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Sending Them Home: Forum Non Conveniens and Global Class Actions
Plaintiffs' attorneys are going global in their efforts to assemble class-action lawsuits. To protect themselves, U.S. defendants are responding with legal strategies aimed at defeating class certification and sending foreign plaintiffs back to their home-court jurisdictions.
- Ounce of Prevention: As a first line of defense, defendants can resolve claims of foreign plaintiffs before they reach the lawsuit stage. In some cases, defendants offer to pay the out-of-pocket medical expenses of potential plaintiffs – reducing the liability for damages and breaking up the potential class.
- Inconvenient Forum: Dating from an 1801 district court case in Pennsylvania (Willendson v. Forsoket), the forum-non-conveniens doctrine allows judges in most jurisdictions to determine whether to accept a case based on: the location of witnesses and evidence; hardships for the defendant; the availability of an adequate local forum; the use of judicial resources; the choice of law applicable in the dispute; and public-policy interests.
- Paramount Public Interests: Foreign defense counsel and medical experts can help establish that alternate judicial forums exist and the balance of public interests favors dismissal from American courts. "Foreign countries have paramount interests in deciding controversies affecting their citizens," says Todd Gattoni, a member of Dykema's litigation practice group. "Defendants should emphasize that foreign courts are better suited for reviewing incidents involving products that foreign regulators have approved and overseen."
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When plaintiffs' lawyers in a medical-device class action case were deciding where to file suit, their choice of venue was obvious. Sending Them Home: Forum Non Conveniens and Global Class Actions
Plaintiffs' attorneys are going global in their efforts to assemble class-action lawsuits.
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