American Pipe? No Cigar: Third Circuit Rejects Tolling for Claims of Named PlaintiffsEarlier this year, the Supreme Court in China Agritech Inc. v. Resh conclusively established that equitable tolling of the statute of limitations for putative class members – known as American Pipe tolling – applies only to class members’ individual claims, and not to later-filed class claims (sometimes referred to as “piggyback” class actions). (We discussed China Agritech and its import in a previous blog post.) Last week, the Third Circuit applied China Agritech and upheld the dismissal of an attempted piggyback class claim in Weitzner v. Sanofi Pasteur, Inc. Of interest, the court also rejected a novel argument advanced by the plaintiffs: that American Pipe tolling can be used to save otherwise time-barred claims by plaintiffs who were named plaintiffs in a previous failed class action.

Weitzner involved a Pennsylvania physician and his wholly owned professional corporation, which were sent two unsolicited faxes in 2004 and 2005. The physician filed a state court class action alleging violation of the Telephone Consumer Protection Act (TCPA); the state court denied class certification in 2008. Rather than continue to pursue his individual claim in state court (a claim that apparently was never finally dismissed), Dr. Weitzner and his P.C. instead filed a TCPA class action in federal court in 2011 against the same defendants and involving the same unsolicited faxes. Recognizing that plaintiffs’ claims were time-barred unless American Pipe tolling applied, the district court granted summary judgment for defendants on limitations grounds, and plaintiffs appealed.

The Third Circuit held that China Agritech foreclosed any argument that the statute of limitations could be tolled as to plaintiffs’ class claims and that summary judgment was properly granted as to those claims. China Agritech requires this result, but we remain gratified that the Supreme Court’s clear rule applies even in courts (such as the Third Circuit) that had allowed piggyback class actions prior to China Agritech.

In light of prior jurisprudence, the Third Circuit’s additional holding is also noteworthy. The court rejected plaintiffs’ arguments that the statute of limitations could be tolled for Dr. Weitzner’s and his P.C.’s individual claims. The court acknowledged that certain language from American Pipe arguably supported plaintiffs’ position. After all, Weitzner and his P.C. were putative class members in the state court class action, and American Pipe ostensibly applies to “all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” Despite this broad language, the court recognized that applying tolling to a named plaintiff served neither of the rationales for the American Pipe rule, efficiency and protection of the interests of unknowing class members. In the end, the court held, tolling the statute of limitations for a named plaintiff – who had already asserted his claim, and could have pursued it in the earlier litigation – “serves no legitimate purpose.” As for the P.C., the Third Circuit noted that the doctor was its sole shareholder, and held that it was “not the type of unaware, absent class member American Pipe was designed to protect.”

Standing alone, Weitzner can be seen as an unremarkable case: How many plaintiff’s lawyers would try to argue with a straight face that asserting claims on a class basis tolls the statute of limitations and allows for the reassertion of those same claims by the same named plaintiff individually in another case? Still, seeking a second bite at the apple in a different court is far from unheard of, and this argument – illogical as it seems – has been made before.

Even beyond the specifics of the arguments and holdings of Weitzner, the early impact of China Agritech is positive. The Third Circuit got the Supreme Court’s message and quite rightly declined the invitation to expand American Pipe far beyond its original purpose and rationale. We are optimistic that further creative adventures in class action equitable tolling will receive similar treatment in other courts.

Supreme Court puts Kibosh on Piggybacked Class ActionsThe Supreme Court’s decision in China Agritech Inc. v. Resh means that class action plaintiffs can no longer rely on serial class actions to toll their statute of limitations indefinitely. Instead, the Supreme Court held that the judicially created rule which tolls the statute of limitations for putative class members—called American Pipe tolling—applies to individual claims only, and it only lasts until class certification is denied. This ruling is great news for class action defendants.

We blogged about the importance of this case last year, but here is a refresher on the background. American Pipe tolling allows individuals who fall within the definition of a proposed class action to wait until a court decides whether to certify the class before filing individual claims. This judge-made doctrine serves judicial economy: Class actions exist to litigate a multitude of claims in one action. If absent class members’ limitations periods were not tolled, those absent class members would face a dilemma: Either get in the game and file a lawsuit, or sit on the sidelines and bet that the class will be certified. The first choice encourages needless, duplicative lawsuits, which is wasteful and burdensome for defendants. (Defending a class action is a heavy load.  Defending a class action and a slew of individual cases is worse.) The second choice could cause potentially meritorious claims to expire while the class member waits on the result of a class certification decision the class member does not control, which is unfair. American Pipe tolling avoids the dilemma by tolling the class members’ limitations period until class certification is denied. It is a clumsy judge-made solution with no basis in the text of the rule, but it addresses a practical problem.

