Geoffrey Varga, in his capacity as Official Liquidator of Palm Beach Offshore, Ltd. v. U.S. Bank National Association

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-2709
___________________________
Geoffrey Varga, in his capacity as Official Liquidator of Palm Beach Offshore,
Ltd., and Palm Beach Offshore II, Ltd.
lllllllllllllllllllll Plaintiff - Appellant
v.
U.S. Bank National Association
lllllllllllllllllllll Defendant - Appellee
____________
Appeal from United States District Court
for the District of Minnesota - Minneapolis
____________
Submitted: June 11, 2014
Filed: August 21, 2014
____________
Before LOKEN, BEAM, and GRUENDER, Circuit Judges.
____________
GRUENDER, Circuit Judge.
Geoffrey Varga, in his capacity as the official liquidator of Palm Beach
Offshore, Ltd. and Palm Beach Offshore II, Ltd. (collectively, “the Palm Beach
Funds”), sued U.S. Bank National Association (“U.S. Bank”) for aiding and abetting
a breach of fiduciary duty, willful and wanton negligence, and gross negligence.
These claims arose from the Palm Beach Funds’ investment through accounts

-- 1 of 14 --

maintained at U.S. Bank in what turned out to be a Ponzi scheme. The district court1
granted U.S. Bank’s motion to dismiss Varga’s amended complaint. Varga appeals,
and we affirm.
I. Background
In this appeal from the grant of a motion to dismiss, we accept as true the well-
pleaded allegations in the amended complaint. Loftness Specialized Farm Equip.,
Inc. v. Twiestmeyer, 742 F.3d 845, 854 (8th Cir. 2014).
Tom Petters, through his company Petters Company, Inc. (“Petters Company”),
claimed to purchase excess consumer merchandise, such as electronics, from vendors.
Petters Company financed these supposed transactions by selling high-yield
promissory notes to investors through Petters Capital, Inc. (“Petters Capital”), a
wholly owned entity of Petters Company. These promissory notes were to be repaid
once the consumer merchandise had been sold to and paid for by retailers, like Sam’s
Club and BJ’s Wholesale Club, in transactions that Petters Company was to arrange.
This investment structure enabled Petters Company to grow into what appeared to be
a multi-billion dollar operation. But the investment scheme peddled by Petters
Company was entirely illusory: no vendors ever sold consumer merchandise, and no
retailers ever purchased it. Instead, Petters Company generated fake purchase orders
and sales confirmations and kept its scheme afloat by recycling funds that it received
from new investors to pay off the promissory notes of old investors as they came due.
The inevitable collapse of Petters’s Ponzi scheme caused investors to suffer
staggering losses.
The Honorable Richard H. Kyle, United States District Judge for the District1
of Minnesota.
-2-

-- 2 of 14 --

The Palm Beach Funds, which invested in Petters Company’s promissory notes
and are now being liquidated, collectively lost over $700 million to Petters’s scheme.
The Palm Beach Funds’ investment was made through another fund called Palm
Beach Finance Partners II, LP (“Palm Beach Finance”). Palm Beach Finance
received the Palm Beach Funds’ investment in Petters Company’s promissory notes
via an escrow account that was maintained at U.S. Bank and was governed by an
escrow-account agreement.
What happened to the Palm Beach Funds’ money once it was transferred out
of the escrow account forms the heart of this case. The money initially went to a
collateral account that also was maintained at U.S. Bank. The collateral account was
governed by a collateral-account agreement to which U.S. Bank, Palm Beach Finance,
and Petters Capital, among others, were parties. The Palm Beach Funds were not
parties to the collateral-account agreement. Once the Palm Beach Funds’ investment
reached the collateral account, Varga alleges that a “direct payment system”
prescribed that (a) outgoing funds from the collateral account were to be sent directly
to the vendors that purportedly sold the consumer merchandise to Petters Company
and (b) incoming funds to the collateral account were to come directly from the
retailers that purportedly purchased the consumer merchandise from Petters
Company. This direct payment system, according to Varga, was designed to prevent
a third party from accessing investor funds and to ensure the legitimacy of the
merchandise transactions. Because no vendors or retailers were involved in any
legitimate transactions, the direct payment system was never followed. Instead, the
collateral account played host to the Ponzi scheme with the outgoing funds being sent
to Petters Company through sham inventory vendors and the incoming funds (i.e., the
investors’ recycled funds) coming from Petters Company.
Varga alleges that Bruce Prevost and David Harrold, in their capacity as
directors of the Palm Beach Funds, breached their fiduciary duties to the Palm Beach
Funds. Varga additionally alleges that Palm Beach Capital Management, LLC
-3-

