Full opinion text
OPINION AND ORDER RICHARD J. SULLIVAN, District Judge. The joint insolvency administrators of Plaintiff RSL Communications Pic (“RSL Pic”) bring this diversity action on behalf of Plaintiff, alleging that seven former members of RSL Pic’s Board of Directors breached fiduciary duties owed to RSL Pic and its creditors. In its two causes of action, Plaintiff seeks to hold Defendants individually liable for approximately $1 billion in damages, a figure that represents Plaintiffs estimate of the decline in RSL Pic’s value during the year 2000. Before the Court are the parties’ cross-motions for summary judgment, as well as Plaintiffs motion to re-open discovery pursuant to Rule 56(f) of the Federal Rules of Civil Procedure. For the reasons set forth below, Plaintiffs motions are denied, and Defendants’ motion is granted. I. Background This case relates to the financial collapse of the RSL Group, an international telecommunications enterprise founded in 1994 by Defendant Ronald S. Lauder (the “RSL Group”). The primary parent entity of the RSL Group was RSL Communications Ltd. (“RSL Ltd.”), a publicly traded company with numerous subsidiaries, including Plaintiff RSL Pic. Plaintiffs claims focus on Defendants’ conduct in connection with RSL Pic and the RSL Group during the year 2000. (See, e.g., Pl.’s Mem. at l.) Therefore, in describing the relevant background information, the Court’s discussion focuses on that period of time. A. Facts 1. The RSL Group The RSL Group was created in order “to capitalize on the growth, deregulation and profitability of international long-distance telecommunications markets.” (Defs.’ 56.1 ¶ 1.) Its business strategy was two-fold. First, the RSL Group sought to provide “network and data solutions” to “small and medium business customers,” including local, national, international, and mobile phone services, internet access, web hosting, data networking services, and “e-commerce solutions.” (Dembrow Decl. Ex. R at RSL PLC 0003902; see also Amirfar Decl. Ex. 1 at PLF 66811.) Second, “once a sufficient critical mass of customers” was established, the RSL Group planned to make investments in the underlying network and infrastructure in order to achieve efficiencies that would provide it with a cost advantage. (See Dembrow Decl. Ex. R at RSL PLC 0003902.) The RSL Group pursued these objectives through acquisitions in strategic regions spanning several continents and twenty-two countries. (See Defs.’ 56.1 ¶ 2.) The enterprise was structured as a parent entity, RSL Ltd., with eighty-five direct and indirect subsidiaries. (Pl.’s 56.1 ¶¶ 3, 5; Defs.’ 56.1 ¶ 2.) a. RSL Ltd. RSL Ltd. was incorporated under Bermuda law in 1996, and its securities were publicly traded on the NASDAQ Stock Market during 2000. (Defs.’ 56.1 ¶ 1.) The RSL Group’s acquisitions were funded through periodic public offerings of RSL Ltd. shares, as well as debt offerings issued through RSL Pic to “qualified institutional buyers.” (See id. ¶ 3; Pl.’s 56.1 Opp’n ¶ 3.) By the beginning of 2000, the RSL Group had $1.47 billion in revenues and over one million customers. (Defs.’ 56.1 ¶ 2.) However, during 2000, RSL Ltd.’s stock price decreased significantly, and it struggled to raise sufficient capital to fund its operations. (See id. ¶¶ 30, 39, 47.) On March 18, 2001, the Board of Directors of RSL Ltd. (the “RSL Ltd. Board”) resolved to commence insolvency proceedings in Bermuda on behalf of the corporation. (Id. ¶ 82.) b. RSL Pic Plaintiff RSL Pic was incorporated in the United Kingdom in 1996. (Pl.’s 56.1 ¶ 1.) It was created to serve as a “financing arm” of RSL Ltd., and functioned as an intermediate holding company for RSL Ltd.’s subsidiaries in North America and Europe. (Amirfar Decl. Ex. 123, Dep. of Paul Domorski at 21:22; see also PL’s 56.1 ¶¶ 4-5.) RSL Pic had no separate employees, and its only operations were conducted by its subsidiaries. (Def.’s 56.1 ¶ 6; PL’s 56.1 Opp’n ¶ 6.) Thus, immediately following the RSL Ltd. Board’s March 18, 2001 decision to commence insolvency proceedings in Bermuda, the Board of Directors of RSL Pic (the “RSL Pic Board”) formally convened and resolved to file for insolvency administration in the United Kingdom. (Defs.’ 56.1 ¶ 82.) Between 1996 and February 2000, RSL Pic issued approximately $1.4 billion in debt through a series of note offerings, all of which were unconditionally guaranteed by RSL Ltd. (Defs.’ 56.1 ¶ 4.) Employees of RSL Ltd., acting from the New York offices of RSL Ltd., administered the funds raised by RSL Pic through these debt offerings. (Defs.’ 56.1 ¶ 7; see also Amirfar Decl. Ex. 114, Aug. 31, 2007 Report on Flow of Funds, Valuation, and Solvency Considerations by Mark A. Hopkins (the “Hopkins Report”) at 14-15; Amirfar Decl. Ex. 112, July 27, 2007 Expert Report by Seymour Preston Jr. (the “Preston Report”) at 4.) RSL Ltd. deposited the “vast majority” of the funds raised by RSL Pic, as well as the proceeds of an RSL Ltd. stock offering, into an account in RSL Pic’s name at Morgan Stanley Dean Witter. (See Hopkins Report at 14.) According to one of Defendants’ experts: Generally speaking, the determining factor in whether funds were held in ... accounts in RSL Pic’s name appeared to be not whether the funds were nominally raised at the RSL Pic or RSL Ltd. level, but whether the funds were to be expended in the short term or to be held for investment before they were expended. (Id.) When RSL Ltd. wished to provide operational funding and capital to one of the RSL Group’s subsidiaries, it would transfer funds to the subsidiary from a bank account in RSL Ltd.’s name. (Defs.’ 56.1 ¶ 7.) RSL Ltd. employees would then restore the balance of RSL Ltd.’s account by depositing funds from an account maintained in RSL Pic’s name. (Id.; see also Hopkins Report at 14-15.) c. Defendants’ Roles at the RSL Group Each Defendant was a member of the RSL Pic Board at some point during the year 2000. (Defs.’ 56.1 ¶ 11.) However, it is undisputed that “[n]o formal, noticed ... meeting (either telephonic or in-person) of the full [RSL Pic Board] was held during the period from March 1 to December 31, 2000.” (PL’s 56.1 ¶ 40.) Nevertheless, in addition to serving on the RSL Pic Board, each Defendant was also either an executive at RSL Ltd., or a member of its Board of Directors, or both. (Defs.’ 56.1 ¶11.) Specifically, Defendant Fisher was RSL Ltd.’s Chief Executive Officer (“CEO”) from the beginning of 2000 until August 2000. (Id.) In August 2000, Defendant Domorski replaced Fisher as RSL Ltd.’s CEO. (Id.) Defendant Schiffman acted as RSL Ltd.’s Chief Financial Officer (“CFO”) from mid-April 2000 until March 2001. (Id.; see also Amirfar Deck Ex. 131, Dep. of Steven Schiffman at 7:3-15.) Defendant Bildirici was RSL Ltd.’s Executive Vice President of Mergers and Acquisitions for all of 2000. (See Defs.’ 56.1 ¶ 11.) Defendant Lauder — the founder of the RSL Group — held voting control of RSL Ltd. through his ownership of RSL Ltd. stock, and he acted as the chairman of the RSL Ltd. Board. (Id. ¶¶ 1, 11.) Defendants Lauder, Schuster, and Sekulow served as non-executive, ie., “outside,” directors of the RSL Ltd. Board, and Defendants Fisher and Domorski were also RSL Ltd. directors during their respective tenures as CEO of RSL Ltd. (See id. ¶ 11.) Additionally, Defendants Lauder, Schuster, Sekulow, and Fisher were members of the Executive Committee of the RSL Ltd. Board, and Defendants Schuster and Sekulow served on the Audit Committee. (Id. ¶¶ 14-15.) 