Smith & Wesson Brands, Inc.; Smith & Wesson Sales Co.; Smith & Wesson Inc. v. Attorney General of the State of New Jersey

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 23-1223
_____________
SMITH & WESSON BRANDS, INC.; SMITH & WESSON
SALES CO.; SMITH & WESSON INC.
Appellants
v.
ATTORNEY GENERAL OF THE STATE OF NEW
JERSEY; NEW JERSEY DIVISION OF CONSUMER
AFFAIRS
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2-20-cv-19047)
District Judge: Honorable Evelyn Padin
____________
Argued: November 15, 2023
____________
Before: CHAGARES, Chief Judge, MATEY and FUENTES,
Circuit Judges.

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(Opinion filed: June 25, 2024)
____________
Courtney G. Saleski [ARGUED]
DLA Piper LLP (US)
1650 Market Street
Suite 5000
Philadelphia, PA 19103
Joseph A. Turzi
Edward S. Schneideman
DLA Piper LLP (US)
500 Eighth Street, NW
Washington, DC, 20004
Christopher M. Strongosky
DLA Piper LLP (US)
51 John F. Kennedy Parkway
Suite 120
Short Hills, NJ 07078
Counsel for Appellants
Angela Cai
Stephanie Cohen
Jeremy Feigenbaum [ARGUED]
Monica Finke
Nathaniel I. Levy
Justine Longa
Matthew J. Platkin
Timothy Sheehan
Office of the Attorney General of New Jersey
25 Market Street

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Richard J. Hughes Justice Complex
Trenton, NJ 08625
Counsel for Appellees
_____________
OPINION OF THE COURT
_____________
CHAGARES, Chief Judge.
This is an appeal challenging a New Jersey Attorney
General subpoena in spite of a state court judgment enforcing
the subpoena and rejecting the same claims pursued, but not
yet resolved, in federal court. The Office of the Attorney
General of New Jersey (“New Jersey Attorney General”)
issued a subpoena for the production of documents to Smith &
Wesson Brands, Inc., Smith & Wesson Sales Company, and
Smith & Wesson Inc. (collectively, “Smith & Wesson”)
pursuant to its authority under the New Jersey Consumer Fraud
Act, N.J. Stat. Ann. §§ 56:8-1–228. In opposition, Smith &
Wesson filed a civil rights lawsuit in federal court to enjoin
enforcement of the subpoena. The New Jersey Attorney
General then filed a subpoena enforcement action in state
court. Smith & Wesson opposed the state enforcement action
by raising “carbon-copy” arguments of those in its federal
complaint. Appendix (“App.”) 188. The two cases proceeded
simultaneously. The state court resolved the matter first. It
rejected Smith & Wesson’s objections to the subpoena and
ordered the company to comply by providing the requested
documents to the New Jersey Attorney General. The federal
court then gave preclusive effect to the state court’s order and
dismissed Smith & Wesson’s civil rights action on claim

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preclusion grounds. The state appellate court later affirmed the
state court judgment. In this appeal, Smith & Wesson contends
that the District Court should not have given preclusive effect
to the state court order for various reasons. We will affirm the
District Court’s order.
I.
This is not the first time this Court has considered an
appeal arising from the New Jersey Attorney General’s efforts
to enforce the subpoena. See Smith & Wesson Brands, Inc. v.
Att’y Gen. of N.J., 27 F.4th 886 (3d Cir. 2022). Although most
of the facts are the same, state and federal courts have
conducted additional proceedings, so we recount the relevant
background in full.
The New Jersey Attorney General is investigating
firearms designer and manufacturer Smith & Wesson for
possible violations of the New Jersey Consumer Fraud Act.
See N.J. Stat. Ann. § 56:8-2 (prohibiting, inter alia, the “act,
use or employment by any person of any commercial practice
that is unconscionable or abusive, deception, fraud, false
pretense, false promise, misrepresentation, or the knowing,
concealment, suppression, or omission of any material fact
with intent that others rely upon such concealment, suppression
or omission, in connection with the sale or advertisement of
any merchandise . . . .”).1 To enforce the Act, the New Jersey
1 Although the Act applies to “person[s],” it defines
“person[s]” to include “any natural person or his legal
representative, partnership, corporation, company, trust,
business entity or association,” among others. N.J. Stat. Ann.
§ 56:8-1.

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Attorney General may issue subpoenas, “which shall have the
force of law,” id. § 56:8-4(a), in aid of an investigation into
“whether a person in fact has engaged in, is engaging in or is
about to engage in” any practice prohibited by the Act. Id.
§ 56:8-3. If a person fails to comply with its subpoena, the
New Jersey Attorney General may move in the Superior Court
of New Jersey for an order to enforce the subpoena and for
other relief against the subpoenaed person. Id. § 56:8-6.
In October 2020, the New Jersey Attorney General
issued a subpoena seeking documents from Smith & Wesson
pursuant to its authority under the Act. The subpoena is part
of the state’s investigation into “whether [Smith & Wesson]
had violated the [Consumer Fraud Act] by making any
misstatements and/or knowing omissions to its consumers
about the safety, benefits, effectiveness, and legality of its
products.” N.J. Att’y Gen. Br. 5. The New Jersey Attorney
General requested copies of all advertisements for Smith &
Wesson merchandise available in New Jersey concerning
home safety and defense, concealed carry, personal protection
and defense, as well as documents concerning the legality,
safety, benefits, and effectiveness of concealed carry in New
Jersey, among others.
Instead of complying with the subpoena and producing
the requested documents, Smith & Wesson sent a letter to the
New Jersey Attorney General objecting in December 2020. It
wrote that the subpoena violated the First, Second, Fourth,
Fifth, and Fourteenth Amendments, the Dormant Commerce
Clause, the federal Protection of Lawful Commerce in Arms
Act, and various evidentiary privileges, among other
objections. The next day, Smith & Wesson filed a complaint
in the United States District Court for the District of New

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Jersey, asserting federal civil rights claims under 42 U.S.C.
§ 1983 for violations of the same constitutional provisions and
federal statute. In its prayer for relief, it requested the District
Court to enjoin any state court proceedings to enforce the
subpoena and to enjoin the New Jersey Attorney General from
enforcing the subpoena. It also requested declaratory
judgments that the “[s]ubpoena and related investigation”
violate Smith & Wesson’s rights under the First, Second,
Fourth, Fifth, and Fourteenth Amendments, New Jersey
citizens’ rights under the Second Amendment, the Dormant
Commerce Clause, and the Supremacy Clause.2 App. 82-83.
2 In its federal complaint, Smith & Wesson included an
additional request for a declaratory judgment that the subpoena
is preempted by the Protection of Lawful Commerce in Arms
Act, 15 U.S.C. §§ 7901–7903. App. 83. But Smith & Wesson
made no mention of this claim in its briefs or at oral argument,
instead only broadly referring to its “constitutional claims.”
See, e.g., Smith & Wesson Br. 3 (framing its argument in its
introduction and writing that “Smith & Wesson is entitled to
litigate the merits of its constitutional claims”); id. at 19
(writing in the first sentence of its summary of argument that
“[t]he District Court erred by dismissing on the grounds of res
judicata (claim preclusion) and the entire controversy doctrine
and by failing to adjudicate Smith & Wesson’s federal
constitutional claims on the merits.”); Reply Br. 1 (framing its
argument in its introduction as one concerning the adjudication
of “constitutional claims”). It is not apparent Smith & Wesson
intended to include this request for declaratory relief in its
discussion of its constitutional claims. As a result, we will not
engage in a separate analysis focusing upon this request for
declaratory relief.

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Two months later, in February 2021, the New Jersey
Attorney General sought to enforce the subpoena in the
Superior Court of New Jersey, Chancery Division (the “state
trial court”). The state trial court ordered Smith & Wesson to
show cause why the court should not enter judgment against it
and threatened sanctions of contempt and restraint from
advertising or selling merchandise, among other sanctions,
until it complied with the subpoena. Smith & Wesson filed a
cross-motion to dismiss, stay, or quash the subpoena (the
“cross-motion”) in response. It raised the same constitutional
concerns pled in its federal lawsuit. It went as far as to
incorporate its federal lawsuit by reference and described the
state court proceeding as “a carbon-copy dispute of the federal
court lawsuit.” App. 188. Meanwhile, in federal court, Smith
& Wesson amended its complaint. The New Jersey Attorney
General then moved to dismiss the amended complaint,
arguing that Younger v. Harris, 401 U.S. 37 (1971), required
the federal court to abstain from exercising jurisdiction.
The state trial court issued its judgment first and
rejected Smith & Wesson’s arguments. In June 2021, the state
trial court denied Smith & Wesson’s cross-motion and ordered
the company to produce the subpoenaed documents within
thirty days. Smith & Wesson sought an emergency stay of
production, but the New Jersey Superior Court, Appellate
Division (the “Appellate Division”) and New Jersey Supreme
Court denied it. Smith & Wesson also filed a formal notice of
appeal.
The District Court then twice dismissed Smith &
Wesson’s complaint. The District Court first dismissed Smith
& Wesson’s complaint, abstaining under Younger, but this
Court vacated that order and remanded for further proceedings.

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See Smith & Wesson Brands, Inc., 27 F.4th at 895-96. On
remand, the New Jersey Attorney General again moved to
dismiss Smith & Wesson’s complaint, this time on claim
preclusion grounds. The District Court granted the motion and
dismissed Smith & Wesson’s complaint in December 2022.
Smith & Wesson timely appealed.
While the present appeal was pending, the Appellate
Division affirmed the state trial court’s order in January 2023.
The Appellate Division rejected Smith & Wesson’s contention
that it may raise its constitutional challenges to the subpoena.
II.
The District Court had jurisdiction under 28 U.S.C.
§ 1331. This Court has appellate jurisdiction over Smith &
Wesson’s appeal of the District Court’s dismissal of its
complaint under 28 U.S.C. § 1291. Our review of dismissals
for claim preclusion is plenary. Elkadrawy v. Vanguard Grp.,
Inc., 584 F.3d 169, 172 (3d Cir. 2009); see also Beasley v.
Howard, 14 F.4th 226, 231 (3d Cir. 2021).

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III.
Smith & Wesson argues that the District Court erred in
dismissing its complaint for two primary reasons. First, it
argues the District Court incorrectly conducted its claim
preclusion analysis. It contends that the state trial court order
does not have preclusive effect because the state trial court’s
judgment does not satisfy the claim preclusion test and because
the New Jersey Appellate Division’s opinion was not on the
merits. Second, Smith & Wesson contends the District Court
incorrectly rejected its reservation of its rights to litigate in
federal court.
A.
We first determine whether the District Court correctly
afforded preclusive effect to the state trial court order. The Full
Faith and Credit statute provides that “judicial proceedings of
any court of any such State . . . . shall have the same full faith
and credit in every court within the United States . . . as they
have by law or usage in the courts of such State . . . from which
they are taken.” 28 U.S.C. § 1738. This means that the
preclusive effect of a state court judgment or order is
determined by the law of the state that rendered the judgment.
Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81
(1984); see also Jones v. Holvey, 29 F.3d 828, 829-30 (3d Cir.
1994) (“Federal courts must apply the doctrine of res judicata
to civil actions brought under section 1983 and in this context
‘must give to a state-court judgment the same preclusive effect
as would be given [to] that judgment under the law of the
[s]tate in which the judgment was rendered.’” (quoting Migra,
465 U.S. at 81)). Because we are considering the preclusive

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effect of a New Jersey state court order, New Jersey preclusion
law applies.
Claim preclusion “insulat[es] courts from the
relitigation of claims.” Watkins v. Resorts Int’l Hotel &
Casino, Inc., 591 A.2d 592, 597 (N.J. 1991). This doctrine
“provides that a cause of action between parties that has been
finally determined on the merits by a tribunal having
jurisdiction cannot be relitigated by those parties or their
privies in a new proceeding.” Velasquez v. Franz, 589 A.2d
143, 147 (N.J. 1991) (citing Roberts v. Goldner, 397 A.2d
1090, 1091 (N.J. 1979)); see also Wadeer v. N.J. Mfrs. Ins. Co.,
110 A.3d 19, 27-28 (N.J. 2015). Claim preclusion serves the
purposes of “finality and repose,” the “prevention of needless
litigation,” the “reduction of unnecessary burdens of time and
expenses,” the “elimination of conflicts, confusion and
uncertainty,” and “basic fairness.” Wadeer, 110 A.3d at 27-28
(quotation marks omitted) (quoting First Union Nat’l Bank v.
Penn Salem Marina, Inc., 921 A.2d 417, 423 (N.J. 2007)).
Under New Jersey law, claim preclusion requires that
(1) the judgment in the prior action must be
valid, final, and on the merits; (2) the parties in
the later action must be identical to or in privity
with those in the prior action; and (3) the claim
in the later action must grow out of the same
transaction or occurrence as the claim in the
earlier one.
McNeil v. Legis. Apportionment Comm’n, 828 A.2d 840, 859
(N.J. 2003) (quoting Watkins, 591 A.2d at 599); see also
Velasquez, 589 A.2d at 147 (writing that claim preclusion

