Securities and Exchange Commission v. First Jersey Securities, Inc. And Robert E. Brennan

Defendants First Jersey Securities, Inc. (“First Jersey” or the “Firm”), and Robert E. Brennan appeal from a judgment entered in the United States District Court for the Southern District of New York following a bench trial before Richard Owen, Judge, holding ■ defendants liable for violations of § 17(a) of the Securities Act of 1933 (“1933 Act”), 15 U.S.C. § 77q(a) (1994); § 10(b) of the Securities Exchange Act of 1934 (“1934 Act”), 15 U.S.C. § 78j(b) (1994); and Securities and Exchange Commission (“SEC” or the “Commission”) Rule 10b-5, 17 C.F.R. § 240.10b-5 (1995),' in the sale, repurchase, and resale of six securities. The district court ordered defendants jointly and severally to disgorge the sum of $22,288,099, plus $52,689,894 in prejudgment interest; enjoined them from further securities laws violations; and appointed a special agent (the “Special Agent”) to determine whether, in 1982-1987, defendants had committed securities law violations beyond those proven at trial. On appeal, defendants contend principally that the present action was barred by res judicata and that the court erred in imposing liability and in fashioning relief. Brennan also challenges, inter alia, the district court’s order that he be held jointly and severally liable for the entire amount of disgorgement ordered by the court. For the reasons below, we reverse so much of the judgment as appointed the Special Agent, and in all other-respects we affirm.

I. BACKGROUND

The present action was commenced by the SEC in 1985, based on allegations that, beginning in November 1982 and continuing into 1985, First Jersey, with Brennan at the helm, had employed, a massive and coordinated system of fraudulent practices to induce its customers to buy certain securities from the Firm at excessive prices unrelated to prevailing market prices, resulting in defendants’ gaining more than $27 million in illegal profits from their fraudulent scheme. The following facts were found by the district court to have been established at trial and are not challenged by defendants.

A. First Jersey’s Business Practices

First Jersey was founded in 1974 as a discount broker-dealer specializing in the underwriting, trading, and distribution of low-priced securities. The vast majority of securities traded by First Jersey were sold primarily in the over-the-counter market and not listed on any national exchange. By 1985, the Firm operated 32 branch offices throughout the United States and 36 offices in foreign countries, and had more than 500,-000 retail-customer accounts. It employed approximately 1,200 salespersons of “registered representatives.” In hiring such sales personnel, First Jersey typically sought individuals who had no prior experience in the securities business.

A First Jersey registered representative’s working month consisted of a three-part cycle. The first two weeks of the month were spent “cold calling,” ie., telephoning individuals who were not customers of the Firm and whose names were found in general directories, to identify persons who might be interested in purchasing a security recommended *1457 by the Firm. The second phase began around the third week of the month, when the manager of the branch informed the sales personnel that a recommendation would be forthcoming from the research department in about a week; the manager at that time gave the salespersons no specific information about the security. The salespersons then renewed contacts with their potential customers, informing them that the Firm’s research department was about to make a recommendation and seeking to determine how much money a customer would be willing to invest in a First Jersey-recommended security.

The third phase of the cycle began during the fourth week of the month, with the branch manager conducting a sales meeting to disclose to the branch’s salespersons the name of the recommended security; only one security at a time was recommended to a given branch; but not all of the branches received the same recommendation. The branch manager relayed information received from the Firm’s main office in New York about the recommended security, including its price and the sales commission to be paid. The branch manager also gave the salespersons a scripted sales pitch, which they were required to record and were expected to use virtually verbatim in offering the security to customers. The sales pitch usually described the security as reflecting “a spectacular turnaround situation.”

At various times, salespersons were given written materials that included First Jersey research reports, annual reports of the recommended company, and newspaper articles. There generally was no discussion, however, of negative factors such as risks inherent in a recommended security. Further, salespersons were discouraged from conducting independent research on Firm-recommended securities and were not even permitted to contact the Firm’s research department about a security without getting permission from the branch manager. In addition, for reasons that will become apparent below, the salespersons at any given branch were prohibited from discussing the Firm’s ree-. ommendations for their branch with salespersons from other First Jersey branches.