2. The First Quarter of 2000 There is no dispute that, entering the year 2000, the financial forecasts for the RSL Group were positive. In late 1999 and early 2000 — during the “golden age” of the European telecommunications industry — the shares of RSL Ltd. were rated as a “buy,” and analysts considered the total value of the RSL Group to be greater than the aggregate value of its outstanding shares at their current price. (Id. ¶ 19; see also PL’s 56.1 Opp’n ¶ 19.) During the last two quarters of 1999, RSL Ltd. reported positive earnings before interest, taxes, depreciation, and amortization (“EBITDA”). (Defs.’ 56.1 ¶18.) In November 1999, RSL Ltd. also raised approximately $100 million through a public offering of securities of Deltathree, an RSL Ltd. subsidiary that provided voice-over-internet communications services. (Id.) Optimism regarding the RSL Group was tempered by its short-term cash requirements. Slides from a January 6, 2000 presentation by RSL Ltd. Chief Operating Officer (“COO”) Donald Shassian, titled “2000 Budget,” estimated “Cash Needs” for the RSL Group of between $240 and $260 million, and identified “the Ability to Complete New Financing” as a “Critical Success Factor” for the year. (Amirfar Decl. Ex. 18 at LTD 003315-16.) Thus, in order to generate the needed funds in early 2000, the RSL Group issued additional shares of RSL Ltd. stock, sought private equity investments, and issued additional debt. On February 18, 2000, RSL Ltd. hired Chase Securities to solicit investments from private equity firms in $150-million blocks. (Defs.’ 56.1 ¶ 25; see also Amirfar Decl. Ex. 29.) However, although Chase received proposals from a number of interested parties by April 2000, including the Blackstone Group, the Carlyle Group, and Goldman Sachs, no such investments were consummated during the year 2000. (Defs.’ 56.1 ¶ 25; Pl.’s 56.1 Opp’n ¶ 25; see also Amirfar Decl. Ex. 30 at RSL PLC/ LTD 003931.) In mid-February 2000, RSL Ltd. also issued convertible preferred shares of its stock, which raised approximately $110 million. (Defs.’ 56.1 ¶21.) Finally, in mid-February 2000, RSL Pic issued $100 million in United States Dollar-denominated notes, as well as an additional 100 million in Euro-denominated notes. (Defs.’ 56.1 ¶ 21; see also Bagby Opp’n Decl. Ex. 23; Amirfar Decl. Ex. 1.) On February 10, 2000, the RSL Pic Board executed a Unanimous Written Consent approving the debt offering (Bagby Opp’n Decl. Ex. 23), and a “Special Committee” of the RSL Pic Board — comprised of Defendants Fisher and Schuster- — set the pricing terms for the notes on February 14, 2000 (see Amirfar Decl. Ex. 87). Following the RSL Pic Board’s approval, on February 14, 2000, RSL Pic issued an offering circular relating to the notes (the “February 2000 Offering Circular” or the “Circular”). (Amirfar Decl. Ex. 1.) The February 2000 Offering Circular indicated that the notes were being issued by RSL Pic, and were “unconditionally guaranteed ... as to payment of principal, interest and any other amounts owed” by both RSL Ltd. and RSL COM U.S.A., Inc., a subsidiary of RSL Pic. (Id. at PLF 66813; see also id. at PLF 66804.) The Circular used the term “we” to refer to the operations of RSL Ltd. on a “consolidated basis,” including its subsidiaries. (Id. at PLF 66811.) The Circular also contained consolidated financial data for RSL Ltd. for the years 1996 through 1999, and stated that: RSL PLC had no independent operations other than serving solely as a foreign holding company for the Company’s North American and European operations.... [RSL Ltd.] has not presented separate financial statements and other related disclosures concerning RSL PLC because management has determined that such information is not material to shareholders or holders of the notes issued by RSL PLC. [RSL Ltd.’s] financial statements are, except for [RSL Ltd.’s] capitalization, deltathree.com operations, Asia/Pacific operations, Latin American operations, corporate overhead expenses and drawn credit facilities, identical to the financial statements of RSL PLC. (Id. at PLF 66981.) The Circular identified the directors and senior executives of RSL Ltd., including the capacities in which Defendants served RSL Ltd. at that time, but it did not identify the directors of RSL Pic. (Defs.’ 56.1 ¶ 8.) Finally, the February 2000 Offering Circular indicated that the funds raised through the offering would be administered by employees of RSL Ltd. (Id.) 3. The March 2000 Business Plan In a March 3, 2000 discussion regarding “Strategic Alternatives,” Goldman Sachs represented to RSL Ltd. that it was “trading at a 70% discount to its Sum of the Parts Valuation.” (Amirfar Decl. Ex. 28 at GS/Bildirici 0025887.) Goldman Sachs also estimated that the fair value of RSL Ltd., net of its current debt, was approximately $4.7 billion. (Id.; see also Defs.’ 56.1 ¶ 24.) On the basis of these projections, at some point in March 2000, RSL Ltd. created a business plan for the period between 1999 and 2004 (the “March 2000 Business Plan” or the “Plan”). (See Dembrow Decl. Ex. R.) The primary feature of the Plan was RSL Ltd.’s decision to “focus on Europe and North America” because of “the slow pace of deregulation in the Far East and Latin America, combined with the explosive opportunity to exploit [the RSL Group’s] positioning in Europe____” (Id. at RSL PLC 0003902.) Based on that strategic emphasis, the Plan “only reflected] the results of [the RSL Group’s] operations in Europe and North America.” (See id.) The Plan deemed all other RSL Group subsidiaries to be “non-core.” (Pl.’s 56.1 ¶ 17.) The operations specifically referenced as “non-core” in the March 2000 Business Plan were RSL Ltd. subsidiaries Deltathree, RSL Australia, and RSL Latin America, as well as “Telegate,” a German telephone directory assistance subsidiary of both RSL Ltd. and RSL Pie. (See Dem-brow Decl. Ex. R at RSL PLC 0003909-10.) As part of the planned monetization of these “non-core” interests, the Plan contemplated: (1) a sale of at least part of RSL Ltd.’s remaining interest in Delta-three, which was worth approximately $800 million; (2) an initial public offering (“IPO”) of RSL Australia, which RSL Ltd. estimated would generate between $200 and $250 million; and a sale of Telegate that, at that time, was projected to generate net proceeds of approximately $400 million. (See Dembrow Decl. Ex. R at RSL PLC 0003910; see also Defs.’ 56.1 ¶22.) RSL Ltd.’s Plan also indicated that it was “pursuing] strategic alternatives” and equity investment for RSL Latin America. (Dembrow Decl. Ex. R at RSL PLC 0003910.) Finally, the Plan stated that “[w]ith the monetization of non-core assets ... (including [RSL Australia], [Delta-three] and [RSL Latin America], but excluding Telegate),” RSL Ltd. planned to “fully fund” the “base case five-year plan” of the RSL Group. (Id. at RSL PLC 0003902.) 