Estate of Mary D. Maggos - Page 20

                                       - 20 -                                         
          In Rissetto v. Plumbers & Steamfitters Local 343, supra at 601,             
          the court stated: “This Circuit has not yet had occasion to                 
          decide whether to follow the ‘majority’ view or the ‘minority’              
          view.”  (Fn. ref. omitted.)  In that case, like the instant case,           
          it was unnecessary to decide which view is correct.  The court in           
          Rissetto had to consider whether the obtaining of a favorable               
          settlement in the earlier proceeding would be sufficient to                 
          satisfy the “majority view” requirement that the inconsistent               
          statement was actually adopted by the court in the earlier                  
          litigation.  The court stated:                                              
               We are thus confronted with the question whether                       
               obtaining a favorable settlement is equivalent to                      
               winning a judgment for purposes of applying judicial                   
               estoppel.  We answer in the affirmative.  In our view,                 
               the fact that plaintiff prevailed by obtaining a                       
               favorable settlement rather than a judgment should have                
               no more relevance than in the context of civil rights                  
               attorney’s fees awards, i.e., none whatever.  See Maher                
               v. Gagne, 448 U.S. 122, 100 S.Ct. 2570 * * * (1980)                    
               (party who obtains consent decree is “prevailing party”                
               no less than one who obtains a judgment on the merits).                
               [Id. at 604-605; fn. ref. omitted; emphasis added.]                    
               Petitioner obtained a substantial settlement of the District           
          Court litigation on the basis of the factual assertion that                 
          decedent was entitled to the legal or beneficial ownership of               
          56.7 percent of the issued and outstanding capital of PCAB.  In             
          the District Court litigation, decedent had asserted a value of             
          her interest on the basis of full ownership rights.  Petitioner’s           
          expert report filed in the District Court litigation valued her             
          interest in PCAB at the time of the 1987 redemption between                 

Page:  Previous  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  Next

Last modified: May 25, 2011