of the preconditions do not exist, there is no duty to register
                transfer." UCC § 8-401 cmt. 1 (1994); see also Catizone v. Memry Corp.,
                897 F. Supp. 732, 736 (S.D.N.Y. 1995) (a transfer that violates the federal
                securities laws "cannot be considered rightful," meaning that a transfer
                agent "has no duty to register a transfer" in that instance). But if the
                statutory terms are met, so that "[the] issuer is under a duty to register a
                transfer of a security, the issuer is liable to the person presenting a
                certificated security ... or his or her principal for loss resulting from
                unreasonable delay in registration or failure or refusal to register the
                transfer." NRS 104.8401(2).
                            The phrase "request to register transfer" in NRS 104.8401(1)
                applies to a request to remove a restrictive legend from a person's shares,
                equally with its more obvious object of a request to register a transfer of
                shares from one person to another. The "realities of the securities transfer
                process" are such that "[w]here certificated stock is transferred, the
                issuance of a new certificate to the transferee is normally an integral step
                in that process. And where the stock is restricted, the issuance of a new,
                clean certificate to the transferor is normally the essential first step."
                Bender v. Memory Metals, Inc., 514 A.2d 1109, 1115 (Del. Ch. 1986). Thus,
                "even without a request to register a transfer of the underlying stock, the
                issuer's duty"—and, by extension, a transfer agent's duty—"to register a
                transfer of shares under Section 8-401 extends to a request to issue to the
                owner a new clean certificate for the same amount of shares." J. William

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                      Hicks, Resales of Restricted Securities § 4:5 (2014) (discussing UCC § 8-401
                      (1994)).
                                  While NRS 104.8401(1) can apply to legend removal requests,
                      it does not apply here because Walters' brief telephone call with Olde
                      Monmouth did not meet the statute's requirements for a "request to
                      register transfer." The statutory "duty to register transfers exists only if:
                      a registered security is presented to it; the certificate is accompanied by a
                      request to register the transfers; and the requestor has satisfied the
                      preconditions that subsection 8-401(1) authorizes the issuer to impose
                      before registering the transfer." 7 Frederick H Miller,               Hawk land
                      Uniform Commercial Code Series § 8-401:02 (2013). Presentation of a
                      properly supported "request to register transfer" (or here, request to
                      remove a legend) is the sine qua non of an NRS 104.8401 claim: "Perhaps
                      the most obvious requirement that must be satisfied before the ... duty to
                      register a transfer arises [is] that the certificate be presented."    Id. And,
                      the other conditions stated in NRS 104.8401(1) must be satisfied as well.
                      See Kolber v. Body Central Corp., 967 F. Supp. 2d 1061, 1066 (D. Del.
                      2013) (the issuer was not obligated to respond to a shareholder's emails
                      before the shareholders actually requested legend removal backed by a
                      Rule 144 opinion as required by the restrictive legend in that case);
                      Schloss v. Danka Bus. Sys., PLC, No. Civ. 0817 (DC), 2000 WL 282791, at
                      *7 (S.D.N.Y. Mar. 16, 2000) (dismissing complaint where the shareholders
                      "did not allege that they presented the stock certificates in transferable
                      form[;] there was no duty on defendants to transfer shares with restrictive
                      legends on them"); Merkens v. Computer Concepts Corp., 76 F. Supp. 2d
                      245, 250 (E.D.N.Y. 1999) (under Delaware law, which adopts the UCC, the
                      issuer is not required to register a transfer until it receives the signature

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                   guarantee required by Del. Code Ann. tit. 6, §§ 8-401(1)(b) and 8-402
                   (1995)); 4 Nash v. Coram Healthcare Corp., No. 96 Civ. 0298 (LMM), 1996
                   WL 363166, at *3 (S.D.N.Y. June 28, 1996) (dismissing shareholder
                   complaint alleging breach of duty to register a securities transfer where
                   the shares were not presented for transfer).
                                  Here, Guilfoyle did not meet any of the requirements of NRS
                   104.8401(1). Neither he nor his broker, DBS, presented his Pegasus
                   shares to Olde Monmouth or asked Olde Monmouth to remove their
                   restrictive legend. During her call with Olde Monmouth, Walters did not
                   identify Guilfoyle or his circumstances, so Olde Monmouth would have
                   had no way of knowing whether Guilfoyle could meet the requirements in
                   NRS 104.8401(1) (much less the registration exemption requirements in
                   SEC Rule 144). Viewing the facts in the light most favorable to Guilfoyle,
                   the most that can• be said is that Walters asked for "the name of counsel
                   from whom it would accept a legal opinion that the restrictive legends
                   could be removed" from an unknown number of Pegasus stock certificates.
                   In response, Olde Monmouth furnished contact information for Pegasus's
                   designated SEC counsel. Olde Monmouth was not statutorily obligated to
                   do more. See Kolber, 967 F. Supp. 2d at 1066 (the issuer was not liable to
                   the stockholder under the UCC where, after providing contact information
                   for the issuer's attorney, it did not answer follow-up emails asking about
                   specific procedures; the issuer did timely provide an opinion from
                   corporate counsel).