4. May 2000: Market Conditions Begin to Deteriorate On May 2, 2000, RSL Ltd. announced that it would be conducting a public road show to promote the IPO of RSL Australia’s stock. (Defs.’ 56.1 ¶ 27.) Two days later, on May 4, RSL Ltd. announced its financial results for the first quarter of 2000, which indicated that it had achieved a third consecutive quarter of positive EBITDA. (Id. ¶ 28.) In the same press release in which RSL Ltd. announced its third-quarter earnings, it also announced that it had entered into an “alliance” with Italy’s Seat Pagine Gialle Spa (“SEAT”) that would provide it with an opportunity to sell Telegate in the future. (Id. ¶ 29; see also Amirfar Decl. Ex. 32 at RSL PLC/LTD 006556.) It was estimated that such a sale would ultimately generate proceeds of between $400 and $500 million. (Defs.’ 56.1 ¶ 29.) However, in early May 2000, the RSL Ltd. Board decided to postpone the Telegate sale until early 2001. (Id. ¶ 31.) The schedule was adopted by RSL Ltd. with the hope of capitalizing on speculation that pending legislation in Germany, if enacted by the time of the sale, would reduce the tax on the transaction and increase the net proceeds by $150 million. (Id.) However, during the second quarter of 2000, “the overall capital markets ... declined and investors became less receptive to investing in telecommunications companies.” (Pl.’s 56.1 ¶ 19.) A “few weeks” after RSL Ltd. decided to postpone the Telegate sale, the investment bankers working on the RSL Australia offering recommended that the IPO be “suspended” due to “soft capital market” conditions in Australia. (Defs.’ 56.1 ¶ 32.) On May 24, 2000, RSL Ltd. publicly announced the postponement of the RSL Australia IPO. (Amirfar Decl. Ex. 38.) On May 25, 2000, members of RSL Ltd.’s management — including Defendants Fisher and Schiffman — met with representatives of Goldman Sachs to discuss the financial condition of RSL Ltd. and its future financing needs. (Pl.’s 56.1 ¶ 21; see also Dembrow Decl. Ex. T.) A Goldman Sachs memorandum regarding the May 25 meeting indicated that RSL Ltd. was pursuing a number of funding sources, including “[s]ale[s] of non-core subsidiaries,” other asset sales, a bridge loan, and a $300 million private placement that, “if successful,” would be completed within three weeks of the date of the meeting. (Dembrow Decl. Ex. T at GS/Bildirici 0019007.) The memorandum referenced a “cash flow model” and indicated that RSL Ltd. had informed Goldman Sachs that, “[i]f the private placement” being pursued by Chase Securities was “not successful, RSL [was] scheduled to run out of cash in November of [2000] assuming reduced capital expenditures.” (Id.) One day after the meeting, in an email dated May 26, 2000 with the word “Cash” in the subject line, Defendant Schiffman, RSL Ltd.’s CFO, instructed the heads of all of RSL Ltd.’s operating subsidiaries that, “[i]n light of our tight cash position,” any capital expenditure would require the prior approval of both himself and RSL Ltd. COO Shassian. (Amirfar Decl. Ex. 41; see also Defs.’ 56.1 ¶ 34.) The email also “urgently” requested cash forecasts for the second, third, and fourth quarters of 2000. (Amirfar Decl. Ex. 41.) 5. June 2000: RSL Ltd. Continues to Restrict Its Subsidiaries’ Capital Expenditures RSL Ltd.’s capital-raising difficulties were symptomatic of broader problems in the telecommunications industry. Although there are a number of potential explanations for the decline, including pricing pressure created by excess market entry (see Amirfar Decl. Ex. 133, Dep. of Eugene Sekulow at 93:20-25), it is undisputed that, by June 2000, investor optimism regarding the telecommunications sector had declined. (See Defs.’ 56.1 ¶ 47; PL’s 56.1 Opp’n ¶47; Bagby Opp’n Decl. Ex. 19, Dep. of Mark Hopkins at 126:13-15.) In addition to this market-wide trend, securities analysts began to express concerns regarding RSL Ltd.’s liquidity in light of the postponement of the RSL Australia IPO. (See Amirfar Decl. Ex. 67.) By the summer of 2000, the prices of RSL Ltd.’s stock and RSL Pic’s bonds both decreased “substantially.” (Defs.’ 56.1 ¶ 47.) On June 8, 2000, Goldman Sachs provided a report to RSL Ltd. regarding “Funding Alternatives.” (Amirfar Decl. Ex. 47 at RSL PLC 0004024; see also Pl.’s 56.1 ¶ 23.) The Executive Summary of the presentation reiterated RSL Ltd.’s prediction, which RSL Ltd. had provided to Goldman Sachs on May 25, 2000, that “[b]ased on RSL’s most recent projections, the Company will run out of cash with its November 2000 interest payment” on the notes that were issued by RSL Pic. (Amir-far Decl. Ex. 47 at RSL PLC 0004027.) Goldman Sachs recommended that additional financing might be obtained through private equity investment, a sale or merger of the entire RSL Group to a “strategic buyer,” a sale of one of the “crown jewel” RSL Group European subsidiaries such as RSL Spain or RSL Finland, or a transaction relating to RSL Australia. (Id.; see also Dembrow Decl. Ex. S at RSL PLC 0004037; Pl.’s 56.1 ¶ 23.) However, the slides from the presentation stated that “the immediacy of the cash need will mean dealing with financial buyers on potentially difficult and expensive terms,” and indicated that private equity investment would be the “[mjost feasible and immediate source” of funding. (Amirfar Decl. Ex. 47 at RSL PLC 0004027.) Following the June 8 meeting with Goldman Sachs, the RSL Group conducted a “Global Finance Conference” on June 15 and 16, 2000. (See id. Ex. 42.) On the first day of the conference, Defendant Schiffman, RSL Ltd.’s CFO, gave a presentation titled “Cash is Kang” to the financial officers of RSL Ltd.’s operating subsidiaries. (See id. at RSL-PLC 005481; see also Defs.’ 56.1 ¶ 34.) The slides from the presentation indicate that Schiffman reiterated the orders from his May 26, 2000 email, including the requirement that all capital expenditures had to be authorized by himself and RSL Ltd. COO Shassian. (Amirfar Decl. Ex. 42 at RSL-PLC 005497.) 6. July 2000: The $100 Million Bridge Loan from Defendant Lauder In response to the increasingly troubling financial outlook for the RSL Group, the RSL Ltd. Board held a meeting on June 29, 2000, which was attended by Defendants Lauder, Fisher, Schuster, and Sekulow. (See Amirfar Opp’n Decl. Ex. B.) At the meeting, Defendant Fisher, RSL Ltd.’s CEO, “delivered a presentation to the Board on the current state of the Company’s business, including progress on the sale of the Company’s non-core assets,” “status on the Company’s sources of financing,” and “the remaining steps required to finalize the Telegate transaction.” (Id. at RSL-GAC 0000146-47.) The RSL Ltd. Board also discussed a potential IPO of the RSL Spain subsidiary, and RSL Ltd. COO Shassian gave a presentation regarding RSL Ltd.’s operations and results since July 1999, as well as “the Company’s strategies/objectives and challenges.” (Id. at RSL-GAC C0000147.) “Finally, [Defendant Shiftman, RSL Ltd.’s CFO,] gave a financial overview of the Company’s revenues, EBITDA, and cash forecast and described the actions being taken to improve the Company’s cash position.” (Id.) At the conclusion of the meeting, the RSL Ltd. Board authorized its Executive Committee to “negotiate, review and, if appropriate, approve a standby loan agreement between [RSL Ltd.] and Ronald S. Lauder, upon fair and reasonable terms ....” (Id.) On July 7, 2000, the Executive Committee conducted a conference call to discuss the terms of the loan from Lauder. (Defs.’ 56.1 Opp’n ¶ 24; see also Amirfar Opp’n Decl. Ex. C.) Defendants Fisher, Schuster, and Sekulow participated in the call, and the Executive Committee approved the principal terms of the loan from Lauder. (Amirfar Opp’n Decl. Ex. C at RSL/DS 00713-14; see also id. at RSL/DS 00716-17 (“Summary of Principal Terms of Senior Standby Loan Facility”).) Lauder