Rule 23 and the Exclusion of Foreign Citizens as Class Members in U.S. Class Actions

Abstract

In deciding whether to certify a class action consisting of foreign and U.S. citizens, many courts are attempting to predict whether a foreign citizen’s home country would recognize and give preclusive effect to a U.S. judgment attempting to bind the foreign class members. Much of the recent academic commentary discusses the best way for courts to do this preclusion analysis. This approach has produced disparate conclusions because foreign courts often have not decided whether they would give preclusive effect to a U.S. class action judgment. This Note will explore four additional justifications for refusing to certify a class consisting of foreign citizens — justifications that draw on and are bound up with the doctrine of forum non conveniens. These justifications are occasionally evaluated by district courts in concluding whether to certify a class, but are not relied on often enough, and the academic literature only discusses them sparingly and descriptively.

First, if choice of law principles dictate that foreign law applies to foreign class members, the class will likely fail the commonality and typicality requirements of Rule 23(a) and the superiority and predominance requirements of Rule 23(b)(3). Second, including foreign citizens would increase the manageability burdens on overtaxed U.S. courts, which could fail the requirements imposed by Rules 23(b)(3)(C) and 23(b)(3)(D). Third and related, courts have found that including foreign citizens would fail to provide the superior method to resolve the dispute under Rule 23(b)(3) because of the difficulty of providing notice to foreign citizens. Fourth, as the class action device becomes more common in foreign countries, comity concerns should cause U.S. courts not to include foreign plaintiffs who have a remedy easily available in their home countries. While some courts have occasionally invoked each of these four justifications, many courts have based their decisions of whether to certify a class consisting of foreign plaintiffs by trying to predict if a foreign country would give preclusive effect to their judgment. In short, there is little consensus on the criteria best suited to resolving this important issue.

This note argues that the principles of the doctrine of forum non conveniens should be more frequently applied to prevent certification of a class consisting of any foreign citizens for the four reasons that courts and commentators often overlook. These arguments provide a more administrable approach for deciding certification rather than a court attempting to discern whether a future foreign court would preclude class members from re-litigating the same claims in a foreign forum.

Keywords: class action, Rule 23, transnational class action, comity, forum non conveniens