Full opinion text
MEMORANDUM AND ORDER DOLINGER, United States Magistrate Judge: This lawsuit is being prosecuted by twenty-three former employees of RCA Global Communications, Inc. (“RCAG”). All were terminated, effective May 30, 1988, following the stock purchase of RCAG by MCI Communications Corporation (“MCIC”) on May 16, 1988. Asserting four claims under the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. (“ERISA”), plaintiffs complain principally that they were entitled to severance benefits under the RCAG severance benefits plan, and they seek the difference between those benefits and the payments that were in fact made to them under the less generous severance plan of MCIC. In addition, thirteen plaintiffs assert a claim under section 104 of ERISA based on defendants’ alleged failure to provide requested plan documents and information in a timely fashion. Following the completion of discovery in this case, plaintiffs have moved for summary judgment on three of their four claims. In their turn, defendants seek summary judgment with respect to each of plaintiffs’ four claims. A. Plaintiffs’ Claims Plaintiffs were all long-term non-unionized employees of RCAG. They allege that RCAG was the sponsor and administrator of a severance benefits plan that was in effect at the time that the stock of RCAG was sold to MCIC. According to plaintiffs, they were informed within one to three days after the May 16, 1988 closing that they were being terminated effective May 30,1988, and in fact they were so terminated, assertedly without ever having been called upon to perform any services for the purchasing corporation or its subsidiaries. Claiming that they were therefore entitled to benefits under the RCAG severance plan, plaintiffs allege that they were paid substantially less, on the purported basis that only the MCIC severance plan applied to them. Based on these events, the “Third Amended Complaint” asserts three claims for denial of benefits. The first claim is asserted under 29 U.S.C. § 1132(a)(1)(B) and is premised on the contention that, at the time of termination, plaintiffs were still participants in the RCAG severance plan and entitled to be paid under its terms rather than at the lower level authorized by the MCIC plan. (See Third Amended Complaint at ¶¶ 23-25) (Pltffs’ Exh. 1). The second claim, based on the same denial of benefits, asserts that defendants breached their fiduciary duties under 29 U.S.C. § 1104. The remaining claim devoted to the denial of severance benefits is the fourth claim, which alleges that defendants conspired to deny plaintiffs their benefits under the RCAG plan by deliberately withholding the announcement of their termination until after the closing of the stock sale of RCAG. Based on their contention that they were, in effect, “hired to be fired,” plaintiffs asserted a claim under 29 U.S.C. § 1140 for unlawful discharge or discrimination intended to interfere with their right to benefits. (See Third Amended Complaint at ¶48.) In response to defendants’ summary judgment motion, however, plaintiffs concede that this claim should be dismissed for lack of proof of intent. (Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment at pp. 2-3) (“Pltffs’ Memo.Opp.”). The remaining claim, asserted by thirteen of the plaintiffs, is premised on the alleged failure of RCAG to comply with a request for information made on those plaintiffs’ behalf by their attorney. Plaintiffs allege that RCAG failed to turn over a number of plan documents, including “the terminal report and a board of directors’ resolution of defendant RCA Globcom purporting to terminate the RCA Globcom Severance Plan” (Third Amended Complaint at ¶ 38), in violation of 29 U.S.C. § 1024(b)(4). They therefore seek a statutory penalty of $100.00 per day for each day of delay in providing the requested items. B. The Factual Record Since both sides have moved for summary judgment, our principal focus must be on the extent of the undisputed factual record. The following summary reflects, in principal part, those purportedly material facts that are not in genuine dispute. To the extent that any . potentially significant facts are not conceded, I will note the nature of the dispute. 1. The Events Leading to Termination Until the May 16, 1988 stock purchase by MCIC, RCAG was a wholly-owned subsidiary of GE Subsidiary 21, Inc., which was in turn a wholly-owned subsidiary of General Electric Company (“GE”). (See Pltffs’ Exh. 5; Defts’ Exh. 2.) RCAG was thus separate and distinct from RCA Corporation — apparently another subsidiary of GE — although the precise relationship between the two is not specified in the record. The plaintiffs all worked for RCAG for many years as non-union employees in various departments of the company. By no later than 1984 RCAG had adopted an employee severance benefit plan for non-represented salaried employees. (See Defts’ Answers to Pltffs’ Second Set of Interrogatories # 19.) The plan was both sponsored and administered by RCAG. (See Pltffs’ Exh. 3.) Under its terms, an eligible employee would be entitled to payments measured in terms of years of service and salary, with a maximum cap on benefits of 52 weeks of pay. (Pltffs’ Exh. 4 at p. 3.) According to the “Procedure” that described the RCAG “Severance Allowance for Non-Represented Employees,” the benefits would be paid if the employee’s “active employment” were “terminated” in any of the following circumstances: a. Reduction in force. b. Organizational realignment. c. Discontinuance of an operation. d. Loss of contract or sale of an operation to another company. e. Lack of work. f. Location closing. (Pltffs’ Exh. 4 at p. I.) The plan also specified several situations in which benefits would not be paid to laid-off employees. As summarized by the SPD, it provided for no benefits í¡í * * * * if you: are offered a job by a company to which RCA Global Communications, Inc. has lost a contract or sold a business operation in which you have been working at substantially [the] same or higher level of work and at a level of compensation and benefits which RCA Global Communications, Inc. deems to be substantially the same or better than you are receiving. (Defts’ Exh. 17 at p. 2.) As for the amount of severance benefits payable under the plan, employees with a total service credit of two to fifteen years would be paid two weeks of base salary “for each completed year of service.” (Id.) Employees with a service credit of sixteen to twenty-one years were entitled to receive three weeks of salary “for each completed year of service over 15 years up to and including 21 years.” (Id.) For employees with a service credit of twenty-two or more years, the specified benefits were “52 weeks (Maximum).” (Id.) The plan provided that “RCA Globcom may amend or terminate this Policy at any time.” (Pltffs’ Exh. 4 at p. 4.) It did not, however, specify any procedure for such amendment or termination. On September 3, 1987 it was announced that GE and MCIC had signed a letter of intent for the sale of a GE subsidiary to MCIC. (See Defts’ Exh. 1.) On October 29, 1987, GE and MCIC signed a Stock Purchase Agreement under which, subject to approval by the Federal Communications Commission, GE agreed to sell to MCIC all outstanding capital stock in a wholly-owned subsidiary identified as GE Subsidiary, Inc. 