The opinion
STATE OF MICHIGAN
COURT OF APPEALS
PETER KARMANOS, JR., and DANIALLE UNPUBLISHED
KARMANOS, as Custodian for SOCRATES November 29, 2018
KARMANOS, LEONIDAS KARMANOS,
ARISTIDES KARMANOS, and SPIROS
KARMANOS, Minors,
Plaintiffs-Appellants,
v No. 336577
Wayne Circuit Court
GURMINDER S. BEDI, WILLIAM O. GRABE, LC No. 15-014148-CB
ROBERT C. PAUL, DANIEL S. FOLLIS, JR.,
COMPUWARE CORPORATION, ELLIOTT
ASSOCIATES, LP, FREDERICK A.
HENDERSON, and THOMA BRAVO, LLC,
Defendants-Appellees,
and
PROJECT COPPER HOLDINGS, LLC and
PROJECT COPPER MERGER CORP.,
Defendants.
Before: SHAPIRO, P.J., and SERVITTO and GADOLA, JJ.
PER CURIAM.
Plaintiffs, Peter Karmanos, Jr. (Karmanos) and his minor children, Socrates Karmanos,
Leonidas Karmanos, Aristides Karmanos, and Spiros Karmanos, by their custodian Danialle
Karmanos (the minor plaintiffs), appeal as of right the order of the trial court granting summary
disposition in favor of defendants, Gurminder S. Bedi, Frederick A. Henderson, William O.
Grabe, Robert C. Paul, Daniel S. Follis, Jr., Compuware Corporation, Elliott Associates, LP
(Elliott), and Thoma Bravo, LLC (Thoma Bravo). Plaintiffs challenge the trial court’s order
holding that their claims are subject to summary disposition under MCR 2.116(C)(5), (7), and
(8). We affirm.
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I. FACTS
This case arises from the merger and acquisition of Compuware by Thoma Bravo.
Plaintiffs allege that Elliott and Thoma Bravo acted in tandem to manipulate an undervaluation
of Compuware and thereby enabled Thoma Bravo to buy the company at a price below its true
value. Plaintiffs, as former shareholders, argue that they were forced by these events to sell their
shares at the devalued price, and therefore brought this action seeking to hold accountable
Compuware, certain Board members of Compuware, Elliott, and Thoma Bravo.
By way of background, Compuware was founded by Karmanos and two colleagues in
1973. Compuware’s services included testing, development, cloud computing-based
collaboration, and performance management software for programs running on mainframe
computers and distributed over client server systems. After serving as Compuware’s CEO and
Executive Chairman of the Board for many years, Karmanos retired in March 2013, agreeing to
continue as a consultant to Compuware.
Shortly before Karmanos’ retirement, Elliott, a private equity firm, acquired 8.3% of
Compuware’s common stock. In December 2012, Elliott made an offer to acquire Compuware
for $11 per share. After initially rejecting the offer as an undervaluation of its stock, Compuware
retained Goldman Sachs Group, Inc. to evaluate the offer. In January 2013, Compuware rejected
Elliott’s offer but indicated that it was willing to consider other offers. Compuware received
offers from various prospective buyers, including Thoma Bravo, ranging from $11.50 to $13 per
share. In addition, Karmanos offered to purchase one or more of Compuware’s divisions.
Plaintiffs allege that in September 2013, three of Compuware’s board members, Bedi,
Henderson, and Grabi, met with Elliott’s director, Jesse Cohn. According to plaintiffs, at that
meeting Cohn told the three board members that dossiers containing private information about
them had been compiled and that the information would be embarrassing to them if revealed.
Not long after, Compuware’s board terminated Karmanos’ consulting contract after he publicly
criticized Compuware’s board for its handling of the potential acquisition by Elliott. Karmanos
thereafter sued Compuware for conversion, breach of contract, and unjust enrichment, and was
awarded $16.5 million in arbitration. See Karmanos v Compuware Corp, unpublished per
curiam opinion of the Court of Appeals, issued October 20, 2016 (Docket Nos. 327476, 327712).
After his consulting contract was terminated, Karmanos sold his shares in Compuware.
In 2013, four of Compuware’s board members retired and were replaced by new board
members selected by Elliott. In April 2014, Compuware considered a renewed offer by Thoma
Bravo to buy the company. After Goldman Sachs reviewed the preliminary financial analysis of
Thoma Bravo’s purchase offer, Compuware’s board announced a merger/acquisition agreement
with Thoma Bravo effective December 15, 2014, for a per share price of $10.25, plus further
compensation for a spin-off of a division of the company.
