Deutsche Bank AG v. Vik

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Deutsche Bank AG v. Vik

DEUTSCHE BANK AG v. CAROLINE

VIK ET AL.

(AC 48622)

Elgo, Clark and Wilson, Js.

Syllabus

The plaintiff bank appealed from the trial court’s judgment granting the motion for summary judgment filed by the defendants, A and C, on the plaintiff’s complaint alleging, inter alia, tortious interference with business expectancy. The plaintiff claimed, inter alia, that the court improperly determined that the doctrine of res judicata barred the plaintiff’s claims. Held:

The trial court erred in granting the defendants’ motion for summary judgment as to C on the ground that that the plaintiff’s complaint was barred by the doctrine of res judicata, as the defendants waived that defense because they did not plead the special defense with respect to C before the court and expressly indicated that they were not asserting such a defense on her behalf, and the court erred in its conclusion that C was in privity with A for res judicata purposes.

The trial court improperly concluded that no genuine issue of material fact existed as to whether res judicata barred the plaintiff’s claims with respect to A, as the court improperly concluded that the present case involved the same underlying claims as a previous action for res judicata purposes and that the plaintiff had a full and fair opportunity to fully litigate the claims advanced in the present action in the previous action.

This court concluded that the trial court improperly determined that the doctrine of res judicata barred the plaintiff’s claims of tortious interference with business expectancy and violations of the Connecticut Unfair Trade Practices Act (§ 42-110a et seq.), as the public policy goals of the doctrine were outweighed by the plaintiff’s interest in the vindication of a just claim.

The trial court improperly concluded that the doctrine of collateral estoppel applied to the issues in present action, as the present action was predicated on different conduct regarding a different transaction than the transactions at issue in the previous action, the court’s adjudication of the issue in the previous action was not necessary to the judgment in that action, and the requisite identity of issues between the previous action and the present action necessary to advance a collateral estoppel defense was lacking.

Argued March 16—officially released July 21, 2026

Procedural History

Action to recover damages for, inter alia, tortious

interference with business expectancy, and for other

relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Ozalis, J.,

Deutsche Bank AG v. Vik

granted the defendants’ motion for summary judgment

and rendered judgment thereon, from which the plaintiff

appealed to this court. Reversed; further proceedings.

David G. Januszewski, with whom were Thomas Goldberg, and, on the brief, Sheila C. Ramesh, pro hac vice,

Sesi V. Garimella, pro hac vice, John W. Cerreta, and

Kayla M. Sinko, for the appellant (plaintiff).

Monte E. Frank, with whom were Dana M. Hrelic

and Meagan A. Cauda, for the appellees (defendants).

Opinion

ELGO, J. This is the latest chapter in a long running

saga regarding the collection of a foreign judgment.

The plaintiff, Deutsche Bank AG, appeals from the summary judgment rendered by the trial court in favor of

the defendants, Caroline Vik and Alexander Vik.1 On

appeal, the plaintiff contends that the court improperly

determined that (1) the doctrine of res judicata barred its tortious interference with business expectancy and Connecticut Unfair Trade Practices Act (CUTPA) claims; see

General Statutes § 42-110a et seq.;2 and (2) the doctrine of collateral estoppel barred it from relitigating certain issues. We reverse the judgment of the trial court.

Mindful of the procedural posture of this case, we set

forth the following facts as gleaned from the pleadings,

affidavits, and other proof submitted, viewed in the light most favorable to the plaintiff. See, e.g., Martinelli v.

1

For clarity, we refer to Caroline Vik and Alexander Vik individually by first name and collectively as the defendants in this opinion.

2

CUTPA is “a remedial statute that broadly prohibits unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. . . . The act provides for more robust remedies than those available under analogous common-law causes of action, including punitive damages . . . and attorney's fees and costs, and, in addition to damages or in lieu of damages, injunctive or other equitable relief. . . . [It] establishes a private cause of action, available to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by [General Statutes §] 42-110b.” (Citations omitted; footnote omitted; internal quotation marks omitted.) Marinos v. Poirot, 308 Conn. 706, 712–13, 66 A.3d 860 (2013).

Deutsche Bank AG v. Vik

Fusi, 290 Conn. 347, 350, 963 A.2d 640 (2009). The

plaintiff is a corporation organized under the laws of

Germany, with an office in New York City. Alexander

is a Norwegian national whose primary residence and

domicile has been in Greenwich since 1988. Caroline is

Alexander’s adult daughter and also resides in Greenwich.

Alexander is a billionaire and sophisticated investor

who uses various companies to hold his assets and make

investments on his behalf. Sebastian Holdings, Inc.

(SHI), a corporation formed under the laws of the Turks

and Caicos Islands, is one such company. From 1988

to 2015, Alexander owned 100 percent of the shares of

SHI, was its sole director, and controlled all aspects of its operations and financial transactions.3

SHI became a client of Deutsche Bank (Suisse) SA, a

wholly owned subsidiary of the plaintiff, in 2004. See

Deutsche Bank AG v. Sebastian Holdings, Inc., 346

Conn. 564, 569, 294 A.3d 1 (2023). In 2006, the plaintiff entered into a foreign exchange prime brokerage agreement and various related agreements with SHI to provide

back-office capabilities for foreign exchange trading

conducted by Klaud Said, a portfolio manager for SHI.

Id., 569–70. From 2006 to 2008, SHI was extremely

profitable. Id., 571. Things changed in October 20084

when the plaintiff issued a series of margin calls to SHI.5 Id., 576.

3

As our Supreme Court noted in a related appeal, SHI was “run from an office annex attached to [Alexander’s] home in Greenwich.” Deutsche Bank AG v. Sebastian Holdings, Inc., 346 Conn. 564, 569, 294 A.3d 1 (2023).

4

As our Supreme Court observed in a related appeal, a “global financial crisis unfolded in the autumn of 2008 . . . .” Deutsche Bank AG v. Sebastian Holdings, Inc., 331 Conn. 379, 381, 204 A.3d 664 (2019); see also Parkcentral Global Hub Ltd. v. Porsche Automobile Holdings SE, 763 F.3d 198, 204 (2d Cir. 2014) (“the global financial crisis became increasingly serious in late October 2008”).

5

“A margin call is a demand by a broker that an investor deposit additional cash or securities to eliminate or reduce a margin deficiency. . . . A margin deficiency results when the equity in an investor's account is less than that required by law to support the account’s liabilities. . . . The purpose of margin call rules is to protect brokers from the risks

Deutsche Bank AG v. Vik

On October 7, 2008, Alexander met with the plaintiff’s

bank officials, who informed him that SHI’s holdings

with the plaintiff totaled approximately $974 million.

Id., 572. During the week of October 13, the plaintiff’s

employees that administered SHI’s accounts “scrambled

to properly calculate the risk on . . . [its] trades, which led to . . . massive margin calls during the week ahead.” (Internal quotation marks omitted.) Id., 576. From

October 13 to 17, SHI received multiple margin calls

totaling approximately $511 million, which it paid with

assets held by the plaintiff. Id., 577–78.

Confusion thereafter arose as to the precise amount of

SHI assets held by the plaintiff. As our Supreme Court

recounted: “After satisfying the fifth margin call, due

to the information provided by [the plaintiff] on October 7 indicating total holdings of approximately [$974]

million, [Alexander] thought SHI had several [hundred

million dollars] left in its [accounts with the plaintiff] . . . . [At trial, Alexander’s] experts calculated that assets worth approximately $280 million should have remained

in the [accounts] as of October 21 . . . [a figure that the plaintiff] did not contest . . . .

“Between October 17, and October 21, [2008, the plaintiff] did not make another margin call . . . . [An officer with the plaintiff] stated in [an] internal correspondence that [as of October 21] minimal SHI trades remained in

its system, and everything seeme[d] good . . . . However, at the same time, the team responsible for setting the

margins discovered that the SHI cash balance in [the

plaintiff’s] system was not [accurately] reflecting the

payments being made in connection with SHI’s futures

trading . . . .

associated with insufficiently secured accounts, and to prevent customers from carrying vast exposure in their accounts without adequate capital to cover their positions. . . . If investors fail to meet margin calls in their accounts, their brokers, pursuant to contract, may liquidate their positions to satisfy the margin calls.” (Citations omitted; internal quotation marks omitted.) Levine v. Advest, Inc., 244 Conn. 732, 738 n.4, 714 A.2d 649 (1998).

Deutsche Bank AG v. Vik

“In an internal . . . teleconference on October 22 . . . [the plaintiff’s] officers realized that, because of [a] failure to properly evaluate and enter . . . [the] trades [made by SHI’s portfolio manager], SHI’s account balances had

been overstated by at least . . . $320 million, leaving

SHI underwater by hundreds of millions of dollars. . .

. [The plaintiff’s officers] on the call agreed to tell . . . [Alexander] that they had performed a reconciliation

[that] had identified a shortfall but not to explain [the plaintiff’s] mistakes. The call transcript, however, shows that [they] had not performed a reconciliation; they had

[merely] identified an error in [the plaintiff’s] systems.

