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.