Suppose that you have been successful in defeating a proposed class action. The glow of success begins to fade, however, when your client is hit with another putative class action by a member of the first class. Worse yet, that second class claim looks like one that should be barred by the statute of limitations, but the plaintiff argues that the new class claim was tolled while the initial class action was pending. Finally, you learn that the federal courts of appeals have been busy narrowing the general principle that a pending class action only can toll the statute of limitations as to later filed individual claims by allowing, at least in some circumstances, a later filed class claim to benefit from tolling. What happened to my statute of limitations defense and apparent victory? Is there any end to proposed class claims in this life short of a class settlement or a complete victory on the merits?
A recent decision by the United States Court of Appeals for the Eleventh Circuit is especially good news for class action defendants seeking the benefits of the statute of limitations in class actions. The decision, in Ewing Industries Corporation v. Bob Wines Nursery, Inc., et al. (11th Cir., Aug. 3, 2015), takes a strong view that later filed class claims never can benefit from tolling from a previously filed, but denied, class claim. The Eleventh Circuit’s decision is a welcome break for defendants in a trend of decisions taking a weaker view that tolling can be claimed, at least when the first case is dismissed for reasons that were specific to the named class representative, not the class as a whole.
The Contours of American Pipe Tolling
“American Pipe tolling” is the principle (first espoused by the U.S. Supreme Court) that the individual claims of putative class members are tolled until the time that class certification is denied, at which time the statute of limitations of the claims of the putative class members resumes. The Supreme Court reasoned that tolling these individual claims for the period between the filing of the class action and a decision on certification serves to prevent a flood of individual suits by putative class members seeking to preserve their right to sue, which would be unnecessary were the class granted certification. However, courts nationwide have held that American Pipe tolling is inapplicable to subsequently filed class actions based on the same set of substantive facts and claims. Put another way, American Pipe tolling only applies to the claims of putative class members to the extent that they file subsequent individual lawsuits after the denial of class certification.
The Potential Exception to the Ban on Successive Class Actions
These seemingly straightforward principles, however, become muddled when class certification is denied for reasons that relate uniquely to the circumstances of the proposed class representative, a frequent occurrence. A number of courts — including the Third Circuit, Eighth Circuit and Ninth Circuit, as well as district courts within the District of Columbia, the District of Massachusetts, and the Southern and Eastern Districts of New York — have held that putative class members can file a subsequent class action and take advantage of tolling for class claims so long as the prior denial of class certification was based on the inadequacy of the proposed class representatives or on issues that were unique to the proposed representative (e.g., a lack of standing).
Summing up those decisions, one district court stated: “Judges in this district and elsewhere … have held that when class certification is denied solely on the ground that the representative is inadequate, such denial does not — and should not — trigger recommencement of the statute of limitations period. That is because in such cases there is nothing wrong with the class claims, just something inadequate about the lead plaintiff asserting them.” In such jurisdictions, successive — or “stacked” — class actions are permitted to invoke American Pipe tolling to preserve class claims for class members whose claims would otherwise be time barred.
The Eleventh Circuit’s Decision in Ewing Industries Corp. v. Bob Wines Nursery, Inc.
On Aug. 3, 2015, the Eleventh Circuit held in Ewing that a proposed class action accusing a Florida nursery of sending unsolicited faxes did not suspend the statute of limitations for a later filed class action challenging that exact same conduct, despite the fact that the initial class action failed for reasons regarding the named plaintiff’s individual standing, and not due to any broader defect in the proposed class. Even in such circumstances, where the defect precluding the potential for class certification regarded only the named plaintiff, the Eleventh Circuit held that tolling was not available for the subsequent class action. In so doing, the Eleventh Circuit noted the circuit split between its position and the decisions mentioned above, including the decisions of the Third, Eighth and Ninth Circuits.
The Eleventh Circuit based its decision on its 1994 ruling in Griffin v. Singletary, 17 F.3d 356 (11th Cir. 1994), which established the generally applicable rule that a proposed class action does not toll the limitations period under the principles of American Pipe tolling for subsequent class claims that are asserted by members of the original class. The court held that it was bound by that prior ruling, which addressed this precise issue.
On that basis, the Eleventh Circuit held in Ewing: “This case presents the question of whether the pendency of a purported class action tolls 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 the class representative rather than a defect in the class itself. The district court held that the purported class action did not toll the statute of limitations for the later class action. We affirm.”
The court stated that, to reach a contrary decision, would allow plaintiffs to “‘piggyback one class action onto another’ and thereby engage in endless rounds of litigation in the district court and in this Court over the adequacy of successive named plaintiffs to serve as class representatives.” The Eleventh Circuit also affirmed that class action defendants need certainty in determining how to approach class action litigation, and that the endorsement of exceptions to the “piggybacking” prohibition can lead to an endless series of class actions focused on the litigation of ancillary issues. The Eleventh Circuit also noted that the Supreme Court had not recognized such an exception.
