I think the money quote in
eBay v Newmark is more like:
"Throughout this dispute, I have repeatedly read and listened to what look and sound like breach of contract arguments, which eBay uses not to prove Jim and Craig breached a contract, but rather to prove Jim and Craig breached their fiduciary duties. This has been an odd exercise, and I admit I am puzzled by eBay’s decision not to bring a breach of contract claim or, more promising perhaps, a claim for breach of the implied covenant, considering eBay expended significant effort arguing that the 2008 Board Actions violated both the technical provisions and the spirit of the SPA and the Shareholders’ Agreement. The fact remains, however, that eBay asserted neither a breach of contract claim nor a claim for breach of the implied covenant."
The presiding judge in this very case — whom an article I read on it described as, "one of the most influential corporate jurists in the country" — doesn't think eBay's theory of the case is the right one. It's the only one they brought (to the exclusion of the arguments he thought more apt), though, so he can't rule on them.
That is: eBay structured their minority shareholder agreement with Newmark, et al, and then their case over breach of that agreement, to make it look like a fiduciary duty claim, without offering the court a more accurate alternative.
It's, IMO, a bit specious to take something that was structured specifically so as to be construed in a way that is at odds with the reality of the situation — as specifically cited by the most relevant authority possible, in context — as evidence of the conclusion they (eBay) want you to reach.
EDIT: Though not entirely apt, it's a bit like a prosecutor bringing only a murder charge against a defendant, and not offering the jury the choice to convict instead on a "lesser included offense" like manslaughter, or negligent homicide, or something. Yes, there's clearly a tort in play here, but eBay's insistence that it's this specific tort doesn't make it so.