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applies to all valid and final “adjudication[s]” on the merits).3
Applying these principles, we hold that all three elements of
the claim preclusion test have been satisfied.
1.
As to the first element of the claim preclusion test, the
state trial court issued a final order when it denied Smith &
Wesson’s cross-motion and ordered the company to comply
with the New Jersey Attorney General’s subpoena. Smith &
Wesson appealed this final order to the New Jersey Appellate
Division, which affirmed the state trial court’s order. Neither
party argues the state trial court’s order was not a valid, final
judgment on the merits when issued.
But Smith & Wesson now contends there was, in fact,
no judgment on the merits because of what occurred in the state
appeal.4 The company argues the Appellate Division declined
3 Although we apply New Jersey preclusion law, both this
Court and the New Jersey Supreme Court recognize that New
Jersey’s claim preclusion test is the same as the federal
common law test. See Hoffman v. Nordic Nats., Inc., 837 F.3d
272, 279 (3d Cir. 2016) (quoting In re Mullarkey, 536 F.3d
215, 225 (3d Cir. 2008)); McNeil, 828 A.2d at 859; Watkins,
591 A.2d at 599.
4 Our dissenting colleague would hold that the state trial court’s
order was not a valid, final judgment on the merits when it was
issued. Dissenting Op. 8-14. But neither party argued that the
order was not on the merits in their briefs or at oral argument.
Indeed, in its opening brief, Smith & Wesson wrote that “[t]he
Chancery Division’s decision—insofar as it can be read to

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to engage in a merits determination of its constitutional
objections because it determined that they were not ripe. This,
address the merits of Smith & Wesson’s constitutional
objections—no longer has any force or effect in determining
whether Smith & Wesson’s claims were adjudicated ‘on the
merits.’” Smith & Wesson Br. 21 (emphasis added). At oral
argument, Smith & Wesson even suggested the state trial court
order was preclusive (and, therefore, necessarily a final
judgment on the merits) when it argued that “the Appellate
Division’s decision is irreconcilable with the . . . alleged
alternative holding of the Chancery court. The Chancery
court’s decision should not preclude anything here anymore
because of the new decision by the Appellate Division . . . .”
Oral Arg. at 2:31-2:51.
At no point did Smith & Wesson argue the state trial court’s
order failed to reach the merits. And by arguing that the
Appellate Division decision “[r]emoves” the preclusive effect
of the state trial court order, Reply Br. 2, 7, and the state trial
court’s decision “should not preclude anything here anymore,”
Oral Arg. at 2:31-2:51 (emphasis added), Smith & Wesson
necessarily argues that the state trial court order was — before
the issuance of the Appellate Division’s decision — on the
merits.
Insofar that our dissenting colleague writes that Smith &
Wesson did argue that the state trial court’s order was not a
valid, final judgment on the merits, see Dissenting Op. 13 n.17,
the company’s argument concerned only whether it received a
full and fair opportunity to litigate in the state forum. We
address this in a later part of the opinion. See infra Part
III(A)(4)(a).

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Smith & Wesson contends, vitiates the state trial court’s merits
determination and “[r]emoves” the preclusive effect of the
state trial court’s order. Reply Br. 2, 7. Smith & Wesson’s
argument is premised upon its reading of the Appellate
Division’s ripeness discussion to mean its constitutional
arguments were not ripe and therefore the state trial court
should never have considered the company’s constitutional
claims. See Smith & Wesson Br. 21-26; Reply Br. 2-7.
Smith & Wesson, however, misconstrues the Appellate
Division’s opinion, which discussed ripeness only in the
alternative. The Appellate Division expressly considered the
merits of Smith & Wesson’s constitutional arguments and
rejected them for the same reasons as the state trial court. App.
597 (“We find Judge Alper did not err in her narrow reading of
NAACP, and our analysis leads us to the same outcome.”);
App. 598 (“We disagree, as those theories are premised upon
the argument that the United States Supreme Court’s holding
in NAACP permits them. We have already rejected that
argument.”). In the state trial and appellate courts, Smith &
Wesson argued that the Supreme Court’s decision in NAACP
v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), “stands for
the proposition ‘that the indispensable liberties of the First
Amendment, whether of speech, press, or association, cannot
be abridged by the government unless the state articulates
compelling interests.’” App. 593 (quotation marks omitted).
The Appellate Division held that it was “not persuaded,” id.,
because it interpreted NAACP and earlier United States
Supreme Court decisions to permit constitutional challenges to
state subpoenas only for violations of the freedom of
association under the First Amendment. App. 593-97. It
determined that NAACP does not “permit[]” the company’s
“constitutional claims,” and rejected the defenses outright.

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App. 598.5 After rejecting the constitutional claims on the
merits, the court wrote “[e]ven if we were persuaded that
5 The dissent states that the “sounder” reading of the Appellate
Division’s discussion is that the Appellate Division only
decided “whether NAACP has a broad or narrow lens,” and that
question alone is the “only claim eligible for preclusion.”
Dissenting Op. 17. But this characterization stops short of
what the Appellate Division actually decided. Not only does
the plain text of the Appellate Division’s decision belie this
contention as discussed above, but the state appellate court
record confirms this.
In its state appellate court briefing, Smith & Wesson argued
that, in NAACP, “the Supreme Court spoke broadly about
protecting all constitutional rights” guaranteed by the
Constitution. App. 435. The company argued that all
constitutional objections, not “only First Amendment freedom-
of-association” concerns, App. 439, must be resolved as a
threshold matter before ordering the production of documents.
See App. 434-39. The New Jersey Attorney General
disagreed, arguing that NAACP only permits specific
challenges to subpoenas for First Amendment associational or
privacy concerns. See App. 511-14. Smith & Wesson replied
that neither “the trial court below nor the [New Jersey]
Attorney General point to any support in NAACP that the
Supreme Court intended to limit its holding to freedom of
association cases only.” App. 547.
The parties disagreed about whether Smith & Wesson could
raise its constitutional claims to a subpoena at all. When the
Appellate Division wrote that it was not “persuaded that
NAACP opened the door to constitutional defenses outside the

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NAACP opened the door to constitutional defenses outside of
freedom of association, we would find these federal
constitutional claims not ripe for our consideration.” App. 598
(emphasis added). This is the language of alternative holdings.
The Appellate Division considered Smith & Wesson’s
constitutional defenses, held they were not legally cognizable,
and held that, in the alternative, the claims were not ripe.6 The
freedom of association” and that the decision does not
“permit[]” them, it resolved that disagreement. App. 598. The
Appellate Division not only decided that NAACP has a
“narrow lens,” Dissenting Op. 17, but also that as a result of
this narrow lens, the subpoena does not implicate Smith &
Wesson’s constitutional rights.
6 Because we determine that the Appellate Division considered
Smith & Wesson’s constitutional defenses, there is no need to
consider the applicability or continuing propriety of Russell v.
Russell, 134 F. 840 (3d Cir. 1905). The Court in Russell
considered the preclusive effect of a state equitable decree
made on multiple grounds after the state’s highest court
affirmed on only one ground and found it “unnecessary,”
Russell v. Russell, 49 A. 1081, 1081 (N.J. 1901), to consider
the other. See Russell v. Russell, 129 F. 434, 437 (C.C.D.N.J.
1904); Russell, 49 A. at 1081. This Court held that the decree
was preclusive as to both issues because the New Jersey high
court affirmed it, reasoning that the decree “had not ceased to
exist, but had been expressly continued in force.” Russell, 134
F. at 841.
Our dissenting colleague raises a number of the Russell
decision’s limitations. Because the decision does predate Erie
R.R. Co. v. Tompkins, 304 U.S. 64 (1938), it is not clear

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primary analysis did not depend on ripeness and was a
judgment on the merits.
Smith & Wesson’s tendentious reading of the opinion
would have us hold that the Appellate Division rested solely
on ripeness and never considered the merits of the company’s
constitutional defenses. It did consider and discuss them. See
App. 597-98; see also App. 593-97. And it rejected them. In
the alternative, it rejected them for an independently sufficient
reason. We decline to construe the Appellate Division’s
categorical affirmance as undoing the preclusive effect of the
appealed judgment. There was a valid, final judgment on the
merits, and the Appellate Division’s affirmance did not alter
this.
2.
The second element of the claim preclusion test is also
met. Both Smith & Wesson and the New Jersey Attorney
General are the same parties in both actions. Smith & Wesson
filed its federal complaint against the New Jersey Attorney
General. A few months later, the New Jersey Attorney General
whether this Court applied federal common law preclusion
principles or New Jersey state preclusion principles. The
dissent casts additional doubt on the decision’s continuing
propriety by drawing upon this Court’s jurisprudence,
Supreme Court jurisprudence, and the Wright & Miller treatise
for support for the opposite rule. See Dissenting Op. 14-15 &
n.20. Insofar as we hold that the Appellate Division did affirm
the state trial court’s reasoning on the merits, Russell v. Russell
is inapposite.

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initiated the subpoena enforcement action against Smith &
Wesson in state court. Neither party disputes this.
3.
The third element is satisfied, as well. Smith & Wesson
argues that the state court judgment cannot be preclusive
because the state and federal proceedings concerned distinct
claims. For two claims to grow out of the same occurrence, the
claims must involve “substantially similar or identical causes
of action and issues, parties, and relief sought.” Wadeer, 110
A.3d at 28 (quoting Culver v. Ins. Co. of N. Am., 559 A.2d
400, 405 (N.J. 1989)). To decide if two causes of action are
the same, courts must determine
(1) whether the acts complained of and the
demand for relief are the same (that is, whether
the wrong for which redress is sought is the same
in both actions); (2) whether the theory of
recovery is the same; (3) whether the witnesses
and documents necessary at trial are the same
(that is, whether the same evidence necessary to
maintain the second action would have been
sufficient to support the first); and (4) whether
the material facts alleged are the same.
Id. The New Jersey Supreme Court has observed that this
element is “the most difficult to determine” for a claim
preclusion analysis. Id.

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The acts complained of and the demand for relief are
essentially the same.7 In both actions, the wrong at issue is that
7 The dissent takes issue with this holding, writing we do not
accurately apply New Jersey’s claim preclusion test.
Dissenting Op. 25-26 & n.29. It states that what we apply is
“not the legal standard for claim preclusion.” Id. at 26.
Unfortunately, this argument elevates form over function and
overlooks how New Jersey courts apply New Jersey claim
preclusion law.
This language comes directly from the New Jersey Supreme
Court, which has precluded claims after holding “[t]he relief
sought . . . is essentially the same,” Culver, 559 A.2d at 405;
see also First Union Nat’l Bank, 921 A.2d at 424 (precluding
claims after finding “the other elements of relief are essentially
the same”). By the plain terms of its decisions, the New Jersey
Supreme Court does not require exact sameness and has
repeatedly afforded preclusive effect where there is a “high
degree of similarity between the two actions,” First Union
Nat’l Bank, 921 A.2d at 424, and where “the causes of action
and essential issues” are “substantially the same,” Culver, 559
A.2d at 405. See also Wadeer, 110 A.3d at 28 (“Application
of res judicata requires substantially similar or identical causes
of action and issues, parties, and relief sought . . . .” (quotation
marks omitted)); Betts v. Nichols, No. A-1378-21, 2023 WL
3990568, at *3 (N.J. Super Ct. App. Div. June 9, 2023) (per
curiam) (affirming district court ruling that held “these claims
are essentially the same as the claims made” before); Jefferson
v. City & State Dep’t of Health & Vital Stat., No. A-1533-20,
2022 WL 2352137, at *3 (N.J. Super Ct. App. Div. June 30,
2022) (per curiam) (holding claims were precluded because
they were “essentially the same claims” asserted in the first

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subpoena compliance purportedly violates federal law. A
comparison of Smith & Wesson’s federal complaint and state
cross-motion confirms this. The company’s federal complaint
includes claims that the New Jersey Attorney General’s
subpoena violated various constitutional provisions. See App.
72-82. In its brief in support of its cross-motion, the company
argued that the subpoena violated these same provisions. See
App. 190-98. Therefore, the “wrong for which redress is
sought” is identical in both actions. Wadeer, 110 A.3d at 28;
see also id. at 29 (holding the acts complained of were identical
when they involved the conduct of the same insurer); Culver,
559 A.2d at 405 (same).
The demand for relief in both actions is also essentially
the same. Smith & Wesson sought to prevent the enforcement
of the New Jersey Attorney General’s subpoena in both
actions. In its federal complaint, Smith & Wesson asked the
District Court to “[e]njoin any proceedings in the state courts
of New Jersey to enforce the Subpoena” and “[e]njoin
Defendants from enforcing the Subpoena.” App. 82. In its
state court cross-motion, the company also took issue with the
action); Gage v. Wells Fargo Bank, N.A., No. A-5350-13T2,
2016 WL 783055, at *1-2 (N.J. Super. Ct. App. Div. Mar. 1,
2016) (per curiam) (holding claims were precluded because
they complained of “essentially the same misconduct” alleged
in the prior actions and sought “essentially the same relief”);
McPeek v. Deputy Att’y Gen., No. A-2181-07T3, 2008 WL
5273081, at *4 (N.J. Super. Ct. App. Div. Dec. 22, 2008) (per
curiam) (“Res judicata bars repetitive litigation when there has
been a final judgment by a court of competent jurisdiction and
the causes of action, issues, parties, and relief sought are
substantially similar.”).

