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Highlight Updates Tolling for Individual Actions—The American Pipe Tolling Doctrine

In American Pipe & Construction Co. v. Utah,124 the Supreme Court held that a class action tolls the statute of limitations for individual putative class members who make a timely motion to intervene by permission or as of right after the court has found suit inappropriate for class action. The Court noted that tolling is justified because it serves the purposes of efficiency and judicial economy in Rule 23, in that putative class members need not file their own actions nor seek to intervene just to protect the limitations period. The Court concluded that the policy is fair to defendants because, when a class action is filed, the class representative “thereby notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment.”125 The Court later extended American Pipe tolling to class members who opt out126 and to plaintiffs who file separate individual actions after the denial of class certification.127

The claims in American Pipe and its Supreme Court progeny all arose under federal law. A federal court sitting in diversity, however, applies the substantive law of the state, including the state’s statute of limitations. It is generally held that the state’s tolling rules apply in federal court, as they are integrally related to statutes of limitations.128

It is worth noting that there is a distinction between statutes of limitation and statutes of repose. Statutes of repose run from the date of the last culpable act or omission of the defendant, regardless of whether any cause of action resulting from such activity has accrued. Statutes of repose are enacted to give more explicit and certain protection to defendants.129 In California Public Employees’ Retirement System v. ANZ Securities, Inc., the Supreme Court held that, unless there is a particular indication that the legislature did not intend the statute to provide complete repose, but instead anticipated the extension of the statutory period under certain circumstances, a statute of repose is not subject to American Pipe equitable tolling.130 Tolling also has been held inapplicable to a defendant not named in the previous class action complaint, at least in the absence of adequate notice.131

When American Pipe tolling does apply to stop the running of the statute of limitations for an individual claim, it starts when a class action complaint is filed or when a complaint is first amended to include class action allegations.132 A majority of courts hold that the doctrine applies even when an individual action is filed before the district court has ruled on class certification.133 Generally, tolling stops the running of the clock on the applicable statute of limitations until the district court denies class certification134 or when the case terminates for some other reason, whichever comes first.135American Pipe tolling also ends as to a particular individual when they cease being a member of the class, but even then, equitable tolling may save the class member’s claim if “there is a justification created by an extraordinary event.”136

When class certification is denied by the district court, a motion for reconsideration or an appeal under Rule 23(f) does not extend the tolling period.137 However, when a class has been certified, but the claims are subsequently dismissed on the merits, the class action continues to toll the statute of limitations until the date the court of appeals affirms the dismissal.138 Most courts hold that tolling continues through appellate proceedings when the lower court made no decision either way regarding class certification.139

The nature of the relationship between the claims in the class action and the claims in a subsequent lawsuit that must exist in order for American Pipe tolling to apply is a common topic that arises after a denial of class certification. In a concurring opinion in Crown, Cork & Seal Co. v. Parker,140 Justice Powell, joined by Justices O’Connor and Rehnquist, wrote that, “when a plaintiff invokes American Pipe in support of a separate lawsuit, the district court should take care to ensure that the suit raises claims that ‘concern the same evidence, memories, and witnesses as the subject matter of the original class suit,’ so that ‘the defendant will not be prejudiced.’ ”141 Justice Powell stated that “the tolling rule of American Pipe is a generous one, inviting abuse. It preserves for class members a range of options pending a decision on class certification. The rule should not be read, however, as leaving a plaintiff free to raise different or peripheral claims following denial of class status.”142 With these words, Justice Powell expressed a concern that the defendant in a class action be afforded sufficient notice of future claims that could potentially be brought in later individual actions after applicable statutes of limitations arguably had run.

In the years since the American Pipe and Crown, Cork & Seal cases were decided, the lower courts have sought to interpret the term “different or peripheral claims” in light of the Supreme Court’s interest in balancing the policy of judicial efficiency and economy with that of fair notice to defendants. Some courts have found that the class action tolling doctrine should be applied only when the claims raised in the subsequent case are identical to those in the initial class action complaint.143 However, this does not appear to be the dominant view. Other cases have not restricted the term to so narrow an interpretation, instead finding variously, inter alia, that the claims need only arise from the same “factual basis” and/or “legal nexus” and be “sufficiently” or “substantially” similar.144


  • 124 {124} Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 551, 94 S. Ct. 756, 38 L. Ed. 2d 713 (1974).

