So, where and when are US tort and securities judgments binding on persons who live outside the US, and why should does it matter? Let’s start with the latter question – why does it matter. Suppose, for example, a US bankrupcty court purports to enter a global injunction that bars future asbestos claims that anyone in the world might hold against particular entities? Is that injunction really enforceable if challenged in other nations or even here? Or, suppose global res judicata issues arise because of securities claims involing stocks sold around the world to persons from many nations?
As usual, the answers are going to emerge first in securities claims because the amounts at issue in any one case are enough that squadrons of lawyers are deployed to argue the issues. Answers are starting to arrive and indeed one could say the pot is boiling in the world of securities and D & O litigation as lawyers ponder and argue about various current lawsuits.
For example, some wonder and argue about whether the U. S. Supreme Court will or or should consider a discretionary appeal from a 2d Circuit ruling on jurisdictional issues in the context of alleged global securities fraud. This AmLaw article by Andrew Longstreth presents the issues and links to the Justice Department’s brief invited by the Court in the Morrison case. The government urged the Court NOT to take the case (one wonders how that will view will sit at the Court when considered in the light of Chief Justice Robert’s expressed interest in building the legacy of his court by reaching out to decide business cases).
The topic also is addressed on the excellent D & O Diary blog by Kevin LaCroix, in a recent guest post (here) from a Cozen & O’Connor lawyer, who, presumably, represents insurance companies. Another example arises from the ongoing more or less global Vivendi securities fraud trial, which is covered in general here by Mr. LaCroix, with many helpful links to source documents, with links to undelrying rulings on the global class action issues. The Vivendi class action opinion is here, and provides a helpful discussion on what courts in overseas countries might have to say about the res judicata nature of a US judgment on the securities law issues in the context of a purported class action.
Conclusion ? Concrete answers will take many years to evolve. But plainly some of the judgments entered to date will never be enforced because overseas claimants were not given anything close to adequate notice or representation.