Preclusion; Customer Lawsuits; and the Kessler Doctrine

by Dennis Crouch

PersonalWeb Technologies, LLC v. Patreon, Inc., Docket No. 20-1394 (Supreme Court 2021).

This is a core civil procedure case pending before the Supreme Court.  Of course, procedure can and often does have a major impact on substantive rights.  The Supreme Court has now issued a Call for the Views of the Solicitor General (CVSG)–seeking the government’s input on whether to hear the case.  Although certiorari is certainly not guaranteed, CVSG is generally seen as a major step in that direction.

We know about issue preclusion and claim preclusion. This case is about a quirky intermediary known as the Kessler Doctrine. See, Kessler v. Eldred, 206 U.S. 285 (1907).

• Claim Preclusion (res judicata) prevents a party from re-litigating a claim once a court has issued a final judgment on that claim.  Claim preclusion is powerful, in part, because it does not require the claim to be actually litigated (just be subject to the final judgment).  Further, claim preclusion bars both those claims that were brought as well as claims stemming from the same transaction or occurrence that could have been brought in the earlier lawsuit.  

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