부산대학교 도서관

In class action practice, settlements play a central role. As in all litigation, the parties on both sides see settlement as a way to make peace and avoid the risk associated with going to trial. Class settlements, however, ofer defendants something that they cannot obtain by any other means--namely, the ability to cause individuals not in front of the court to release all claims that relate to the events at issue in the class action. Given the preclusive efects a class settlement carries with it, defendants are likely willing to pay some "preclusion premium" to procure a settlement that covers as many claimants and claims as possible. Though class counsel should theoretically accept this preclusion premium and agree to settle only when it represents the best outcome for all class members, present and absent, recent developments indicate that the theory does not match practice. This Note explores the emerging trend of class settlements that include "claimless claimants," individuals who clearly do not possess any viable claim in the settling court. This Note argues that by agreeing to include claimless claimants in settlement classes, class counsel increase their award while shortchanging individuals with viable claims and also sometimes unduly fleecing individuals with no viable U.S. claim out of a possibly more valuable foreign claim. In these class settlements, then, some absent class members likely do not receive the adequate representation mandated by due process and the class action rule. Furthermore, even if courts take steps to remedy this deficiency in representation, these settlements arguably face other, insurmountable legal hurdles. They may violate the Rules Enabling Act, run afoul of the presumption against the extraterritorial application of U.S. law, and fall outside the settling court's subject-matter and personal jurisdiction. [ABSTRACT FROM AUTHOR]