Certain representative shareholders initiated a class action suit against Compuware and
others, and certain other shareholders intervened to object to the proposed settlement agreement
in that lawsuit. The intervening plaintiffs contended that Elliott had engaged in underhanded
tactics to compel Compuware’s board to agree to the sale to Thoma Bravo at an undervalued
price, and that the board members had received secret benefits to do so. The trial court in that
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action ultimately approved and entered a settlement agreement and dismissed the challenges of
the intervening plaintiffs, and this Court affirmed. See Adelman v Compuware Corp,
unpublished per curiam opinion of the Court of Appeals, issued December 14, 2017 (Docket No.
333209). Before the settlement agreement was entered by the trial court, the minor plaintiffs in
this case opted out of that shareholder derivative suit.
Plaintiffs initiated this case in October 2015, alleging breach of fiduciary duty, breach of
the Michigan Uniform Securities Act, fraud, conversion, civil conspiracy, unjust enrichment,
money had and received, rescission, and constructive reformation. Defendants moved for
summary disposition under MCR 2.116(C)(5), (7), and (8), arguing that plaintiffs lacked
standing due to the derivative nature of the lawsuit, that plaintiffs’ suit was barred by the earlier
shareholder class action, and that plaintiffs had failed to state a claim upon which relief could be
granted. The trial court granted defendants summary disposition as to each of plaintiffs’ claims
under MCR 2.116(C)(5), (7), and (8). Plaintiffs now appeal to this Court, challenging the order
of the trial court.
II. ANALYSIS
A. STANDING
Plaintiffs first contend that the trial court erred in determining that they lack standing due
to the derivative nature of their claims, and therefore erred in granting defendants summary
disposition pursuant to MCR 2.116(C)(5). We disagree.
1. STANDARD OF REVIEW
This Court reviews de novo a trial court’s grant of summary disposition. Lowrey v LMPS
& LMPJ, Inc, 500 Mich 1, 5-6; 890 NW2d 344 (2016). In so doing, we review the entire record
to determine whether the moving party was entitled to summary disposition. Maiden v Rozwood,
461 Mich 109, 118; 597 NW2d 817 (1999). Whether a party has standing is a legal question that
we also review de novo. Barclae v Zarb, 300 Mich App 455, 467; 834 NW2d 100 (2013). An
assertion that a plaintiff lacks standing can be viewed as a motion for summary disposition under
MCR 2.116(C)(5), asserting that the plaintiff lacks capacity to sue. See Pontiac Police & Fire
Retirees v Pontiac No. 2, 309 Mich App 611, 619; 873 NW2d 783 (2015). In reviewing a
motion for summary disposition under MCR 2.116(C)(5), we consider the pleadings,
depositions, admissions, affidavits, and other documentary evidence submitted by the parties.
Aichele v Hodge, 259 Mich App 146, 152; 673 NW2d 452 (2004).
2. DERIVATIVE OR DIRECT CLAIMS
The term “standing” generally refers to the right of a plaintiff to invoke the power of a
trial court to adjudicate a claimed injury. Federated Ins Co v Oakland Co Road Comm, 475
Mich 286, 290; 715 NW2dd 846 (2006). “To have standing, a party must have a legally
protected interest that is in jeopardy of being adversely affected.” Dep’t of Treasury v Comerica
Bank, 201 Mich App 318, 329-330; 506 NW2d 283 (1993). “The purpose of the standing
doctrine is to assess whether a litigant’s interest in the issue is sufficient to ensure sincere and
vigorous advocacy.” Lansing Schools Ed Ass’n v Lansing Bd of Ed, 487 Mich 349, 355; 792
NW2d 686 (2010) (quotation marks and citation omitted).
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Whether a plaintiff has standing to sue in the context of alleged harm experienced by a
shareholder of a corporation, however, depends upon whether the alleged harm is direct or
derivative. Directors of a corporation owe fiduciary duties to shareholders and are obligated to
act in good faith for the benefit of the corporation, and an officer or director of a corporation who
acts based on self-interest rather than for the benefit of the corporation breaches a fiduciary duty
to the corporation’s shareholders. Wallad v Access BIDCO, Inc, 236 Mich App 303, 306-307;
600 NW2d 664 (1999). Nonetheless, “a suit to enforce corporate rights or to redress or prevent
injury to the corporation, whether arising from contract or tort, ordinarily must be brought in the
name of the corporation and not that of a stockholder, officer or employee.” Belle Isle Grill
Corp v Detroit, 256 Mich App 463, 474; 666 NW2d 271 (2003), citing Mich Nat’l Bank v
Mudgett, 178 Mich App 677, 679; 444 NW2d 534 (1989).
