TAYLOR v. STURGELL, ACTING ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, et al.

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880 OCTOBER TERM, 2007
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TAYLOR v. STURGELL, ACTING ADMINISTRATOR,
FEDERAL AVIATION ADMINISTRATION, et al.
certiorari to the united states court of appeals for
the district of columbia circuit
No. 07–371. Argued April 16, 2008—Decided June 12, 2008
Greg Herrick, an antique aircraft enthusiast seeking to restore a vintage
airplane manufactured by the Fairchild Engine and Airplane Corpora
tion (FEAC), filed a Freedom of Information Act (FOIA) request asking
the Federal Aviation Administration (FAA) for copies of technical docu
ments related to the airplane. The FAA denied his request based on
FOIA’s exemption for trade secrets, see 5 U. S. C. § 552(b)(4). Herrick
took an administrative appeal, but when respondent Fairchild, FEAC’s
successor, objected to the documents’ release, the FAA adhered to its
original decision. Herrick then filed an unsuccessful FOIA lawsuit to
secure the documents. Less than a month after that suit was resolved,
petitioner Taylor, Herrick’s friend and an antique aircraft enthusiast
himself, made a FOIA request for the same documents Herrick had un
successfully sued to obtain. When the FAA failed to respond, Taylor
filed suit in the U. S. District Court for the District of Columbia. Hold
ing the suit barred by claim preclusion, the District Court granted sum
mary judgment to the FAA and to Fairchild, as intervenor in Taylor’s
action. The court acknowledged that Taylor was not a party to Her
rick’s suit, but held that a nonparty may be bound by a judgment if she
was “virtually represented” by a party. The D. C. Circuit affirmed,
announcing a five-factor test for “virtual representation.” The first two
factors of the D. C. Circuit’s test—“identity of interests” and “adequate
representation”—are necessary but not sufficient for virtual represen
tation. In addition, at least one of three other factors must be
established: “a close relationship between the present party and his pu
tative representative,” “substantial participation by the present party
in the first case,” or “tactical maneuvering on the part of the present
party to avoid preclusion by the prior judgment.” The D. C. Circuit
acknowledged the absence of any indication that Taylor participated in,
or even had notice of, Herrick’s suit. It nonetheless found the “identity
of interests,” “adequate representation,” and “close relationship” factors
satisfied because the two men sought release of the same documents,
were “close associates,” had discussed working together to restore
Herrick’s plane, and had used the same lawyer to pursue their suits.
Because these conditions sufficed to establish virtual representation, the

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court left open the question whether Taylor had engaged in tactical
maneuvering to avoid preclusion.
Held:
1. The theory of preclusion by “virtual representation” is disap
proved. The preclusive effects of a judgment in a federal-question case
decided by a federal court should instead be determined according to
the established grounds for nonparty preclusion. Pp. 891–904.
(a) The preclusive effect of a federal-court judgment is determined
by federal common law, subject to due process limitations. Pp. 892–895.
(1) Extending the preclusive effect of a judgment to a nonparty
runs up against the “deep-rooted historic tradition that everyone should
have his own day in court.” Richards v. Jefferson County, 517 U. S.
793, 798 (internal quotation marks omitted). Indicating the strength of
that tradition, this Court has often repeated the general rule that “one
is not bound by a judgment in personam in a litigation in which he is
not designated as a party or to which he has not been made a party by
service of process.” Hansberry v. Lee, 311 U. S. 32, 40. Pp. 892–893.
(2) The rule against nonparty preclusion is subject to exceptions,
grouped for present purposes into six categories. First, “[a] person
who agrees to be bound by the determination of issues in an action
between others is bound in accordance with the [agreement’s] terms.”
Restatement (Second) of Judgments § 40. Second, nonparty preclusion
may be based on a pre-existing substantive legal relationship between
the person to be bound and a party to the judgment, e. g., assignee and
assignor. Third, “in certain limited circumstances,” a nonparty may
be bound by a judgment because she was “ ‘adequately represented by
someone with the same interests who [wa]s a party’ ” to the suit. Rich
ards, 517 U. S., at 798. Fourth, a nonparty is bound by a judgment
if she “assume[d] control” over the litigation in which that judgment
was rendered. Montana v. United States, 440 U. S. 147, 154. Fifth, a
party bound by a judgment may not avoid its preclusive force by reliti
gating through a proxy. Preclusion is thus in order when a person who
did not participate in litigation later brings suit as the designated repre
sentative or agent of a person who was a party to the prior adjudication.
Sixth, a special statutory scheme otherwise consistent with due proc
ess—e. g., bankruptcy proceedings—may “expressly foreclos[e] succes
sive litigation by nonlitigants.” Martin v. Wilks, 490 U. S. 755, 762,
n. 2. Pp. 893–895.
(b) Reaching beyond these six categories, the D. C. Circuit recog
nized a broad “virtual representation” exception to the rule against non
party preclusion. None of the arguments advanced by that court, the
FAA, or Fairchild justify such an expansive doctrine. Pp. 895–904.

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(1) The D. C. Circuit purported to ground its doctrine in this
Court’s statements that, in some circumstances, a person may be bound
by a judgment if she was adequately represented by a party to the
proceeding yielding that judgment. But the D. C. Circuit’s definition
of “adequate representation” strayed from the meaning this Court has
attributed to that term. In Richards, the Alabama Supreme Court had
held a tax challenge barred by a judgment upholding the same tax in a
suit by different taxpayers. 517 U. S., at 795–797. This Court re
versed, holding that nonparty preclusion was inconsistent with due proc
ess where there was no showing (1) that the court in the first suit “took
care to protect the interests” of absent parties, or (2) that the parties
to the first litigation “understood their suit to be on behalf of absent
[parties],” id., at 802. In holding that representation can be “adequate”
for purposes of nonparty preclusion even where these two factors are
absent, the D. C. Circuit misapprehended Richards. Pp. 896–898.
(2) Fairchild and the FAA ask this Court to abandon altogether
the attempt to delineate discrete grounds and clear rules for nonparty
preclusion. Instead, they contend, only an equitable and heavily fact
driven inquiry can account for all of the situations in which nonparty
preclusion is appropriate. This argument is rejected. First, respond
ents’ balancing test is at odds with the constrained approach advanced
by this Court’s decisions, which have endeavored to delineate discrete,
limited exceptions to the fundamental rule that a litigant is not bound
by a judgment to which she was not a party, see, e. g., Richards, 517
U. S., at 798–799. Second, a party’s representation of a nonparty is “ad
equate” for preclusion purposes only if, at a minimum: (1) The interests
of the nonparty and her representative are aligned, see Hansberry, 311
U. S., at 43, and (2) either the party understood herself to be acting in
a representative capacity or the original court took care to protect the
nonparty’s interests, see Richards, 517 U. S., at 801–802. Adequate
representation may also require (3) notice of the original suit to the
persons alleged to have been represented. See id., at 801. In the
class-action context, these limitations are implemented by Federal Rule
of Civil Procedure 23’s procedural safeguards. But an expansive vir
tual representation doctrine would recognize a common-law kind of class
action shorn of these protections. Third, a diffuse balancing approach
to nonparty preclusion would likely complicate the task of district courts
faced in the first instance with preclusion questions. Pp. 898–901.
(3) Finally, the FAA contends that nonparty preclusion should
apply more broadly in “public law” litigation than in “private law” con
troversies. First, the FAA points to Richards’ acknowledgment that
when a taxpayer challenges “an alleged misuse of public funds” or “other
public action,” the suit “has only an indirect impact on [the plaintiff ’s]