                         4 Del.
                              Code, Ann. Tit. 6, § 8.401(1)(b) (1995) was renumbered in 1997
                   (71 Del. Laws, c. 75, § 1, eff. Jan. 1, 1988) to § 8.401(a)(3); the operative
                   language remains identical.



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                            Olde Monmouth's failure to disclose its internal procedures for
                dealing with outside counsel's opinions is not the legal equivalent of a
                refusal to timely process a request to register a transfer or remove a
                legend. The cases on which Guilfoyle relies for that proposition,
                principally Bender and American Securities Transfer, Inc. v. Pantheon
                Industries, Inc.,   871 F. Supp. 400, 403-04 (D. Colo. 1994), are
                distinguishable. In both, the shareholder requested that the restrictive
                legend be removed and tendered the stock certificates for reissuance.
                Bender, 514 A.2d at 1118 (noting that "Bender presented her shares to
                [the issuer] to register the transfer"); Pantheon, 871 F. Supp. at 402
                (noting that the shareholder "submitted the certificate to [the transfer
                agentl and requested that a new stock certificate be issued. . . without the
                restrictive legend"). The dispute was whether, given the competing
                demands and conflicting legal opinions, the transfer qualified as "rightful"
                in the meaning of UCC § 8-401(1). Bender, 514 A.2d at 1116-17; Pantheon,
                871 F. Supp. at 402. In this case, by contrast, Guilfoyle and his broker,
                DBS, never engaged the statutory transfer process by submitting a
                transfer request. Cf. Nash, 1996 WL 363166, at *3 (distinguishing Bender
                and similar cases because "the shares in this instance were neither in
                registered form nor presented to the issuer" for transfer). Summary
                judgment on Guilfoyle's NRS 104.8401 and NRS 104.8407 claim thus was
                proper.
                                                     B.
                            As noted above, at common law a transfer agent's duty in
                respect to registering a transfer ran to the corporation, not the
                shareholder, so the transfer agent was not liable to the shareholder for
                mere nonfeasance But "misfeasance," as distinguished from nonfeasance,
                "was at common law, and remains, a recognized basis for a lawsuit by a
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                  shareholder against a transfer agent."    Campbell v. Liberty Transfer Co.,
                  No. CV-02-3084, 2006 WL 3751529, at *17 (E.D.N.Y. Dec. 19, 2006). 5
                  Guilfoyle's negligent and fraudulent misrepresentation, aiding and
                  abetting, and conspiracy claims arguably assert misfeasance, so we turn to
                  them next.
                                                       1.
                               In Nevada, negligent misrepresentation and fraudulent
                  misrepresentation both require that the defendant supply "false
                  information," Halcrow, Inc. v. Eighth Judicial Dist. Court, 129 Nev. ,
                     , 302 P.3d 1148, 1153 (2013) (stating the elements of a negligent
                  misrepresentation claim, citing Restatement (Second) of Torts § 552
                  (1977)), or make a "false representation." Bulbman, Inc. v. Nev. Bell, 108
                  Nev. 105, 111, 825 P.2d 588, 592 (1992) (stating the elements of a
                  fraudulent misrepresentation claim). Here, Olde Monmouth gave a
                  truthful answer to Walters' telephone inquiry for "the name of counsel
                  from whom it would accept a legal opinion": John Courtade was Pegasus's
                  designated counsel for SEC Rule 144 opinions; per its written internal
                  procedures, Olde Monmouth (a) would not process a transfer request
                  without soliciting approval from him as Olde Monmouth's designated SEC
                  counsel; and (b) would accept an SEC 144 exemption opinion from
                  Courtade.


