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Highlight Updates When Does American Pipe Tolling Apply to Subsequent Class Actions?

Apart from the issue of whether the claims in a preceding class action are sufficiently similar to invoke American Pipe tolling,115 there is a split of authority at both the federal circuit and state court levels as to whether subsequent class claims can ever receive the benefit of American Pipe tolling. Some federal circuits have found it applicable.116 A number of other courts have withheld the benefit of American Pipe tolling for subsequent class claims under the circumstances presented in those cases.117

There also is a split of authority as to whether tolling of the statute of limitations applies to opt-in class actions.118

Courts differ on whether American Pipe established a legal or equitable tolling doctrine.119 Some states with equitable tolling doctrines may recognize a prior putative class action as tolling the statute for a subsequent state class.120 Others have declined to do so.121

Although equitable and legal tolling often are used interchangeably, they “are not congruent.”122 A majority of states have adopted a rule allowing equitable tolling during the pendency of a class action in their own courts.123 Quite a few state courts also have held that the filing of a class action in a federal court within the state tolls the statute of limitations for the state court action, while others disagree.124 An argument for tolling based on a filing in another state is less likely to succeed.125


  • 115 {108} See §, supra.

  • 116 {109} In re Vertrue Inc. Mktg. & Sales Practices Litig., 719 F.3d 474, 479 (6th Cir. 2013) (American Pipe applied to allow unnamed class members to bring claims in subsequent multidistrict litigation (MDL) proceeding against same defendants, when no court had ever decided motion for class certification, and there was no risk of repetitive and indefinite class action lawsuits addressing same claims; distinguishing its prior decision in Andrews v. Orr, 851 F.2d 146, 149 (6th Cir. 1988), because in Andrews class certification had already been denied, noting that “the risk motivating [its] decision in Andrews—namely, repetitive and indefinite class action lawsuits addressing the same claims—is simply not present here”); Sawyer v. Atlas Heating & Sheet Metal Works, Inc., 642 F.3d 560, 564 (7th Cir. 2011) (tolling applies when certification was denied in prior suit based on lead plaintiff having abandoned suit prior to decision on class certification; recognizing general rule that tolling applies when class certification failed due to plaintiff’s deficiencies as class representative, but tolling does not apply when certification was denied based on deficiencies in purported class itself); Yang v. Odom, 392 F.3d 97 (3d Cir. 2004) (tolling applies when certification was denied due to plaintiff’s deficiencies as class representative, but tolling does not apply when certification was denied based on deficiencies in purported class itself, such as lack of numerosity); Catholic Social Services Inc. v. INS, 232 F.3d 1139, 1147 (9th Cir. 2000) (en banc) (plaintiffs’ class claims for certification of a subsequent class tolled because of earlier certified class action that was dismissed due to a statutory change); Searcy v. eFunds Corp., 2010 WL 1337684, at *4 (N.D. Ill. Mar. 31, 2010) (following reasoning of Yang and applying American Pipe tolling to find timely the claims of a new class representative who was substituted for one lacking standing to assert a particular claim on behalf of class; also finding tolling applicable based on a parallel class action that had been filed and voluntarily dismissed in another court). Cf. McKowan Lowe & Co., Ltd. v. Jasmine, Ltd., 295 F.3d 380 (3d Cir. 2002) (class claims of intervening class members are tolled if district court declines to certify class for reasons unrelated to appropriateness of substantive claims for certification); Gomez v. St. Vincent Health, Inc., 622 F. Supp. 2d 710 (S.D. Ind. 2008) (second attempt at certification of class was not per se barred by statute of limitations when certification was previously denied because named representatives’ claims were atypical and counsel was inadequate, thus extending Yang reasoning to mixed reasons for denial; however, in a later opinion, 2009 WL 1853120 (S.D. Ind. June 25, 2009), denying certification in part on the ground that the same counsel had been found inadequate previously and in part because case was seen as seeking in effect collateral review of a previous judge’s 2007 denial of class certification in a case raising the same claims, in lieu of having sought appellate review).

  • 117 {110} See, e.g., Ewing Industries Corp. v. Bob Wines Nursery, Inc., 795 F.3d 1324 (11th Cir. 2015) (affirming and applying Griffin, and expressly rejecting the holding in Sawyer; holding that the pendency of a prior putative class action does not toll statute of limitations for a later class action seeking to represent same class, even though original purported class action was dismissed due to inadequacy of class representative rather than a defect in class itself), available online as companion material to this treatise; Basch v. Ground Round, Inc., 139 F.3d 6, 12 (1st Cir. 1998) (rejecting stacking of successive class actions; “[a]fter class certification has been denied in an action, potential individual plaintiffs cannot extend that limitations period by relying on successive class actions which allege the same class and the same claims”); Andrews v. Orr, 851 F.2d 146, 149 (6th Cir. 1988) (once class certification has been denied, although putative class members may file individual suits or intervene as plaintiffs in pending litigation, they may not take advantage of American Pipe tolling rule to file additional class suits) (emphasis added); Robbin v. Fluor Corp., 835 F.2d 213 (9th Cir. 1987) (no tolling for subsequent class claim); Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir. 1987) (no tolling for second action nearly identical in scope to original class action that was denied certification); Salazar-Calderon v. Presidio Valley Farmers Ass’n., 765 F.2d 1334, 1351 (5th Cir. 1985) (tolling did not apply to permit putative class members to file subsequent class action after denial of class certification in first action because of defects in the purported class).