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interests,” 517 U. S., at 803, and “the States have wide latitude to estab
lish procedures [limiting] the number of judicial proceedings that may
be entertained,” ibid. In contrast to the public-law litigation contem
plated in Richards, however, a successful FOIA action results in a grant
of relief to the individual plaintiff, not a decree benefiting the public at
large. Furthermore, Richards said only that, for the type of public-law
claims there envisioned, States were free to adopt procedures limiting
repetitive litigation. While it appears equally evident that Congress
can adopt such procedures, it hardly follows that this Court should pro
scribe or confine successive FOIA suits by different requesters. Sec
ond, the FAA argues that, because the number of plaintiffs in public-law
cases is potentially limitless, it is theoretically possible for several per
sons to coordinate a series of vexatious repetitive lawsuits. But this
risk does not justify departing from the usual nonparty preclusion rules.
Stare decisis will allow courts to dispose of repetitive suits in the same
circuit, and even when stare decisis is not dispositive, the human inclina
tion not to waste money should discourage suits based on claims or is
sues already decided. Pp. 902–904.
2. The remaining question is whether the result reached by the courts
below can be justified based on one of the six established grounds for
nonparty preclusion. With one exception, those grounds plainly have
no application here. Respondents argue that Taylor’s suit is a collusive
attempt to relitigate Herrick’s claim. That argument justifies a remand
to allow the courts below the opportunity to determine whether the
fifth ground for nonparty preclusion—preclusion because a nonparty to
earlier litigation has brought suit as an agent of a party bound by the
prior adjudication—applies to Taylor’s suit. But courts should be cau
tious about finding preclusion on the basis of agency. A mere whiff of
“tactical maneuvering” will not suffice; instead, principles of agency law
indicate that preclusion is appropriate only if the putative agent’s con
duct of the suit is subject to the control of the party who is bound by
the prior adjudication. Finally, the Court rejects Fairchild’s suggestion
that Taylor must bear the burden of proving he is not acting as Herrick’s
agent. Claim preclusion is an affirmative defense for the defendant to
plead and prove. Pp. 904–907.
490 F. 3d 965, vacated and remanded.
Ginsburg, J., delivered the opinion for a unanimous Court.
Adina H. Rosenbaum argued the cause for petitioner.
With her on the briefs were Brian Wolfman, Scott L. Nel
son, and Michael John Pangia.

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Douglas Hallward-Driemeier argued the cause for the
federal respondent. With him on the brief were former So
licitor General Clement, Acting Assistant Attorney General
Bucholtz, Deputy Solicitor General Kneedler, Leonard
Schaitman, and Robert D. Kamenshine.
Catherine E. Stetson argued the cause for respondent
Fairchild Corporation. With her on the brief were Christo
pher T. Handman and N. Thomas Connally.*
Justice Ginsburg delivered the opinion of the Court.
“It is a principle of general application in Anglo-American
jurisprudence that one is not bound by a judgment in perso
nam in a litigation in which he is not designated as a party
or to which he has not been made a party by service of proc
ess.” Hansberry v. Lee, 311 U. S. 32, 40 (1940). Several ex
ceptions, recognized in this Court’s decisions, temper this
basic rule. In a class action, for example, a person not
named as a party may be bound by a judgment on the merits
of the action, if she was adequately represented by a party
who actively participated in the litigation. See id., at 41.
In this case, we consider for the first time whether there is
a “virtual representation” exception to the general rule
against precluding nonparties. Adopted by a number of
courts, including the courts below in the case now before
us, the exception so styled is broader than any we have so
far approved.
*Briefs of amici curiae urging reversal were filed for the American
Association for Justice by John Vail and Kathleen Flynn Peterson; for
Civil Procedure and Complex Litigation Professors by David L. Shapiro
and John Leubsdorf, both pro se; for the National Security Archive et al.
by Meredith Fuchs; and for Lavonna Eddy et al. by James A. Feldman
and Gerald S. Hartman.
Mark L. Shurtleff, Attorney General of Utah, and Philip S. Lott and
Peggy E. Stone, Assistant Attorneys General, filed a brief for the State of
Utah as amicus curiae urging affirmance.
Jack R. Bierig filed a brief for the American Dental Association as ami
cus curiae.

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Opinion of the Court
The virtual representation question we examine in this
opinion arises in the following context. Petitioner Brent
Taylor filed a lawsuit under the Freedom of Information Act
seeking certain documents from the Federal Aviation Ad
ministration. Greg Herrick, Taylor’s friend, had previously
brought an unsuccessful suit seeking the same records. The
two men have no legal relationship, and there is no evidence
that Taylor controlled, financed, participated in, or even had
notice of Herrick’s earlier suit. Nevertheless, the D. C. Cir
cuit held Taylor’s suit precluded by the judgment against
Herrick because, in that court’s assessment, Herrick qualified
as Taylor’s “virtual representative.”
We disapprove the doctrine of preclusion by “virtual rep
resentation,” and hold, based on the record as it now stands,
that the judgment against Herrick does not bar Taylor from
maintaining this suit.
I
The Freedom of Information Act (FOIA or Act) accords
“any person” a right to request any records held by a federal
agency. 5 U. S. C. § 552(a)(3)(A) (2006 ed.). No reason need
be given for a FOIA request, and unless the requested ma
terials fall within one of the Act’s enumerated exemptions,
see § 552(a)(3)(E), (b), the agency must “make the records
promptly available” to the requester, § 552(a)(3)(A). If an
agency refuses to furnish the requested records, the re
quester may file suit in federal court and obtain an injunction
“order[ing] the production of any agency records improperly
withheld.” § 552(a)(4)(B).
The courts below held the instant FOIA suit barred by
the judgment in earlier litigation seeking the same records.
Because the lower courts’ decisions turned on the connection
between the two lawsuits, we begin with a full account of
each action.
A
The first suit was filed by Greg Herrick, an antique aircraft
enthusiast and the owner of an F–45 airplane, a vintage

