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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.

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