Following the sales meeting, salespersons were to spend the remainder of the month attempting to sell the recommended security — -and only that security — to their clients. Salespersons who chose not to sell the recommended security were berated and often censured by First Jersey’s management. Further, the compensation structure placed a premium on selling the recommended security. If a client bought the recommended security, the salesperson received a commission in the range of 5%-10% of the price. If the client instead bought a different security, the salesperson received a commission of one percent or less. And for- the client’s sale of a security, the salesperson received no commission at all. When clients sold previously purchased First Jersey-recommended securities back to the Firm, they were urged to roll the proceeds over into another First Jersey-recommended security. As a result of the commission structure, First Jersey salespersons rarely recommended that their customers purchase any securities other than the one currently recommended by the Firm.

First Jersey received the vast majority of its revenues from trading securities for its own accounts, including securities that it had underwritten. Between November 1982 and August 1986, First Jersey acted as the sole underwriter for at least 31 new issues of securities that-were sold in “units” consisting of a combination of shares of common stock and warrants that could later be redeemed for common stock. It was the Firm’s regular practice to have sales personnel in a group of branch offices first sell a particular unit and then, shortly thereafter, urge the clients who had purchased those securities to resell them to First Jersey at a slight profit to the client. Then the Firm split the repurchased units and sold the components separately through other branch offices to new customers, at a significantly higher total price than the Firm had paid the original customer.

For example, in November 1982, First Jersey was the underwriter for 1,100,000 units of Sovereign Chemical and Petroleum Products, Inc. (“Sovereign”)-. Each unit consisted of three shares of common stock and one warrant; the units were not to be split prior to May 1, 1993, except at First Jersey’s *1458 option. On November 9, 1982, the first day of the offering, First Jersey oversold, selling to customers of certain of its branches approximately 1,700,000 units at the offering price of $3 per unit, for a total price of $5,100,000. Within days, First Jersey bought back more than 1,300,000 units, paying $3.50 per unit; it immediately split the units into their components and priced each of the three shares of stock at $2.25-$2.50 and the warrant at $1. Thus, a unit purchased by First Jersey for $3.50 could be promptly resold, after the unbundling of the components, for a total of approximately $8. First Jersey immediately resold more than 3,000,000 shares of Sovereign common stock and 1,000,000 Sovereign warrants to customers of Firm branches other than the branches that had originally sold and repurchased the units. First Jersey’s profit on the resale of the Sovereign securities totaled $5,172,292. The same pattern was followed with respect to securities of five other issuers: Quasar Microsystems, Inc. (“Quasar”), QT & T, Inc. (“QT & T”), Rampart General, Inc. (“Rampart”), Sequential Information Systems, Inc. (“Sequential”), and Trans Net Corp. (“Trans Net”).

The Firm did not inform the salespersons who were to suggest that customers resell recommended units to First Jersey that the Firm would immediately split the repurchased units into their component securities and sell the components separately for more than twice what it paid the selling customer. The salespersons who thereafter sold the individual components were not advised of the Firm’s original underwriting of the unit. Nor were they provided with a prospectus or advised of the risks disclosed in the prospectus. The reason that First Jersey sales personnel were forbidden to discuss the recommendations for their branch with their counterparts at other First Jersey branches was to prevent them from learning that some branches were buying back units cheaply while other branches were selling components from those units to other Firm clients at inflated markups.

At all relevant times, Brennan was a director and the 100% owner of First Jersey. Between January 1982 and August 1985,- he was its president; in September 1985, he became its chairman and chief executive officer. In his capacity as sole shareholder and president or chief executive officer, Brennan met regularly with the heads of First Jersey’s departments, made the final decisions concerning which securities the Firm would underwrite, and frequently participated in negotiations concerning the prices at which First Jersey sold the securities. Brennan testified at trial that he periodically received reports on First Jersey’s positions in various securities, regularly reviewed the research reports issued to the branch offices, and “typically was aware of most of the research reports that went out, if not all.” He also participated in meetings at which the Firm’s pricing policies were formulated, and he regularly discussed the Firm’s compliance, see Part III.C.2. below, with rules promulgated by the National Association of Securities Dealers, Inc. (“NASD”). Although at trial, Brennan denied any wrongdoing, he did not indicate that the actions challenged here were unauthorized acts of other executives.