Two related exceptions exist, however, which enable a shareholder to sue on his or her
own behalf, being (1) when a shareholder “has sustained a loss separate and distinct from that of
other stockholders generally,” Christner v Anderson, Nietzke & Co, PC, 433 Mich 1, 9; 444
NW2d 779 (1989) (quotation marks and citations omitted), and (2) when a shareholder “can
show a violation of a duty owed directly to [him or her] that is independent of the corporation.”
Belle Isle Grill Corp, 256 Mich App at 474. An individual shareholder cannot, however, sue on
his or her own behalf “merely because the acts complained of resulted in damage both to the
corporation and to the individual.” Mich Nat’l Bank, 178 Mich App at 679-680. Rather, the
right of a shareholder to individually sue corporate officers and directors “is limited to cases
where the wrong done amounts to a breach of duty owed to the individual personally.” Id. at
680. “Thus, where the alleged injury to the individual results only from the injury to the
corporation, the injury is merely derivative and the individual does not have a right of action
against the third party.” Id.
In this case, plaintiffs alleged that the breach of fiduciary duties by members of
Compuware’s board of directors, and the fraud allegedly perpetrated by Elliott to effectuate the
acquisition of the company, resulted in the artificially low valuation of Compuware stock, which
in turn resulted in financial loss to plaintiffs. The alleged incorrect valuation of Compuware’s
stock, however, would not have been a loss experienced only by plaintiffs, but rather would have
been incurred by all shareholders. Plaintiffs thus have not demonstrated that they sustained a
loss separate and distinct from that of other shareholders generally, nor have they shown a
violation of a duty owed directly to them and not to the corporation generally. 1 We therefore
conclude that the trial court did not err in finding plaintiffs’ claims to be derivative because the
claimed injuries would have arisen from breaches of duties owed to the corporation and to all
shareholders. See Michigan Nat’l Bank, 178 Mich App at 680.
1
Karmanos suggests that the failure of the Board to consider his offer to purchase a division of
Compuware, due to the wrongdoing by Elliott and others, is a direct and not a derivative claim.
A review of the amended complaint, however, indicates that Karmanos abandoned efforts to
purchase a portion of Compuware after his initial purchase offer.
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We further reject plaintiffs’ suggestion that it is necessary to look to Delaware law to
determine this question. Plaintiffs encourage that “[i]n the absence of clear Michigan law on
matters of corporate law, Michigan courts . . . refer to Delaware law.” Glancy v Taubman Ctrs,
Inc, 373 F3d 656, 674 n 16 (CA 6, 2004). The Michigan case relied upon in Glancy, and often
cited as support for this proposition, is Russ v Federal Mogul Corp, 112 Mich App 449, 455 n 1;
316 NW2d 454 (1982), in which this Court looked to a Delaware decision as instructive when
considering a Michigan statute that had been patterned on the language of a Delaware statute.
We are doubtful that this Court’s willingness in Russ to consider Delaware law extends beyond
similar narrow circumstances. In any event, because sufficient Michigan case law exists
addressing the distinctions between direct and derivative shareholder lawsuits, we decline to look
outside Michigan law to resolve this question in this case.
3. MCL 450.1492a AND MCL 450.1493a
Because we conclude that the alleged injuries in this case are derivative in nature, we
next inquire whether plaintiffs have standing to bring these derivative claims. The trial court
determined that plaintiffs did not have standing, reasoning that Karmanos was not a shareholder
at the times relevant to the claims in this case, and that the minor plaintiffs had failed to comply
with the statutory requirement of submitting a written demand before filing a derivative suit.
Generally, a shareholder derivative suit may be brought by one or more shareholders
suing in a representative capacity. MCL 450.1492a. That statutory section provides:
A shareholder may not commence or maintain a derivative proceeding unless the
shareholder meets all of the following criteria:
(a) The shareholder was a shareholder of the corporation at the time of the act or
omission complained of or became a shareholder through transfer by operation of
law from one who was a shareholder at that time.