21 or “Glob-com Prime.” (Defts’ Exh. 2 & Pltffs’ Exh. 5 at ¶ 1.1.) Globcom Prime was the parent of RCAG, which was its only subsidiary. (Id. at 11111.1, 3.1(e).) The agreement specifically referred to, and included as a schedule, a list of “[a]ll Current Benefit Plans” for which any “member of the Globcom Group” was a sponsor. (Id. at ¶ 3.1(o) & Sch. F.) Among the plans so listed was the severance benefits plan sponsored and administered by RCAG. In its specification of covenants, the agreement obligated the seller to accept certain undertakings with respect to some of the listed plans, follows: Thus, section 4.3(h) stated as Globcom [RCAG] and certain other members of the Globcom Group are employers included and participating in the RCA Retirement Plan for Employees of RCA Corporation and Subsidiary Companies (“RCA Retirement Plan”), RCA Income Savings Plan (“RCA Savings Plan”), Retirement Plan for Certain International Employees of Certain Subsidiaries of RCA (“Offshore Plan”), and welfare benefit plans for employees of RCA Corporation and its present or former subsidiary companies (“RCA Welfare Benefit Plans”). Apart from noting that Schedule F contained a listing of all of these RCA Corporation plans, section 4.3(h) specified the agreed-upon resolution of the Globcom Group’s participation in those plans. With respect to the RCA Retirement Plan, the contract provided that, “[e]ffective at or immediately prior to the Closing Date, employee-members of the Globcom Group will no longer be eligible to participate in the RCA Retirement Plan because the Globcom Group will no longer be subsidiaries of Seller and the Seller will cause each member of the Globcom Group included in the RCA Retirement Plan to terminate the Plan as to its respective employees.” (Id. § 4.3(h)(i).) The contract addressed the RCA Savings Plan in similar terms, stating that “[e]ffective at or immediately prior to the Closing Date, employee-members of the Globcom Group will no longer be eligible to participate in the RCA Savings Plan because the Globcom Group will no longer be subsidiaries of Seller and Seller will cause each member of the Globcom Group that has adopted the RCA Savings Plan for their respective employees to terminate the Plan as to its respective employees.” (Id. at ¶ 4.3(h)(ii).) The contract also referred to the “RCA Welfare Benefit Plans.” (Id. at § 4.3(h)(iii).) With respect to these plans, it provided that “[ejffective at or immediately prior to the Closing Date, employee-members of the Globcom Group will no longer be eligible to participate in RCA Welfare Benefit Plans because the Globcom Group will no longer be subsidiaries of Seller and the Seller will cause each member of the Globcom Group with employees covered by RCA Welfare Benefit Plans to withdraw and terminate participation in those plans as to its respective employees.” (Id.) Section 4.3(h) of the contract made similar reference to the so-called Offshore Plan and to certain Foreign Benefit Plans. (See id. at §§ 4.3(h)(iv) & (v).) The contract did not, however, explicitly address plans sponsored and administered by RCAG or other members of Globcom. In fulfillment of the requirements of section 4.3(h) of the Stock Purchase Agreement, the Board of Directors of RCAG approved a resolution dated January 21,1988. The resolution provided that, effective the Closing pursuant to the Stock Purchase Agreement, dated October 29, 1987, between General Electric Company and MCI Communications Corporation, this Corporation hereby withdraws from participation in and terminates as to its employees the Retirement Plan for the Employees of RCA Corporation and Subsidiary Companies, the RCA Income Savings Plan, the Retirement Plan for Certain International Employees of Certain Subsidiaries of RCA (“the Offshore Plan”) and all employee welfare benefit plans administered by RCA Corporation for employees of its present or former subsidiary companies. (RCAG Consent of Directors, Defts’ Exh. 3.) Consistent with the limited scope of section 4.3(h) of the Stock Purchase Agreement, this resolution made no reference to and did not purport to terminate or otherwise affect any plan sponsored and administered by RCAG itself. (See also Dep. of Valerian Podmolik at 105.) Moreover, prior to issuance of this resolution, the President and CEO of RCAG had advised all RCAG employees in writing that the stock purchase would require termination of participation in all RCA Corporation benefit plans, but he made no reference to terminating the RCAG plans. (See Defts’ Exh. 5.) While the parties were waiting for FCC approval, MCIC was prohibited from exerting any direct control over RCAG. (See 47 U.S.C. § 310(d).) Nonetheless, during the interim period MCIC began to plan for the eventual takeover of RCAG. One form of planning involved decisions as to how to merge the various departments of RCAG into the pre-existing structure of defendant MCI International, Inc. (“MCII”), a subsidiary of MCIC. As part of this process, in the early Spring of 1988, MCI officials obtained lists of RCAG employees by department and, after consulting with RCAG supervisors, began to make decisions as to which of the RCAG employees would be hired by MCII and which would be let go. (See Dep. of Robert Ottman at 30; Dep. of Nicholas Mar-año at 59; Dep. of Jeffrey Previte at 19-20, 45-47, 54; Dep. of William Pacquin at 49, 51. See also Pltffs’ Exhs. 10,13,14,16-18.) It is not genuinely disputed that most of these decisions as to personnel had been finalized by the time of the closing on May 16, 1988. (See, e.g., Pltffs’ Exh. 12; Maraño Dep. at 25-26, 44; Ottman Dep. at 25-26; Previte Dep. at 24-25, 30; Dep. of Fred Briggs at 12, 105.) Defendants do insist that final decisions had not been made prior to the closing as to most, if not all, of the plaintiffs. (See Defts’ Response to Pltffs’ Request to Admit # 75; Answer to Third Amended Complaint at ¶ 44.) Apart from these hiring and firing decisions, during the waiting period MCIC also decided to take certain preliminary steps to integrate the RCAG staff into its workforce structure. Thus, in evident anticipation of its acquisition of RCAG, MCIC arranged for a series of meetings by its human resources officers with RCAG employees for the purpose of explaining to them the basic terms of the various MCI employee benefit plans. (E.g., Defts’ Exhs. 6-8; Pltffs’ Exh. 20; EEOC Dep. of Nicholas Maraño at 18-22; Maraño Dep. at 20-22; Dep. of Dennis Helper at 26.) Plaintiffs all attended these meetings, which were conducted in mid-December 1987 at the RCAG offices in Piscataway, New Jersey. (Dep. of Joseph Coppolla at 5-8.) The presentations at these meetings were oral, although the MCIC representatives apparently supplemented their statements with the projection of some transparencies. Apart from summarizing the basic terms of the various MCI plans, including the MCIC severance plan, it is not clear what the MCI speakers said to the RCAG employees. In particular, there is no evidence to suggest that they advised those employees that some would be laid off after the closing or that they referred in any specific way to what benefits would be made available to those employees terminated right after the closing of the stock purchase. (See Previte Dep. at 79; Maraño EEOC Dep. at 19-20.) In addition, during the waiting period