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have been deleted without seriously impairing the analytical
foundations of the holding--that, being peripheral, may not have
received the full and careful consideration of the court that
uttered it.”). In deciding petitioner’s claims in that case, the
court observed initially that petitioner had before the court two
theories for the recovery of damages, one of which was for the
loss of the value of confidential information. FMC Corp. v.
Boesky, 825 F. Supp. 623, 632 (S.D.N.Y. 1993). As to that
theory, the court stated:
the question here is what legally compensable value did
FMC hold on behalf of its shareholders in keeping
confidential prior to those dates information relevant
to its planned restructure of the interests of its
public and management shareholders in the corporate
equity that was compromised by the alleged premature
disclosure caused by Goldman Sachs' employees, and what
is the best legal measure of that diminution in value
of the information or plan as demonstrated by specific
facts presented to the Court? [Id. at 633.]
In deciding that question, the court first noted:
The exclusive use of the only information shown to
have been leaked, that a possible recapitalization was
in the works, unintentionally inured to the
benefit--not the detriment--of the public shareholders,
and the insiders commensurably shared the benefit of
the rise and assertion of a stock price expressing the
value of the equity. As elaborated below, FMC has
failed to adduce any admissible evidence of specific
facts that FMC sustained any increase in costs to it
incurred to effectuate the restructure, or that any
legitimate and legally cognizable value held by FMC in
the financial information, which benefitted all its
shareholders (at no cost to the company), was
diminished in any way by premature disclosure.
Correspondingly, the best measure of the compensable
cost incurred by FMC or diminution in value of its plan
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