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EBC I v. GOLDMAN, SACHS & CO.

5 N.Y.3d 11 (2005)

832 N.E.2d 26

799 N.Y.S.2d 170

EBC I, INC., Formerly Known as eTOYS, INC., by the Official Committee of Unsecured Creditors of EBC I, Inc., Respondent, v. GOLDMAN, SACHS & CO., Appellant.

Court of Appeals of the State of New York.

Decided June 7, 2005.

Attorney(s) appearing for the Case

Sullivan & Cromwell LLP, New York City (John L. Warden, Penny Shane, David M.J. Rein, Jeremy C. Bates and Matthew D. Dunn of counsel), for appellant.

Pomerantz Haudek Block Grossman & Gross LLP, New York City (Stanley M. Grossman, Shaheen Rushd and Murielle J. Steven of counsel), Wachtel & Masyr LLP (William B. Wachtel of counsel) and Traub, Bonacquist & Fox LLP (Paul Traub, Michael S. Fox and Susan F. Balaschak of counsel) for respondent.

Cleary, Gottlieb, Steen & Hamilton, New York City (Mitchell A. Lowenthal, Lewis J. Liman, David H. Herrington, Nancy I. Ruskin, Stuart N. Mast and Amy Chung of counsel), for Securities Industry Association, amicus curiae.

Before Chief Judge KAYE and Judges G.B. SMITH, ROSENBLATT, GRAFFEO and R.S. SMITH concur with Judge CIPARICK; Judge READ dissents in part in a separate opinion.

OPINION OF THE COURT

CIPARICK, J.

Plaintiff, the Official Committee of Unsecured Creditors of EBC I, Inc., formerly known as eToys, Inc., brought this action against defendant Goldman, Sachs & Co., the lead managing underwriter of its initial public stock offering, alleging five causes of action related to the underwriting agreement: breach of fiduciary duty, breach of contract, fraud, professional malpractice...

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