subsequently undertook to provide a $100 million bridge loan to RSL Pic, the repayment of which was guaranteed by RSL Ltd. (Defs.’ 56.1 ¶ 43.) The RSL Pic Board did not hold a separate meeting to discuss the terms of the loan from Lauder. (PL’s 56.1 ¶ 24.) On July 28, 2000, RSL Ltd. COO Shassian sent a memorandum to RSL Ltd.’s subsidiaries regarding “Cash Forecasts.” (Amirfar Decl. Ex. 43.) The memorandum identified several initiatives that were “underway to raise cash,” including acceleration of the Telegate sale, solicitation of private equity investments, and sales of RSL Australia, RSL Canada, and Delta-three, as well as “a $75M vendor finance facility” from Ericsson that would “be used to finance critical capital expenditures.” {Id. at RSL PLC 0001298.) Although Shassian indicated that he “fe[lt] very good” that the cash-raising initiatives would be successfully executed and that RSL Ltd.’s “ability to fund the business ha[d] a very high probability,” he warned that “it is imperative that we tighten our belts HARD.” {Id. at RSL PLC 0001299.) The memorandum amplified the message that was “communicated ... in May” and had been “repeatedly” offered by Defendant Shiftman: “[njobody is authorized to spend or commit to any capital expenditures regardless of whether you have cash in the bank or not,” “[w]e must stop our [capital expenditures] (both spending and future commitments) NOW!,” and “[a]ll discretionary (not absolutely critical) expenditures must be curtailed ____” {Id. (emphasis in original).) Finally, the memorandum directed the subsidiaries’ management that “[t]he basic premise ... to work under is that you will be receiving no cash from corporate until these asset monetizations are concluded.” {Id. (emphasis in original).) 7. The Fourth Quarter of 2000: The RSL Group Retains Insolvency Consultants In early August 2000, Defendant Domorski replaced Defendant Fisher as the CEO of RSL Ltd. and as a member of the RSL Ltd. Board. (Defs.’ 56.1 ¶ 50.) Domorski and the RSL Ltd. Board agreed that he would evaluate the entire RSL Group before making recommendations regarding potential courses of action, and the RSL Ltd. Board did not meet while Domorski conducted the investigation. {Id. ¶¶ 50-51.) Thus, with the exception of an August 1, 2000 Audit Committee meeting and an October 5, 2000 Executive Committee meeting, the RSL Ltd. Board did not formally meet between late-July and early-November of 2000. {Id. ¶ 51.) On September 28, 2000, the NASDAQ informed RSL Ltd. that its shares would be de-listed on December 29, 2000 if its common stock did not reach a minimum price of $5 per share for ten consecutive trading days between the date of the letter and December 27, 2000. (Dembrow Decl. Ex. JJ.) On October 5, 2000, Defendant Domorski presented a report to the Executive Committee of the RSL Ltd. Board regarding his initial evaluation of the RSL Group. (Defs.’ 56.1 ¶ 55.) Following the presentation, certain members of the Executive Committee — including Defendants Lauder and Schuster — contacted the law firm of Weil Gotshal & Manges (“Weil Gotshal”) regarding potential advice and representation in any future bankruptcy proceedings. {Id. ¶ 56.) Beginning in November 2000 and continuing through March 19, 2001, the RSL Ltd. Board met twice per month. {Id. ¶ 58.) On November 7, 2000, the RSL Ltd. Board held a meeting in which it considered “certain potential asset sales, including the early monetization of Telegate, and the status of discussions with potential merger candidates.” (Amirfar Decl. Ex. 78 at RSL/DS 00832.) The RSL Ltd. Board also received presentations regarding insolvency issues under United States and Bermuda law from Jeffrey Weinberg of Weil Gotshal and Nicholas Trollope of the law firm Conyers Dill & Pearman. (See id.; see also Defs.’ 56.1 ¶¶ 66-67.) After the presentation, the Board authorized RSL Ltd. to retain Weil Gotshal “as special counsel to the Company, to advise the Company on all legal matters relating to the Company’s restructuring effort .... ” (Amirfar Decl. Ex. 78 at RSL/DS 00832.) Additionally, based on Weil Gotshal’s recommendation, RSL Ltd. retained Henry Miller, a financial restructuring expert, and his firm, Wasserstein Perella & Co., Inc. (“Wasserstein”). (Id.) Miller and other employees of Wasserstein gave a presentation to the RSL Ltd. Board at its November 14, 2000 meeting. (Defs.’ 56.1 ¶ 64.) Under the heading “Key Liquidity Considerations,” Wasserstein’s presentation indicated that RSL Ltd. could “continue to operate in the short term and explore strategic alternatives, if asset sales close and are monetized on an aggressive schedule and there is no further deterioration in operations.” (Amirfar Decl. Ex. 79 at LTDADD005630.) However, the presentation also stated that “[t]he Company will be unable to meet its obligations if asset sales do not proceed as planned.” (Id. at LTDADD005631.) The minutes from the November 14, 2000 meeting state that Wasserstein “advised ... that the Company must attempt to pursue all available options simultaneously in order to maximize franchise value; with a focus on business stabilization.” (Id. Ex. 80 at LTDADD003488.) Subsequently, in December 2000, RSL Ltd. hired Keith Maib as its Chief Restructuring Officer, and retained Deloitte & Touche (“D & T”) to analyze its cash forecasts and financial projections. (Defs.’ 56.1 ¶ 65.) Between December 2000 and January 2001, RSL Ltd. also engaged the British and American offices of PricewaterhouseCoopers LLP (“PwC”) to advise the RSL Group regarding whether and when it would need to initiate insolvency proceedings. (Defs.’ 56.1 ¶ 65; see also PL’s 56.1 Opp’n ¶ 65; Amirfar Decl. Ex. 93 at RSLLtd2007-P005079; Bagby Opp’n Decl. Ex. 34.) 8. First Quarter 2001: The Commencement of Insolvency Proceedings Between 2001 and 2003, “ ‘[ejvery independent, publicly traded carrier that depended on international [telejcommunications for the bulk of its revenue,’ ” including RSL Ltd., “ ‘filed for bankruptcy....’” (Defs.’ 56.1 ¶ 83 (quoting John B. Handley, Telebomb: The Truth Behind the $500-Billion Telecom Bust and What the Industry Must Do to Recover 163 (2005)); see also PL’s 56.1 Opp’n ¶ 83.) During that period, between $500 billion and $2 trillion of aggregate market value in the industry was lost. (Defs.’ 56.1 ¶ 83; see also PL’s 56.1 Opp’n ¶ 83; Amirfar Decl. Ex. 123, Dep. of Paul Domorski at 229:15-230:8.) Although RSL Ltd. completed its sale of Telegate in January 2001, the anticipated repeal of Germany’s capital gains tax was not implemented prior to the sale, and a tax of approximately 42% was imposed on the proceeds. (See Defs.’ 56.1 ¶ 75; see also Amirfar Decl. Ex. 89.) In an attempt to address its ongoing lack of liquidity, RSL Ltd. initiated merger talks with several entities, including Primus Telecommunications and IDT Corp. (Defs.’ 56.1 ¶ 75.) On January 22, 2001, the RSL Ltd. Board conducted a meeting, which included presentations by Chief Restructuring Officer Maib and PwC. (See Defs.’ 56.1 ¶ 78.) PwC advised RSL Ltd. that continuing to fund RSL Ltd.’s “core” subsidiaries and attempting to sell or shut down its “non-core” entities would provide “[p]otentially [the] highest return to creditors[]” but would also lead to “ongoing legal risks for directors.” (Amirfar Decl. Ex. 93 at RSLLtd2007-P005085-86.) By late February 2001, RSL Ltd.’s most viable remaining option for survival appeared to