Read the following excerpt from a US court opinion:
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of this repudiation of the Authority’s contractual obligation, the Developers filed suit in the district court asserting breach of contract and quantum meruit. • The Authority’s use of and exercise of dominion and control over the Facilities constitutes a taking of the Facilities without compensation in violation of the Takings Clause. The Authority’s actions are intentional and those actions were a proximate cause of the taking of the Facilities, which were owned by the Developers at the time of the taking. The Developers did not consent to the taking, and received no compensation for the taking, which was for a public use. The Developers seek damages for the property taken. In reviewing the Authority’s challenge to the Developers’ pleadings, we const vApp.-Austin 1951, writ ref'd) ; Hightower v. City of Tyler, 134 S.W.2d 404,
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What is the most suitable continuation to the opinion? Your options are:
A. holding that the plaintiffs claims arose from a certain contract because the subject matter of the plaintiffs suit was intertwined with requirements referred to in the contract
B. holding that the state law contract claim alleged the same conduct as in the erisa claim and was therefore preempted
C. holding that under illinois law interpreting the meaning of a contract is a question of law determined by the court
D. holding that the goal of contract interpretation is to give effect to the parties reasonable expectations which must be gleaned not only from the contract language but also from extrinsic evidence including evidence of the parties conduct goals sought to be accomplished and surrounding circum stances when the contract was negotiated citation and internal quotation marks omitted therefore this claim is dismissedip breach of covenant of good faith and fair dealinga choice of lawalthough alaska law governs plaintiffs breaehofcontract claim in case of a conflict it is somewhat less clear whether the policys choiceoflaw provision extends to plaintiffs claim that defendant violated the implied covenant of good faith and fair dealing a district court sitting in diversity in new york is bound to apply new york law to determine the scope of the contractual choiceoflaw clause new york courts decide the scope of such clauses under new york law not under the law selected by the clause  fin one pub co ltd v lehman bros special fin inc 414 f3d 325 333 2d cir2005 see also trade wind distribution llc v unilux ag no 10cv5716 2011 wl 4382986 at 3 edny sept 20 2011 the  scope of a choiceoflaw provision is a threshold question that a federal court sitting in diversity should decide based on the forum states law rather than the law specified in the clause commerce  indus ins co v us bank natl assn no 07cv5731 2008 wl 4178474 at 4 sdny sept 3 2008 in determining the scope of the choice of law provision this court must follow new york lawthere is a reluctance on the part of new york courts to construe contractual choiceoflaw clauses broadly to encompass extracontractual causes of action lehman bros 414 f3d at 334 under new york law in order for a choiceoflaw provision to apply to claims for tort arising incident to the contract the express language of the provision must be sufficiently broad as to encompass the entire relationship between the contracting parties krock v lipsay 97 f3d 640 645 2d cir1996 internal quotation mark omitted accordingly under new york law  tort claims are outside the scope of contractual choiceoflaw provisions that merely specify what law governs construction of the terms of the contract lehman bros 414 f3d at 335 see also ayco co v frisch 795 fsupp2d 193 203 ndny2011 same a number of courts applying new york choiceoflaw rules have determined that choiceoflaw provisions nearly identical to that contained in the policy  which states only that alaska is the governing jurisdiction see policy 3 and defines governing jurisdiction as the state or jurisdiction in which the policy is delivered and whose laws govern its terms id at 10 are insufficiently broad to encompass tort claims see eg lehman bros 414 f3d at 335 noting that contractual language stating that this agreement will be governed by and construed in accordance with the laws of the state of new york without reference to choice of law doctrine was essentially the same as the choiceoflaw clause at issue a new york state choiceoflaw case a clause found not broad enough to reach tort claims incident to the contractual relationship emphasis omitted krock 97 f3d at 645 in the case at hand the choiceoflaw provision in the parties mortgage document stated only that this mjortgage shall be governed by and construed in accordance with the laws of the commonwealth of massachusetts we see no way such language can be read broadly enough to apply to fraudulent misrepresentation first alteration in original document sec sys inc v couponscom inc no 11cv6528 2012 wl 3597769 at 4 wdny aug 20 2012 in this case the choice of law provision is narrow since it only pertains to the nondisclosure agreement this agreement shall be governed by the applicable laws of the state of new york excluding its conflict of law provisions  accordingly the court finds that the nondisclosure agreements choiceoflaw provision does not require the application of new york law to related tort claims ayco 795 fsupp2d at 203 the choice of law provision states only that this agreement shall be governed by and construed and enforced in accordance with the laws of the state of new york without giving effect to any conflict of laws provisions new york courts in this circuit have refused to extend similarly worded clauses to govern tort claims   citation omitted second alteration in original therefore the court finds that the policys choiceoflaw provision applies only to those of plaintiffs causes of action that sound in contract and not to those that sound in tortbut this conclusion does not resolve the issue the court must still identify which states law it should apply to determine whether a cause of action alleging a violation of the implied covenant of good faith and fair dealing sounds in contract or in tort and once that law has been so identified what result follows the first question is a particularly important one in the context of this case as under alaska law an insureds action against its insurer for breach of the implied covenant of good faith and fair dealing sounds in tort ennen v integon indem corp 268 p3d 277 281 alaska 2012 citing state farm fire  cas co v nicholson 777 p2d 1152 115657 alaska 1989 while under new york law parties to an express contract are bound by an implied duty of good faith but breach of that duty is merely a breach of the underlying contract funk v allstate ins co no 13cv5933 2013 wl 6537031 at 4 edny dec 13 2013 citing harris v provident life  accident ins co 310 f3d 73 80 2d cir2002 see also aeolus down inc v credit suisse intl no 10cv8293 2011 wl 5570062 at 4 sdny nov 16 2011 new york law does not recognize a cause of action for tortious breach of an insurance contract citing ny univ v contl ins co 87 ny2d 308 639 nys2d 283 662 ne2d 763 770 1995 commerce  indus ins co 2008 wl 4178474 at 3 new york law views various bad faith claims against insurance carriers as contractual in nature internal quotation marks omitted quoting new england ins co v healthcare underwriters mut ins co 352 f3d 599 606 2d cir2003 in re worldcom inc sec litig 456 fsupp2d 508 519 sdny2006 to the extent that the plaintiff is attempting to plead a breach of the duty of good faith and fair dealing then under new york law  the plaintiff is required to plead as well a viable claim for breach of contract without an adequate pleading of a breach of a term of contract the plaintiff  may not plead a breach of the implied duty of good faith and fair dealing thus if the court were to find that alaska law governs the characterization of plaintiffs cause of action then it would likely fall outside the scope of the policys choiceoflaw provision while if the court were to find that new york law governs the characterization of plaintiffs cause of action it would fall within the provisions scope  which somewhat curiously would mean that alaska law would then govern the question of whether plaintiffs have sufficiently pleaded a cause of action for the implied covenants breachwhile the answer is not perfectly clear it appears as though the courts obligation to apply new york law to determine the scope of the contractual choiceoflaw clause lehman bros 414 f3d at 333 encompasses an obligation to apply new york law to determine whether a cause of action is contractual or tortious in nature for the purpose of analyzing whether that cause of action falls within the clauses scope in commerce  industry insurance company v us bank national association another court in this district was presented with a similar question under similar facts there the defendants counterclaimed against the plaintiffs both of which were insurance companies for breach of contract and bad faith refusal to pay 2008 wl 4178474 at 1 one of the contracts in dispute contained a choiceoflaw provision which provided that the law of the state of new york would apply in the event that the parties disputed the validity or formation of the contract or the meaning interpretationf or operation of any term condition definition or provision of the contract resulting in litigation arbitration or other form of dispute resolution id at 3 the parties disputefd whether this clause coverfed defendants bad faith claim  id at 4 after noting that new york courts are generally reluctant to construe choice of law provisions broadly and that extracontractual claims such as tort claims that arise only incidentally to the contract were not covered by the choice of law clause the court then looked to new york law to determine whether defendants badfaith claim was best characterized as contractual or tortious id at 4 internal quotation marks omitted the court held that new york law considers the duty to act in good faith as controlled by the implied covenant of good faith and fair dealing found in every contract and that therefore a bad faith claim is treated as a breach of the underlying contract for the purposes of applying a choice of law provision id internal quotation marks omitted collecting cases the court further noted that the basic holding of the cases to which it had cited that the same states law should govern both the contract and bad faith claims applies with equal force where the choice of law for the contract dispute is determined by a contractual choice of law provision id at 5 an unnecessarily confusing situation would result if different laws were to govern the contract and bad faith claims id internal quotation marks omitted reasoning that the breach of contract and bad faith claims are inextricably intertwined and should be governed by the laws of the same state and noting that new york law governs the claim for breach of contract the court concluded that new york law should also apply to the bad faith refusal to pay claim relating to these contracts idwhile apparently applying though not always explicitly citing to new york law other courts within this district have taken a similar approach both before and after commerce see eg torain v clear channel broad inc 651 fsupp2d 125 138 sdny2009 the court will apply texas substantive law to determine whether the plaintiff was discharged for cause under the terms of the employment agreement and whether the defendant is entitled to indemnification for the settlement payment moreover because the plaintiffs claim for breach of the implied covenant of good faith and fair dealing arises