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model manufactured by the Fairchild Engine and Airplane
Corporation (FEAC) in the 1930’s. In 1997, seeking infor
mation that would help him restore his plane to its original
condition, Herrick filed a FOIA request asking the Federal
Aviation Administration (FAA) for copies of any technical
documents about the F–45 contained in the agency’s records.
To gain a certificate authorizing the manufacture and sale
of the F–45, FEAC had submitted to the FAA’s predecessor,
the Civil Aeronautics Authority, detailed specifications and
other technical data about the plane. Hundreds of pages of
documents produced by FEAC in the certification process
remain in the FAA’s records. The FAA denied Herrick’s
request, however, upon finding that the documents he sought
are subject to FOIA’s exemption for “trade secrets and com
mercial or financial information obtained from a person and
privileged or confidential,” § 552(b)(4). In an administrative
appeal, Herrick urged that FEAC and its successors had
waived any trade-secret protection. The FAA thereupon
contacted FEAC’s corporate successor, respondent Fairchild
Corporation (Fairchild). Because Fairchild objected to re
lease of the documents, the agency adhered to its original
decision.
Herrick then filed suit in the U. S. District Court for the
District of Wyoming. Challenging the FAA’s invocation of
the trade-secret exemption, Herrick placed heavy weight on
a 1955 letter from FEAC to the Civil Aeronautics Authority.
The letter authorized the agency to lend any documents in
its files to the public “for use in making repairs or replace
ment parts for aircraft produced by Fairchild.” Herrick v.
Garvey, 298 F. 3d 1184, 1193 (CA10 2002) (internal quotation
marks omitted). This broad authorization, Herrick main
tained, showed that the F–45 certification records held by
the FAA could not be regarded as “secre[t]” or “confidential”
within the meaning of § 552(b)(4).
Rejecting Herrick’s argument, the District Court granted
summary judgment to the FAA. Herrick v. Garvey, 200

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F. Supp. 2d 1321, 1328–1329 (Wyo. 2000). The 1955 letter,
the court reasoned, did not deprive the F–45 certification
documents of trade-secret status, for those documents were
never in fact released pursuant to the letter’s blanket au
thorization. See id., at 1329. The court also stated that
even if the 1955 letter had waived trade-secret protection,
Fairchild had successfully “reversed” the waiver by object
ing to the FAA’s release of the records to Herrick. Ibid.
On appeal, the Tenth Circuit agreed with Herrick that the
1955 letter had stripped the requested documents of trade
secret protection. See Herrick, 298 F. 3d, at 1194. But the
Court of Appeals upheld the District Court’s alternative de
termination—i. e., that Fairchild had restored trade-secret
status by objecting to Herrick’s FOIA request. Id., at 1195.
On that ground, the appeals court affirmed the entry of sum
mary judgment for the FAA.
In so ruling, the Tenth Circuit noted that Herrick had
failed to challenge two suppositions underlying the District
Court’s decision. First, the District Court assumed trade
secret status could be “restored” to documents that had lost
protection. Id., at 1194, n. 10. Second, the District Court
also assumed that Fairchild had regained trade-secret status
for the documents even though the company claimed that
status only “after Herrick had initiated his request” for
the F–45 records. Ibid. The Court of Appeals expressed
no opinion on the validity of these suppositions. See id., at
1194–1195, n. 10.
B
The Tenth Circuit’s decision issued on July 24, 2002. Less
than a month later, on August 22, petitioner Brent Taylor—
a friend of Herrick’s and an antique aircraft enthusiast
in his own right—submitted a FOIA request seeking the
same documents Herrick had unsuccessfully sued to obtain.
When the FAA failed to respond, Taylor filed a complaint in
the U. S. District Court for the District of Columbia. Like
Herrick, Taylor argued that FEAC’s 1955 letter had stripped

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the records of their trade-secret status. But Taylor also
sought to litigate the two issues concerning recapture of pro
tected status that Herrick had failed to raise in his appeal to
the Tenth Circuit.
After Fairchild intervened as a defendant,1 the District
Court in D. C. concluded that Taylor’s suit was barred by
claim preclusion; accordingly, it granted summary judgment
to Fairchild and the FAA. The court acknowledged that
Taylor was not a party to Herrick’s suit. Relying on the
Eighth Circuit’s decision in Tyus v. Schoemehl, 93 F. 3d 449
(1996), however, it held that a nonparty may be bound by a
judgment if she was “virtually represented” by a party.
App. to Pet. for Cert. 30a–31a.
The Eighth Circuit’s seven-factor test for virtual represen
tation, adopted by the District Court in Taylor’s case, re
quires an “identity of interests” between the person to be
bound and a party to the judgment. See id., at 31a. See
also Tyus, 93 F. 3d, at 455. Six additional factors counsel in
favor of virtual representation under the Eighth Circuit’s
test, but are not prerequisites: (1) a “close relationship”
between the present party and a party to the judgment
alleged to be preclusive; (2) “participation in the prior liti
gation” by the present party; (3) the present party’s “appar
ent acquiescence” to the preclusive effect of the judgment;
(4) “deliberat[e] maneuver[ing]” to avoid the effect of the
judgment; (5) adequate representation of the present party
by a party to the prior adjudication; and (6) a suit raising a
“public law” rather than a “private law” issue. App. to Pet.
for Cert. 31a (citing Tyus, 93 F. 3d, at 454–456). These fac
tors, the D. C. District Court observed, “constitute a fluid
test with imprecise boundaries” and call for “a broad, case
by-case inquiry.” App. to Pet. for Cert. 32a.
1 Although Fairchild provided documents to the Wyoming District Court
and filed an amicus brief in the Tenth Circuit, it was not a party to Her
rick’s suit. See Herrick v. Garvey, 298 F. 3d 1184, 1188 (CA10 2002); Her
rick v. Garvey, 200 F. Supp. 2d 1321, 1327 (Wyo. 2000).

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The record before the District Court in Taylor’s suit re
vealed the following facts about the relationship between
Taylor and Herrick: Taylor is the president of the Antique
Aircraft Association, an organization to which Herrick be
longs; the two men are “close associate[s],” App. 54; Herrick
asked Taylor to help restore Herrick’s F–45, though they had
no contract or agreement for Taylor’s participation in the
restoration; Taylor was represented by the lawyer who rep
resented Herrick in the earlier litigation; and Herrick appar
ently gave Taylor documents that Herrick had obtained from
the FAA during discovery in his suit.
Fairchild and the FAA conceded that Taylor had not par
ticipated in Herrick’s suit. App. to Pet. for Cert. 32a. The
D. C. District Court determined, however, that Herrick
ranked as Taylor’s virtual representative because the facts
fit each of the other six indicators on the Eighth Circuit’s
list. See id., at 32a–35a. Accordingly, the District Court
held Taylor’s suit, seeking the same documents Herrick had
requested, barred by the judgment against Herrick. See
id., at 35a.
The D. C. Circuit affirmed. It observed, first, that other
Circuits “vary widely” in their approaches to virtual repre
sentation. Taylor v. Blakey, 490 F. 3d 965, 971 (2007). In
this regard, the D. C. Circuit contrasted the multifactor bal
ancing test applied by the Eighth Circuit and the D. C. Dis
trict Court with the Fourth Circuit’s narrower approach,
which “treats a party as a virtual representative only if the
party is ‘accountable to the nonparties who file a subsequent
suit’ and has ‘the tacit approval of the court’ to act on the
nonpart[ies’] behalf.” Ibid. (quoting Klugh v. United States,
818 F. 2d 294, 300 (CA4 1987)).
Rejecting both of these approaches, the D. C. Circuit an
nounced its own five-factor test. The first two factors—
“identity of interests” and “adequate representation”—are
necessary but not sufficient for virtual representation. 490
F. 3d, at 971–972. In addition, at least one of three other