“Later on October 22 . . . [Alexander] participated

in two high-level telephone calls with [the plaintiff’s

officials] in which he was informed that the correction

of computational errors in SHI’s accounts revealed

that [there] was in fact [a] deficit and that, as a result, [the plaintiff] was seeking a further margin payment

of $300 million to $350 million. . . . When [the plaintiff] informed . . . [Alexander] that there was a deficit of [approximately $300 million to $350 million] in the

accounts . . . [Alexander] . . . was plainly shocked. When . . . [Alexander] asked how this was possible, [an officer with the plaintiff] told him [the plaintiff] had been counting things possibly slightly incorrectly but did not explain the cause of the error.” (Footnote omitted; internal

quotation marks omitted.) Id., 578–79. Following those

telephone calls, SHI received an additional margin call

from the plaintiff for more than $300 million, which it

did not satisfy. Id., 579–80.

In January 2009, the plaintiff commenced an action

against SHI in the Queen’s Bench Division of the High

Court of Justice of England and Wales to collect amounts

owed pursuant to the unpaid margin call, as well as interest and costs. Id., 580. In response, SHI asserted counterclaims against the plaintiff and various defenses.

Id. Following a trial, the court found in favor of the

plaintiff on its claims for damages and rejected SHI’s

counterclaims and defenses in a 431 page decision issued

Deutsche Bank AG v. Vik

on November 8, 2013. Id. The court rendered judgment

in favor of the plaintiff in the amount of $243,023,089

plus interest (English judgment). Id., 580–81.

When SHI failed to pay that judgment, the plaintiff

commenced an action on December 20, 2013, against

SHI and Alexander in Connecticut to enforce the English judgment (2013 action).6 Id., 581. In its two count

complaint, the plaintiff “sought a declaratory judgment

piercing SHI’s corporate veil and holding [Alexander]

jointly and severally liable with SHI for the English judgment. It also sought to enforce the English judgment

against [Alexander] under the Uniform Foreign MoneyJudgments Recognition Act [(act)], General Statutes §

50a-30 et seq.”7 Id.

While the 2013 action to pierce the corporate veil was

pending, the plaintiff filed a petition in the Oslo Court of Probate, Bankruptcy, and Enforcement in Norway

(Oslo Enforcement Court) to enforce the English judgment in Norway (Norway enforcement action). The

Oslo Enforcement Court issued a decision on April 13,

2016, in which it recognized the English judgment as an

enforceable judgment in Norway. The plaintiff then filed

a petition in the Oslo Enforcement Court to execute a lien on the shares of Confirmit AS (Confirmit), a Norwegian

software company.

6

The plaintiff registered the English judgment with the Connecticut Superior Court on December 10, 2013.

7

That statutory claim was premised on the plaintiff’s veil piercing claim. As the trial court noted in its memorandum of decision in the 2013 action, a party generally cannot be held liable for a foreign judgment under the act unless it was a party to the foreign action. Deutsche Bank AG v. Sebastian Holdings, Inc., Docket No. CV-XX-XXXXXXX-S, 2021 WL 4482154, *26 (Conn. Super. September 7, 2021), aff'd, 346 Conn. 564, 294 A.3d 1 (2023); see also General Statutes § 50a-33 (“a foreign judgment meeting the requirements of section 50a-32 is conclusive between the parties to the extent that it grants or denies recovery of a sum of money”). The court further explained that an exception to that general rule exists, stating: “Connecticut courts have enforced [a foreign] judgment against a person or entity where piercing the corporate veil of the judgment defendant is appropriate.” Deutsche Bank AG v. Sebastian Holdings, Inc., supra, *26. The court thus reasoned that Alexander could be held liable under the act if the plaintiff established its veil piercing claim. Id., *27.

Deutsche Bank AG v. Vik

In 2008, SHI owned 100 percent of the shares of Confirmit. In October 2008, Alexander caused SHI to transfer

approximately one billion dollars of assets out of SHI

(October 2008 transfers). See Deutsche Bank AG v.

Sebastian Holdings, Inc., supra, 346 Conn. 575 n.3.

Among those assets were all of the shares of Confirmit,

which were transferred to Alexander’s personal account

on October 15, 2008. Alexander allegedly maintained

ownership of those shares until 2015. He subsequently

transferred the Confirmit shares to his father, Erik

Martin Vik (Erik).

On May 31, 2016, the Execution and Enforcement Commissioner in Oslo (commissioner) registered an execution lien on the Confirmit shares. Following a trial, the Oslo Enforcement Court confirmed the validity of that

execution lien and held that SHI was the true owner

of the Confirmit shares at the time the execution lien

was established in 2016. After a series of unsuccessful

appeals by Erik, the Supreme Court of Norway, on May

24, 2019, affirmed the Oslo Enforcement Court’s determination that SHI was the true owner of the Confirmit

shares at the time the execution lien was established.

The plaintiff then filed a petition with the Oslo Enforcement Court seeking a forced sale of the Confirmit shares

as part of its efforts to enforce the English judgment. On June 12, 2019, the commissioner granted that petition

and, on July 8, 2019, named ABG Sundal Collier ASA

(ABG), a Nordic investment bank, as the sales assistant

responsible for conducting the sale of the Confirmit

shares.

As our Supreme Court noted in Deutsche Bank AG

v. Vik, 349 Conn. 120, 314 A.3d 583 (2024), a prior

appeal in this case, “[i]n June, 2019, as part of the sales process, ABG assessed the shares and determined their

value to be between $100 and $150 million. During the

first phase of the sale, ABG communicated with approximately [seventy-two] potential buyers. By October, 2019,

ten interested parties submitted indicative bids for the

Deutsche Bank AG v. Vik

[shares]. In November, 2019, during the second phase

of the sales process, two companies submitted final bids.

“[In its complaint, the plaintiff] alleges that, as soon as the plaintiff obtained its execution lien in 2016, Alexander, operating through various Vik related entities and

family members, engaged in a series of vindictive maneuvers intended to disrupt, delay, and otherwise interfere

with the sale. Specifically, after the Oslo Enforcement

Court ruled that SHI was the true owner of the shares,

Erik, at the behest of Alexander, filed numerous baseless appeals challenging that determination. According to

the complaint, these appeals, and the uncertainty they

created surrounding Confirmit’s ownership, caused Confirmit to lose market share and significantly contributed to reduced [bids] that . . . potential purchasers submitted during the sales process . . . .

“The complaint further alleges that, in September,

2017, Erik requested that the execution lien be removed

from the Confirmit shares in the VPS registry, the central securities repository in Norway, even though such

removal was unlawful. According to the complaint,

[Erik’s] request lacked any legitimate basis, and . . .

was made in coordination with Alexander . . . in furtherance of the long-running scheme to obstruct [the

plaintiff’s] ability to recover on the English judgment.

The complaint further alleges that, on January 27, 2020,

the Oslo Enforcement Court rejected [Erik’s] plea to

stop the Confirmit sale [based on the 2017] removal of

the execution lien from the VPS registry. Noting that

only the enforcement office may instruct a VPS account

operator to delete a registered execution lien, the Oslo

Enforcement Court held that the application made [in]

September, 2017, by [Erik] for deletion of the execution

lien was unlawful.

“Another tactic allegedly utilized by Alexander to

disrupt, delay, and otherwise interfere with the sale of

the Confirmit shares was to stack Confirmit’s board of

directors with Vik family members and close associates.

According to the complaint, the plaintiff, fearful that the

Deutsche Bank AG v. Vik

newly configured board would deplete Confirmit’s assets,

filed a petition for a preliminary injunction seeking to

have the Viks and their associates removed from the

board. On March 30, 2017, the Oslo Enforcement Court

granted the petition. In doing so, the court expressed

concern that allowing the Viks or their associates to

remain on Confirmit’s board increased the risk that bad

faith transactions may be implemented [by them] that

reduce the value of the [company]. The court further

stated that Alexander . . . has systemically sought to

withhold funds from service in payment of creditors by

transferring assets and that it must also be concluded

that [his] family members and business advisers will act

in accordance with [his] wishes. . . .

“The complaint alleges that the plaintiff’s fears regarding Alexander’s stacking of Confirmit’s board were realized in November, 2019, when Caroline, midway through

the bidding process for the Confirmit shares, sought to

invoke her rights under a sham agreement between her

and SHI purporting to grant her an irrevocable right

of first refusal (ROFR) to purchase 100 percent of Confirmit’s shares. According to the complaint, SHI and

Caroline reached this purported agreement on the very

same day [that the plaintiff] petitioned . . . to replace Confirmit’s board . . . . As further evidence of fraud, the existence of the purported ROFR was not disclosed until

July, 2019, in the midst of negotiations to sell [the] Confirmit [shares] and despite SHI’s obligations to produce

or disclose [any] such [agreement] in the course of various ongoing [litigation] between SHI and [the plaintiff].

“The complaint alleges that, on November 1, 2019,

Caroline provided ABG with a copy of the fraudulent

ROFR . . . and requested information about [all] offers

[to purchase the Confirmit shares, which] she claimed to

be entitled to under the [agreement]. According to the

complaint, after ABG informed Caroline that, pursuant

to Norwegian law, it could not consider the ROFR . . .

in connection with the sale of [the] Confirmit [shares]

because the . . . agreement was dated after [the plaintiff]

Deutsche Bank AG v. Vik

. . . register[ed] its execution lien, Caroline commenced an action against ABG in the United States District

Court for the District of Connecticut (Connecticut District Court action) seeking to enforce the fraudulent

ROFR and to enjoin the sale of the Confirmit shares.

