09-0479-cv
Lasker v. UBS Secs. LLC

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                AMENDED SUMMARY ORDER
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CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
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ORDER M UST SERVE A COPY OF TH AT SUM M ARY ORDER TOGETHER W ITH THE PAPER IN
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       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 23 rd day of December, two thousand nine.

PRESENT:            RALPH K. WINTER,
                    REENA RAGGI,
                    DEBRA ANN LIVINGSTON,
                                   Circuit Judges.

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HOWARD LASKER,
                                 Plaintiff-Appellant,
                          v.                                       No. 09-0479-cv

UBS SECURITIES LLC, UBS LOAN FINANCE
LLC,
                     Defendants-Appellees.

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APPEARING FOR APPELLANT:                          DAVID C. KATZ, Weiss & Lurie (Joseph H.
                                                  Weiss, Weiss & Lurie, New York, New York,
                                           Jules Brody, Patrick K. Slyne, Stull, Stull &
                                           Brody, New York, New York, on the brief), New
                                           York, New York.

APPEARING FOR APPELLEES:                   JOSEPH J. FRANK, Latham & Watkins LLP
                                           (Eric S. Olney, Latham & Watkins LLP, New
                                           York, New York, J. Scott Ballenger, J. Christian
                                           Word, Latham & Watkins LLP, Washington,
                                           D.C., on the brief), New York, New York.


       Appeal from the United States District Court for the Eastern District of New York

(Charles P. Sifton, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court entered on January 9, 2009, is AFFIRMED.

       Plaintiff Howard Lasker, on behalf of himself and a putative class of shareholders in

Genesco, Inc., sued defendants UBS Securities LLC and UBS Loan Finance LLC

(collectively, “UBS”) in Tennessee Chancery Court for procurement of breach of contract

(the “Tennessee action”).1 The case was dismissed. Two months later, Lasker sued UBS in

New York,2 alleging tortious interference with a business relationship under Tennessee law

(the “New York action”). Lasker here appeals the dismissal of the New York action pursuant

to Fed. R. Civ. P. 12(c), a ruling we review de novo, accepting all factual allegations in the


       1
       The complaint also demanded specific performance of the proposed merger between
Genesco and Front Line, Inc., naming Front Line as defendant in a claimed breach of the
Merger Agreement.
       2
         Lasker filed the action in New York Supreme Court, Kings County. UBS removed
the action to the United States District Court for the Eastern District of New York.

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complaint as true and drawing all reasonable inferences in Lasker’s favor. See Johnson v.

Rowley, 569 F.3d 40, 43 (2d Cir. 2009). Lasker argues that the district court erred in

concluding that his tortious interference claim was barred by res judicata. For the reasons

set forth below, we disagree. We assume the parties’ familiarity with the facts and record

of prior proceedings, which we reference only as necessary to explain our decision to affirm.

       1.      Choice of Law

       A federal court must give a prior state-court judgment “the same preclusive effect as

would be given that judgment under the law of the State in which the judgment was

rendered.” Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984); see also

28 U.S.C. § 1738. Accordingly, Tennessee law governs our analysis of UBS’s res judicata

defense.

        2.     Res Judicata

       Tennessee views res judicata as a claim preclusion doctrine that “requires parties to

raise in a single lawsuit all the grounds for recovery arising from a single transaction or series

of transactions that can be brought together.” Lien v. Couch, 993 S.W.2d 53, 56 (Tenn. Ct.

App. 1998); see also Creech v. Addington, 281 S.W.3d 363, 376 (Tenn. 2009) (observing

that res judicata bars second suit “with respect to all issues which were or could have been

litigated in the former suit”). A party “asserting a res judicata defense must demonstrate that

(1) a court of competent jurisdiction rendered the prior judgment, (2) the prior judgment was



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final and on the merits, (3) the same parties or their privies were involved in both

proceedings, and (4) both proceedings involved the same cause of action.” Lien v. Couch,

993 S.W.2d at 56.

                a.     Both Claims Were Available During the Tennessee Action

       Lasker argues that he could not have included his tortious interference claim in the

