A Rat Res? Questioning the Value of Res Judicata in Rule 23(b)(3) Superiority Inquiries for Foreign Cubed Class Action Securities Litigations

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Foreign cubed class action securities litigations (foreign plaintiff participation in U.S. securities class actions against foreign defendants for transactions on foreign exchanges) are on the rise. This new tide of litigation brings with it a host of questions ranging from the propriety of applying U.S. securities regulations to foreign cubed transactions, to whether foreign courts will give binding effect to U.S. class action judgments. This Note focuses on the latter inquiry. It argues that the current “grafting” of res judicata concerns onto the superiority inquiry for Rule 23(3)(b)(3) foreign cubed class actions is irredeemably flawed, and should be replaced by the extraterritorial subject matter jurisdiction inquiry required for application of U.S. securities laws to foreign cubed transactions.