As often happens with clumsy solutions, however, fixing one problem created more problems. If, as some circuits held, American Pipe tolling applied to class claims in addition to individual claims, the balance struck by the rule collapses: As soon as class certification is denied, another class representative could file suit elsewhere proposing to certify a new class (or the same class), which would keep the tolling rolling. This process potentially could continue forever, until the plaintiffs found a receptive judge to certify the class.

Most circuits—including the Second, Fifth, and Eleventh—limited American Pipe tolling to individual claims. But other circuits—such as the Ninth, where China Agritech arose—allowed continuous, indefinite tolling from piggybacked class actions. The Supreme Court took the case to resolve the split, and did so decisively with a welcome, bright-line rule.

China Agritech holds that  American Pipe tolling applies to individual claims only, full stop.  Justice Ginsburg’s opinion focuses on efficiency: Plaintiffs who intend to file a class action must file within the original limitations period, and courts should rule on class certification quickly.  This rule encourages early filings, and Justice Ginsburg seemed to contemplate an almost Darwinian process where the better class representatives with better counsel and better-pleaded complaints (or perhaps the more strategic choice of forum) would be the ones whose claims would have the best chance to be certified. The majority rejected Justice Sotomayor’s suggestion in her concurrence that American Pipe tolling should apply to class claims if class certification were denied because of some problem with the class representative (such as poorly trained class counsel or an indifferent, lazy or otherwise inadequate class representative). No matter the reason for the denial of class certification, there is no statute of limitations tolling for subsequent class claims.

What does this mean?  Four things stand out to us:

Many companies’ exposure just went down. Defendants in California or those facing stale claims or claims with relatively short statutes of limitations will face fewer claims going forward.  The retroactive effect of this decision could perhaps still be litigated, but China Agritech immediately helps extinguish stale claims.

Get ready for competing class actions. We expect plaintiffs will heed the Supreme Court’s admonition and file their class claims sooner. While the ultimate number of class filings may not increase, those filings will become more front-loaded, and companies may face more of them at the same time. Again, the Supreme Court was aware of this incentive, and it expressed faith in lower courts’ abilities to use available procedures to consolidate, stay, or otherwise manage these cases. If we had to pick out two likely trends to watch here, look for a yet-further uptick in the use of multidistrict litigation and for more robust application of the first-to-file rule. For a more in-depth look, we dedicated a three-part series to handling competing class actions last year; you can find them here: part one, part two, and part three.

Where there are no competing class actions, the value of individual settlements just went up. When faced with a lone class action on a given claim, the expiration of the statute of limitations becomes a very important date. As it approaches (and especially after it passes), defendants have an incentive to pay a premium for an individual settlement with the named plaintiff because doing so extinguishes class risk on the claim.

Disaster avoided. Lastly, China Agritech is not a landmark case because most circuits already applied American Pipe tolling to individual claims only. But had the case come out the other way, making piggybacked class actions the law of the land, then a multitude of expired class claims could have been revived and companies would be scrambling today. Even though this case came out the right way, we recognize again that the Supreme Court probably plays an outsized role in making class action doctrine, and that role creates uncertainty. Creating and defining a tolling doctrine should be legislative work.

A Look Back at Significant Developments in Class Action Law in 2017From the standpoint of class action practice, 2017 was as important for what did not happen as for what did.  Here are some of the highlights and lowlights of the 2017 class action scorecard, with a look forward to how the impact of some of those developments may be felt in 2018.