Tennessee action because he lacked knowledge of the facts necessary for that claim. We are

not persuaded. Lasker’s Tennessee complaint alleged, inter alia, that UBS (1) had no basis

for claiming that a “Material Adverse Effect” had occurred at Genesco, Compl. ¶¶ 73, 75,

79, (2) was working to “undermine and sabotage the closing of the Merger,” Id. ¶ 5, and (3)

had attempted “to create a false impression that Genesco [was] improperly withholding

financial information,” id. ¶ 105. Like the district court, we conclude that these allegations

were sufficient to state the “improper means” element of a tortious interference claim.3



       3
           Under Tennessee law, a claim of tortious interference requires proof of:

             (1) an existing business relationship with specific third parties or a
             prospective relationship with an identifiable class of third persons; (2)
             the defendant’s knowledge of that relationship and not a mere
             awareness of the plaintiff’s business dealings with others in general;
             (3) the defendant’s intent to cause the breach or termination of the
             business relationship; (4) the defendant’s improper motive or
             improper means; and finally, (5) damages resulting from the tortious
             interference.

Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 701 (Tenn. 2002) (footnotes and
citations omitted) (emphasis in original).

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Indeed, the New York action rested on strikingly similar allegations, if in slightly different

form and augmented by new facts.

       Lasker’s argument that UBS’s fraud counterclaim against Genesco provided a new

basis for his tortious interference claim fails because (1) the fraud counterclaim alleged

failure to disclose material financial information, an allegation already challenged by Lasker

in the then-pending Tennessee action; and (2) Lasker could have amended his Tennessee

complaint to reference the fraud counterclaim, which was filed two weeks before dismissal

of the Tennessee action. The question is not whether new facts ultimately strengthened

Lasker’s tortious interference claim, but rather whether the claim “reasonably could have

been litigated” in the Tennessee action. Heyliger v. State Univ. and Comm. Coll. Sys. of

Tenn., 126 F.3d 849, 854 (6th Cir. 1997) (internal quotation marks omitted) (emphasis in

original). For the reasons stated, we answer that question in the affirmative.

              b.     Dismissal on the Merits

       Lasker argues that the chancery court’s dismissal of the Tennessee action was not on

the merits because the ruling did not “reflect on the defendants’ innocence or lack of

responsibility for the alleged conduct.” Appellant’s Br. at 41. While this may be the

standard for establishing the “favorable termination” element of a malicious prosecution

claim, see Parrish v. Marquis, 172 S.W.3d 526, 531 (Tenn. 2005), it is not the standard for

determining whether a dismissal was an adjudication on the merits. “In Tennessee, any



                                              5
dismissal of a claim other than a dismissal for lack of jurisdiction, for lack of venue, or for

lack of an indispensable party ‘operates as an adjudication upon the merits,’ unless the trial

court specifies otherwise in its order for dismissal.” Creech v. Addington, 281 S.W.3d at 378

(quoting Tenn. R. Civ. P. 41.02(3)). Here, UBS moved to dismiss the Tennessee action for

failure to state a claim pursuant to Tenn. R. Civ. P. 12.02(6). The Chancery Court granted

the motion without reference to jurisdiction, venue, or indispensable parties, and without

indication that the ruling was not on the merits. Accordingly, we conclude that dismissal of

the Tennessee action was on the merits.

              c.     Same Cause of Action

       Finally, Lasker argues that UBS’s res judicata defense fails because the procurement

of breach and tortious interference claims are distinct causes of action, each depending on

“different issues, facts and evidence.” Appellant’s Br. at 50. This misperceives the relevant

inquiry. Two suits “shall be deemed the same ‘cause of action’ for purposes of res judicata

where they arise out of the same transaction or a series of connected transactions.” Creech

v. Addington, 281 S.W.3d at 381. Both the Tennessee and New York actions arose out of

the series of events leading up to and following the aborted merger between Genesco and

Finish Line. Therefore, the two suits arise from the same cause of action.

       We have considered all of the plaintiff-appellant’s remaining arguments and conclude

that they are without merit.



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Accordingly, the judgment of the district court is AFFIRMED.

                   FOR THE COURT:
                   CATHERINE O’HAGAN WOLFE, Clerk of Court


                   By:




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