FMC Corporation and Subsidiaries - Page 21




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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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