                        5 We  express no opinion as to whether NRS 104.8401 and NRS
                  104.8407 displace the common law remedies available against a transfer
                  agent for misfeasance. Cf. Clancy Sys. Int'l, Inc. v. Salazar, 177 P.3d
                  1235, 1239 (Colo. 2008) (holding that Colorado's UCC-based counterpart to
                  NRS 104.8401 displaces common law claims against an issuer for wrongful
                  delay or failure to process a request to register a transfer of securities).



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                             Except for Courtade's contact information, Walters' phone
                conversation with Olde Monmouth approximates what Guilfoyle could
                have learned by consulting the SEC's website:
                             Even if you have met the conditions of Rule 144,
                             you can't sell your restricted securities to the
                             public until you've gotten the legend removed from
                             the certificate. Only a transfer agent can remove
                             a restrictive legend. But the transfer agent won't
                             remove the legend unless you've obtained the
                             consent of the issuer—usually in the form of an
                             opinion letter from the issuer's counsel—that the
                             restrictive legend canS be removed.
                U.S. Securities and Exchange Commission, Rule 144: Selling Restricted
                and Control Securities, https://www.sec.gov/investor/pubs/rule144.htm
                (last visited Sept. 9, 2014) (emphasis added). Walters did not request
                more information and Olde Monmouth did not provide Walters "false
                information" or make a "false representation of fact" in response to the
                generic inquiry she made. That Olde Monmouth provided Walters correct
                information dispositively distinguishes Nevada National Bank v. Gold
                Star Meat Co., Inc., 89 Nev. 427, 430, 514 P.2d 651, 653 (1973), on which
                Guilfoyle relies, wherein the defendant bank's officer had attested as to a
                company's creditworthiness, even though the company was "not in fact a
                depositor in his bank and. . . he had no accurate means of assessing [its]
                credit status."
                             The "deemed approved" mechanism in Olde Monmouth's
                internal procedures for situations where an issuer's counsel ignores a
                forwarded request for legend removal based on an outside opinion for more
                than 15 days was not information Olde Monmouth needed to volunteer
                during a five-minute phone call from an unidentified brokerage firm
                employee. Guilfoyle suggests that Olde Monmouth deliberately sent

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                Walters on a wild goose chase by giving her contact information for
                Courtade. But the uncontroverted evidence belies this allegation. Olde
                Monmouth presented competent evidence establishing that (1) it processed
                26 requests to have legends removed from Pegasus shares during the
                relevant time period, 23 of which it honored and three of which it rejected
                as incomplete or assertedly not qualifying under SEC Rule 144; (2) it
                would have done the same for Guilfoyle if DBS had presented a request on
                his behalf; and (3) it had no agreement, tacit or express, with Pegasus not
                to process legend removal requests from persons not part of its officers'
                fraudulent scheme. The high turnover in corporate counsel at Pegasus,
                while unusual, does not support that, when Walters called, Olde
                Monmouth knew or had reason to know that Courtade would refer her
                back to Pegasus and that Pegasus would not respond. 6 Guilfoyle's
                argument that, when Olde Monmouth spoke to Walters it knew it needed
                to disclose more than Courtade's name and contact information to prevent
                its statement from being misleading is conjectural and therefore fails.   Cf.
                Restatement (Second) of Torts § 551(2)(b) (1977) (imposing a duty on a
                "party to a business transaction . . to exercise reasonable care to disclose
                to the other before the transaction is consummated. . . matters known to
                him that he knows to be necessary to prevent his partial or ambiguous
                statement of the facts from being misleading"). To the extent Guilfoyle
                relies on events that occurred after Walters' call to impose a duty to
                supplement its original response, he cannot prevail because, among other


                      6 Theseveral transfer requests supported by outside opinions that
                Olde Monmouth forwarded to Courtade, to which Courtade did not object,
                were not acted on until after the Walters call.