On December 4, 2019, the District Court denied her

application for a preliminary injunction. Two days later, Caroline filed another petition, this time with the Oslo

Enforcement Court, again seeking to enforce the ROFR.

This petition also was denied. On February 11, 2020,

the District Court issued an order to show cause why

Caroline’s action should not be dismissed. In response,

Caroline voluntarily dismissed the Connecticut District

Court action.

“According to the complaint, Caroline’s actions in Connecticut and Norway were timed specifically to interfere

with the forced sale of the Confirmit shares and the business expectations of [the plaintiff]. . . . The execution and attempted enforcement of [Caroline’s] sham ROFR on

which she based her requests for an injunction [were] for the sole purpose of interfering with the . . . sale . . . and had no proper purpose or justification. The complaint

alleges that, in a recent court filing in Norway, Hans

Eirik Olav, SHI’s purported signatory on the ROFR,

stated that he has no recollection of ever entering into a ROFR agreement with Caroline and that the document

appears to him to be a forgery.

“Another tactic allegedly utilized by Alexander to

disrupt, delay, or otherwise interfere with the sale of the Confirmit shares was the submission of a fraudulent bid

to purchase the shares. The complaint alleges that, on

October 18, 2019, [a]fter ABG initiated the first phase

of the Confirmit sale process, [Alexander] submitted an

all-cash indicative bid to acquire the Confirmit shares

for $325 million. He did so . . . in an effort to disrupt the sale process, which he intentionally manipulated by

submitting [the] false bid under the cover of yet another shell company, Xcelera, Inc. (Xcelera), a company Alexander knew could never have realistically advanced [$325

Deutsche Bank AG v. Vik

million to purchase the Confirmit shares]. According to

the complaint, Alexander’s bid, which was exponentially

higher than [Confirmit’s] estimated value, was not a

serious [bid] . . . .

“The complaint further alleges that ABG informed

Alexander that [t]he situation with Xcelera . . . as a

potential buyer . . . [when] the validity of the sales process is being challenged by legal persons and individuals associated with [that company], requires certain specific procedures to be complied with and measures to be taken

in order to ensure [the integrity of the sales process]. . . . Concerned that Xcelera was controlled by Alexander,

ABG requested that he provide information regarding

Xcelera’s ownership structure, board members, employees, and proof that it had sufficient funds to purchase

the Confirmit shares. ABG also sought confirmation that

Xcelera, SHI, and Alexander would not challenge the

legality of the sales process. According to the complaint, no such information or assurances were forthcoming

from Alexander. Instead, Alexander responded to ABG’s

request for information by asking ABG how it intended

to deal . . . with the rights of first refusal that exist [in connection with] the Confirmit shares. . . .

“The complaint finally alleges that, [f]ollowing their

repeated attempts to disrupt and otherwise interfere with the Confirmit sale process, the defendants succeeded in

driving down both the indicative bids and final sale price for [the company]. Specifically, the complaint alleges

that, [a]s a direct result of the defendants’ misconduct, the value of Confirmit, which was originally projected

to be between $100 . . . and $150 million, fell to only $65 million, reducing the amount of debt that [the plaintiff] was able to recover by tens of millions of dollars. According to the complaint, Verdane, a European capital fund

that ultimately purchased the Confirmit shares, sent

ABG a letter [on December 3, 2019] articulating its

growing concerns about acquiring a company to which

[Alexander] and related parties claimed rights. Specifically, Verdane noted that the purported ROFR, the

Deutsche Bank AG v. Vik

[Connecticut] District Court [action], and the unlawfully deleted registration of the execution lien all contributed to what [it] perceived to be an increased risk of acquiring Confirmit. The final agreed on price when the sale finally closed on February 14, 2020, was $65 million, which was

$5 million less than Verdane’s final offer in November,

2019, and $35 million to $85 million less than the price

ABG had placed on the shares in June, 2019.” (Internal

quotation marks omitted.) Id., 125–30.

Months after the sale of the Confirmit shares closed,

the plaintiff commenced the present action in June 2020.8 In its two count complaint, the plaintiff alleged tortious interference with business expectancy and CUTPA violations on the part of the defendants due to their alleged

efforts to interfere with the sale of the Confirmit shares. The plaintiff further alleged that the defendants’ conduct “depressed the value of the Confirmit shares,” which

prevented the plaintiff “from recovering up to $85 million of [the English judgment] debt.”

On October 22, 2020, the defendants filed a motion to

dismiss the present action, in which they argued that the litigation privilege deprived the court of subject matter jurisdiction over the plaintiff’s action because the

plaintiff’s claims were predicated on communications

made and actions taken in prior judicial proceedings.9

The trial court denied that motion. The defendants

then filed an interlocutory appeal with this court, which reversed the judgment of the trial court and concluded

8

At that time, the trial in the 2013 action had concluded, but no decision had been rendered by the trial court. See Deutsche Bank AG v. Vik, supra, 349 Conn. 123 (noting that plaintiff commenced present case “[w]hile [the 2013 action] was pending in the trial court”); Deutsche Bank AG v. Sebastian Holdings, Inc., Docket No. CV-XX-XXXXXXX-S, 2021 WL 4482154, *1 (Conn. Super. September 7, 2021) (“trial before this court [in the 2013 action] was held over five days in November and December 2019”), aff'd, 346 Conn. 564, 294 A.3d 1 (2023).

9

In separate motions to dismiss filed that same day, the defendants argued that the court lacked personal jurisdiction over Alexander and that the plaintiff’s action should be dismissed pursuant to both the prior pending action doctrine and the forum non conveniens doctrine. The defendants subsequently withdrew those motions.

Deutsche Bank AG v. Vik

that the litigation privilege barred the plaintiff’s tortious interference and CUTPA claims. See Deutsche Bank AG

v. Vik, 214 Conn. App. 487, 281 A.3d 12 (2022), rev’d,

349 Conn. 120, 314 A.3d 583 (2024). Our Supreme Court

granted the plaintiff’s petition for certification to appeal and thereafter concluded, “construing the complaint in

the light most favorable to the plaintiff,” that this court had improperly determined that the plaintiff’s claims

were barred by the litigation privilege. Deutsche Bank

AG v. Vik, supra, 349 Conn. 139–40. The Supreme Court

thus reversed the judgment of this court and remanded

it to this court with direction to affirm the judgment of the trial court. Id., 148.

At the time of those appeals before this court and our

Supreme Court, a concurrent appeal arose regarding

the 2013 action to pierce the corporate veil of SHI. In

its complaint in the 2013 action, the plaintiff alleged

in relevant part that, “on or before October 9, 2008,

and through October 30, 2008, [Alexander] caused SHI

to transfer funds to him and other entities owned and

controlled by him and/or his immediate family in order

to shield SHI’s assets from [the plaintiff] . . . . Through his domination and control of SHI, [Alexander] caused

SHI to breach its contractual obligations to [the plaintiff] and to fraudulently convey funds to third parties

for the inequitable purpose of shielding SHI’s assets and defrauding [the plaintiff] out of [money] owed.” The

plaintiff thus sought a declaratory judgment piercing

SHI’s corporate veil and holding Alexander jointly and

severally liable with SHI for the English judgment.

A five day trial on the 2013 action was held in late 2019. In a subsequent memorandum of decision dated September 7, 2021, the court found that, under Turks and Caicos Islands law, a plaintiff seeking to pierce a corporate veil “must demonstrate three things: (1) domination and

control of the corporation by the alleged wrongdoer, (2)

commingling of the corporation’s assets with those of

the wrongdoer or with entities controlled by him, and (3)

Deutsche Bank AG v. Vik

specific intent by the wrongdoer to leave the corporation unable to pay its debts. Applying this standard to the

evidence adduced at trial, the trial court concluded that [the plaintiff] had met the first two prongs of the test. The court found that the evidence established unequivocally that SHI had no separate mind of its own from [Alexander] and that [Alexander] completely dominated and

controlled SHI. The court also found that the evidence

established that [Alexander] regularly used SHI funds

for personal expenses and pet projects and regularly

transferred massive funds between [SHI] and his other

companies without any formality at all, as if transferring money from one pocket to another.” (Internal quotation marks omitted.) Deutsche Bank AG v. Sebastian

Holdings, Inc., supra, 346 Conn. 583–84. The court

nevertheless concluded that the plaintiff had “failed

to satisfy its burden of proof to justify piercing SHI’s

corporate veil and that [Alexander] diverted SHI’s assets with the specific intent of rendering it unable to pay its margin calls to [the plaintiff].” Deutsche Bank AG v.

Sebastian Holdings, Inc., Docket No. CV-XX-XXXXXXX-S,

2021 WL 4482154, *1 (Conn. Super. September 7, 2021),

aff’d, 346 Conn. 564, 294 A.3d 1 (2023). More specifically, the court concluded that the plaintiff had failed

to demonstrate that Alexander “acted with the specific

intent to leave SHI unable to pay its debts to [the plaintiff]” when he caused SHI to transfer approximately

one billion dollars of assets out of SHI in October 2008. Deutsche Bank AG v. Sebastian Holdings, Inc., supra,

346 Conn. 584; see also id., 575 n.3. Accordingly, the

trial court “rejected [the plaintiff’s] claim that [Alexander] should be held personally liable for the English

judgment.” Id., 583.