-- 3 of 14 --

(“PBCM”), which managed the Palm Beach Funds, breached its fiduciary duties to
the Palm Beach Funds. In particular, Varga argues that Prevost, Harrold, and PBCM
breached their fiduciary duties to the Palm Beach Funds by failing to ensure that the
direct payment system was utilized while nonetheless continuing to invest in Petters
Company’s promissory notes and by concealing the noncompliance with the direct
payment system from the Palm Beach Funds. Varga settled his claims against
Prevost, Harrold, and PBCM in a separate proceeding.
This case concerns Varga’s further claim that U.S. Bank’s actions are sufficient
to charge it with aiding and abetting the breach of fiduciary duty by Harrold, Prevost,
and PBCM, willful and wanton negligence, and gross negligence. Varga alleges that
U.S. Bank knew that the direct payment system was not being followed. Varga
further asserts that U.S. Bank understood that the direct payment system was an
important procedural safeguard that was designed to protect the Palm Beach Funds’
investment. U.S. Bank acquired this knowledge, according to Varga, by reviewing
the collateral-account agreement, the Palm Beach Funds’ marketing and due-diligence
documents, and the private offering memoranda for the Palm Beach Funds’
investment in Petters Company’s promissory notes.
In addition to appreciating the importance of the direct payment system, Varga
alleges that U.S. Bank participated in concealing from the Palm Beach Funds the fact
that the direct payment system was not being followed. Varga first alleges that U.S.
Bank participated in a so-called “re-coding scheme” at the direction of two of the
“fund managers” for the Palm Beach Funds—identified in Varga’s brief as Prevost
and Harrold. This alleged scheme, which began no later than December 2006,
involved U.S. Bank re-coding the account statements for the collateral account to
indicate that the incoming funds into the collateral account were being received from
retailers, not Petters Company. However, Varga admits in his amended complaint
that, from 2002 until the re-coding scheme began in approximately December 2006,
the collateral account statements correctly listed Petters Company as the source of the
-4-

-- 4 of 14 --

incoming funds. According to Varga, U.S. Bank also told various individuals
associated with the Palm Beach Funds that the direct payment system was being
followed. The amended complaint includes only one example of this alleged practice.
Varga alleges that Jonathan Spring, a third-party marketer for the Palm Beach Funds
and an investor in Petters Company’s promissory notes, contacted U.S. Bank
employee Thomas Caruth. Caruth, who was Palm Beach Finance’s “main contact”
at U.S. Bank, told Spring that “all wires sent out of U.S. Bank go directly to retailers
and manufacturers” and “wires received come directly from retailers without going
through intermediaries.”
On the basis of these allegations, Varga sued U.S. Bank. U.S. Bank moved to
dismiss the amended complaint for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). The district court granted U.S. Bank’s motion. This appeal
followed.
II. Discussion
We review de novo the grant of a motion to dismiss, accepting the well-pleaded
allegations in the complaint as true and drawing all reasonable inferences in favor of
the plaintiff. Id. In addition to the allegations in the amended complaint, we also
may consider “materials that are necessarily embraced by the pleadings.” Mattes v.
ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id.
-5-