be a merger with IDT Corp. (See Defs.’ 56.1 ¶ 79.) A meeting of RSL Ltd.’s Board was conducted on February 28, 2001. (See Amirfar Decl. Ex. 94.) The minutes of the meeting reflect that Maib represented to the Board that “absent very near term substantial progress with IDT [Corp.] on a global transaction, the Company should prepare for an [insolvency] proceeding....” (Id. at RSL-FHL 0000051.) Following Maib’s presentation, the RSL Ltd. Board resolved to: (1) suspend the March 1, 2001 interest payment that was due on the notes issued by RSL Pic, and (2) “pursue all strategic alternatives available, including a sale of the Company to IDT Corp. and/or the preparation for insolvency proceedings .... ” (Id. at RSL-FHL 0000051-52.) RSL Ltd. was unable to consummate the transaction with IDT Corp., and the minutes from the March 18, 2001 RSL Ltd. board meeting indicate that Maib recommended to the Board that the RSL Group initiate insolvency proceedings. (Amirfar Decl. Ex. 96 at RSL PLC/LTD 006410.) Maib stated that the paperwork had been prepared to initiate insolvency proceedings in the United Kingdom related to RSL Pic and a subsidiary known as RSL COM Europe, Ltd. (“RSL Europe”). (Id.) Finally, Maib stated that he was also prepared to commence a provisional liquidation of RSL Ltd. in Bermuda, as well as “ancillary proceedings” in the United States relating to RSL Ltd., RSL Pic, and RSL Europe, Ltd. (Id.) The minutes of the March 18, 2001 RSL Ltd. board meeting reflect that it ended at approximately 6:50 p.m. (Id. at RSL PLC/ LTD 006411.) Following that meeting, the RSL Pic Board formally convened at approximately 7:00 p.m. in order to authorize the decision to file for insolvency administration in the United Kingdom. (Defs.’ 56.1 ¶ 82.) On March 19, 2001, RSL Pic sought insolvency protection under the United Kingdom Insolvency Act. (Id.) RSL Pic’s filing stated that it “[was] or [was] likely to become unable to pay its debts .... ” (Amirfar Decl. Ex. 98 at RSL PLC 0001797.) B. Procedural History In 2003, the joint administrators of RSL Pic initiated a proceeding in the United States Bankruptcy Court for the Southern District of New York, which was ancillary to RSL Pic’s insolvency administration in the United Kingdom. (Decl. of Michael John Andrew Jervis in Supp. of Pl.’s Mot. for Partial Summary Judgment ¶ 6.) On December 9, 2003, in connection with that ancillary proceeding, the joint administrators took the deposition of Defendant Bildirici. (Id.) Based on that deposition and an independent investigation, the joint administrators commenced this action on behalf of RSL Pic on July 2, 2004. (Id. ¶ 7.) The case was initially assigned to the Honorable Richard M. Berman, District Judge, and on September 29, 2006, it was reassigned to the Honorable Kenneth M. Karas, District Judge. (Doc. No. 8.) On November 1, 2004, Defendants filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. No. 12.) Judge Karas denied the motion on September 15, 2006 (the “MTD Decision”). See RSL Commc’ns PLC v. Bildirici, No. 04 Civ. 5217(KMK), 2006 WL 2689869 (S.D.N.Y. Sept. 14, 2006). Following Judge Karas’s ruling, Defendants filed an Answer on October 26, 2006. (Doc. No. 36.) On July 5, 2007, Defendant Fisher filed an Amended Answer, which added a counterclaim against RSL Pic alleging that it had breached his release agreement by naming him as a Defendant in this action. (Doc. No. 48.) This matter was reassigned to the undersigned on September 4, 2007. (Doc. No. 52.) Discovery closed on October 23, 2007. (See Doc. No. 54.) On November 29, 2007, the parties filed cross-motions for summary judgment and motions in limine relating to the admissibility of certain evidence produced during expert discovery. These motions were fully briefed as of January 30, 2008. (Doc. Nos. 76-80.) The Court conducted oral argument regarding the motions on February 20, 2009. Following the argument, by Order dated February 23, 2009, the Court directed the parties to submit additional briefing regarding the causation element of Plaintiffs claims. (Doc. No. 86.) The parties filed their supplemental briefs on March 27, 2009. (“Pl.’s Supp. Mem.” and “Defs.’ Supp. Mem.” (Doc. Nos. 88, 90).) On May 29, 2009, Plaintiff filed a motion to re-open discovery pursuant to Rule 56(f). (“Pl.’s 56(f) Mem.” (Doc. Nos. 97-98).) Defendant responded in opposition on June 12, 2009 (“Defs.’ 56(f) Opp’n” (Doc. No. 101)), and Plaintiff filed its reply on June 19, 2009 (Doc. No. 103). II. Legal Standards A. Governing Law “[Fjederal courts sitting in diversity apply state substantive law ....” Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996). The parties relied on New York law in their briefs and at oral argument, which is sufficient to establish the governing law in this action. See, e.g., Oscar de la Renta, Ltd. v. Mulberry Thai Silks, Inc., No. 08 Civ. 4341(RJS), 2009 WL 1054830, at *2 (S.D.N.Y. Apr. 17, 2009); see also Krumme v. WestPoint Stevens, Inc., 238 F.3d 133, 138 (2d Cir.2000) (“The parties’ briefs assume that New York law controls, and such implied consent ... is sufficient to establish choice of law.” (internal citations and quotations omitted)); see also Bildirici, 2006 WL 2689869, at *6. Therefore, the Court applies the substantive law of New York State in resolving the parties’ cross-motions for summary judgment. B. Summary Judgment In a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, the moving party bears the burden of showing that he or she is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir.2005). Pursuant to Rule 56(c), summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Matican v. City of New York, 524 F.3d 151, 154 (2d Cir.2008). “A dispute about a ‘genuine issue’ exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant’s favor.” Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir.2008) (quoting Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir.2007)); see also Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). III. Discussion The central allegations in this case are that “Defendants never took any action whatsoever to approve or disapprove of RSL Ltd. or the [RSL Group] affiliates’ continued use of RSL Pic’s money” or “to consider the interests of RSL Pic or its creditors.” (Compl. ¶ 3.) Based principally on these allegations, Plaintiff brings two claims for breaches of fiduciary duty. First, Plaintiff alleges that Defendants breached “fiduciary duties, including a fiduciary duty of care, to [RSL Pic] and its constituents.” (Id. ¶ 71.) Second, Plaintiff asserts that Defendants also breached an allegedly independent “fiduciary duty of care ... to [RSL Pic’s] creditors, since by March of 2000, RSL Pic was either insolvent or within the zone of insolvency.” (Id. ¶ 78.) In both of these claims, Plaintiff seeks to recover “the value of the assets of RSL Pic that should have been preserved for the benefit of creditors, but instead were either spent during the period from March 2000 through December 2000, or which were not sold or realized during year 2000.” (Id. ¶ 82; see also id. ¶ 75.) With respect to the cross-motions for summary judgment, the Court concludes that: (1) factual disputes regarding the nature and extent of Defendants’ actions on behalf of the RSL Group and RSL Pic preclude the application of the business judgment rule; (2) Plaintiff has failed to provide sufficient authority under New York law to