  • 118 {111} Compare Grayson v. K Mart Corp., 79 F.3d 1086, 1105 (11th Cir. 1996) (finding in an ADEA case that tolling does not apply because “opt-in plaintiffs commence an ADEA civil action, not when the Complaint is filed, but when the putative plaintiff files a written consent to opt into the class action”), with Sperling v. Hoffmann-La Roche, Inc., 24 F.3d 463, 471 (3d Cir. 1994) (tolling does apply in an ADEA opt-in case), and Bright v. United States, 603 F.3d 1273, 1290 n.9 (Fed. Cir. 2010) (tolling applies in case brought under Tucker Act, 28 U.S.C. § 1491(a)(1), at least when class certification is sought prior to expiration of limitations period).

  • 119 {112} Police & Fire Ret. Sys. of City of Detroit v. IndyMac MBS, Inc., 721 F.3d 95, 108 (2d Cir. 2013) (collecting cases on both sides of the question); Albano v. Shea Homes Ltd. P’ship, 634 F.3d 524, 535 (9th Cir. 2011) (“Among the issues on which there is no consensus is whether American Pipe tolling should be characterized as a legal tolling doctrine or as an equitable one.”).

  • 120 {113} Hatfield v. Halifax, P.L.C., 564 F.3d 1177, 1186–1187 (9th Cir. 2009) (under the California equitable tolling doctrine, pendency of a previous putative class action in New Jersey tolled the statute with respect to California residents only). But see In re Crazy Eddie Securities Litig., 802 F. Supp. 804, 813 (E.D.N.Y. 1992); Schur v. Friedman & Shaftan, P.C., 123 F.R.D. 611, 613 (N.D. Cal. 1988); In re Quarterdeck Office Sys., Inc., 1994 WL 374452, at *4 (C.D. Cal. Mar. 24, 1994).

  • 121 See, e.g., Anderson v. Michaels Stores Inc., 655 Fed. Appx. 573, 574 (9th Cir. 2016) (refusing to import “piggyback” limitation tolling doctrine into California state law, even though California has adopted American Pipe tolling doctrine, at least when it is supported by policy considerations, see Perkin v. San Diego Gas & Elec. Co., 170 Cal. Rptr. 3d 335 (Cal. Ct. App. 2014)).

  • 122 {114} Hatfield v. Halifax, P.L.C., 564 F.3d 1177, 1188 (9th Cir. 2009).

    The three factors controlling the application of the equitable tolling doctrine under California law are discussed in Hatfield, 564 F.3d at 1185.

  • 123 {115} For a collection of these cases, see Tigg v. Pirelli Tire Corp., 232 S.W.3d 28 (Tenn. 2007). But cf. Thomas v. U.S. Bank, N.A., N.D., 789 F.3d 900 (8th Cir. 2015) (holding that, when Missouri legislature has not authorized equitable tolling with regards to class actions, a prior state court action based on same claims subsequently asserted in federal court by a different set of claimants did not toll applicable statute of limitations), available online as companion material to this treatise.

  • 124 {116} Compare Lee v. Grand Rapids Bd. of Educ., 384 N.W.2d 165 (Mich. Ct. App. 1986) (filing of federal action tolled operation of statute of limitations as to state law employment discrimination claims), Staub v. Eastman Kodak Co., 726 A.2d 955, 965–967 (N.J. Super. Ct. App. Div. 1999) (statute of limitations was tolled from date that putative class action against same defendants was filed in federal court until the date that motion for certification of classes was denied), and Vaccariello v. Smith & Nephew Richards, Inc., 763 N.E.2d 160 (Ohio 2002) (the filing of a class action, whether in Ohio or the federal court system, tolls statute of limitations as to all asserted members of class who would have been parties had suit been permitted to continue as class action), with Wade v. Danek Med., Inc., 182 F.3d 281 (4th Cir. 1999) (applying Virginia law in products liability case and concluding that Virginia would not adopt cross-jurisdictional equitable tolling so as to toll limitations during pendency of class action filed in federal court of another jurisdiction), and Portwood v. Ford Motor Co., 701 N.E.2d 1102 (Ill. 1998) (filing of class action in federal court did not toll Illinois statute of limitations in Illinois courts)

  • 125 {117} Ravitch v. PriceWaterhouse, 793 A.2d 939 (Pa. Super. Ct. 2002) (limitation periods on investor’s actions were not tolled by a prior class action filed in state court in New York by other investors). But see Hatfield v. Halifax, P.L.C., 564 F.3d 1177 (9th Cir. 2009) (applying California law and holding that prior putative nationwide class action in New Jersey courts equitably tolled limitations period for California residents only; New Jersey court had dismissed the action as to all non-resident plaintiffs).