From that judgment, the plaintiff filed an appeal with

this court, which was transferred to our Supreme Court

pursuant to General Statutes § 51-199 (c) and Practice

Book § 65-1. In a decision released on May 30, 2023, our

Supreme Court affirmed the judgment of the trial court.

Id., 604. In so doing, the court concluded that the trial court properly “declined to pierce SHI’s corporate veil

Deutsche Bank AG v. Vik

and to hold [Alexander] jointly and severally liable with SHI for the English judgment.”10 Id., 569.

That decision, in turn, precipitated the summary judgment that underlies this appeal. On remand to the trial

court following our Supreme Court’s determination

that the plaintiff’s tortious interference with business

expectancy and CUPTA claims in the present case were

not barred by the litigation privilege; see Deutsche Bank AG v. Vik, supra, 349 Conn. 139–48; the defendants

filed a motion for summary judgment. In that motion,

the defendants argued that the doctrines of res judicata

and collateral estoppel barred the plaintiff’s action. That motion was accompanied by a memorandum of law and

several exhibits.11 The plaintiff filed an opposition to the motion for summary judgment, as well as a memorandum

of law. The defendants filed a reply to that opposition,

and the court held a hearing on the motion for summary

judgment on December 4, 2024.

In its subsequent memorandum of decision, the court

first concluded that all four elements of res judicata;

see Solon v. Slater, 345 Conn. 794, 825, 287 A.3d

574 (2023); had been met. The court thus granted the

motion for summary judgment on that ground “as to

both defendants.”12 In addition, the court stated that the motion for summary judgment “on the ground that such

claims are barred by the doctrine of collateral estoppel

is granted in part, denied in part. [The plaintiff] is collaterally estopped from relitigating the following issues: (1) the personal liability of [Alexander] to [the plaintiff] under the English judgment and the enforcement of the

English judgment against him; (2) whether the transfer of SHI’s assets, including shares of Confirmit from

10

The court also rejected the plaintiff’s evidentiary challenge regarding the admission of certain testimony from Alexander at trial in the 2013 action. See Deutsche Bank AG v. Sebastian Holdings, Inc., supra, 346 Conn. 595–604.

11

Those exhibits included copies of various pleadings from the 2013 action.

12

In so concluding, the court summarily stated that Caroline, who was not a party to the 2013 action, “is in privity with [Alexander].”

Deutsche Bank AG v. Vik

SHI to [Alexander] in October 2008, was proper; and (3)

that [Alexander] was the owner of the Confirmit shares

in October 2008. It is denied as to all other remaining

issues.” Accordingly, the court rendered summary judgment in favor of the defendants, and this appeal followed.

As a preliminary matter, we note certain well established principles that are relevant to our consideration of the plaintiff’s claims. Res judicata and collateral estoppel are doctrines of preclusion; see generally Tracey v.

Miami Beach Assn., 216 Conn. App. 379, 390–92, 288

A.3d 629 (2022), cert. denied, 346 Conn. 919, 291 A.3d

1040 (2023); that are “judicially created rules of reason . . . enforced on public policy grounds . . . .” (Internal quotation marks omitted.) Weiss v. Weiss, 297 Conn. 446,

460, 998 A.2d 766 (2010). “The doctrines of collateral

estoppel and res judicata, also known as issue preclusion and claim preclusion, respectively, have been described

as related ideas on a continuum. . . . Both doctrines

share common purposes, namely, to protect the finality

of judicial determinations, [to] conserve the time of the court, and [to] prevent wasteful litigation . . . .” (Citation omitted; internal quotation marks omitted.) Solon

v. Slater, supra, 345 Conn. 810. Collateral estoppel and

res judicata are grounded in “the fundamental principle

that once a matter has been fully and fairly litigated,

and finally decided, it comes to rest.” State v. Ellis, 197 Conn. 436, 465, 497 A.2d 974 (1985). At the same time,

our Supreme Court has cautioned that those doctrines of

preclusion “should be flexible and must give way when

their mechanical application would frustrate other social policies based on values equally or more important than

the convenience afforded by finality in legal controversies.” In re Juvenile Appeal (83-DE), 190 Conn. 310,

318, 460 A.2d 1277 (1983). Notable among those other

policies is a party’s interest in the vindication of a just claim. See, e.g., Isaac v. Truck Service, Inc., 253 Conn. 416, 422, 752 A.2d 509 (2000).

“It is well established that res judicata and collateral

estoppel are affirmative defenses that may be waived if

Deutsche Bank AG v. Vik

not properly pleaded.” Singhaviroj v. Board of Education, 124 Conn. App. 228, 233, 4 A.3d 851 (2010); see

also M&T Bank v. Lewis, 349 Conn. 9, 19 n.6, 312 A.3d

1040 (2024) (“a claim that an action or claim is barred

by res judicata or collateral estoppel must be raised in

the trial court through appropriate pleadings”). The

party asserting a defense of res judicata or collateral

estoppel bears the burden of establishing its applicability. See State v. Knight, 266 Conn. 658, 664, 835 A.2d

47 (2003); Commissioner of Environmental Protection

v. Connecticut Building Wrecking Co., 227 Conn. 175,

195, 629 A.2d 1116 (1993). The applicability of res

judicata or collateral estoppel in a given case presents a question of law, over which our review is plenary. See

Independent Party of CT-State Central v. Merrill, 330

Conn. 681, 712, 200 A.3d 1118 (2019).

I

RES JUDICATA

We begin with the plaintiff’s challenge to the court’s

application of the doctrine of res judicata. The plaintiff contends that the court improperly granted the

motion for summary judgment on that ground “as to

both defendants,” despite the fact that the defendants

did not plead that defense with respect to Caroline, and

that it improperly concluded that Caroline was in privity with Alexander. The plaintiff also argues that the court

improperly concluded, with respect to Alexander, that

no genuine issue of material fact existed as to whether

res judicata barred the plaintiff’s claims. We agree.

A

1

It is well established that, “[u]nder Connecticut law, the doctrine of res judicata is pleaded as a special defense.” Tracey v. Miami Beach Assn., supra, 216 Conn. App.

392; see also Practice Book § 10-50 (res judicata is special defense that “must be specially pleaded”); Beccia v. Waterbury, 185 Conn. 445, 451, 441 A.2d 131 (1981)

(“[a] prior judgment which would be a bar to a later

Deutsche Bank AG v. Vik

action, as res adjudicata, is a defense which must be

specially pleaded by the party who seeks its benefit”).

When a party fails to plead that defense, it is subject to waiver. See Singhaviroj v. Board of Education, supra,

124 Conn. App. 233.

At no time since the commencement of this action in

2020 have the defendants filed an answer to the plaintiff’s complaint. Instead, they first moved to dismiss the action on various grounds, including the litigation privilege, which culminated in the decision of our Supreme

Court in Deutsche Bank AG v. Vik, supra, 349 Conn.

120. Following a remand for further proceedings, the

defendants then filed a motion for summary judgment,

as was their prerogative. See Practice Book § 17-44

(“any party may move for a summary judgment as to

any cause of action or defense as a matter of right at any time if no scheduling order exists and the case has not

been assigned for trial”); Joe’s Pizza, Inc. v. Aetna Life & Casualty Co., 236 Conn. 863, 867 n.8, 675 A.2d 441

(1996) (“a party may move for summary judgment at any

time”); Nash v. Roland Dumont Agency, Inc., Docket

No. CV-XX-XXXXXXX-S, 2018 WL 6721442, *1 (Conn.

Super. November 21, 2018) (“[p]rior to filing an answer,

the defendants filed a motion for summary judgment, as

permitted by Practice Book § 17-44”). In the heading to

part III B of their memorandum of law in support of their motion for summary judgment, the defendants stated:

“The Claims Made in This Case Against [Alexander] are

Barred by the Doctrine of Res Judicata.”13

13

We note that, after stating that the plaintiff’s claims against Alexander were barred by the doctrine of res judicata and reciting familiar precepts of that doctrine, the defendants curiously stated: “Consideration of the four elements of res judicata demonstrates conclusively that it applies to bar both counts of the 2020 complaint against the [defendants].” The defendants then proceeded to apply the four elements of res judicata with respect to Alexander, noting that “both [the plaintiff] and [Alexander] were parties to the [2013 action] and are parties in this case.” Notably, the defendants did not discuss Caroline in the res judicata portion of their memorandum of law in support of their motion for summary judgment and did not argue that she was in privity with a party to the 2013 action.

Deutsche Bank AG v. Vik

In its opposition to the motion for summary judgment,

the plaintiff argued that Caroline was neither a party to the 2013 action nor in privity with the parties to that

action. It further noted that it was “unclear whether

the defendants contend that res judicata bars the claims

against [Caroline]. The heading of their res judicata argument states only that the claims against [Alexander] are

barred.” The plaintiff further argued that “res judicata

cannot bar [the plaintiff’s] claims against [Caroline]” in the present case.

