Bernhard and the Decline of Mutuality

1. What is the distinction between offensive and defensive nonmutual issue preclusion? Is the Bernard case offensive or defensive?

2. Does the Bernard case fall within the narrow traditional exception to the mutuality requirement for issue preclusion spelled out here?

3. Should it matter under defensive nonmutual issue preclusion whether the precluded party was a plaintiff or a defendant in the earlier suit?

4. Should offensive nonmutual issue preclusion never be allowed? Should it be allowed only when the precluded party was the plaintiff in the original suit?

5. What about the problem of a nonparty holding back (or opting out of a class action) to wait to see if there is an issue determination against the defendant that he (the nonparty) can use to bind the defendant under issue preclusion? How should this problem be solved?