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Nov. 28 Civil Procedure: Collateral Estoppel

                Another part of res judicata is collateral estoppel, or issue preclusion. The elements of collateral estoppel are identical issues, the issue was actually litigated and decided, there was a full and fair opportunity for litigation, and the issue must have been necessary to support a valid and final judgment on the merits. In Levy v. Kosher Overseers of America illustrates the “identical issues” requirement. There, both the plaintiff and defendant used similar kosher markings. The United States Patent and Trademark Office had decided that KOA couldn’t get a trademark because it was too similar to Levy’s. KOA, however, kept using the mark and Levy sued under the Lanham Act. Levy said that KOA couldn’t argue that the marks were different because that had already been decided by the USPTO. The court held, however, that the standards for “likelihood of confusion” used by the USPTO and under the Lanham Act were different which meant that the issues would be different as well. It seems initially like the two would be the same, but something that helps is to ask which questions of law or fact have to be decided. If the standards are different, so are the questions.

                Now let’s consider a fair opportunity to litigate. In Jacobs v. CBS Broadcasting there was a dispute over if Jacobs should get credit for writing a television show. He participated in an administrative proceeding to decide if he should get credit and it was decided that he shouldn’t; so he sued. CBS tried to say the issue couldn’t be reargued because the proceeding’s judgment was sufficient for collateral estoppel purposes. The court disagreed, however. The court held that arbitration is sufficiently adjudicatory if the following factors are met: it’s conducted in a judicial-like adversary proceeding, witnesses testify under oath, involved the adjudicatory application of rules to a single set of facts, conducted before an impartial hearing officer, parties had the right to subpoena witnesses and present documentary evidence, and a verbatim record was maintained. The proceeding didn’t have these elements so there wasn’t a fair opportunity to litigate. Thus, any proceeding needs to have those criteria to be sufficient for collateral estoppel purposes.


November 28, 2006 - Posted by | Civil Procedure

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