July 31, 2017 Articles

Three Circuits Say Shady Grove Requires American Pipe Tolling for Serial Class Actions: Are They Right?

By Brian Troyer

For more than 30 years, it has been settled that filing a putative class action tolls the statute of limitations for putative absent class members’ individual claims. See Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983); Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974). With some exceptions, however, courts did not extend tolling to repeated attempts at class certification. See, e.g., Ewing Indus. Corp. v. Bob Wines Nursery, Inc., 795 F.3d 1324 (11th Cir. 2015); Basch v. Ground Round, Inc., 139 F.3d 6 (1st Cir. 1998); Griffin v. Singletary, 17 F.3d 356 (11th Cir. 1994).

That has changed. Since 2011, three U.S. courts of appeals have held that American Pipe tolling applies to subsequent putative class claims the same way it applies to individual claims: Resh v. China Agritech, Inc., 2017 U.S. App. LEXIS 9029 (9th Cir. May 24, 2017), Phipps v. Wal-Mart Stores, Inc., 792 F.3d 637, 652 (6th Cir. 2015), and Sawyer v. Atlas Heating & Sheet Metal Works, Inc., 642 F.3d 560 (7th Cir. 2011). These courts interpreted earlier cases as disallowing subsequent class actions on preclusion rather than tolling grounds. In effect, these courts treat Amerian Pipe tolling as indivisible: If a court determines that a new plaintiff’s individual claim is timely filed, the statute of limitations cannot prevent certification of a class.

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