In their November 1, 2024 reply to the plaintiff’s

opposition, the defendants clarified that they “have not

advanced a claim that res judicata applies to bar the present claims against [Caroline]. Rather, the claims against her are barred by the doctrine of collateral estoppel.” For that reason, the plaintiff’s counsel apprised the court at the December 4, 2024 hearing on the motion for summary

judgment that the defendants “are not asserting [res

judicata] on behalf of [Caroline] but only [Alexander].”14 In its subsequent memorandum of decision, the court

nevertheless granted the motion for summary judgment

“on the ground that [the plaintiff’s] claims are barred

by the doctrine of res judicata as to both defendants.”

(Emphasis added.)

That determination cannot be reconciled with the

record before us, particularly the defendants’ averment

in their November 1, 2024 reply to the plaintiff’s opposition that they were not pleading res judicata with respect to Caroline. Because the defendants did not plead that

special defense with respect to Caroline at any time before the trial court and expressly indicated that they were

14

Because the defendants never offered argument or evidence to support a res judicata defense with respect to Caroline—as the plaintiff reminded the court in its October 11, 2024 opposition to the defendants’ motion for summary judgment and at the December 4, 2024 hearing on that motion—this is not a case in which the court properly could consider that defense despite the defendants’ failure to specifically plead it. See Singhaviroj v. Board of Education, supra, 124 Conn. App. 234.

Deutsche Bank AG v. Vik

not asserting such a defense on her behalf, we agree with the plaintiff that the defendants waived that defense.

2

We also disagree with the two distinct determinations

made by the court regarding the privity element of res

judicata.

a

In its memorandum of decision, the court found that

“[t]here is . . . no dispute that [the privity requirement is] met.” (Emphasis added.) The record indicates otherwise.

First, the defendants never alleged in their August 27,

2024 motion for summary judgment and accompanying

memorandum of law, their November 1, 2024 reply to the

plaintiff’s opposition, or their argument at the December 1, 2024 hearing on the motion for summary judgment,

that Caroline was in privity with either Alexander or

SHI. Second, in its opposition to the motion for summary

judgment, the plaintiff specifically argued that “the parties to the [2013 action] are not . . . in privity with the parties in this action.” (Emphasis added.) In its reply to that opposition, the defendants averred that they “have

not advanced a claim that res judicata applies to bar the present claims against [Caroline].” That record belies the court’s determination that there was “no dispute” that

the privity requirement was satisfied in the present case.

b

Also untenable is the court’s determination that “[Caroline] is in privity with [Alexander].” The court offered no analysis or explication of that element of res judicata. As our Supreme Court has observed, “[p]rivity is a difficult concept to define precisely. . . . There is no prevailing definition of privity to be followed automatically in every case. It is not a matter of form or rigid labels; rather it is a matter of substance. In determining whether privity

exists, we employ an analysis that focuses on the functional relationships of the parties. Privity is not established by the mere fact that persons may be interested in

Deutsche Bank AG v. Vik

the same question or in proving or disproving the same set of facts. Rather, it is, in essence, a shorthand statement for the principle that [the doctrines of preclusion] should be applied only when there exists such an identification

in interest of one person with another as to represent the same legal rights so as to justify preclusion.” (Citation omitted.) Mazziotti v. Allstate Ins. Co., 240 Conn. 799,

813–14, 695 A.2d 1010 (1997). “A key consideration

in determining the existence of privity is the sharing of the same legal right by the parties allegedly in privity.” (Internal quotation marks omitted.) Id., 813. “[O]ne

person is in privity with another and is bound by and

entitled to the benefits of a judgment as though he was

a party when there is such an identification of interest

between the two as to represent the same legal right . .

. .” (Internal quotation marks omitted.) Collins v. E.I.

DuPont de Nemours & Co., 34 F.3d 172, 176 (3d Cir.

1994); cf. Wheeler v. Beachcroft, LLC, 320 Conn. 146,

167, 129 A.3d 677 (2016) (“[b]ecause parties may share

some legal rights and not others, parties may be in privity with respect to some claims, but not others, for res

judicata purposes”).

The 2013 action concerned Alexander’s conduct in

transferring assets from SHI during the 2008 financial

crisis. See Deutsche Bank AG v. Sebastian Holdings,

Inc., supra, 346 Conn. 564. Caroline had no legal interest in that action—she was not a party, and it did not

concern her conduct in any way. The issue in the 2013

action was whether the plaintiff had the legal right to

pierce the corporate veil of SHI and hold Alexander,

the sole director of SHI who controlled all aspects of its operations and financial transactions, personally liable

for the English judgment due to his conduct. In resolving that issue, the critical question was whether Alexander

“acted with the specific intent to leave SHI unable to

pay its debts to [the plaintiff]” when he caused SHI to

transfer approximately one billion dollars of assets out

of SHI in October 2008. Id., 584. The present case, by

contrast, concerns the defendants’ alleged efforts to

interfere with the sale of the Confirmit shares beginning

Deutsche Bank AG v. Vik

in 2016. The issue in this case is whether that conduct

constitutes tortious interference with business expectancy and violations of CUTPA.

Given those critical distinctions, we conclude that

Caroline does not share the same legal right in this action as that which belonged to Alexander in the 2013 action.

There is no allegation that Caroline had any connection

to SHI or that she engaged in any conduct with respect

to that entity at any time. Accordingly, she lacks the

requisite identification of interest with Alexander with

respect to the issues adjudicated in the 2013 action. The court, therefore, improperly concluded that Caroline

is in privity with Alexander for res judicata purposes.

B

We next consider whether the court properly concluded that no genuine issue of material fact existed as

to whether res judicata barred the plaintiff’s claims with respect to Alexander. “Generally, for res judicata to

apply, four elements must be met: (1) the judgment must

have been rendered on the merits by a court of competent

jurisdiction; (2) the parties to the prior and subsequent actions must be the same or in privity; (3) there must

have been an adequate opportunity to litigate the matter fully; and (4) the same underlying claim must be at

issue.” Wheeler v. Beachcroft, LLC, supra, 320 Conn.

156–57. In the present case, the first two elements are

not in dispute. We therefore focus our attention on the

third and fourth elements of that doctrine of preclusion.

1

We begin with the question of whether the present

case involves the same claim as the 2013 action. For

res judicata to apply, the same underlying claim must

be at issue. Id., 157. Our Supreme Court has adopted a

transactional test “as a guide to determining whether an

action involves the same claim as an earlier action so as to trigger operation of the doctrine of res judicata. [T]he claim [that is] extinguished [by the judgment in the first

Deutsche Bank AG v. Vik

action] includes all rights of the plaintiff to remedies

against the defendant with respect to all or any part of

the transaction, or series of connected transactions, out of which the action arose. What factual grouping constitutes a transaction, and what groupings constitute a

series, are to be determined pragmatically, giving weight to such considerations as whether the facts are related

in time, space, origin, or motivation, whether they form

a convenient trial unit, and whether their treatment as

a unit conforms to the parties’ expectations or business

understanding or usage.” (Internal quotation marks

omitted.) Powell v. Infinity Ins. Co., 282 Conn. 594, 604, 922 A.2d 1073 (2007); see also 1 Restatement (Second),

Judgments § 24, comment (b), pp. 198–99 (1982) (transactional test “is not capable of a mathematically precise definition; it invokes a pragmatic standard to be applied with attention to the facts of the cases”).

The purpose of the transactional test is “to measure

the preclusive effect of a prior judgment”; Duhaime v.

American Reserve Life Ins. Co., 200 Conn. 360, 365,

511 A.2d 333 (1986); so as to “strike a delicate balance

between . . . the interests of the defendant and of the

courts in bringing litigation to a close and . . . the interest of the plaintiff in the vindication of a just claim.” (Internal quotation marks omitted.) Cadle Co. v. Gabel,

69 Conn. App. 279, 298, 794 A.2d 1029 (2002). It operates as a screening mechanism to prevent a party from

obtaining “a second bite at the apple . . . [when] the present claims are ones arising from the same transaction

that the parties, exercising reasonable diligence, could

have raised but did not in the [prior action].” (Internal quotation marks omitted.) Larry v. Powerski, 148 F.

Supp. 3d 584, 597 (E.D. Mich. 2015).

“In applying the transactional test, we compare the

complaint in the second action with the pleadings and

the judgment in the earlier action.”15 (Internal quotation

15

For that reason, the defendants’ argument that the plaintiff “provided no evidence at all of any of the proceedings” in the Norway enforcement action is of no moment. The issue before the court on summary judgment was not whether the defendants committed the acts alleged

Deutsche Bank AG v. Vik

marks omitted.) Delahunty v. Massachusetts Mutual

Life Ins. Co., 236 Conn. 582, 590, 674 A.2d 1290 (1996).

The 2013 action was brought to pierce the corporate veil

of SHI and hold Alexander personally liable for the English judgment against it. The facts giving rise to that

action pertain to Alexander’s conduct as the sole director of SHI who controlled all aspects of its operations and

financial transactions. More specifically, the 2013 action concerned the transfer of approximately one billion dollars of assets out of SHI in October 2008 at Alexander’s

direction. See Deutsche Bank AG v. Sebastian Holdings,

Inc., supra, 346 Conn. 583–84. The present case, by

contrast, does not concern Alexander’s actions in 2008,

his liability for the English judgment, or the transfer

of the Confirmit shares from SHI. Rather, it pertains

to the defendants’ alleged interference with the courtordered sale of those shares years later. As our Supreme

Court observed in an earlier appeal in this case: “The

[2013 action] involved the narrow question of whether

the trial court could pierce SHI’s corporate veil and hold Alexander personally liable for the English judgment on

the basis of conduct occurring prior to November 1, 2008. . . . The present case involves whether the defendants

were involved in a conspiracy between 2016 and 2020 to

halt or delay the sale of a Norwegian software company

in order to prevent the plaintiff from partially satisfying with respect to the Norway enforcement action; the issue was whether the affirmative defenses of res judicata and collateral estoppel barred the plaintiff’s action. In resolving that query, the court necessarily compared the complaint and judgment in the 2013 action with the allegations of the complaint in the present case.

