Plaintiff alleged that two of defendant's employees had misappropriated trade secrets, and that the ill-gotten information was given to plaintiff's competitor, a Massachusetts company, in which the two employees were investors. In a prior action, a Massachusetts court had rejected plaintiff's respondeat superior argument, finding that the allegedly tortious acts of defendant's employees were outside the scope of their employment.

The First Department said that plaintiff may not relitigate the question, in Cartesian Broadcasting Network, Inc. v. Robeco USA, which was decided on August 16, 2007. Noting that, here, plaintiff's burden of persuasion is the same as in the prior action, the court found that plaintiff is precluded from advancing its present claims, "all of which seek to hold defendant liable by reason of the conduct of its employees."