Tolling: The American Pipe Tolling Rule and Successive Class Actions
Supreme Court precedent makes clear that if a class action complaint is timely filed, then the claims of all class members are deemed timely. Likewise, if a motion to certify the class is denied, absent class members may seek to intervene in the pending action or to file individual actions; and either way, the statute of limitations is tolled from the date of filing of the class action complaint until denial of the motion to certify. But what if the absent class members seek to present their claims collectively in the context of a successive class action? Is the statute of limitations tolled in this context as well?
One might think that if the statute of limitations is tolled for the benefit of intervenors and those who file individually, then it also will be tolled in the successive class action context. But, in fact, a majority of the federal courts of appeals to have addressed this issue have concluded that the statute of limitations should not be tolled in the successive class action context.
This article analyzes three sets of policies that have influenced the courts in this context: the policies underlying statutes of limitations; the policies underlying Rule 23; and the policies underlying preclusion doctrine. A careful analysis of the various competing policies at play calls the majority rule into question in at least two common circumstances:
First, the statute of limitations typically should be tolled where certification initially was denied because of a problem with the class representative and a new plaintiff who does not suffer from that problem commences the successive class action.
Second, the statute of limitations typically should be tolled where certification initially was denied because of a problem with the class itself and the successive class action seeks to remedy that problem.
Only where there is a problem with the class itself and the successive class action fails to address that problem do the combination of relevant policies counsel against tolling. Even in this situation, it might be the better course for courts to address directly any perceived limitations in preclusion doctrine itself rather than to tinker with tolling rules in an effort to further the policies underlying preclusion doctrine.