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factors must be established: “a close relationship between
the present party and his putative representative,” “sub
stantial participation by the present party in the first case,”
or “tactical maneuvering on the part of the present party to
avoid preclusion by the prior judgment.” Id., at 972.
Applying this test to the record in Taylor’s case, the D. C.
Circuit found both of the necessary conditions for virtual
representation well met. As to identity of interests, the
court emphasized that Taylor and Herrick sought the same
result—release of the F–45 documents. Moreover, the D. C.
Circuit observed, Herrick owned an F–45 airplane, and
therefore had, “if anything, a stronger incentive to litigate”
than Taylor, who had only a “general interest in public disclo
sure and the preservation of antique aircraft heritage.” Id.,
at 973 (internal quotation marks omitted).
Turning to adequacy of representation, the D. C. Circuit
acknowledged that some other Circuits regard notice of a
prior suit as essential to a determination that a nonparty
was adequately represented in that suit. See id., at 973–974
(citing Perez v. Volvo Car Corp., 247 F. 3d 303, 312 (CA1
2001), and Tice v. American Airlines, Inc., 162 F. 3d 966, 973
(CA7 1998)). Disagreeing with these courts, the D. C. Cir
cuit deemed notice an “important” but not an indispensable
element in the adequacy inquiry. The court then concluded
that Herrick had adequately represented Taylor even though
Taylor had received no notice of Herrick’s suit. For this
conclusion, the appeals court relied on Herrick’s “strong in
centive to litigate” and Taylor’s later engagement of the
same attorney, which indicated to the court Taylor’s satisfac
tion with that attorney’s performance in Herrick’s case. See
490 F. 3d, at 974–975.
The D. C. Circuit also found its “close relationship” crite
rion met, for Herrick had “asked Taylor to assist him in re
storing his F–45” and “provided information to Taylor that
Herrick had obtained through discovery”; furthermore, Tay
lor “did not oppose Fairchild’s characterization of Herrick

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as his ‘close associate.’ ” Id., at 975. Because the three
above-described factors sufficed to establish virtual repre
sentation under the D. C. Circuit’s five-factor test, the ap
peals court left open the question whether Taylor had en
gaged in “tactical maneuvering.” See id., at 976 (calling the
facts bearing on tactical maneuvering “ambigu[ous]”).2
We granted certiorari, 552 U. S. 1136 (2008), to resolve the
disagreement among the Circuits over the permissibility and
scope of preclusion based on “virtual representation.” 3
II
The preclusive effect of a federal-court judgment is deter
mined by federal common law. See Semtek Int’l Inc. v.
Lockheed Martin Corp., 531 U. S. 497, 507–508 (2001). For
judgments in federal-question cases—for example, Herrick’s
FOIA suit—federal courts participate in developing “uni
form federal rule[s]” of res judicata, which this Court has
ultimate authority to determine and declare. Id., at 508.4
The federal common law of preclusion is, of course, sub
ject to due process limitations. See Richards v. Jefferson
County, 517 U. S. 793, 797 (1996).
2 The D. C. Circuit did not discuss the District Court’s distinction be
tween public-law and private-law claims.
3 The Ninth Circuit applies a five-factor test similar to the D. C. Circuit’s.
See Kourtis v. Cameron, 419 F. 3d 989, 996 (2005). The Fifth, Sixth, and
Eleventh Circuits, like the Fourth Circuit, have constrained the reach of
virtual representation by requiring, inter alia, the existence of a legal
relationship between the nonparty to be bound and the putative repre
sentative. See Pollard v. Cockrell, 578 F. 2d 1002, 1008 (CA5 1978);
Becherer v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 193 F. 3d 415,
424 (CA6 1999) (en banc); EEOC v. Pemco Aeroplex, Inc., 383 F. 3d 1280,
1289 (CA11 2004). The Seventh Circuit, in contrast, has rejected the doc
trine of virtual representation altogether. See Perry v. Globe Auto Recy
cling, Inc., 227 F. 3d 950, 953 (2000).
4 For judgments in diversity cases, federal law incorporates the rules of
preclusion applied by the State in which the rendering court sits. See
Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U. S. 497, 508 (2001).

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Opinion of the Court
Taylor’s case presents an issue of first impression in this
sense: Until now, we have never addressed the doctrine of
“virtual representation” adopted (in varying forms) by sev
eral Circuits and relied upon by the courts below. Our in
quiry, however, is guided by well-established precedent re
garding the propriety of nonparty preclusion. We review
that precedent before taking up directly the issue of virtual
representation.
A
The preclusive effect of a judgment is defined by claim
preclusion and issue preclusion, which are collectively re
ferred to as “res judicata.” 5 Under the doctrine of claim
preclusion, a final judgment forecloses “successive litigation
of the very same claim, whether or not relitigation of the
claim raises the same issues as the earlier suit.” New
Hampshire v. Maine, 532 U. S. 742, 748 (2001). Issue preclu
sion, in contrast, bars “successive litigation of an issue of
fact or law actually litigated and resolved in a valid court
determination essential to the prior judgment,” even if the
issue recurs in the context of a different claim. Id., at 748–
749. By “preclud[ing] parties from contesting matters that
they have had a full and fair opportunity to litigate,” these
two doctrines protect against “the expense and vexation at
tending multiple lawsuits, conserv[e] judicial resources, and
foste[r] reliance on judicial action by minimizing the possibil
ity of inconsistent decisions.” Montana v. United States,
440 U. S. 147, 153–154 (1979).
A person who was not a party to a suit generally has not
had a “full and fair opportunity to litigate” the claims and
issues settled in that suit. The application of claim and issue
preclusion to nonparties thus runs up against the “deep
5 These terms have replaced a more confusing lexicon. Claim preclusion
describes the rules formerly known as “merger” and “bar,” while issue
preclusion encompasses the doctrines once known as “collateral estoppel”
and “direct estoppel.” See Migra v. Warren City School Dist. Bd. of Ed.,
465 U. S. 75, 77, n. 1 (1984).

