circuit because it erred in holding that the defense never previously litigated to judgment can be barred in a case involving new claims this court rejected that idea over one hundred years ago in cromwell and davis and is this court which forecloses excessive litigation of the very same claim applying these long established principles the proper rule is the defendant is free to argue any previously unresolved offense it may have to new claims this rule is right for three reasons st it follows from this court's precedent including cromwell davis and taylor nd the rule is easy to administer is courts and litigants are custom to applying these bedrock principles of issue in claim preclusion rd it's fair and protect you process interests to be clear we are not arguing that defenses may never be barred under existing law issue preclusion could bar  previously resolved defense and previously unresolved defenses cannot be raised in the context of a judgment in portsmouth action or its claim in an action collaterally attacking a prior judgment but none of these circumstances are present here as the nd circuit held in the st appeal in this case marcel one marcellus pursuing new claims as it seeks relief for alleged subsequent infringement thus this court should reverse is the can you give grades it and then you dropped it and a bit of a mystery why did we don't know exactly why it was abandoned but it it the most logical answer is that it would not have been dispositive the amount of controversy the compensatory damages that case was only twenty thousand dollars and we know that the release would not have applied to use and get lucky which is what the primary thrust of what the case was about so it may not have been worth it from a cost benefit analysis says to renew a release to the defense that would not have been to sponsor the of the the issues the least seem to me to be no use it is far as he is concerned with using get lucky that's exactly our point your honor because the release would not have been helpful with regard to get lucky it wasn't going to be dispositive of the case and therefore it may have not been worth the cost of briefing it again again compensatory damages were twenty thousand dollars it wasn't going to and the whole case because the release would have only apply to a narrow subset of the trademarks that they were accusing us of using before the court  take it from your introductory remarks that you do not agree with the restatement that although the failure to raise a defense in a prior action generally does not preclude the raising of the defense in a subsequent action there is an exception where prevailing on the defense in the nd action would nullify the initial judgment or impair rights established in the initial action do you reject that will no your honor and that's a key point as i said in my introduction if this were a judgment enforcement action or if we were trying to collaterally attack the prior judgment we would be barred draw understood you to say that there would be  an exception if it was an attack on the judgment of collateral action attacking the judgment or if it was the basis of a claim but this goes further it says that a defense may be barred in a subsequent action if it would have the facts that i mention three hundred thousand dollars got the injunction and got it got the declaration for that period of time what we're talking about is subsequent conduct presenting new claims where they're trying to get additional relief and a broader injunction  deprivation of property that we never had a chance to defend with regard to these claims but suppose the subsequent conduct were identical in all ways to the prior conduct and i know you think that that's not true that there are different marks involved and that the conduct has changed but suppose that it were identical in all ways it's just it's after the prior judgement so there was no there were no damages collected for the subsequent conduct because it hadn't happened yet in that case could you have brought the defense no and the reason we could could not have brought the fence is the only thing before the court in the st action the two thousand and five action was the facts and circumstances at that particular period of time a court could not be an improper advisory opinion to say and well with regard to future conduct that would be bad to the way courts deal with that is injunctions another words if the court wanted to address and prevent the current conduct it would have issued an injunction that pertained to the current conduct instead the injunction that issue was limited to use of get lucky or colorable imitations there of i think they tried to make by making a motion for contempt earlier in this case and marcel want to try to have that injunction read broader but they were denied so if i understand what you're saying in the case of identical subsequent conduct if the violates the injunction then you're out of luck correct but if it does and if there's no one junction or it does not violate the injunction for some way in some way then you can do whatever you want is that correct well you can do whatever you want subject to the fact you might get get sued again you have to have a you know i'm sorry i don't do you would be precluded ye restatement rule so you really don't agree with the restatement you're on or perhaps perhaps not fully understanding it but but my understanding of the restatement rule is based on the idea of attacking the previous action or upsetting the judgement i think the proper restatement to be helpful here is a restatement of judgment section eighteen which makes clear in the section titled merger that defenses that attempt to upset the judgment rendered are barred well that's