† David J. Harris, Jr.
In 2010, the United States Supreme Court’s landmark decision in Morrison v. National Australia Bank introduced new challenges for class action plaintiffs’ counsel seeking to bring claims under the Securities Exchange Act of 1934 (“the Exchange Act”). Morrison explicitly eliminated the “conduct” and “effects” tests that had rather liberally delineated securities class membership in U.S. courts prior to 2010. Replacing these tests with a “bright-line transactional test,” Morrison limits the reach of § 10(b) of the Exchange Act to securities listed on an American exchange and securities transactions occurring in the United States. While the contours of securities class membership in the United States remain somewhat obscure, one thing is clear: many defrauded purchasers who would have been able to seek redress in U.S. courts under previous precedent will be denied this access under Morrison. These purchasers will likely look to foreign jurisdictions for relief.
This article uses a developing case against Vestas Wind Systems (“Vestas” or “the Company”) to examine some collective action opportunities available outside the United States to displaced securities plaintiffs. Section II of this article provides the factual background of plaintiffs’ claims against Vestas. Section III explores collective action frameworks in the European jurisdictions that are most accessible to non-U.S. plaintiffs in the Vestas case. Section IV examines a relatively new Dutch procedure for the global settlement of international class claims. Finally, Section V concludes that global settlement in the Netherlands may become the preferred option for litigants both in the Vestas case and in future international securities class actions.