B. The Present Litigation

The SEC commenced the present action in October 1985, alleging that the above practices constituted illegal markups and frauds on First Jersey’s customers in violation of § 17(a) of the 1933 Act, § 10(b) of the 193.4 Act, and Rule 10b-5. The complaint sought disgorgement of the profits gained from those practices, as well as injunctive and other equitable relief.

Defendants moved to dismiss the complaint on the grounds, inter alia, that it was barred by principles of res judicata in light of an administrative proceeding initiated by the-SEC in May 1979 and settled in November 1984.. The district court rejected the res judicata defense, noting that the administrative proceeding, discussed in greater detail in Part II below, concerned First Jersey’s trades in a certain group of securities during the 1970s, whereas the present ease involved its trades in different securities in the 1980s. The court concluded that the two sets of claims were not identical for purposes of res judicata.

*1459 A 41-day bench trial was held in 1994, at which the court received voluminous documents and extensive testimony, including live, videotaped, or transcribed deposition testimony of 12 former First Jersey salespersons called by the SEC, 22 former First Jersey branch managers and salespersons called by defendants, and several First Jersey officers, including Brennan. In a written opinion dated June 19, 1995, reported at 890 F.Supp. 1185, the court concluded that the SEC had ■

overwhelmingly proven that defendants First Jersey and Brennan with respect to the sales and resales of securities involved herein to First Jersey customers violated § 17(a), § 10(b), and Rule 10b-5 in that with scienter, they deliberately used fraudulent devices in those transactions. Specifically, First Jersey’s sales practices were intended by defendants to operate, and did operate, as a pervasive fraud1 on. First Jer-. sey’s hundreds of thousands of retail customers ....

890 F.Supp. at 1209. The court found that in selling and repurchasing the unit securities, and reselling the components, First Jersey violated those provisions in two ways, to wit, by withholding material information from customers and by making excessive markups in the prices of the unbundled securities.

As to the first type of violation, the court found that defendants engaged in “a massive and continuing fraud on its customers,” id. at 1195, both on the initial group of First Jersey customers, i.e., those who resold to the Firm at a small profit without being informed that the units were about to be unbundled and sold at a much higher price, and on the second group of First Jersey customers, i.e., those who purchased the unit components for prices that, in light of the price of the units, were artificially inflated. The court found that the goal

of the scheme was to leave both the customers selling securities back to [First Jersey] (usually “units”) and the customers purchasing securities from [First Jersey] (usually “unit” components), completely ignorant of the way in which First Jersey had in all other. respects dealt in those securities, and as to the sales of the components, First Jersey’s salesmen knew almost nothing about the companies, and knew they were selling to buyers who knew even less..

Id. The court found that

[defendants First Jersey’s and Brennan’s conduct[] was entirely purposeful. It was planned this way. This is clear not only from the patterned and repeated format of the trading, but also from the simple programmed structure of First Jersey’s marketing system. Defendants orchestrated every facet of First Jersey’s branch office network to ensure that the firm’s underwritings and other low-priced stock recommendations were sold when they wanted — where they wanted — at prices determined not by market forces but by First Jersey itself. Its salesmen themselves, with minimal information and the incentive of earning as much as ten percent (plus a five percent managers’ override) on a customer’s investment dollar, were accordingly able to sell to the firm’s customers securities at illegal markups up to as much as 150 percent.

Id. (emphasis in original) (footnote omitted).

The court concluded that, particularly in light of First Jersey’s domination and control of the markets for the securities in question, its conduct constituted securities fraud under precedents dating back half a century.