(b) The shareholder fairly and adequately represents the interests of the
corporation in enforcing the right of the corporation.
(c) The shareholder continues to be a shareholder until the time of judgment,
unless the failure to continue to be a shareholder is the result of corporate action
in which the former shareholder did not acquiesce and the derivative proceeding
was commenced prior to the termination of the former shareholder’s status as a
shareholder.
In this case, Karmanos was not a shareholder of the corporation at the time most of the
alleged acts occurred and was not a shareholder at the time that the trial court’s judgment was
entered in December 2016, having sold his shares in Compuware in late 2013. Karmanos
therefore lacked standing under MCL 450.1492a to bring a shareholder derivative suit against
defendants. With regard to the minor plaintiffs, although the shareholders approved the merger
and the merger closed in December of 2014, the shareholder derivative suit did not conclude
until the trial court dismissed the case with prejudice in May 2016, and thus this action,
commenced on October 20, 2015, began before the termination of the minor plaintiffs’ status as
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shareholders, resulting in the minor plaintiffs’ ability to meet the requirements of MCL
450.1492a.
The trial court found, however, that the minor plaintiffs were precluded from bringing
this derivative action because they failed to make a written demand on Compuware in
accordance with MCL 450.1493a. That statute provides an additional prerequisite for
commencing a shareholder derivative action as follows:
A shareholder may not commence a derivative proceeding until all of the
following have occurred:
(a) A written demand has been made upon the corporation to take suitable action.
(b) Ninety days have expired from the date the demand was made unless the
shareholder has earlier been notified that the demand has been rejected by the
corporation or unless irreparable injury to the corporation would result by waiting
for the expiration of the 90-day period. [MCL 450.1493a.]
Here, the minor plaintiffs acknowledge they did not file a demand with Compuware
under MCL 450.1493a, but argue that the demand made in the earlier shareholder derivative
action fulfilled this requirement and also demonstrated that a further demand would have been
futile. MCL 450.1493a, however, does not provide an exception to the demand requirement.
Rather, the statute requires a shareholder commencing a derivative proceeding to make a written
demand upon the corporation ninety days before bringing the derivative suit “unless the
shareholder has earlier been notified that the demand has been rejected by the corporation. . . .”
This statutory language does not express an exemption from the requirement of making a
demand in cases where a demand would be futile; rather this language provides that waiting 90
days after the demand is made before filing the complaint is not necessary if the demand has
been issued and rejected before the 90 days have elapsed.
Historically, however, Michigan courts have recognized that in lieu of a demand on a
corporation’s board before bringing a shareholder derivative action, a plaintiff may demonstrate
that the demand would be futile. In Futernick v Statler Builders, Inc, 365 Mich 378, 387; 112
NW2d 458 (1961), a decision pre-dating the 1989 enactment of MCL 450.1493a, our Supreme
Court observed that “[t]he minimum requirements for [a shareholder derivative] suit are proof of
fraud or abuse of trust in the board of directors of the corporation in failing or refusing to enforce
a corporation right or claim, plus demand on said board by the stockholder for such action or
proof that the demand would be useless.” Id.
Thereafter, effective in 1973, our Legislature enacted MCL 450.1491 that, until its repeal
in 1989, provided that a complaint initiating a shareholder derivative suit was required to allege
“[w]ith particularity the effort of the plaintiff to secure the initiation of the action by the board or
the reasons for not making the effort.” By contrast, MCL 450.1493a, enacted in 1989, provides
that “[a] shareholder may not commence a derivative proceeding until . . . [a] written demand has
been made upon the corporation to take suitable action.”
However, MCR 3.502(A) provides:
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(A) In an action brought by one or more shareholders in an incorporated
or unincorporated association because the association has refused or failed to
enforce rights which may properly be asserted by it, the complaint shall set forth
under oath and with particularity the efforts of the plaintiff to secure from the
managing directors or trustees the action the plaintiff desires and the reasons for
the failure to obtain such action, or the reasons for not making such an effort.
When construing a statute, our primary task is to discern and give effect to the intent of
the Legislature. City of Coldwater v Consumers Energy Co, 500 Mich 158, 167; 895 NW2d 154
(2017). We begin this task by examining the language of the statute as the most reliable
evidence of the intent of the Legislature. Id. If the language is unambiguous, we conclude that
the Legislature intended the meaning clearly expressed and we enforce the statute as written. Id.,
citing Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). We use these
same principles of statutory interpretation when interpreting court rules. Ligons v Crittenton
Hosp, 490 Mich 61, 70; 803 NW2d 271 (2011).
