Claim Preclusion (res judicata) Issue preclusion (collateral estoppel, including

non-mutual collateral estoppel)

The claim is extinguished if the following
elements are shown:
• The claim is between the same parties (or
“privies”1) as in the prior proceeding;
• The extinguished claim is the part of the “same
claim” (or cause of action) as the claim that was
determined. In this context, a claim includes all
rights of the Plaintiff to remedies against the
defendant with respect to all or part of the
transaction(s). A transaction includes all
related facts (making a pragmatic
determination) considering factors such as
time, motivation, business understandings, and
the parties’ expectations.
• The claim was extinguished by a valid and final
judgment, i.e., “on the merits”?2
An issue determined (in the first proceeding) is
determined conclusively with respect to same
or different claim (e.g. in a subsequent proceeding)
if the following elements are shown:
• The precluded party was a party (or in privity
with a party) in first proceeding;3
• This issue was actually litigated and
determined;
• The determination was necessary to the out-
come of the first proceeding;
Note: The party sought to be precluded may argue
that circumstances fit within an exception (since
courts have broad discretion to avoid unfair-
ness.)4

1 See RS&T at p, 347, Note 4 (Privies are “in privity” which is “a relationship between two parties that
is ‘sufficiently close” so as to bind them both to an initial determination, at which only one was present.
2 See RS&T at p, 330, Note 4 (“Merits” is not precisely defined).
3 Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n.7 (1979) (“It is a violation of due process for a

judgment to be binding on a litigant who was not a party or a privy and therefore has never had an
opportunity to be heard.”).
4 Examples: 1) There was no “adequate opportunity or incentive to obtain a full and fair adjudication

in the initial action” Restatement (Second) of Judgments § 28 (emphasis added). 2) “The determination
relied on as preclusive was itself inconsistent with another determination of the same issue.”
Restatement (Second) of Judgments § 29