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“enforceability of the Subpoena” and asked the state trial court
to quash it. App. 189.
Smith & Wesson’s inclusion of requests for declaratory
relief and a stop to the New Jersey Attorney General’s
“investigation” in its federal complaint changes nothing. App.
82-83. The gravamen of both actions is the same. In the
federal proceeding, Smith & Wesson sought to stop subpoena
enforcement on the grounds that it is illegal. In the state
proceeding, Smith & Wesson sought to quash the subpoena
and stop enforcement because it is illegal. The specific forms
of relief sought are immaterial so long as Smith & Wesson had
the opportunity to seek identical relief — relief preventing
enforcement of the subpoena — in both actions. It had that
opportunity and did exactly that.8 See First Union Nat’l Bank,
921 A.2d at 424 (applying claim preclusion test and holding
that the claims were the same “[a]lthough the demand for relief
[was] broader in the [subsequent action]” because it included a
new demand for equitable relief); Culver, 559 A.2d at 405
(holding the relief sought was “essentially the same, even
though in the second action the claim for damages is expanded
to include” other forms of relief); see also Gregory v. Chehi,
843 F.2d 111, 118 (3d Cir. 1988) (“It is not significant that the
8 The dissent mischaracterizes New Jersey claim preclusion
law when it writes “[c]laim preclusion deals with the claims
brought and decided, not the litigation paths unavailable and
unexplored.” Dissenting Op. 30-31. But in New Jersey,
“[c]laim preclusion applies not only to matters actually
determined in an earlier action, but to all relevant matters that
could have been so determined.” McNeil, 828 A.2d at 859
(quoting Watkins, 591 A.2d at 599).

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21
relief obtainable in the two forums varies to some degree.”);
Exxon Mobil Corp. v. Healey, 28 F.4th 383, 400 (2d Cir. 2022)
(“Nor does it matter that the two actions sought nominally
different remedies. So long as the same relief was available in
the [state] proceeding, the fact that Exxon opted to seek
different forms of relief in the two actions is irrelevant to the
issue of claim preclusion.” (citations omitted)). In addition,
Smith & Wesson fails to explain how enjoining the subpoena’s
enforcement is any different from enjoining the
“investigation.” App. 82. As the New Jersey Attorney General
highlights, “the only investigative action challenged was the
Subpoena, and there is no other action to enjoin if the Subpoena
is quashed.” N.J. Att’y Gen. Br. 24; see also Oral Arg. at
22:53-23:10.9
9 The dissent contends that there is an “investigation” distinct
from the subpoena, as evidenced by allegations in Smith &
Wesson’s federal complaint. Dissenting Op. 13 n.18, 21 n.25,
24-25. But the cited allegations in the federal complaint only
confirm that the subpoena was the only investigative step taken
by the New Jersey Attorney General. Our dissenting colleague
cites allegations that New Jersey announced it “would”
combine the investigative and enforcement powers of the state
to “turn up the heat” on gun manufacturers, id. at 21 n.25
(quoting App. 55, 53), and “will” use its “investigatory and
prosecutorial powers,” id. (quoting App. 59). These
allegations, repletes with “wills” and “woulds,” show that
these supposed, nascent investigative steps are nonexistent.
Nothing else has occurred. At this time, the New Jersey
Attorney General has not taken any investigative steps outside
issuing a subpoena.

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22
The theories of recovery are also the same. Even when
causes of actions arise from different legal theories, the
theories of recovery are sufficiently similar when they require
the court to engage in substantially the same analysis. See
Culver, 559 A.2d at 405-06 (holding that the theories of
recovery were sufficiently similar to warrant claim preclusion,
although one cause of action rested on equitable principles and
the other on contract principles, because the court had to
engage in largely the same analysis for both claims and both
claims concerned the same factual inquiry). Smith &
Wesson’s theories in both proceedings concern the
unconstitutionality of the New Jersey Attorney General’s
subpoena and are therefore the same for the purposes of claim
preclusion.
The evidence and material facts are similarly identical
across both actions. If “additional proofs neither required nor
relevant” to the first proceeding are required in the second
proceeding, then the matters may be distinct. See Bondi v.
Citigroup, Inc., 32 A.3d 1158, 1188 (N.J. Super. Ct. App. Div.
2011). In both the federal complaint and state cross-motion,
Smith & Wesson alleges violations of the same constitutional
provisions because of the New Jersey Attorney General’s
subpoena. Compare App. 72-82 (federal complaint) with App.
190-98 (state cross-motion). The evidence required to
demonstrate that the state violated Smith & Wesson’s federal
rights is the same whether litigated in federal or state court.
And the material facts are the same. Smith & Wesson’s legal
challenges in both proceedings stem from the New Jersey
Attorney General’s efforts to enforce the subpoena against it.
See Wadeer, 110 A.3d at 29; Culver, 559 A.2d at 405.

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23
For the aforementioned reasons, we hold that the claims
in the state and federal proceedings grew out of the same
transaction or occurrence. We want to underscore that we are
not the first to make this observation. Smith & Wesson’s own
admissions support this. In state court, Smith & Wesson
argued that the state court should stay the state trial court action
and “not adjudicate what amounts to a carbon-copy dispute of
the federal court lawsuit.” App. 188 (emphasis added). It went
on to write that
Both [proceedings] involve the same claims: the
enforceability of the Subpoena and the validity
of Smith & Wesson’s constitutional objections to
that Subpoena. While one case presents the
issues in the context of an action for deprivation
of rights and the other in the context of a motion
to enforce, it is a distinction without a difference.
The issue is the same: whether Smith & Wesson
must comply with the Subpoena.
App. 189 (emphasis added). The company went so far as to
incorporate its federal complaint by reference in its state trial
court filing. See App. 190 n.17; see also App. 194-96
(explicitly referring to its federal complaint in its state trial
court filing). Smith & Wesson cannot have it both ways. It
argued the claims are the same for the purposes of a stay, but
now attempts to frame them as distinct for the purposes of
preclusion. Moreover, other courts have similarly looked to
the party’s own characterization of its actions in concluding
two acts complained of were the same. See Exxon, 28 F.4th at
401 (relying upon Exxon’s concession in Massachusetts trial
court that all its claims in both actions arose from the same
facts).

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24
4.
Although we hold that New Jersey’s claim preclusion
test is satisfied, Smith & Wesson raises additional arguments
for why its federal complaint should not be precluded.
a.
Smith & Wesson argues that the state court judgment
cannot be preclusive because the company did not have the full
and fair opportunity to litigate its constitutional arguments in
the state court proceeding. Although the full and fair
opportunity to litigate is typically discussed in issue preclusion
analyses and is not expressly part of the New Jersey claim
preclusion test, the Supreme Court has held that “invocation of
res judicata or claim preclusion is subject to the same
limitation.” Kremer v. Chem. Constr. Corp., 456 U.S. 461, 481
n.22 (1982); see also 18 Charles Alan Wright, Arthur R. Miller,
Edward H. Cooper, and Vikram David Amar, Federal Practice
and Procedure § 4423 (3d ed. 2016) [hereinafter Wright &
Miller] (discussing the full and fair opportunity to litigate as
necessary for issue preclusion). New Jersey appellate courts
have similarly held that claim preclusion does not apply unless
the party whose claim is being sought to be barred had a full
and fair opportunity to litigate its claims in the original action.
See Bondi, 32 A.3d at 1188 (citing Cafferata v. Peyser, 597
A.2d 1101, 1104 (N.J. Super. Ct. App. Div. 1991)).
New Jersey appellate courts have listed factors to
consider when determining whether a party had a full and fair
opportunity to litigate. Courts should consider whether “(1)
the prior forum afforded plaintiffs procedural opportunities in

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25
the presentation and determination of the issues; (2) plaintiffs
could have effected joinder of the present defendant in the prior
proceeding; and (3) other compelling circumstances make it
appropriate that plaintiffs be permitted to relitigate the issue.”
Konieczny v. Micciche, 702 A.2d 831, 836 (N.J. Super. Ct.
App. Div. 1997) (citing Restatement (Second) of Judgments
§ 29 (Am. L. Inst. 1982)).
Smith & Wesson had a full and fair opportunity to
litigate its claims in state court. The company contends that
the summary state court enforcement action lacked the
procedural opportunities of plenary proceedings, and therefore
cannot have preclusive effect. Summary actions are, “by
definition, designed to accomplish the salutary purpose of
swiftly and efficiently disposing of matters which lend
themselves to summary treatment[.]” Levchuk v. Jovich, 855
A.2d 635, 640 (N.J. Super. Ct. App. Div. 2004) (quotation
marks omitted) (alteration in original). Smith & Wesson
correctly notes that the New Jersey courts do not seek to make
summary proceedings “traps[s] for the unwary,” id. at 641
(quoting Perry v. Tuzzio, 672 A.2d 213, 217 (N.J. Super. Ct.
App. Div. 1996)), or “the unsuspecting,” Cafferata, 597 A.2d
at 1104, by creating preclusive consequences beyond the
proceeding’s scope. That is why, in a summary proceeding,
“no counterclaim or cross-claim may be asserted without leave
of court.” Levchuk, 855 A.2d at 640 (citing N.J. C. R. 4:67-
4(a)).
But the authority Smith & Wesson cites concerned
circumstances critically distinct from its own state court
summary proceeding. The company relies heavily upon two
New Jersey appellate cases where the Appellate Division did
not afford preclusive effect to a summary proceeding. See

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26
Cafferata, 597 A.2d at 1102-04; B.F. v. Div. of Youth &
Family Servs., 686 A.2d 1249, 1252-55, (N.J. Super. Ct. App.
Div. 1997). In Cafferata v. Peyser, the Appellate Division
refused to apply issue preclusion to an order resulting from an
“informal expedited mediation” conducted by the judge’s “law
secretary” to settle a “routine” medical bill collection matter.
597 A.2d at 1102-04. The court did not preclude the patient
from bringing a separate malpractice claim because he had no
opportunity to raise the malpractice claim in the informal
proceeding. Id. at 1104. The Appellate Division considered
that the patient appeared pro se, there was no presiding judge,
and it was an expedited small claims hearing. Id. Similarly, in
B.F. v. Division of Youth & Family Services, the Appellate
Division refused to apply New Jersey’s entire controversy
doctrine10 and give preclusive effect to an order terminating
parental rights after the parents brought a separate action under
42 U.S.C. § 1983 against non-parties to the termination
proceeding because, in part, there was no “procedural
mechanism” for them to join new parties and lodge their civil
rights arguments in the initial termination proceeding. 686
A.2d at 1252-55. The Appellate Division considered that the
parents could not have brought the civil rights claims against
the non-parties and that they were represented by appointed
counsel with resources restricted to only the termination
hearing. Id. at 1255.
Cafferata and B.F. both concerned situations where the
plaintiffs had no or limited legal representation and possessed
no procedural mechanism to present their claims. In stark
contrast, a sophisticated national law firm represented Smith &
10 See infra note 13 for an explanation of the entire controversy
doctrine and its applicability to this case.

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27
Wesson throughout the state proceedings. And the company
not only had the opportunity to raise its objections when the
trial court solicited its opposition to the subpoena, but it took
advantage of that opportunity and vigorously argued its claims.
Its own cross-motion put the constitutional objections at issue.
Because Smith & Wesson had a forum for the presentation and
determination of its constitutional arguments and the parties
were the same in both proceedings, the state court provided a
full and fair opportunity to litigate for the purposes of claim
preclusion.
One of our sister Courts of Appeals recently came to a
similar conclusion in an analogous case. In Exxon Mobil Corp.
v. Healey, the Massachusetts Attorney General initiated an
investigation into whether energy company Exxon Mobil
committed consumer fraud. 28 F.4th at 388. The
Massachusetts Attorney General served Exxon with a
subpoena to produce documents concerning marketing and
sales of fossil fuel products to Massachusetts residents. Id. at
389. Exxon then filed a federal complaint for civil rights
violations against the Massachusetts Attorney General,
seeking to enjoin the subpoena because the investigation
violated the First, Fourth, and Fourteenth Amendments and the
Dormant Commerce Clause. Id. One day after filing its federal
complaint, Exxon initiated a Massachusetts state court
proceeding to quash the subpoena and the Massachusetts
Attorney General moved to compel enforcement. Id. at 389-
90. The Massachusetts state court came to judgment first and
held the subpoena was legitimate but refused to consider
Exxon’s constitutional arguments because the state’s Attorney
General was still investigating, which bore on whether Exxon’s
speech was afforded First Amendment protection as non-
fraudulent commercial speech. Id. at 390. Applying

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28
Massachusetts state law, the federal district court dismissed
Exxon’s federal complaint on claim preclusion grounds. Id. at
391. On appeal, the United States Court of Appeals for the
Second Circuit affirmed the federal district court’s claim
preclusion dismissal. Id. at 403. The court rejected Exxon’s
argument that the state enforcement proceeding was limited in
nature and did not afford the company a full and fair
opportunity to litigate its federal claims. Id. at 401. The court
held that being in a defensive posture when raising
constitutional claims does not alter the claim preclusion
analysis. Id. (citing Bartel Dental Books Co. v. Schultz, 786
F.2d 486, 489 & n.1 (2d Cir. 1986)).11 Like the Court of
11 Smith & Wesson argues Exxon is inapposite because of
differences between the case and the present circumstances. It
seeks to distinguish Exxon because Exxon had invoked the
jurisdiction of the state court, unlike here where the New Jersey
Attorney General first initiated the state subpoena enforcement
action and because the Court of Appeals for the Second Circuit
applied Massachusetts state law.
But these are immaterial distinctions. First, as the Court of
Appeals for the Second Circuit held, courts have expressly
rejected “the notion that being in a ‘defensive’ posture would
alter the analysis for claim preclusion.” Exxon, 28 F.4th at
401. In its state court briefing, Smith & Wesson seems to agree
that the different posture has no effect, writing “[w]hile one
case presents the issues in the context of an action for
deprivation of rights and the other in the context of a motion to
enforce, it is a distinction without a difference.” App. 189
(emphasis added). Second, Massachusetts’s claim preclusion
test mirrors New Jersey’s test. Exxon, 28 F.4th at 398.
Moreover, Smith & Wesson cites no authority for its

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29
Appeals for the Second Circuit, we view the difference in
posture between the two matters insignificant to the claim
preclusion analysis. We thus hold that Smith & Wesson had a
full and fair opportunity to litigate in the state court matter.
b.
Smith & Wesson also argues that a recent change in
Second Amendment jurisprudence “requires a new
determination on the merits.” Smith & Wesson Br. 40. The
Supreme Court issued its decision in New York State Rifle &
Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), in June 2022, almost
exactly one year after the state trial court ordered Smith &
Wesson to comply with the subpoena. In Bruen, the Supreme
Court discarded the means-ends scrutiny test courts had
applied to challenges to firearm regulations. Bruen, 597 U.S.
at 17; see also Range v. Att’y Gen., 69 F.4th 96, 100 (3d Cir.
2023) (en banc). It instead held that “the government must
demonstrate that the regulation is consistent with this Nation’s
historical tradition of firearm regulation.” Bruen, 597 U.S. at
17. Smith & Wesson argues Bruen alters the preclusion
analysis.
We are not convinced of the relevance of Bruen to the
claim preclusion analysis here. There is no firearm regulation
at issue in this appeal, and no court engaged in any Second
Amendment analysis that would have been conducted
differently pursuant to Bruen. Even assuming Bruen is
relevant, Smith & Wesson cites no authority establishing that
a subsequent change of law creates an applicable exception to
contention that the procedural posture or Massachusetts state
law dictate a different outcome.