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rooted historic tradition that everyone should have his own
day in court.” Richards, 517 U. S., at 798 (internal quota
tion marks omitted). Indicating the strength of that tradi
tion, we have often repeated the general rule that “one is
not bound by a judgment in personam in a litigation in which
he is not designated as a party or to which he has not been
made a party by service of process.” Hansberry, 311 U. S.,
at 40. See also, e. g., Richards, 517 U. S., at 798; Martin v.
Wilks, 490 U. S. 755, 761 (1989); Zenith Radio Corp. v. Hazel
tine Research, Inc., 395 U. S. 100, 110 (1969).
B
Though hardly in doubt, the rule against nonparty pre
clusion is subject to exceptions. For present purposes, the
recognized exceptions can be grouped into six categories.6
First, “[a] person who agrees to be bound by the determi
nation of issues in an action between others is bound in ac
cordance with the terms of his agreement.” 1 Restatement
(Second) of Judgments § 40, p. 390 (1980) (hereinafter Re
statement). For example, “if separate actions involving the
same transaction are brought by different plaintiffs against
the same defendant, all the parties to all the actions
may agree that the question of the defendant’s liability will
be definitely determined, one way or the other, in a ‘test
case.’ ” D. Shapiro, Civil Procedure: Preclusion in Civil Ac
tions 77–78 (2001) (hereinafter Shapiro). See also Califor
nia v. Texas, 459 U. S. 1096, 1097 (1983) (dismissing certain
defendants from a suit based on a stipulation “that each of
6 The established grounds for nonparty preclusion could be organized
differently. See, e. g., 1 & 2 Restatement (Second) of Judgments §§ 39–62
(1980) (hereinafter Restatement); D. Shapiro, Civil Procedure: Preclusion
in Civil Actions 75–92 (2001); 18A C. Wright, A. Miller, & E. Cooper, Fed
eral Practice and Procedure § 4448, pp. 327–329 (2d ed. 2002) (hereinafter
Wright & Miller). The list that follows is meant only to provide a frame
work for our consideration of virtual representation, not to establish a
definitive taxonomy.

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said defendants . . . will be bound by a final judgment of this
Court” on a specified issue).7
Second, nonparty preclusion may be justified based on a
variety of pre-existing “substantive legal relationship[s]” be
tween the person to be bound and a party to the judgment.
Shapiro 78. See also Richards, 517 U. S., at 798. Qualify
ing relationships include, but are not limited to, preceding
and succeeding owners of property, bailee and bailor, and
assignee and assignor. See 2 Restatement §§ 43–44, 52, 55.
These exceptions originated “as much from the needs of
property law as from the values of preclusion by judgment.”
18A C. Wright, A. Miller, & E. Cooper, Federal Practice and
Procedure § 4448, p. 329 (2d ed. 2002) (hereinafter Wright &
Miller).8
Third, we have confirmed that, “in certain limited circum
stances,” a nonparty may be bound by a judgment because
she was “adequately represented by someone with the same
interests who [wa]s a party” to the suit. Richards, 517 U. S.,
at 798 (internal quotation marks omitted). Representative
suits with preclusive effect on nonparties include properly
conducted class actions, see Martin, 490 U. S., at 762, n. 2
(citing Fed. Rule Civ. Proc. 23), and suits brought by trust
ees, guardians, and other fiduciaries, see Sea-Land Services,
7 The Restatement observes that a nonparty may be bound not only by
express or implied agreement, but also through conduct inducing reliance
by others. See 2 Restatement § 62. See also 18A Wright & Miller § 4453,
at 425–429. We have never had occasion to consider this ground for non
party preclusion, and we express no view on it here.
8 The substantive legal relationships justifying preclusion are sometimes
collectively referred to as “privity.” See, e. g., Richards v. Jefferson
County, 517 U. S. 793, 798 (1996); 2 Restatement § 62, Comment a. The
term “privity,” however, has also come to be used more broadly, as a way
to express the conclusion that nonparty preclusion is appropriate on any
ground. See 18A Wright & Miller § 4449, at 351–353, and n. 33 (collecting
cases). To ward off confusion, we avoid using the term “privity” in this
opinion.

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Inc. v. Gaudet, 414 U. S. 573, 593 (1974). See also 1 Restate
ment § 41.
Fourth, a nonparty is bound by a judgment if she “as
sume[d] control” over the litigation in which that judgment
was rendered. Montana, 440 U. S., at 154. See also
Schnell v. Peter Eckrich & Sons, Inc., 365 U. S. 260, 262, n. 4
(1961); 1 Restatement § 39. Because such a person has had
“the opportunity to present proofs and argument,” he has
already “had his day in court” even though he was not a
formal party to the litigation. Id., Comment a, at 382.
Fifth, a party bound by a judgment may not avoid its pre
clusive force by relitigating through a proxy. Preclusion is
thus in order when a person who did not participate in a
litigation later brings suit as the designated representative
of a person who was a party to the prior adjudication. See
Chicago, R. I. & P. R. Co. v. Schendel, 270 U. S. 611, 620,
623 (1926); 18A Wright & Miller § 4454, at 433–434. And
although our decisions have not addressed the issue directly,
it also seems clear that preclusion is appropriate when a non
party later brings suit as an agent for a party who is bound
by a judgment. See id., § 4449, at 335.
Sixth, in certain circumstances a special statutory scheme
may “expressly foreclos[e] successive litigation by non
litigants . . . if the scheme is otherwise consistent with due
process.” Martin, 490 U. S., at 762, n. 2. Examples of such
schemes include bankruptcy and probate proceedings, see
ibid., and quo warranto actions or other suits that, “under
[the governing] law, [may] be brought only on behalf of the
public at large,” Richards, 517 U. S., at 804.
III
Reaching beyond these six established categories, some
lower courts have recognized a “virtual representation” ex
ception to the rule against nonparty preclusion. Decisions
of these courts, however, have been far from consistent.

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See 18A Wright & Miller § 4457, at 513 (virtual representa
tion lacks a “clear or coherent theory”; decisions applying it
have “an episodic quality”). Some Circuits use the label, but
define “virtual representation” so that it is no broader than
the recognized exception for adequate representation. See,
e. g., Becherer v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 193 F. 3d 415, 423, 427 (CA6 1999) (en banc). But other
courts, including the Eighth, Ninth, and D. C. Circuits, apply
multifactor tests for virtual representation that permit non
party preclusion in cases that do not fit within any of the
established exceptions. See supra, at 888–891, and n. 3.
The D. C. Circuit, the FAA, and Fairchild have presented
three arguments in support of an expansive doctrine of vir
tual representation. We find none of them persuasive.
A
The D. C. Circuit purported to ground its virtual represen
tation doctrine in this Court’s decisions stating that, in some
circumstances, a person may be bound by a judgment if
she was adequately represented by a party to the proceed
ing yielding that judgment. See 490 F. 3d, at 970–971. But
the D. C. Circuit’s definition of “adequate representation”
strayed from the meaning our decisions have attributed to
that term.
In Richards, we reviewed a decision by the Alabama Su
preme Court holding that a challenge to a tax was barred by
a judgment upholding the same tax in a suit filed by different
taxpayers. 517 U. S., at 795–797. The plaintiffs in the first
suit “did not sue on behalf of a class,” their complaint “did
not purport to assert any claim against or on behalf of any
nonparties,” and the judgment “did not purport to bind” non
parties. Id., at 801. There was no indication, we empha
sized, that the court in the first suit “took care to protect the
interests” of absent parties, or that the parties to that litiga
tion “understood their suit to be on behalf of absent [par
ties].” Id., at 802. In these circumstances, we held, the ap

