In Ewing Indus. Corp. v. Bob Wines Nursery, Inc., a decision issued on August 3, 2015, an Eleventh Circuit panel held that a purported class action does not toll the statute of limitations for a later class action seeking to represent the same class when the original purported class action was dismissed due to the inadequacy of a class representative, regardless of whether the determination of inadequacy occurs before or as part of a decision on class certification. The panel rejected the plaintiff’s attempt to distinguish its decision in Griffin v. Singletary, 17 F.3d 356 (11th Cir. 1994) (Griffin II), and held that Griffin II controlled the instant case.
Ewing arose after Aero Financial, Inc. filed a class action in Florida state court against defendants Bob Wines Nursery, Inc. and Robert L. Wines, Jr. asserting that the defendants violated the Telephone Consumer Protection Act by sending unsolicited facsimile advertisements to the putative class. The claims were governed by a four-year statute of limitations, and Aero brought suit in 2010, just over three years after the alleged conduct. In 2013, the Florida state court granted summary judgment in favor of the defendants, holding that Aero lacked standing to bring the claim and that the attempted assignment of the claims to Aero was invalid. The court did not rule on the issue of class certification.
One week later, Ewing Industries Corporation filed a similar class complaint against the defendants in federal court. Ewing’s complaint alleged that the statute of limitations was tolled during the pendency of Aero’s purported class action. The defendants moved to strike the class allegations as being barred by the statute of limitations. The district court, relying on Griffin II, granted the defendants’ motion and concluded that Aero’s purported class action did not toll the statute of limitations.
On appeal, Ewing argued that Griffin II was distinguishable, because in that case, the original purported class reached the class certification stage and was decertified on appeal based on the inadequacy of the class representatives. Ewing admitted that a purported class action that reaches the class certification stage, and class certification is denied, does not toll the statute of limitations for a subsequent class action. Ewing argued, however, that where the class action does not reach the class certification stage and fails due to inadequacy of a class representative, rather than a defect in the class itself, the statute of limitations should be tolled.
The defendants argued, and the Eleventh Circuit panel agreed, that Griffin II addressed an identical issue: “the potential for multiple rounds of litigation as the class seeks an adequate class representative.” The Ewing court noted that the reason for decertification of the original purported class in Griffin II was the inadequacy of the class representatives, not a defect in the class itself. Therefore, the court found Griffin II was indistinguishable and, thus, controlled the instant case.
The Ewing court acknowledged that several other circuits have distinguished, criticized, or declined to follow Griffin II. In re Vertrue Inc. Mktg. & Sales Practices Litig., 719 F.3d 474 (6th Cir. 2013); Sawyer v. Atlas Hearing & Sheet Metal Works, Inc., 642 F.3d 560 (7th Cir. 2011); Great Plains Trust Co. v. Union Pac. Ry. Co., 492 F.3d 986 (8th Cir. 2007); Yang v. Odom, 392 F.3d 97 (3d Cir. 2004); Catholic Soc. Servs., Inc. v. I.N.S., 232 F.3d 1139 (9th Cir. 2000) (en banc). The Ewing court disagreed with the courts that distinguished Griffin II from facts such as those in the present case. The court, however, noted that the merits of the Griffin II holding were not before it because, under the prior precedent rule, a panel may not overrule a prior panel decision.
Though the Ewing court did not rule on the merits of the Griffin II decision, it did highlight the rigidity of the Eleventh Circuit’s rule on tolling for purported class actions that fail based on the inadequacy of a class representative and identify an important circuit court split that practitioners on both sides should take into account when developing their case strategy.