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30
claim preclusion in New Jersey.12 Smith & Wesson brought a
bevy of constitutional claims in federal court, of which its
12 In its Reply Brief, Smith & Wesson passingly mentions one
New Jersey Supreme Court case that recognizes that a change
in law may create a rare exception to an application of claim
preclusion: City of Plainfield v. Public Service Electric & Gas
Co., 412 A.2d 759 (N.J. 1980). In City of Plainfield, the New
Jersey Supreme Court did not afford preclusive effect to a 1916
decision interpreting an 1898 utilities contract that would have
provided the City of Plainfield with free electricity in
perpetuity despite a later-passed state regulation prohibiting
unreasonable rates and preferential treatment in utilities rates.
Id. at 761, 766; see also Velasquez, 589 A.2d at 151. The New
Jersey Supreme Court reasoned that the “special status of the
litigants” (a municipality and “quasi-public regulated utility”),
the total frustration of the state statute, and the significant
public interest in the equal treatment of electricity customers
weighed toward not applying preclusion. City of Plainfield,
412 A.2d at 764, 766. The New Jersey Supreme Court
explained in a later opinion that the exception recognized in
City of Plainfield is “narrow” and “extraordinary” and only
arises “where the issue is purely one of law that affects a
substantial public interest, and the decision would ‘frustrate
totally the essential purpose of a statute’ and result in
inequitable administration of the law if not reconsidered.” See
Velasquez, 589 A.2d at 151 (quoting City of Plainfield, 412
A.2d at 736).
Aside from any preservation issue, this exception is not
applicable to this appeal. The present case is a far cry from the
circumstances of City of Plainfield. There is no statute at issue
here, let alone one that an application of preclusion would

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31
Second Amendment claim was only one. Preclusion principles
apply equally to all of its claims — no matter their substance.13
totally frustrate. And Smith & Wesson is a company pursuing
its own corporate interest, not a quasi-public energy company
serving the citizens of New Jersey. The New Jersey Supreme
Court has cautioned that “[o]nly in extraordinary
circumstances has the Court departed from strict deference
to res judicata principles.” Velasquez, 589 A.2d at 151. We
see no such extraordinary circumstance here and therefore will
not do so now.
13 Smith & Wesson also argues the District Court incorrectly
concluded that Smith & Wesson’s federal complaint was
barred by New Jersey’s entire controversy doctrine. By way
of background, the entire controversy doctrine is New Jersey’s
mandatory claim and counterclaim joinder rule that requires
parties to bring all claims and counterclaims that “arise from
related facts or the same transaction or series of transactions.”
Bank Leumi USA v. Kloss, 233 A.3d 536, 540 (N.J. 2020)
(quotation marks omitted) (quoting Dimitrakopoulos v.
Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 203
A.3d 133, 149 (N.J. 2019)); see also Rycoline Prods., Inc. v. C
& W Unlimited, 109 F.3d 883, 885-86 (3d Cir. 1997). It is
similar to claim preclusion, but more preclusive. Bank Leumi
USA, 233 A.3d at 540-41. But the District Court never held
the entire controversy doctrine bars the federal complaint. It
rested its conclusion on claim preclusion. The District Court
made passing mention of the entire controversy doctrine once
in the text of its opinion. The District Court mentioned it in
two additional instances in quoting parentheticals discussing
claim preclusion. It never explained what the doctrine is, how
it operates, or its elements. See generally App. 3-21. These

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32
* * * * *
All elements of New Jersey’s claim preclusion test are
satisfied and Smith & Wesson’s other arguments are without
merit. Therefore, we agree with the District Court that Smith
& Wesson’s federal claims are barred by claim preclusion.
B.
We turn to Smith & Wesson’s other argument that the
District Court incorrectly rejected its reservation of its right to
litigate in its chosen, federal forum.
In Railroad Commission of Texas v. Pullman, the
Supreme Court recognized the first abstention doctrine. 312
U.S. 496, 501 (1941). The Supreme Court held that “[i]f there
are unsettled questions of state law in a case that may make it
unnecessary to decide a federal constitutional question, the
federal court should abstain until the state court has resolved
the state questions.” 17A Wright & Miller § 4241 (discussing
Pullman, 312 U.S. at 501-02). But when a federal court
invokes Pullman abstention and stays proceedings to allow the
state courts to decide the preliminary and essential question of
state law, the litigants run the risk that the state court may reach
beyond the state law issue and decide the litigants’ federal
constitutional questions. See England v. La. State Bd. of Med.
Exam’rs, 375 U.S. 411, 413-14, 419 (1964). To address this
problem, the Supreme Court held that “when a federal court
abstains from deciding a federal constitutional issue to enable
brief references are not sufficient to convince us that the
District Court relied upon the entire controversy doctrine in
reaching its decision.

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33
the state courts to address an antecedent state-law issue, the
plaintiff may reserve his right to return to federal court for the
disposition of his federal claims.” San Remo Hotel, L.P. v.
City & Cnty. of San Francisco, 545 U.S. 323, 339 (2005)
(citing England, 375 U.S. at 419). This is England reservation,
or the England doctrine, named after the Supreme Court
opinion that first recognized it. See England, 375 U.S. at 419-
23.
But England reservation only applies to instances that
resemble Pullman abstention. In San Remo Hotel, the
Supreme Court clarified the scope of England reservation and
explained that
[o]ur discussion of the “typical case” in which
reservations of federal issues are appropriate
makes clear that our holding was limited to cases
that are fundamentally distinct from petitioners’.
“Typical” England cases generally involve
federal constitutional challenges to a state statute
that can be avoided if a state court construes that
statute in a particular manner. In such cases, the
purpose of abstention is not to afford state courts
an opportunity to adjudicate an issue that is
functionally identical to the federal question. To
the contrary, the purpose of Pullman abstention
in such cases is to avoid resolving the federal
question by encouraging a state-law
determination that may moot the federal
controversy. Additionally, our opinion made it
perfectly clear that the effective reservation of a
federal claim was dependent on the condition
that plaintiffs take no action to broaden the scope

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34
of the state court’s review beyond decision of the
antecedent state-law issue.
545 U.S. at 339-40 (citations and footnotes omitted). Some of
our sister Courts of Appeals have interpreted San Remo Hotel
to explicitly limit England reservation only to situations where
a district court abstains under Pullman. See Davison v. Rose,
19 F.4th 626, 634 (4th Cir. 2021) (“[A]n England reservation
only applies after a federal court abstains under Pullman.”);
Atwater v. Chester, 730 F.3d 58, 63 (1st Cir. 2013) (“The right
to reserve claims arises only when the district court abstains
under Pullman.”). In a decision that precedes San Remo Hotel,
however, we recognized that “the Supreme Court has never
explicitly limited England to the Pullman abstention context.”
Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1071 (3d
Cir. 1990).
We need not decide whether England reservation only
applies to instances of Pullman abstention at this time. Even if
England reservation applies in a broader array of
circumstances than just Pullman abstention, it must at least
resemble a “typical case” permitting England reservation. San
Remo Hotel, 545 U.S. at 339. It does not here. “Typical
England cases generally involve federal constitutional
challenges to a state statute that can be avoided if a state court
construes the statute in a particular manner.” Id. Smith &
Wesson does not challenge the constitutionality of any state
statute. The parties do not identify any issues of statutory
construction in this case. Moreover, Smith & Wesson did
“take [an] action to broaden the scope of the state court’s
review beyond” the state law issue by raising its federal
constitutional challenges in its cross-motion. Id. at 340.
Therefore, England reservation is unavailable, and the District

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35
Court did not err in rejecting Smith & Wesson’s attempt to
reserve its rights for federal court.
IV.
The District Court properly found that claim preclusion
barred Smith & Wesson’s claims in federal court. When these
issues arise across the federal system, federal courts must
honor and give full faith and credit to the competent
adjudication of state courts. After all, comity between state
and federal courts is the “bulwark of the federal system.” Allen
v. McCurry, 449 U.S. 90, 96 (1980). To permit litigants to
frustrate an unfavorable state court ruling by pursuing a
carbon-copy lawsuit in federal court seeking substantially the
same relief undermines our judicial system. Litigants get one
opportunity to make their arguments. Not two. And they
cannot file a federal lawsuit to hedge against a potentially
unfavorable state ruling.
We note that the operation of claim preclusion is quite
modest in this case. The District Court correctly precluded
Smith & Wesson’s constitutional claims against the New
Jersey Attorney General for its efforts to enforce its subpoena
because these claims already had been decided in New Jersey
state court. The preclusive effect of the state court judgment
only concerns the subpoena at issue — not any nascent and
further investigative step or future enforcement action. The
New Jersey Attorney General conceded as much. See Oral
Arg. at 20:13-21:25. We express no opinion on whether Smith
& Wesson’s claims for constitutional violations due to further
investigative steps would be precluded.

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36
For the foregoing reasons, we will affirm the District
Court’s order of dismissal.

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1
MATEY, Circuit Judge, dissenting.
More than three years ago, Smith & Wesson asked a
federal court to decide whether the novel decision by New
Jersey’s Attorney General to use a state consumer fraud law to
investigate ads for ordinary guns and ammo treads on the
freedoms recognized by the U.S. Constitution. Today, and four
opinions later, those questions remain unanswered. In round
one, New Jersey raised the flag of Rooker-Feldman1 to avoid
the merits, an argument we rejected in round two. Remand
brought round three and should have resulted in a review of the
claims raised and relief sought. Ever eager, it seems, to avoid
that sort of scrutiny, New Jersey’s Attorney General reached
for res judicata. It worked, and the District Court dismissed the
entire controversy,2 a decision the majority affirms today in the
1 See Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923); D.C.
Ct. of Appeals v. Feldman, 460 U.S. 462 (1983).
2 Ordinarily, claim preclusion “may not afford the basis
for a Rule 12(b)(6) dismissal unless it is ‘apparent on the face
of the complaint.’” Hoffman v. Nordic Nats., Inc., 837 F.3d
272, 280 (3d Cir. 2016) (quoting Rycoline Prods., Inc. v. C &
W Unlimited, 109 F.3d 883, 886 (3d Cir. 1997)); see also 18
Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 4405 (3d ed. updated 2023). But Smith &
Wesson’s federal suit was filed first, so it is unclear how a
claim preclusion defense, based on a later-instituted state
action, could be apparent on the face of the earlier-filed federal
complaint. Because Smith & Wesson’s federal complaint was
the first appearance of these claims, they cannot be precluded
by a later, different action. See Restatement (Second) of
Judgments §§ 21–23, 26, 86 cmt. f (Am. L. Inst. 1982). Claim

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2
fourth round of decisions that writes not a word about the
merits of this suit.
Respectfully, this roundabout approach departs from the
classical contours of preclusion because there has never been a
final decision on the merits of Smith & Wesson’s claims. Not
in the federal courts, nor in the state actions—a point helpfully
confirmed by the Appellate Division of the New Jersey
Superior Court, which took pains to point out that it was
passing on, not deciding, the legal questions presented.
At bottom, New Jersey has not carried its burden of
proving that res judicata applies. It has not successfully shown
that the Chancery Division and the Appellate Division
decisions were final and disposed of Smith & Wesson’s federal
claims on the merits. Smith & Wesson, like any litigant, is
entitled to an answer to the allegations in its federal complaint.
And “[t]he ease and efficiency of res judicata as a means of
quickly avoiding an evaluation of the merits of a plaintiff’s
claim does not imply that the decision to apply the doctrine
should be either facile or hasty.” Purter v. Heckler, 771 F.2d
682, 690 (3d Cir. 1985). I would reverse the decision of the
District Court and so respectfully dissent.3
preclusion is further strained here because Smith & Wesson
was the plaintiff in the federal suit, but the defendant in the
state action. See Restatement (Second) of Judgments §§ 21, 26,
86. 3 New Jersey’s “deviation from ordinary principles of
law is unfortunate, though not surprising.” Silvester v. Becerra,
583 U.S. 1139, 1147 (2018) (Thomas, J., dissenting from the
denial of certiorari). Claims sounding in the Second