we know that's one that's one section of the restatement deals with this problem and of course the restatement might not be right it's not you know we don't have to accept but well i have a question about interpretating judgment in the two thousand and five action which i think we have to do in order to come to grips with this case that could be interpreted possibly in one of two ways there is a seeming discrepancy between the final judgment and the injunction the injunction applies only to get lucky whereas you can read the judgment to apply to a lot of other brands as well a lot of other marks as well so my question is is there a grant or does the district courts the way the district court framed the injunction necessarily reflect its interpretation going back up does the way the district court framed the injunction necessarily indicate the way it interpreted the the way the jury's verdict or would there be grounds under trademark law for the district court to issue an injunction  that the jury's verdict that was discussed in well reasoned opinion obviously not binding on this court by judge of all in marcel one where he said that because the declaration was phrased in the speculation to say that that meant that the jury found that it was just use a get lucky by its use of the word lucky the name on our stories for thirty years was was infringing by itself and we know that how they tried the case which is why the district court and everyone understood it is they admit respondents admit pages nine and ten in their brief the focus of the case was not just on the use of get lucky but  the the meaning of the box that the jury checked on the verdict sheet but two things all that it was held right in marseille one was that there was wasn't enough to show that the and junction had been violated and therefore not in my mouth to hold my mouth for contempt holding my right well that's what was held it  yes that that the contempt ruling by the district court in denying contempt who presided over the case and is in the best position to know what she was intending to enjoin and knew that the closing inform the attorney of the question that would be a special verdict right i think that they all understood it because it was consistent by grouping them all together like that with the theory that the case was argued they essentially had two claims you can't use get lucky those actual words and you and it's also causing confusion to use get lucky with these other words so actually that in that language that instruction that grouping was pressed not by luck he's counsel but by marcel's counsel because that fit their theory of the case and they should they can't now having pressed that theory of the case and gotten the language that they wanted now try to argue that it means something else but i but i also concern though that we we need to get back to the with with respect with permission with the legal issue of the the problems with this  new task that the nd circuit has put forth because it is a bad idea it's a bad idea pruett least for reasons one it will create uncertainty because you'll never know whether you're going to be excused or not from  claim being released from failing to press a defense forgive me nd it's going to lead to new litigation people are going to feel compelled to press defenses and i can assure you that district court judges are non enameled of people who come in with a laundry list of permitted defenses that need to be resolved and then even after that happens then what happens then let's say you don't raise it depends then there's an ancillary motion practice in proceeding where a judge has to consider what happened in the previous case that they may not have been involved with it would also then lead to mischief by plaintiffs who might say let's bring a small case which arguably this case is and then bring a bigger case after that and it's also just in a mentally not fair it's not symmetrical it's not even handed because let's say playing to bring new claims but it prohibits a defendant from raising all the defenses that they may have to those claims just as these new claims did not exist at the time of the two thousand and five action so they could not have brought them well we really could not have brought the defense to those could remedy that couldn't wait and say that if a plaintiff had a claim and time to that was available similar to the one in the time one has to see here and could have brought a cause of  another another direction but it would least solve the symmetry problem right but and i mean this this was a i mean it really seemed like the court in marcel two was was annoyed that prior counsel didn't raise this defense and i can appreciate that but that doesn't mean that this court needs to reconfigure the entire law claim an issue preclusion in this case in this country and there's no reason to do it because it's the reasons thought in he talked about demand instead of claim he juxtapose in his opinion for the court the two types of preclusion that we deal with today the idea that once you've litigated a case you can't you're foreclosed from raising defenses to undermine that case is resolution but if it's something that you haven't litigated that would not foreclose you in a subsequent case involving new cla go back in try to figure out some of what's going on between the parties in your reply brief you say even disregarding the fact the these are that we're dealing with a different time period we're actually dealing with a different set of of of clams because you have stopped use and the get lucky brand so that the claims that the respondent now has against you have nothing to do with get lucky this is what that mean that would be a kind of narrow an easy way to