Furthermore, as we previously noted, the defendants did not file an answer prior to moving for summary judgment and thus have not denied the allegations contained in the plaintiff’s complaint regarding those foreign proceedings. They likewise did not dispute the material allegations in the plaintiff’s complaint regarding the Norway enforcement action in their motion for summary judgment but, rather, argued that res judicata and collateral estoppel barred the plaintiff’s action. In its memorandum of decision, the court neither noted nor attributed any significance to the fact that the plaintiff had not submitted documentation from the Norway enforcement action. Instead, the court relied on the allegations set forth in the plaintiff’s complaint.

Deutsche Bank AG v. Vik

the English judgment.” (Citation omitted.) Deutsche

Bank AG v. Vik, supra, 349 Conn. 136.

In addition, the present case involves a distinct and

separate injury from that alleged in the 2013 action—the

alleged loss of $85 million stemming from the diminution in value of the Confirmit shares due to the conduct

of the defendants between 2016 and 2020. See, e.g.,

Summitwood Development, LLC v. Roberts, 130 Conn.

App. 792, 804, 25 A.3d 721 (res judicata barred second

action because claims arose from same facts and sought

redress for same injury), cert. denied, 302 Conn. 942,

29 A.3d 467 (2011), cert. denied, 565 U.S. 1260, 132

S. Ct. 1745, 182 L. Ed. 2d 530 (2012); cf. Lighthouse

Landings, Inc. v. Connecticut Light & Power Co., 300

Conn. 325, 350–51, 15 A.3d 601 (2011) (res judicata

barred plaintiff’s misrepresentation and CUTPA claims

because “the facts and theories . . . alleged in the [prior action and the present action] were the same” and “all

of the allegations and theories asserted in both actions

were intended to support the single underlying claim”

(emphasis in original)). Moreover, the present action

involves an additional defendant who (1) was not a party

to the 2013 action, (2) had no legal interest in that action, and (3) was not involved in the facts and transactions

underlying that action in any manner. In light of the

foregoing, we conclude that the material facts of the 2013 action and the present one are not related in time, space, origin, or motivation and do not form a convenient trial

unit. See Powell v. Infinity Ins. Co., supra, 282 Conn.

604. For those reasons, the court improperly concluded

that the present case involves the same underlying claim

as the 2013 action.

2

The plaintiff also claims that the court improperly

concluded that the plaintiff had an adequate opportunity

to fully litigate the claims advanced in the present action in the 2013 action. We agree.

Deutsche Bank AG v. Vik

“[T]he essential concept of the modern rule of claim

preclusion is that a judgment against [the] plaintiff is

preclusive not simply when it is on the merits but when

the procedure in the first action afforded [the] plaintiff a fair opportunity to get to the merits. . . . [T]he appropriate inquiry with respect to [claim] preclusion is whether the party had an adequate opportunity to litigate the

matter in the earlier proceeding . . . . [T]he doctrine of res judicata does not preclude a plaintiff from pursuing claims that it previously had not been afforded the

opportunity to litigate.” (Citations omitted; emphasis in original; internal quotation marks omitted.) In re Probate Appeal of Cadle Co., 152 Conn. App. 427, 437, 100

A.3d 30 (2014). When a party did not have a full and fair opportunity to litigate a matter in the earlier proceeding, “res judicata is inappropriate.” Cayer Enterprises, Inc.

v. DiMasi, 84 Conn. App. 190, 194, 852 A.2d 758 (2004).

In its memorandum of decision, the court addressed

that element of res judicata as follows: “The court . . . finds that the third element—that there must have been

an adequate opportunity to litigate the matter fully—

was met. [The plaintiff] had a full and fair opportunity

to litigate the enforcement of the English judgment as

against [Alexander] relating to the transfer of the Confirmit shares and sufficient assets in SHI in 2008 to pay [the plaintiff], which judgment formed the basis of the

[Norway enforcement action].” That reasoning exhibits

a fundamental misunderstanding of the claims asserted

in this case. Our plenary review of the pleadings; see

Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly,

P.C., 311 Conn. 282, 290, 87 A.3d 534 (2014); indicates

that the conduct giving rise to the plaintiff’s tortious

interference and CUTPA claims is not Alexander’s transfer of the Confirmit shares in 2008. Rather, it is the

defendants’ alleged interference with the forced sale of

those shares from 2016, when the Norway enforcement

action was commenced, until 2020, when that sale closed.

The claims advanced in the present case require the

plaintiff to plead and prove that it sustained damages as

Deutsche Bank AG v. Vik

a result of the defendants’ interference with the sale of the Confirmit shares. See, e.g., Artie’s Auto Body, Inc.

v. Hartford Fire Ins. Co., 287 Conn. 208, 218, 947 A.2d

320 (2008) (“to be entitled to any relief under CUTPA, a

plaintiff must first prove that he has suffered an ascertainable loss due to a CUTPA violation” (internal quotation marks omitted)); American Diamond Exchange, Inc.

v. Alpert, 101 Conn. App. 83, 97, 920 A.2d 357 (“[i]t is

an essential element of the tort of unlawful interference with business relations that the plaintiff suffered actual loss” (internal quotation marks omitted)), cert. denied,

284 Conn. 901, 931 A.2d 261 (2007). In its complaint, the plaintiff alleges that the defendants’ efforts to interfere with the sale of the Confirmit shares “depressed [their]

value” and thereby prevented the plaintiff from recovering $85 million from that sale.

For that reason, the pecuniary injury allegedly sustained by the plaintiff did not accrue until February

2020, when the sale of the Confirmit shares closed for

millions of dollars below ABG’s initial valuation. See

Deutsche Bank AG v. Vik, supra, 349 Conn. 125–30. As

the plaintiff aptly notes in its principal appellate brief, “if the sale of the Confirmit shares had been completed

without any diminution in the price caused by [the defendants’ alleged conduct], then [the plaintiff] would have

had no claim to assert.” Put simply, the plaintiff had no case until the court-ordered sale of the Confirmit shares ultimately closed. See, e.g., Jepsen v. Camassar, 181

Conn. App. 492, 533, 187 A.3d 486 (“[s]peculation and

conjecture do not suffice for proof of pecuniary loss”),

cert. denied, 329 Conn. 909, 186 A.3d 12 (2018).

We therefore disagree with the defendants that the

plaintiff could have amended its complaint in the 2013

action to include tortious interference with business

expectancy and CUTPA claims. Significantly, the allegedly tortious conduct of the defendants continued into

late 2019—after discovery deadlines had passed, the

pleadings had closed, and the trial commenced in the

Deutsche Bank AG v. Vik

2013 action on November 19, 2019.16 See footnote 8 of

this opinion.

We also note that, prior to trial in the 2013 action, the defendants filed a motion in limine to preclude evidence

related to conduct outside of the October 2008 time

period alleged in the complaint in the 2013 action. The

trial court granted that motion, stating in relevant part: “The court exercises its discretion to maintain the focus of the trial on the transactions occurring in October 2008 as alleged in the complaint. Given the global extent of

[Alexander’s] financial dealings, pursuit without time

limitation could lead to a virtually endless proceeding.” In light of that order and the fact that the plaintiff’s

causes of action for tortious interference with business

expectancy and CUTPA did not accrue until February

2020—months after the trial in the 2013 action concluded—the plaintiff would have been required to obtain

permission from the court (1) to amend its complaint

posttrial to add those tort and statutory causes of action;

16

For example, the plaintiff alleges in its complaint in the present case that, as part of the defendants’ efforts to interfere with the sale of the Confirmit shares, Caroline commenced the Connecticut District Court action on November 13, 2019, “at a critical moment of negotiations” in the sale of those shares, and that she did not voluntarily dismiss that action until February 11, 2020. It also alleges that, on December 6, 2019, Caroline filed a petition for a preliminary injunction with the Oslo Enforcement Court to stop the sale of the Confirmit shares. The plaintiff further alleges that, in a letter dated October 18, 2019, Alexander informed ABG that he intended to bid on the Confirmit shares; that he subsequently refused to comply with ABG’s subsequent request for information and documentation related to his purported bid; that, on November 26, 2019, he declared that he “decided to bid for Confirmit [himself],” rather than through a corporate entity; that his bid “was not a serious offer to purchase the Confirmit shares” and “was 400 percent higher than the average of the other indicative bids”; and that “[t]he sole purpose of [Alexander’s] bid was to disrupt the Confirmit sale process.”

In concluding that res judicata barred the plaintiff’s claims in the present case, the court stated: “While some facts in the [present case] relating to the [Norway enforcement action] had not yet occurred at the time the [2013 action] was instituted in 2013, they had occurred well prior to trial in the [2013 action] such that they could have been pled in the [2013 action].” (Emphasis added.) As the foregoing examples demonstrate, the court was plainly mistaken in that regard.