  • 125 {125} Id. 414 U.S. at 555.

  • 126 {126} Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176 n. 13, 94 S. Ct. 2140, 40 L. Ed. 2d 732 (1974).

  • 127 {127} Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S. Ct. 2392, 76 L. Ed. 2d 628 (1983).

  • 128 {128} See, e.g., Albano v. Shea Homes Ltd. P’ship, 634 F.3d 524, 530 (9th Cir. 2011); State Farm Mut. Auto. Ins. Co. v. Boellstorff, 540 F.3d 1223, 1228 (10th Cir. 2008). See also Chavez v. Occidental Chemical Corp., ___ N.E.3d ___, 2020 WL 6136351 (N.Y. Oct. 20, 2020) (answering questions certified by the Second Circuit in Chavez v. Occidental Chemical Corp., 933 F.3d 186 (2d Cir. 2019) (holding that “New York law recognizes cross-jurisdictional American Pipe tolling of the statute of limitations for absent class members of a putative class action filed in another jurisdiction; tolling ends, as a matter of law, when there is a clear dismissal of a putative class action, including a dismissal for forum non conveniens, or denial of class certification for any reason; and cross-jurisdictional tolling ended when foreign jurisdiction issued final judgment that unequivocally dismissed foreign class action”)).

  • 129 {129} Cal. Pub. Emps. Ret. Sys. v. ANZ Sec., Inc., ___ U.S. ___, 137 S. Ct. 2042, 2049, 198 L. Ed. 2d 584 (2017).

  • 130 {130} Id. 137 S. Ct. at 2050 (American Pipe tolling does not apply to the statute of repose contained in section 13 of the Securities Act of 1933).

  • 131 {131} Wyser-Pratte Mgmt. Co. v. Telxon Corp., 413 F.3d 553, 567 (6th Cir. 2005).

  • 132 {132} Arnold v. Dirrim, 398 N.E.2d 426, 440 (Ind. Ct. App. 1979) (statute of limitations was tolled from the day the amended class action complaint was filed).

  • 133 {133} Compare State Farm Mut. Auto. Ins. Co. v. Boellstorff, 540 F.3d 1223, 1230 (10th Cir. 2008), In re Hanford Nuclear Reservation Litig., 534 F.3d 986, 1009 (9th Cir. 2008), and In re WorldCom Sec. Litig., 496 F.3d 245, 254–256 (2d Cir. 2007), with Stein v. Regions Morgan Keegan Select High Income Fund, Inc., 821 F.3d 780, 789 (6th Cir. 2016) (citing Wyser-Pratte Mgmt. Co. v. Telxon Corp., 413 F.3d 553 (6th Cir. 2005)).

  • 134 {134} Phipps v. Wal-Mart Stores, Inc., 792 F.3d 637, 650 (6th Cir. 2015) (“When the district court denied class certification . . . , American Pipe tolling ended”); Giovanniello v. ALM Media, L.L.C., 726 F.3d 106, 116 (2d Cir. 2013) (“We now take this opportunity to join our sister circuits and hold that [American Pipe] tolling does not extend beyond the denial of class status.”); Lewis v. Chicago, 702 F.3d 958, 961 (7th Cir. 2012) (“[r]esumption is automatic”); Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 519 (5th Cir. 2008) (“Therefore, it is clear from these cases that if the district court denies class certification under Rule 23, tolling of the statute of limitations ends.”); Bridges v. Dep’t of Md. State Police, 441 F.3d 197, 211 (4th Cir. 2006) (“[T]he statute of limitations ‘remains tolled for all members of the putative class until class certification is denied’ for whatever reason.” (quoting Crown, Cork & Seal v. Parker, 462 U.S. 345, 354, 103 S. Ct. 2392, 76 L. Ed. 2d 628 (1983))); Stone Container Corp. v. United States, 229 F.3d 1345, 1355 (Fed. Cir. 2000) (“[T]olling ends with the district court’s dismissal of the class action.”); Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1378 (11th Cir. 1998) (en banc) (“[W]e hold that the tolling of the statute of limitations ceases when the district court enters an interlocutory order denying class certification.”); Nelson v. County of Allegheny, 60 F.3d 1010, 1013 (3d Cir. 1995) (concluding that “the tolling period ended when the district court denied certification of the class”); Tosti v. City of Los Angeles, 754 F.2d 1485, 1488 (9th Cir. 1985) (“The statute begins running anew from the date of notice that certification has been denied.”); Fernandez v. Chardon, 681 F.2d 42, 48 (1st Cir. 1982) (“[T]he statute will resume running when class certification is denied.”), aff’d sub nom. Cardon v. Fumero Soto, 462 U.S. 650, 103 S. Ct. 2611, 77 L. Ed. 2d 74 (1983).