solve this case if it were true and if it were not waved in any way but why did you only bring that to our attention and why did you only make that a central feature of your argument and the reply brief because that was sort of to our surprise the focus there see thing is that our friends do not defend or cite any cases saying a previous court has ever accepted the thinking of marcel two whereby and never litigated defense can be precluded in an action involving new claims rather they focused its brief and saying well these are marcel two acknowledging citing the decision of judgment in marcel one that this was new claims because it involved a subsequent course of conduct once they raised it then properly responded to in reply and as we said in our ply brief there's three reasons i mean the key thing is to decide the issue of law but in terms of the new claim issue i think this court can easily dispose of that for three reasons one they are argued exactly the contrary arguing that these were new acts new claims new circumstances in more cell one so if there isn't a stop will here it's judicially stoppel to them and changing their position now having got into court and being here because of that and then nd judge sauls decision not minding on this court but was clearly right because it stood for the unremarkable proposition that subsequent acts create new claims and that's also consistent with acid tekken patent law in this court's cruel cases like m g m versus the trial on the copyright context where each act of infringement is a new claim for cruel purposes and then finally yes there is the factual point that your owners have been asking about which is when the whole theory it minutely of the st case was about the  juxtaposition of of get lucky use of get lucky and the juxtaposition of get lucky with other things causing confusion in a new case in a new period of time not before the court not possibly before thousand and three settlement agreement means sure you sort of i can't know whether you think it means that more so has no claims against looking for using look ion granting our motion to dismiss which led to the appeal in marcel two and what it means is that in exchange for six hundred and fifty thousand dollars my client locky agreed not to use get lucky anymore but that any trademarks that he had registered or used prior to the jaded the settlement agreement which would include lucky brand the name of our store and other one kinds of things like other and numerated things any trademarks that use the word lucky prior to that date all future claims would be extinguished so in other words what that would mean and the benefit of the bargain that we're trying to achieve is absolutely we can't use get lucky anymore but under the principles of the policy of supporting settlement agreements we should be allowed the benefit of our bargain and being able to have protection for our house mark and the other pre made two thousand and one uses and registrations that they had so the settlement agreement doesn't it's not enough offensive document they can continue to use their sole registered trademark get lucky to their heart's content the issue so you could use lucky and the other trademark you had the two thousand and five action most of that case was about to get lucky but if some small piece of it involved one of the released police marks they got some of that to twenty thousand dollars went for that but now they're trying to get a perpetual windfall and say that they get bring even though they didn't get an injunction additional new claims when we were foreclosed for bringing a defense that was never fully a judgment for some action and why doesn't this call for what makes something a judgment enforcement action is when they're trying to get the relief they had been previously been awarded and the relief that they previously were awarded was the th ree hundred thousand dollars and the injunction with regard to the can't use get lucky or a colorable imitation imitation is that with this action is about is we want more money we want a broader injunction we don't want you to use anything with the ordinary english word lucky and you said before a judgment enforcement action and a collateral attack on a judgment do you view those as different things they really technically they're the idea that once the action was decided nobody can undo it the plaintiffs can't sue again and get additional relieve may i finish and the defendant is counsel thank you mr chief justice i'm a pleased court imagine a dispute between two parties is resolved with a final judgment on the merits our position is that in any subsequent lawsuit between the same parties just as the plaintiff is precluded from raising any claims springing from the same cause of action if those claims were available to it in the prior suit so to the defendant is precluded from raising any defenses to that cause of action if those defenses were available to it in the prior suit this rule is fair and symmetrical it preserves judicial wrists resources by discouraging repeat lawsuits and it fosters reliance on final judgments now luck response to this is i understand it of the last twenty five minutes in its reply brief is not really to deny the substance of our rule but instead to deny that this case in the prior case involved the same cause of action but that can't possibly be correct indeed there could be no clear example of two cases involving the same cause of action then one in which the nd suit alleges post judgment violations of the exact same legal rights that were settled by the final judgment in the st lawsuit based a course of conduct that is alleged to be a continuation of the exact same conduct as before and that's exactly what marcel