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“Unauthorized access shall be cause for disciplinary action.” 29 C.F.R. §§ 1908.4, 1940.2(a)(1). Failure by an employee to comply with these provisions is an embezzlement. Here, it was undisputed that the loan proceeds were not properly delivered to the trustee, that the GAL did not have authority to make a secured loan on the trust’s behalf, and that the funds were used to pay the fees and expenses incurred by the GAL. Accordingly, we find that this conduct constituted an embezzlement under Massachusetts law.
Defendants argue, however, that they are entitled to summary judgment on the ground that the GAL is not a proper party to bring such a claim, and that the Trustee is the only proper party. The GAL is a fiduciary of the trust and bound by the same duties owed by other trustees. First Trust Co. v. Eddleman, 941 F.2d 324, 326 (7th Cir.1991). Moreover, if the trust has suffered a loss through the unauthorized conduct of a fiduciary, a trustee may bring a civil action on the trust’s behalf. See 23 M.R.S.A. § 1610(1). The same logic applies to the GAL. To the extent that other defendants were involved in the alleged embezzlement, they also may be sued as fiduciaries of the trust, and this court declines to dismiss the claims against them on this ground.
CONCLUSION
For the reasons stated above, we recommend that defendants’ motion for summary judgment be DENIED.
NOTICE TO PARTIES REGARDING OBJECT
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