Transnational class actions, Res judicata
Civil Procedure | Litigation | Torts | Transnational Law
How should a U.S. class action treat proposed foreign class members in a circumstance where any resulting judgment will likely not bind those absentees abroad? The dominant approach has been an exclusionary one, dropping the absentees from the class. This essay instead recommends an inclusionary approach, so that all the foreigners would remain members of the class in transnational class actions. But the court should create a subclass in damages actions for the foreign claimants who might have an incentive to sue again; the subclass would proceed by the accepted technique of claims-made recovery, so that the subclass members could recover only by submitting a proof of claim along with a release.
Kevin M. Clermont, "Solving the Puzzle of Transnational Class Actions," 90 Indiana Law Journal Supplement (2015)