SCOTUS Balks at Novel Defense Preclusion in ‘Get Lucky’ Case

The U.S. Supreme Court appeared likely to nix the Second Circuit’s novel “defense preclusion,” which allowed Marcel Fashions to pursue trademark infringement claims against Lucky Brand Dungarees but prevented Lucky Brand from asserting defenses that it could have brought in earlier litigation between the two parties.

At issue is whether res judicata, or claim preclusion—which prevents a party from relitigating a claim that it did raise or could have raised in earlier litigation—applies to defenses asserted by defendants as opposed to offensive claims brought by plaintiffs.

The New York-based U.S. Court of Appeals for the Second Circuit said that Lucky ...