alleges here now lucky says that these allegations are wrong and in fact that this case depends on different facts supporting different theories of trademark infringement and there are two responses to this the st is that lucky is ignoring that this is an appeal from a motion to dismiss meaning the allegations of the complaint have to be taken as true and at paragraph twenty five dollars of the complaint  dollars and this is one among many such examples marcel alleges plain as can be quote lucky continues to this day to use the lucky brand marks in the identical manner that was found to be infringing upon plaintiffs rights and interests in the st action i don't think the court has to look further than that now if the court does feel that it does need to look further than that i think all it needs to do is look at the judgment before we look at it before we do that it seems to me t perhaps the most serious difficulty with your case that cries out for an answer before getting to the judgment is that it does require counsel to put forth in the st case every conceivable defense that he or she might have and i can't imagine that would make sense in other words if you've got five defenses and you think three are really good too who knows you still have to put in those other two if you want to ever be able to raise that defense again and it's a particular problem in this area the law because you're often dealing with ongoing disputes between two parties your honor that would be true only with respect to subsequent suits involved involving the same nucleus of op fact the same claims that would not be true with respect to subsequent litigation between the parties on different causes action i don't well i don't follow your argument about same claim because i thought everybody agrees that the claim that marcello is bringing in the secular is not the same claim it's a different claim because it involves events that occurred after the judgment so there's no cla  idea of defense preclusion but there surely is not a claim put crews in i think we can agree on that the st action with a certain period of time and certain conduct within that period of time  case your honor it is clear that there is no claim in this case but it does not because they are different causes of action there is no question that if the claims under assertion of damages the facts underlying cause of action were available to it and how do they not arise from a different nucleus of operative fact i mean there are two problems one problem is the one that justice ginsburg raised it happened afterward the facts of are different because it's a different time period so it's a different transaction or occurrence it's a different nucleus of operative fact however you want to phrase that the test it would seem you're no longer in the same world and then even more than that even if you said well if everything else is identical and only the timing has changed maybe we can still say it's the same claim here everything else is not identical because lucky has stopped using get lucky right it's continuing to use its lucky brand and that the reference you made to your complaint says it's continuing to use its lucky brand in the same way but it's not using get lucky and that was a core part of the operative facts that gave rise to the st claim isn't it so yes as to one bucket of the claims it was factually relevant to the nd bucket of claims and it would be factually relevant in this case a lead in there were a few parts to your point there and let me take on the st about different time periods the point here is that this was a continuing course of conduct so the litigation in two thousand and five covered a wide range of time up to the time of the final judgment in now are no different than were the facts between two different days within that period of time that was except for the fact that if it were identical you just go and force the judgement but you tried that and failed here so i guess i'm stuck where justice kagan and justice ginsburg are in this looks like a different claim and i think he actually candidly acknowledged that this is a different claim and is precluded by claim preclusion it's got to be something else and something else i think you hit on page twenty your brief you talk about a defendant who loses in one lawsuit may not raise in a subsequent lawsuit involving the same cause of action right which i think of as a legal theory that's how i think of it at least as opposed to a claim which involves the facts a defense that was available in the  ok so i wonder well you know that's a little asymmetrical right the defense defendant loses a defense why wouldn't the plaintiff also lose the cause of action and would we then be inviting the same sorts of inefficiencies that the chief justice was speaking of earlier requiring a plaintiff to bring every cause of action in a twenty thousand dollars lawsuit involving a different set of facts that might bring in a very similar right cause of action we don't i mean i want to be sure to come back to justi so i think we're asking the same sort of thing from well let me answer just st as to this this question about well maybe you wouldn't want to litigate all your defenses in a case involving a small amount of controversy that may be true there so the same thing is true for plaintiffs so you might not want to bring all your causes of action in the  st lawsuit you might might keep it simple when it's a small lawsuit you might throw in more cause of action in a lot leaner lawsuit involves more money for example right well that's exactly right but clearly claim preclusion reckon we don't want that to be barred that would be a bad thing if that were  these claims don't concern a common nucleus operative