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3
I.
Res judicata expresses the classical principle of finality
that when a claim is decided on the merits, it cannot be
relitigated in another suit between the same parties raising the
same facts. As explained by the first Justice John Marshall
Harlan: “The general principle announced in numerous cases
is that a right, question, or fact distinctly put in issue, and
directly determined by a court of competent jurisdiction, as a
ground of recovery, cannot be disputed in a subsequent suit
between the same parties or their privies.” S. Pac. R.R. Co. v.
United States, 168 U.S. 1, 48 (1897). The correlative principle,
fixing the doctrine’s limited nature, is that preclusion requires
“sameness”—a mere overlap of claims or controversies will
not do. And claim preclusion “does not apply where ‘[t]he
plaintiff was unable to rely on a certain theory of the case or to
seek a certain remedy,’” a limit that “protects a plaintiff’s right
to bring claims that he ‘was not at liberty to assert’ in a prior
forum of limited jurisdiction.” Beasley v. Howard, 14 F.4th
226, 232 (3d Cir. 2021) (quoting Marrese v. Am. Acad. of
Orthopaedic Surgeons, 470 U.S. 373, 382 (1985) (alteration in
original), Est. of Roman v. City of Newark, 914 F.3d 789, 805
(3d Cir. 2019)).
Amendment were, for generations, “second-class right[s],
subject to an entirely different body of rules.” Id. at 1149
(quoting McDonald v. City of Chicago, 561 U.S. 742, 780
(2010)). Fourteen years later, that suspicion continues to distort
the decisions in firearms cases where the “ordinary rules of
law—and fairness—are suspended.” Whole Woman’s Health
v. Hellerstedt, 579 U.S. 582, 661 (2016) (Alito, J., dissenting).

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4
These positive and negative principles of res judicata
have Roman roots4 that grew into English common law,5 and
by the 1200s, English courts recognized a basic form of res
judicata.6 English courts took inspiration from both estoppel
4 See Digest from Emperor Justinian I’s Corpus Juris
Civilis, which was published in 534 A.D. Dig. 42.1.1
(Modestinus, Pandects 7) (“Things it is said to have been
judged, which is the end of controversies by the
pronouncement of the judge He accepts: that happens either by
condemnation or by acquittal.”); Cary R. Alburn, Corpus Juris
Civilis: A Historical Romance, 45 A.B.A. J. 562, 562 (1959).
Roman law provided for a plea known as exceptio rei
judicatae, available only when a subsequent suit involved the
same parties and same legal claim. Zollie Steakley & Weldon
U. Howell, Jr., Ruminations on Res Judicata, 28 Sw. L.J. 355,
355 (1974); Robert Wyness Millar, The Premises of the
Judgment as Res Judicata in Continental and Anglo-American
Law, 39 Mich. L. Rev. 1, 6 (1940). The Roman version of res
judicata was motivated by finality, designed to protect litigants
from never-ending suits. Lindsey D. Simon, Claim Preclusion
and the Problem of Fictional Consent, 41 Cardozo L. Rev.
2561, 2569 (2020). As Ulpianus explained, “[w]here the origin
of two claims is the same, it also makes a second demand the
same.” See Dig. 44.2.7 (Ulpianus, On the Edict 75). But when
“a new cause of action from which I derive ownership” arises,
“I will not be barred . . . .” Id.
5 Alburn, supra note 4, at 565.
6 See Kevin M. Clermont, Res Judicata as Requisite for
Justice, 68 Rutgers U. L. Rev. 1067, 1072 (2016). Henry de
Bracton’s description of res judicata from 1260 resembles the
res judicata of today: “The assise also falls if the demandant

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5
by record7 and res judicata, and over time the two merged.
Developments in the Law—Res Judicata, 65 Harv. L. Rev. 818,
820–21 (1952). Always, the goal remained the same:
preventing endless litigation between the same parties on the
same claim. As Lord Coke remarked, “if there should not be
an end of suits, then a rich and malicious man would infinitely
vex him who hath right by suits and actions.” Ferrer v. Arden
(1598) 77 Eng. Rep. 263, 266; 6 Co. Rep. 7 a, 9 a.8
Preclusion followed settlers to the courts in the English
colonies in North America9 and, after Independence, became a
claims by assise what he lost by judgment, for the assise falls
because of the exception of res judicata.” 3 Bracton on the
Laws and Customs of England 296 (Samuel E. Thorne trans.,
1977) (1260).
7 Estoppel by record, an early preclusion doctrine that
originated before the Norman Conquest, got its name because
it relied for preclusive effect on “some part of the record-
proceedings anterior to judgment”—such as the declarations
and admissions from the parties in the previous case—rather
than on the judgment itself. Robert Wyness Millar, Historical
Relation of Estoppel by Record to Res Judicata, 35 Ill. L. Rev.
41, 42, 45 (1940).
8 English courts also clarified that claim preclusion
should only apply to matters actually decided in the prior suit.
Millar, supra note 4, at 240–42 (surveying English court cases
from the late eighteenth and early nineteenth centuries and
concluding “whatever had necessarily come to direct decision
. . . had attained the property of res judicata”).
9 Prior to the American Revolution, Massachusetts and
Connecticut adopted laws imposing preclusion on judgments

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6
staple of courts in the United States.10 See Kevin M. Clermont,
Res Judicata as Requisite for Justice, 68 Rutgers U. L. Rev.
1067, 1073 (2016). New Jersey was no exception. Before 1947,
New Jersey maintained separate courts of law and equity. See
Edwin H. Stern, Comments on the Comments—Reflections on
the Presentations Regarding the Entire Controversy Doctrine,
28 Rutgers L.J. 193, 193 (1996). Each enjoyed jurisdiction to
hear different claims, and plaintiffs who lost at law could still
sue in the chancery without facing the bar of res judicata. Id. at
194. In its 1947 constitution, New Jersey merged the courts of
law and equity into one with separate Law and Chancery
divisions. Geoffrey C. Hazard, Jr., An Examination Before and
Behind the “Entire Controversy” Doctrine, 28 Rutgers L.J. 7,
from courts in other colonies. Ronan E. Degnan, Federalized
Res Judicata, 85 Yale L.J. 741, 743 (1976).
10 See, e.g., Hopkins v. Lee, 19 U.S. (6 Wheat.) 109, 113
(1821) (“[A]s a general rule . . . . a verdict and judgment of a
Court of record . . . puts an end to all further controversy
concerning the points thus decided between the parties to such
suit.”); Smith v. Kernochen, 48 U.S. (7 How.) 198, 217 (1849)
(explaining that the suit of the plaintiff below must be
dismissed because his case “falls within the general rule[] that
the judgment of a court of concurrent jurisdiction directly upon
the point” bars relitigation of the same point between the same
parties); Wash., A. & G. Steam Packet Co. v. Sickles, 65 U.S.
(24 How.) 333, 341–42 (1860) (noting that res judicata and the
rules governing it were “derived by us from the Roman law and
the Canonists,” and explaining that the rule that a prior
judgment on the same cause of action between the same parties
is admissible as evidence in a subsequent suit “is supported by
adjudged cases, and the authority of writers on the law of
evidence”).

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7
11 (1996). As a result, a party could no longer relitigate a case
by refiling in another division.11
Today, just like federal common law, res judicata in
New Jersey balances efficiency with fairness, ensuring that
parties are not barred from bringing claims that a prior court
never ruled on and could not have ruled on. See Watkins v.
Resorts Int’l Hotel & Casino, Inc., 591 A.2d 592, 599 (N.J.
1991) (citing Restatement (Second) of Judgments §§ 25 cmt. e,
26(1)(c) (Am. L. Inst. 1982)). And whether we look to the
classical or modern version of claim preclusion, Smith &
Wesson’s complaint is not barred.
II.
Under both New Jersey and federal law, claim
preclusion is an affirmative defense. See N.J. Ct. R. 4:5-4; Fed.
R. Civ. P. 8(c)(1). New Jersey, as the “party asserting
preclusion[,] must carry the burden of establishing all
necessary elements.” Taylor v. Sturgell, 553 U.S. 880, 907
(2008) (quoting 18 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 4405 (2d ed. 2002)). New
Jersey law,12 again like federal law, requires that three
11 See N.J. Const. art. VI § 3, ¶ 4; John A. Boyle,
Returning to Its Roots: An Examination of the 1998
Amendments to the Entire Controversy Doctrine, 30 Seton Hall
L. Rev. 310, 317–18 (1999).
12 We apply New Jersey law under 28 U.S.C. § 1738,
which provides that state court judgments “shall have the same
full faith and credit in every court within the United States . . .
as they have by law or usage in the courts of such State . . .

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8
elements be satisfied before a claim is precluded: first, “the
judgment in the prior action must be valid, final, and on the
merits”; second, “the parties in the later action must be
identical to or in privity with those in the prior action”; and
third, “the claim in the later action must grow out of the same
transaction or occurrence as the claim in the earlier one.”
McNeil v. Legis. Apportionment Comm’n of State, 828 A.2d
840, 859 (N.J. 2003) (quoting Watkins, 591 A.2d at 599).
Because New Jersey has not carried its burden on the first and
third elements, Smith & Wesson’s claims are not precluded.
A.
New Jersey first fails to establish a valid and final
judgment on the merits where “the factual issues directly
involved . . . [were] actually litigated and determined.”
Adelman v. BSI Fin. Servs., Inc., 179 A.3d 431, 436 (N.J.
Super. Ct. App. Div. 2018) (quoting Slowinski v. Valley Nat’l
Bank, 624 A.2d 85, 91 (N.J. Super. Ct. App. Div. 1993)); see
also Velasquez v. Franz, 589 A.2d 143, 147 (N.J. 1991). To
preclude Smith & Wesson’s federal suit, New Jersey relies on
two judgments: one from the Superior Court, Chancery
Division and another from the Superior Court, Appellate
from which they are taken.” We must give the judgment the
“‘the same’ faith and credit as under the law of the rendering
state, no more as well as no less.” Restatement (Second) of
Judgments § 86 cmt. g; see also Parsons Steel, Inc. v. First Ala.
Bank, 474 U.S. 518, 523 (1986) (“[A] federal court must give
the same preclusive effect to a state-court judgment as another
court of that State would give.”); Paramount Aviation Corp. v.
Agusta, 178 F.3d 132, 139, 142–43 (3d Cir. 1999) (applying
New Jersey preclusion law).

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9
Division.13 Neither will do. The Chancery Division,
considering only New Jersey’s action to enforce the subpoena,
did not address—and indeed could not have addressed—all the
claims raised and relief sought in Smith & Wesson’s federal
complaint. The Appellate Division noted Smith & Wesson’s
additional claims, but explicitly declined to reach them. That
leaves no full and final state court decision on the merits of
Smith & Wesson’s federal claims to preclude its federal suit.
1.
“[B]efore assessing the effect of [a] judgment, [we must]
consider what [the court] actually decided.” Davis v. U.S. Steel
Supply, Div. of U.S. Steel Corp., 688 F.2d 166, 182 (3d Cir.
13 The Chancery Division is one of two trial divisions in
the New Jersey Superior Court (the other trial division is the
Law Division). See Jeffrey S. Mandel, New Jersey Appellate
Practice 1:3-1(a) (2024). The Chancery Division “exercises
jurisdiction over all ‘[a]ctions in which the plaintiff’s primary
right or the principal relief sought is equitable in nature.’” Id.
at 1:3-1(a)(1) (citing N.J. Ct. R. 4:3-1(a)(1)). Typical matters
include “requests for temporary and final restraining orders or
preliminary and permanent injunctions.” Id. In contrast, the
Law Division “handles the bulk of civil and criminal litigation
within the state courts,” because any matter that falls outside
the specific enumerated case types in N.J. Ct. R. 4:3-1(1)–(4)
must be “filed and heard in the Law Division.” Id. at 1:3-1(2);
N.J. Ct. R. 4:3-1(a)(5). The Appellate Division is New Jersey’s
intermediate appellate court. Mandel, New Jersey Appellate
Practice 1:21-1. “Appeals may be taken to the Appellate
Division of the Superior Court from the law and chancery
divisions of the Superior Court.” N.J. Const. art. VI § 5, ¶ 2.