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plication of claim preclusion was inconsistent with “the due
process of law guaranteed by the Fourteenth Amendment.”
Id., at 797.
The D. C. Circuit stated, without elaboration, that it did
not “read Richards to hold a nonparty . . . adequately repre
sented only if special procedures were followed [to protect
the nonparty] or the party to the prior suit understood it was
representing the nonparty.” 490 F. 3d, at 971. As the D. C.
Circuit saw this case, Herrick adequately represented Taylor
for two principal reasons: Herrick had a strong incentive to
litigate; and Taylor later hired Herrick’s lawyer, suggesting
Taylor’s “satisfaction with the attorney’s performance in the
prior case.” Id., at 975.
The D. C. Circuit misapprehended Richards. As just re
counted, our holding that the Alabama Supreme Court’s ap
plication of res judicata to nonparties violated due process
turned on the lack of either special procedures to protect the
nonparties’ interests or an understanding by the concerned
parties that the first suit was brought in a representative
capacity. See Richards, 517 U. S., at 801–802. Richards
thus established that representation is “adequate” for pur
poses of nonparty preclusion only if (at a minimum) one of
these two circumstances is present.
We restated Richards’ core holding in South Central Bell
Telephone Co. v. Alabama, 526 U. S. 160 (1999). In that
case, as in Richards, the Alabama courts had held that a
judgment rejecting a challenge to a tax by one group of tax
payers barred a subsequent suit by a different taxpayer.
See 526 U. S., at 164–165. In South Central Bell, however,
the nonparty had notice of the original suit and engaged one
of the lawyers earlier employed by the original plaintiffs.
See id., at 167–168. Under the D. C. Circuit’s decision in
Taylor’s case, these factors apparently would have sufficed
to establish adequate representation. See 490 F. 3d, at 973–
975. Yet South Central Bell held that the application of res
judicata in that case violated due process. Our inquiry came

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to an end when we determined that the original plaintiffs
had not understood themselves to be acting in a representa
tive capacity and that there had been no special procedures
to safeguard the interests of absentees. See 526 U. S.,
at 168.
Our decisions recognizing that a nonparty may be bound
by a judgment if she was adequately represented by a party
to the earlier suit thus provide no support for the D. C. Cir
cuit’s broad theory of virtual representation.
B
Fairchild and the FAA do not argue that the D. C. Circuit’s
virtual representation doctrine fits within any of the recog
nized grounds for nonparty preclusion. Rather, they ask us
to abandon the attempt to delineate discrete grounds and
clear rules altogether. Preclusion is in order, they contend,
whenever “the relationship between a party and a non-party
is ‘close enough’ to bring the second litigant within the judg
ment.” Brief for Respondent Fairchild 20. See also Brief
for Respondent FAA 22–24. Courts should make the “close
enough” determination, they urge, through a “heavily fact
driven” and “equitable” inquiry. Brief for Respondent Fair
child 20. See also Brief for Respondent FAA 22 (“there is
no clear test” for nonparty preclusion; rather, an “equitable
and fact-intensive” inquiry is demanded (internal quotation
marks omitted)). Only this sort of diffuse balancing, Fair
child and the FAA argue, can account for all of the situations
in which nonparty preclusion is appropriate.
We reject this argument for three reasons. First, our de
cisions emphasize the fundamental nature of the general rule
that a litigant is not bound by a judgment to which she was
not a party. See, e. g., Richards, 517 U. S., at 798–799; Mar
tin, 490 U. S., at 761–762. Accordingly, we have endeavored
to delineate discrete exceptions that apply in “limited cir
cumstances.” Id., at 762, n. 2. Respondents’ amorphous
balancing test is at odds with the constrained approach to
nonparty preclusion our decisions advance.

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Resisting this reading of our precedents, respondents call
up three decisions they view as supportive of the approach
they espouse. Fairchild quotes our statement in Coryell v.
Phipps, 317 U. S. 406, 411 (1943), that privity “turns on the
facts of particular cases.” See Brief for Respondent Fair
child 20. That observation, however, scarcely implies that
privity is governed by a diffuse balancing test.9 Fairchild
also cites Blonder-Tongue Laboratories, Inc. v. University
of Ill. Foundation, 402 U. S. 313, 334 (1971), which stated
that estoppel questions turn on “the trial courts’ sense of
justice and equity.” See Brief for Respondent Fairchild 20.
This passing statement, however, was not made with non
party preclusion in mind; it appeared in a discussion recog
nizing district courts’ discretion to limit the use of issue pre
clusion against persons who were parties to a judgment.
See Blonder-Tongue, 402 U. S., at 334.
The FAA relies on United States v. Des Moines Valley R.
Co., 84 F. 40 (CA8 1897), an opinion we quoted with approval
in Schendel, 270 U. S., at 619–620. Des Moines Valley was a
quiet title action in which the named plaintiff was the United
States. The Government, however, had “no interest in the
land” and had “simply permitted [the landowner] to use
its name as the nominal plaintiff.” 84 F., at 42. The suit
was therefore barred, the appeals court held, by an earlier
judgment against the landowner. As the court explained:
“[W]here the government lends its name as a plaintiff . . . to
enable one private person to maintain a suit against an
other,” the government is “subject to the same defenses
which exist . . . against the real party in interest.” Id.,
at 43. Des Moines Valley, the FAA contended at oral argu
ment, demonstrates that it is sometimes appropriate to bind
9 Moreover, Coryell interpreted the term “privity” not in the context of
res judicata, but as used in a statute governing shipowner liability. See
Coryell v. Phipps, 317 U. S. 406, 407–408, and n. 1 (1943). And we made
the statement Fairchild quotes in explaining why it was appropriate to
defer to the findings of the lower courts, not as a comment on the substan
tive rules of privity. See id., at 411.