fact and so let me get to that in my in the nd part of my answer to your question justice kagan there were two categories of claims in this case there were claims concerning lucky's use of get lucky and there were claims concerning the likelihood of confusion between the lucky brand marks and marcel's get lucky mark the claims concerning get lucky were the claim about the settlement agreement which had which was supposed to prevent lucky from continuing to use get lucky and trademark infringement as to those claims they were resolved interlocutor totally by the court the district court sanctions order that order granted partial summary judgment on each of marcel's claims in so far as lucky was using the designation get lucky in direct violation of the settlement agreement and marcel's trademark rights the trial in the case took place more than a year after that and the focus of the trial was then whether the get lucky marks and the lucky brand and that lucky brand marks and the get lucky mark were confusingly similar that was the only issue as to liability that was left in the case after the district court entered partial summary judgment and i would say at the same time that the court entered personal s judgment it entered the permanent injunction on the use of get lucky the permanent injunction only the use of get lucky which is why just as corsets we could not have brought this as a judgement and force me to put in a broad it that i i don't i don't understand what are we supposed to decide i thought that we took this case because assuming that the law is what it seems to have always been that where a susan b and the suits and things may have changed but i learned that the nd suit is a new suit and therefore people can raise claims but they are not collaterally as stumped on that because they thought i thought that the case was about the nd circuit trying to have a new rule that even if the facts are just even if the law is just what i said it was just when she said it was sometimes a defense  precluded when it wasn't raised before if a same parties same act before it could have been asserted before and the district court concludes that preclusion is appropriate because the fish and see concerns outweigh any unfairness to the party so i thought we were here to decide whether that was the law and i thought that they were the only ones who've ever said that and i don't know where they got it from i couldn't my law clerk couldn't find any case  ever said that and he couldn't find that the race that the restatement ever said that so we're of i've been wrong i mean i mean i guess it could become the law but i haven't heard anyone argue that it should be i haven't heard anyone defending the the st person to have made that up and you can finance the nd circuit or are there others who have in the history of the law have said it and which would help me your honor we recite them i lengthen our brief the idea that that claim preclusion has a mirror image that applies to preclude both yes amazing offenses very well settled and that's not my point my point is i just read you what they said and that was in a case where there wasn't clean pre i should say that the reason that claim preclusion doesn't apply in the nd case has to be not that it is a new claim but that the claim was simply unavailable in the st is the st case was something or a body of law that says that the fact that the facts are different is not necessarily dispositive of this issue so if you have a series of lawsuits about exactly the same thing let's say failure to pay under an installment contract or failure to pay rent and it comes up month after month the failure to raise the defense in one of those prior actions can bar the raising of the defense in the later it's a different period of time is not necessarily dispositive if unless we reject that body of law that's right your honor and the reason is straightforward in the st suit where the law where the landlord sues the tenant on the meaning in for stability of the contract and it results in a final judgment that settles the landlord's right landlord's rights under that contract the landlord ought to be entitled to rely on that all i want on that was a couple of cases that i should read i don't read every case in the brief don't case in which my friend on the other side relies and it's stands for exactly this proposition it does so in the context of a series of negotiable instruments but there was an initial suit that settled the parties rights on when later negotiable instruments came due the plaintiffs sued again the defendant raised a new defense and this court said in city of lloyd that that fence was precluded but that was because it was all from the same issue that meaning that the most but we have a contrary case that says when it was two different issues then you don't have not issues your honor i think causes of action and i think that's you know i don't know that now you're trying to confuse things the lloyd involved but we get two different outcomes and for reasons unclear to me the court said in davis when you're suing on two different negotiable instruments you're suing on two different causes of action the city and the court in beloit and city of blois said well when you're suing on two different there's also and i mean and take it to this case you sued in two thousand and five for their use of get lucky with lucky brands in two thousand combined confusion of the use of get lucky with lucky brands this i read your complaint and it's always in the country of the both of them together but now it's in my mind a different cause of action because you're saying it's the use of lucky brands without right so this is the completion of my answer to justice kagan's original