Also known as:non-mutuality · nonmutual · non-mutual · lack of mutuality
Written by attorneys · grounded in primary & secondary sources — see below
A doctrine in civil procedure that relaxes the traditional mutuality requirement for issue preclusion. It permits a nonparty to a prior action to assert issue preclusion against a party who litigated and lost an identical issue in that action when doing so is fair to the defendant.
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Cases
Study Supplements
How it applies
Common Examples
2
Enforcement Findings Preclude Bank Defense
The Federal Securities Commission obtained a final judgment after trial establishing that IronGate Bank knowingly withheld risk information from bond purchasers. Several pension funds later sued IronGate for civil fraud arising from the same offering and moved to bar the bank from disputing its knowing misconduct. The court granted the motion because IronGate had a full and fair opportunity to litigate the issue in the prior enforcement action and no circumstances rendered preclusion inequitable.
Government Not Bound by Prior Loss
A private party obtained a judgment against a federal agency on an immigration eligibility issue. A different noncitizen later sought to use that judgment offensively against the government in a separate proceeding. The court refused to apply nonmutual offensive issue preclusion because the government faces unique litigation burdens and the doctrine does not bind it in the same manner as private parties.
United States v. Mendoza464 U.S. 154 (1984)
Common questions
Frequently Asked
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When does offensive nonmutual issue preclusion apply?+
It applies when a new plaintiff seeks to rely on an issue that the defendant litigated and lost in a prior action. The court must determine that the issue was actually litigated, necessarily decided, and essential to a valid final judgment, and that applying preclusion is fair to the defendant under all circumstances.
Supporting sources
What fairness factors govern offensive nonmutual issue preclusion?+
Courts consider the defendant's incentive to litigate the first action, the foreseeability of future suits, whether the plaintiff could have joined the earlier case, the existence of inconsistent judgments, and any procedural disadvantages the defendant faced in the prior proceeding.
How does nonmutuality differ from claim preclusion?+
Claim preclusion requires the same parties or their privies and bars relitigation of the entire claim. Nonmutual issue preclusion focuses only on a discrete issue actually litigated and decided, and it may bind a party even when the invoking party was absent from the first case.
Supporting sources
Does the government receive special treatment under nonmutual preclusion?+
Yes. The government is generally not subject to offensive nonmutual issue preclusion in the same way as private litigants because of its unique litigation volume and the public interest in developing legal questions through successive cases.
Can administrative findings support nonmutual issue preclusion?+
They can when the proceeding afforded the defendant a full and fair opportunity to litigate the issue, including representation by counsel, presentation of evidence, and cross-examination, and when fairness factors otherwise support preclusion in the later action.
Supporting sources
Civil ProcedureVerdicts and judgments · Effect; claim and issue preclusionUBEFoundational