Deutsche Bank AG v. Vik

(2) to add Caroline as a party; (3) to reopen discovery;

and (4) to reopen evidence at trial, despite the fact that those claims are utterly distinct from the equitable claim to pierce the corporate veil that the plaintiff pursued in the 2013 action. We are not aware of any case in which

such a series of posttrial requests have been granted by

a trial court and the defendants have not identified such authority. On the facts and circumstances of this case,

we cannot ascribe fault to the plaintiff for failing to seek such extraordinary posttrial recourse.

In light of the foregoing, we conclude that the defendants have not demonstrated that the plaintiff had a full and fair opportunity to litigate its tortious interference with business expectancy and CUTPA claims in the 2013

action. For that reason, res judicata is inappropriate.

See Cayer Enterprises, Inc. v. DiMasi, supra, 84 Conn.

App. 194.

3

Lastly, we emphasize that res judicata is a flexible doctrine that “must give way when [its] mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded

by finality in legal controversies.” In re Juvenile Appeal (83–DE), supra, 190 Conn. 318. As our Supreme Court

has observed, “application of the doctrine [of res judicata] can yield harsh results, especially in the context of claims that were not actually litigated and parties that were not actually involved in the prior action. . . . The decision of whether res judicata should bar such claims should be

based upon a consideration of the doctrine’s underlying

policies, namely, the interests of the defendant and of

the courts in bringing litigation to a close . . . and the competing interest of the plaintiff in the vindication

of a just claim.” (Citation omitted; internal quotation

marks omitted.) Wheeler v. Beachcroft, LLC, supra,

320 Conn. 158. In this case, we believe that the public

policy goals of “promoting judicial economy, minimizing

repetitive litigation, preventing inconsistent judgments

and providing repose to parties”; Weiss v. Weiss, supra,

Deutsche Bank AG v. Vik

297 Conn. 465; are outweighed by the plaintiff’s interest in the vindication of a just claim. We therefore conclude that the court improperly determined that res judicata

barred the plaintiff’s tortious interference with business expectancy and CUPTA claims.

II

COLLATERAL ESTOPPEL

We next consider the plaintiff’s challenge to the court’s application of the doctrine of collateral estoppel. In its memorandum of decision, the court concluded that the

plaintiff is collaterally estopped from relitigating (1)

“the personal liability of [Alexander] to the plaintiff

under the English judgment and the enforcement of

the English judgment against him,” (2) “whether the

transfer of SHI’s assets, including shares of Confirmit

from SHI to [Alexander] in October 2008, was proper,”

and (3) “that [Alexander] was the owner of the Confirmit

shares in October 2008.” On appeal, the plaintiff contests the propriety of those determinations.

The doctrine of collateral estoppel expresses “the fundamental principle that once a matter has been fully and

fairly litigated, and finally decided, it comes to rest. . . . Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily

determined in a prior action between the same parties

upon a different claim. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly

litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.” (Citations omitted; emphasis in original;

internal quotation marks omitted.) Carol Management

Corp. v. Board of Tax Review, 228 Conn. 23, 32, 633 A.2d

1368 (1993); see also Torrington Tax Collector, LLC v.

Riley, 354 Conn. 66, 80, 349 A.3d 551 (2026) (collateral

estoppel requires proof that issue was “actually litigated and decided” in prior action); 1 Restatement (Second),

supra, § 27, p. 250 (“[w]hen an issue of fact or law is

actually litigated and determined by a valid and final

Deutsche Bank AG v. Vik

judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent

action between the parties, whether on the same or a

different claim”). Accordingly, to successfully invoke

the doctrine of collateral estoppel, a party must demonstrate that (1) the issue was fully and fairly litigated in the prior action, (2) the issue was actually litigated and decided in the prior action, and (3) the issue was

necessary to the judgment in the prior action. See Virgo

v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988);

Busconi v. Dighello, 39 Conn. App. 753, 767–68, 668

A.2d 716 (1995), cert. denied, 236 Conn. 903, 670 A.2d

321 (1996). In this case, the defendants, as the parties

asserting the defense of collateral estoppel in a motion

for summary judgment, bore the burden of establishing

that no genuine issue of material fact existed as to each of those requirements. See Coyle Crete, LLC v. Nevins,

137 Conn. App. 540, 547–48, 49 A.3d 770 (2012).

A

Liability for the English Judgment

In its memorandum of decision, the court concluded

that collateral estoppel precluded the plaintiff from

relitigating “the personal liability of [Alexander] to the plaintiff under the English judgment and the enforcement of the English judgment against him . . . .” We

disagree that collateral estoppel applies to that issue.

The court’s determination is rooted in its misunderstanding of the claims asserted by the plaintiff in

this case. As previously noted, the alleged conduct

that underlies the plaintiff’s tortious interference and

CUTPA claims does not concern the October 2008 transfers at issue in the 2013 action or any conduct by the

defendants related thereto. The plaintiff’s tortious

interference and CUTPA claims in this case concern the

defendants’ alleged interference with the court-ordered

sale of the Confirmit shares from 2016, when the Norway enforcement action was commenced, to 2020, when

that sale closed. The present action is thus predicated

Deutsche Bank AG v. Vik

on different conduct regarding a different transaction

than those at issue in the 2013 action.

“Before collateral estoppel applies . . . there must be an identity of issues between the prior and subsequent proceedings. To invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding.” (Emphasis in

original; internal quotation marks omitted.) Corcoran

v. Dept. of Social Services, 271 Conn. 679, 689, 859

A.2d 533 (2004); see also Gladysz v. Planning & Zoning

Commission, 256 Conn. 249, 261, 773 A.2d 300 (2001)

(“collateral estoppel has no application in the absence

of an identical issue”). The issue sought to be litigated in the present case—whether the defendants interfered

with the court-ordered sale of the Confirmit shares from

2016 to 2020—differs dramatically from the issues

presented in the 2013 action to pierce the corporate veil, which concerned whether Alexander exercised dominion

and control over SHI, whether he commingled its assets

with his own, and whether he instigated the October

2008 transfers with the specific intent of rendering

SHI unable to pay its margin calls to the plaintiff. See

Deutsche Bank AG v. Sebastian Holdings, Inc., supra,

346 Conn. 584. In such instances, collateral estoppel

has no application.

Moreover, we note that the trial court in the 2013

action concluded that, because the plaintiff failed to

demonstrate that Alexander acted with the specific intent necessary to pierce the corporate veil, he could not be

held personally liable for the English judgment. See

id., 583–84. In the present action, the plaintiff has not contested that determination and does not seek to hold

Alexander personally liable for the English judgment.

As our Supreme Court observed in an earlier appeal in

this case, “[t]he present action . . . is not predicated on the English court’s findings; nor does it seek to impose

liability on the defendants for anything that transpired in that case.” Deutsche Bank AG v. Vik, supra, 349 Conn.

141 n.5. Whether Alexander may be held personally

Deutsche Bank AG v. Vik

liable for the English judgment, therefore, is irrelevant to the present action.

B

October 2008 Transfers

In its memorandum of decision, the court concluded

that collateral estoppel precluded the plaintiff from relitigating “whether the transfer of SHI’s assets, including

shares of Confirmit from SHI to [Alexander] in October

2008, was proper . . . .” We do not agree.

As our Supreme Court explained, “[e]ven when an

issue is actually litigated and decided in a prior action, collateral estoppel does not apply unless the trial court’s adjudication of that issue was necessary to the judgment. . . . [A]n issue is necessary to the judgment if, in the

absence of a determination of the issue, the judgment

could not have been validly rendered. . . . If an issue

has been determined, but the judgment is not dependent

[on] the determination of the issue, the parties may

relitigate the issue in a subsequent action. . . . Findings on nonessential issues usually have the characteristics

of dicta.” (Citations omitted; internal quotation marks

omitted.) Torrington Tax Collector, LLC v. Riley, supra,

354 Conn. 80.

The introductory paragraph to the trial court’s memorandum of decision in the 2013 action indicates that the

central question in that action was whether the plaintiff satisfied “its burden of proof to justify piercing SHI’s

corporate veil [because Alexander] diverted SHI’s assets

with the specific intent of rendering it unable to pay its margin calls to [the plaintiff].” Deutsche Bank AG v.

Sebastian Holdings, Inc., supra, 2021 WL 4482154, *1.

In resolving that question, the court expressly adopted

a tripartite test to determine whether the piercing of

SHI’s corporate veil was justified, which required proof

that Alexander (1) exercised dominion and control of

SHI, (2) commingled SHI’s assets with his own, and (3)

drained SHI’s assets “with the specific intent of leaving the corporation unable to pay its debts.” Id., *19–20. The

Deutsche Bank AG v. Vik

court further determined that “the test of specific intent requires a subjective finding of a defendant’s ‘conscious object’ to commit the harm alleged, in this case, i.e., that [Alexander] consciously sought to render SHI unable to

satisfy its margin calls from [the plaintiff].” Id., *22.

Applying that tripartite test, the court found that

the plaintiff had satisfied its first two prongs, stating in relevant part: “[T]he court does not hesitate to conclude that, as to the [October 2008 transfers], SHI had no

separate mind of its own or that [Alexander] completely

dominated and controlled SHI. . . . [T]he court finds that [the plaintiff] provided ample evidence of commingling

between SHI, [Alexander] and entities he controlled.”