sustain a cause of action based on the existence of a duty of care owed by directors of a corporation to the corporation’s creditors while the corporation allegedly operates in the so-called “zone of insolvency”; and (3) Plaintiff has failed to adduce a non-speculative evidentiary basis to support a conclusion that Defendants’ conduct caused its losses. As to Plaintiffs motion to conduct additional expert discovery pursuant to Rule 56(f), Plaintiff has not demonstrated that it is entitled to the relief it now seeks. Specifically, the request is untimely, Plaintiff has failed to adequately explain why it did not elicit the sought-after supplemental expert opinions during the time allotted to the parties to conduct discovery, and the proposed discovery would not address the principal defect in Plaintiffs causation theory. Accordingly, for the reasons set forth below, both of Plaintiffs motions are denied, and Defendants’ motion for summary judgment is granted. A. The Business Judgment Rule Defendants argue that they are entitled to the protections of the business judgment rule with respect to any potential liability arising out of their actions as directors of RSL Pic. (Defs.’ Mem. at 47-49; Defs.’ Opp’n at 15-17.) Relying on the “law of the case” doctrine, Plaintiff argues that Defendants are precluded by the MTD Decision from invoking this defense to either of its causes of action. (Pl.’s Opp’n at 41-42; PL’s Mem. at 22.) The Court is not persuaded by the arguments of either party. For the reasons stated below, because there are factual disputes regarding the actions taken by Defendants and the capacity in which those actions were taken, the application of the business judgment rule cannot be resolved at the summary judgment phase of this litigation. 1. Applicable Law “Under New York law, the business judgment rule ‘bars judicial inquiry into actions of corporate directors taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes.’ ” In re 1st Rochdale Co-op Group, Ltd., No. 07 Civ. 7852(DC), 2008 WL 170410, at *1 (S.D.N.Y. Jan. 17, 2008) (quoting Auerbach v. Bennett, 47 N.Y.2d 619, 419 N.Y.S.2d 920, 926, 393 N.E.2d 994 (1979)); see also Stern v. Gen. Elec. Co., 924 F.2d 472, 476 (2d Cir.1991) (“[U]nder the New York business judgment rule, the actions of corporate directors are subject to judicial review only upon a showing of fraud or bad faith.”). “At the same time, to earn the protection of the business judgment rule, directors must do more than merely avoid fraud, bad faith, and self-dealing.” In re 1st Rochdale Co-op Group, Ltd., 2008 WL 170410, at *1 (citing Hanson Trust PLC v. ML SCM Acquisition, Inc., 781 F.2d 264, 274 (2d Cir.1986)). “It is not enough that directors merely be disinterested and thus not disposed to self-dealing or other indicia of a breach of the duty of loyalty. Directors are also held to a standard of due care. They must meet this standard with ‘conscientious fairness.’ ” Hanson Trust, 781 F.2d at 274 (quoting Alpert v. 28 Williams St. Corp., 63 N.Y.2d 557, 483 N.Y.S.2d 667, 674, 473 N.E.2d 19 (1984)). Thus, a director “does not exempt himself from liability by failing to do more than passively rubber-stamp the decisions of the active managers.” Barr v. Wackman, 36 NY.2d 371, 381, 368 N.Y.S.2d 497, 329 N.E.2d 180 (N.Y.1975). Nor does the business judgment rule “protect directors in ‘omission’ cases where an injury results from the inaction of a director.” Frater v. Tigerpack Capital, Ltd., No. 98 Civ. 3306(SAS), 1999 WL 4892, at *4 (S.D.N.Y. Jan. 5, 1999). 2. Analysis Plaintiff argues that the MTD Decision precludes the subsequent application of the business judgment rule in this matter. (Pl.’s Opp’n at 42.) In support of this assertion, Plaintiff relies on Judge Karas’s comment that, “if the facts are as described by Plaintiff, it cannot be said, and Defendants have cited no authority to say, that as a matter of law Defendants should be immunized by the business judgment rule.” Bildirici, 2006 WL 2689869, at *6. However, Plaintiffs argument misconstrues the MTD Decision. First, Plaintiff seeks to imply a ruling on the merits in its favor from language that merely denied a portion of Defendants’ motion to dismiss. The MTD Decision reasoned that Defendants were not entitled to judgment as a matter of law — i.e., dismissal of Plaintiffs claims pursuant to Rule 12(b)(6) — because they had not cited a case where the business judgment rule had been applied to insulate a defendant from allegations that he or she had failed to act on behalf of a corporation. In resolving that issue against Defendants, Judge Karas did not grant “judgment as a matter of law” in Plaintifs favor or rule that the business judgment rule is inapplicable in this litigation. Thus, Plaintiffs argument on this point is neither logically nor legally sound. Second, one of the primary assumptions underlying Judge Karas’s ruling on this issue is no longer supported by the evidentiary record. Specifically, in resolving Defendants’ motion, Judge Karas properly assumed the truth of Plaintiffs allegations. The language of his holding — “if the facts are as described by Plaintiff,” id. (emphasis added)-indicates that the ruling was contingent upon that assumption. Now, following discovery, it is clear that the Complaint contains several colorfully worded allegations that are inconsistent with the evidence in this case. For example, Plaintiff alleged that Defendants engaged in a “continuing] ... practice of abdicating [their] duties,” and “never took any action whatsoever to approve or disapprove of RSL Ltd. or the affiliates’ continued use of RSL Pic’s money.” (Compl. ¶¶ 3, 6 (emphasis added).) Notwithstanding these allegations, the record before the Court indicates that Defendants played active roles within the RSL Group. During the time that they were affiliated with the RSL Group, Defendants Fisher, Domorski, Shiffinan, and Bildirici were executives of RSL Ltd. (Defs.’ 56.1 ¶ 11.) Defendants Lauder, Schuster, Sekulow, Fisher, and Domorski also served as directors of RSL Ltd. (Id.) Moreover, the RSL Ltd. Board met eight times during 2000: January 12, March 28, June 29, July 27, November 7, November 14, December 7, and December 18. (Defs.’ 56.1 ¶ 13.) Defendants Fisher, Domorski, and Schiffman attended each RSL Ltd. board meeting in 2000 while they were employed at the RSL Group. (Id.) Defendant Sekulow missed one meeting, and Defendant Bildirici missed three. (Id.) In addition to the board meetings, these Defendants participated in sixteen actions of the RSL Ltd. Board through unanimous consent during 2000. (See Pl.’s 56.1 Opp’n ¶ 16.) Some Defendants also served on committees of the RSL Ltd. Board. Defendants Schuster and Sekulow served on the Audit Committee, and Defendants Lauder, Schuster, Sekulow, and Fisher were members of the Executive Committee. (Defs.’ 56.1 ¶¶ 14-15.) Defendants Schuster and Sekulow attended each of the Audit Committee’s meetings during 2000, which were held on March 1, May 8, August 1, and November 7. (Id. ¶ 15.) The Executive Committee met on January 6, March 1, March 17, July 7, and October 5, 2000. (Id. ¶ 14.) Defendants Lauder and Sekulow attended each of these meetings, Defendant Fisher attended the meetings that occurred while he was the CEO of RSL Ltd., and Defendant Schuster missed only one meeting. (Id.) Finally, although no RSL Ltd. board meetings were held between August and