As to the second type of violation, the district court found that “the evidence overwhelmingly established that the defendants wilfully, and deliberately violated established law forbidding excessive markups” in the sale price of the securities. Id. at 1197. The court stated that:

[t]he starting point in determining the legality or illegality of a broker’s markup on a sale of stock is the establishment, from the best available evidence, of the prevailing market price.... This is a factual, not a legal search.

Id. Concluding that First Jersey was not a “market maker” in any of the securities because it did not “hold[ ] itself out to the broker-dealer community as standing ready to purchase and sell that security at particular quoted bid and asked prices,” id., the *1460 court quoted the applicable SEC guidelines for determining prevailing market price as follows:

“The best evidence of the prevailing market price for a broker-dealer who is not making a market in the security is that dealer’s contemporaneous cost of acquiring a security_ Where ... a security is not only inactively traded between dealers, but a competitive market does not exist because that market is ‘dominated’ by a single dealer, the use of market maker sales or quotations is likely to be impractical or misleading. In such a ‘dominated’ market, the best evidence of prevailing market price is the dealer’s contemporaneous cost, which is either the price that the dealer paid to other dealers, or the price that the dealer paid to its retail customers to acquire the security, after an adjustment that allows the dealer a markdown on purchases from customers.”

Id. at 1197-98 (footnote omitted) (quoting Zero-Coupon Securities Release No. 34-24368, 38 S.E.C. Docket 158, 1987 WL 112328 (Apr. 21, 1987)). The court found that First Jersey dominated and controlled the markets for the six securities at issue because the vast majority of the transactions in those securities were conducted by First Jersey. The court further noted that although the Firm made some purchases in the interdealer market, those trades were insignificant because their volume was tiny in comparison to the Firm’s “massive retail trading” in those securities with its own customers. 890 F.Supp. at 1200. Having determined that First Jersey was not a market maker in any of those securities, the court concluded that, under the SEC guidelines, the best measure of the securities’ prevailing market price was the Firm’s cost of acquiring the units from its customers.

To calculate the contemporaneous cost of the units’ components, given the prevailing market price of the units, and hence the markup enjoyed by First Jersey, the court adopted an allocation formula proposed by the SEC, which the court described using the following example:

If a unit consists of two shares of common and one warrant, and First Jersey buys [the unit] back from a customer for $1 and then sells the common at $.75 a share and the warrant at $.50, the First Jersey sales price for a unit equivalent is [a total of $1.50 for the common plus .50 for the warrant, for a total of $2], Thus, under the allocation formula, 1 share of common is 37.5% of the unit equivalent and 1 warrant is 25%. Applying that percentage to the acquisition cost of the unit, each share of common has a cost basis of $.375_

890 F.Supp. at 1200 n. 23. Whether the focus be on a single share of the common stock (essentially purchased for $.375 and resold for $.75) or on all of the elements comprised by the unit (purchased for $1 and resold for a total of $2), First Jersey’s markup would have been 100%. In the securities at issue here, the court concluded that First Jersey enjoyed markups of up to 150%.

The court noted that First Jersey did not call either its head trader or its head of sales to testify as to how the Firm arrived at its markups. Nor had the expert who testified on First Jersey’s behalf posed that question to anybody at First Jersey. The court concluded that the markups were plainly excessive.

The district court ruled that Brennan was primarily liable with First Jersey for the securities violations committed by the Firm. The court based its finding on trial evidence that

showed plainly that Brennan was a “hands-on” manager who was intimately involved in the operations of First Jersey, including all significant decisions regarding the firm’s underwriting, retail sales and trading activities. Brennan signed every one of the underwriting agreements at issue in this case and admitted that he “typically” participated in the key decision to split “units” into their component securities.

In his trial testimony Brennan ... never denied knowing that First Jersey had repeatedly underwritten “units”, and bought the units back from its customers, and had broken up the units, and resold the components to other customers without disclosing the price at which it had repurchased the units. To the contrary, he defended those transactions, taking the position that *1461 First Jersey's massive and repeated over-sales and repurchases of units were, essentially, accidental, and that the firm’s unit repurchases and the prices at which they were acquired, were not material to the customers who bought the components.