The Implications of the Ewing Decision
The Ewing decision creates a further split among courts of appeal regarding the interplay between American Pipe tolling and proposed class actions that are denied due to defects unique to the proposed class representative, and it breaks a trend of cases taking a more expansive view of tolling.
The majority of circuits — such as the Second, Fourth and Fifth — have not specifically reached the issue yet. Therefore, the Eleventh Circuit has handed defendants a strong tool and argument to win the issue in those circuits.
Looking forward, the decision in Ewing will have particular force relative to causes of action that have short statutes of limitation (e.g., the one-year statute of limitations under the federal Fair Debt Collection Practices Act), as well as in cases where the initial proposed class action was pending for a long period of time before certification was denied. In such contexts, the holding of Ewing would serve to preclude the claims of essentially all of the proposed class members. Ewing also counsels litigants to take a hard look at the circumstances of the named plaintiff (and his or her counsel).
That is true with respect to issues of standing, adequacy, and typicality, among many others. Litigants should, therefore, target discovery at such issues. Indeed, based on the decision in Ewing, such challenges, if successful, could have a sweeping practical effect on the ability of the proposed class members to bring future claims against the defendant. Attorneys for class defendants should also advise their clients as to the practical effect of these decisions on their ability to defeat stacked class actions on statute of limitations grounds, and the related effect of that calculus on the litigation strategy for the initial class action.
 See American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974).
 See, e.g., Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir. 1987) (“[T]he tolling doctrine enunciated in American Pipe does not apply to permit a plaintiff to file a subsequent class action following a definitive determination of the inappropriateness of class certification.”); Salazar-Calderon v. Presidio Valley Farmers Ass’n, 765 F.2d 1334, 1351 (5th Cir. 1985) (“Crown’s tolling principle applies, plaintiffs argue, not only for the first class certification petition filed but also for any subsequent petitions involving the same class. We are not persuaded.”); Andrews v. Orr, 851 F.2d 146, 149 (6th Cir. 1988); Robbin v. Fluor Corp., 835 F.2d 213, 214 (9th Cir. 1987).
 Salazar-Calderon, 765 F.2d at 1351 (American Pipe tolling does not apply to permit putative class members to file a subsequent class action).
 See, e.g., Great Plains Trust Co. v. Union Pac. Ry. Co., 492 F.3d 986, 997 (8th Cir. 2007); Yang v. Odom, 392 F.3d 97, 102-108 (3d Cir. 2004); McKowan Lowe & Co., Ltd. v. Jasmine, Ltd., 295 F.3d 380, 384 (3d Cir. 2002) (American Pipe tolling applies to a proposed lead plaintiff in a later class action where the district court had, in a prior class action, declined “to certify a class for reasons unrelated to the appropriateness of the substantive claims for certification.”); Social Servs., Inc. v. I.N.S., 232 F.3d 1139 (9th Cir. 2000) (en banc); Yang v. Odom, 392 F.3d 97, 106 (3d Cir. 2004); see also Alidina v. Penton Media, Inc., 143 F. Supp. 2d 363, 365 (S.D.N.Y. 2001) (“Moreover, while defendants claim that the intervenors’ claims are time-barred because any tolling of the limitations period concluded when Ariff and Swart were disqualified as class representatives, the Court finds that this tolling period continued in effect despite such disqualification. This is because, prior to the application for intervention, Judge Duffy never found class certification inappropriate per se, but rather focused on the inadequacy and atypicality of proposed plaintiffs Ariff and Swart.”); Shields v. Smith, 1992 U.S. Dist. LEXIS 15718, *8 (N.D. Cal. Aug. 14, 1992); Shields v. Washington Bancorporation,1992 U.S. Dist. LEXIS 4177, *1-3 (D.D.C. Apr. 7, 1992); In re Crazy Eddie Sec. Litig., 802 F. Supp. 804, 813 (E.D.N.Y. 1992) (observing, on determining that named plaintiffs of certified class were inadequate, that “a second class action would not be an attempt to relitigate the question of class certification by filing repetitive claims”); Fleming v. Bank of Boston Corp., 127 F.R.D. 30, 35-37 (D. Mass. 1989).
 In re Nat’l Austl. Bank Sec. Litig., 2006 U.S. Dist. LEXIS 94163, at *16-17 (S.D.N.Y. Nov. 8, 2006) (internal citations omitted).
 Ewing Indus. Corp. v. Bob Wines Nursery, Inc., No. 14-13842, slip op. at 8 (11th Cir., Aug. 3, 2015).
 See generally id.