No. 04-20380.

407 F.3d 381 (2005)

Robert F. SMITH, Plaintiff-Appellant, v. WASTE MANAGEMENT, INC., a Delaware Corporation, Defendant-Appellee.

United States Court of Appeals, Fifth Circuit.

April 15, 2005.

Attorney(s) appearing for the Case

Joshua R. Cohen (argued), Cohen, Rosenthal & Kramer, Cleveland, OH, for Smith.

Marie Roach Yeates (argued), Walter B. Stuart, IV, Gwendolyn Johnson Samora, Walter Moreau Berger, Sarah Beth Landau, Vinson & Elkins, Robert M. Craig, III, Waste Management, Houston, TX, for Defendant-Appellee.

Charles W. Schwartz, Skadden, Arps, Slate, Meagher & Flom, Houston, TX, David E. Springer, William Michael Rohner, Eric James Gorman, Skadden Arps, Slate, Meagher & Flom, Chicago, IL, Preeta D. Bansal, Skadden, Arps, Slate, Meagher & Flom, New York City, for BMC Software, Inc., Amicus Curiae.

Before KING, Chief Judge, and JOLLY and DENNIS, Circuit Judges.

KING, Chief Judge:

Plaintiff-Appellant Robert Smith, the former owner of several million shares of Waste Management, Inc. stock, has sued Defendant-Appellee Waste Management for fraud and negligent misrepresentation in connection with losses he sustained when Waste Management's share price fell in late 1999. On appeal, Smith alleges that the district court erred when it found that his claims were derivative and barred by res judicata. For the following reasons, we...

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