-- 5 of 14 --

A. Aiding and Abetting a Breach of Fiduciary Duty
Under Minnesota law, aiding and abetting the tortious conduct of another has
three elements: “(1) the primary tort-feasor must commit a tort that causes an injury
to the plaintiff; (2) the defendant must know that the primary tort-feasor’s conduct
constitutes a breach of duty; and (3) the defendant must substantially assist or
encourage the primary tort-feasor in the achievement of the breach.” Witzman v.
Lehrman, Lehrman & Flom, 601 N.W.2d 179, 187 (Minn. 1999). While the parties
dispute whether Varga alleged a breach of fiduciary duty by Prevost, Harrold, and
PBCM, we assume for purposes of this appeal that Varga has done so. Varga’s
aiding-and-abetting claim nonetheless fails because he has not alleged plausibly that
U.S. Bank knew that Prevost, Harrold, and PBCM’s conduct constituted a breach of
fiduciary duty or that U.S. Bank substantially assisted that breach of fiduciary duty.
An aider and abettor’s knowledge that the primary tortfeasor’s conduct
constitutes a breach of fiduciary duty is a “crucial element” of a claim for aiding and
abetting. E-Shops Corp. v. U.S. Bank Nat’l Ass’n, 678 F.3d 659, 663 (8th Cir. 2012)
(quoting Fed. Deposit Ins. Corp. v. First Interstate Bank of Des Moines, N.A., 885
F.2d 423, 431 (8th Cir. 1989)) (applying Minnesota law). Knowledge is evaluated
“in tandem” with the requirement that the aider and abettor substantially assist the
breach of a fiduciary duty. Witzman, 601 N.W.2d at 188 (quoting In re
Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 113 F.3d 1484, 1495
(8th Cir. 1997)). Consequently, “where there is a minimal showing of substantial
assistance, a greater showing of scienter is required.” Id. (quoting Camp v. Dema,
948 F.2d 455, 459 (8th Cir. 1991)). Factors that are relevant to whether knowledge
and the requisite degree of assistance exist include “the relationship between the
defendant and the primary tortfeasor, the nature of the primary tortfeasor’s activity,
the nature of the assistance provided by the defendant, and the defendant’s state of
mind.” Id.
-6-

-- 6 of 14 --

Varga relies on three allegations in the amended complaint to support his
argument that he plausibly pled that U.S. Bank knew of and substantially assisted a
breach of fiduciary duty. First, Varga asserts that U.S. Bank’s review of various
documents that purportedly mandated the direct payment system suffices to establish
U.S. Bank’s knowledge that Prevost, Harrold, and PBCM were breaching their
fiduciary duties to the Palm Beach Funds by failing to ensure that the direct payment
system was utilized while nonetheless continuing to invest in Petters Company’s
promissory notes. The documents alleged to have been reviewed by U.S. Bank
include: the collateral-account agreement; the private offering memoranda for the
Palm Beach Funds’ investment in Petters Company’s promissory notes; and the Palm
Beach Funds’ marketing and due-diligence documents. However, the collateral-
account agreement, which established U.S. Bank’s duties in relation to the collateral
account, does not mandate that U.S. Bank only accept those deposits that come from
retailers. To the contrary, the collateral-account agreement expressly contemplates2
instances in which the direct payment system would not be followed. In particular,
the collateral-account agreement provides that U.S. Bank “shall . . . [a]pply and credit
for deposit to the Collateral Account . . . all Collections [defined as “all payments
owing to [Petters Capital] with respect to sales of inventory”] and other Receipts from
time to time tendered by or on behalf of [Petters Capital] for deposit therein.” As this
excerpt makes clear, not only did the collateral-account agreement indicate that
exceptions to the direct payment system may be made, but it also left U.S. Bank with
no discretion to refuse the aforementioned deposits that were made “by or on behalf
of” Petters Capital, a wholly owned entity of Petters Company. In light of this
contractual provision in the collateral-account agreement, it is implausible to
conclude that U.S. Bank knew that the failure to adhere to the direct payment system
As noted above, when deciding a motion to dismiss, we may consider2
materials that necessarily are embraced by the pleadings. See Mattes, 323 F.3d at 697
n.4. During oral argument, Varga conceded that the collateral-account agreement,
which was attached to U.S. Bank’s motion to dismiss, is properly before us.
-7-

