of such agreements, there would be a genuine issue of material fact. Mr. Hume's affidavit, however, does not rise to that level.
FED. R. EVID. 602 requires that percipient testimony rest on personal knowledge. Mr. Hume has no personal knowledge of what Prudential's practices were during the relevant period with respect to insisting on arbitration agreements as a condition of opening an account. He has no competent basis for saying that Prudential insisted, in practice, on an executed agreement for the opening or maintenance of every account or even for most accounts. Even more important, his affidavit concerning the terms of the agreements he believes were signed rests solely on conclusions drawn from a number of customer account agreements produced in other litigation that he has reviewed. As Ms. Tait's affidavit shows, his premise that the account forms he reviewed included examples of all of those used by Prudential simply is wrong. Other forms in use did not permit resort to AAA arbitration. Hence, even if Mr. Hume's affidavit were sufficient to permit the inference that these respondents signed arbitration clauses, which it is not, it would be insufficient to permit the inference that the clauses they signed permitted arbitration before the AAA without regard to venue.
Nor would respondents be aided by considering Mr. Hume's affidavit as a proffer of expert testimony. Even assuming that this is an appropriate subject for expert testimony, which the Court doubts, the information relied upon by Mr. Hume is not an adequate basis for his opinion. He has no personal or even hearsay knowledge as to the extent to which Prudential in fact insisted on signed agreements. He relied on an incomplete sample of the forms of agreements Prudential actually used. His testimony simply is of no value.
Apart from the eight as to whom Prudential has dismissed its petition, respondents have come forward with no competent evidence that they signed written arbitration agreements permitting AAA arbitration without restriction of venue. Accordingly, respondents (other than the eight) may arbitrate before the AAA only pursuant to the AMEX window.
Respondents' next effort to avoid the venue restriction in the AMEX window is the contention that Prudential is collaterally estopped to assert that the AMEX window restricts venue. Specifically, it contends that Prudential is precluded from doing so because it has litigated and lost the question whether the reference in the provision to the City of New York restricts venue as distinguished from describing the AAA. Wade v. Prudential Securities, Inc., [1993-94 Transfer Binder] FED. SEC. L. REP. (CCH) P 98,117, 1994 WL 124428 (N.D. CAL. 1994); Prudential Securities, Inc. v. Thomas, 793 F. Supp. 764 (W.D. Tenn. 1992); Joseph v. Prudential Bache Securities, Inc., [1991 Transfer Binder] FED. SEC. L. REP. (CCH) P 96,184, 1991 WL 370135 (Fla. Cir. May 1, 1991).
The parties mistakenly have briefed this issue on the assumption that the preclusive effect to be accorded the prior determinations is governed by New York law. This Court, however, is bound by statute and recent decisions of the Supreme Court and the Second Circuit to give the determination in the Joseph case, which was rendered by a Florida state court, the same effect that the judgment would be given in the courts of Florida, the rendering state. E.g., University of Tennessee v. Elliott, 478 U.S. 788, 794, 92 L. Ed. 2d 635, 106 S. Ct. 3220 (1986); Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 386, 84 L. Ed. 2d 274, 105 S. Ct. 1327 (1985); Kulak v. City of New York, 88 F.3d 63, 1996 U.S. App. LEXIS 14933, slip op. 5311, 5325-26 (2d Cir. 1996); Giakoumelos v. Coughlin, 88 F.3d 56, 1996 U.S. App. LEXIS 14853, slip op. 5289, 5296 (2d Cir. 1996); 28 U.S.C. § 1738. It is clear also that the preclusive effect of a judgment rendered by a federal court where jurisdiction in the first case rested on the presence of a federal question is determined by federal law and, while the Second Circuit has not definitively ruled on the point, it appears that the same rule governs where jurisdiction in the first case was based on diversity of citizenship. E.g., Terrell v. DeConna, 877 F.2d 1267, 1270 (5th Cir. 1989); Precision Air Parts, Inc. v. Avco Corp., 736 F.2d 1499, 1502 (11th Cir. 1984), cert. denied, 469 U.S. 1191, 83 L. Ed. 2d 970, 105 S. Ct. 966 (1985); Aerojet-General Corp. v. Askew, 511 F.2d 710, 715 (5th Cir.), cert. denied 423 U.S. 908 (1975); B.N.E., Swedbank S.A. v. Banker, 791 F. Supp. 1002, 1005 (S.D.N.Y. 1992); Johnson v. Eli Lilly and Co., 689 F. Supp. 170, 172-73 (W.D.N.Y. 1988); see Gelb v. Royal Globe Insurance Co., 798 F.2d 38, 42 n.3 (2d Cir. 1986), cert. denied, 480 U.S. 948, 94 L. Ed. 2d 794, 107 S. Ct. 1608 (1987). Accordingly, it is necessary to examine both Florida and federal issue preclusion law.
The Florida Judgment
Florida law need not detain us long. While Florida recognizes the doctrine of collateral estoppel, "it traditionally [has] required that there be a mutuality of parties in order for the doctrine to apply. [citations omitted] Thus, unless both parties are bound by the prior judgment, neither may use it in a subsequent action." Stogniew v. McQueen, 656 So. 2d 917, 919 (Fla. 1995). Accord e.g., Trucking Employees of North Jersey Welfare Fund Inc. v. Romano, 450 So. 2d 843 (Fla. 1984).
As the respondents in this case are not bound by the judgment rendered by the Florida Circuit Court in the Joseph case, neither is Prudential.
The Federal Judgments
Under federal law, an issue actually litigated and necessarily determined ordinarily may not be relitigated between the parties. E.g., Montana v. United States, 440 U.S. 147, 153, 59 L. Ed. 2d 210, 99 S. Ct. 970 (1979); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5, 58 L. Ed. 2d 552, 99 S. Ct. 645 (1979). The Supreme Court subsequently abandoned the mutuality requirement, "at least in cases in which a patentee seeks to relitigate the validity of a patent after a federal court in a previous lawsuit has already declared it invalid" -- a "defensive" use of the doctrine. Parklane Hosiery, 439 U.S. at 327 (citing Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 28 L. Ed. 2d 788, 91 S. Ct. 1434 (1971)). In Parklane Hosiery, it abandoned any strict requirement of mutuality in offensive situations as well, although it recognized that there are stronger arguments against permitting offensive (as opposed to defensive) use of prior judgments and held that "trial courts [have] broad discretion to determine when [preclusion] should be applied" in such cases. 439 U.S. at 651. Given the Supreme Court's difference in approach to offensive and defensive uses of collateral estoppel, it is important to focus first on the distinction between these uses in order to characterize properly the use that respondents here seek to make of the prior judgments.
In Parklane Hosiery, the plaintiffs sought damages and other relief for the defendants' alleged securities fraud. The defendants previously had litigated and lost a similar claim brought against them by the SEC. The plaintiffs sought to preclude the defendants from contesting the issues resolved against them in the SEC action, a use the Court characterized as "offensive." It stated in a footnote, however, that:
"offensive use of collateral estoppel occurs when the plaintiff seeks to foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with another party. Defensive use occurs when a defendant seeks to prevent a plaintiff from asserting a claim the plaintiff has previously litigated and lost against another defendant." 439 U.S. at 326 n.4.