focus of this article, for two reasons. First, given the continued unwillingness of
English legislators to enact an opt-out class action, some claimants domiciled in
England who have suffered a cross-border grievance have, unsurprisingly, cast
their eyes across to the US federal class action regime to seek redress.3Attempts
by English claimants – whether they be shareholders,4price-ﬁxing victims,5or
consumers6– to form an ‘add-on’ sub-class to a US class action, to be bound by
(and to seek to beneﬁt from) the outcome of the class action,have not always met
with success. However, a successful example of an ‘add-on’ English sub-class has
recently occurred in the cartel class action settlement involving British Airways
plc (BA) and Virgin Atlantic Airways Ltd (Virgin) in In re International Air
Transportation Surcharge Antitrust Litigation (the Fuel Surcharge Cartel Settlement),
approved by the District Court of the Norther n District of California in 2008
(with the settlement period concluding in December 2012).7These types of cases
suggest that an English court will, at some point, be required to rule on the
recognition and preclusive effect of US class actions judgments/settlements in
England (and, moreover, that English legislators need to improve urgently the
state of their own collective redress landscape8).
A second reason for the importance of the issue is that some American courts
have had to weigh into the debate (albeit somewhat ambivalently), and in
controversial terms. For example, in In re Vivendi Universal SA Securities Litigation9
(Vivendi), Judge Holwell remarked that:
While the issue is hardly free from doubt,based on the afﬁdavits before it, the Court
concludes that English courts, when ultimately presented with the issue, are more
likely than not to ﬁnd that US courts are competent to adjudicate with ﬁnality the
witness for one of the defendants. Foran insightful and detailed consideration of Canadian cour ts’
willingness to certify multi-jurisdictional classes, see, eg, J. Brown, ‘Seeking Recognition of
Canadian Class Action Judgments in Foreign Jurisdictions: Perils and Pitfalls’ (2008) 2 Canadian
Class Action Rev 220, 223–227; and Brown, ‘Canada–US Cross-Border Class Actions: Class
Certiﬁcation and the Enforcement of the Resulting Class Action Judgments’(Paper for 2011 ABA
Annual Meeting,Toronto, 5 August 2011).
3 ie,the damages class action contained in r 23(b)(3) of the Federal Rules of Civil Procedure (FRCP).
4 eg, In re Parmalat Securities Litig 497 F Supp 2d 526 (SDNY 2007).
5 eg, Kruman vChristie’s Intl plc 284 F 3d 384 (2d Cir 2003).
6 eg, Gullone vBayer Corp 408 F Supp 2d 569 (ND Ill 2006), aff’d,484 F 3d 951 (7th Cir 2007).
7 Case No M:06-cv-01793-CRB (ND Cal 2008), with settlement website at: https://www.
airpassengerrefund.co.uk/Documents.aspx (last visited 2 December 2011). See especially, under
‘Important Documents’, Notice to Claimants (Long Form Notice), Claim Form, Settlement
Agreements, and Final Hearing Transcript.
8 An argument developed further by this writer in, eg,‘The Case for an Opt-Out Class Action for
European Member States:A Legal and Empirical Analysis’ (2009) 15 Columbia J of EuropeanLaw
409,441–448; Refor m of Collective Redress in England andWales:A Perspective of Need (ResearchPaper
for the Civil Justice Council of England andWales,Februar y 2008) 107–112;and The Class Action
in Common Law Legal Systems:A Comparative Perspective (Oxford: Hart Publishing,2004) ch 4.Also,
R. Nagareda,‘Aggregate LitigationAcross the Atlantic and the Future ofAmer ican Exceptionalism’
(2009) 62 Vanderbilt LR 1, 36–37 (non-recognition of US judgments abroad may ‘spur further the
development in European nations of their own distinctive avenues for aggregate redress for their
citizens’);and In reVioxx Litig 395 NJ Super 358, 374,aff’d, 936 A 2d 968 (2007) (England’s limited
civil procedure landscape is not‘a ticket to relief elsewhere,but rather, as a subject for legislative or
court reform, should such be warranted’).
9 242FRD 76 (SDNY 2007), involving German, Austrian, French, English and Dutch sub-classes.
© 2012 TheAuthor.The Moder n Law Review© 2012 The Modern Law Review Limited. 181
(2012) 75(2) MLR 180–211