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restricting the rule’s use. As explained by the U.S. Supreme
Court in 1979: “Until relatively recently, however, the scope of
collateral estoppel was limited by the doctrine of mutuality of
parties. Under this mutuality doctrine, neither party could use
a prior judgment as an estoppel against the other unless both
parties were bound by the judgment.” Parklane Hosiery Co. v.
Shore, supra at 326-327. The Supreme Court has now abandoned the
requirement of mutuality and sanctioned both offensive and
defensive use of nonmutual collateral estoppel. See, e.g.,
United States v. Mendoza, 464 U.S. 154, 158-159 (1984); Parklane
Hosiery Co. v. Shore, supra at 327-329, 331.
Offensive use “occurs when the plaintiff seeks to foreclose
the defendant from litigating an issue the defendant has
previously litigated unsuccessfully in an action with another
party”, while use in the defensive sense “occurs when a defendant
seeks to prevent a plaintiff from asserting a claim the plaintiff
has previously litigated and lost against another defendant.”
Parklane Hosiery Co. v. Shore, supra at 326 n.4. This Court
likewise no longer insists upon strict mutuality.13
Respondent seeks to assert collateral estoppel against
petitioner, which is defensive collateral estoppel. “Privity in
13However, there is a caveat: where collateral estoppel
premised on a State proceeding is sought to be used offensively
in Federal Court, reference is made to the controlling State law
to determine the propriety of such offensive use. Bertoli v.
Commissioner, 103 T.C. 501, 508 (1994).
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