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                 reasons, Walters did not identify herself or Guilfoyle to Olde Monmouth so
                 Olde Monmouth could contact her. She also did not call Olde Monmouth
                 again to ask for help when she ran into problems with Pegasus.      See id. §
                 551(2)(c) & (d) (discussing duties of updated disclosure with respect to
                 subsequently acquired facts).
                             Guilfoyle argues that Olde Monmouth and he, through
                 Walters, had a special relationship giving rise to a duty of full disclosure.
                 See id. § 551(2)(a) (stating duty of disclosure that arises by virtue of "a
                 fiduciary or other similar relation of trust and confidence between"
                 parties). The record offers no evidence to support this claim. Olde
                 Monmouth did not step outside its role of transfer agent, cf. Affiliated Ute
                 Citizens of Utah v. United States, 406 U.S. 128, 152 (1972) (if the "bank
                 had functioned merely as a transfer agent, there would have been no duty
                 of disclosure here"); there was no "special relationship" by which Guilfoyle
                 or Walters "reasonably impartfed) special confidence in the defendant and
                 the defendant would reasonably know of this confidence." Dow Chem. Co.
                 v. Mahlum, 114 Nev. 1468, 1486, 970 P.2d 98, 110 (1998), overruled in
                 part on other grounds by GES, Inc. v. Corbitt, 117 Nev. 265, 271, 21 P.3d
                 11, 15 (2001).
                                                       2.
                             Aiding and abetting the breach of a fiduciary duty has four
                 required elements: (1) there must be a fiduciary relationship between two
                 parties, (2) that the fiduciary breached, (3) the defendant third party
                 knowingly and substantially participated in or encouraged that breach,
                 and (4) the plaintiff suffered damage as a result of the breach.        In re
                 Amerco Derivative Litig., 127 Nev. „ 252 P.3d 681, 701-02 (2011);
                 Mahlum, 114 Nev. at 1490, 970 P.2d at 112. Assuming Pegasus breached
                 a fiduciary duty to Guilfoyle, Guilfoyle failed to present evidence that Olde
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                  Monmouth knowingly and substantially participated in or encouraged that
                  breach. Guilfoyle presented no evidence to show that Olde Monmouth
                  knew about Pegasus's lack of responsiveness to Walters, let alone that
                  Olde Monmouth knowingly participated in or encouraged Pegasus's
                  actions. Summary judgment thus was proper on Guilfoyle's civil aiding or
                  abetting a breach of fiduciary duty claim.
                                                       3.
                              Finally, the record reveals no genuine issue of material fact as
                  to Guilfoyle's civil conspiracy claim. Actionable civil conspiracy arises
                  where two or more persons undertake some concerted action with the
                  intent "to accomplish an unlawful objective for the purpose of harming
                  another," and damage results.         Consol. Generator-Nevada, Inc. v.
                  Cummins Engine Co., 114 Nev. 1304, 1311, 971 P.2d 1251, 1256 (1998).
                  Thus, a plaintiff must provide evidence of an explicit or tacit agreement
                  between the alleged conspirators. Mahlum, 114 Nev. at 1489, 970 P.2d at
                  112. Summary judgment is appropriate if there is no evidence of an
                  agreement or intent to harm the plaintiff    Consol. Generator-Nevada, 114
                  Nev. at 1311, 971 P.2d at 1256.
                              Guilfoyle presented evidence that Pegasus asked Olde
                  Monmouth to restrict certain shareholders (chiefly, the former co-founder
                  of an affiliate, Tsao, and those related to him) from transferring shares,
                  because, according to Pegasus, they did not qualify for exemption from the
                  federal securities registration laws. In return, Pegasus agreed to
                  indemnify Olde Monmouth for any damages arising out of Olde
                  Monmouth's failure to lift the restrictive legend on these specific
                  shareholders' stock certificates. However, Guilfoyle was not one of the
                  shareholders Pegasus listed as restricted and nothing in the record
                  suggests that Olde Monmouth would not have processed a legend removal
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                request on his behalf in due course, as it did for more than 20 other
                Pegasus shareholders during the relevant time period.
                             Thus, even considering this evidence in the light most
                favorable to Guilfoyle, it does not show an issue of fact as to Guilfoyle's
                conspiracy claim. Although direct evidence of an agreement to harm the
                plaintiff is not required, Guilfoyle has presented no circumstantial
                evidence from which to infer an agreement between Pegasus and Olde
                Monmouth to harm Guilfoyle. See Consol. Generator-Nevada, 114 Nev. at
                1307, 1311, 971 P.2d at 1253, 1256 (affirming summary judgment on the
                plaintiffs conspiracy claim because there was no evidence that the two
                defendants had agreed and intended to harm the plaintiff, even where the
                defendants were aware that there were problems with the product
                purchased by plaintiff).
                             We therefore affirm the district court's grant of summary
                judgment in favor of Olde Monmouth.




                We concur:


                                                             S
                                                          Hardesty
                                                                   o..A itAt\       ,J.



                                                                                     J.



                                                                                     J.
                                                          Saitta


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