The U.S. class action is an unusual animal. To the extent that its “opt out” mechanism purports to bind class members who never affirmatively commenced proceedings in the United States, controversy surrounds the question whether such a judgment is entitled to recognition in England and Wales. Only if it is so entitled will the judgment be effective to prevent non-participant class members from (re)litigating their claims in England. This Article identifies the primary difficulty as being the existence of English common law rules that presuppose that only a defendant, or at least a party, to foreign proceedings would object to the recognition of a foreign judgment in England. It explores various potential avenues for resolving this dilemma of having defendant-based rules and a plaintiff-based problem. It concludes that the most satisfactory solution would be for the common law to develop a “representative action” criterion of recognition, and it proffers a formulation of such a requirement.