A brave new world for personal jurisdiction

If you got out of law school more than a decade or so ago, most of what you learned about personal jurisdiction is now obsolete.  The once determinative “minimum contacts” analysis has now all but gone the way of the human tail. Whatever remains of it is fairly insignificant at this point.  What matters now is the “general” versus “specific” jurisdiction dichotomy. In simplified terms, to the extent the defendant is being sued specifically for sales or other conduct in the forum state, specific jurisdiction perhaps attaches. Otherwise, the defendant is likely subject to suit only where it is incorporated or has its principal place of business.  This lesson was driven home in Bristol-Myers Squibb v. Superior Court of California, San Francisco County, 582 U.S. ___ (2017), where a large number of nonresident plaintiffs joined a large number of resident plaintiffs in a mass action alleging tort claims associated with the drug Plavix.  In an 8-1 decision, the Supreme Court ruled as a matter of substantive due process that there was personal jurisdiction over BSM only as to the claims of the resident plaintiffs.  The prevailing wisdom, and the view of a majority of courts to address the issue since this decision came down, is that the same analysis applies to class actions (e.g., LDGP, LLC v. Cynosure, Inc., Case No. 15 C 50148 (N.D. Ill. Jan. 16, 2018); McDonnell v. Nature’s Way Prods., LLC, No. 16-cv-5011 (N.D. Ill. Oct. 26, 2017); Spratley v. FCA US LLC, No. 3:17-cv-62 (N.D.N.Y. Sept. 12, 2017); In re Dental Supplies Antitrust Litig., No. 16-cv-696 (E.D.N.Y. Sept. 20, 2017); Plumbers’ Local Union No. 690 Health Plan v. Apotex Corp., No. 16-cv-665 (E.D. Pa. July 24, 2017); Jordan v. Bayer Corp., No. 4:17-cv-865 (E.D. Mo. July 14, 2017)).  The effective result would seem to be that a corporation can now be subjected to nationwide class certification only in its home states.  Smart corporations now domiciled in class-friendly jurisdictions will now therefore evaluate whether there is reason to relocate their domicile and principal place of business to more defendant-friendly jurisdictions.

Spokeo produces mixed results for subject matter jurisdiction in statutory damages class actions

It has been more than a year and a half since the Supreme Court handed down its landmark Spokeo, Inc. v. Robins, 578 U.S. ___ (2016) decision, which made clear that Article III requires all plaintiffs to have suffered a “concrete” injury to bring suit in federal court.  Unfortunately, in that time, Spokeo has not become the statutory class action panacea that the defense bar hoped for—and, as we documented in a previous blog post, lower courts attempting to apply Spokeo have done so in often confusing and inconsistent ways.  Spokeo’s application to claims brought under some of the most frequently sued-under federal consumer protection statutes provide a good illustration of this.  For example, courts have reached mixed results when it comes to applying Spokeo to alleged FDCPA violations.  Mere technical timing FDCPA violations, such as a slight delay in sending a required notice that does not result in any prejudice, are almost certainly insufficient to confer Article III standing.  But the outright denial of information may be sufficient, even where there are no allegations that the denial caused any real harm.  Or maybe not.

Alleged FACTA violations have also generated mixed results, including divergent views on whether printing a credit card expiration date is alone sufficient to confer Article III standing (compare Meyers v. Nicolet Rest. Of De Pere, LLC, 843 F.3d 724 (7th Cir. 2016) with Deschaaf v. Am. Valet & Limousine Inc., 234 F. Supp. 3d 964 (D. Ariz. 2017)).  And perhaps most confused is how courts have applied Spokeo to FCRA claims.  For example, in Dreher v. Experian Information Solutions, Inc., the Fourth Circuit held that the failure to provide the sources of credit information on the plaintiff’s credit report was not, by itself, a sufficiently concrete harm to confer Article III standing; a plaintiff must show that the denial of information has caused him “‘real’ harm with an adverse effect.”  In sharp contrast, in In re Horizon Healthcare Services Inc. Data Breach Litigation, the Third Circuit refused to require any showing of harm or a material risk of harm from an alleged FCRA violation, holding instead that in creating a private right of action to enforce the FCRA, Congress demonstrated its judgment that any “violation of FCRA causes a concrete harm to consumers.”  The only relative consistency:  TCPA violations—which generally result in the plaintiff’s phone line being tied up and ink and paper being used—are almost always sufficient to confer Article III standing.

Unfortunately, it doesn’t look like the Supreme Court will provide additional guidance any time soon about how to determine whether an alleged statutory violation has resulted in a sufficiently “concrete” injury for Article III standing purposes.  Earlier this week, the Court denied the Spokeo defendants’ cert petition, which had sought review of the Ninth Circuit’s decision on remand that the plaintiff’s alleged injury in that case—dissemination of false credit information that may have actually improved the plaintiff’s credit score—was sufficient to confer standing under Article III.