October 2000, Plaintiff concedes that the purpose of the break was to permit the new CEO of RSL Ltd., Defendant Domorski, to “undertake a thorough evaluation of [RSL Ltd.] — -including traveling to multiple subsidiaries, all also subsidiaries of [RSL] Pic — before making recommendations on how to proceed.” (Id. ¶ 50 (emphasis added).) Thus, the record evidence of Defendants’ activities and roles within the RSL Group is sufficient to call into question Plaintiffs allegations that Defendants acted with “complete inattention to how and the circumstances under which RSL Pic’s money was being spent,” and “failed to take any action to preserve RSL Pic’s funds, or have any participation in how the RSL Group would use RSL Pic’s money.” (Compl. ¶¶ 8, 11.) Therefore, because the MTD Decision’s discussion of the business judgment rule assumed the truth of Plaintiffs allegations, and because there are now, at minimum, factual disputes as to the truth of those allegations, the prior ruling has no binding effect on the Court in resolving the parties’ summary judgment motions. However, Defendants’ arguments regarding the business judgment rule are similarly unavailing. Defendants are named in this litigation as directors of RSL Pic, and the applicability of the business judgment rule cannot be resolved through summary judgment based on the actions that they took in their other capacities within the RSL Group. These functional distinctions are relevant to the availability of this legal defense. See, e.g., Hanson Trust, 781 F.2d at 274. Specifically, while Defendants cannot be said to have failed to act, the parties dispute the extent to which Defendants considered the interests of RSL Pic and its constituents in isolation when they attended RSL Ltd. board meetings and executed the voluntary consents issued by the RSL Ltd. Board. (See, e.g., Pl.’s 56.1 Opp’n ¶¶ 13, 16.) Likewise, although several Defendants have produced calendars indicating that they scheduled numerous meetings with RSL Ltd. management and outside investment advisors to discuss strategic planning for the RSL Group (see Defs.’ 56.1 ¶¶ 41, 51, 52, 53), Plaintiff disputes the occurrence of these meetings and whether, if the meetings occurred, the interests of RSL Pic were separately considered (see Pl.’s 56.1 Opp’n ¶¶ 41, 51, 52, 53). Consequently, there are factual disputes regarding the extent to which Defendants, acting in their capacity as directors of RSL Pic, exercised their business judgment specifically on behalf of Plaintiff. Although the evidence of the actions taken by Defendants in their other roles at the RSL Group is relevant to the analysis of the causation element of Plaintiffs claims, see infra Part III.C.2.b, the factual disputes regarding the capacity in which Defendants acted preclude them from successfully relying on a blanket application of the business judgment rule. Accordingly, Defendants’ motion for summary judgment is denied insofar as it is predicated on invoking the business judgment rule as a defense to either of Plaintiffs claims. B. The “Zone of Insolvency” Plaintiff concedes that there are disputed issues of fact regarding the date on which RSL Pic became insolvent. (See Tr. of Oral Argument, Feb. 20, 2009 (“Tr.”) at 30:16-31:1.) However, it seeks summary judgment on the issue of whether Defendants owed a duty of care to the creditors of RSL Pic while it was operating in the “zone of insolvency.” (See Pl.’s Mem. at 15-17.) Defendants cross-move for summary judgment, arguing, inter alia, that they owed no such duty prior to RSL Pic’s insolvency. (Defs.’ Mem. at 35-41.) For the reasons set forth below, the Court concludes that there is no support under New York law for Plaintiffs “zone of insolvency” theory of liability. Accordingly, Plaintiffs motion for summary judgment on this issue is denied, and Defendants’ motion is granted to the extent that Plaintiffs claims are based on allegations that Defendants breached fiduciary duties owed to RSL Pic’s creditors prior to RSL Pic’s insolvency. 1. Applicable Law In New York, a director is required to “perform his [or her] duties ..., in good faith and with that degree of care which an ordinarily prudent person in a like position would use under similar circumstances.” N.Y. Bus. Corp. Law § 717(a); see also Hanson Trust, 781 F.2d at 273; Alpert, 63 N.Y.2d at 561, 483 N.Y.S.2d 667, 473 N.E.2d 19 (noting that directors “have an obligation to all shareholders to adhere to fiduciary standards of conduct and to exercise their responsibilities in good faith when undertaking any corporate action”); Schwartz v. Marien, 37 N.Y.2d 487, 491, 373 N.Y.S.2d 122, 335 N.E.2d 334 (N.Y.1975) (“[M]embers of a corporate board of directors ... owe a fiduciary responsibility to the shareholders in general ....”) Thus, directors’ duties to act as “guardians of the corporate welfare,” Alpert, 63 N.Y.2d at 561, 483 N.Y.S.2d 667, 473 N.E.2d 19—including fiduciary duties of care and loyalty—operate to the benefit of the corporation’s owners, who stand to gain from the firm’s success and also bear the risk of its potential financial failure. Cf. Prod. Res. Group, L.L.C. v. NCT Group, Inc., 863 A.2d 772, 787 (Del.Ch.2004) (recognizing that the “corporate law ... of most of our nation ... expects that the directors of a solvent firm will cause the firm to undertake economic activities that maximize the value of the firm’s cash flows primarily for the benefit of the residual risk-bearers, the owners of the firm’s equity capital”). In the context of a wholly-owned subsidiary, such as RSL Pic, the relevant “owner” is the firm’s parent— here, RSL Ltd. Such an owner “is an adventurer in the corporate business; he [or she] takes the risk, and profits from success.” Comm’r of Internal Revenue v. O.P.P. Holding Corp., 76 F.2d 11, 12 (2d Cir.1935). By contrast, “[t]he creditor, in compensation for not sharing the profits, is to be paid independently of the risk of success, and gets a right to dip into the capital when the payment date arrives.” Id. In light of this “vital difference” between a corporation’s owners and creditors, id., directors’ fiduciary duties extend to creditors only in somewhat limited circumstances. Indeed, “[u]nder New York law, creditors are owed a fiduciary duty by officers and directors of a corporation only when the corporation is insolvent.” Cooper v. Parsky, No. 95 Civ. 10543(JGK)(NRB), 1997 WL 242534, at *22 (S.D.N.Y. Jan. 8, 1997) (emphasis added), rev’d on other grounds, 140 F.3d 433 (2d Cir.1998); see also Alexandra Global Master Fund, Ltd. v. Ikon Office Solutions, Inc., No. 06 Civ. 5383(JGK), 2007 WL 2077153, at *5 & n. 3 (S.D.N.Y. July 20, 2007) (noting that “[i]t is well established that corporations do not have a fiduciary relationship with their unsecured creditors” because “[t]he relationship is contractual rather than fiduciary,” but that “[a]n exception to this rule arises in the case of an insolvent corporation”); Page Mill Asset Mgmt. v. Credit Suisse First Boston Corp., No. 98 Civ. 6907(MBM), 2000 WL 335557, at *11 & n. 8 (S.D.N.Y. Mar. 30, 2000) (“[U]nder New York law issuers of non-convertible bonds generally do not owe a fiduciary duty to their bondholders .... The one substantial exception to this rule is that an insolvent firm may owe fiduciary duties to its bondholders.”); cf. In re Cent. Ice Cream Co., 836 F.2d 1068, 1073 (7th Cir.1987) (Easterbrook, J.) (“Creditors