out of the employment agreement that claim is also governed by texas law comprehensive habilitation servs inc v commerce funding corp no 05cv9640 2009 wl 935665 at 10 n 14 sdny apr 7 2009 because breach of the implied covenant of good faith and fair dealing is a contractual cause of action and the choice of law provision applies to the interpretation and enforcement of the contract virginia law applies to the plaintiffs implied covenant claim arising out of the terms of the factoring agreement butvin v doubleclick inc no 99cv4727 2001 wl 228121 at 7 sdny mar 7 2001 the court notes that the parties indicated in their agreement that it would be governed and construed according to delaware law since the implied covenant of good faith is a rule of interpretation rather than a separate obligation the cjourt holds that a claim for breach of the covenant is a contractual cause of action and therefore delaware law applies to the plaintiffs claim regarding the  agreement affd 22 fedappx 57 2d cir2001 in re loisusa inc 264 br 69 9798 bankrsdny2001 0ne of the plaintiffs claims  which alleges violation of an implied covenant of good faith and fair dealing  seeks to enforce a covenant if it is to be done it must be done as an additional term of the agreement the choiceoflaw issue with respect to that claim is not a difficult one this court has little doubt that if  illinois law governs the contract  it is no jump at all to find that any efforts to engraft implied terms into the agreement  should be measured under the law of illinois the court finds the reasoning of these cases to be persuasive as a result it applies new york law to find that alaska law applies to plaintiffs cause of action for violation of the implied covenant of good faith and fair dealingb analysisas explained in the conflict of law analysis above there is an actual conflict between new york and alaska law on this issue and alaska law controls the covenant of good faith and fair dealing is implied in all contracts in alaska casey v semco energy inc 92 p3d 379 384 alaska 2004 generally speaking claims for breach of the duty of good faith and fair dealing are contract claims as under new york law the alaska supreme court has explainedin the case of an ordinary commercial contract between sophisticated business entities a tort for breach arises only when a partys conduct rises to the level of a traditionally recognized tort creating a broader tort remedy would disrupt the certainty of commercial transactions and allow parties to escape contractual allocation of losses therefore an action for breach of the implied covenant of good faith and fair dealing sounds in contract alonestate dept of natural res v transamerica premier ins co 856 p2d 766 774 alaska 1993 citation alteration and internal quotation marks omitted therefore under normal circumstances plaintiffs would not be able to bring a claim for the breach of the implied covenant of good faith and fair dealing separate from a breach of contract action see id holding that generally an action for breach of the implied covenant of good faith and fair dealing sounds in contract alonehowever alaska has recognized a limited cause of action in tort for the breach of the covenant of good faith and fair dealing in certain insurance contracts see municipality of anchorage v gentile 922 p2d 248 261 alaska 1996 insurance companies have been subjected to tort liability for breaching the covenant of good faith in resolving claims covered by their insurance policies see also state farm fire  cas co v nicholson 111 p2d 1152 1157 alaska 1989 holding that tort liability exists for an insurers bad faith failure to settle a firstparty claim noble v natl am life ins co 128 ariz 188 624 p2d 866 868 1981 holding that tort liability applies when dealing with its insured on a claim the decision to extend a tort cause of action to these circumstances is based on public policy considerations unique to the insuredinsurer relationship in particular in allowing an insured to bring a tort cause of action for the breach of the implied covenant of good faith and fair dealing the alaska supreme court has recognized the special relationship between insurer and insured the use of standardized contract terms the insurers superior bargaining position over the insured and the fact that the insured seeks protection against calamity rather than commercial advantage transamerica premier ins 856 p2d at 774 see also nicholson 777 p2d at 1157 the adhesionary aspects of the insurance contract including the lack of bargaining strength of the insured the contracts standardized terms the motivation of the insured for entering into the transaction and the nature of the service for which the contract is executed distinguish this contract from most other noninsurance commercial contracts these features characteristic of the insurance contract make it particularly susceptible to public policy considerations alaska pac assurance co v collins 794 p2d 936 947 alaska 1990 due to the unequal bargaining positions which generally exist between insurers and insureds enforcement of this covenant is particularly important in the insurance context characterizing such actions between the insured and insurer as sounding in tort and thereby permitting tort damages will provide needed incentive to insurers to honor their implied covenant to their insureds citations and internal quotation marks omitted as amended on denial of rehg aug 30 1990 the alaska supreme court has reasoned that these exceptional features of the insurance contract justified the creation of a tort action for an insurers bad faith breach transamerica premier ins 856 p2d at 774in deciding against extending the tort cause of action to situations other than the ones described above the alaska supreme court has emphasized that the public policy considerations that formed the basis for extension of the tort cause of action were not present in other circumstances for example in municipality of anchorage v gentile the alaska supreme court considered whether there should be a cause of action in tort for the breach of the implied covenant of good faith and fair dealing where the municipality of anchorage reduced the postretirement medical benefits of its retired police officers and firefighters 922 p2d at 252 in deciding against allowing a tort cause of action the alaska supreme court determined that pjublic policy concerns do not require the imposition of tort liability in this case id at 261 in particular the alaska supreme court reasoned that the underlying concern that warranted a tort cause of action is that without the threat of tort liability insurance companies may be encouraged to delay payment of claims to their insureds with an eye toward settling for a lesser amount than due under the policy id internal quotation marks omitted the alaska supreme court therefore held that the case law that allowed for a tort cause of action related to insurance contracts simply did not apply in that caseit is unnecessary to decide here whether the municipality would be subject to tort liability for failing to deal fairly and in good faith in the settlement of a covered insurance claim that is not the nature of the plaintiffs claim they instead claim that the municipality breached the covenant of good faith and fair dealing by unilaterally decreasing the insurance coverage required by the collective bargaining agreements although insurance is the topic in dispute the municipality breached the collective bargaining agreements not policies of insuranceid thus thealaska supreme court recognized that it was not just the subject matter of insurance that yields this tort cause of action but that special factors must be also be present and it also indicated an aversion to extending the cases providing for a cause of action in tort past the circumstances of those casesthe parties have not cited any case where an alaska court either applied pr declined to apply a tort cause of action for a breach of the implied covenant of good faith and fair dealing in circumstances similar to the case at hand nor has the court found any such case in its own research in the absence of such authority and in light of the public policy considerations explicitly relied on by the alaska courts and persuasive authority from outside the district the court holds that plaintiffs cannot bring a separate claim for the breach of the implied covenant in this case the public policy considerations that alaska courts have relied on in other insurance cases are decidedly not present in this case simply put this is not a case where there are standardized contract terms where the insurer has superior bargaining power and where the insured seeks protection against calamity instead of commercial advantage see transamerica premier ins 856 p2d at 774 see also ppm 3 purchase of the policy is suitable only for persons of substantial economic means and financial sophistication each policy owner will be required to represent that he or she meets certain minimum financial and other suitability standards while the contract is technically an insurance contract it is much more similar to an average commercial contract than to a typical insurance contract nor is this a case about an insurer resolving claims covered by its insurance policy see gentile 922 p2d at 261 the court also finds the reasoning in michael s rulle family dynasty trust v agl life assurance co no 10cv231 2010 wl 2721029 edpa july 7 2010 instructive in that case which is very similar to this case the eastern district of pennsylvania reasoned thatalthough insurance might play a tangential role here it is not the center of the dispute this claim revolves around the investment made as part of a life insurance policy and has nothing to do with the insurance aspect of the policy there is no allegation that agl failed to investigate a claim or that the plaintiff was in an unequal bargaining position and hence found itself signing a contract of adhesion additionally the plaintiff in this case is the rulle trust which is not a person nor is it the insured finally the agl ppm includes minimum suitability requirements for potential policy owners given the circumstances surrounding this policy it is not clear that alaska would recognize a tort for breach of the implied covenant of good faith and fair dealing hereid at 13 citation and internal quotation marks omitted based on this reasoning and the reasoning in the alaska cases see gentile 922 p2d at 260 the covenant of good faith and fair dealing primarily sounds in contract transamerica premier ins 856 p2d at 774 holding that an action for breach of the implied covenant of good faith and fair dealing for a normal commercial contract sounds in contract alone the court declines to allow a cause of action in tort for the breach of the implied duty of good faith and fair dealing in this context and the court grants defendants motion to dismiss this claim5 dutybased tort claimsa choice of lawas stated above plaintiffs tort claims are not governed by the policys choiceoflaw provision under new york law negligence sounds in tort see aegis ins servs inc v 7 world trade co lp 737 f3d 166 177 2d cir2013 un der new york law   because a finding of negligence must be based on the breach of a duty a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party citation and internal quotation marks omitted as does negligent misrepresentation see j  r elecs inc v business  decision n am inc no 12cv7497 2013 wl 5203134 at 6 sdny sept 16 2013 discussing the tort of negligent representation breach of fiduciary duty see in re pfeifer no 12cv13852 2013 wl 5746125 at 7 bankrsdny oct 23 2013 categorizing the breach of fiduciary duty as a tort claim under new york law and professional malpractice see indus quick search inc v miller