Rhonda Wasserman, Tolling: The American Pipe Tolling Rule and Successive Class Actions

58 Fla. L. Rev. 803 (2006) | | | |

ABSTRACT :: Timing is everything. Even the most meritorious lawsuit will be dismissed if the statute of limitations has run on the plaintiff’s claim. In class action litigation, this hurdle is particularly daunting. 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?

Intuitively, one might think that the same policies that justify tolling in the first two situations also justify tolling in the successive class action context. Yet a majority of the federal Courts of Appeals that have addressed this issue have denied tolling in the successive class action context. Given the volume of class action litigation, the lack of control that absent class members have over the timing of the certification decision, and the devastating effect the statute of limitations may have on their claims, it behooves us to understand why the courts have resolved the tolling issue for successive class actions differently and whether such differential treatment is justified.


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 these competing policies calls the majority rule into question in two common circumstances: where certification initially was denied because of a problem with the class representative or because of a problem with the class itself that the successive class action seeks to remedy. Only where there is a problem with the class itself and the successive class action fails to address that problem does the combination of relevant policies counsel against tolling.

“Though rarely the subject of sustained scholarly attention, the law concerning statutes of limitations fairly bristles with subtle, intricate, often misunderstood issues . . . .”

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