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86 Tul. L. Rev. 1 (2011-2012)

handle is hein.journals/tulr86 and id is 3 raw text is: TULANE LAW REVIEW VOL. 86 NOVEMBER2011 No. 1 Transnational Class Actions and the Illusory Search for Res Judicata Tanya J. Monestier* The transnational class action-a class action m which a portion of the class consists of non-US claimants-is her to stay Defendants typically resist the certfication of tansnatonal class actions on the basis that such actions provide no assurance offinality for a defendant, as it will always be possible for a non-US. class member to initiate subsequent proceedings in a foreign court. In response to this concem, many US courts will analyze whether the home courts of the foreign class members would accord res judicata effect to an eventual US. judgment prior to certifjing a US class action contaking foreign class members. The more likely the foreign court is tolecognize a US. class judgment, the more likely an American court will include those foreigners in the US class action. Current scholaship accepts propnety of the res judicata analysis but questions the manner in which the analysis is caried out. 772Ts Article breaks from the existing literature by arguing that the dynamics of class litigation render the resjudicata effect of an eventual US class judgment inherently unknowable to a US court ex ante. In particulai I argue that certain liigation dynarmics-specifically the process ofproving foreign law via experts, the pririciple ofparty prosecution, and the litigation posture of the action-complicate the transnational class action landscape and prevent a court from accurately analyzing the res judicata issues at play 7his is exacerbated by the 'structural dynamics of class litigation: the complexity of foreign law on the rcognition and enforcement ofjudgments, the newness of class action law in most foreign countries, and the distnction between general and fact-specific grounds for nonenforcement ofa US classjudgment Accordngly largue that US courts should abandon their illusory search for rs judicata. Instead courts should avoid the rsjudicata problem altogether by employing an opt-in mechanism for foreign class plaintiffs, whereby such plaintiffs are not bound unless they * Q 2011 Tanya J. Monestier. Associate Professor, Roger Williams University School of Law. The author would like to thank Samuel Baumgartner, Elizabeth Burch, Jared Goldstein, Samuel Issacharoff, Colleen Murphy, Peter Margulies, Louise Ellen Teitz, Jonathan Richman, and Michael Yelnosky for their helpful comments in the preparation of this Article. The author would also like to thank Joshua Dunn for his invaluable research assistance; a special thank you as well to Benjamin Guimarra who assisted with an early draft of this Article. 1

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