FMC Corporation and Subsidiaries - Page 31




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          summary judgment at which numerous witnesses testified.  Not only           
          did petitioner have a full and fair opportunity to litigate the             
          damages issue in the prior case, it had every incentive, as the             
          plaintiff in that case, to litigate the issue aggressively.  The            
          fact that petitioner may have settled with Boesky or otherwise              
          lacked an incentive to litigate against Boesky because he could             
          not pay the sought-after damages does not mean that petitioner              
          also lacked the same incentive as to Goldman.  We conclude that             
          no special circumstances exist to cause us to exercise our                  
          discretion to warrant an exception to the normal rules of                   
          preclusion.                                                                 
               We hold that petitioner is collaterally estopped from                  
          deducting a theft loss in an amount equal to the additional cash            
          payment of $217,649,340.  Petitioner’s petition to this Court to            
          allow it to deduct such a theft loss is merely a request to                 
          relitigate the applicable value of the old FMC stock in an                  
          attempt to ascertain a value that will compel the Treasury to               
          subsidize petitioner’s redemption of its shares from its public             
          shareholders.  Petitioner’s position in this Court, however,                
          continues to be essentially the same as the position that it                
          advanced in its prior case; to wit, that it was harmed because              
          its shareholders received too much.  As recognized by Judge                 
          Pollack when he rejected that position, the position is “a                  
          remarkable proposition that was twice soundly rejected by the               






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