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This expands a previous article titled "WHEN IS AN ISSUE 'ACTUALLY LITIGATED' EARLIER AND PRECLUDED LATER?" The earlier article was actually litigated on Insurance Claims and Issues Blog, you might say.
However, this further issue was not actually litigated in the earlier article. It is this settled rule of law: "The party asserting preclusion bears the burden to prove all the necessary elements." Continental Western Insurance Co. v. Federal Housing Finance Agency, ___ F. Supp. 3d ___, 2015 WL 428342, *4 (S.D. Iowa Feb. 3, 2015).
Therefore this is an open issue here, and it updates and enhances the article posted here on September 1, 2015 titled, "A LITTLE EXCESSIVE SETTLEMENT JURISDICTION NEVER HURT ANYBODY?"
It was pointed out in the "Excessive Settlement Jurisdiction" article that parties ordinarily submit settlement stipulations, and courts enter orders approving them, which contain provisions that plaintiffs will be enjoined from having anything to do with other litigation involving the "Released Claims" in that case. This is one of the questions resulting from those provisions, and it was asked in the article:
And why is the defendant in that other case seemingly freed from the burden of pleading and proving its own affirmative defense of issue or claim preclusion, or of res judicata?
Especially when the party asserting preclusion bears the burden to prove all the necessary elements? What reason is there to deliberately enter an order contrary to settled law, simply because the parties "stipulated" what they say shall be the law?
And last but not at all least: If unexamined stipulations drive adjudications, what drives employment for judges?
Please Read The Disclaimer. Copyright 2015 by Dennis J. Wall, author of "Lender Force-Placed Insurance Practices" (American Bar Association 2015). Listen to the author's most recent Thomson Reuters Legal Current podcast. All Rights Reserved. No Claim to Original U.S. Government Works.
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