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http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=46512 Judge Cote PLAINTIFF CAYMAN Islands corporation commenced an action against a Bermuda corporation, as well as the Bank of New York (BNY), for damages arising out of defendant’s acquisition of all of the outstanding shares of a Norwegian corporation. The court granted BNY’s motion to dismiss plaintiff’s claim for negligence, concluding that the obligations owed by BNY with respect to American Depositary Shares were defined in the parties’ deposit agreement and that plaintiff has not identified a separate duty extraneous to the contract. The court added that the damages plaintiff sought are in the nature of a claim for the benefit of the bargain, and not tort damages. The court also dismissed the breach of fiduciary duty claim, finding that plaintiff did not allege circumstances that would give rise to a fiduciary relationship between the parties. The court noted that the deposit agreement specifically disavowed any responsibility to, or control by, beneficial owners such as plaintiff.

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