Id. at 1201. The court observed that, as the 100% owner of First Jersey during the relevant period, Brennan received periodic reports on the Firm’s positions in the securities it traded and, with regard to the Firm’s commission policy, that “he could have made any decision he wanted to,” id. (internal quotation marks omitted). The court concluded that Brennan’s control over First Jersey’s activity made him liable as a principal for the Firm’s fraudulent conduct.

The court also concluded that the evidence of First Jersey’s violations and Brennan’s position and conduct established Brennan’s joint and several liability for the violations as a “controlling person” of the Firm under § 20(a) of the 1934 Act, 15 U.S.C. § 78t(a) (1994). It noted that “as president, chief executive officer, and sole shareholder of First Jersey, Brennan possessed control over every aspect of First Jersey’s operations,” 890 F.Supp. at 1202. Applying the burden-shifting scheme articulated by this Court in Marbury Management, Inc. v. Kohn, 629 F.2d 705 (2d Cir.), cert. denied, 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1980), the court held that the burden had shifted to Brennan to show that he had in good faith “maintained and enforced a reasonable and proper system of supervision and internal control over sales personnel,” 890 F.Supp. at 1202 (internal quotation marks omitted), and hence should not be held liable for violations by the Firm. The court found that Brennan had not met that burden. Reviewing the evidence as to the compliance procedures adopted by First Jersey, described in greater detail in Part III.C.2. below, the court found that those procedures were more cosmetic than real, and that they “were never intended for more than appearances should an occasion such as this arise.” Id. at 1203.

As relief for the proven violations, the court ordered, inter alia, that First Jersey and Brennan disgorge the profits gained by the Firm as a result of the frauds with respect to the six securities at issue, and pay prejudgment interest on those sums from the dates of the gains through the entry of judgment — a period of up to 12+ years. The court calculated the Firm’s unlawful profits with respect to each issuer as follows:

Issuer First Jersey’s Profit

QT&T $ 581,659

Quasar 6,302,659

Rampart 2,110,617

Sequential 12,111,384

Sovereign 5,172,292

Trans Net 1,009,488

Total $27,288,099

Id. at 1211. Giving defendants credit for a $5 million payment they made in January 1987 to settle a class action based on transactions in some of these securities, see id. at 1211 n. 35, the court ordered defendants to disgorge $22,288,099 in unlawful profits. After excluding interest on the $5 million from the date of the payment, see id. at 1212, the court ordered defendants to pay prejudgment interest in the total amount of $52,689,-894, see Judgment dated July 17, 1995.

In addition, the district court permanently enjoined defendants from further violations of the securities laws, finding that it was “highly likely” that such future violations would occur. 890 F.Supp. at 1210. This finding was based in part on defendants’ history of “[bjrushes” with regulatory agencies in the securities industry, see Part IV.C. below, which had already resulted in censures, fines, and suspensions, and injunctions. The court observed that, while First Jersey had sold most of its retail branches in 1987, the Firm continued to operate on a day-to-day basis and that at the time of trial Brennan wa,s still the 100% owner of First Jersey’s stock, as well as the sole or majority shareholder of a number of other corporations “through which he has the power to and does continue his activities in the securities field.” 890 F.Supp. at 1208.

Finally, noting the evidence of violations during a two-year period with respect to the securities of Sovereign, Rampart, Quasar, Trans Net, Sequential, and QT & T, and *1462 noting “the background of defendants’ sales and business practices,” the district court stated that it was “thoroughly convinced under any standard that the particular violations proved at trial are in all probability only the tip of the iceberg.” Id. at 1212. The court stated that it would therefore appoint a Special Agent to determine whether in 1982-1987 there had been other violations as well and to recommend to the court further disgorgements.- The court premised this order on its general equity powers:

Under the law, “[o]nce the equity jurisdiction of the district court has been properly invoked by a showing of a securities law violation, the court possesses the necessary power to fashion an appropriate remedy.” SEC v. Manor Nursing Centers, Inc., 458 F.2d [1082, 1103 (2d Cir.1972)]; see also SEC v. Posner, 16 F.3d 520, 521 (2d Cir.1994). Accordingly, I conclude that under the Court’s general equitable powers, a special agent should be appointed to examine the records of defendant First Jersey Securities for the period from November 1, 1982 through January 31, 1987, for the purpose of determining whether there exists [sic ] excessive markups and/or markdowns charged to [Firm] customers, beyond those proved at trial. Should any such excessive markups or markdowns be determined, the special agent shall recommend to the Court that defendants disgorge and pay over, as the Court may direct, all illegally-obtained profits.