outside of bankruptcy may not challenge the firm’s decisions; in bankruptcy they may do so, because they are (presumed to be) the principally affected persons, the new residual claimants.”). Moreover, the duty that directors owe to the creditors of an insolvent corporation under New York law is defined primarily by the “trust fund doctrine.” See Credit Agricole Indosuez v. Rossiyskiy Kredit Bank, 94 N.Y.2d 541, 549, 708 N.Y.S.2d 26, 729 N.E.2d 683 (N.Y.2000). Specifically, “officers and directors of an insolvent corporation are said to hold the remaining corporate assets in trust for the benefit of its general creditors.” Id.; see also Clarkson Co. Ltd. v. Shaheen, 660 F.2d 506, 512 (2d Cir.1981); Chambers v. Blickle Ford Sales, Inc., 313 F.2d 252, 257-58 (2d Cir.1963); Troll v. Chase Nat’l Bank of City of New York, 257 F.2d 825, 828 (2d Cir.1958); New York Credit Men’s Adjustment Bureau v. Weiss, 305 N.Y. 1, 7, 110 N.E.2d 397 (N.Y.1953). As such, “directors of an insolvent corporation owe a fiduciary duty to preserve the assets of the corporation for the benefit of creditors.” Hughes v. BCI Int’l Holdings, Inc., 452 F.Supp.2d 290, 308 (S.D.N.Y.2006) (citing Clarkson, 660 F.2d at 512 and Weiss, 305 N.Y. at 7, 110 N.E.2d 397). 2. Analysis According to Plaintiff, RSL Pic was in the “zone of insolvency” for a period of between thirty and sixty days during May and June 2000, and Defendants owed RSL Pic’s creditors a fiduciary duty of care during that period. (See Pl.’s Mem. at 15; Nov. 28, 2007 Aff. of Steven G. Panagos In Support of Pl.’s Mot. for Partial Summary Judgment (“Panagos Aff.”) Ex. A, July 27, 2007 Export Report of Steven G. Panagos (“Panagos Expert Report”) at 17-20, 29.) However, in the portion of his Expert Report relating to this subject, Plaintiffs expert, Steven G. Panagos, did not define the term “zone of insolvency,” and instead cited a series of events that he believed indicated that RSL Pic was operating in this “zone” by May 2000. (Panagos Expert Report at 17-18.) In an affidavit submitted in support of Plaintiffs motion for partial summary judgment, Panagos pointed more specifically to four events that led him to this conclusion: (1) in mid-2000, RSL Ltd. and RSL Pic were “having difficulties raising financing to address their liquidity needs” (Panagos Aff. ¶ 5); (2) during May and June 2000, RSL Pic’s public notes were “trading well below par value” (id.); (3) RSL Ltd. delayed the IPO of RSL Australia in late-May of 2000 “because of market conditions” (id. ¶ 6); and (4) on June 8, 2000, Goldman Sachs warned the RSL Ltd. Board that it “was projected to run out of cash by November 2000” (id.). On the basis of this ex-post analysis from its expert, Plaintiff urges the Court to conclude that RSL Pic was in the “zone of insolvency” “[b]y May of 2000,” and that, after that date, Defendants owed fiduciary duties of care to RSL Pic’s creditors. (See Pl.’s Mem. at 15.) In connection with this amorphous definition of the “zone of insolvency,” Plaintiff has suggested two alternative bases for its claim that Defendants owed fiduciary duties to RSL Pic’s creditors during this period. In its first cause of action, Plaintiff alleges that Defendants owed fiduciary duties to RSL Pic and “its constituents.” (ComplJ 71.) Under this theory, according to Plaintiff, upon RSL Pic’s entry into the “zone of insolvency” the constituency of stakeholders in the enterprise broadened to include RSL Pic’s creditors: “[Ojnce [RSL] Pic entered the zone of insolvency, [RSL] Pic’s directors owed its creditors the same duty of care the directors previously owed only to [RSL] Pic and its shareholders, without any limitations.” (Pl.’s Opp’n at 35.) In its second cause of action, Plaintiff alleges that Defendants breached “fiduciary dut[ies] of care” to “exercise independent judgment on behalf of [RSL Pic’s] creditors,” suggesting that these duties were separate from Defendants’ fiduciary duties to RSL Pic and its other constituents. (See Compl. ¶ 78.) Both of Plaintiff’s theories must fail because neither is supported by New York law. Specifically, New York State’s corporate directors do not owe a duty of care to a corporation’s creditors when the corporation is arguably operating within the “zone of insolvency,” as that term has been defined by Plaintiff in this litigation. In light of the other legal protections afforded to creditors, the Court rejects Plaintiffs attempt to extend directors’ fiduciary duties in this fashion. Recognizing the dearth of support for its position, Plaintiff contends that the primary legal authority for its “zone of insolvency” theory is the MTD Decision, and it again relies heavily on the “law of the case” doctrine. (See Tr. at 7:8 — 9:3; Pl.’s Mem. at 15; Pl.’s Opp’n at 14-19.) This argument is unavailing. “ ‘The law of the case doctrine ... does not preclude this Court from reconsidering issues on summary judgment that have initially been raised in the context of a motion to dismiss.’ ” RSL Commc’ns, PLC v. Bildirci, No. 04 Civ. 5217(RJS), 2009 WL 454136, at *2 (S.D.N.Y. Feb. 23, 2009) (quoting Nobel Ins. Co. v. City of New York, No. 00 Civ. 1328(KMK), 2006 WL 2848121, at *4 (S.D.N.Y. Sept. 29, 2006)); see also Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983); LNC Invs., Inc. v. First Fidelity Bank, 173 F.3d 454, 467 n. 12 (2d Cir.1999); Sagendorf-Teal v. County of Rensselaer, 100 F.3d 270, 277 (2d Cir.1996); DiLaura v. Power Auth., 982 F.2d 73, 76 (2d Cir.1992); Golden Pac. Bancorp v. F.D.I.C., No. 95 Civ. 928(NRB), 2003 WL 21496842, at *5 n. 14 (S.D.N.Y. June 27, 2003) (“[W]hen. the mandate of a higher court is not involved, the law of the case doctrine is a discretionary one.”). The Court is not persuaded that New York law supports Plaintiffs “zone of insolvency” theory, and therefore declines to afford preclusive effect to the remarks in the MTD Decision regarding this issue. The paragraph in the MTD Decision discussing the “zone of insolvency” cited only one case, using a “cf.” signal, that applied New York law: Clarkson Co. v. Shaheen, 660 F.2d 506, 512 (2d Cir.1981). See Bildirici, 2006 WL 2689869, at *8 & n. 2. Clarkson, however, simply quotes a statement from the New York Court of Appeals that “[i]f the corporation was insolvent at [the] time” that the defendants liquidated the corporation, then “it is clear that defendants, as officers and directors thereof, were to be considered as though trustees of the property for the corporate-beneficiaries.” Clarkson, 660 F.2d at 512 (emphasis added) (quoting Weiss, 305 N.Y. at 7, 110 N.E.2d 397). Thus, neither Clarkson, nor the case upon which it relied — Weiss—supports Plaintiffs “zone of insolvency” theory. In re Adelphia Communications Corp., 323 B.R. 345 (Bankr.S.D.N.Y.2005), which was the primary authority cited in the MTD Decision for the “zone of insolvency” proposition, also merits discussion. Notably, in the portion of the opinion cited in the MTD Decision, the Adelphia court was not applying New York law. See id. (discussing the “entire fairness” doctrine under Delaware law). Moreover, the Adelphia court made clear that the corporate entities at issue in the case were “not in the ‘zone of insolvency,’ or a little bit insolvent. They [we]re hopelessly insolvent.” Id. at 386. Based on that finding, the court noted that, “once [the corporate entities] became insolvent, the Rigases [the managers of the corporate