rosado  algois llp no 09cv1340 2013 wl 4048324 at 3 edny aug 9 2013 in this case the plaintiffs primary claim is for legal malpractice which in new york is a species of negligence  ie a tort internal quotation marks omitted therefore the court must undertake an independent analysis under new york choiceoflaw rules to identify which states law should apply to the question of whether plaintiffs have stated a claim under these causes of actionthe new york court of appeals has held that the relevant analytical approach to choice of law in tort actions in new york is the interest analysis globalnet fin com inc v frank crystal  co inc 449 f3d 377 384 2d cir2006 brackets and internal quotation marks omitted see also empire city capital corp v citibank na 2011 wl 4484453 at 3 sdny sept 28 2011 same new yorks interest analysis requires that the law of the jurisdiction having the greatest interest in the litigation will be applied and the only facts or contacts which obtain significance in defining state interests are those which relate to the purpose of the particular law in conflict in re thelen llp 736 f3d 213 219 2d cir2013 brackets alteration and internal quotation marks omitted certified question accepted sub nom thelen llp v seyfarth shaw llp 22 ny3d 1017 981 nys2d 349 4 ne3d 359 2013 the significant contacts are almost exclusively the parties domiciles and the locus of the tort id at 21920 internal quotation marks omitted under the interestanalysis test torts are divided into two types conductregulating rules such as rules of the road and lossallocation rules such as those limiting damages in wrongful death actions vicarious liability rules or immunities from suit id at 220 internal quotation marks omitted if conflicting conductregulating laws are at issue the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders id internal quotation marks omitted a tort occurs in the place where the injury was inflicted which is generally where the plaintiffs are located lyman commerce solutions inc v lung no 12cv4398 2013 wl 4734898 at 4 sdny aug 30 2013 see also in re optimal us litig 837 fsupp2d 244 261 sdny2011 same feldman law grp pc v liberty mut ins co 819 fsupp2d 247 256 sdny2011 same affd 476 fedappx 913 2d cir2012 here plaintiffs tort claims are conductregulating not lossallocating see defs mem 11 the torts plaintiffs alleged in this case are conductrelating pis mem 3 1013 not disputing defendants position and choosing not to conduct a choice of law analysis except with regard to the statute of limitations issue and merely arguing that they state valid claims under either new york or alaska law see also mark andrew of the palm beaches ltd v gmac commercial mortg corp 265 fsupp2d 366 378 sdny2003 noting that negligence and negligentmisrepresentation claims are based on conduct regulating rules rather than loss allocating rules affd 96 fedappx 750 2d cir2004 wolfson v bruno 844 fsupp2d 348 355 sdny2011 applying conductregulating analysis to legal malpractice claim and collecting cases burns v delaware charter guarantee  trust co 805 fsupp2d 12 23 sdny2011 here the plaintiffs allege that the defendants breached their duties of care  and were otherwise negligent  in fulfilling their obligations to the plaintiffs these alleged legal duties are conductregulating on reconsideration no 09cv8025 2011 wl 3837146 sdny aug 30 2011applying that analysis to the instant action the court finds that the alleged torts occurred in alaska for the same reasons that the alaska statute of limitations applies as explained above thus for the purposes of new yorks interest analysis any torts that defendant committed against plaintiffs occurred in alaska however the law of the state that new yorks interest analysis yields will only be applied if it conflicts with the law of new york if there is no conflict between the law of the two jurisdictions then new york law will apply see lyman 2013 wl 4734898 at 3 since there is no conflict of law with respect to these sections new york law applies to the actual fraud claims alleged in the complaint hayden capital usa llc v northstar agric indus llc no 11cv594 2012 wl 2953055 at 4 sdny july 16 2012 there is no actual conflict between new york and north dakota law and new york law applies internal quotation marks omitted admiral ins co v adges no 11cv8289 2012 wl 2426541 at 2 sdny june 27 2012 no defendant has  shown a conflict between new yorks law and that of any other state accordingly the court applies new york law paradigm biodevices inc v viscogliosi bros llc 842 fsupp2d 661 665 sdny2012 new york law applies to the fraudulent transfer claim in the present action because there is no material conflict between the laws of new york and massachusetts governing this claim therefore if new york and alaska law conflict in any material way as to any of plaintiffs asserted causes of action the court will apply alaska law otherwise the court will apply new york lawb negligenceunder alaska and new york law the elements of a negligence claim are 1 that the defendant owed the plaintiff a duty 2 that the defendant breached that duty 3 that the plaintiff was injured and 4 that the breach of the duty was the proximate cause of the plaintiffs injury see eg mitchell v icolari 108 ad3d 600 969 nys2d 503 505 2013 edenshaw v safeway inc 186 p3d 568 571 alaska 2008defendant argues that since plaintiffs claims arise out of an arms length transaction and nothing more there are no duties except those in the policy and therefore plaintiffs negligence claim should be dismissed defs mem 20 moreover defendant argues that alaska law does not permit a claim for negligent performance of a contract seeking to recover purely economic losses id at 21 citing st denis v dept of hous  urban dev 900 fsupp 1194 120004 dalaska 1995 alaska pac assurance co 794 p2d at 946 plaintiffs respond that defendant is not necessarily insulated from tort liability by the existence of a contract as there is a legal duty independent of the contract pis mem 1420 in particular plaintiffs argue that there is a duty of care arising out of independent characteristics of the relationship between plaintiffs and defendant id at 1617first defendant is incorrect in its argument that alaska law will not permit a claim for negligence under these circumstances defs mem 2122 defendant cites two cases in support of this position neither of which requires the result it seeks first in alaska pacific assurance company v collins the alaska supreme court rejected a claim for negligent breach of an insurance contract however language in that case actually supports plaintiffs claim see alaska pac assurance 794 p2d at 946 agreeing with the argument that an insurer may be held liable for torts independent from its contractual duties such as fraud but that an action for negligence in breaching a specific contractual duty sounds in contract as defendant correctly argued in the context of plaintiffs breach of contract claim plaintiffs do not successfully allege the breach of a specific contractual duty rather they allege a negligence tort apart from the enumerated contractual duty to provide an annual statement second defendant is correct that reasoning in dicta by the district court for the district of alaska in st denis v department of housing and urban development did indicate that alaska might not allow tort claims based on purely economic loss see st denis 900 fsupp at 120004 it  appears that alaska cases foreshadow a general rule precluding negligence actions by those in privity where only economic losses are alleged however this appearance has been firmly rebutted in subsequent alaska supreme court decisions eleven years after the st denis decision the alaska supreme court heldwe have recognized that promises set forth in a contract must be enforced by an action on that contract only where the duty breached is one imposed by law such as a traditional tort law duty furthering social policy may an action between contracting parties sound in tort when a partys actions violate a general duty of care its actions may give rise to an action in tort even if the violation also breaches a contractjarvis v ensminger 134 p3d 353 363 alaska 2006 brackets and internal quotation marks omitted see also banco multiple santa cruz sa v moreno 888 fsupp2d 356 36869 edny2012 holding the same under new york law in reaching this conclusion the alaska supreme court in fact quoted the new york court of appealsa tort obligation is a duty imposed by law to avoid causing injury to others it is apart from and independent of promises made and therefore apart from the manifested intention of the parties thus a defendant may be liable in tort when it has breached a duty of reasonable care distinct from its contractual obligations or when it has engaged in tortious conduct separate and apart from its failure to fulfill its contractual obligationsjarvis 134 p3d at 363 brackets and internal quotation marks omitted quoting ny univ 639 nys2d 283 662 ne2d at 767 thus under alaska law as under new york law a plaintiff may bring a tort claim when the duty breached is imposed by law rather than specifically provided by contract see transamerica premier ins 856 p2d at 772 in the case of an ordinary commercial contract between sophisticated business entities a tort for breach arises only when a partys conduct  rises to the level of a traditionally recognized tort  quoting arco alaska inc v akers 753 p2d 1150 1154 alaska 1988 thus plaintiffs negligence claim would be cognizable if there was a duty of care distinct from what is required under the contractunder alaska law if no statute regulation contract case law or preexisting relationship establishes the ex istence of a duty of care the question of whether a duty exists is essentially a public policy question mcgrew v state dept of health  soc servs div of family  youth servs 106 p3d 319 322 alaska 2005 the public policy question involves the following considerationsthe foreseeability of harm to the plaintiff the degree of certainty that the plaintiff suffered injury the closeness of the connection between the defendants conduct and the injury suffered the moral blame attached to the defendants conduct the policy of preventing future harm the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach and the availability cost and prevalence of insurance for the risk involveddsw v fairbanks n star borough sch dist 628 p2d 554 555 alaska 1981 similarly under new york law when determining the existence and scope of a duty courts consider the relationship of the parties whether the plaintiff was within the zone of foreseeable harm whether the injury was foreseeable and other public policy considerations di ponzio v riordan 89 ny2d 578 657 nys2d 377 679 ne2d 616 618 1997 thus while these tests are stated slightly differently they involve the same general considerations as the parties have not alerted the court to an actual conflict between new york and alaska law and the court has not found a conflict it will apply new york law see interstate foods inc v lehmann no 06cv13469 2008 wl 4443850 at 3 sdny sept 30 2008 the parties have not submitted any evidence that there is actually a conflict of law between the law of new york and the law of new jersey with respect to breach of fiduciary duty therefore the court will apply new york law to the plaintiffs  claimplaintiffs assert that there were several duties owed to them by defendant that defendant breached to  properly vet funds to monitor developments at the funds and provide the trust with any material information regarding the funds and to process the redemption requests accurately and in a timely fashion sac  147 as explained above any claims based on the failure to effect the redemption request are timebarred thus the remaining claims relate to the vetting