When a statute conflicts with a court rule, the court rule controls on matters pertaining to
practice and procedure, but the statute prevails on matters of substantive law. Stenzel v Best Buy
Co, Inc, 320 Mich App 262, 279; 906 NW2d 801 (2017). We determine whether court rules
conflict with statutes case by case, recognizing that the Legislature has preeminence regarding
substantive issues. People v Watkins, 277 Mich App 358, 365; 745 NW2d 149 (2007), citing
McDougall v Schanz, 461 Mich 15, 36-37; 597 NW2d 148 (1999). Here, the Legislature made
demand upon the corporation, and either the expiration of 90 days or the earlier rejection of the
demand, prerequisites for a shareholder to qualify to bring a derivative suit in Michigan.
Because MCL 450.1493a creates and defines the rights and duties of shareholders bringing a
derivative suit, it is a matter of substantive law controlled by the language of the statute.2
In this case, the trial court rejected plaintiffs’ argument that a demand was not required,
concluding that our Legislature’s enactment of MCL 450.1493a in 1989 mandates pre-suit
demand in all derivative suits, and relying upon Virginia M Damon Trust v N Country Fin Corp,
325 F Supp 2d 817 (WD Mich, 2004). We note that Virginia M Damon Trust is not dispositive
of this issue because federal court decisions are not binding on state courts. Abela v Gen Motors
Corp, 469 Mich 603, 606; 677 NW2d 325 (2004); see also Wormsbacher v Phillip R. Seaver
Title Co, Inc, 284 Mich App 1, 5; 772 NW2d 827 (2009). Where no decision on a point of law
has been issued by Michigan’s state courts, however, a state court may adopt the reasoning of a
federal court’s decision if the reasoning is persuasive. Id.
In this case, we agree with the federal district court’s reasoning in Virginia M Damon
Trust that the requirement to make a demand under MCL 450.1493a is not excused by futility.
In that case, the federal district court for the Western District of Michigan, applying federal
procedural law and Michigan substantive law, observed that Federal Rule of Civil Procedure
23.1, applicable to shareholder derivative actions brought in federal court, permits a derivative
suit to proceed despite a lack of demand on the corporation if the plaintiff explains that a demand
2
The statute determines who may sue (substantive law), not how one must sue (procedural).
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would be futile. Virginia M Damon Trust, 325 F Supp 2d at 821. The federal district court in
that case concluded, however, that despite this federal procedural provision, whether a failure to
make a demand may be excused for futility is determined by the substantive law of the state of
incorporation, and that “[p]laintiff’s effort to take shelter under the futility exception is
misplaced because Michigan law allows for no such exception.” Id. The federal district court
noted that “Michigan has adopted a universal demand rule, mandating pre-suit demand upon the
corporation in all circumstances and providing no possibility for circumvention of this rule by
assertions of futility.” In a footnote, the federal district court further reasoned:
When enacted in 1973, the Michigan Business Corporation Act followed most
other states by excusing a demand that would be futile in certain circumstances.
However, in 1989, the Michigan legislature amended the statute to provide for
mandatory pre-suit demand in all circumstances. MCL §450.1493a. [Virginia M
Damon Trust, 325 F Supp 2d at 821 n 2.]
We similarly conclude that the language of MCL 450.1493a provides for mandatory pre-
suit demand in all circumstances, regardless of futility.3 The minor plaintiffs’ failure in this case
to comply with MCL 450.1493a by providing a demand to Compuware renders them ineligible
to bring this derivative suit under MCL 450.1493a. The trial court therefore properly granted
defendants summary disposition under MCR 2.116(C)(5).
B. PRIOR JUDGMENT
We further hold that the trial court correctly concluded that the minor plaintiffs’
derivative suit is precluded under MCR 2.116(C)(7) by the prior judgment in the shareholder
derivative suit litigated against Compuware. A motion for summary disposition under MCR
2.116(C)(7) asserts that the claim is barred by “release, payment, prior judgment, immunity
granted by law, statute of limitations, statute of frauds, an agreement to arbitrate or to litigate in a
different forum, infancy or other disability of the moving party, or assignment or other
disposition of the claim before commencement of the action.” MCR 2.116(C)(7). In considering
a motion under MCR 2.116(C)(7), we accept the contents of the complaint as true unless
contradicted by the documentation submitted by the moving party, and consider any affidavits,
depositions, admissions, or other documentary evidence submitted. McLean v McElhaney, 289
Mich App 592, 597; 798 NW2d 29 (2010). If no facts are in dispute, and if reasonable minds
could not differ regarding the legal effect of those facts, the question whether the claim is barred
is an issue of law for the Court. Id.