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10
1982) (en banc) (Gibbons, J., dissenting). The Chancery
Division did not render a decision on Smith & Wesson’s
federal claims that can establish res judicata because it simply
did not consider, much less decide, most of them.
The Chancery Division decision has two parts.14 In the
first, the Chancery Division addressed Smith & Wesson’s
request to stay the subpoena’s enforcement pending resolution
of its constitutional claims in federal court. As the Chancery
Division explained, Smith & Wesson “argue[d] that NAACP v.
Alabama requires that all constitutional issues related to a
subpoena be resolved before it can be enforced.” App. 283
(citing 357 U.S. 449, 463 (1958)) (emphasis added).15 The
Chancery Division disagreed, explaining that NAACP involved
“how Alabama’s interest in obtaining an NAACP members list
interfered with those members[’] right to freely associate and
pursue private interests as protected by the Fourteenth
Amendment.” App. 283–84. Concluding that New Jersey’s
subpoena did not implicate Smith & Wesson’s freedom of
association, the Chancery Division saw no reason to stay the
enforcement application. With that threshold concern resolved,
the Chancery Division declined to discuss, let alone decide,
14 The opinion is framed as a “statement of reasons” in
support of the Chancery Division’s “order for subpoena
responses.” App. 274, 276.
15 In the briefing before the Chancery Division, and in
the order to show cause hearing, both New Jersey and Smith &
Wesson put forth additional authority for their positions. See,
e.g., App. 243–44. But the Chancery Division zeroed in on
NAACP.

-- 46 of 71 --

11
“the issues in the federal case” that “will take months and more
likely years to be litigated.” App. 283.16
16 The understanding that the Chancery Division was
not adjudicating Smith & Wesson’s federal claims is the only
one that makes sense based on the record. The Chancery
Division opened the order to show cause hearing by noting that
“[t]he matter comes before the Court on an Order to Show
Cause which was filed on behalf of the Attorney General
essentially to enforce a subpoena which was filed pursuant to
. . . the Consumer Fraud Act.” App. 224 (emphasis added).
And New Jersey conceded during the order to show
cause hearing that it understood it to be a “subpoena
enforcement proceeding,” App. 224, meaning that “Smith &
Wesson’s Constitutional objections . . . cannot be adjudicated
at this early subpoena enforcement stage,” App. 226 (emphasis
added). Both parties agreed on this: Smith & Wesson described
its federal complaint as “raising constitutional and federal
statutory issues in an appropriate court.” App. 241 (emphasis
added). And New Jersey did not dispute that characterization,
telling the Chancery Division at one point that Smith &
Wesson had “filed . . . their Constitutional claims as a
complaint in federal court.” App. 267.
Given this, New Jersey only sought an “order directing
Smith & Wesson to comply with the subpoena,” not an
adjudication of Smith & Wesson’s constitutional claims.
App. 225. Smith & Wesson did not ask for an adjudication of
its federal claims, either—telling the Chancery Division that
the court “doesn’t need to and shouldn’t decide the
Constitutional and Federal issues right now.” App. 238; see
also App. 252 (Smith & Wesson telling the Chancery Division
that “[i]n the first instance, it’s our request that Your Honor

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12
In the second, the Chancery Division analyzed the
subpoena’s validity under the New Jersey Consumer Fraud Act
and its Hazardous Product Regulations. The Chancery
Division found New Jersey’s subpoena valid because it was
“not arguably different from those” subpoenas that the
Attorney General used “to investigate under the [Consumer
Fraud Act] various industries that advertise to New Jersey
consumers.” App. 286. As a result, the Chancery Division
ordered enforcement over Smith & Wesson’s objections,
finding that “[c]ompliance with a subpoena which comes
within the bounds of the [Consumer Fraud Act] is not obviated
in the face of constitutional objections.” App. 287. The
Chancery Division concluded that the “subpoena itself” does
not “violate[] constitutional rights” because it did not ban or
directly regulate Smith & Wesson’s speech, App. 287, and that
New Jersey was not motivated by anti-firearm animus in
issuing the subpoena.
In sum, the Chancery Division decided that 1)
enforcement of the subpoena need not be stayed pending
resolution of Smith & Wesson’s federal claims, and 2) the
subpoena is a valid exercise of the Attorney General’s
authority under the Consumer Fraud Act and Hazardous
stay in comity to the First Filed Action”) (emphasis added).
Indeed, Smith & Wesson communicated to the Chancery
Division the status of the federal proceeding, noting its
complaint had been filed “two months before this one,” and
that New Jersey “is actively participating in [the federal]
action.” App. 239. Further, at the time of the order to show
cause hearing, New Jersey had filed its first motion to dismiss
in the federal action and briefing for that motion was almost
finished.

-- 48 of 71 --

13
Product Regulations. That is not a holding “on the merits” of
Smith & Wesson’s federal claims, McNeil, 828 A.2d at 859,
because those issues were not “actually litigated and
determined,” Adelman, 179 A.3d at 436 (quoting Slowinski,
624 A.2d at 91).17 The parties and the Chancery Division
agreed and acted on the understanding that the federal action
was a separate proceeding and the appropriate forum for Smith
& Wesson’s federal claims. New Jersey cannot now reach for
res judicata in (another) attempt to preclude review of Smith &
Wesson’s federal claims.18
17 Contrary to the majority’s suggestion that no party
argued that the Chancery Division decision was not a “valid,
final judgment on the merits when it was issued,” Majority Op.
at 11–12 & n.4, Smith & Wesson repeatedly raised precisely
that point, see Opening Br. 4, 19–20, 26–30; Reply Br. 16–20;
Oral Arg. at 3:57–5:35.
18 Even assuming the Chancery Division decided a
constitutional claim also presented in the federal complaint,
that ruling could only preclude counts coextensive with the
Chancery Division’s decision. In other words, the preclusive
effect would be limited to those federal claims that 1) focused
on the one subpoena and 2) fell within the scope of the
Chancery Division’s discussion of the First and Second
Amendments. But among the thirteen counts in the federal
complaint, few fit both those criteria. Rather, Smith & Wesson
cried foul that both the subpoena and the underlying
investigation violated its federal rights and asserted a panoply
of constitutional rights beyond the First and Second
Amendments. See, e.g., App. 72–73 (Count II alleging that the
investigation and enforcement action violated Smith &
Wesson’s rights); App. 78 (Count IX alleging that the

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14
Res judicata was designed to prevent parties from suing
repeatedly on the same claim—not to prevent parties from
bringing claims that a previous court did not hear, and could
not have heard, in the first place. New Jersey cannot use the
Chancery Division decision to preclude review of Smith &
Wesson’s federal claims in federal court.
2.
But even if the Chancery Division’s decision could be
read to decide Smith & Wesson’s federal claims, the Appellate
Division’s decision controls and confirms preclusion is
improper.19 It is black-letter res judicata law that when “an
investigation violates Smith & Wesson’s rights); App. 78–82
(Count IX raising claims under the Equal Protection Clause of
the Fourteenth Amendment; Count X raising claims under the
Fifth and Fourteenth Amendments; Count XI raising claims
under the Fourth and Fourteenth Amendments; Count XIII
raising claims under the Dormant Commerce Clause of Article
I). 19 The Appellate Division’s decision arrived after the
District Court dismissed the federal suit. That alone should
counsel restraint, because while a “judgment otherwise final
remains so despite the taking of an appeal,” “the pendency of
. . . an appeal from a judgment . . . is relevant in deciding
whether the question of preclusion should presently be decided
. . . . It may be appropriate to postpone decision of that question
until the proceedings addressed to the judgment are
concluded.” Restatement (Second) of Judgments § 13 cmt. f.
Indeed, rendering a decision in the face of a pending appeal
“may give rise to a problem of inconsistent judgments.” Id.
Precisely the case here.

-- 50 of 71 --

15
appeal has been taken, the nature of the ultimate final judgment
in a case ordinarily is controlled by the actual appellate
disposition” such that “preclusion is limited to the matters
actually resolved by the appellate court.” 18A Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure
§ 4432 (3d. ed. updated 2023).20
So what did the Appellate Division decide? Not much,
owing to the “the lens of strict necessity” it applied to Smith &
20 See also Thomas v. Horn, 570 F.3d 105, 115 (3d Cir.
2009) (citing with approval 18A Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 4432 (2d ed. 2002)
and observing that, in another case, “res judicata did not apply”
to a trial court’s determination of constitutional issues when
the appellate court affirmed the trial court without reaching
those constitutional issues); Jennings v. Stephens, 574 U.S.
271, 278 (2015) (in the context of issue preclusion, discussing
that “preclusion no longer attaches to the ground on which the
trial court decided the case” when the “appellate court affirmed
the judgment” on an “alternative ground”); 18A Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure
§ 4433 n.21 (3d. ed. updated 2023) (discussing the effect of a
res judicata defense in the second action where the first action
is modified or reversed on appeal).
In its brief before this Court, New Jersey cited a prior
Third Circuit case that seems to take the opposite, and
unsupported, view. See Russell v. Russell, 134 F. 840 (3d Cir.
1905). But Russell arrived before Erie Railroad Co. v.
Tompkins, 304 U.S. 64 (1938), did not apply New Jersey law,
and has been regularly rejected in the last 118 years.

-- 51 of 71 --

16
Wesson’s constitutional claims. App. 593.21 The Appellate
Division agreed with the Chancery Division’s interpretation of
NAACP: that it was unnecessary to decide “all of defendant’s
constitutional objections . . . before production of the sought-
after documents can be compelled.” App. 597. Then, to
eliminate any ambiguity, the Appellate Division stated that in
any event, “[it] would find these federal constitutional claims
not ripe for [its] consideration.” App. 598. No mere throwaway
thought, as the Appellate Division then ticked through its
conclusions. First, “[i]n determining whether an issue is fit for
judicial review, we consider whether additional factual
development is required,” and “[w]e find that to do so on this
record would be improper, where there are few actual facts.”
App. 599. Better to wait, the Appellate Division wrote, for the
benefits of “a fulsome discovery process.” App. 599.22 Second,
21 An approach the Appellate Division based on Rescue
Army v. Municipal Court of Los Angeles, outlining “a series of
rules under which [the Court] has avoided passing upon a large
part of all the constitutional questions pressed upon it for
decision . . . . until necessity compels it in the performance of
constitutional duty.” 331 U.S. 549, 569 (1947) (internal
citation and quotation marks omitted). The Appellate Division
similarly found that it should “not address constitutional
questions when a narrower, non-constitutional result is
available.” App. 592 (internal citation and quotation marks
omitted).
22 The majority disagrees with the Appellate Division
and finds that additional facts are “neither required nor
relevant” in the federal action. Majority Op. at 22 (quoting
Bondi v. Citigroup, Inc., 32 A.3d 1158, 1188 (N.J. Super. Ct.
App. Div. 2011)). I do not see license for that new factual finish

-- 52 of 71 --

17
“there is no hardship to the parties by declining to address
defendant’s constitutional arguments now.” App. 599. That is
because Smith & Wesson “has preserved its claims.” App. 599.
Both these considerations counseled against “premature
adjudication” that would entangle the state court in “abstract
disagreements,” so the Appellate Division “end[ed] [its]
analysis of [Smith & Wesson’s] sweeping constitutional claims
here.” App. 599.
But the majority restarts the analysis the Appellate
Division ended, writing that the Appellate Division rejected the
“constitutional claims on the merits.” Majority Op. at 14.
Respectfully, that is either wrong or only half right. The
Appellate Division, expressly following the reasoning of the
Chancery Division, held NAACP does not permit a wide range
of federal constitutional objections to a state subpoena, only
those sounding in the freedom of association. App. 593
(“According to defendant, NAACP protects not only freedom
of association, but also governmental trespass of ‘fundamental
freedoms’ and ‘indispensable liberties.’ We are not
persuaded.”). If the majority means the Appellate Division
decided whether NAACP has a broad or narrow lens, then I
agree, and that is the only claim eligible for preclusion. If,
however, it means that the Appellate Division decided the
other federal constitutional claims Smith & Wesson presents in
the federal complaint, that fights the Appellate Division’s own
framing of the question.
The former reading is sounder. The Appellate Division
did not read NAACP to permit Smith & Wesson to raise non-
line, one never drawn by the District Court, and one directly
rejected by the state court decision.

-- 53 of 71 --

18
associational harms to object to the subpoena. As the Appellate
Division explained: “Taking the position that NAACP requires
all of defendant’s constitutional objections to be resolved
before production of the sought-after documents can be
compelled,” Smith & Wesson “raises multiple constitutional
objections in support of its motion to quash.” App. 597. The
Appellate Division responded: “We disagree, as these theories
are premised upon the argument that the United States
Supreme Court’s holding in NAACP permits them. We have
already rejected that argument.” App. 598. And, even if it does,
the Appellate Division would not hear them as they are not ripe
at “this preliminary stage of litigation.” App. 599.23
In sum, the Appellate Division decided that: 1) it need
not consider Smith & Wesson’s arguments that the subpoena
violates the Constitution before it considers the subpoena’s
validity; 2) even if it did consider the constitutional arguments,
23 Of course, any ambiguity in the Appellate Division
decision must be construed against preclusion. Because claim
preclusion can have wide-ranging effect, the doctrine should
be applied with care. Purter, 771 F.2d at 690. As the Supreme
Court noted in its decision in Brown v. Felsen, “[b]ecause res
judicata may govern grounds and defenses not previously
litigated . . . it blockades unexplored paths that may lead to
truth. For the sake of repose, res judicata shields the fraud and
the cheat as well as the honest person. It therefore is to be
invoked only after careful inquiry.” 442 U.S. 127, 132 (1979)
(emphasis added). This Court has followed Justice Blackmun’s
reasoning from Brown. See Papera v. Pa. Quarried Bluestone
Co., 948 F.3d 607, 611 (3d Cir. 2020) (“[W]e construe
ambiguities against claim preclusion.”); see also Beasley, 14
F.4th at 232.

