KU Law News
KU Law News
Dec. 3, 2008
Scholar confronts global future of U.S. class actions in inaugural Casad Lecture
George A. BermannMORE INFORMATION
Watch video of Bermann's lectureBermann's bio page at Columbia Law School
As the world becomes increasingly interconnected, national civil procedure systems must find ways of intersecting with one another that are acceptable to all nations involved and still function efficiently in the international marketplace.
So urged George Bermann in his Dec. 1 address to inaugurate the Robert C. Casad Comparative Law Lectureship at the University of Kansas School of Law. Bermann, the Walter Gellhorn Professor of Law and Jean Monnet Professor of European Union Law at Columbia Law School, offered U.S. class actions as an arena in which such intersections are necessary.
“The time is long past when U.S. class actions played themselves out on a purely domestic stage,” Bermann said. “And the new paradigm clearly is one in which certification in U.S. class litigation is sought for a class that consists heavily and possibly even predominantly …of nationals or residents of other countries.”
Rule 23(b) of the Federal Rules of Civil Procedure requires U.S. courts to determine whether a class action would be superior to other available methods of adjudication. Assembling a multinational class raises questions about whether class members in foreign jurisdictions have been sufficiently notified of the action, and whether U.S. rules that bind class members to an action if they merely fail to opt out will be recognized in their home courts. In other words, if the U.S. class action fails, would foreign class members still be allowed to bring suit in their courts? And, if so, is the class action the superior vehicle in the first place?
“We may have come to terms with opt-out style U.S. class-action litigation, and for good reason,” Bermann said. “But will foreign courts be so easily satisfied?”
It could be argued, Bermann contended, that foreign recognition of U.S. class action judgments should not be considered when deciding whether such actions would be superior. However, not one of dozens of U.S. courts who have confronted the issue in the past few years has seen it that way.
“In order to determine whether a judgment will receive res judicata effect in the foreign court of a hypothetical future foreign litigant, our courts have no choice but to confront principles of foreign judgment recognition in each of the countries to which a disappointed absent class member might have recourse in the wake of the unsuccessful American class action,” Bermann said.
He then outlined 16 questions that courts typically consider to make such predictions about each country involved. Bermann concluded by noting that countries around the globe are developing collective litigation models and that the International Bar Association, of which he is a member, is attempting to find a creative, constructive solution to the problem.
Scholars such as Robert Casad, in whose honor the lectureship was established, can help immeasurably with that solution, Bermann said, by doing the hard thinking that is required to clear a path of analysis, conduct research in foreign and comparative law, and exercise sound judgment in dealing with the findings.
“All of these attributes are exemplified by Robert Casad,” Bermann said. “And it’s only if we marshal all of these skills and generate the energy and focus of attention that I’ve sought to generate in this room today that we will arrive, possibly, at solutions that are well-informed, that are sound, factually grounded and, above all, adapted to the world in which our students, as attorneys, are going to operate.”
Casad joined the KU Law faculty in 1959 and taught for more than 37 years before taking emeritus status in 1997. He continues to write and publish and is respected in the U.S. and abroad for his work in comparative and international law. Thousands of KU Law graduates learned civil procedure in his classroom.