-- 7 of 14 --

and continued investments in Petters Company’s promissory notes constituted a
breach of fiduciary duty by Harrold, Prevost, and PBCM. See Iqbal, 556 U.S. at 678.
Varga responds by pointing to other language in the collateral-account
agreement—for example, that Petters Capital “agrees to direct each [retailer] to make
all payments” to the collateral account. The private offering memorandum quoted in
the amended complaint contains a similar statement. But an agreement that Petters
Capital would “direct” the retailers, who were not parties to the collateral-account
agreement, to make the deposits into the collateral account provides no indication of
whether the retailers had agreed or would agree to this course of action. Varga also
relies on the portion of the collateral-account agreement that states that Palm Beach
Finance “has requested that . . . all collections received from [retailers] and proceeds
of such inventory and accounts receivable be . . . remitted by wire transfer directly to”
the collateral account. (emphasis added) However, the use of the word “requested”
by Palm Beach Finance—the party through which the Palm Beach Funds’ money
flowed—indicates that no agreement had been reached on whether the direct payment
system was, in fact, mandatory. See Webster’s Third New International Dictionary
1929 (2002) (defining “request” as “to ask (as a person or an organization) for
something”). Moreover, neither of the above-quoted provisions impose any duty on
U.S. Bank to ensure that the retailers made their deposits directly into the collateral
account. Consequently, far from mandating the direct payment system, the portions
of the collateral-account agreement and the private offering memoranda on which
Varga relies actually indicate that the direct payment system was not mandatory.
Varga also contends that U.S. Bank acquired knowledge of the breach of
fiduciary duty from its review of the Palm Beach Funds’ marketing and due-diligence
materials. Because these documents are not before the court at this procedural
juncture, Varga asserts that we must accept the truth of his allegation that these
documents “required” the retailers to make deposits directly into the collateral
account. Even if these documents did so state, they would be inconsistent with the
-8-

-- 8 of 14 --

collateral-account agreement, the document that specified U.S. Bank’s duties in
relation to the collateral account. As noted above, by executing the collateral-account
agreement, Palm Beach Finance and Petters Capital, among others, agreed to allow,
and in fact required, U.S. Bank to accept incoming funds from a source other than a
retailer. U.S. Bank is entitled to rely on the specific provisions in its contract in the
face of alleged statements in ancillary documents, like the marketing and due-
diligence documents at issue here, to determine what conclusion to draw from the fact
that the direct payment system was not being followed. Cf. Witzman, 601 N.W.2d at
188 (providing that “the relationship between the defendant and the primary
tortfeasor” as well as “the nature of the primary tortfeasor’s activity” are permissible
considerations when ascertaining defendant’s knowledge of a breach of fiduciary
duty). Therefore, Varga has not alleged plausibly that U.S. Bank knew from its
review of the documents described above that Prevost, Harrold, and PBCM’s actions
constituted a breach of fiduciary duty to the Palm Beach Funds.
Second, Varga relies on his assertion that, no later than December 2006, U.S.
Bank began re-coding the account statements for the collateral account to identify
retailers, not Petters Company, as the source of the funds deposited into the collateral
account. U.S. Bank, it is alleged, took this step at the direction of Prevost and
Harrold. From these instructions, Varga contends that U.S. Bank inferred that
Prevost, Harrold, and PBCM were breaching their fiduciary duties by wrongfully
concealing the noncompliance with the direct payment system from the Palm Beach
Funds. We disagree. The context within which the re-coding instructions to U.S.
Bank were made is key. For approximately the previous four years—that is, from
2002 until about December 2006—the account statements correctly reported that
Petters Company, not a retailer, made the deposits into the collateral account.
Inferring a wrongful scheme to conceal the noncompliance with the direct payment
system when this fact had been fully disclosed for approximately four years without
any questions from the recipients of the account statements is simply not plausible.
See Iqbal, 556 U.S. at 678. As the district court correctly summarized, under these
-9-

-- 9 of 14 --

circumstances, “it is hard to understand why U.S. Bank should have understood [the
re-coding] as a breach of fiduciary duty, ‘somehow retroactively conceal[ing]’ the
source of the payments from the [Palm Beach Funds].” (second alteration in original).
Varga further contends that U.S. Bank’s act of re-coding the account statements
amounted to substantial assistance of a breach of fiduciary duty. In order to provide
substantial assistance, “[t]he defendant must have some degree of knowledge that his
actions are aiding the primary violator.” Camp, 948 F.2d at 460; see Witzman, 601
N.W.2d at 188 (relying on Camp and explaining that “defendant’s state of
mind . . . come[s] into play” when determining whether conduct constitutes
substantial assistance). “[S]ome element of blameworthiness” must be present in the
defendant’s assistance. Camp, 948 F.2d at 460. Consequently, conduct that
inadvertently advances the breach of a fiduciary duty does not amount to substantial
assistance. Id. While U.S. Bank’s re-coding of the account statements might be
consistent with a recognition that it was helping to mislead the recipients of the
account statements or otherwise aiding a breach of fiduciary duty, Varga’s allegations
fail to raise more than a sheer possibility of misconduct. See Iqbal, 556 U.S. at 678
(“The plausibility standard . . . asks for more than a sheer possibility that a defendant
has acted unlawfully.” (quoting Twombly, 550 U.S. at 556)); Ritchie v. St. Louis
Jewish Light, 630 F.3d 713, 717 (8th Cir. 2011) (“The facts pleaded . . . do not permit
us to infer more than the mere possibility of misconduct. Thus, [the] complaint
merely alleged, but did not show, that [plaintiff] is entitled to relief.”).
Considering the facts as alleged by Varga, the only plausible inference to be
drawn from U.S. Bank’s re-coding of the account statements is that U.S. Bank simply
was following a customer’s directions for reporting the ultimate source of the
incoming funds into the collateral account. When U.S. Bank agreed to re-code the
account statements, it knew that the recipients of these statements had known for
approximately four years that Petters Company was the source of the incoming funds
into the collateral account. Moreover, the collateral-account agreement informed
-10-