and the provision of information to the trustplaintiffs fail to state a negligence claim regarding the failure to provide information regarding ssr here plaintiffs have not alleged the breach of a legal duty independent from defendants contractual obligations rather the contract defines the scope of defendants duty 0nce a contractual relationship was entered into between the parties that contract defined the scope of the duties owed to the plaintiff vought v teachers coll columbia univ 127 ad2d 654 511 nys2d 880 88182 1987 in particular where the contract having been negotiated by sophisticated and counseled parties provides that defendant must provide annual statements see policy 22 ppm 30 plaintiffs cannot assert that there was an independent duty in tort to provide additional information in particular here plaintiffs knew at the time of the contract that they would have limited information regarding the underlying investments in fact they specifically contracted that they would not have contact with the underlying fund managers for their own benefit to preserve the tax benefits associated with the policy sac  2 see also id  19 4142 45 101 148 161 172 second dec 20 2002 letter agreement 2 policyowner will not directly or indirectly influence or attempt to influence the managers selection purchase retention or sale of any investment within the fund ppm 32 explaining that one factor considered in determining whether a variable life insurance contract owner is an owner of the assets invested through the policy for tax purposes is whether there is any contact between a variable contract owner and the investment advisor relating to the investment decisions made id at 33 no policy owner should ever attempt to contact an investment advisor rather any and all questions comments or instructions regarding the policy should be addressed only to the company emphasis omitted and plaintiffs knew that the information provided by the underlying funds including ssr would be limited see august 2005 ssr tear sheet 2 listing as one of ssrs risk factors that the fund is not subject to the same regulatory requirements as mutual funds id at 4 warning that ssr will have only limited access to information about the funds ssr invests in plaintiffs who were required to be persons of financial sophistication including being accredited investors qualified purchases and having sufficient knowledge and experience in investments of this type knew that defendant would have access to more information than plaintiffs regarding the underlying investments  and indeed specifically contracted for that imbalance ppm 3 10 32 knowing this plaintiffs specifically contracted for the provision of annual statements regarding their investments and nothing else ppm 30 policy 22 given these facts the court does not find that there was a duty imposed by law to provide additional information if plaintiffs wanted defendant to provide all relevant information about the underlying investment funds they could have and should have contracted for such see document sec sys inc v couponscom inc 2013 wl 1945954 at 5 wdny may 9 2013 holding that where two parties dealt at arms length and had an express written agreement covering the subject matter of the dispute that express agreement set forth the duty owed and there was not an additional duty imposed in tort in re natl century fin enterprises inc 846 fsupp2d 828 858 sdohio 2012 applying new york law and noting that the plaintiff is unable to explain how an independent duty could exist when sections 10 and 12 of the agreement defined the scope of the defendants alleged duty of care with respect to the information it supplied to the plaintiff adhered to on denial of reconsideration sub nom crown cork  seal co master ret trust v credit suisse first boston corp nos 12cv5803 et al 2013 wl 490717 sdny feb 6 2013 intl ore  fertilizer corp v sgs control servs inc 743 fsupp 250 258 sdny1990 since the duty to inspect arose only by virtue of the contract which was freely negotiated by the parties there can be no independent tort liability for failing to take certain steps as part of that inspection affd 38 f3d 1279 2d cir1994plaintiffs provide no support for their theory that defendant could be required to provide information in tort when the contract specifically addresses what information defendant must provide plaintiffs primarily rely on two cases bayerische landesbank new york branch v aladdin capital management llc 692 f3d 42 2d cir2012 and banco multiple santa cruz sa v moreno 888 fsupp2d 356 edny2012 however neither case helps plaintiffs in bayerische landesbank the second circuit held that where an independent tort duty is present a plaintiff may maintain both tort and contract claims arising out of the same allegedly wrongful conduct but if the basis of a partys claim is a breach of solely contractual obligations such that the plaintiff is merely seeking to obtain the benefit of the contractual bargain through an action in tort the claim is precluded as duplicative 692 f3d at 58 in that case the second circuit concluded that the plaintiff had alleged a legal duty though assessed largely on the standard of care and the other obligations set forth in the contract that would arise out of the independent characteristics of the relationship where the plaintiff alleged that it relied on marketing representations from the defendants regarding how they would manage financial portfolios id at 5859 however the factual issue in that case is markedly different from this case in bayerische landesbank the plaintiff alleged that the defendants represented that their interests were aligned with investors that the portfolio would consist of investment grade high quality reference entities that the defendants would manage the reference portfolio  in a conservative and defensive manner and that they would act in good faith using a degree of skill care diligence and attention consistent with the practice and procedures followed by reasonable and prudent institutional managers of national standing for similar investment portfolios id internal quotation marks omitted plaintiffs have alleged no such representations here moreover bayerische landesbank does not address the issue here which is plaintiffs attempt to require defendant to do something in tort beyond what was specifically provided for in contractbanco multiple is similarly inapposite in banco multiple the court held that though new york generally treats relationships between insurance companies and policyholders as contractual only because variable annuities are more like investment vehicles than traditional insurance it would allow a negligence action against a company that issued a variable annuity 888 fsupp2d at 36970 374 the court also held that an issuer of a variable annuity could be liable in tort for negligence arising out of independent legal duties in connection with the performance of its contractual duties in that case negligence in processing withdrawal requests where the court found a legal duty independent of the contract id at 374 however the issue in that case is simply not analogous to the one at hand additionally there are cases that hold that plaintiffs might be able to allege legal duties in addition to those explicitly provided for in financial services documents see eg pension comm of the univ of montreal pension plan v banc of am sec llc 716 fsupp2d 236 24243 sdny2010 however those cases also do not address the issue at hand which is whether there can be a negligence duty to provide more information than what is specifically provided for in a contract for the above reasons the court holds that plaintiffs have not plausibly pleaded a claim for negligence in connection with the failure to provide information not required under the contractfinally under the policy defendant was to establish investment options see policy 17 ppm 16 plaintiffs allege that defendant was negligent in putting ssr on its platform the issue here is whether plaintiffs have alleged a duty of care in vetting investment options independent of the contract that was breached by a failure to use reasonable care in vetting in this case plaintiffs have adequately pleaded the existence of a duty that arises from circumstances extraneous to and not constituting elements of the contract bayerische landesbank 692 f3d at 58 plaintiffs allege that they were unable to access information regarding ssr as they were prohibited by contract from communicating with ssr in order to protect the tax benefits that the structure of the investment provided and because the fund did not release information publicly sac  2 15 43 45 moreover the injury to plaintiffsfinancial loss from investing in a fund that allegedly was managed by two unqualified people and where gunlicks served in an allegedly selfinterested rolewas foreseeable see lauer v city of new york 95 ny2d 95 711 nys2d 112 733 ne2d 184 193 2000 whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to the circumstances he would cause danger of injury to the person or property of the other a duty arises to use ordinary care and skill to avoid such danger internal quotation marks omitted see also banco multiple 888 fsupp2d at 368 n 14 new york courts frequently hold that a person undertaking to perform work is charged with the common law duty to exercise reasonable care and skill in the performance of the work alteration and internal quotation marks omitted plaintiffs have adequately alleged that the circumstances known to all parties  put defendant in a position to know that not acting with ordinary skill and care with regard to vetting ssr before putting it on the platform would create a danger of financial injury to plaintiffs especially because according to plaintiffs allegations defendant had access to material nonpublic information about ssr that would impact whether an investor would invest in the fund public policy considerations also support the finding of a duty to exercise reasonable care in vetting as the duty the court is recognizing is highly limited would be easy to comply with and protects investorsnext plaintiffs must allege that defendant breached the duty plaintiffs have done so they allege that defendant either failed to vet ssr at all or more likely  haphazardly ignored critical information in its rush to become a leading carrier of variable universal life policies which involved signing up as many funds as possible as quickly as possible to defendants platform sac  10 see also id  114 in particular plaintiffs allege that defendant likely ignored  ssrs managers stunning lack of relevant experience claiming that one manager had no material experience in the complex world of structured finance corporate receivables financing and assetbased lending while the other had no credit or lending experience and just four years of reported business experience id  11 see also id  111 alleging that neither helland nor law had the requisite material experience in the arcane and complex world of structured finance corporate receivables financing and assetbased lending second plaintiffs allege that defendant also likely ignored ssrs lucrative overtly conflicted partnership with gunlicks id  12 these pleadings plausibly allege that defendant breached its duty of due care in placing ssr on its platformthird plaintiffs must allege that they were injured they have done so as they allege that the trusts capital has been frozen its ssr investment account has steadily declined in stated value and it is now highly likely that it will end with a zero or de minimus balance id  8finally plaintiffs must allege that the breach of the duty was the proximate cause of plaintiffs injury plaintiffs have also satisfied this requirement specifically plaintiffs allege that had they known that defendant had not