MCIC modified its severance benefits plan in one respect. Unlike the RCAG plan, the MCIC plan calculated benefits of all employees at two weeks of pay for each completed year of service and capped benefits at 30 weeks of pay. (See Defts’ Exh. 8 at p. 50.) To accommodate its anticipated acquisition of RCAG, however, MCIC amended the plan to give RCAG employees credit for time worked at RCAG. MCIC did not, however, lift the 30-week cap on benefits. (See Defts’ Exh. 37 at p. 2.) In March 1988, apparently as a follow-up to the prior meetings with RCAG employees, MCIC sent to all RCAG employees various forms to be filled out for the purpose of enrolling, after the projected closing, in the MCIC benefit plans, as well as W-4 forms to facilitate inclusion in the MCII payroll system. (See Pltffs’ Exhs. 21-22; Defts’ Exh. 10.) As with other RCAG employees, the plaintiffs in this case apparently filled out the necessary forms and returned them to MCII. (E.g., Pltffs’ Exh. 23.) The Federal Communications Commission approved the proposed stock purchase on May 6, 1988. (Pltffs’ Exh. 24.) On May 16, 1988 the stock purchase closed without the need for a formal closing meeting. Immediately after the closing, MCII began to distribute two different categories of letters to RCAG employees. (Pltffs’ Exh. 17; Maraño EEOC Dep. at 55.) One set, described as welcoming letters, was sent to those RCAG employees who were to be retained by MCII and integrated into its staff. These letters advised the employee that he was being hired to work for MCII, specified the person’s new MCII job classification and salary and informed him of the name of his immediate supervisor and his work location. (E.g., Pltffs’ Exh. 29; Maraño Dep. at 52.) The other type of letter, the so-called termination letter, was delivered to those RCAG employees who were not to be retained by MCII. Each of the plaintiffs was given a termination letter dated either May 17 or May 18, 1988. (See Pltffs’ Exh. 27.) They received those letters either on the date of the letter or within a day of two thereafter. The letters, all of which were on MCII letterhead and signed by Nicholas A. Maraño, MCII’s Director of Human Resources, stated: “I regret to inform you that the Company will be experiencing a reduction in staff in the next few days. As a result of the reduction, your employment with MCI International will be terminated effective May 30, 1988.” The letters went on to state that the employees would receive severance benefits calculated under the MCIC severance benefits plan and would also receive extended health and life insurance coverage under the MCI plans. (Id.) In each instance the individual was instructed that he or she should report for career counselling starting either on May 17 or on May 19, 1988. It is undisputed that none of the plaintiffs was ever classified under the MCII job classification system, and that all were promptly funnelled to the career counselling program. It is also clear that all, with the possible exception of one or two (see Dep. of Wallace Carnegie at 59), were instructed not to report to their regular job stations and never performed any work for MCII or, indeed, for any other entity within the MCI family. There is equally no dispute that none was assigned a new salary or advised of any work station to which to report or given a job supervisor. As for RCAG itself, it was not dissolved. Rather, it was assigned as a subsidiary of Western Union International, itself a subsidiary of MCII. (See Defts’ Reply to Pltffs’ Rule 3(g) Statement at ¶21.) Indeed, as recently as 1990, RCAG filed at least one corporate document with the New York Secretary of State indicating its continued existence. (Pltffs’ Exh. 25.) In addition, it is apparent that as of the closing RCAG and its Board had taken no steps to terminate its own severance benefits plan. (Podmolik Dep. at 118.) There is also no evidence that after the closing either RCAG or anyone on its behalf took any action to terminate the plan. For the period from May 16 to 30,1988, all of the plaintiffs were paid at their prior RCAG salary levels. For the week from May 16 through 20, each was paid by check issued by RCAG. (Pltffs’ Exh. 33.) For the succeeding time period, through May 30, 1988, they were paid by checks issued by MCII. (Pltffs’ Exh. 34.) Corresponding to these payments, the plaintiffs later received W-2 forms from RCAG and from MCIC for the two respective time periods between May 16 and 30, 1988. (Pltffs’ Exhs. 33, 35.) As for the corporate documentation of plaintiffs’ termination, these entries were made on RCAG forms, although plaintiffs’ names also appear on computer printouts reflecting the MCII personnel data base. (Pltffs’ Exh. 32 & Defts’ Exh. 12.) Defendants insist that, as of May 16, 1988, plaintiffs ceased to be employed by RCAG and became instead employees of MCII. In explanation of the apparent anomalies in the method of payment and recordkeeping, defendants assert in their reply papers that RCAG paid plaintiffs for the week of May 16 because it was the middle of the MCII pay period and that MCII later reimbursed GE for these payments. (See Affidavit of Jeffrey A. Previte, sworn to April 13, 1993, at ¶4; Defts’ Reply to Pltffs’ Rule 3(g) Statement at ¶26). As for the personnel files, MCII asserts that it chose, “as a matter of convenience,” to use RCAG forms to record personnel decisions concerning plaintiffs, even though, as of May 16,1988, plaintiffs were no longer RCAG employees. (Previte Aff. at ¶ 3.) 2. Post-Termination Events Although plaintiffs ultimately received various MCI benefits, they did not obtain the more lucrative severance payments to which they claimed entitlement under the RCAG severance plan. Accordingly, twelve of them initially hired John Lankenau, Esq. to represent them in dealing with RCAG and MCI. By letter dated November 23, 1988, and addressed to RCAG, Mr. Lankenau requested, on behalf of the twelve individuals that they be paid severance benefits in accordance with the RCAG plan. By the same letter he requested provision “of all plan documents and other plan information.” (Pltffs’ Exh. 36 at p. 3.) In response, MCII sent counsel a letter dated January 13, 1989 and RCAG responded by letter dated January 16, 1989. (Defts’ Exhs. 37, 38.) The January 13 letter, signed on behalf of the MCII Severance Pay Plan Committee, treated the November 23 letter as a request for additional benefits from MCII and declined the request. In so doing MCII stated that the claimants’ “employment with RCA Global Communications, Inc. was terminated” on May 30, 1988, and that they had received all the benefits due under the MCII plan. As for possible entitlement to RCAG benefits, the letter referred claimants to RCAG. MCII also enclosed copies of the MCII Plan and its Summary Plan Description. The January 16 letter, written on RCAG letterhead and on behalf of the RCAG Severance Allowance for Non-Represented Salaried Employees, denied plaintiffs’ request for benefits under the RCAG plan. In explanation, RCAG stated that the plan “and claimants’ participation in that Policy were terminated on May 16, 1988.” Accordingly, it concluded, “[a]t the time of claimants’ termination of employment on about May 30, 1988, they were no longer participants in the RCA Severance Policy and had no entitlement to a benefit