  • 135 {135} When a class member opts out of a certified class: See, e.g., Realmonte v. Reeves, 169 F.3d 1280, 1284 (10th Cir. 1999) (“[W]e hold that the fact that the Realmontes’ participation in the class action terminated with a decision to opt out of a certified class rather than with the denial of class certification is irrelevant to the applicability of the American Pipe tolling rule.”); Adams Pub. Sch. Dist. v. Asbestos Corp., 7 F.3d 717, 718 n.1 (8th Cir. 1993) (“The fact that this participation ended with a decision to ‘opt out’ rather than with denial of class certification is irrelevant to the applicability of the American Pipe rule.”); Tosti v. City of Los Angeles, 754 F.2d 1485, 1488 (9th Cir. 1985) (“[T]he statute begins running anew from the date when the class member exercises the right to opt out”); Appleton Elec. Co. v. Graves Truck Line, Inc., 635 F.2d 603, 610 (7th Cir. 1980) (“[W]e hold that the statute is tolled as to any particular defendant until such time as he is notified of the suit and chooses to opt out.”).

    When the class component of a suit is voluntarily dismissed: See, e.g., Glidden v. Chromalloy Am. Corp., 808 F.2d 621, 627 (7th Cir. 1986) (“The voluntary dismissal of the class component of a suit also must restart the time.”); Torkie-Tork v. Wyeth, 739 F. Supp. 2d 887, 895 (E.D. Va. 2010) (“Thus, the prior class action suit operated to toll the applicable statute of limitations for the ten-month period between filing and voluntary dismissal.”); Anderberg v. Masonite Corp., 176 F.R.D. 682, 689 (N.D. Ga. 1997) (“[A]lthough the filing of a class action complaint tolls the applicable statute of limitations for absent class members, a voluntary dismissal would start the statute of limitations running again.”).

    When the court dismisses an uncertified class-action suit with or without prejudice: See, e.g., Collins v. Village of Palatine, 875 F.3d 839, 844–45 (7th Cir. 2017).

  • 136 {136} Knauf Insulation, Inc. v. S. Brands, Inc., 820 F.3d 904, 909 (7th Cir. 2016).

  • 137 {137} See Giovanniello v. ALM Media, L.L.C., 726 F.3d 106, 115–116 (2d Cir. 2013); Bridges v. Dep’t of Md. State Police, 441 F.3d 197, 211 (4th Cir. 2006); Yang v. Odom, 392 F.3d 97, 102 (3d Cir. 2004); Stone Container Corp. v. United States, 229 F.3d 1345, 1355–1356 (Fed. Cir. 2000); Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1391 (11th Cir. 1998) (en banc); Calderon v. Presidio Valley Farmers Assoc., 863 F.2d 384 (5th Cir. 1989); Andrews v. Orr, 851 F.2d 146, 149–150 (6th Cir. 1988). Cf. State Farm Mut. Auto. Ins. Co. v. Boellastorff, 540 F.3d 1223 (10th Cir. 2008) (holding that tolling doctrine applies to putative class members who file individual suits prior to resolution of class certification question); In re WorldCom Sec. Litig., 496 F.3d 245 (2d Cir. 2007) (holding that doctrine applies to putative class members who file individual suits prior to resolution of class certification question); Kelly v. Capital One, 717 F. Supp. 805 (E.D. Wis. 2010) (tolling ended when court of appeals announced its decision reversing certification of the class, not when its mandate issued; nor was an order of the district court decertifying class required to end tolling); In re Enron Corp. Sec., 465 F. Supp. 2d 687 (S.D. Tex. 2006) (plaintiffs who opted out prior to decision on class certification forfeited their right to benefits of American Pipe tolling); Coleman v. Gen. Motors Acceptance Corp, 220 F.R.D. 64, 97 (M.D. Tenn. 2004) (after appellate court vacated original grant of class certification and remanded, district court granted second motion for class certification based on amended complaint; court held that statute of limitations remained tolled throughout because class certification “had never been denied”).