properly vetted ssr the trust would have made a redemption request immediately and that after ssr suspended redemptions in october 2008 the trust could do nothing as all of its investment in ssr was lost id  19 for the above reasons the court holds that plaintiffs adequately pleaded a claim for negligence in connection with the vetting of ssrc negligent misrepresentationto state a claim for negligent misrepresentation under new york law a plaintiff must allege 1 carelessness in imparting words 2 upon which others were expected to rely 3 and upon which they did act or failed to act 4 to their damage the action also requires that 5 the declarant  express the words directly with knowledge or notice that they will be acted upon to one to whom the declarant is bound by some relation or duty of care dallas aerospace inc v cis air corp 352 f3d 775 788 2d cir2003 citing white v guarente 43 ny2d 356 401 nys2d 474 372 ne2d 315 319 1977 see woori bank v citigroup global markets inc no 12cv3868 2014 wl 3844778 at 5 sdny aug 5 2014 same see also beach v citigroup alternative investments llc no 12cv7717 2014 wl 904650 at 21 sdny mar 7 2014  liability for negligent misrepresentation has been imposed only on those persons who possess unique or specialized expertise or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation is justified  alteration in original quoting kimmell v schaefer 89 ny2d 257 652 nys2d 715 675 ne2d 450 454 1996under alaska law the tort of negligent misrepresentation consists of the following elements first the tortfeasor must have made a statement in the course of business employment or some other enterprise in which he had a pecuniary interest second the statement must have been false when the tortfeasor made it third the victim must have justifiably relied upon the statement to his detriment fourth the tortfeasor must have failed to exercise reasonable care when making the statement s alaska carpenters health  sec trust fund v jones 177 p3d 844 857 alaska 2008 footnotes omitted defendant cites howarth v pfeifer 443 p2d 39 alaska 1968 which held that there must be a relationship between the parties whether growing out of contract or otherwise such that in morals and good conscience the plaintiff has the right to rely upon the defendant for information and the latter owes a duty to give the information with care as evidence that alaska law also requires a special relationship to establish a negligent misrepresentation claim id at 43 this proposition is not supported either by howarth or by more recent case law in howarth the quotation relied upon by defendant was made in the context of whether  and what type of  privity is required to establish a negligent misrepresentation claim id however this language has not been embraced by alaska courts instead they have followed the guidance of the restatement of torts which does not require a special relationship see eg willard v khotol servs corp 171 p3d 108 11819 alaska 2007 providing the fourfactor test discussed above and citing to the restate ment second of torts  5521 reeves v alyeska pipeline serv co 56 p3d 660 67071 alaska 2002 same valdez fisheries dev assn inc v alyeska pipeline serv co 45 p3d 657 671 alaska 2002 same that said there is one relevant situation under alaska law where the existence of a duty is required for a negligent misrepresentation claim to make a negligent misrepresentation claim based on an omission there must be a duty to disclose specifically under alaska law an omission can constitute a false statement where there is a duty to disclose a duty to disclose may  arise when facts are concealed or unlikely to be discovered because of the special relationship between the parties the course of their dealings or the nature of the fact itself us ex rel n star terminal  stevedore co v nugget constr inc 445 fsupp2d 1063 1074 dalaska 2006 citations and internal quotation marks omitted because of this conflict between new york and alaska law the court will apply alaska lawfirst plaintiffs allege that defendant recklessly or worse deliberately overstated ssrs assets under management by approximately 100 in a report provided to  buchalter in his role as advisor in 2007 sac  18 specifically plaintiffs allege that buchalter on behalf of the trust requested more information about ssr and defendant reported that ssr had 169 million in assets under management but in fact ssr had only approximately half that amount based on the august 2007 aima disclosure questionnaire containing information supplied by ssr id  141 plaintiffs allege that the higher number  would misleadingly indicate increased investor acceptance of ssr a misstatement of ssrs presence in the markets in which it invested and most importantly a misstatement of ssrs implied ability to meet potential redemption requests from investors id  18 defendant argues that plaintiffs are simply misreading the documents by comparing a disclosure of gross assets in one document to net assets in theother defs mem 22 defendant explainsthe may 2007 update shows that as of march 31 2007 ssr had 169 million in assets and the funds general partner had 1955 million in assets which included ssrs assets and the assets of the separate ssr ii fund not at issue in this case the aima questionnaire shows that as of july 2007 ssr had 1707 million in assets and the funds general partner had 1985 million in assets which included 278 million in assets in the ssr ii fund the aima questionnaire explains these asset totals are gross as they include the funds leveraged or borrowed assets the aima questionnaire further disclosed that net of leverage ssr had 867 million in assets and ssr ii had 157 million in assets for a total of 1024 million in unleveraged assets under the general partners management plaintiffs have mistakenly compared ssrs gross assets in march 2007 169 million to ssrs net assets in july 2007 867 millionid citations and footnotes omitted plaintiffs respond that defendant never disclosed that it was reporting leveraged assets instead simply reporting fund assets as 169 million pis mem 21 plaintiffs argue this is a misrepresentation because actual assets under management is the true measure utilized by the hedge fund industry and defendant previously represented ssrs actual not leveraged assets under management of 473 million when presenting the investment option to buchalterthe trust in 2005 id at 21there are two reasons why this claim fails first the alleged misrepresentation was made by ssr not by defendant as the may 2007 disclosure was an ssr docu ment a fact evident from the document itself and not contested by plaintiffs counsel at oral argument see may 2007 ssr tear sheet to the extent defendant passed on this document there are no allegations that defendant knew that the document allegedly contained false statements or that defendant was negligent or reckless as to this fact see diblik v marey 166 p3d 23 26 alaska 2007 one element of negligent misrepresentation is the failure to exercise reasonable care or competence in obtaining or communicating the misinformationsecond there was no misrepresentation in may 2007 ssr reported its fund assets for the ssr id fund as 169 million see may 2007 ssr tear sheet this roughly matches the 2007 aima questionnaire from a few months later which reported that the size of the fund was 1707 million gross 867 million net sac ex e aimas illustrative questionnaire for due diligence of fund of hedge fund managers ssr aima questionnaire at 16 plaintiffs argue that defendant previously represented ssrs actual not leveraged assets under management of 473 million when presenting the investment option to buehalterthe trust in 2005 pis mem 21 see also august 2006 ssr tear sheet 1 plaintiffs apparently infer that the 473 million reported in 2005 is net not gross see august 2005 ssr tear sheet 1 from the fact that the aima questionnaire states that the assets under management in 2005 were 704 million thus conceivably indicating that 704 million was the leveraged number and 473 million was the unleveraged number see ssr aima questionnaire 6 however a close reading of the document shows this is not the case rather the discrepancy between the aima questionnaires 704 million number and the ssr documents 473 million number for 2005 is due to the fact that the 473 million represents assets that correspond only to ssrs insurance dedicated id fund while the 704 million represents the assets that correspond both to the ssr id fund and the ssr ii fund furthermore the may 2007 tear sheet states beginning in may 2006 the fund began employing modest leverage which the managers intend to limit to no more than one dollar of leverage per dollar of fund equity may 2007 ssr tear sheet 1 thus the fact that ssr reported unleveraged assets in 2005 when it was not employing leverage says nothing about whether ssr would report leveraged or unleveraged assets in 2007 furthermore the inclusion of that sentence on the may 2007 statement should have raised the possibility to plaintiffs that ssr was now reporting leveraged assets while the 2007 ssr document was ambiguous as to whether it was disclosing leveraged or unleveraged fund assets it did not misrepresent leveraged fund assets as unleveraged fund assetsnext plaintiffs allege that ssrs administrator had been replaced in january 2007 tellingly when ssr was in the process of closing their books for the 2006 year sac  16 plaintiffs further allege that defendant sent buchalter a report in june 2007 erroneously indicating that the replaced ssr administrator still was in place id defendant does not dispute that plaintiffs plausibly pleaded that defendant made a misrepresentation however the negligent misrepresentation claim must still be dismissed this alleged misrepresentation was made in the same document that contained the alleged misrepresentation regarding ssrs assets under management see sac  138 may 2007 ssr tear sheet again this alleged misrepresentation was made by ssr not by defendant and plaintiffs do not allege that defendant knew or was reckless or negligent to the fact that the ssr document it passed on to plaintiffs allegedly contained misrepresentations therefore this claim is dismissed see diblik 166 p3d at 26 one element of negligent misrepresentation is the failure to exercise reasonable care or competence in obtaining or communicating the misinformationfinally plaintiffs allege that defendant misrepresented that it vetted ssr when in fact defendant appears not to have vetted ssr at all sac 10 plaintiffs allege generally that defendant made representations as to researching and vetting of platform funds and monitoring and oversight of the investments id  56 plaintiffs also allege that defendant did not inform the trustee or the advisors of  its failure to properly vet ssr id  143 defendant argues that the email plaintiffs rely upon shows that defendant made no such representation regarding vetting defs mem 23 rather defendant argues the email merely identifies ssr as one of the insurance dedicated funds available through defendant which it indisputably was and that plaintiffs claim to have subjectively understood the email to imply a vetting of ssr is irrelevant id however defendants general counsel emailed buchalters counsel in october 2003 to state that he was in the process of adding ssr to defendants platform in the very near future sac  113 internal quotation marks omitted see also id ex l email from joseph a fillip jr to william lipkind oct 17 2003 later defendants director of research sent buchalter an email identifying ssr as one of the insurance dedicated funds available through defendants platform sac  57 agl life assurance company  insurance dedicated funds and plaintiffs allege that ssr was one of only 27 funds chosen from the available pool of an estimated 