890 F.Supp. at 1212-13.

Judgment was entered accordingly, and this appeal followed.

On appeal, defendants do not challenge the court’s factual findings as to First Jersey’s business practices, but they make a variety of challenges to the court’s rulings as to procedure, liability and relief. They contend (1) that the district court should have dismissed the action on the ground of res judi-cata; (2) that the court erred in concluding (a) that First Jersey’s markups were excessive and violated the securities laws, and (b) that Brennan should be held personally hable for those violations; and (3) that the court abused its discretion in (a) ordering disgorgement, (b) calculating prejudgment interest, (c) issuing a permanent injunction, and (d) appointing a special agent. For the reasons that follow, we find error only in the appointment of the Special Agent. In all other respects, we affirm.

II. THE RES JUDICATA DEFENSE

Defendants contend that the present action was barred by principles of res judicata as a result of a settlement agreement with the SEC in November 1984 (“1984 Settlement”). That agreement settled an administrative action commenced by the SEC in 1979 (the “1979 Proceeding”), along with an unrelated civil injunctive action that had been brought by the SEC in the United States District Court for the Southern District of New York in 1983,' alleging federal securities laws violations by Brennan and First Jersey in the purchase and sale of securities of Geosearch, Inc. in 1980 (the “Geosearch action”). The principal focus of defendants’ res judicata claim is the administrative proceeding.

In the 1979 Proceeding, the SEC charged that First Jersey and a number of its principals, including Brennan, had violated the. federal securities laws in transactions that occurred between 1975 and 1978. The SEC alleged that First Jersey and Brennan had, inter alia, “employed manipulative and deceptive devices and contrivances and employed devices, schemes and artifices to defraud” by selling seven securities, including certain securities of Sequential and Rampart, at excessive markups above the prevailing market price for the securities. (1979 Order for Public Proceeding and Notice of Hearing (“1979 Notice”) at ¶ M.) It alleged that the prices that First Jersey charged to its customers were “the result of [the Firm’s] domination and control of the market in which such securities were traded.” (Id.)

Proceedings before an SEC administrative law judge on these charges began in November 1979. The hearings were adjourned in October 1980 to allow the parties to pursue settlement negotiations. The negotiations eventually resulted in the 1984 Settlement, pursuant to which the SEC agreed to dismiss both the 1979 Proceeding and the Geoseareh action with prejudice. In exchange for that *1463 dismissal, Brennan and First Jersey consented to (a) the entry of a permanent injunction prohibiting them from committing future violations, and (b) the appointment of an independent securities consultant to monitor First Jersey’s sales practices.' A Final Judgment of Permanent Injunction by Consent was entered in the Geosearch action, enjoining Brennan and the firm from “bidding or purchasing for any account in which it has a beneficial interest, any security which is the subject of such distribution.” SEC v. First Jersey Securities, Inc., 83 Civ. 0483(MP) (S.D.N.Y. Judgment Nov. 20, 1984). The consent, executed by Brennan, stated

that the Commission ha[d] represented to First Jersey that upon the entry of this Permanent Injunction by Consent the Commission will forthwith enter an Order, in the form agreed to by the parties, dismissing, with prejudice, the Order for Public Proceedings issued by the Commission on May 17,1979, ... and that the Commission will not institute an administrative proceeding against First Jersey or Robert E. Brennan on the basis of the annexed Permanent Injunction by Consent, or the Permanent Injunction by Consent of Robert E. Brennan filed concurrently herewith,

but that the Commission had otherwise made First Jersey no promises. Id. (Consent dated November 20, 1984, at 9-10).

