Also known as:non-mutual preclusion · nonmutual issue preclusion · nonmutual collateral estoppel
Written by attorneys · grounded in primary & secondary sources — see below
A doctrine permitting a nonparty to invoke issue preclusion offensively against a defendant who litigated and lost an identical issue in a prior action. Application requires that the issue was actually litigated and necessarily decided in a final judgment and that binding the defendant would be fair and equitable under all circumstances.
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Cases
Casebooks
How it applies
Common Examples
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Regulator Judgment Precludes Bank Defense
The Federal Securities Commission sued IronGate Bank and obtained a final judgment after trial establishing that IronGate knowingly withheld risk information from bond buyers. Pension funds later sued IronGate for civil fraud arising from the same offering and moved to bar IronGate from relitigating its knowledge. Because IronGate had a full and fair opportunity to contest the issue in the enforcement action and no procedural unfairness appears, the court applies offensive nonmutual preclusion to establish the knowledge element.
Government Escapes Nonmutual Preclusion
A private plaintiff prevailed against the United States in an immigration case and established that a particular policy was invalid. A second plaintiff then attempted to use that ruling offensively to bar the government from defending the same policy in a later suit. Because nonmutual offensive preclusion does not run against the United States, the government remains free to relitigate the validity of the policy.
United States v. Mendoza464 U.S. 154 (1984)
Common questions
Frequently Asked
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When may a new plaintiff use a prior judgment offensively against a defendant who was not sued by that plaintiff?+
Offensive nonmutual issue preclusion is available when the issue was actually litigated and necessarily decided in a prior final judgment and when applying preclusion would be fair to the defendant under all circumstances. Fairness turns on factors such as the defendant's incentive to litigate the first case, the availability of procedural protections, and the absence of inconsistent prior judgments.
Supporting sources
Does offensive nonmutual issue preclusion ever apply against the federal government?+
No. The Supreme Court has held that the United States cannot be subjected to nonmutual issue preclusion. Even when a private plaintiff has litigated an issue to judgment against the government, a later plaintiff may not use that judgment to bind the government in a subsequent case.
Supporting sources
What fairness factors does a court weigh before allowing offensive nonmutual preclusion?+
Courts examine whether the defendant had a strong incentive to litigate the first action, whether the defendant could foresee future suits, whether the later plaintiff could have joined the earlier case, whether inconsistent judgments exist, and whether the defendant lacked procedural opportunities in the first proceeding that would be available later.
Supporting sources
May a private plaintiff rely on findings from a government enforcement action to establish an element in a later damages suit?+
Yes, provided the usual elements of issue preclusion are satisfied and application of offensive nonmutual preclusion would be fair to the defendant. Courts routinely permit such use when the defendant had a full and fair opportunity to litigate the issue in the enforcement proceeding and no fairness concerns counsel against preclusion.
Supporting sources
Civil ProcedureVerdicts and judgments · Effect; claim and issue preclusionUBEFoundational