75 to 100 insurancededicated hedge funds in existence to be put on defendants platform sac  4 see also id  60 at the time defendant presented ssr as an approved investment choice there were an estimated 75 to 100 insurancededicated hedge funds in existence defendant presented just 27 insurancededicated funds clearly indicating that it had utilized specific criteria to select said funds and  had found that the majority of available funds were not appropriate for its policyholders as such defendant affirmatively preselected ssr from a much larger universe as especially suitable for policyholders such as the trust based on defendants purported vetting and determination utilizing specific criteria considering the allegations and the emails at issue the court concludes that plaintiffs have adequately pleaded an implicit misrepresentation by defendantwhat is left of defendants arguments against the negligent misrepresentation claim is its contention that plaintiffs cannot state a claim for negligent misrepresentation based on assertions made to buchalter however this argument is unavailing for several reasons first that the trust instrument did not identify buchalter as an advisor does not mean that he was not an advisor to the trust as a matter of fact which is exactly what the sac alleges and must be assumed as true on this motion pis mem 22 moreover there would have been no reason for defendant to send its platform funds to buchalter and buchalter alone if defendant did not recognize that he was acting in an advisory capacity id furthermore the restatement second of torts which is followed by alaska courts with regard to the requirements for a negligent misrepresentation tort provides that liability  is limited to a loss suffered  by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it restatement second of torts  5522 1977 emphasis addedtherefore defendants motion to dismiss the negligent misrepresentation claim is denied as to the alleged vetting misrepresentation and granted as to the alleged fund asset and fund administrator misrepresentationsd professional malpracticeprofessional malpractice is a species of negligence under new york law malpractice means the negligence of a member of a profession in his relations with his client panteleone v envtl engg  contracting no 12cv5415 2013 wl 3340483 at 6 edny july 2 2013 citation and internal quotation marks omitted to prevail on a professional malpractice claim a plaintiff must demonstrate the elements of negligence and that the breach of duty was by a professional in a departure from accepted standards of practice id internal quotation marks omitted under alaska law the elements of a cause of action for professional negligence  are 1 the duty of the professional to use such skill prudence and diligence as other members of the profession commonly possess and exercise 2 a breach of that duty 3 a proximate causal connection between the negligent conduct and the resulting injury and 4 actual loss or damage resulting from the professionals negligence bukoskey v walter w shuham cpa pc 666 fsupp 181 184 dalaska 1987 internal quotation marks omitted see also johnson  higgins of alaska inc v blomfield 907 p2d 1371 1374 alaska 1995 like other negligence actions a claim of professional negligence requires proof of duty breach causation and damages though stated slightly differently the baseline requirements are functionally the same under new york and alaska lawwhile acknowledging that there are distinctions between alaska and new york law on professional malpractice claims defendant asserts that there is no conflict because a life insurer is not a professional under either statefs lawsj supplemental br in supp of def phila fin life assurance cos mot to dismiss pis second am compl under rule 12b6 defis supplemental br 2 dkt no 50 however even assuming the ultimate outcomes would be the same under the laws of new york and alaska that fact would not indicate that no conflict of laws exists to be an actual conflict the difference between the laws of the two jurisdictions need not be outcomedeterminative but must provide differing substantive rules that are relevant to the matter at hand and the difference must have a significant possible effect on the outcome of the trial allgood entmt inc v dileo entmt  touring inc 726 fsupp2d 307 313 sdny2010 see also lehman bros 414 f3d at 331 samehere there is a conflict under new york law the term professional encompasses those whose qualities include extensive formal learning and training licensure and regulation indicating a qualification to practice a code of conduct imposing standards beyond those accepted in the marketplace and a system of discipline for violation of those standards chase scientific research inc v nia grp inc 96 ny2d 20 725 nys2d 592 749 ne2d 161 166 2001 applying these characteristics the new york court of appeals has held that insurance agents and brokers are not professionals id 725 nys2d 592 749 ne2d at 167 therefore in new york courts have held that insurance companies or agents cannot generally be sued for professional malpractice beyond a claim for failing to follow the insureds instructions of obtaining the desired insurance highlands ins co v prg brokerage inc no 01cv2272 2004 wl 35439 at 6 sdny jan 6 2004 the new york court of appeals has found that an insured can not state a cause of action for professional negligence against his agent as  no special relationship existfs between the parties that could impose a duty of care on the agent beyond that of following the insureds instructions of placing the requested insurance the court of appeals has also found that an insured may not state a claim against an insurance agent for professional malpractice  since neither a broker nor agent are required to engage in extensive specialized education or training nor bound by a standard of conduct for which they might be disciplined and are therefore not considered professionals  in that they generally cannot be sued for professional malpractice emphasis added citing murphy v kuhn 90 ny2d 266 660 nys2d 371 682 ne2d 972 1997 chase scientific research inc v nia group inc 96 ny2d 20 725 nys2d 592 749 ne2d 161 2001however under alaska law the definition of professional is much more inclusive in alaska professional malpractice  involves a professionals  breach of a duty of due care which was implied by law as a result of a contractual undertaking breck v moore 910 p2d 599 603 alaska 1996 internal quotation marks omitted a professional is a provider of skilled services johns heating serv v lamb 46 p3d 1024 1037 alaska 2002 in particular the rule adopted by the alaska supreme court is thatwhen a person holds himself out to the public in any particular employment work or trade there is an implied engagement with those who may employ him that he and his employees in that trade or business possess that reasonable degree of knowledge and skill which is ordinarily possessed by others engaged in the same business or trade and that he and they will perform the services which he may be engaged to do diligently and faithfully and with that skill and prudence ordinarily possessed and observed by others engaged in the same or like employmentid internal quotation marks omitted as such alaska courts have applied the professional negligence standard to trades persons including machinists electricians and plumbers id as well as to insurance agents see state farm life ins co v davis no 07cv164 2008 wl 5245332 at 4 dalaska dec 17 2008 generally an agent employed to effect insurance must exercise such reasonable skill and ordinary diligence as may fairly be expected from a person in his or her profession or situation in doing what is necessary to effect a policy in seeing that it effectually covers the property to be insured in selecting the insurer and so on alaska law is fundamentally the same an insurance agent owes a duty to exercise reasonable care skill and diligence in procuring insurance brackets footnote and internal quotation marks omitted see generally christianson v conradhouston ins 318 p3d 390 alaska 2014 discussing a professional negligence claim against an insurance agent as well as other classes of professionals thus defendant qualifies as a professional under alaska lawas a professional under alaska law defendant had a duty to perform the services which itwas engaged to do diligently and faithfully and with that skill and prudence ordinarily possessed and observed by others engaged in the same or like employment johns heating serv 46 p3d at 1037 because the duty existed only with respect to what defendant was engaged to do defendant cannot be liable for professional negligence for failing to provide information when the contract explicitly addressed the information defendant was required to provide for the same reasons addressed above with regard to the claim for negligence however plaintiffs do state a claim for professional negligence with regard to the allegedly inadequate vetting and misrepresentations related theretoe breach of fiduciary dutythe parties have not identified an actual conflict between alaska and new york law as to the elements of a cause of action for breach of fiduciary duty therefore the court will apply the law of new york the forum state see in re refco inc sec litig 826 fsupp2d 478 500 sdny2011 while the plaintiffs claim that new jersey law should apply it is notable that they cite primarily to new york law in their breach of fiduciary duty analysis and at any rate the parties do not indicate that there is any actual conflict between new york and new jersey law with respect to breach of fiduciary duty therefore new york law should apply   footnote omitted goodman v goldman sachs  co no 10cv1247 2010 wl 5186180 at 11 dnj dec 14 2010 as the defendant has not pointed to any material differences between the law of new jersey and new york the court concludes that no actual conflict exists with respect to the plaintiffs breach of fiduciary duty claim and consequently applies the law of the forum state of new jersey interstate foods 2008 wl 4443850 at 3 the parties have not submitted any evidence that there is actually a conflict of law between the law of new york and the law of new jersey with respect to breach of fiduciary duty therefore the court will apply new york law to the plaintiffs  claimunder new york law the elements of a claim for breach of a fiduciary obligation are i the existence of a fiduciary duty ii a knowing breach of that duty and iii damages resulting therefrom johnson v nextel commcns inc 660 f3d 131 138 2d cir2011 under new york law a fiduciary relationship exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation n shipping funds i llc v icon capital corp 921 fsupp2d 94 101 sdny2013 brackets and internal quotation marks omitted see also munn v thornton 956 p2d 1213 1220 alaska 1998 a fiduciary relationship exists when one imposes a special confidence in another so that the latter in equity and good conscience is bound to act in good faith and with due regard to the interests of the one imposing the confidence internal quotation marks omitted at the heart of the fiduciary relationship lies reliance and de facto control and dominance n shipping funds 921 fsupp2d at 101 internal quotation marks omitted it is not mandatory that a fiduciary relationship be formalized in writing and the ongoing conduct between the parties may give rise to a fiduciary relationship that will be recognized by the courts official comm of unsecured creditors v donaldson lufkin  jenrette sec corp no 00cv8688 2002 wl 362794 at 9 sdny mar 6 2002 internal quotation marks omitted the existence of a fiduciary duty cannot be determined by recourse to rigid formulas and often is a factual question it arises  when a party reposes trust or confidence in another