Robert Mark Levin and KARL KORTE derivatively, on behalf of Tyco International Ltd., , Plaintiffs, against L. Dennis Kozlowski, LORD MICHAEL ASHCROFT, JOSHUA M. BERMAN, RICHARD S. BODMAN, JOHN F. FORT, III, STEPHEN W. FOSS, WENDY E. LANE, JAMES S. PASMAN, JR., W. PETER SLUSSER, MARK H. SWARTZ, JOSEPH F. WELCH, FRANK E. WALSH, JR. and MARK BELNICK, Defendants., 13 Misc. 3d 1236(A)

Summary

The court stated that plaintiffs' claims in the current case were substantially identical to the claims raised in a federal district court in New Hampshire. There, the federal court had decided that the current board of directors was not disqualified and that individual shareholders thus did not have standing to prosecute derivative claims. Thus, under the doctrine of collateral estoppel, plaintiffs were precluded from relitigating that issue in the present court. Although the federal and the present case involved different plaintiffs, the present plaintiffs, as shareholders in privity with the plaintiff in the federal action, had had a full and fair opportunity to litigate the issue of standing in the federal action. Furthermore, plaintiffs' counsel in the current litigation had been actively involved in the federal suit. Contrary to plaintiffs' argument, a ruling on standing was a decision on the merits for purposes of preclusion. Plaintiffs' argument that the issues were not ...