The Circuit split over ascertainability gets even deeper

2017 saw the Ninth Circuit join the Sixth, Seventh, and Eighth Circuits in rejecting the (until recently) long-settled notion that Rule 23’s “numerosity” requirement implicitly contains a requirement that the class be ascertainable in an administratively feasible way before a class can be certified.  To varying degrees, these courts endorse concepts like “fluid recovery” and self-identification through affidavits in addition to finding that Rule 23 does not require that the actual class member be known before proceeding past certification to the merits.  This of course presents all sorts of due process concerns for class defendants, who protest the unfair settlement pressure, one-way res judicata effect, and due process problems associated with kicking the class member identification problem to the very end of the class litigation timeline.  The Second, Third, and Eleventh Circuits all still require some meaningful degree of ascertainability.  This is an issue class defendants will want to be sure to preserve if they find themselves in a jurisdiction hostile to the ascertainability requirement.  Class defendants in jurisdictions hostile to an ascertainability requirement will also want to recast any ascertainability problem as one of commonality, predominance, and/or superiority.

American Pipe re-fitting

In a pair of cases, the Supreme Court used 2017 to answer some long unsettled questions relating to class action tolling under American Pipe and Construction Co. v. Utah, 414 U.S. 538 (1974), and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983).  The American Pipe rule generally holds that the statute of limitations is tolled for the claims of class members during the pendency of a class action until certification is denied or abandoned.  In California Public Employees’ Retirement System v. ANZ Securities, Inc., et al., 137 S. Ct. 2042 (2017), the Supreme Court held that there is no such tolling with regard to rules of repose, and in China Agritech, Inc. v. Resh, Dkt. No. 17-432, it granted cert to resolve a circuit split over whether such tolling applies only to subsequent individual claims by class members or also to successive class actions by class members.

The Congressional Review Act trumps the CFPB’s effort to prevent financial institutions from utilizing class waivers

In 2017, the CFPB finally made good on its threat to ban financial entities from utilizing arbitration clauses with class waivers to avoid or limit class actions. A few weeks later, both houses of Congress invoked the Congressional Review Act to nullify this CFPB rule.  President Trump then signed the nullification resolution, which under the CRA has the effect of prohibiting the CFPB from attempting any similar rule again.  Bradley’s Class Action team chair Mike Pennington was a principal author of DRI’s written comments opposing the CFPB rule.

New amendments to Rule 23 proposed to become effective in December 2018

In 2017, a set of settlement-related amendments to Rule 23 were formally set in motion, on a track likely to make them effective this December. The amendments front-load the evidentiary proof and modernize the notice and objection procedures necessary to achieve so-called “preliminary approval” and “final approval” of a class settlement. On behalf of DRI, Bradley’s Class Action team members Mike Pennington (whose hearing transcript is available here), Scott Smith, and John Parker Sweeney all submitted written comments and testified in public hearings before the Advisory Committee on Civil Rules and its Rule 23 Subcommittee regarding these and other proposed amendments to Rule 23.

SCOTUS holds that voluntary dismissal cannot be used as a tool to seek mandatory appellate review of class certification denials

In Microsoft v. Baker, a unanimous Supreme Court closed a loophole recognized in some circuits that permitted class action plaintiffs to seek immediate appellate review of an adverse class certification decision by voluntarily dismissing their claims with prejudice.  The practical effect of the Court’s ruling is that class action plaintiffs no longer have a mechanism for seeking immediate mandatory appellate review of class certification denials.  Instead, to obtain interlocutory review, plaintiffs must rely on either Rule 23(f), 28 U.S.C. § 1292(b), or a writ of mandamus, all of which give circuit courts discretion on whether to hear an appeal.

Judge Posner retires after nearly 40 influential years on the bench

Arguably the country’s most influential non-Supreme Court jurist ever, Judge Richard Posner retired abruptly from the Seventh Circuit in September 2017.  During his nearly 40 years on the bench, he had tremendous impact in shaping legal views and discourse on a host of issues.  Rule 23 was no exception, as Judge Posner’s views on the appropriateness of class certification have become deeply ingrained in the collective legal consciousness.  For example, relatively early in his career as a jurist, Judge Posner authored several opinions that reigned in class certification excesses, recognizing that plaintiffs often use class certification of dubious claims as a tool to extract “blackmail settlements.”  Notably, in In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293 (7th Cir. 1995), Posner is credited with sounding the death knell for the class treatment of personal injury class actions.

