- Efficiency and Repose, bad when system yields inconsistent outcomes.
- Has part of the claim already been resolved and shouldn't be relitigated?
- Only available if claim preclusion hasn’t killed all of claim #2...
- Can be as effectively deadly as claim preclusion if the issue is one that is important to your case.
- Whether you've had a jury in action #1 or not considered neutral.
1. Same issue has to be involved in actions #1 and #2
- Cannot preclude relitigation if not litigated in the first case.
- Not usually a big problem, usually the fight is over whether it was litigated in the first case or not (like Parks) as opposed to a fight about what the issue is.
- Stipulations and admissions don’t count...
- They have not been LITIGATED
- Care only about that which was fought over, not that which was conceded.
- What if the standard of proof over which that issue was fought over differs in the two lawsuits?
- Example: State of Calif. loses criminal lawsuit over OJ. After they lose, Calif. wants to go after him for civil liability. No mutuality problem (same parties).
- Does not bind Calif. in 2nd lawsuit because there are different standards of proof (reasonable doubt vs. preponderance).
- But if OJ had lost in criminal case, it would preclude his arguing the opposite in a later civil suit.
- In Parks the problem is that the jury verdict was too opaque. (Yeazell, p. 692)
- Appellate affirmation?
- When issue resolved was affirmed on appeal makes issue preclusion stronger.
- More confidence that issue was fairly resolved.
- When you lose on 2+ issues...
- ... and know you must win on all, you may not appeal any of them.
- Once party knows the ruling, may not put as much effort/thought into the rest of the issues.
- Once outcome is ordained, don't trust the care with which other things are resolved.
- Like dicta vs. holdings: talk is cheap...
- 1st Restatement decides that it’s OK if finder of fact explicitly explains findings.
- 2nd Restatement: multiple grounds for decision on an issue means none of the issues are subject for issue preclusion.
- Allow issue preclusion even when one party has changed (relaxed mutuality)
- Different than claim preclusion!
- See also Parklane Hosiery (Yeazell, p. 695)
- 5 "fairness factors" for Offensive Non-Mutual Collateral Estoppel:
- 1. Could the party trying to assert Collateral Estoppel have intervened in the earlier suit?
- 2. Did defendant have incentive to litigation first action?
- 3. Are there multiple, prior inconsistent judgments?
- 4. Did the party who is attempting to assert O.N.M.C.E. sit out and wait during earlier suits?
- 5. Are there any procedural opportunities available to defendant in the second suit that were not available in the first suit?
- Blonder-Tongue (D.N.M.C.E.)
- Defendant #2 invokes issue preclusion since in first case court found no valid patent
- D. #2 says shouldn’t relitigate that matter.
- This is DEFENSIVE non-mutual collateral estoppel.
- Used as a shield NOT a sword, so it's OK.
- But in Parklane...
- OFFENSIVE collateral estoppel (aka issue preclusion aka res judicata).
- Not as OK as D.N.M.C.E.
- Why did mutuality requirement survive for so long?
- Basically, collateral estoppel/issue preclusion can never be used against someone who was not a party to action #1
- 7th Amendment (Due Process)
- Was party against whom issue preclusion being used treated fairly?
- We care who won/lost.
- Action #1: SEC sued Parklane saying proxy statements were fraudulent and WINS
- "finding of fraud" = civil fines, injunction, etc.
- Action #2: Mr. Shore (shareholder) suing Parklane for being defrauded.
- Allowed to piggy-back on SEC claim in regards to fraud.
- Worry about strategic behavior by party #2 to not be part of action #1.
- But not an issue in Parklane because Mr. Shore could hardly join an action by the SEC!
- P1 v. D1 (P1 wins)
- P2 v. D1 (can P2 invoke?)
- P1 v. D1. (D1 wins)
- P2 v. P1 (can P2 invoke?)
- P1 v. D1 (P1 wins)
- D1 v. D2 (can D2 invoke?)