  • 138 {138} Taylor v. UPS, Inc., 554 F.3d 510 (5th Cir. 2008) (individual Title VII action). But cf. Odle v. Wal-Mart Stores, Inc., 747 F.3d 315, 322–323 (5th Cir. 2014) (distinguishing Taylor on the facts, finding that Ninth Circuit’s en banc opinion in Dukes was not a “final adverse determination” within the meaning of Taylor, so tolling did not cease as to the putative class member when the mandate issued).

  • 139 {139} In re Vertrue Inc. Mktg. & Sales Practices Litig., 719 F.3d 474, 479 (6th Cir. 2013); Hatfield v. Halifax, P.L.C., 564 F.3d 1177, 1185–1186 (9th Cir. 2009) (tolling continued until the day state appellate court affirmed dismissal of previous putative class action; no decision on class certification had been made). See also Leyse v. Bank of Am., Nat’l Ass’n, 538 Fed. Appx. 156, 162 (3d Cir. 2013) (tolling continued from the date class action was filed until case was administratively closed; fact that case’s status as a putative class action was terminated by administrative closure rather than denial of class certification is irrelevant to whether American Pipe applies).

  • 140 {140} Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S. Ct. 2392, 76 L. Ed. 2d 628 (1983).

  • 141 {141} Id. 462 U.S. at 355 (Powell, J., concurring).

  • 142 {142} Id.

  • 143 {143} See, e.g., Raie v. Cheminova, Inc., 336 F.3d 1278, 1283 (11th Cir. 2003) (tolling of statute for wrongful death claim not appropriate because failed class action asserted only product liability claims: “It is not enough for Appellants to rely on only that ambiguous class definition to support their argument for tolling under American Pipe; they must demonstrate that their wrongful death action was included in the [earlier] class action”); Weston v. AmeriBank, 265 F.3d 366, 367 (6th Cir. 2001) (Truth in Lending Act’s one-year statute of limitation not tolled because prior complaint alleged only state law claims that are “separate and distinct” from TILA claims, and plaintiffs in initial case could not have made TILA claim because statute had run; “the statute of limitations for putative class members of the original class is tolled only for substantive claims that were raised, or could have been raised, in the initial complaint”); Shriners Hosps. for Children v. Qwest Commc’ns Int’l, Inc., 2007 WL 2801494 (D. Colo. Sept. 24, 2007) (state law claims not tolled because there were no state law claims asserted in prior suit, but Securities Exchange Act § 10(b) claim is tolled because it was “based on essentially the same facts” as were asserted in prior suit; “[t]he filing of a putative class action complaint tolls the period of limitation only for claims that are identical to the claims asserted in the putative class action” (citing Johnson v. Ry. Express Agency, 421 U.S. 454, 467 n.14, 95 S. Ct. 1716, 44 L. Ed. 2d 295 (1975))); Stutz v. Minnesota Min. Mfg. Co., 947 F. Supp. 399, 404 n.2 (S.D. Ind. 1996) (“For the legal fiction of tolling to be equitable to the defendant, the claims in both the class action and the individual action must be identical”); Anderson v. Consol-Pennsylvania Coal Co., 740 F. Supp. 1126, 1130 (W.D. Pa. 1990).

