Overview
Judge Marerro yesterday certified a class against the Fairfield Greenwich feeder funds that invested with Bernard Madoff. He rejected the argument that individual reliance questions precluded class certification: “[E]ven assuming Defendants’ claims that certain communications to class members may not have been uniform, they allegedly were uniformly misleading.” The defendants also argued that class certification was inappropriate with respect to investors in foreign countries that would not recognize a U.S. class action judgment as preclusive. Judge Marrero ruled that, since may countries simply had not addressed the question of whether a class judgment would be recognized, the Court would presume a class judgment would be recognized, absent contrary evidence:
The Court is currently presented with extensive duel expert reports from preeminent practitioners and scholars debating the likelihood of foreign recognition of a United States opt out class action judgment. The most contentious issue debated by these esteemed scholars is whether recognition of the judgment would violate a foreign country's public policy. Undoubtedly, in certain jurisdictions that have affirmatively considered the efficiency and fairness concerns implicated by class action procedures, this discussion has substantive merit and will likely determine whether a foreign court will grant recognition to a judgment by this Court. However, in the vast majority of countries that have not yet squarely confronted the issue of class actions, much less explicitly addressed recognition of a United States class action judgment, the reams esoteric legal analysis submitted by the parties, citing as legal authority Baron Blackburn and his young-blooded contemporaries, ultimately amount to no more than high-priced arm-chair oracles, conjecture that provides little assistance to the Court, one way or another, in analyzing the likelihood of foreign recognition of this Court's judgment. Therefore, the Court concludes that, where a plaintiff sufficiently demonstrates that the stated policy of a foreign country is to recognize and enforce foreign judgments, or that its law is generally inclined to favor that course of action, such a showing would create a rebuttable presumption that, absent an affirmative showing to the contrary, recognition of a particular United States judgment, even class action litigation, does not violate a foreign country's public policy.