under that policy.” (Pltffs’ Exh. 38.) In addition, RCAG enclosed a copy of the RCAG “Procedure” for its severance plan, and requested Mr. Lankenau to specify whether he was seeking any additional documents. In response to this letter, Mr. Lankenau again wrote to RCAG, on January 25, 1989, seeking a variety of documents for the twelve original claimants and for a thirteenth claimant. (Pltffs’ Exh. 44.) These included all documents relating to the claimants’ termination and to the termination, if any, of the RCAG severance plan, all filings with the Department of Labor concerning the severance policy and documents reflecting the service credit of each claimant. (Id.) This letter provoked two responding communications, both dated February 16, 1989, one from MCII and the other from RCAG. The MCII letter (Pltffs’ Exh. 39) treated counsel’s earlier letter as a request for additional MCII severance benefits for the thirteenth claimant and denied the request without commenting on any possible entitlement to RCAG severance benefits. As for the RCAG letter, it too addressed the request for benefits by the thirteenth claimant and denied it on the basis that the severance plan had been terminated on May 16, 1988 and, hence, the claimant was not a participant as of May 30, 1988, when he was terminated. (Pltffs’ Exh. 40.) On February 28, 1989, Mr. Lankenau again wrote to RCAG, appealing on behalf of the thirteenth claimant and asking for the same documents as previously requested on behalf of the first twelve claimants. (Pltffs’ Exh. 43.) By letters dated May 5 and May 8, 1989, MCII and RCAG reiterated their denial of additional benefits to any of the thirteen claimants. (Pltffs’ Exhs. 41 & 42.) The MCII letter again stated that claimants had been covered by the MCII plan and paid in accordance with its terms. As for RCAG, it reiterated that its plan had been terminated prior to the claimants’ termination and that they were not entitled to any benefits under that plan. As for the document request, RCAG enclosed a copy of the SPD and another copy of the RCA Severance Policy “Procedure.” (Pltffs’ Exh. 42.) ANALYSIS As noted, plaintiffs seek summary judgment on three of their claims, while defendants move for equivalent relief as to all four asserted claims. Before addressing the merits of those claims, we must first consider a defense — or more precisely two versions of a defense — proffered by defendants with respect to the three claims for denial of severance benefits. As argued by defendants, they are entitled to judgment on Counts I, II and IV by virtue of either claim or issue preclusion, an effect that is said to arise from a decision of the Ninth Circuit in a case entitled Pippin v. RCA Global Communications, 979 F.2d 855, No. 91-16282, unpublished Memorandum (9th Cir. Nov. 20, 1992) (text available on Westlaw, 1992 WL 344962). (See Defts’ Exh. 25.) A. The Preclusion Defense To assess defendants’ argument based on the Pippin decision, we must first summarize briefly the pertinent facts on which their analysis turns. As will be seen, their argument is unsupported by the facts and the law. In April 1989 five former employees of RCAG, all of whom resided in California, filed suit in the Northern District of California against both RCAG and MCII. Each had been terminated in the wake of the stock purchase closing under circumstances apparently comparable to those encountered by the plaintiffs in this case, and thus had been paid only under the less generous terms of the MCI severance plan. As reflected by the First Amended Complaint in Pippin (Pltffs’ Exh. 58), the plaintiffs there asserted eight claims. The first two most closely resembled the issues involved in the Algie case. The first was based on allegations that MCII had determined prior to the closing which RCAG personnel it intended to terminate, and that MCII and RCAG had conspired to deny plaintiffs their benefits under the RCAG plan by the “purported” termination of the RCAG plan at the time of the closing. (First Amended Complaint at ¶ 37.) In reliance on these allegations, the Pippin plaintiffs asserted that defendants had engaged in “an unlawful de facto revision to and unlawful termination of the Globcom plan for the bad faith purpose of denying specified benefits to plaintiffs, in violation of 29 U.S.C. § 1140.” (Id. at ¶ 38.) That section prohibits “any person [from] discharging], fin[ing], suspending], expelling], disciplining] or discriminating] against a participant ... for exercising any right to which he is entitled under the provisions of an employee benefit plan ... or for the purpose of interfering with the attainment of any right to which each participant may become entitled under the plan [or] this subchapter.” In support of the plaintiffs’ second claim, they asserted that they had been terminated by RCAG at the time of the clgsing and that each had been entitled to RCAG plan benefits. According to plaintiffs, defendants had denied them benefits on the asserted basis that they had been discharged after May 16, 1988, following the termination of the RCAG plan on May 16, 1988. Plaintiffs alleged that this stated “reason was arbitrary and capricious because Globcom knew before May 16, 1988 that plaintiffs’ employment would be terminated in conjunction with the sale to MCI.” (Id. at ¶ 43.) Based on these allegations, plaintiffs asserted a separate claim for “bad faith” or “arbitrary and capricious” denial of benefits in violation of 29 U.S.C. § 1140. (ta at ¶ 44.) . Plaintiffs’ third claim was for age discrimination under 29 U.S.C. § 626 and California law. The fourth claim, asserted only by one plaintiff, charged discrimination on the basis of national origin, in violation of Title VII, 42 U.S.C. § 2000e-2, and California law. The balance of plaintiffs’ complaint in Pippin invoked state law to assert claims of breach of contract (First Amended Complaint at ¶¶ 67-70, 72-76), breach of a covenant of good faith and fair dealing (id. at ¶¶ 78-80), and violation of section 201 of the California Labor Code. (Id. at ¶¶ 82-87.) In August 1989, the plaintiffs in this case filed them original complaint. As is evident from that pleading, although they too complained of the denial of RCAG severance benefits, they asserted no claim under 29 U.S.C. § 1140 or any state law, but rather pled three ERISA claims, for denial of benefits in violation of 29 U.S.C. § 1132(a), for breach of fiduciary duty in violation of 29 U.S.C. § 1104, and for denial of plan information, in violation of 29 U.S.C. § 1024(b)(4). (Pltffs’ Exh. 62.) It also bears emphasis that the record contains no evidence that either the plaintiffs in this case or their attorney, John Lankenau, Esq., were aware at the time of the pendency of the Pippin litigation. In December 1989 the district court in Pippin granted in part defendants’ motion to dismiss. (Defts’ Exh. 23.) Judge Smith dismissed the first claim, for bad-faith termination of the RCAG plan, since an employer has the right under ERISA to terminate an employee welfare benefit plan. She also dismissed two state-law claims as preempted by ERISA. Ultimately the only claim to survive in Pippin was the second, alleging a bad-faith denial of benefits. The parties then cross-moved for summary judgment, and by Memorandum dated Feb. 6, 1991 Judge Smith granted plaintiffs’ motion. (Defts’ Exh. 24.) Finding that plaintiffs’ had been “hired to be fired” (Memorandum at p. 449), the court held “that defendants’ conduct toward plaintiffs violated section 1140” since they “structured the employment relationship with plaintiffs, at least in part, ‘for the purpose of depriving them of full severance benefits under the RCAG Plan.” (Id. at p. 448.) The evidence in the record indicates that it was only after the issuance of this decision in Pippin that the Algie plaintiffs’ counsel learned of the Pippin litigation, when the attorneys representing the Pippin plaintiffs notified him of the lawsuit and the successful outcome in the district court. (See Affirmation of John C. Lankenau, executed April 16, 1993, at ¶¶ 11-19; Reply Affirmation of Wayne N. Outten, Esq., executed April 26, 1993, at ¶ 7.) Based on that decision, which was published at 756 F.Supp. 446 (N.D.Cal. 1991), plaintiffs in Algie successfully moved to amend the latest version of their complaint to incorporate, as their fourth claim, the section 1140 claim that Judge Smith had upheld in California. (See 1992 WL 367080, Memorandum & Order dated November 25, 1992.) Subsequently defendants appealed the decision of Judge Smith in Pippin. In an unpublished memorandum decision filed November 20, 1992, the Ninth Circuit reversed and ordered entry of summary judgment for defendants. (Defts’ Exh. 25.) In its brief discussion, the Court addressed the second claim as simply one for denial of benefits under 29 U.S.C. § 1132(a)(1)(B) since plaintiffs had conceded at oral argument that they could not establish the specific intent required by section 1140. (See id. at p. 2.) As for the merits of the recharacterized claim, the Court observed at the outset that “[i]t is not disputed that plaintiffs would have qualified for benefits under RCAG’s severance benefits plan had they been discharged twenty-four hours before they were.” (Id. at p. 1.) The Court then summarized plaintiffs’ theory as being that “they were employees of MCI for twenty-four hours and therefore qualified for, and were entitled to, MCI’s severance benefits plan” while at the same time being entitled to RCAG benefits “in addition to the MCI severance benefits because they were discharged by RCAG prior to their employment by MCI.” (Id. at pp. 1-2) (emphasis in original.) According to the panel, plaintiffs “argue that the purported transfer from one entity to the other was a sham.” (Id. at p. 2.) In disposing of this claim the Court stated: The defect in plaintiffs’ argument is the absence of a triggering event. Plaintiffs were entitled to severance benefits under the MCI severance benefits plan. They have been paid in full. (Id. at p. 2.) Based on this holding by the Ninth Circuit, defendants now assert in this case that the Algie plaintiffs should be barred or estopped from asserting them three ERISA denial-of-benefits claims. In pressing for such an outcome, defendants’ arguments appear to shift somewhat from brief to brief. Principally they argue that the Algie plaintiffs were, in effect, represented by the plaintiffs in Pippin or that they were involved in the Pippin litigation in that they and their counsel here knew of it and deliberately chose not to intervene in California, deciding instead to “sit on the fence” and thereby gain a tactical advantage. Alternatively, defendants appear to argue that it is unfair that plaintiffs here, who are said to be identically situated to the Pippin plaintiffs, should be permitted to re-litigate what defendants contend are the very claims already disposed of in defendants’ favor in the Ninth Circuit. Whether denominated as a form of claim preclusion (commonly referred to as res judi-cata) or a form of issue preclusion (known as collateral estoppel), defendants’ theories cannot survive scrutiny. Notwithstanding defendants’ suggestions to the contrary, there is no evidence to suggest that any of the plaintiffs participated in, controlled or agreed to be bound by the Pippin litigation, and defendants offer no other basis for treating that lawsuit as preclusive here. The Restatement (Second) of Judgments defines the principle of res judicata, or claim preclusion, insofar as pertinent to this case, as follows: A valid and final personal judgment rendered in favor of the defendant bars another action by the plaintiff on the same claim. ALI Restatement (Second) of Judgments § 19 (emphasis added). The effect of such a bar is to preclude the assertion in later proceedings of all matters that either were or could have been raised in the first proceeding. See, e.g., 1B J. Moore, et al., Moore’s Federal Practice ¶¶ 0.405[1] at 178-79, 0.405[3] at 190-93 (2d ed. 1993); Federated Dep’t Stores v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2427-28, 69 L.Ed.2d 103 (1981); Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct. 2205, 2209, 60 L.Ed.2d 767 (1979); Saud v. Bank of New York, 929 F.2d 916, 918 (2d Cir.1991); Fay v. South Colonie Cent. School Dist., 802 F.2d 21, 28 (2d Cir.1986). The related principle of collateral es-toppel, or issue preclusion, is summarized by the Restatement as follows: When an issue of fact or law is actually litigated and determined by a valid and final 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. Restatement (Second) of Judgments § 27 (emphasis added). See generally IB Moore’s Federal Practice, supra, ¶ 0.441[2] at 722-31. This principle will preclude relitigation only of those matters “which were in issue or controverted and upon the determination of which the initial judgment necessarily depended.” 1B Moore’s Federal Practice, supra, ¶ 0.441[2] at 725. See, e.g., Brown v. Felsen, 442 U.S. at 139 n. 10, 99 S.Ct. at 2213 n. 10; In re PCH Assocs., 949 F.2d 585, 593 (2d Cir.1991); Jim Beam Brands Co. v. Beamish & Crawford Ltd, 937 F.2d 729, 734 (2d Cir.1991), cert. denied, 502 U.S. 1094, 112 S.Ct. 1169, 117 L.Ed.2d 415 (1992). As is evident from the accepted formulation of these rules, a party cannot be bound by a prior adjudication unless he can be said to have participated in the earlier proceeding. See, e.g., Milkovich v. Lorain Journal Co., 497 U.S. 1, 10 n. 5, 110 S.Ct. 2695, 2701 n. 5, 111 L.Ed.2d 1 (1990); Martin v. Wilks, 490 U.S. 755, 761, 109 S.Ct. 2180, 2184, 104 L.Ed.2d 835 (1989); Stone v. Williams, 970 F.2d 1043, 1060 (2d Cir.1992), cert. denied, — U.S.-, 113 S.Ct. 2331, 124 L.Ed.2d 243 (1993); United States v. Schwimmer, 968 F.2d 1570, 1577 (2d Cir. 1992); United States v. International Bhd. of Teamsters, 964 F.2d 180, 183 (2d Cir.1992). As noted in Hansberry v. Lee, 311 U.S. 32, 40, 61 S.Ct. 115, 117, 85 L.Ed. 22 (1940): It is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he had not been made a party by service of process. Indeed, this requirement has, in part, a constitutional basis since the Due Process Clause guarantees at least notice and an opportunity to be heard as a party. See, e.g., Haring v. Prosise, 462 U.S. 306, 313, 103 S.Ct. 2368, 2373, 76 L.Ed.2d 595 (1983); Kremer v. Chemical Const. Corp., 456 U.S. 461, 480-81 & n. 22, 102 S.Ct. 1883, 1896-97 & n. 22, 72 L.Ed.2d 262, reh. denied, 458 U.S. 1133, 103 S.Ct. 20, 73 L.Ed.2d 1405 (1982); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n. 7, 99 S.Ct. 645, 649 n. 7, 58 L.Ed.2d 552 (1979); Blonder-Tongue Lab., Inc. v. University of Illinois Found., 402 U.S. 313, 329, 91 S.Ct. 1434, 1443, 28 L.Ed.2d 788 (1971); Conte v. Justice, 996 F.2d 1398, 1401 (2d Cir.1993); Stone v. Williams, 970 F.2d at 1056, 1060. See generally Martin v. Wilks, 490 U.S. at 762 & n. 2, 109 S.Ct. at 2184 & n. 2 (due process satisfied by notice and opportunity to intervene, but federal rules limit preclusion to those served, not those with notice). In elaborating on this general point, the courts have recognized that in defined circumstances someone other than a “designated ... party” or a “served” party may be bound by a prior judgment or adjudication, but those circumstances are quite narrowly defined. As summarized by Professor Moore, those holdings of estoppel or bar based on a finding of privity to a litigant generally involve “concurrent relationships to the same property right; successive relationships to the same property or right; or representation of the interests of the same person.” 