who thereby gains a resulting superiority or influence over the first or when a party exercises de facto control or assumes responsibility for the affairs of another in re parmalat sec litig 684 fsupp2d 453 475 sdny2010 footnotes brackets and internal quotation marks omitted affd sub nom food holdings ltd v bank of am corp 423 fedappx 73 2d cir2011 see also munn 956 p2d at 1220 we have also noted that loyalty and the disavowal of self interest are hallmarks of the fiduciarys role fiduciary relationships are generally defined by a level of trust beyond that in ordinary business relationships brackets citation and internal quotation marks omittedplaintiffs base their fiduciary duty claim on the information imbalance created by the contract and the fact that the policy invested in funds that did not release information publicly plaintiffs argue that this dynamic imposed on the trust a special confidence in defendant to act in good faith and with due regard for the best interests of the trust sac  162 the court disagrees as a primary matter the court notes that plaintiffs do not cite a single case supporting the proposition that the court may find a fiduciary relationship based on the facts alleged here see pis mem nor did the court find any such case in its own research when parties deal at arms length in a commercial transaction no relation of confidence or trust sufficient to find the existence of a fiduciary relationship will arise absent extraordinary circumstances atlantis info tech gmbh v ca inc 485 fsupp2d 224 231 edny2007 brackets and internal quotation marks omitted there is no basis here for finding such extraordinary circumstances while the information imbalance alleged by plaintiffs might otherwise be sufficient to create a question of fact as to whether a fiduciary relationship existed see id at 23132 suggesting that a fiduciary relationship may be alleged between parties in arms length relationships where there is an allegation of obvious disparity between the parties it is not sufficient here when the plaintiffs  who were sophisticated investors and were represented by counsel  knew that such an information disparity existed and by contract provided only that defendant was required to pass on annual statements for the funds to plaintiffs see document sec sys 2013 wl 1945954 at 5 holding that where a fiduciary duty of confidentiality would otherwise by implied by law but where there was a specific written contract addressing the duty of confidentiality no such fiduciary duty would be applied by lawadditionally plaintiffs do not allege any special relationship with defendant such that they could expect defendant to disavow its own selfinterest and act on behalf of plaintiffs for example plaintiffs have not alleged that they were entitled to rely on defendant for investment advice in one new york state case the supreme court of new york county held that where an insurance company did not serve as an investment advisor in any meaningful way in connection with a variable life insurance policy but merely passed on prospectuses such as the ppm to its insureds from the funds in which the insureds could choose investments such a relationship did not amount to an advisory role that would give  rise to a fiduciary relationship ssr ii llc v john hancock life ins co usa 37 misc3d 1204a no 6527932011 2012 wl 4513354 at 11 supct sept 28 2012 judgment entered sub nom ssr ii llc v john hancock life ins co usa 2012 wl 7784415 nysupct oct 17 2012 cf mullerpaisner v tiaa 289 fedappx 461 466 2d cir2008 holding that while by their nature armslength commercial transactions ordinarily do not involve fiduciary relationships where the complaint alleges that the defendants advertise that they have a considerable infrastructure to help people and where they have made public statements that they will help their customers choose among their products a fiduciary duty claim would withstand a motion to dismiss similarly here plaintiffs do not allege that defendant acted as an investment advisor indeed they distinguish michael s rulle family dynasty trust on the ground that here plaintiffs are not alleging that defendant exercised exclusive or any control over investment decisions or that it was responsible for recognizing that ssr was a flawed investment and flndeed that plaintiffs fully admit that the trustee and advisors were exclusively responsible for making investment decisions pis mem 20 as in ssr ii the role of defendant as alleged by plaintiffs does not amount to an advisory role that gives rise to a fiduciary relationship ssr ii 2012 wl 4513354 at 11moreover and more generally several courts applying new york law have found that in the case of arms length negotiations or transactions between sophisticated financial institutions no extracontractual duty of disclosure exists banque arabe et internationale dinvestissement v maryland natl bank 57 f3d 146 158 2d cir1995 see also in re enron corp 292 br 752 78788 bankrsdny2003 holding that where the parties engaged in arms length negotiations and the contract disclaims reliance on information provided by the other party no claim can be stated for breach of fiduciary duty banco espanol de credito v sec pac natl bank 763 fsupp 36 45 sdny1991 in the case of arms length transactions between large financial institutions no fiduciary relationship exists unless one was created in the agreement while the facts of these cases are distinguishable from the facts at hand as here plaintiffs are not a large financial institution the court finds persuasive the reasoning that when sophisticated counseled parties contract and specifically contract about what information needs to be disclosed there is no basis for holding that there is an extracontractual legal duty to disclose therefore the court dismisses plaintiffs claim for breach of fiduciary duty6 unjust enrichmenta choice of lawsome controversy appears to exist as to whether a claim for unjust enrichment is governed by a contracts enforceable choiceoflaw provision or whether it is instead governed by the law of the state that new yorks interest analysis yields being a fundamentally noncontractual cause of action compare fieger 251 f3d at 394 with respect to a quantum meruit claim we are not aware of any published new york decision that has stated the appropriate conflictoflaw test to apply to such a claim under new york law a quantum meruit claim is a claim in quasicontract the plaintiffs claimed entitlement to a commission payment sounds more in contract than in tort arising as it does from the benefit allegedly conferred upon the defendants by the plaintiffs business advice accordingly the court will apply new yorks choiceoflaw analysis for contract claims to the plaintiffs quantum meruit claim citations omitted spirit locker inc v evo direct llc 696 fsupp2d 296 304 n 8 edny2010 the parties agree that new york law applies to the unjust enrichment claim and a choice of law clause in their agreement mandates the application of new york law merrill iron  steel inc v yonkers contracting co inc no 05cv5042 2006 wl 2679940 at 3 sdny sept 19 2006 the eourt questions whether the plaintiff may avoid the joint payment agreements choice of law clause when the agreement underlies many of the plaintiffs arguments citing valley juice ltd v evian waters of fr inc 87 f3d 604 610 2d cir1996 in re lois 264 br at 106 the claim for unjust enrichment similarly should be governed by the law of illinois  at least the great bulk of the consideration paid by the debtor to the creditors  the essence of this claim for unjust enrichment  was paid under the agreement and the rights if any to the return of that consideration cannot be considered without at least some consideration of the agreement and its terms footnotes omitted with innovative biodefense inc v vsp techs no 12cv3710 2013 wl 3389008 at 5 sdny july 3 2013 the plaintiff argues that the defendants unjust enrichment counterclaim raises extracontractual allegations and thus should not be governed by the choiceoflaw provision the court agrees claims for unjust enrichment or quantum meruit are noncontractual equi table remedies and are therefore outside the scope of the parties choiceoflaw provision italics footnote and internal quotation marks omitted gross found inc v goldner no 12cv1496 2012 wl 6021441 at 11 edny dec 4 2012 although the guaranty provides for kansas law unjust enrichment is an equitable claim that is outside the scope of the contracts choiceoflaw provision and may be governed  by the law of a different state hettinger v kleinman 733 fsupp2d 421 444 sdny2010 the plaintiffs cite new york law and the defendants cite both new jersey and florida law with respect to plaintiffs unjust enrichment claim although the choice of law clause in the independent contractor agreement specifies florida law extracontractual claims are outside the scope of contractual choiceoflaw provisions citations and internal quotation marks omitted cargill inc v sears petroleum  transp corp no 03cv580 2004 wl 3507329 at 16 ndny aug 27 2004 with the exception of the breach of contract claim which  is subject to minnesota law because of the choice of law provision contained within the relevant agreement the  parties common law counterclaims including for  unjust enrichment  are all governed by new york law if anything can be gleaned from the conflicting case law described above it is that the more an unjust enrichment claim relates to an enforceable contract the more likely it is to be considered contractual in nature for the purposes of new yorks choiceoflaw analysis given the allegations surrounding plaintiffs unjust enrichment claim this line of best fit argues in favor of applying alaska law pursuant to the policys choiceoflaw provision nevertheless because the law is not entirely clear on this point the court will apply both alaska and new york law and will only be forced to choose between the two at this stage if a conflict presents itselfb analysisto state a claim of unjust enrichment under new york law the plaintiff must allege 1 that the defendant was enriched 2 that the enrichment was at the plaintiffs expense and 3 that the circumstances are such that in equity and good conscience the defendant should return the money or benefit to the plaintiff  bazak intl corp v tarrant apparel grp 347 fsupp2d 1 34 sdny2004 alteration in original footnote omitted quoting golden pac bancorp v fed deposit ins corp 273 f3d 509 519 2d cir2001 the essence of a claim for unjust enrichment is that one party has parted with money or a benefit that has been received by another at the expense of the first party id at 4 it is well settled that under new york law  the existence of a valid and enforceable written contract  ordinarily precludes recovery in quasi contract such as unjust enrichment for events arising out of the same subject matter  id alteration in original quoting macdraw inc v cit grp equip fin inc 157 f3d 956 964 2d cir1998plaintiffs did not allege in the sac that the unjust enrichment claim was pleaded in the alternative to their breach of contract claim nor did they make this argument in their opposition papers they raised it for the first time at oral argument however under new york law plaintiffs cannot raise the unjust enrichment claim in the alternative to the breach of contract claim because there is a  valid and enforceable written contract governing the  subject matter  beth isr med ctr v horizon blue cross  blue shield of nj inc 448 f3d 573 58687 2d cir2006 quoting clarkfitzpatrick inc v long is rr co 70 ny2d 382 521 nys2d 653 516 ne2d 190 193 1987 see also air atlanta aero engg ltd v sp aircraft owner i llc 687 fsupp2d 185 196 sdny2009 dismissing unjust enrichment claim pleaded in the alternative noting that the plaintiffs failure to allege that the