When the British invaded in the 1960s, they came as rock and roll bands. Today, the British — joined by the Italians, the French and other foreign nationals — are storming America’s shores as plaintiffs in pharmaceutical personal-injury class action and other complex litigation matters. These plaintiffs sue domestic United States corporations for alleged injuries caused abroad by their international subsidiaries. In filing suits here, the foreign plaintiffs are attempting to circumvent favorable foreign law that protects the corporate defendant. As shown below, the forum non conveniens doctrine is a viable defense to these suits in certain situations.
The United States legal system offers foreign plaintiffs many advantages unavailable at home. For example, the significant discovery corporate defendants face in the United States is virtually absent in France, preventing the French citizen from obtaining the “smoking gun” corporate document. Moreover, the United Kingdom, France and Italy do not permit class actions and contingency fee agreements, a significant disincentive to plaintiffs and their counsel in pursuing mass-tort claims in those countries. Punitive damages also are unavailable. In addition, under the “loser pays” system in place in many European countries, plaintiffs undertake a substantial risk by commencing a suit there because they may have to pay the winner’s costs and attorney fees. Thus, plaintiffs are often discouraged from filing weak or problematic cases in their home countries. Put another way, foreign plaintiffs and their attorneys can maximize their damages in U.S. courts.
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