-- 10 of 14 --

U.S. Bank of the fact that Petters Capital, a wholly owned entity of Petters Company,
may be depositing the funds that it received from the retailers into the collateral
account. The collateral-account agreement also describes the incoming deposits to
the collateral account as “all payments owing to [Petters Capital] with respect to the
sales of inventory.” Consequently, in the absence of further allegations about the
substance of the re-coding instructions to U.S. Bank or any allegation about U.S.
Bank’s knowledge of how Prevost, Harrold, and PBCM intended to use the account
statements, U.S. Bank could only plausibly understand that it was assisting its
customer with reporting the ultimate source (retailers), rather than the intermediate
source (Petters Company), of the incoming funds into the collateral account.
Accordingly, Varga has not alleged plausibly that U.S. Bank inferred that it was
assisting with any sort of concealment or otherwise furthering a breach of fiduciary
duty by Prevost, Harrold, and PBCM. See Iqbal, 556 U.S. at 678.
Finally, Varga relies on his assertion that U.S. Bank employees falsely told
individuals associated with the Palm Beach Funds that the direct payment system was
being followed. Although Varga contends that misrepresentations like this occurred
on multiple occasions, the amended complaint identifies only one specific instance:
a misrepresentation by U.S. Bank employee Caruth to Spring, a third-party marketer
for the Palm Beach Funds and an investor in Petters Company’s promissory notes.
Caruth was Palm Beach Finance’s “main contact” at U.S. Bank. Varga primarily
argues that Caruth’s misstatement constitutes substantial assistance. However, Varga
has not alleged that Caruth knew that his statement to Spring was false. Absent such
an allegation, Varga’s argument for substantial assistance necessarily fails. See
Camp, 948 F.2d at 460 (explaining that defendant’s conduct must have “some
element of blameworthiness”); E-Shops Corp., 678 F.3d at 664 (“There are no factual
allegations that [the bank] knew the information it processed . . . [was] false at the
time of receipt.”); see also Topchian v. JPMorgan Chase Bank, N.A., --- F.3d ---,
2014 WL 3703995, at *7 (8th Cir. July 28, 2014) (“The facts that [the plaintiff] has
alleged might be consistent with [a bank executive] having known that his statement
-11-

-- 11 of 14 --

was false, but the alleged facts are equally consistent with a scenario in which [the
bank executive] fully and reasonably believed that his statement was true.”).
Moreover, even if we can infer that Caruth knew that his statement was false, there
are no allegations from which we can infer that Caruth understood or even should
have understood that his misstatement aided Prevost, Harrold, and PBCM’s breach
of fiduciary duty to the Palm Beach Funds. See Camp, 948 F.2d at 460 (“The
defendant must have some degree of knowledge that his actions are aiding the
primary violator.”).
Varga’s further assertion that, at unspecified times, unnamed U.S. Bank
employees made misstatements to unnamed individuals associated with the Palm
Beach Funds fares no better. Not only does Varga fail to allege that the unnamed
U.S. Bank employees knew that their statements were false, but the amended
complaint lacks any indication of whether these employees had access to records
regarding the collateral account or whether they understood or even should have
understood that their statements were aiding a breach of fiduciary duty by Prevost,
Harrold, and PBCM. These allegations are therefore insufficient to state a plausible
claim. See C.N. v. Willmar Pub. Schs., Indep. Sch. Dist. No. 347, 591 F.3d 624, 634
(8th Cir. 2010) (rejecting allegations that misconduct occurred “on unspecified dates
and under circumstances not described” because “[s]uch vague allegations neither
provide [defendant] with fair notice of the nature of [plaintiff’s] claims and the
grounds upon which those claims rest nor plausibly establish [plaintiff’s] entitlement
to any relief”); Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)
(“[S]ome factual allegations may be so indeterminate that they require ‘further factual
enhancement’ in order to state a claim.” (quoting Iqbal, 556 U.S. at 678)).
Considering U.S. Bank’s knowledge and assistance in tandem, see Witzman,
601 N.W.2d at 188, we agree with the district court that Varga has not stated a
plausible claim. We consequently affirm the grant of U.S. Bank’s motion to dismiss
Varga’s claim for aiding and abetting a breach of fiduciary duty.
-12-