3
We note that this Court has at times referred to the futility exception to the demand requirement
of MCL 450.1493a post-1989. See Huron City Company v Parcells, unpublished per curiam
opinion of the Court of Appeals, issued February 8, 2018 (Docket No. 335978) (recognizing that
historically Michigan courts have concluded that the demand requirement may be excused when
the plaintiff’s complaint, in compliance with MCR 3.502(A), pleads that the demand would have
been futile). This Court’s unpublished opinions are not binding precedent, however, MCR
7.215(C)(1), and we conclude that the clear language of the statute is dispositive of this question.
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The minor plaintiffs argue that their claims should be permitted to proceed, despite the
prior judgment in the shareholder derivative suit, because they opted out of the shareholder
derivative action. See Adelman, unpub op at 2. But having opted out of the consolidated
shareholder action does not permit the minor plaintiffs to avoid the release and dismissal of the
derivative claims in the earlier shareholder action.
Res judicata precludes relitigation of a claim that is predicated on the same underlying
transaction as a claim litigated in a prior case. Duncan v Michigan, 300 Mich App 176, 194; 832
NW2d 761 (2013). The doctrine of res judicata was judicially created to “relieve parties of the
cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing
inconsistent decisions, encourage reliance on adjudication.” Pierson Sand & Gravel, Inc v
Keeler Brass Co, 460 Mich 372, 380; 596 NW2d 153 (1999) (quotation marks and citations
omitted). Res judicata operates to bar a second action when “(1) the first action was decided on
the merits, (2) the matter contested in the second action was or could have been resolved in the
first, and (3) both actions involve the same parties or their privies.” Dart v Dart, 460 Mich 573,
586; 597 NW2d 82 (1999). Parties are in privity for purposes of res judicata when they are “so
identified in interest with another party that the first litigant represents the same legal right that
the later litigant is trying to assert.” Adair v Michigan, 470 Mich 105, 122; 680 NW2d 386
(2004). Res judicata is broadly applied in Michigan, barring not only claims already litigated,
but also every claim arising from the same transaction that could have been brought by
exercising reasonable diligence. Dart, 460 Mich at 586.
In this case, the prior litigation in Adelman was a consolidation of derivative actions by
Compuware shareholders against the same defendants in this case and others, premised on
essentially the same allegations. The ruling in Adelman comprised a final judgment, affirming
the settlement agreement between Compuware and Thoma Bravo that dismissed, with prejudice,
“any and all claims . . . by or on behalf of . . . Compuware.” Adelman, unpub op at 15-16. The
claims in this case are essentially those raised by the intervening shareholders in Adelman, and
finally resolved by this Court’s decision in that case, being the alleged breach of fiduciary duties
by Compuware’s Board and alleged fraudulent behavior by Elliott.
Further, the minor plaintiffs in this case are in privity with the shareholder plaintiffs of
Adelman. The claims of the minor plaintiffs in this case and the claims of the shareholder
plaintiffs in Adelman are derivative as shareholders of Compuware; those claims by their very
nature may only be brought to enforce corporate rights or to redress injury to the corporation,
and not to redress wrongs to individual shareholders. Michigan Nat Bank, 178 Mich App at 679.
The Compuware shareholders who brought a derivative action on behalf of Compuware were, of
necessity, in privity with the minor plaintiffs, who are other Compuware shareholders now
bringing the same action predicated on the same factual basis. The trial court therefore correctly
held that the prior judgment precluded the suit in this case.
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Because we hold that the trial court did not err in granting defendants summary
disposition under MCR 2.116(C)(5) and (7), we decline to reach plaintiffs’ additional contention
that the trial court erred in granting defendants summary disposition under MCR 2.116(C)(8) for
failure to state a claim.
Affirmed.
/s/ Douglas B. Shapiro
/s/ Deborah A. Servitto
/s/ Michael F. Gadola
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