The present action was commenced by’the SEC in October 1985, alleging frauds by First Jersey and Brennan beginning in November 1982 and continuing into 1985. Defendants sought summary dismissal on the basis that the SEC was aware of at least some of the transactions at issue here prior to settling the 1979 Proceeding and that these claims could have been litigated during the 1979 Proceeding. They argued that “the stock manipulation scheme alleged in the current SEC Complaint is the same as the scheme alleged in both the 1979 Notice and during the 1979-80 hearings”; that the “material issues raised in the SEC’s current Complaint are in many respects identical to the issues raised by the SEC in the 1979 Order and the 1979-80 hearings”; and that “[t]he only difference ... between the issues raised by the prior 1979 Order and the issues raised by the current SEC Complaint is that the stock transactions in the current SEC Complaint cover a later time period.” (Affidavit of Franklin D. Ormsten dated November'26, 1985, ¶ 5.) Defendants pursue, their res judicata defense on appeal. We conclude that the district court properly rejected it.

Under the claim preclusion branch of res judicata, “[a] final judgment on the merits of an action precludes the parties or their privies' from relitigating issues that were or could have been raised in that action.” Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2428, 69 L.Ed.2d 103 (1981).

Simply put, the doctrine of res judicata provides that'when a final judgment has been entered on the merits of a case, [i]t is a finality as to the claim or demand in controversy, concluding parties and those in privity with, them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.

Nevada v. United States, 463 U.S. 110, 129-30, 103 S.Ct. 2906, 2918, 77 L.Ed.2d 509 (1983) (internal quotation marks omitted). The doctrine may be applied to judgments of administrative agencies acting in an adjudicative capacity. See, e.g., Astoria Federal Savings & Loan Association v. Solimino, 501 U.S. 104, 107-08, 111 S.Ct 2166, 2169, 115 L.Ed.2d 96 (1991); United States v. Utah Construction & Mining Co., 384 U.S. 394, 421-22, 86 S.Ct. 1545, 1559-60, 16 L.Ed.2d 642 (1966); Greenberg v. Board of Governors of the Federal Reserve System, 968 F.2d 164, 168 (2d Cir.1992).

With respect to the determination of whether a second suit is barred by res judicata, the fact 'that both suits involved essentially the same course of wrongful conduct is not decisive, see, e.g., Prime Management Co. v. Steinegger, 904 F.2d 811, 815 (2d Cir.1990); nor is it dispositive that the two proceedings involved the same parties, similar or overlapping facts, and similar legal issues, see, e.g., NLRB v. United Technologies Corp., 706 F.2d 1254, 1259-60 (2d Cir.1983). A first -judgment will generally have *1464 preclusive effect only where the transaction or connected series of transactions at issue in both suits is the same, that is “whe[re] the same evidence is needed to support both claims, and whe[re] the facts essential to the second were present in the first.” NLRB v. United Technologies Corp., 706 F.2d at 1260; see also Nevada v. United States, 463 U.S. at 128-30, 103 S.Ct. at 2917-19 (court must determine whether same “cause of action” is sued on); Lawlor v. National Screen Service Corp., 349 U.S. 322, 329, 75 SUt. 865, 869, 99 L.Ed. 1122 (1955) (“a prior judgment is res judicata only as to suits involving the same cause of action”); Woods v. Dunlop Tire Corp., 972 F.2d 36, 38 (2d Cir.1992), cert, denied, 506 U.S. 1053, 113 S.Ct. 977, 122 L.Ed.2d 131 (1993); Saud v. Bank of New York, 929 F.2d 916, 919 (2d Cir.1991).

If the second litigation involved different transactions, and especially subsequent transactions, there generally is no claim preclusion. See, e.g., Lawlor v. National Screen Service Corp., 849 U.S. at 828, 75 S.Ct. at 868-69 (no res judicata bar to claim for anticompetitive conduct occurring subsequent to first suit); Greenberg v. Board of Governors of the Federal Reserve System,' 968 F.2d at 168-70 (same re different financial transactions); Prime Management Co. v. Steinegger, 904 F.2d at 816 (same re subsequent breach