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19
those claims would not be ripe for review; and 3) the subpoena
is enforceable under state law. None of these touch upon the
merits of Smith & Wesson’s federal constitutional claims,
meaning they were not “actually litigated and determined.”
Adelman, 179 A.3d at 436 (quoting Slowinski, 624 A.2d at 91).
B.
New Jersey has further failed to establish that Smith &
Wesson’s claims in state and federal court “grow out of the
same transaction or occurrence.” McNeil, 828 A.2d at 859
(quoting Watkins, 591 A.2d at 599). “Causes of action are
deemed part of a single ‘claim’ if they arise out of the same
transaction or occurrence,” id., but “[t]he test for identity of a
cause of action is the most difficult to determine,” Wadeer v.
N.J. Mfrs. Ins. Co., 110 A.3d 19, 28 (N.J. 2015). Courts must
consider “whether the acts complained of and the demand for
relief are the same (that is, whether the wrong for which redress
is sought is the same in both actions)”; “whether the theory of
recovery is the same”; “whether the witnesses and documents
necessary at trial are the same (that is, whether the same
evidence necessary to maintain the second action would have
been sufficient to support the first)”; and “whether the material
facts alleged are the same.” Culver v. Ins. Co. of N. Am., 559
A.2d 400, 405 (N.J. 1989) (quoting United States v. Athlone
Indus., Inc., 746 F.2d 977, 984 (3d Cir. 1984)). New Jersey’s
argument that Smith & Wesson’s federal claims are precluded
by the state action fails out of the gate, because “the acts
complained of and the demand for relief” are not the same. Id.
But not only are the demands for relief in the two actions

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20
different, Smith & Wesson also could not have sought the relief
it seeks in its chosen federal forum in the state proceeding.24
24 A full and fair opportunity to litigate claims is a
cornerstone of res judicata. As the majority notes, this
consideration can appear in discussions of issue preclusion, not
claim preclusion. See Majority Op. at 24. But both the Supreme
Court and this Court have recognized that a full and fair
opportunity to litigate is required to invoke claim preclusion.
Kremer v. Chem. Constr. Corp., 456 U.S. 461, 481 n.22
(1982); Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 276
(3d Cir. 2014) (“[C]laim preclusion . . . gives dispositive effect
to a prior judgment if a particular issue . . . could have been
raised in the earlier proceeding.”) (citation omitted).
New Jersey courts agree. See Bondi, 32 A.3d at 1188
(“Res judicata does not apply unless ‘the party whose claim is
being sought to be barred . . . had a fair and reasonable
opportunity’ to fully litigate that claim in the first action.”)
(quoting Cafferata v. Peyser, 597 A.2d 1101, 1104 (N.J. Super.
Ct. App. Div. 1991)). A full and fair opportunity to litigate is
also required to apply New Jersey’s entire controversy
doctrine, a “blood relative[]” of res judicata. Rycoline Prods.,
109 F.3d at 886; see also Dimitrakopoulos v. Borrus, Goldin,
Foley, Vignuolo, Hyman & Stahl, P.C., 203 A.3d 133, 148
(N.J. 2019) (rejecting application of entire controversy
doctrine where the “prior forum did not afford a fair and
reasonable opportunity to have fully litigated the . . . claim”)
(internal citations and quotation marks omitted).
But as relevant here, the fact that Smith & Wesson faced
a procedural bar to seeking the relief outlined in its federal
complaint in state court undermines any argument that the
demands for the relief are the same in both actions, and thus

-- 56 of 71 --

21
1.
A comparison of the state and federal complaints
reveals marked differences in the demands for relief in each
forum. In its federal complaint, Smith & Wesson brought
claims pursuant to 42 U.S.C. § 1983; the First and Fourteenth
Amendments (Counts I, II, III, IV, V, VI, VII); the Second and
Fourteenth Amendments (Count VIII); the Equal Protection
Clause of the Fourteenth Amendment (Count IX); the Fifth and
Fourteenth Amendments (Count X); the Fourth and Fourteenth
Amendments (Count XI); the federal Preemption, Protection
of Lawful Commerce in Arms Act (Count XII); and the
Dormant Commerce Clause of Article I, Section 8 of the U.S.
Constitution (Count XIII).25 In the complaint’s prayer for
relief, Smith & Wesson asked the federal court to:
cannot “grow out of the same transaction or occurrence.” See
Restatement (Second) of Judgments § 24 cmt. a (“Equating
claim with transaction, however, is justified only when the
parties have ample procedural means for fully developing the
entire transaction in the one action going to the merits.”).
25 The majority holds that Smith & Wesson’s challenge
to the subpoena is the same as its challenge to New Jersey’s
investigation. See Majority Op. at 19–21. But Smith & Wesson
alleges facts challenging the investigation as a whole, not just
the particular subpoena the Attorney General issued. For
example, Smith & Wesson alleged in its federal complaint that
New Jersey had publicly announced it would “combine the
investigative and enforcement powers of the State with the
expertise of the nation’s leading gun litigation,” App. 65
(quoting the Attorney General at a press conference), to “‘turn
up the heat’ on gun manufacturers,” App. 53; see also App.

-- 57 of 71 --

22
Enjoin any proceedings in the state courts of New Jersey
to enforce the Subpoena;
Enjoin Defendants from enforcing the Subpoena;
Issue a declaratory judgment pursuant to 28 U.S.C.
§ 2201, declaring that the Subpoena and related
investigation violate Smith & Wesson’s rights under the
First, Second, Fourth, Fifth, and Fourteenth
Amendments to the United States Constitution;
Issue a declaratory judgment pursuant to 28 U.S.C.
§ 2201, declaring that the Subpoena and related
investigation violate New Jersey citizens’ rights under
the Second Amendment to the United States
Constitution;
348 (tweet from the New Jersey Office of Attorney General’s
account that “we’re now turning up the heat on gun
manufacturers”). And Smith & Wesson further alleges that
New Jersey, in partnering with anti-Second Amendment
activists, will wield its “immense investigatory and
prosecutorial powers . . . to infringe on Smith & Wesson’s
constitutionally protected rights.” App. 59. The majority
accepts these loudly professed state actions but dismisses them
as “nascent” and “nonexistent.” Majority Op. at 21 n.9.
Respectfully, I take the sovereign at its word, even when it
speaks with hashtags. We must also accept these well-pled
allegations as true on a motion to dismiss, leaving materiality
to be measured after discovery. See Ashcroft v. Iqbal, 556 U.S.
662, 677–79 (2009).

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23
Issue a declaratory judgment pursuant to 28 U.S.C.
§ 2201, declaring that the Subpoena and related
investigation are preempted by the Protection of Lawful
Commerce in Arms Act;
Issue a declaratory judgment pursuant to 28 U.S.C.
§ 2201, declaring that the Subpoena and related
investigation violate the Dormant Commerce Clause
and the Supremacy Clause of the United States
Constitution; [and]
Award Plaintiffs such costs and reasonable attorney’s
fees to which it might be entitled by law[.]
App. 82.26
By contrast, New Jersey’s order to show cause
application in the Chancery Division only asked the court to
enter an Order [a]djudging [Smith & Wesson] in
contempt of Court for failing or refusing to obey the
Subpoena; [r]estraining [Smith & Wesson] from
engaging in the advertisement, offering for sale, or sale
of any merchandise until it fully responds to the
Subpoena; [d]irecting [Smith & Wesson] to respond
fully to the Subpoena within ten (10) days; [and]
[e]njoining the destruction of any documents
specifically requested in the Subpoena.
26 All referenced, contrary to the majority’s conclusion,
in Smith & Wesson’s brief before this Court. See Opening Br.
35–38 (referring to all claims “in the federal action”).

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24
App. 128.27 And in opposition, Smith & Wesson only asked
the Chancery Division to “dismiss the Attorney General’s
Complaint or, in the alternative, stay this proceeding pending
the outcome of the federal declaratory judgment action or, in
the alternative, quash the Subpoena and deny the Attorney
General’s request for relief.” App. 167 (emphases added).28
It is an easily seen contrast between narrow and wide.
The demand in the state action was either the enforcement or
quashing of a single subpoena. Smith & Wesson’s federal
complaint requests relief not just from this particular subpoena,
but the investigation as a whole. See App. 82 (requesting that
the federal court declare “that the Subpoena and related
investigation violate Smith & Wesson’s rights”) (emphasis
27 During the order to show cause hearing, Judge Alper
described the proceeding as an action by “the Attorney General
essentially to enforce a subpoena.” App. 224 (emphasis
added). And New Jersey expressed that it was seeking an
“order directing Smith & Wesson to comply with the
subpoena.” App. 225 (emphasis added).
28 The majority points to language in Smith & Wesson’s
brief in opposition to the order to show cause that the dispute
in the Chancery Division is a “carbon-copy dispute of the
federal court lawsuit.” Majority Op. at 23 (quoting App. 188).
But in that same brief, Smith & Wesson told the Chancery
Division that its claims were “entirely federal,” and indeed
some of its claims were “uniquely federal.” App. 189. Smith &
Wesson’s incorporation of its federal complaint into its brief in
opposition responded to New Jersey’s failure to address the
“complex” constitutional issues raised both in Smith &
Wesson’s objections to the subpoena and in the federal
complaint. App. 190 n.17.

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25
added). And it requests declaratory relief not just for Smith &
Wesson, but also for New Jersey citizens. See App. 82
(requesting that the federal court declare “that the Subpoena
and related investigation violate New Jersey citizens’ rights
under the Second Amendment to the United States
Constitution”) (emphasis added). Finally, the federal
complaint seeks “costs and reasonable attorney’s fees,” App.
82, which were not sought, and could not have been sought, in
the order to show cause proceeding. Mandel, New Jersey
Appellate Practice 1:3-1(a).
To avoid the distinctions between the two actions, the
majority paints with a broad brush and repeatedly finds that the
two matters are “essentially the same.”29 Majority Op. at 18,
29 The majority also cites Culver to support its
contention that the relief sought in the state action and federal
action is the same. See Majority Op. at 22. But the language
cited is not the rule. See Culver, 559 A.2d at 405 (quoting
Athlone Indus., 746 F.2d at 984, for the considerations to
determine whether causes of action and demands for relief are
“the same”). And even if it were, the New Jersey Supreme
Court there found the relief sought to be the same because both
actions asked to set aside a subrogation agreement and for a
new distribution of proceeds. Id. at 401. The only difference
was that the claims for damages included “other forms of
monetary relief.” Id. at 405. But here, the demands for relief
are nowhere near as close as they were in Culver. New Jersey
courts have recognized that such differences should preclude
the application of preclusion. See, e.g., Garvey v. Twp. of Wall,
696 A.2d 71, 74 (N.J. Super. Ct. App. Div. 1997); Brick Twp.
v. Vannell, 151 A.2d 404, 408 (N.J. Super. Ct. App. Div. 1959);

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26
19. But that is not the legal standard for claim preclusion. See
Culver, 559 A.2d at 405. The state and federal matters diverge
on the theories of recovery, the demands for relief, the acts
complained of, and the facts and evidence implicated. Labeling
over those differences as “essentially” the same “gravamen”
abandons the nuanced inquiry necessary for preclusion by
blurring the differences between claims and arguments.
Majority Op. at 20.30 That is an unwarranted departure from
the test we have repeatedly reaffirmed, that when the causes of
action and demands for relief are not the same in two actions,
claim preclusion is unavailable as a defense. See Donegal Steel
Foundry Co. v. Accurate Prods. Co., 516 F.2d 583, 588 (3d
Cir. 1975).
2.
Further undermining any argument that the two actions
“grow out of the same transaction or occurrence”—Smith &
David M. Cohen, P.A., L.L.C. v. Davis, Saperstein & Salomon,
P.C., No. A-1323-20, 2022 WL 869091, at *5 (N.J. Super. Ct.
App. Div. Mar. 24, 2022) (per curiam); see also Donegal Steel
Foundry Co. v. Accurate Prods. Co., 516 F.2d 583, 588 (3d
Cir. 1975) (rejecting res judicata defense where the
proceedings “involved a different cause of action”).
30 Recall that Smith & Wesson filed a federal complaint
and opposed the state application; the company did not counter
or cross-claim under N.J. Ct. R. 4:67-4(a). The limits the relief
Smith & Wesson sought—and the only relief the Chancery
Division could order—was quashing the subpoena. The
constitutional arguments Smith & Wesson offered in support
of that single request is different from raising claims sounding
in those arguments.

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27
Wesson could not have sought the relief it seeks in its chosen
federal forum in the state proceeding. Examining New Jersey
procedure shows that the order to show cause was a limited
matter31 circumscribed both by statute and the New Jersey
court rules.
Recall what happened. New Jersey sent Smith &
Wesson a subpoena, and Smith & Wesson filed written
objections to complying with the demand for documents. The
day after the subpoena return date, Smith & Wesson filed its
complaint in federal court. Two months later, and without
addressing any of Smith & Wesson’s responses and objections
to the subpoena, New Jersey moved to enforce the subpoena
by instituting an order to show cause in the Chancery Division.
That order to show cause is not the equivalent of an
ordinary civil action—it is a focused and specialized
mechanism to “seek relief in aid of a litigant’s rights to enforce
a subpoena.” Subpoenas: Procedure for Enforcing a Subpoena
(NJ) (Westlaw). It provides an “expedited method for a party
to request an order from the court.” Provisional Remedies:
Procedure for Obtaining a Preliminary Injunction (NJ)
(Westlaw). There are a few types of orders to show cause, see
3 N.J. Prac., Civil Practice Forms § 11:1 (6th ed. updated
31 A point even New Jersey conceded during the order
to show cause hearing, that “nearly all of Smith & Wesson’s
Constitutional objections . . . cannot be adjudicated at this early
subpoena enforcement stage.” App. 226.

