FMC Corporation and Subsidiaries - Page 19




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          the facts at hand.  Our application of collateral estoppel is               
          driven by the critical fact that the other courts had before them           
          the value of the old FMC stock at the time of petitioner’s                  
          recapitalization and that we have the same issue here.                      
               Our conclusion that the value of the old FMC stock was and             
          is at issue in the respective cases is supported by our reading             
          of the relevant allegations in petitioner’s pleadings in the                
          respective cases.  Petitioner’s current allegations as to the               
          theft loss are in all material respects the same as its                     
          corresponding prior allegations as to damages.  The petition                
          alleges as to the claimed theft loss that:  (1) Boesky obtained             
          confidential information about its recapitalization and made a              
          series of large, illegal trades in old FMC stock, (2) “Boesky's             
          illegal activities manipulated the price of FMC shares by                   
          artificially increasing it through market misinformation,"                  
          including the filing of a false Schedule 13D, and (3) "the                  
          increased share price damaged FMC by fraudulently causing                   
          management to revise the recapitalization plan and pay out                  
          $217,649,340 of additional cash."   The petition alleges further            
          that Boesky's illegal conduct artificially inflated the price of            
          old FMC stock, causing petitioner to revise the first plan and to           
          pay to its shareholders $217,649,340 more than it had originally            
          planned.                                                                    








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