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a nonparty in circumstances that do not fit within any of
the established grounds for nonparty preclusion. See Tr.
of Oral Arg. 31–33. Properly understood, however, Des
Moines Valley is simply an application of the fifth basis for
nonparty preclusion described above: A party may not use a
representative or agent to relitigate an adverse judgment.
See supra, at 895–896.10 We thus find no support in our
precedents for the lax approach to nonparty preclusion advo
cated by respondents.
Our second reason for rejecting a broad doctrine of virtual
representation rests on the limitations attending nonparty
preclusion based on adequate representation. A party’s
representation of a nonparty is “adequate” for preclusion
purposes only if, at a minimum: (1) The interests of the non
party and her representative are aligned, see Hansberry,
311 U. S., at 43; and (2) either the party understood herself
to be acting in a representative capacity or the original court
took care to protect the interests of the nonparty, see Rich
ards, 517 U. S., at 801–802; supra, at 897–898. In addition,
adequate representation sometimes requires (3) notice of the
original suit to the persons alleged to have been represented,
see Richards, 517 U. S., at 801.11 In the class-action context,
10 The FAA urges that there was no agency relationship between the
landowner and the United States because the landowner did not control
the U. S. Attorney’s conduct of the suit. See Tr. of Oral Arg. 33. That
point is debatable. See United States v. Des Moines Valley R. Co., 84 F.
40, 42–43 (CA8 1897) (the United States was only a “nominal plaintiff ”; it
merely “len[t]” its name to the landowner). But even if the FAA is cor
rect about agency, the United States plainly litigated as the landowner’s
designated representative. See id., at 42 (“The bill does not attempt to
conceal the fact that . . . its real purpose is to champion the cause of [the
landowner] . . . .”). See also Chicago, R. I. & P. R. Co. v. Schendel, 270
U. S. 611, 618–620 (1926) (classifying Des Moines Valley with other cases
of preclusion based on representation).
11 Richards suggested that notice is required in some representative
suits, e. g., class actions seeking monetary relief. See 517 U. S., at 801
(citing Hansberry v. Lee, 311 U. S. 32, 40 (1940), Eisen v. Carlisle & Jac

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these limitations are implemented by the procedural safe
guards contained in Federal Rule of Civil Procedure 23.
An expansive doctrine of virtual representation, however,
would “recogniz[e], in effect, a common-law kind of class ac
tion.” Tice, 162 F. 3d, at 972 (internal quotation marks
omitted). That is, virtual representation would authorize
preclusion based on identity of interests and some kind of
relationship between parties and nonparties, shorn of the
procedural protections prescribed in Hansberry, Richards,
and Rule 23. These protections, grounded in due process,
could be circumvented were we to approve a virtual repre
sentation doctrine that allowed courts to “create de facto
class actions at will.” Tice, 162 F. 3d, at 973.
Third, a diffuse balancing approach to nonparty preclusion
would likely create more headaches than it relieves. Most
obviously, it could significantly complicate the task of district
courts faced in the first instance with preclusion questions.
An all-things-considered balancing approach might spark
wide-ranging, time-consuming, and expensive discovery
tracking factors potentially relevant under seven- or five
prong tests. And after the relevant facts are established,
district judges would be called upon to evaluate them under
a standard that provides no firm guidance. See Tyus, 93
F. 3d, at 455 (conceding that “there is no clear test for deter
mining the applicability of ” the virtual representation doc
trine announced in that case). Preclusion doctrine, it should
be recalled, is intended to reduce the burden of litigation on
courts and parties. Cf. Montana, 440 U. S., at 153–154.
“In this area of the law,” we agree, “ ‘crisp rules with sharp
corners’ are preferable to a round-about doctrine of opaque
standards.” Bittinger v. Tecumseh Products Co., 123 F. 3d
877, 881 (CA6 1997).
quelin, 417 U. S. 156, 177 (1974), and Mullane v. Central Hanover Bank &
Trust Co., 339 U. S. 306, 319 (1950)). But we assumed without deciding
that a lack of notice might be overcome in some circumstances. See Rich
ards, 517 U. S., at 801.

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C
Finally, relying on the Eighth Circuit’s decision in Tyus,
93 F. 3d, at 456, the FAA maintains that nonparty preclusion
should apply more broadly in “public law” litigation than in
“private law” controversies. To support this position, the
FAA offers two arguments. First, the FAA urges, our deci
sion in Richards acknowledges that, in certain cases, the
plaintiff has a reduced interest in controlling the litigation
“because of the public nature of the right at issue.” Brief
for Respondent FAA 28. When a taxpayer challenges “an
alleged misuse of public funds” or “other public action,” we
observed in Richards, the suit “has only an indirect impact
on [the plaintiff ’s] interests.” 517 U. S., at 803. In actions
of this character, the Court said, “we may assume that
the States have wide latitude to establish procedures . . . to
limit the number of judicial proceedings that may be enter
tained.” Ibid.
Taylor’s FOIA action falls within the category described
in Richards, the FAA contends, because “the duty to disclose
under FOIA is owed to the public generally.” Brief for
Respondent FAA 34. The opening sentence of FOIA, it is
true, states that agencies “shall make [information] available
to the public.” 5 U. S. C. § 552(a) (2006 ed.). Equally true,
we have several times said that FOIA vindicates a “public”
interest. E. g., National Archives and Records Admin. v.
Favish, 541 U. S. 157, 172 (2004). The Act, however, in
structs agencies receiving FOIA requests to make the infor
mation available not to the public at large, but rather to
the “person” making the request. § 552(a)(3)(A). See also
§ 552(a)(3)(B) (“In making any record available to a person
under this paragraph, an agency shall provide the record in
any [readily reproducible] form or format requested by the
person . . . .” (emphasis added)); Brief for National Security
Archive et al. as Amici Curiae 10 (“Government agencies
do not systematically make released records available to the
general public.”). Thus, in contrast to the public-law litiga

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tion contemplated in Richards, a successful FOIA action re
sults in a grant of relief to the individual plaintiff, not a de
cree benefiting the public at large.
Furthermore, we said in Richards only that, for the type
of public-law claims there envisioned, States are free to
adopt procedures limiting repetitive litigation. See 517
U. S., at 803. In this regard, we referred to instances in
which the first judgment foreclosed successive litigation by
other plaintiffs because, “under state law, [the suit] could be
brought only on behalf of the public at large.” Id., at 804.12
Richards spoke of state legislation, but it appears equally
evident that Congress, in providing for actions vindicating a
public interest, may “limit the number of judicial proceed
ings that may be entertained.” Id., at 803. It hardly fol
lows, however, that this Court should proscribe or confine
successive FOIA suits by different requesters. Indeed,
Congress’ provision for FOIA suits with no statutory con
straint on successive actions counsels against judicial imposi
tion of constraints through extraordinary application of the
common law of preclusion.
The FAA next argues that “the threat of vexatious litiga
tion is heightened” in public-law cases because “the number
of plaintiffs with standing is potentially limitless.” Brief for
Respondent FAA 28 (internal quotation marks omitted).
FOIA does allow “any person” whose request is denied to
resort to federal court for review of the agency’s determina
tion. 5 U. S. C. § 552(a)(3)(A), (4)(B) (2006 ed.). Thus it is
theoretically possible that several persons could coordinate
to mount a series of repetitive lawsuits.
But we are not convinced that this risk justifies departure
from the usual rules governing nonparty preclusion. First,
stare decisis will allow courts swiftly to dispose of repetitive
suits brought in the same circuit. Second, even when stare
12 Nonparty preclusion in such cases ranks under the sixth exception
described above: special statutory schemes that expressly limit subse
quent suits. See supra, at 895.