1B Moore’s Federal Practice, supra, ¶ 0.411[1] at III-215. See, e.g., Staten Island Rapid Trans. Operating Auth. v. ICC, 718 F.2d 533, 542 (2d Cir.1983); Connell v. Weiss, 1988 WL 78364 at *2-3 (S.D.N.Y. July 21, 1988); Horger v. New York University Medical Center, 642 F.Supp. 976, 979 (S.D.N.Y.1986); Clark v. International Bhd. of Teamsters, 598 F.Supp. 365, 367 (S.D.N.Y. 1984). See generally 1B Moore’s Federal Practice, supra, ¶ 0.411[1] at III — 211, 215-18; Restatement (Second) of Judgments §§ 36, 39-46, 48, 51-52. The first two of these categories plainly have no application here, and the remaining category — representation of the plaintiffs interests by a prior litigant — has not been shown to apply either. The adequacy of a prior party’s representation of a later party’s interests takes one of two distinct forms. First, if the current party in effect participated in the prior litigation by exerting sufficient “control” of it, he may be bound by its outcome. Second, in some narrowly defined circumstances the courts have recognized that a litigant in the first lawsuit may have given “virtual representation” to the later litigant, and in such a ease the represented party may be bound. I examine each of these principles separately. As defined by the Restatement, A person who is not a party to an action but who controls or substantially participates in the control of the presentation on behalf of a party is bound by the determination of issues decided as though he were a party. Restatement (Second) of Judgments § 39. The quintessential example of such control is found in Montana v. United States, 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979), in which the Supreme Court held the Government bound by a prior adjudication to which it was not a party, because the United States had (1) required the [prior] lawsuit to be filed; (2) reviewed and approved the complaint; (3) paid the attorneys’ fees and costs; (4) directed the appeal from the State District Court to the Montana Supreme Court; (5) appeared and submitted a brief in the Montana Supreme Court; (6) directed the filing of a notice of appeal to this Court; and (7) effectuated [plaintiffs] abandonment of that appeal on advice of the Solicitor General. Id. at 155, 99 S.Ct. at 974. Admittedly, the facts in Montana exceeded the minimum showing necessary to establish a non-party’s control of a lawsuit. Nonetheless, a purported controlling non-party must, at least, be able to decide what legal theories and evidence should be advanced in the first action and whether an appeal should be taken from an adverse decision. See, e.g., Restatement (Second) of Judgments § 39, Comment c; 1B Moore’s Federal Practice, supra, ¶ 0.411[6] at III-258 to 260; United States v. Davis, 906 F.2d 829, 833 (2d Cir.1990); Virginia Hosp. Ass’n v. Baliles, 830 F.2d 1308, 1313 (4th Cir.1987), cert. granted in part, 493 U.S. 808, 110 S.Ct. 49, 107 L.Ed.2d 18 (1989), aff'd, 496 U.S. 498, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990); United States v. Bonilla Romero, 836 F.2d 39, 43 (1st Cir.1987), cert. denied, 488 U.S. 817, 109 S.Ct. 55, 102 L.Ed.2d 33 (1988); Benson & Ford, Inc. v. Wanda Petroleum Co., 833 F.2d 1172, 1174 (5th Cir.1987); Hastings v. Judicial Conference of the United States, 829 F.2d 91, 100 & n. 40 (D.C.Cir. 1987), cert. denied, 485 U.S. 1014, 108 S.Ct. 1487, 99 L.Ed.2d 715 (1988); 18 C. Wright & A. Miller, Federal Practice & Procedure 4451 at 432-33 (1981). See also Nat’l Fuel Gas Distrib. Corp. v. TGX Corp., 950 F.2d 829, 839 (2d Cir.1991) (applying New York law) (participation as amicus insufficient to demonstrate control). In this case, there is no evidence that the Algie plaintiffs controlled the Pippin litigation in any respect. Indeed, it appears that neither plaintiffs nor their counsel were even aware of the Pippin lawsuit until virtually the termination of proceedings in the District Court in California. Necessarily, then, there is no evidence that the Algie plaintiffs had any role in selecting the legal theories or shaping the factual presentation in Pippin; indeed, the precise theories presented here, except for Count IV — which is no longer being pressed — differ significantly from what was argued in Pippin, and Count IV was added to this lawsuit only in the wake of the decision by the Pippin district court upholding that precise theory. Similarly, there is no evidence that the Algie plaintiffs or their counsel had any input whatsoever into how the Pippin plaintiffs handled the appeal to the Ninth Circuit. Compare, e.g., Ruiz v. Commissioner of Dep’t of Transp., 858 F.2d 898, 903-04 (2d Cir.1988) (plaintiffs controlled separate state-court litigation through their attorney). The principal alternative theory on which defendants appear to rest their estoppel or bar claim is the notion that, by virtue of their comparable legal interests vis-a-vis RCAG and MCI, the Pippin plaintiffs in effect represented the interests of the Algie plaintiffs, who must therefore be deemed bound by the prior adjudication. Again, defendants’ argument is well wide of the mark. The core of the representational theory of preclusion is summarized by the Restatement as follows: (1) a person who is not a party to an action but who is represented by a party is bound by and entitled to the benefits of a judgment as though he were a party. A person is represented by a party who is: (a) The trustee of an estate or interest of which the person is a beneficiary; or (b) Invested by the person with authority to represent him in an action; or (c) The executor, administrator, guardian, conservator, or similar fiduciary manager of an interest of which the person is a beneficiary; or (d) An official or agency invested by law with authority to represent the person’s interests; or (e) The representative of a class of persons similarly situated, designated as such with the approval of the court, of which the person is a member. Restatement (Second) of Judgments § 41(1). In any of these specified circumstances, the represented person “is bound by the judgment even though the person himself does not have notice of the action, is not served with process, or is not subject to service of process.” Id. § 41(2). As the terms of section 41 indicate, virtual representation requires either some form of agreement by the non-party to permit the litigant in the first suit to represent him (see also Restatement § 41, Comment a), or else a relationship between them that demonstrates that the litigant was authorized to represent and was in fact representing the legal interest of the non-party. “For a non-party to be so ‘closely aligned ... requires more than a showing of parallel interest or, even, a use of the same attorney in both suits.’ ” Benson & Ford, Inc. v. Wanda Petroleum Co., 833 F.2d at 1175 (quoting Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860, 864 (5th Cir.1985)). See also Casa Marie, Inc. v. Superior Court of Puerto Rico, 988 F.2d 252, 265 (1st Cir.1993) (citing cases); Allen v. Men’s World Outlet Inc., 679 F.Supp. 360, 363-64 (S.D.N.Y.1988) (quoting Staten Island Rapid Trans. Operating Auth. v. ICC, 718 F.2d at 542). Accord, Connell v. Weiss, 1988 WL 78364 at *2. It is evident that the principle of virtual representation cannot be applied in the current case. There is no evidence that the Algie plaintiffs authorized the Pippin plaintiffs to represent their legal interests. Moreover, the relationship between the two sets of plaintiffs was not one that would have endowed the Pippin plaintiffs with such authority. All were former RCAG employees who had been terminated in circumstances that led them to believe that they had been denied benefits owed them under the RCAG severance benefits plan. As such, the Pippin plaintiffs had legal interests parallel to those of the Algie plaintiffs, but this alone cannot create a basis for claim or issue preclusion. See, e.g., Staten Island Rapid Trans. Operating Auth. v. ICC, 718 F.2d at 542-43; Leonhard v. United States, 633 F.2d 599, 616 (2d Cir.1980), cert. denied, 451 U.S. 908, 101 S.Ct. 1975, 68 L.Ed.2d 295 (1981) (unsuccessful challenge by father to his forced separation from his children does not estop children’s claim for same misconduct). Accord, e.g., Montalvo-Huertas v. Rivera-Cruz, 885 F.2d 971, 975-76 (1st Cir.1989); Freeman v. Lester Coggins Trucking, Inc., 771 F.2d at 862-65 (citing cases); Connell v. Weiss, 1988 WL 78364 at *2; Allen v. Men’s World Outlet Inc., 679 F.Supp. at 363-64; Green v. Santa Fe Indust., Inc., 70 N.Y.2d 244, 252-54, 519 N.Y.S.2d 793, 796, 514 N.E.2d 105, 107-09 (1987) (suit by shareholders not barred by prior suit by other shareholders). As one circuit court has noted: “[P]rivity is not established by the mere fact that persons may happen to be interested in the same question or in proving the same state of facts.” Hardy v. Johns-Manville Sales Corp., 681 F.2d 334, 340 (5th Cir.1982) (quoting Benson v. Wanda Petroleum Corp., 468 S.W.2d 361, 363 (Tex.1971)). In seeking to avoid this conclusion, defendants rely principally on the decision of the Second Circuit in Amalgamated Sugar Co. v. NL Industries, Inc., 825 F.2d 634 (2d Cir.), cert. denied sub nom. Rothenberg v. Amalgamated Sugar Co., 484 U.S. 992, 108 S.Ct. 511, 98 L.Ed.2d 511 (1987), which they appear to read as authorizing application of claim or issue preclusion whenever the first litigant has the same type of factual and legal interests as the non-party. It plainly does not. At issue in Amalgamated Sugar was whether shareholders in a corporation were barred by a prior settlement by the corporation itself with respect to the same claim. Noting that the corporate directors, in settling the prior suit, were acting as fiduciaries for the shareholders, the court simply invoked the well-recognized principle “that collateral estoppel can be applied to nonparties where the litigating party acted in a fiduciary capacity in protecting the nonparties’ interests.” Id. at 641 (citing Sear-Land Services, Inc. v. Gaudet, 414 U.S. 573, 593, 94 S.Ct. 806, 819, 39 L.Ed.2d 9, reh. denied, 415 U.S. 986, 94 S.Ct. 1582, 39 L.Ed.2d 883 (1974)). As a fiduciary, the litigant in the first case is of course charged with loyally representing the specific legal interests of the beneficiary; hence, in such a circumstance the court may properly invoke the theory of virtual representation, at least when satisfied that the fiduciary did in fact fulfill his duties. See, e.g., id. at 641. See generally Restatement (Second) of Judgments §§ 41(l)(a), (c). That is not the ease here, however, since the Pippin plaintiffs bore no obligation to represent the legal interests of the Algie plaintiffs. Similarly inapplicable are the Second Circuit’s decisions in Ellentuck v. Klein, 570 F.2d 414 (2d Cir.1978), and Expert Elec., Inc. v. Levine, 554 F.2d 1227 (2d Cir.), cert,.denied, 434 U.S. 903, 98 S.Ct. 300, 54 L.Ed.2d 190 (1977), both of which are invoked by defendants. In each, an association had first filed and lost a lawsuit, and the court then held that a subsequent suit on the same claim by members of the association was barred since generally speaking, one whose interests were adequately represented by another vested with the authority is bound by [a prior] judgment although not formally a party to the litigation. Ellentuck v. Klein, 570 F.2d at 425-26 (quoting Expert Elect., Inc. v. Levine, 554 F.2d at 1233 (emphasis added)). In each case the plaintiff association had evidently been authorized to bring suit on behalf of its members, and did in fact do so. Thus the members were barred from bringing a second suit. See also Amalgamated Sugar Co. v. NL Industries, Inc., 825 F.2d at 640-41 (applying Ellentuck and Expert Electric). As a back-up argument, defendants press the notion that failure to bind the Algie plaintiffs would be inequitable. In substance they insist that plaintiffs could have joined the Pippin suit, and that in any event they should be bound since, if Pippin had been decided in favor of the plaintiffs in that case, defendants would have been bound here. They also seem to criticize plaintiffs for seeking to reap the benefits of Pippin by amending their complaint to add the claim on which the plaintiffs in Pippin prevailed at the district court level. None of these arguments has merit. The Algie plaintiffs had no duty to intervene in Pippin. See, e.g., Martin v. Wilks, 490 U.S. at 763, 765, 109 S.Ct. at 2185, 2186; United States v. Schwimmer, 968 F.2d at 1577-78; Staten Island Rapid Trans. Operating Auth. v. ICC, 718 F.2d at 543; Benson & Ford, Inc. v. Wanda Petroleum Co., 833 F.2d at 1176; Petit v. City of Chicago, 766 F.Supp. at 612; 18 C. Wright & A. Miller, Federal Practice & Procedure § 4452 at 446 (1981). As noted by the Supreme Court, [t]he law does not impose upon any.person absolutely entitled to a hearing the burden of voluntary intervention in a suit to which he is a stranger_ Unless duly summoned to appear in a. legal proceeding, a person not in privy may rest assured that a judgment recovered therein will not affect his legal rights. Martin v. Wilks, 490 U.S. at 763, 109 S.Ct. at 2185 (quoting Chase Nat’l Bank v. City of Norwalk, 291 U.S. 431, 441, 54 S.Ct. 475, 479, 78 L.Ed. 894 (1934)). Accord, Stone v. Williams, 970 F.2d at 1060; Staten Island Rapid Trans. Operating Auth. v. ICC, 718 F.2d at 543. Hence plaintiffs could not be bound even by a knowing failure to intervene in Pippin. In any event, for reasons noted, they never had a meaningful opportunity to do so absent timely knowledge of the Pippin lawsuit. As for the purported unfairness of allowing plaintiffs to avoid being bound by Pippin even though defendants would have been bound by an adverse decision, defendants’ argument appears in substance