question and it's this to understand what was at issue in  the st case i think you're right your honor you have to look at the complaints and in particular what i would do is look at the counts of the complaints that were produced to judgment so i point the court to paragraph twenty one j two hundred and six this is where this is the reading the final judgment to lucky's claims against marcel the jury found as follows and this is reduced to the final judgment says allies use of get lucky as licensed for marcel fashion constitutes willful infringement of lucky brand parties trademarks pursuant to lucky brands st nd and six claims this is the jury saying we agree with lucky that the marks are confusingly similar the nd half of that paragraph then explains that marcel is not liable because its mark is the senior mark so now what did lucky allege in its st nd and six claims and it's crystal clear this is docket seven hundred and seventy two in the district court docket in this case similar to the lucky family of marks as caused and continues to cause confusion as to the source of marcel's and its licensees products in turn permitting them to pass off their products to the general public those originated so why did she live it up both with the luminary injunction and a permanent final injunction that only enjoin them from using get lucky we i know you there is certainly loose language in the final judge making it unclear what it was aimed right at except for the permanent injunction it seems almost come natural to me that if the intent was to challenge and if the district court understood you to be challenging the lucky brand right trademarks that it would have been joined the use of all of and the answer is that the permanent and the only permanent injunction in this case was the permanent injunction that was entered into interlocutor orally one year before the trial in this case it was the injunction entered as a sanction because lucky had misrepresented to the court in marcel that it was no longer using get it i don't see the language in the final judgment the only thing you ended up with is an injunction against the use of and we are not here in forcing the injunction i want to be very clear about that we are here and words interest to be clear about that i'm sorry to interrupt but you're not enforcing the injunction and you're not seeking to enforce the final judgment in the st suit either in only in the sense that one would seek to enforce a declaratory judgment are we doing so we are we are seeking to enforce the rights and t restatement recognizes that really there are two categories of subsequent cases there can be subsequent cases where the parties are seeking to actually enforce the judgment and one where they are simply seeking to seek further in force mint of the rights an interests settled by underlining the final judgment in the prior will how does how does this undermine the prior judgment the price it undermines the rights and interests settled by the final the final judgment from the two thousand and five  those what was that what were those rights was i was right for the right to have them not use any brand that contains what right was it was the twelve marks it was the party's relationship to one another with respect to the twelve lucky brand marks and the one marcel fashion's mark that were issued in the case and the jury's determination that lucky's use of those marks that those marks were confusingly similar to marcel's mark and therefore that lucky's use of those marks was infringement on a reversed confusion theory each and every one of them of the twelve marks each and every one of the twelve of them then come back to this question that i asked opposing counsel why how can you account for the discrepancy between that understanding of the jury entered its verdict does the final judgment that you see is a jointly stipulated final judgment that the parties negotiated in the course of that negotiation counsel from ourselves suggested that we ought to enter a permanent injunction against lucky's use of the get lucky marks it was clear that that negotiation wasn't going to result in an agreement and marcelle then agreed to drop the issue but what this court said in lawler is that a party's decision not to pursue a permanent injunction in the face of a judgment in its favor cannot operate as effectively a license for the party to fail the losing defendant to continue on with what it was doing before without any risk of language in the parties and then the list of the twelve marks at issue pursuant to lucky brand parties st nd and six claims the st nd and six claims alleged just as i read to the court earlier this is a paragraph seventy four paragraph seventy nine looking at her ok ok i suppose i'm what am i misreading here get lucky's is capitalized and referenced three times in that paragraph which paragraph are you talking when you were just reading us counsel well but that's yes that's  the explanation of why marcel isn't liable because the get lucky mark although it's confusingly similar to marcel's marks the get lucky mark is the senior mark so the nd half of that paragraph simply explains why despite it can in more typically your honor it's followed up by the filing of a new lawsuit that alleges that despite the declaration of rights the defendant has continued on with whatever it is the declaratory judgment said they didn't have a right to do looks pretty nice well no other aspect of this to violating the terms of the settlement agreement and that it was continuing to use the get lucky designation and two examples of this after the settlement agreement appear on page eight of our red brief period and became and this is where justice kagan you raise the potential factual