Collateral Estoppel and Prima Facie Effect

Under the doctrine of collateral estoppel, also known as issue preclusion,
once an issue of fact or law (1) has been actually litigated and
determined in connection with a valid final judgment and (2) that
determination is necessary to the judgment, the decision is conclusive in
a subsequent action between the parties, whether on the same or a
different claim. Arizona v. California, 530 U.S. 392, 414 (2000) (quoting
RESTATEMENT (SECOND) OF JUDGMENTS § 27 (1982)); United States v.
Mendoza, 464 U.S. 154, 158 (1984); United States v. Alex Brown &
Sons, 169 F.R.D. 532, 540 n.4 (S.D.N.Y. 1996), aff’d sub nom., United
States v. Bleznak, 153 F.3d 16 (2d Cir. 1998); 18 CHARLES ALAN
§§ 4416-19. See also NLRB v. Thalbo Corp., 171 F.3d 102, 109 (2d Cir.
1999) (noting issue preclusion arises only if “(1) the issues in both
proceedings are identical, (2) the issue in the prior proceeding was
actually litigated and actually decided, (3) there was full and fair
opportunity to litigate in the prior proceeding, and (4) the issue
previously litigated was necessary to support a valid and final judgment
on the merits.”); Anderson v. Genuine Par ts Co., 128 F.3d 1267, 1273
(8th Cir. 1997) (similar test); Aircra ft Bra king Systems Cor p. v. Local
856, UAW, 97 F.3d 155, 161 (6th Cir. 1996) (similar test). Collateral
estoppel is used defensively when the defendant asserts it as an
affirmative defense to preclude relitigation of issues previously decided
in a case where the plaintiff was a party. Menkes v. U.S. Dept. of
Homeland Sec., 637 F.3d 319, 334 (D.C. Cir. 2011). The Supreme Court
first approved the defensive use of collateral estoppel in Blonder-Tongue
Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 350 (1971). Collateral
estoppel is used offensively where the party asserting preclusion was not
a party to the prior case and the plaintiff uses collateral estoppel to
preclude relitigation of issues previously decided in a case where the
defendant was a party. Broan v. Colegio de Abogados de Puerto Rico,
613 F.3d 44, 48 n. 2 (1st Cir. 2010). The Supreme Court first approved
the offensive use of collateral estoppel in P arklane Hosiery Co. v. Shore,
439 U.S. 322, 326 (1979).
240 Antitrust Evidence Handbook
The doctrine of collateral estoppel has particular application in antitrust
litigation because many private antitrust cases are preceded by other
administrative, civil, or criminal proceedings. Thus, the effect of prior
proceedings on pending antitrust litigation is often a central issue. As
discussed below, some of these issues are governed by federal statute
(section 5(a) of the Clayton Act), while others are resolved under the
general common law doctrine of collateral estoppel. For examples of jury
instructions concerning the evidentiary effect of litigated government
A. General Principles
1. Res Judicata and Collateral Estoppel Compared
a. Collateral estoppel bars relitigation only of those issues that have
been raised, litigated, and adjudicated as between the parties.
Howard Hess Dental Labs Inc. v. Dentsply Int’l, Inc., 602 F.3d 237,
247-48 (3d Cir. 2010); Pool Water Prods. v. Olin Corp., 258 F.3d
1024, 1031 (9th Cir. 2001); La Pr eferida v. Cerveceria Modelo, S.A.
de C.V., 914 F.2d 900, 905-06 (7th Cir. 1990); Golden Bridge
Technology, Inc. v. Apple, Inc., 937 F. Supp. 2d 490, 496 (D. Del.
2013); see also Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1520
(10th Cir. 1990) (explaining that “‘Once a court has decided an issue
of fact or law necessary to its judgment, that decision may preclude
relitigation of the issue in a suit on a different cause of action
involving a party to the first case’”) (quoting Allen v. McCurry, 449
U.S. 90, 94 (1980)).
b. Res judicata, on the other hand, provides that “a final judgment on
the merits of an action precludes the parties or their privies from
relitigating issues that were or could ha ve been raised in that action.”
San Remo Hotel, L.P. v. City and Cnty. of San Fra ncisco, Cal., 545
U.S. 323, 336 n.16 (2005) (quoting Allen v. McCurry, 449 U.S. 90,
94 (1980)); see also RESTATEMENT (SECOND) OF JUDGMENTS §§ 18,
c. The key distinction between res judicata and collateral estoppel is
that, “[w]hereas res judicata forecloses all that have been or might
have been litigated previously, collateral estoppel treats as final only
those questions actually and necessarily decided in a prior suit.”
Brown v. Felsen, 442 U.S. 127, 139 n.10 (1979); see also Red River
Freethinkers v. City of Fa rgo, 679 F.3d 1015, 1026 (8th Cir. 2012)

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