  • 144 {144} See, e.g., Cullen v. Margiotta, 811 F.2d 698, 719 (2d Cir. 1987) (even though state law action was based on different legal theory from that in subsequent federal RICO class action, tolling doctrine applied because factual basis of two suits was the same (alleged coercion of contributions from plaintiffs and reprisals against those who refused to contribute) and the witnesses and evidence were the same, and thus defendant was on notice to preserve evidence; “[n]otwithstanding the differences between the legal theories advanced by plaintiffs in the state court action and those advanced in the present action, we are persuaded that the American Pipe doctrine has applicability to the present action”); Tosti v. City of Los Angeles, 754 F.2d 1485, 1489 (9th Cir. 1985) (“We find no persuasive authority for a rule which would require that the individual suit must be identical in every respect to the class suit for the statute to be tolled. Such a rule would be illogical because one of the primary reasons a member will opt out of a class suit is that she has strong individual claims against the defendant that she believes will not be redressed by the overall class settlement.”); Arivella v. Lucent Techs., Inc. 623 F. Supp. 2d 164, 180 (D. Mass. 2009) (“[I]n order to be eligible for American Pipe tolling, the claims of a subsequent plaintiff must be sufficiently similar to the claims brought by the failed class such that the class action effectively put the defendant on notice of the plaintiff’s potential claims . . . The initial . . . complaint, which alleged exactly the types of breach claimed by the instant plaintiffs, plainly put [the defendant] on notice of the potential claims it might have to defend, the factual bases for those claims, and the potential witnesses who might be called. As a result, the plaintiffs are entitled to American Pipe tolling, bringing their claims within ERISA’s statute of limitations and repose.”); In re Enron Corp. Sec. Litig., 465 F. Supp. 2d 687, 718 (S.D. Tex. 2006) (“The majority of courts have followed Justice Powell’s reasoning and concluded that subsequent individual claims, filed after denial of class certification or after granting class certification and opting out, need not be identical to the original class action’s for tolling to apply as long as they share a common factual basis and legal nexus so that the defendant would rely on the same evidence and witnesses in his defense.”); Sellers v. Bragg, 2005 WL 1667406 (N.D. Ill. July 13, 2005) (“For tolling to apply, claims do not have to be identical, but only substantially similar to the putative class claims brought in the original class action.”); In re Worldcom, Inc. Sec. Litig., 308 F. Supp. 2d 214, 235 (S.D.N.Y. 2004) (“Stutz appears to hold that the plaintiff, who had filed an individual time-barred action prior to the decision on class certification, may be able to benefit from American Pipe tolling and bring an individual action if a class is certified to the extent that his claims are ‘identical to those claims in a sustainable class action.’ This Court declines to follow Stutz, which is at odds with the weight of authority on this issue.”); In re Linerboard Antitrust Litig., 223 F.R.D. 335, 351 (E.D. Pa. 2004) (tolling permitted in separate class action brought by members who opted out of initial class action and who also brought new state law claims; state claims met “similarity requirements” of American Pipe case, as “the factual predicates for plaintiff’s federal and state claims are the same”); Wyser-Pratte Mgmt. Co. v. Telxon Corp., 2003 WL 25861087 (N.D. Ohio 2003) (“complete identity of claims” not necessary for class action tolling doctrine to apply; focusing on whether defendants were on “ample notice” by virtue of previously filed class complaint; “ample notice” depends on claims alleged and circumstances of class lawsuit and will be strictly construed to toll only on claims for which defendant clearly had notice; not imputing notice to defendant of any claims that are peripherally or remotely connected to the allegations in class complaint, and only notice of those claims that are central to or derived from claims in the class complaint will be imputed to defendant; considering (1) whether class could have asserted new claim; (2) whether facts, witnesses, and circumstances underlying new claim are the same as those alleged in the class complaint; (3) how similar the legal theories are; (4) whether new claim shifts burden of proof to defendant; and (5) whether there are significantly different affirmative defenses to new claims that were not available for class claims); In re Indep. Serv. Org. Antitrust Litig., 1997 WL 161940 (D. Kan. Mar. 12, 1997) (rejecting argument that class suit must be identical in all respects to individual suit for tolling to apply); Lindner Dividend Fund, Inc. v. Ernst & Young, 880 F. Supp. 49, 54 (D. Mass. 1995) (“While a subsequent individual suit need not necessarily be identical in every respect to an earlier class action for the limitations period to be tolled, the class action suit must give defendant ample notice of plaintiff’s individual claim. Such notice is given when the individual claim involves the same allegations that were made in the class suit.”) (citation omitted); Sinclair Oil Corp. v. Atl. Richfield Co., 720 F. Supp. 894, 914 n.50 (D. Utah 1989) (“The suits do not have to be identical.”); Cowles v. Bank W., 719 N.W.2d 94, 105 (Mich. 2006) (rejecting rule that requires identical claims for tolling to occur under applicable state statute: “Accordingly, a class action complaint tolls the period of limitations for a class member’s claim that arises out of the same factual and legal nexus as long as the defendant has notice of the class member’s claim and the number and generic identities of the potential plaintiffs.”).