FACING UP TO MULTINATIONALCOMPLEX LITIGATION IN THE UNITED STATES

• Main Author: Ángel R. Oquendo
• Format: Article
• Language: English
• Published: Universidade do Estado do Rio de Janeiro 2017-04-01
• Series: Revista Eletrônica de Direito Processual
• Subjects: complex litigation; foreign litigants; class actions; enforcement of foreign judgments
• Online Access: https://www.e-publicacoes.uerj.br/index.php/redp/article/view/28488/20274

A federal court should approach the presence of foreigners in a global class action for monetary relief with an openmind. It should keep them in so long as it can conclude, upon a reflective comparative law analysis, that the judiciary in theirnationof origin would upholdtheultimate ruling.For example, Latin American absent class members should normally stay on board inasmuchas virtually every jurisdictionin their regionwould allow a U.S. adjudicator to arrive at this conclusion.Accordingly, they would fail, on grounds of res judicata, if they ever tried to re-litigate the matter back home upon a defeat on the merits in the United States. In particular, a tribunal from any one of seven representative regional countries (Mexico, Brazil, Venezuela, Colombia, Panama, Peru, and Ecuador) wouldmost probably find such a U.S.judgment consistent with local due process, as well as with the remaining requirements for recognition.In other words, it would hold thatabsentees stemming from its jurisdictional territory could not legitimately complain about the preclusive effect since they would have free ridden on the efforts of their representatives with a chance at compensation, would have benefited from numerous fairness controls, and could have similarly faced preclusion in their homeland based on a suit prosecuted by someone else without their authorization.Judges in the United States should engage in a similar in-depth deliberationto decide whether to welcomecitizens from anywhere else in the worldto the litigation.