Levin v Kozlowski

Levin v Kozlowski 2007 NY Slip Op 08854 [45 AD3d 387] November 15, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Friday, April 25, 2008

Robert Mark Levin et al., Appellants,
v
L. Dennis Kozlowski et al., Respondents.

—[*1] Wolf Haldenstein Adler Freeman & Herz LLP, New York City (Daniel W. Krasner of counsel), for appellants.

Debevoise & Plimpton LLP, New York City (Shannon Rose Selden of counsel) and Stillman, Friedman & Shechtman, P.C., New York (Michael J. Grudberg of counsel), for L. Dennis Kozlowkski and Mark H. Swartz, respondents.

Cadwalader, Wickersham & Taft LLP, New York City (Gregory A. Markel of counsel), for Lord Michael Ashcroft, Joshua M. Berman, John F. Fort, III, James S. Pasman, Jr., W. Peter Slusser and Joseph F. Welch, respondents.

Latham & Watkis LLP, New York City (Sheri E. Hametz of counsel), for Stephen W. Foss, respondent.

Weil, Gotshal & Manges LLP, New York City (Ashley R. Altschuler of counsel), for Richard S. Bodman and Wendy E. Lane, respondents.

Stroock & Stroock & Lavan LLP, New York City (Laurence Greenwald of counsel), for Frank E. Walsh, Jr., respondent.

Steptoe & Johnson, LLP, New York City (Lara E. Romansic of counsel), for Mark A. Belnick, respondent.

Cravath, Swaine & Moore LLP, New York City (Francis P. Barron of counsel), for Tyco International Ltd., respondent.

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered November 14, 2006, which granted defendants' motions to dismiss the complaint pursuant to CPLR 3211 (a) (5), unanimously affirmed, with costs.

In this shareholder derivative action against nominal defendant Tyco International Ltd. [*2]and various Tyco officers and directors, plaintiffs are collaterally estopped from arguing whether Bermuda law governs their claims, which are the same as those brought in another shareholder derivative lawsuit in federal court, viz., In re Tyco Intl., Ltd. (340 F Supp 2d 94 [D NH 2004]). The issue of whether Bermuda law applies was raised, decided, and material in the federal action (see id. at 96; see generally Pinnacle Consultants v Leucadia Natl. Corp., 94 NY2d 426, 432 [2000]), and plaintiffs had a full and fair opportunity to litigate that issue (see generally Pinnacle, supra). Plaintiffs' counsel appeared as "Of Counsel" on some 20 documents in the federal action, and plaintiffs voluntarily stayed this action in favor of the federal action.

The federal plaintiff's strategy was to concede that Bermuda law applied but to argue that Bermuda law did not bar her claims. Having lost that battle, plaintiffs will not be permitted a second bite at the apple to argue that they state viable claims under New York law (see generally NatTel LLC v SAC Capital Advisors, 2005 WL 2253756, *8, 2005 US Dist LEXIS 20179, *24 [D Conn 2005], affd 2006 WL 957342, 2006 US App LEXIS 9460 [2d Cir 2006]). The rights of all Tyco shareholders "should be determined on a [corporation]-wide basis rather than in consequence of the litigants' choice of forum" (Greenspun v Lindley, 36 NY2d 473, 477 [1975]; see also Hart v General Motors Corp., 129 AD2d 179, 184 [1987], lv denied 70 NY2d 608 [1987]).

Were we to reach the merits of the issue of which jurisdiction's law should be applied, we would hold that the law of Bermuda, where Tyco was incorporated, is applicable since the question of corporate governance is at issue (Hart v General Motors Corp., supra), and we do not believe Airtran N.Y., LLC v Midwest Air Group, Inc. (46 AD3d 208 [2007]) would, in these circumstances, dictate a different result. Concur—Friedman, J.P., Sullivan, Buckley and Malone, JJ. [See 13 Misc 3d 1236(A), 2006 NY Slip Op 52142(U).]