It is difficult to deny the political colour of this debate

April 28, the Court of appeal of Paris will decide on the character undue - or not - of the "class action" carried out against Vivendi by some French shareholders in the United States. Beyond the case, this decision is especially expected by the multinational French questioned the possible legitimization of this type of action by our courts.

The controversy is mainly on the participation of complainants France to une collective American action on the basis of une violation of the U.S. stock market law, then that for them Their sole purpose, according to their opponent, would thus take advantage of a procedure, not only unknown in the law French, but also contrary to its fundamental values.

It is difficult to deny the political colour of this debate. The French State does not lack an opportunity to remind the American courts how the "class action" is inconsistent with our fundamental principles. He did recently as an "amicus curiae" before the Supreme Court of the United States, in line with the memorandum filed by Thales, EADS, Alstom, Lagardere and Vivendi in Morrison v. National Bank case.

The French judge has, to our knowledge, never held directly on the question of the potential incompatibility of the "class action" with our law. This is not the case of American justice. It is indeed led to decide on this question when it certifies a "class action" including foreign complainants and that he is requested to ensure that it will be recognized by the State concerned.

The position of the American judges is not uniform: If, in the case of Vivendi, they considered that there was a sufficiently high probability that this American procedure is recognized in France, it has been otherwise comparable cases.

For their part, the French courts could be quickly and directly seized of this question, through a procedure of exequatur to seek leave to enforce a foreign judgment on our soil. It would be a decision of "class action" made from a French company which did not spontaneously perform the decision and would have easily seizable assets in France.

For memory, the judge will allow the execution of the decision in France if it finds the "indirect" jurisdiction of the American judge consider the links connecting the dispute to its jurisdiction, the absence of the Act by the plaintiffs fraud and compliance with our international public order.

Systemic incompatibility

In this regard, it is permissible to doubt the compatibility of "class actions" us with our international public order. Indeed, this procedure falls, in principle, in contradiction with the French concept of individual freedom of action, as well as with the principles of adversarial and equality of arms. Thus, the American system of "opt" out implies to be a party to a proceeding without necessarily demonstrating its willingness to act, or even have been individually informed of the existence of the procedure.

French doctrine appears to be mostly there are systemic conflict of collective action us with our law.

More broadly and independently of the question of the compatibility of the "class action" with our public order, the American procedure presents some characters who tend often to disrupt the trial to the plaintiffs and to encourage the defendant to settle what would have been the outcome of the trial. Such include the risk associated with the issuance of punitive damages or the lack of support for the costs of proceedings by the loser...

Thus, the judge seized of an application for enforcement of a decision of "class action" would be led to wonder about the benefits which would have benefited the plaintiffs in a procedure which is not naturally open to them.

In any case, the refusal by the French courts of enforcement to such a decision would have an impact strong: it might deter complainants to act in the United States from a French company having its assets by France; and French citizens to join the American proceedings, because the American judge could more reasonably certify class in their regard by stating that the recognition of the decision in France chances are highly likely.