distinctions between the cases they're not actually distinctions our theory became one if you're going to can st lucky's sued marcel on the basis that was also released in the two thousand and three suit  marceau then filed counter claims and part of the theory of the counter claims was mixing the two marks together then the facts that underlie the settlement before are no longer true and indeed the public may now be confused into thinking that get lucky in fact belongs to lucky brand we would make those same factual arguments in this case which can make can i go back to the law for a nd because here is where i really think we are in this case nd circuit issues this decision and as justice prior said this we never really see anything like this because the nd circuit said that there was defense preclusion even in the context of new claims you admitted that yourself that the nd circuit wasn't clear enough about the fact that it couldn't be a new claim say you know we'll say that this is the old claim it's the same transaction or occurrence but if it were the same transaction or occurrence you couldn't bring your nd suit now then you say yes you can because i can bring the nd suit even if it is the same transact and a recurrence because i didn't have the opportunity to bring it before but nobody's ever heard of that the reason that you can bring a nd suit is because this is a different transaction or occurrence you are in fact the arguments that you just described were at the heart of our arguments in the st case and if i would i'd point the court has to two foot notes from the courts the nd circuit's decision in this case it's footnote seven appendix page petition appendix page eighteen dollars to nineteen dollars where the court section twenty four is connected but i think related in connected or substantively the same and the court then at paragraph excuse me on petition appendix twenty one in footnote ten may finish explains why  its decision in the st case in the st appeal and in this appeal are consistent and it says your honor exactly what you just said that the reason that the claims here are permitted is because they weren't available in the st not because they are different claims in the sense that they arise from a different nucleus of operative fact because they can't the allegations here is it's a continuing course of conduct and the only reason they were permissible is because that in fact they were unavailable that is clear on the face of the opinion and i we think applying that opinion requires thank you thank you counsel of five minutes to send only thank you two series of points one relating to the question presented on the rule of law the new rule of law and one to the new claim argument one of the striking things about marcel's argument is that there was no defense of the basic principle is justice prior was saying that that you couldn't have a new in the case where there's a new claim a previously unknown litigated for unresolved defense can be excluded but he says correctly to two cases one was the one justice alito mentioned  page seventeen of their brief they say that a preclusion of a defense requires that the causes of action be the same that's basic civil procedure i learned that in professor arthur miller's class the case that they cited then was city of beloit city employee it's just sort of my your said is our case because that was the case when there was a judgment that the city had to pay it then brought a suit in equity to try to get from out of that judgment that is not the case involving the facts here the new claim and moreover to the extent that there's loose remarks going in that direction in that case that was specifically dealt with by the majority opinion in cromwell which surveyed all the law up to that point and specifically didn't side city beloit by name it specifically explained away henderson be henderson which was the main case city of beloit relied on saying henderson we henderson was also a collateral attack then later on the tenant doesn't pay again so so he sues him again on the lease and this time the defendant wants to say the lease is invalid and the court said no you can't because you should have said that before because to the extent that the activities is is a new claim that it should be able to bring that there's an ongoing course of conduct then and you were made whole from the st not is not that isn't the question because everybody agrees it's new course of conduct but this is the defense and they said you can't raise the defense and then right miller is a little worried about that they say well this is a question of the stop all and so that seemed like a point on his side what about those  actually litigated you had actually litigated whether the use of lucky brand trademarks without the use of get lucky was an infringement on the superior get lucky mark let's assume the court had said it's infringement for you to do that no permanent injunction we're just going to give damages then there's now a new lawsuit that says you're continuing after the old one to use the lucky brand trademarks in the same way that's how they're so pitching this to us ok now you should be precluded because you had a full and fair opportunity to raise the settlement agreement as your right to use the lucky brands you didn't why should you raise it now that i think that that's the case that they say this is right and assuming that were the case you had a full and fair opportunity to litigate your use of lucky brands without get lucky and the jury found that your use was an infringement how could you then defend this case may i answer yes you would defend it because the case subsequent relief for subsequent infringements where you would be allowed to present new