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28
2023), but the Chancery Division here proceeded under N.J.
Ct. R. 4:67-1(a) as a summary action.32
As permitted, New Jersey sought an order to show cause
by a “complaint, verified by affidavit . . . presented to the court
ex parte.” N.J. Ct. R. 4:67-2(a). Smith & Wesson then had three
options to respond: “serve and file either an answer, an
answering affidavit, or a motion.” N.J. Ct. R. 4:67-4(a). Note
what is absent: Smith & Wesson could not assert a
“counterclaim or cross-claim . . . without leave of court.” N.J.
Ct. R. 4:67-4(a) (emphasis added).33 Following the rules,
Smith & Wesson moved to dismiss, stay, or quash the
subpoena. So the matter proceeded as a summary action under
32 The purpose of summary actions under N.J. Ct. R.
4:67-1 is to “swiftly and effectively dispos[e] of matters which
lend themselves to summary treatment.” Sylvia B. Pressler &
Peter G. Verniero, N.J. Court Rules – Annotated, R. 4:67-1
cmt. 1; accord Grabowsky v. Twp. of Montclair, 115 A.3d 815,
822 (N.J. 2015).
33 Indeed, the New Jersey Supreme Court recognized
that the requirement to seek leave for counterclaims and cross-
claims under N.J. Ct. R. 4:67-4(a) in summary actions renders
those actions different for preclusion purposes. Prevratil v.
Mohr, 678 A.2d 243, 250 (N.J. 1996). While discussing the
closely related entire controversy doctrine, Prevratil notes that
actions under N.J. Ct. R. 4:67-4(a) are excepted as an initial
matter from being precluded. Id.; see also id. at 246 (citing N.J.
Ct. R. 4:30A, entire controversy doctrine).

-- 64 of 71 --

29
N.J. Ct. R. 4:67-1(a)34—a quick and straightforward affair35
that allowed the Chancery Division to provide only “interim
restraint and other appropriate intermediate relief as may be
necessary to prevent immediate and irreparable damage.” N.J.
Ct. R. 4:67-2(a).
And this already limited proceeding was narrowed
further still by the statutory authority invoked by New Jersey
to initiate it: N.J. Stat. Ann. § 56:8-6. Part of the New Jersey
Consumer Fraud Act, § 56:8-6 allows the “Attorney
General . . . [to] apply to the Superior Court and obtain an
order” against “any person [that] fail[s] . . . [to] obey any
subpoena issued by the Attorney General.” N.J. Stat. Ann.
§ 56:8-6. But § 56:8-6 makes clear New Jersey was only
permitted to obtain a time-limited order providing relief “until
34 N.J. Ct. R. 4:67-5 allows the Chancery Division to
convert the action to “proceed as in a plenary action,” instead
of a summary action, but it did not. Thus, the proceeding was
limited “only to those actions in which the court is permitted
by rule or by statute to proceed in a summary manner.” 3 N.J.
Prac., Civil Practice Forms § 11:1.
35 The only requirement for the order to show cause
hearing is that the “court record the . . . hearing verbatim.”
Provisional Remedies: Procedure for Obtaining a Preliminary
Injunction (NJ) (Westlaw) (citing N.J. Ct. R. 4:52-1(a)).
Otherwise, there are “no[] . . . other requirements for how the
judge must conduct the hearing.” Id. Though the judges may
take oral testimony under N.J. Ct. R. 4:52-1(c), “they rarely do
so.” Id.

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30
the person . . . obeys the subpoena.” Id. § 56:8-6(d).36 That
means New Jersey, at best, gets an order about the subpoena,
good until Smith & Wesson responds to the subpoena; Smith
& Wesson, at most, gets to quash the subpoena. Neither the
parties, nor the two New Jersey courts, thought this one hearing
could do more.
The federal complaint, of course, is where Smith &
Wesson asked for more, because there was simply no
mechanism for Smith & Wesson to meaningfully bring its
claims before the Chancery Division in this procedural posture.
And it is no answer to say Smith & Wesson could have sought
leave of court to assert counterclaims, any more than noting
New Jersey could have filed a civil suit for declaratory relief
beyond this subpoena. Claim preclusion deals with the claims
36 Under this statute, New Jersey could only seek an
order from the Superior Court that 1) adjudged Smith &
Wesson in contempt of court for failing to obey the subpoena;
2) restrained Smith & Wesson’s “sale or advertisement of any
merchandise”; 3) vacated, annulled, or suspended Smith &
Wesson’s corporate charter or certificate of authority to do
business in New Jersey; and 4) granted to New Jersey “such
other relief as may be required.” N.J. Stat. Ann. § 56:8-6(a)–
(d). And this was, in fact, the very relief New Jersey sought.
By instituting the action against Smith & Wesson through an
order to show cause that proceeded as a summary action, New
Jersey itself established the boundaries for what the Chancery
Division could—and could not—adjudicate. This proceeding
was—by operation of statute and court rules—jurisdictionally
limited to determining the enforcement of the subpoena, and
its power only extended to coercing Smith & Wesson’s
immediate compliance with the subpoena.

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31
brought and decided, not the litigation paths unavailable and
unexplored. That is why a foundational principle of preclusion
is that “the jurisdiction in which the first judgment was
rendered was one which put no formal barriers in the way of a
litigant’s presenting to a court in one action the entire claim
including any theories of recovery or demands for relief.”
Restatement (Second) of Judgments § 26 cmt. c. “When such
formal barriers in fact existed and were operative . . . , it is
unfair to preclude him from a second action in which he can
present those phases of the claim which he was disabled from
presenting in the first.” Id.; see also Marrese, 470 U.S. at 382
(“[For] matters that were not decided in the state proceedings,
we note that claim preclusion . . . does not apply where ‘[t]he
plaintiff was unable . . . to seek a certain remedy because of the
limitations on the subject matter jurisdiction of the courts.’”)
(quoting Restatement (Second) of Judgments § 26); Watkins,
591 A.2d at 599 (“If . . . a claim could not have been presented
in the first action, then it will not be precluded in a later
action.”).
The structural limitations imposed by New Jersey law
prevented Smith & Wesson from raising the claims contained
in its federal complaint in the state action, so it cannot be that
the causes of action and demands for relief are the same in both
actions. Without the identity of causes of action and demands
for relief, the state action and federal actions do not, in fact,
“grow out of the same transaction or occurrence.” McNeil, 828
A.2d at 859. And for this reason, Smith & Wesson’s federal
claims are not precluded.37
37 Smith & Wesson cites two cases in support of its
contention that the order to show cause summary proceeding

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32
here should not have preclusive effect. See Cafferata, 597 A.2d
at 1102–04; B.F. v. Div. of Youth & Fam. Servs., 686 A.2d
1249, 1252–55 (N.J. Super. Ct. App. Div. 1997). The majority
distinguishes those two cases because “the plaintiffs had no or
limited legal representation and possessed no procedural
mechanism to present their claims.” Majority Op. at 26.
As to the first distinction, the majority’s assertion that
the quality of counsel bears on whether a claim is precluded
misreads those cases. In Cafferata, the Appellate Division
observed that the forum was designed be “informal[],
mediation-type proceedings in which pro se litigants are able
quickly, inexpensively, expeditiously, and with minimum
resort to legal counsel” litigate their claims so that the forum
could “cope effectively with the volume of minor commercial
litigation.” 597 A.2d at 1104. The Appellate Division found
that proceedings in this “inequal[] . . . forum” “were never
intended to have preclusionary consequences beyond their own
scope.” Id. This discussion of representation then goes to the
quality of the forum, not the ultimate presence or quality of
representation. And in B.F., the Appellate Division expressly
rejected the argument that being represented by “assigned, pro
bono counsel,” rather than a privately retained attorney, was
relevant to the application of res judicata. 686 A.2d at 1259.
Even so, for the reasons already articulated, the majority
is incorrect that Smith & Wesson had a procedural mechanism
to present their claims. See Majority Op. at 24–29. But more
importantly, neither New Jersey nor the majority cite any
authority from New Jersey in support of finding a claim
precluded based on a prior summary proceeding. We must
afford “the same” preclusive effect to the order to show cause
summary proceeding that New Jersey courts would give, so the

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33
* * *
Where does this leave the case? New Jersey tells us it
welcomes Smith & Wesson to file another challenge to future
enforcement actions, subpoenas, and investigations, but I am
confident in predicting New Jersey will then argue those
actions are precluded, too. For if Smith & Wesson’s federal
complaint cannot proceed now, then when can it, and on what
grounds? Certainly Smith & Wesson cannot raise anything that
has been precluded by this matter—which includes, it seems,
every possible challenge to this first, but not last, application
of the Consumer Fraud Act to supplement New Jersey’s
endless maze of firearms laws “in, as always, the name of
‘safety.’” Smith & Wesson Brands, Inc. v. Att’y Gen. of N.J.,
27 F.4th 886, 896 (3d Cir. 2022) (Matey, J., concurring). Smith
& Wesson is simply stuck on this now “well-traveled road in
the Garden State, where long-dormant regulatory powers
suddenly spring forth to address circumstances that have not
changed.” Id. Intimidation, rather than litigation—where law
must be offered, facts found, and an impartial decision
reached—seems to be New Jersey’s plan. A plan that,
lack of authority here in support of the majority’s position, and
the disregarding of authority going the other way, in fact
renders the preclusive effect “more.” Restatement (Second) of
Judgments § 86 cmt. g. “If we honor the undoubted principle
that courts need give a prior judgment no more force or effect
that the issuing State gives it, the case before us is resolved.”
Baker v. Gen. Motors Corp., 522 U.S. 222, 247 (1998)
(Kennedy, J., concurring in the judgment). Exxon Mobil Corp.
v. Healey, 28 F.4th 383 (2d Cir. 2022), cited by the majority
and New Jersey, involved Massachusetts, not New Jersey law,
and does not alter that conclusion.

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34
surprising no one, has now spread to the Attorney General’s
next disfavored group under the guise of the Consumer Fraud
Act. See Brief of Appellant at 4–6, First Choice Women’s Res.
Ctrs. Inc. v. Att’y Gen. of N.J., No. 24-1111 (3d Cir. Jan. 23,
2024), ECF No. 4 (detailing New Jersey’s “wave of increasing
hostility” against Christian pregnancy centers that resulted in
appellant’s receipt of a subpoena requesting “more than a
decade” of “detailed information about . . . clients, donors, and
associated entities,” as well as the “identities of personnel,
officers, and board members”).38
And in its crusades, New Jersey follows the familiar
playbook endorsed by this Court today, creating a “preclusion
trap” by initiating an order to show cause in state court to
quickly secure enforcement of a subpoena before a federal
challenge can be heard, and then arguing that the summary
proceeding results in a “permanent loss of [the] right to federal
judicial review.” Id. at 2; Letter of Appellant at 1, First Choice
Women’s Res. Ctrs. Inc. v. Att’y Gen. of N.J., No. 24-1111 (3d
Cir. Feb. 6, 2024), ECF No. 18; see also Brief of Appellant at
38 First Choice Women’s Resource Centers petitioned
for a writ of mandamus from the Supreme Court after the U.S.
District Court for the District of New Jersey dismissed its
challenge to the subpoena on ripeness grounds, see First
Choice Women’s Res. Ctrs., Inc. v. Platkin, 2024 WL 150096,
at *5 (D.N.J. Jan. 12, 2024), and this Court denied its
emergency motion for an injunction pending appeal, Order,
First Choice Women’s Res. Ctrs. Inc. v. Att’y Gen. of N.J., No.
24-1111 (3d Cir. Feb. 15. 2024), ECF No. 20. On May 13,
2024, the Supreme Court denied the petition for a writ of
mandamus. Order, In Re First Choice Women’s Res. Ctrs., Inc.
(No. 23-941), 2024 WL 2116515, at *1.

-- 70 of 71 --

35
19, 23–26, First Choice Women’s Res. Ctrs. Inc. v. Att’y Gen.
of N.J., No. 24-1111 (3d Cir. Apr. 22, 2024), ECF No. 34
(identifying this preclusion trap as a “Catch-22” where
subpoena recipients are forced to “first litigate their claims in
state court” and then be barred by “res judicata . . . from ever
filing in federal court”).39 Yet another reason to apply the
“accepted principles of res judicata.” Federated Dep’t Stores,
Inc. v. Moitie, 452 U.S. 394, 401 (1981).
New Jersey’s Attorney General may cheer the result
today. But the expansion of res judicata this win requires
cannot be cabined to the chosen causes of the current
executive. In time, New Jersey may come to lament losses in
less tweet-worthy investigations. Such is the cost of departing
from the classical legal tradition, and the reason I would stay
firmly tethered to the law of preclusion, unedited. For that
reason, I respectfully dissent.
39 The operation of claim preclusion is especially
troubling for Smith & Wesson’s 42 U.S.C. § 1983 claims, since
“[t]he Civil Rights Act of 1871, after all, guarantees a ‘federal
forum for claims of unconstitutional treatment at the hands of
state officials.’” Knick v. Twp. of Scott, 588 U.S. 180, 185
(2019) (quoting Heck v. Humphrey, 512 U.S. 477, 480 (1994)).

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