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decisis is not dispositive, “the human tendency not to waste
money will deter the bringing of suits based on claims or
issues that have already been adversely determined against
others.” Shapiro 97. This intuition seems to be borne out
by experience: The FAA has not called our attention to any
instances of abusive FOIA suits in the Circuits that reject
the virtual representation theory respondents advocate here.
IV
For the foregoing reasons, we disapprove the theory of
virtual representation on which the decision below rested.
The preclusive effects of a judgment in a federal-question
case decided by a federal court should instead be determined
according to the established grounds for nonparty preclusion
described in this opinion. See Part II–B, supra.
Although references to “virtual representation” have pro
liferated in the lower courts, our decision is unlikely to occa
sion any great shift in actual practice. Many opinions
use the term “virtual representation” in reaching results at
least arguably defensible on established grounds. See 18A
Wright & Miller § 4457, at 535–539, and n. 38 (collecting
cases). In these cases, dropping the “virtual representa
tion” label would lead to clearer analysis with little, if any,
change in outcomes. See Tice, 162 F. 3d, at 971 (“[T]he term
‘virtual representation’ has cast more shadows than light on
the problem [of nonparty preclusion].”).
In some cases, however, lower courts have relied on vir
tual representation to extend nonparty preclusion beyond
the latter doctrine’s proper bounds. We now turn back to
Taylor’s action to determine whether his suit is such a case,
or whether the result reached by the courts below can be
justified on one of the recognized grounds for nonparty
preclusion.
A
It is uncontested that four of the six grounds for nonparty
preclusion have no application here: There is no indication

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that Taylor agreed to be bound by Herrick’s litigation, that
Taylor and Herrick have any legal relationship, that Taylor
exercised any control over Herrick’s suit, or that this suit
implicates any special statutory scheme limiting relitigation.
Neither the FAA nor Fairchild contends otherwise.
It is equally clear that preclusion cannot be justified on the
theory that Taylor was adequately represented in Herrick’s
suit. Nothing in the record indicates that Herrick under
stood himself to be suing on Taylor’s behalf, that Taylor even
knew of Herrick’s suit, or that the Wyoming District Court
took special care to protect Taylor’s interests. Under our
pathmarking precedent, therefore, Herrick’s representation
was not “adequate.” See Richards, 517 U. S., at 801–802.
That leaves only the fifth category: preclusion because a
nonparty to an earlier litigation has brought suit as a repre
sentative or agent of a party who is bound by the prior adju
dication. Taylor is not Herrick’s legal representative and he
has not purported to sue in a representative capacity. He
concedes, however, that preclusion would be appropriate if
respondents could demonstrate that he is acting as Herrick’s
“undisclosed agen[t].” Brief for Petitioner 23, n. 4. See
also id., at 24, n. 5.
Respondents argue here, as they did below, that Taylor’s
suit is a collusive attempt to relitigate Herrick’s action. See
Brief for Respondent Fairchild 32, and n. 18; Brief for Re
spondent FAA 18–19, 33, 39. The D. C. Circuit considered
a similar question in addressing the “tactical maneuvering”
prong of its virtual representation test. See 490 F. 3d, at
976. The Court of Appeals did not, however, treat the issue
as one of agency, and it expressly declined to reach any de
finitive conclusions due to “the ambiguity of the facts.”
Ibid. We therefore remand to give the courts below an op
portunity to determine whether Taylor, in pursuing the in
stant FOIA suit, is acting as Herrick’s agent. Taylor con
cedes that such a remand is appropriate. See Tr. of Oral
Arg. 56–57.

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906 TAYLOR v. STURGELL
Opinion of the Court
We have never defined the showing required to establish
that a nonparty to a prior adjudication has become a litigat
ing agent for a party to the earlier case. Because the issue
has not been briefed in any detail, we do not discuss the
matter elaboratively here. We note, however, that courts
should be cautious about finding preclusion on this basis. A
mere whiff of “tactical maneuvering” will not suffice; in
stead, principles of agency law are suggestive. They indi
cate that preclusion is appropriate only if the putative
agent’s conduct of the suit is subject to the control of the
party who is bound by the prior adjudication. See 1 Re
statement (Second) of Agency § 14, p. 60 (1957) (“A principal
has the right to control the conduct of the agent with respect
to matters entrusted to him.”).13
B
On remand, Fairchild suggests, Taylor should bear the
burden of proving he is not acting as Herrick’s agent. When
a defendant points to evidence establishing a close relation
ship between successive litigants, Fairchild maintains, “the
burden [should] shif[t] to the second litigant to submit evi
dence refuting the charge” of agency. Brief for Respondent
Fairchild 27–28. Fairchild justifies this proposed burden
shift on the ground that “it is unlikely an opposing party will
have access to direct evidence of collusion.” Id., at 28, n. 14.
13 Our decision in Montana v. United States, 440 U. S. 147 (1979), also
suggests a “control” test for agency. In that case, we held that the United
States was barred from bringing a suit because it had controlled a prior
unsuccessful action filed by a federal contractor. See id., at 155. We
see no reason why preclusion based on a lesser showing would have been
appropriate if the order of the two actions had been switched—that is, if
the United States had brought the first suit itself, and then sought to
relitigate the same claim through the contractor. See Schendel, 270 U. S.,
at 618 (“[I]f, in legal contemplation, there is identity of parties” when two
suits are brought in one order, “there must be like identity” when the
order is reversed.).

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907 Cite as: 553 U. S. 880 (2008)
Opinion of the Court
We reject Fairchild’s suggestion. Claim preclusion, like
issue preclusion, is an affirmative defense. See Fed. Rule
Civ. Proc. 8(c); Blonder-Tongue, 402 U. S., at 350. Ordi
narily, it is incumbent on the defendant to plead and prove
such a defense, see Jones v. Bock, 549 U. S. 199, 204 (2007),
and we have never recognized claim preclusion as an excep
tion to that general rule, see 18 Wright & Miller § 4405, at 83
(“[A] party asserting preclusion must carry the burden of
establishing all necessary elements.”). We acknowledge
that direct evidence justifying nonparty preclusion is often
in the hands of plaintiffs rather than defendants. See, e. g.,
Montana, 440 U. S., at 155 (listing evidence of control over
a prior suit). But “[v]ery often one must plead and prove
matters as to which his adversary has superior access to the
proof.” 2 K. Broun, McCormick on Evidence § 337, p. 475
(6th ed. 2006). In these situations, targeted interrogatories
or deposition questions can reduce the information disparity.
We see no greater cause here than in other matters of af
firmative defense to disturb the traditional allocation of the
proof burden.
* * *
For the reasons stated, the judgment of the United States
Court of Appeals for the District of Columbia Circuit is va
cated, and the case is remanded for further proceedings con
sistent with this opinion.
It is so ordered.

Job: 553ORD Take: NOT1 Date/Time: 10-31-12 10:17:27
Reporter’s Note
The next page is purposely numbered 1001. The numbers between 907
and 1001 were intentionally omitted, in order to make it possible to publish
the orders with permanent page numbers, thus making the official cita
tions available upon publication of the preliminary prints of the United
States Reports.