Id., *28–29. The court nevertheless found, with respect

to the third prong of that test, that Alexander did not

act with the specific intent to render SHI unable to pay

its margin calls to the plaintiff. Id., *31.

In reaching that determination, the court reasoned:

“[O]ne salient fact stands out: [Alexander] left more

than $500 million in SHI’s accounts at [the plaintiff].

In fact, he could have credibly believed that he had

retained as much as $780 million in SHI’s accounts at

[the plaintiff]. SHI used this money to cover the first

five margin calls during the week of October 13. [The

plaintiff’s] contention that [Alexander] drained SHI’s

assets with the specific intent of rendering it unable to pay its margin calls is undermined by this salient fact,

which [the plaintiff] chooses to ignore. If [Alexander]

had specifically intended to prevent payment of SHI’s

debts to [the plaintiff], he went about it in a remarkably incompetent way, and [Alexander] did not strike the

court as financially incompetent.

“Further, [Alexander] had no reason to think that

the margin calls would exceed the nominal $780 million remaining in SHI’s accounts at [the plaintiff]. The

defendants’ forensic accountant [testified] that ‘[i]t took an army of quants’ to calculate the final balance of [the] derivative trades [made by SHI’s portfolio manager] and

that it was unlikely [Alexander] could have calculated

Deutsche Bank AG v. Vik

it.17 . . . [The plaintiff] cannot successfully contend that [Alexander] acted with specific intent to deprive it of

funds when he initiated the [October 2008 transfers] at a time when neither he nor [the plaintiff] knew the extent

of the losses that were eventually calculated.

“Ultimately, [Alexander’s] purpose in directing the

[October 2008 transfers] is irrelevant to the decisive

issue in this case, considering that he actually reserved over half a billion dollars to cover SHI’s unspecified

debts to [the plaintiff], if not as much as $780 million. This was not an unreasonable action given what he knew

at the time.”18 (Footnote in original.) Id., *30–31. The

court further found that, at the time that various assets were transferred from SHI in October 2008, Alexander

“credibly believed” that SHI’s assets held by the plaintiff “totaled at least $1.65 billion and [he] had no reason to believe the remainder of approximately $750 million

would be inadequate to cover any debt to [the plaintiff].” Id., *31. For that reason, the court concluded that the

plaintiff “has not satisfied its burden of proof that, in making the [October 2008 transfers], [Alexander] acted

with the specific intent of depriving SHI of its ability to satisfy its margin calls to [the plaintiff].” Id.

We agree with the trial court that Alexander’s purpose

in directing the October 2008 transfers was irrelevant to the decisive issue in the 2013 action, which was whether

he drained SHI’s assets with the specific intent of leaving the corporation unable to pay its debts. Although the

17

“A quantitative analyst or ‘quant’ is a specialist who applies mathematics and statistical methods to financial and risk management problems.” Deutsche Bank AG v. Sebastian Holdings, Inc., supra, 2021 WL 4482154, *30 n.21.

18

In discussing equitable considerations regarding whether to pierce the corporate veil, the court similarly found that, “[f]ar from draining all of SHI’s funds, [Alexander] left available in SHI’s accounts at [the plaintiff] at least $511 million and paid them on request. But for [the plaintiff’s] error in calculation, [Alexander] could credibly have believed that $250 million to $280 million remained in SHI's accounts at [the plaintiff in October 2008] even after paying” half a billion dollars in margin calls. Deutsche Bank AG v. Sebastian Holdings, Inc., supra, 2021 WL 4482154, *32.

Deutsche Bank AG v. Vik

court in its memorandum of decision expressly stated

that it “does not find fraud or deceit or illicit conduct” with respect to those transfers, that determination was

not essential to the court’s judgment. See DaCruz v.

State Farm Fire & Casualty Co., 268 Conn. 675, 686,

846 A.2d 849 (2004) (“[i]ssue preclusion arises when

an issue is actually litigated and determined by a valid

and final judgment, and that determination is essential

to the judgment” (internal quotation marks omitted)).

The court’s memorandum of decision in the 2013 action

plainly indicates that its conclusion that Alexander did

not act with the requisite intent when he drained SHI’s

assets was predicated on the court’s determinations that, at the time of the October 2008 transfers, (1) neither

Alexander nor the plaintiff knew the extent of the losses that were eventually calculated, (2) Alexander did not

drain all of SHI’s assets but, rather, “reserved over half a billion dollars to cover SHI’s unspecified debts,” and (3) Alexander had “no reason to believe [that this] remainder . . . would be inadequate to cover any debt to [the plaintiff].” Deutsche Bank AG v. Sebastian Holdings, Inc.,

supra, 2021 WL 4482154, *31. Because the judgment

denying the plaintiff’s declaratory action to pierce the

corporate veil in the 2013 action could have been validly rendered without resolving the issue of whether the

October 2008 transfers were proper, that issue was not

necessary to the judgment.19 See Torrington Tax Collector, LLC v. Riley, supra, 354 Conn. 80. For that reason,

19

The present case thus resembles illustration 13 to § 27 of the Restatement (Second), which states: “A brings an action against B to recover interest on a promissory note payable to A, the principal not yet being due. B alleges that he was induced by the fraud of A to execute the note, and further alleges that A gave him a release under seal of the obligation to pay interest. The court, sitting without a jury, finds that A had given such a release but that B was not induced by A’s fraud to execute the note, and gives verdict for B on which judgment is entered. After the note matures A brings an action against B for the principal of the note. B is not precluded from defending this action on the ground that B was induced by A’s fraud to execute the note.” 1 Restatement (Second), supra, § 27, illustration (13), p. 258.

Deutsche Bank AG v. Vik

the trial court in the present case improperly concluded

that collateral estoppel applies to that issue.

C

Ownership of Confirmit Shares

In its memorandum of decision, the court also concluded that collateral estoppel precluded the plaintiff

from relitigating whether Alexander “was the owner of

the Confirmit shares in October 2008.” For two reasons,

we disagree.

First, the issue of precisely who owned the Confirmit

shares in October 2008 was not necessary to the judgment

in the 2013 action.20 The plaintiff’s action to pierce the corporate veil required the court in the 2013 action to

determine whether Alexander exercised dominion and

control over SHI, whether he commingled its assets

with his own, and whether he instigated the October

2008 transfers with the specific intent of rendering

SHI unable to pay its margin calls to the plaintiff. See

Deutsche Bank AG v. Sebastian Holdings, Inc., supra,

346 Conn. 584. The court found that the plaintiff had

not established that specific intent. Accordingly, the

question of whether Alexander was the owner of the

Confirmit shares that were transferred in October 2008

was not necessary to the court’s judgment declining to

pierce the corporate veil.

Second, Alexander’s ownership of the Confirmit shares

in October 2008 is neither disputed by the plaintiff nor

relevant to the present action. In its complaint in this

case, the plaintiff alleged that Alexander “maintained

sole ownership of . . . Confirmit until approximately 2015 20

In neither their appellate brief nor their oral argument before this court have the defendants offered any analysis as to why a determination that Alexander was the owner of the Confirmit shares in October 2008 was necessary to the judgment in the 2013 action. See, e.g., Dowling v. Finley Associates, Inc., 248 Conn. 364, 378–79, 727 A.2d 1245 (1999) (“[a]s the moving party seeking summary judgment, it [is] incumbent upon the defendants to show that the judgment against the plaintiffs in the [prior] action could not have been rendered without deciding the issues upon which the [present] action was predicated”).

Deutsche Bank AG v. Vik

. . . .”21 The plaintiff further averred that, on December 21, 2016, the Oslo Enforcement Court “held that SHI

was the true owner of the Confirmit shares at the time

the execution lien was established” in 2016, and that

the Supreme Court of Norway affirmed that decision in

2019, “thereby definitively establishing that SHI was

the true owner of the Confirmit shares at the time the

execution lien was put in place.” The present action,

therefore, does not concern ownership of the Confirmit

shares in 2008 but, rather, their ownership in 2016

when the execution lien was established. As a result,

the requisite identity of issues necessary to advance a

collateral estoppel defense; see Solon v. Slater, supra,

345 Conn. 811; is lacking with respect to that issue. As

our Supreme Court noted in the earlier appeal in this

case, “[t]he [2013 action] involved the narrow question

of whether the trial court could pierce SHI’s corporate

veil and hold Alexander personally liable for the English judgment on the basis of conduct occurring prior to

November 1, 2008. . . . The present case involves whether the defendants were involved in a conspiracy between

2016 and 2020 to halt or delay the sale of a Norwegian

software company in order to prevent the plaintiff from

partially satisfying the English judgment.” (Citation

omitted; emphasis added.) Deutsche Bank AG v. Vik,

supra, 349 Conn. 136. For those reasons, we conclude

that the court improperly concluded that collateral estoppel applied to the issue of whether Alexander was the

owner of the Confirmit shares in October 2008.

The judgment is reversed and the case is remanded for

further proceedings according to law.

In this opinion the other judges concurred.

21

In its complaint in the 2013 action, the plaintiff similarly alleged that Alexander “retained legal and/or beneficial ownership and control” of the funds transferred from SHI in October 2008, including the Confirmit shares.