to quarrel with the holding of the Supreme Court in Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331, 99 S.Ct. 645, 651-52, 58 L.Ed.2d 552 (1979), which upheld the non-mutual availability of collateral estoppel in limited circumstances. See also ACLI Gov’t Sec., Inc. v. Rhoades, 963 F.2d 530, 533 (2d Cir.1992); United States v. International Bhd. of Teamsters, 905 F.2d 610, 621 (2d Cir.1990). In any event, defendants do not demonstrate any evident unfairness. The Algie plaintiffs have a due process right to litigate all issues once, and if they did not participate or were not represented in Pippin, they must be permitted to be heard here. Defendants have the same right to be heard once on an issue and were given the opportunity to litigate the issues in Pippin. Hence, collateral estoppel here in favor of plaintiffs on any issues that defendants might have lost in Pippin would not be inconsistent with giving the Algie plaintiffs their own opportunity to litigate issues or claims lost by the Pippin plaintiffs. See, e.g., Parklane Hosiery Co. v. Shore, 439 U.S. at 330-31, 99 S.Ct. at 651-52; ACLI Gov’t Sec., Inc. v. Rhoades, 963 F.2d at 533; United States v. International Bhd. of Teamsters, 905 F.2d at 621. Moreover, the purported unfairness about which defendants complain arises only in cases in which a party seeks to make offensive use of collateral estoppel. It is for this reason that the Court in Parklane left the use of offensive issue preclusion to the “broad discretion” of the trial court. 439 U.S. at 330, 99 S.Ct. at 651. See United States v. International Bhd. of Teamsters, 905 F.2d at 621; Pompano-Windy City Partners, Ltd. v. Bear, Steams & Co., 1993 WL 42786 at *8 (S.D.N.Y. Feb. 17, 1993) (listing factors court should consider before allowing the offensive use of collateral estop-pel); Restatement (Second) of Judgments § 29. See generally Jack Faucett Assocs. v. AT & T Co., 744 F.2d 118, 124-25 (D.C.Cir. 1984), cert. denied, 469 U.S. 1196, 105 S.Ct. 980, 83 L.Ed.2d 982 (1985). The potential unfairness in lack of mutuality is illustrated by the example cited in Park-lane, which involved the use of offensive issue preclusion based on one of several inconsistent judgments. See Parklane Hosiery Co. v. Shore, 439 U.S. at 330, 99 S.Ct. at 651. The illustration was provided by Professor Currie, who hypothesized a train collision injuring fifty passengers, all of whom sued the railroad. If the first twenty-five plaintiffs lost, but the twenty-sixth won, Professor Currie argued that the remaining passengers should not be allowed to use that one adverse judgment to preclude the railroad from defending against their subsequent suits. See id. at 330 n. 14, 99 S.Ct. at 651 n. 14 (citing Currie, Mutuality of Estoppel: Limits of the Bernhard Doctrine, 9 Stan.L.Rev. 281, 304 (1957)). Accord, Hoppe v. G.D. Searle & Co., 779 F.Supp. 1425, 1427 (S.D.N.Y.1991). That circumstance is of course not at all present here. It is defendants that seek to invoke issue or claim preclusion and to do so despite the fact that plaintiffs have had no opportunity to litigate their claims. This they may not do. Finally, plaintiffs’ effort to take advantage of the temporary success of the Pippin plaintiffs on their section 1140 claim says nothing except that plaintiffs’ attorneys in this case were doing their job. If plaintiffs were entitled to offensive issue preclusion, they could not be faulted for claiming the fruits of the Pippin plaintiffs’ success. In any event, there is no hint in this ease of the deliberate, arguably bad-faith effort of the plaintiffs in Petit v. City of Chicago to evade the effect of a prior loss on the merits. See 766 F.Supp. at 612. See also Casa Marie, Inc. v. Superior Court of Puerto Rico, 988 F.2d at 266. B. The Merits of the Parties’ Summary Judgment Motions As noted, defendants have moved for summary judgment on all four claims and plaintiffs seek similar relief on their first three claims. Before addressing their arguments, I briefly summarize the applicable standards. 1. General Standards for Summary Judgment Rule 56(e) of the Federal Rules of Civil Procedures permits the court to enter summary judgment only if it finds that there is no genuine dispute as to any material fact and that, based on the undisputed facts, the moving party is entitled to judgment as a matter of law. See, e.g., Miner v. City of Glens Falls, 999 F.2d 655, 661 (2d Cir.1993); Weg v. Macchiarola, 995 F.2d 15, 18 (2d Cir.1993); Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993); Montana v. First Fed. Sav. & Loan Ass’n, 869 F.2d 100, 103 (2d Cir.1989); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). It is axiomatic that the role of the court on such a motion “is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing inferences against the moving party.” Miner v. City of Glens Falls, 999 F.2d at 661 (quoting Knight v. U.S. Fire Ins. Co., 804 F.2d at 11). See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Village of Kiryas Joel Local Dev. Corp. v. Insurance Co. of North America, 996 F.2d 1390, 1392 (2d Cir.1993); Hudson Hotels Corp. v. Choice Hotels, Int'l, 995 F.2d 1173, 1175 (2d Cir.1993); Twin Laboratories, Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir.1990). The movant “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). See, e.g., Capital Imaging Assocs. P.C. v. Mohawk Valley Medical Assocs. Inc., 996 F.2d 537, 542 (2d Cir.), cert. denied, — U.S.-, 114 S.Ct. 388, 126 L.Ed.2d 337 (1993). If the movant fails to meet its burden, the motion must be denied even if the opponent fails to submit any evidentiary matter to establish a genuine issue for trial. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 160, 90 S.Ct. 1598, 1609-10, 26 L.Ed.2d 142 (1970); Kulawy v. United States, 917 F.2d 729, 735 (2d Cir.1990); Proctor & Gamble Co. v. Big Apple Indus. Bldgs. Inc., 1993 WL 228846, at *7 (S.D.N.Y. June 18, 1993). If the movant carries its initial burden, the party opposing the motion must then show that there is in fact a genuine dispute as to one or more of the material facts. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 322, 106 S.Ct. at 2552; Capital Imaging Assocs., P.C. v. Mohawk Valley Medical Assocs., Inc., 996 F.2d at 542; Weg v. Macchiarola, 995 F.2d at 18; Greater Buffalo Press, Inc. v. Federal Reserve Bank, 866 F.2d 38, 42 (2d Cir.), cert. denied, 490 U.S. 1107, 109 S.Ct. 3159, 104 L.Ed.2d 1022 (1989). In so doing, the opposing party cannot simply rely on his pleadings or on conclu-sory allegations or conjecture as to the facts, but rather must present specific evidence in support of his contention that there is a genuine factual dispute. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. at 2553; Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. at 2511; Capital Imaging Assocs., P.C. v. Mohawk Valley Medical Assocs., Inc., 996 F.2d at 542; Leon v. Murphy, 988 F.2d at 308. To demonstrate that there is a “genuine dispute,” the party opposing the summary judgment motion must come forward with enough evidence to justify a reasonable jury returning a verdict in his favor. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Hudson Hotels Corp. v. Choice Hotels, Int’l, 995 F.2d at 1175; Burke v. Jacoby, 981 F.2d 1372, 1379 (2d Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2338, 124 L.Ed.2d 249 (1993);