38 Pages Posted: 25 Sep 2012
Date Written: 2010
In an era of multiparty, multijurisdictional, multidistrict litigation, federal cases have grown increasingly complex. As judges struggle to manage complicated cases, a new litigation paradigm has emerged. Rather than attempting to try all cases in one action, federal judges are now breaking the litigation down into smaller pieces, using "fast tracks" or "bellwether" cases, hoping that resolution of one or two cases will lead to settlement of the rest. Inevitably, because the cases involve identical fact issues and identical defendants, the doctrine of prior adjudication comes into play. This article identifies and analyzes significant issues that arise in the application of the doctrine of prior adjudication to multiparty, multijurisdictional, multidistrict litigation. These issues include: (1) whether issue preclusion applies where an appeal is pending; (2) whether invocation of issue preclusion is proper where its use would effectively foreclose the right to jury trial; (3) the issue preclusive effect of an order denying class certification; (4) whether a subsequent court is bound by the preclusion rules of the prior court; and (5) whether vacatur nullifies the issue preclusive effect of a judgment.
Suggested Citation: Suggested Citation
Cavanagh, Edward D., Issue Preclusion in Complex Litigation (2010). Review of Litigation, Vol. 29, p. 859, 2010; St. John's Legal Studies Research Paper No. 12-0017. Available at SSRN: https://ssrn.com/abstract=2151524