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higher than market price), cert. denied, 502 U.S. 1122,
112 S. Ct. 1244, 117 L. Ed. 2d 477 (1992). In
addition, on April 25, 1986, three weeks after FMC
fully disclosed the projections and well after Boesky
divested his interest in the company, FMC stock was
still trading around $97 per share. Furthermore, the
"stub" share which was valued by FMC at about $17 per
share, actually opened at $19.25 per share, indicating
that the stock probably was still slightly undervalued
in the transaction despite the increased cash payout.
See FMC, 825 F. Supp. at 634. In the face of this
proof that the $97 per share figure was fair, FMC
produced no evidence to the contrary. The absence of
evidence that the $220 million increased payout
constituted something other than FMC giving its public
shareholders full consideration for their stock is
fatal to FMC's recovery of these amounts. * * *
As our quotations from the court’s opinion show, the Court
of Appeals for the Second Circuit did not merely hold that a
corporation can never be damaged when it distributes corporate
assets to the beneficial owners of those assets; i.e., the
shareholders. The essence of the court’s decision is that
petitioner failed to prove that it paid more than a fair price
for old FMC stock. As mentioned above, the absence of sufficient
proof in the prior case precludes any claim by petitioner here
that it sustained a theft loss as a result of the additional $10
per share cash payment to its public shareholders. Petitioner
simply gave its public shareholders something of value for equal
value in return.5
5 Petitioner points to the statement of the Court of Appeals
for the Seventh Circuit in FMC Corp. v. Boesky, 852 F.2d 981, 991
(7th Cir. 1988), that Brown “stole to put it bluntly”. The mere
fact that Brown “stole” the information does not mean, as
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