-- 12 of 14 --

B. Negligence
Varga also brought claims against U.S. Bank for willful and wanton negligence
and for gross negligence. In order to succeed on these claims, Varga must, among
other things, allege the existence of a duty. See Louis v. Louis, 636 N.W.2d 314, 318
(Minn. 2001). Under Minnesota law, whether a duty exists is generally an issue of
law. See id.
Varga asserts that U.S. Bank had a duty to provide information to the Palm
Beach Funds about the flow of funds in and out of the collateral account. Varga
bases this argument on Klein v. First Edina National Bank, 196 N.W.2d 619 (Minn.
1972) (per curiam), which held that when a bank transacts business with a customer,
the bank “has no special duty to counsel the customer and inform him of every
material fact relating to the transaction . . . unless special circumstances exist.” Id.
at 623. One such special circumstance is “where the bank knows or has reason to
know that the customer is placing his trust and confidence in the bank and is relying
on the bank so to counsel and inform him.” Id.
Relying on Klein, Varga argues only that special circumstances existed here
because U.S. Bank knew or had reason to know that the Palm Beach Funds placed
their trust and confidence in U.S. Bank to counsel and inform them about whether the
direct payment system was being followed. U.S. Bank knew or had reason to know
of this reliance, Varga argues, based on the escrow-account agreement and the
collateral-account agreement as well as U.S. Bank’s role in the Palm Beach Funds’
investment in Petters Company’s promissory notes. The parties’ contracts are of no
help to Varga. Neither the escrow-account agreement, which defined U.S. Bank’s
duties to the Palm Beach Funds, nor the collateral-account agreement, which
specifically disclaimed U.S. Bank’s duties to third parties like the Palm Beach Funds,
evidence the special circumstances contemplated by Klein. Moreover, as noted
-13-

-- 13 of 14 --

above, the collateral-account agreement expressly required U.S. Bank to accept
deposits that did not comply with the direct payment system.
Nor does the allegation that the Palm Beach Funds referred its investors and
third-party marketers to U.S. Bank to have their questions about the escrow and
collateral accounts answered establish the special circumstances contemplated by
Klein. The relevant contracts establish what can only be described as an ordinary,
arm’s-length commercial relationship between U.S. Bank and the Palm Beach Funds,
and “[c]ourts applying Minnesota law have been reluctant to impose a duty to
disclose material facts in arm’s-length business transactions between commercial
entities.” Driscoll v. Standard Hardware, Inc., 785 N.W.2d 805, 813 (Minn. Ct. App.
2010). Moreover, Varga has not referred us to any Minnesota case law, and we have
not located any on our own, that imposes a duty on a bank to inform its customer of
material information under circumstances that are remotely similar to those present
here. Indeed, the primary case that Varga cites in favor of imposing such a
duty—Klein—actually undermines his argument. The Klein court found that a bank
did not have a duty to inform a customer of material information notwithstanding the
twenty-year relationship between the bank and the customer. 196 N.W.2d at 623; see
Norwest Bank Hastings v. Clapp, 394 N.W.2d 176, 179 (Minn. Ct. App. 1986) (“If
[the Klein plaintiff’s] twenty-year relationship with her banker was insufficient to
establish reliance, certainly [meeting your banker twice and having one short meeting
with him] was insufficient.”). We thus affirm the grant of U.S. Bank’s motion to
dismiss Varga’s negligence claims.
III. Conclusion
For the reasons set forth above, we affirm.
______________________________
-14-

-- 14 of 14 --