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$217,649,340 additional cash payment (the claimed theft loss) and
Goldman’s $17.5 million fee.
We conclude that the issue here as to value is the same as
in the prior case. Accordingly, we hold that this element of
collateral estoppel is present in the instant case.
2. Issue Actually Litigated and Essential to Prior Decision
Petitioner asserts that the issue of whether it suffered a
theft loss on account of Boesky’s insider trading was not
actually litigated in the prior case because, petitioner
contends, it was not necessary to a holding there. Petitioner
recognizes that: (1) Judge Pollack stated that petitioner had
presented no evidence that the value of the old FMC shares was
less than the $97 that it ultimately paid for those shares and
(2) the Court of Appeals for the Second Circuit made similar
statements as to that value. Petitioner discredits the courts’
statements on the value of old FMC stock as dicta.
We disagree with petitioner that the courts’ statements on
value are dicta. First, as to the District Court, Judge
Pollack’s discussion of value was necessary to his holding there,
it “received the full and careful consideration of the court that
uttered it”, and it “could [not] have been deleted without
seriously impairing the analytical foundations of the holding”.
Sarnoff v. Am. Home Prods. Corp. 798 F.2d 1075, 1084 (7th Cir.
1986) (“A dictum is a statement in a judicial opinion that could
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