contracts at issue were invalid or unenforceable precluded it  from seeking quasicontractual recovery for events arising out of the same subject matter courtien commcns ltd v aetna life ins co 193 fsupp2d 563 571 edny2002 the law in new york is that a party may assert causes of action in both breach of contract and quasicontract where there is a bona fide dispute concerning existence of a contract or whether the contract covers the dispute in issue  or where one party wrongfully has prevented the other from performing the contract  first alteration in original quoting randall v guido 238 ad2d 164 655 nys2d 527 528 1997 thus under new york law this cause of action for unjust enrichment fails and should be dismissedunder alaska law a party seeking to recover for unjust enrichment must show 1 a benefit conferred upon the defendant by the plaintiff 2 appreciation by the defendant of such benefit and 3 acceptance and retention by the defendant of such benefit under such circumstances that it would be inequitable for him to retain it without paying the value thereof ware v ware 161 p3d 1188 1197 alaska 2007 see also alaska sales  serv inc v millet 735 p2d 743 746 alaska 1987 same the courts are in accord in stressing that the most significant requirement for recovery in quasicontract is that the enrichment of the defendant must be unjust that is the defendant must receive a true windfall or something for nothing in re avery 461 br 798 822 bankrdalaska 2011 internal quotation marks omitted citing millet 735 p2d at 746though the issue is slightly less clear cut than under new york law the court concludes that as under new york law the existence of a valid contract bars recovery under a theory of unjust enrichment the alaska supreme court has stated that eourts generally treat actions brought upon theories of unjust enrichment quasicontract contracts implied in law and quantum meruit as essentially the same in fact this terminology is generally employed interchangeably often within the same opinion bennett v artus 20 p3d 560 563 n 3 alaska 2001 italics and internal quotation marks omitted see also brady v state 965 p2d 1 13 n 38 alaska 1998 same and the alaska courts have stated that a plaintiff is entitled to the reasonable value of the services rendered to the defendant kinder the doctrine of quantum meruit only when a valid contract does not exist romero v cox 166 p3d 4 9 alaska 2007 internal quotation marks omitted see also krossa v all alaskan seafoods inc 37 p3d 411 419 alaska 2001 noting that plaintiffs may generally recover in quantum meruit for services rendered only when parties to a contract dispute do not have a valid contract mitford v de lasala 666 p2d 1000 1006 n 1 alaska 1983 it is well settled that proof of an express contract covering the services in question precludes relief in quantum meruit cf nicdao 839 fsupp2d at 1071 discussing the requirements for showing unjust enrichment under alaska law and stating that generally aplaintiff may not rely on a theory of implied contract where a valid express contract governs second alteration in original internal quotation marks omitted soules v ramstack 95 p3d 933 940 alaska 2004 enforcement of a valid contract does not constitute unjust enrichment additionally in nicdao v chase home finance an alaska district court dismissed an unjust enrichment claim under alaska law in part because the parties relationship was governed by valid contracts and the plaintiff could not plausibly allege a breach of the contracts at issue 839 fsupp2d at 1071 thus a plaintiff cannot recover for unjust enrichment under alaska law when a valid enforceable contract covers the services in questionthe court has not found an alaska case addressing whether a claim for unjust enrichment can be pleaded in the alternative to a breach of contract case however based on alaskas case law for a complaint to state an unjust enrichment claim that could plausibly warrant relief where a contract is also alleged to exist the plaintiff must allege in the alternative either that the contract is not valid that the contract does not apply or that the money goods or services the grant of which constituted the unjust enrichment was outside the scope of the contract otherwise under the facts alleged by the complaint the plaintiff would not be entitled to relief see us ex rel poong limpert v dick pacghemm joint venture no 03cv290 2005 wl 846204 at 2 dalaska apr 4 2005 noting that in alaska quantum meruit relief is not available to recover the value of services performed if the services are within the scope of the original contraet but if the services are beyond the scope of the contract quantum meruit relief is available and holding that the plaintiffs complaint survived a motion to dismiss because it contained two allegations that the plaintiff provided labor materials and services beyond what was required by the contract and that the defendant has not paid the plaintiff for those items footnotes omitted here plaintiffs have pleaded the existence of a contract and that the payment they made pursuant to the contract unjustly enriched defendant but have not alleged that the contract was invalid or that the payments were outside the scope of the contract even if plaintiffs are able to conclusively prove the truth of these factual allegations they still would not be entitled to relieffor the above reasons plaintiffs fail to set forth an unjust enrichment claim under either alaska or new york law and defendants motion to dismiss this claim is grantediii conclusionfor the above reasons defendants motion to dismiss is denied in part and granted in part in particular the following claims are dismissed the first cause of action for negligence relating to the failure to provide information and the failure to effect the redemption request the second cause of action for negligent misrepresentation related to the alleged misrepresentations about the fund assets and fund administrators as well as any other claims based on those alleged misrepresentations the third cause of action for breach of fiduciary duty the fourth cause of action for professional malpractice related to the failure to provide information and the failure to effect the redemption request the fifth cause of action for breach of contract the sixth cause of action for breach of the covenant of good faith and fair dealing and the seventh cause of action for unjust enrichment the motion is denied as to all other claimsso ordered1exhibit b to the sac contains several documents unnumbered page one is the policy receipt unnumbered pages two to three constitute a letter to the 2002 lawrence r buchalter alaska trust from joseph a fillip jr senior vice president and general counsel for defendant dated december 20 2002 the first dec 20 2002 letter agreement unnumbered pages four to nine constitute a letter to the 2002 lawrence r buchalter alaska trust from joseph a fillip jr senior vice president and general counsel for defendant dated december 20 2002 the second dec 20 2002 letter agreement unnumbered pages ten to twentytwo contain the flexible premium survivorship variable life payout tables unnumbered pages twentythree to fiftyone constitute the flexible premium survivorship variable life insurance contract the policy and unnumbered pages fiftytwo to sixtyfour constitute the buchalters life insurance application for ease of reference each of these documents will be cited separately2 exhibit d to the sac contains correspondence between buchalter and an employee of defendant unnumbered page one is an email from sandy geyelin to larry buchalter dated september 19 2005 unnumbered page two is a list of agl life assurance company insurance dedicated funds agl life assurance company  insurance dedicated funds unnumbered page three is an email from sandy geyelin to larry buchalter dated september 21 2005 and unnumbered pages four to nine are an information sheet about ssr dated august 2005 august 2005 ssr tear sheet for ease of reference each of these documents will be cited separately3 the document also lists the significant risks associated with the investment objective and strategy of ssr august 2005 ssr tear sheet 24 in particular ssr was considering legal action against thomas petters see nov 20 fillip letter we are in contact with the managers of ssr on at least a weekly basis to monitor their activities regarding ssrs underlying investments with exposure to petters according to defendant petters was a ponzischemer and it had been discovered that ssr had exposure to investment funds he operated mem of law in supp of def phila fin life assurance cos mot to dismiss pis second am compl under rule 12b6 defs mem 7 dkt no 455 the court notes that plaintiffs allege that they received a summary of the fund in may 2007 sac  76 141 that summary provided at exhibit m states beginning in may 2006 the fund began employing modest leverage which the managers intend to limit to no more than one dollar of leverage per dollar of fund equity sac ex m may 2007 ssr tear sheet at 1 thus it appears that plaintiffs were advised of this change in investment strategy6 this term is not defined in the sac7 moreover it is not clear from the pleadings where the trust beneficiaries live or lived at the lime that the policy was issued8 the court notes as a final matter that the alaska choiceoflaw provision contained in the policy does not impact the courts analysis as to which states statute of limitations applies to buchalters claims in portfolio recovery associates llc v king 14 ny3d 410 901 nys2d 575 927 ne2d 1059 2010 the new york court of appeals considered whether the question of the timeliness of a plaintiffs claims for breach of contract and account stated was to be answered by reference to the statute of limitations of delaware the law of which the parties to the contract at issue had selected to govern their agreement in the contracts choiceoflaw provision id 901 nys2d 575 927 ne2d at 106162 the court described the choiceoflaw provision as standard stating that the contract would be governed by the laws of delaware id 901 nys2d 575 927 ne2d at 1060 the court held that the appellate division had properly concluded that the delaware choice of law clause did not require the application of the delaware threeyear statute of limitations to bar the plaintiffs claims as choice of law provisions typically apply to only substantive issues and statutes of limitations are considered procedural because they are deemed as pertaining to the remedy rather than the right id 901 nys2d 575 927 ne2d at 1061 citations and internal quotation marks omitted there being no express intention in the agreement that delawares statute of limitations was to apply to the parties dispute the choice of law provision cannot be read to encompass that limitations period id see also phillips v audio active ltd 494 f3d 378 384 2d cir2007 choice of law provisions generally implicate only the substantive law of the selected jurisdiction morson v kreindler  kreindler llp 814 fsupp2d 220 225 edny2011  choice of law provisions typically apply to only substantive issues and statutes of limitations are considered procedural because they are deemed as pertaining to the remedy rather than the right  quoting king 901 nys2d 575 927 ne2d at 1061here the alaska choiceoflaw provision contained in the policy is similarly standard stating only governing jurisdiction ak policy 3 and defining governing jurisdiction as the state or jurisdiction in which the policy is delivered and whose laws govern its terms id at 10
E. holding by texas supreme court that takings claim failed as a matter of law because the state took possession of the property in question under a contract with the plaintiff and therefore with the plaintiffs permission and consent
Reply with [A, B, C, D, E] only.