Class Action Tolling Issues: Untangling Which Class Claims May Survive Following Dismissal or Denial of Class Certification

In the time it takes federal courts to decide class certification, the claims of absent class members could expire. To remedy that situation, the U.S. Supreme Court held that statutes of limitations for putative class members’ claims generally are tolled from the filing of the putative federal class action until the case is dismissed or class certification is denied. The statute of limitations then generally starts up again for putative class members, who may attempt to proceed with their own individual cases or intervene in the case to preserve their claims This doctrine is referred to as the “American Pipe” doctrine, and the U.S. Supreme Court has continued to elaborate on it over the last 50 years, including in its recent China Agritech case. American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974); China Agritech Inc. v. Resh, 138 S. Ct. 1800 (2018).  Many states have similar tolling doctrines.

Nonetheless, many issues remain unresolved, and application of the American Pipe doctrine has proved complicated in practice. For example, state tolling rules, cross-jurisdictional tolling, and conflicts-of-laws issues also affect and complicate the continued viability of potential claims. Recently courts have had to consider what happens when, instead of denying certification, the court does something else, like narrows the class to exclude certain class members or transfers the proposed class action into an MDL. Can excluded class members rely on tolling at all, and if so, for how long? What if the narrowed class definition is ambiguous? Does American Pipe apply if the class action is abandoned? Does American Pipe tolling apply before the court has issued a class certification decision? What happens when the case starts in state court, but a putative class member seeks to file a federal class action? How far does China Agritech’s limit on American Pipe tolling to subsequent individual actions extend? Will state courts recognize tolling of claims from federal cases, and vice versa? Can a putative class member whose claim is subject to arbitration invoke tolling?

Listen as this panel of experienced class action counsel discusses whether absent class members whose claims may have expired while a class action was pending can refile their claims in another court, how lower courts interpret the fundamental Supreme Court tolling decisions, state law, cross-jurisdictional tolling, and state-specific saving statutes--all of which are in flux.

I. Overview of federal class action tolling

II. Identifying which claims are and are not tolled by filing of class action

III. Tolling effect of class actions when multiple state law and federal claims are asserted in the class action

IV. Effect of no certification, obviously defective class actions, decertification, narrowed class definition

V. Application of tolling to statutes of repose

The panel will review these and other pivotal issues:

• What is the scope of American Pipe tolling?
• How have state courts handled tolling issues?
• How do cross-jurisdictional tolling rules affect the analysis? What are the best strategies for plaintiffs and defendants?