Also known as: nonmutual · non mutual
Written by attorneys · grounded in primary & secondary sources — see below
A doctrine in issue preclusion that permits a party who was not involved in prior litigation to invoke a prior determination against a party who was involved. The doctrine applies only when the prior issue was actually litigated and necessarily decided in a final judgment and when applying preclusion is fair to the party to be bound in light of all circumstances.
Select any source to read its text and confirm it supports the definition.
The State Attorney General obtained a final judgment that Summit Career College knowingly falsified graduate job placement statistics. Former students Lopez and Chen later sued Summit in federal court for tuition refunds and moved to prevent Summit from denying the falsification. The court granted the motion because Summit had a full and fair opportunity to litigate the issue in the prior action and applying preclusion was equitable under the circumstances.
Vincent Bifolck sued Philip Morris under the Connecticut Product Liability Act alleging that its Marlboro cigarettes were negligently designed and caused his wife's lung cancer. Before trial Bifolck moved to apply nonmutual offensive collateral estoppel based on prior findings against Philip Morris in other product liability actions. The district court considered whether the prior determinations satisfied the fairness requirements for nonmutual offensive use.
A nonparty may use issue preclusion offensively when the defendant fully litigated and lost the identical issue in a prior action that ended in a final judgment on the merits and when applying preclusion is fair to the defendant in light of all circumstances. Fairness factors include the defendant's incentive and opportunity to litigate in the first action, the absence of inconsistent judgments, and whether the defendant would have enjoyed additional procedural protections in the second action.
Supporting sources
…in Gasoline Products still enjoyed the right to have a jury determine all issues of fact. By contrast, the development of nonmutual estoppel is a substantial departure from the common law and its use in this case completely deprives petitioners of their right to have a jury determine contested issues of fact. I am…
…on the common law as it prevailed before the enactment of 18 U. S. C. § 2. The second rests on the contemporary doctrine of nonmutual
No. Modern doctrine permits nonmutual offensive issue preclusion when the fairness requirements are satisfied even though the later plaintiff was not a party to the first action. The Supreme Court has expressly approved this use provided the defendant had a full and fair opportunity to litigate the issue previously.
Supporting sources
Courts examine whether the defendant had a full and fair opportunity and strong incentive to litigate the issue in the first action, whether the prior judgment was final and on the merits, whether the same issue was actually litigated and necessary to that judgment, and whether preclusion would create inconsistent results or reward wait-and-see tactics by potential plaintiffs.
Supporting sources
Yes, provided the administrative proceeding afforded the defendant a full and fair opportunity to litigate the issue and the fairness factors support preclusion. Differences in stakes or the absence of a jury in the administrative forum may render preclusion unfair when the later action involves substantially greater exposure.
Supporting sources