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34 Hastings Int'l & Comp. L. Rev. [i] (2011)

handle is hein.journals/hasint34 and id is 1 raw text is: HASTINGS INTERNATIONAL AND COMPARATIVE LAW Review VOL. 34 Winter 2011 NO. 1 Table of Contents ARTICLES THE RULE 23(B)(3) SUPERIORITY REQUIREMENT AND TRANSNATIONAL CLASS ACTIONS: EXCLUDING FOREIGN CLASS MEMBERS IN FAVOR OF EUROPEAN REMEDIES By Michael P. Murtagh ...................................1 This Article analyzes the way federal courts conduct their superiority inquiries on motions for class certification in transnational class actions. Opt-out class actions under Rule 23(b)(3) conflict with an important premise of legal systems around the world, namely, that one cannot be bound to a judg- ment unless one affirmatively participated in the lawsuit. Fed- eral courts sometimes either decline to certify the class or ex- clude foreign class members from the class because of the risk that the courts of foreign countries will not enforce the class ac- tion judgment. This Article argues that the current approach inefficiently exposes the parties to costly litigation and risk. In order to efficiently achieve the purposes of Rule 23, courts should exclude foreign class members when it is unclear that foreign courts would enforce the judgment. This solution would efficiently avoid the inconsistent results that the current ap- proach has generated and is further justified in light of the emerging mechanisms for settling and litigating mass claims in Europe. This Article highlights the Dutch Collective Settle- ment Act of 2005 as one such mechanism that has already had a significant impact on transnational class action litigation.