Abstract

A federal court should approach the presence of foreigners in a global class action for monetary relief with an open mind. It should keep them in so long as it can conclude, upon a reflective comparative law analysis, that the judiciary in their nation of origin would uphold the ultimate ruling. For example, Latin American absent class members should normally stay on board inasmuch as virtually every jurisdiction in their region would 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) would most 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 that absentees 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 deliberation to decide whether to welcome citizens from anywhere else in the world to the litigation.

Keywords: class action, jurisdiction, foreign plaintiffs, preclusion, res judicata, due process, opt-out, absenteeism, Latin America