Antisuit Injunctions and Preclusion against Absent Nonresident Class Members

In this Article, Professor Monaghan addresses an issue of pressing concern in class action litigation today, namely, the extent to which a trial court\u27s class judgment can bind – either by preclusion or injunction – unnamed nonresident class members, thus preventing them from raising due process challenges to the judgment in another court. After placing the antisuit injunction and preclusion issues in the context of recent class action and related developments, Professor Monaghan discusses the Supreme Court\u27s 1985 decision in Phillips Petroleum Co. v. Shutts and its applicability to these issues. In particular, Professor Monaghan criticizes reading Shutts\u27 implied consent rationale as turning entirely on class members\u27failure to opt out of the class action, and using that failure as a basis for an antisuit injunction against nonresident class members. Absent minimum contact, Shutts requires, inter alia, adequate representation at all times in order to establish in personam jurisdiction over nonresident class members. That issue can always be raised in another forum. In a class action universe that includes races to judgment and reverse auctions, this rule is desirable. In the absence of a legislative reform, Professor Monaghan concludes that non-party, nonresident class members must remain free to challenge, on due process grounds, otherwise preclusive judgments in a forum of their choosing