More recently, Judge Posner authored opinions permitting class certification where the class action device was seen by him as the most efficient (and, as a practical matter, only) tool for resolving the class members’ disputes.  As Posner stated in Carnegie v. Household International, Inc., 376 F.3d 656 (7th Cir. 2004), which affirmed certification of a settlement-turned-litigation class, if the individual claims in a putative class are of sufficiently low value, then the “realistic alternative to a class action” may not be “17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”  Most recently, Judge Posner overturned a series of class action settlements that offered little benefit to the class but huge fees to class counsel (see, e.g., In re Walgreen Co. Stockholder Litig., 832 F.3d 718 (7th Cir. 2016); Redman v. Radioshack Corp., 768 F.3d 622 (7th Cir. 2014); Eubank v. Pella Corp., 753 F.3d 718 (7th Cir. 2014)).  Judge Posner’s immense impact on class action litigation will not be soon forgotten.

SCOTUS to clarify SLUSA’s application to class claims brought under the Securities Act of 1933

Currently pending before the Supreme Court is Cyan, Inc. v. Beaver County Employees Retirement Fund, No. 15-1439 (filed May 24, 2016), which concerns the preemptive scope of the Securities Litigation Uniform Standards Act of 1998 (SLUSA).  By way of refresher, SLUSA preempts all state law causes of action for fraud in connection with the purchase or sale of securities—any such fraud claim must be based on federal law, i.e., the Securities Act of 1933 or the Securities Exchange Act of 1934.  At issue in Cyan is whether SLUSA also divests state courts of jurisdiction to hear class action claims brought under the Securities Act of 1933 (e.g., claims based on fraudulent misrepresentations or omissions in a registration statement).  Federal courts already have exclusive jurisdiction over claims brought under the Securities Exchange Act of 1934 (e.g., 10b-5 securities fraud claims).

Oral argument in Cyan occurred on November 28, 2017, although it only revealed the Court’s complete confusion about how to interpret SLUSA, which was (aptly) described as “obtuse,” “odd,” and, by Justice Alito, “gibberish.”  The Justices’ confusion has been mirrored in the state and lower federal courts, which have reached wildly inconsistent and chaotic results on the issue.  If the Court rules in Cyan’s favor, then all class claims under the Securities Act will have to be brought in federal court, subject to the procedural strictures of the PSLRA.  But if the Court rules in the plaintiffs’ favor, then investors will be able to avoid the PSLRA by filing their Securities Act claims in more favorable state court jurisdictions.  The Solicitor General has also entered the fray, advocating for a hybrid position: that SLUSA permits plaintiffs to bring Securities Act claims in state court, but also permits defendants to then remove those claims to federal court, should they so choose.  We anticipate a decision in the first half of 2018.

A welcome narrowing of the scope of the TCPA

As everyone reading this blog well knows, the TCPA has become a boon for the consumer protection plaintiffs’ bar.  This shouldn’t be surprising, given the TCPA’s (mostly) strict liability, statutory damages of at least $500 per violation (and up to $1500 for “willful” violations), and no damages cap.  Fortunately, however, a pair of D.C. Circuit cases may be beginning to reverse the tide.  First, was the D.C. Circuit’s decision in Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078 (D.C. Cir. 2017), which struck down an FCC rule that had required senders of faxes to include opt-out notices on all messages, even though the statute itself only required such notices on non-solicited messages.  Now, pending before the D.C. Circuit is ACA International v. FCC, Case No. 15-1211 (D.C. Cir., filed Nov. 25, 2015), which challenges the validity of the FCC’s broad and oft-criticized interpretation of what constitutes an Automatic Telephone Dialing System, as well as FCC rules concerning the identity of the “called party” in the reassigned number context and the means by which a called party may revoke consent.  How the D.C. Circuit resolves ACA International could potentially have a huge impact on stemming the tide of rampant TCPA class actions.

The Fairness in Class Action Litigation Act stalls in the Senate

Finally, the House passed H.R. 985, also known as the “Fairness in Class Action Litigation” Act, in March 2017 by a largely party-line vote.  We have already discussed in detail how the current version of the bill could potentially change class action litigation—and made proposals to improve the bill.  Thus far, the Senate has taken no action on the bill, just as the Senate took no action on an earlier and more modest version of the Fairness in Class Action Act previously passed by the House.  It remains to be seen whether the bill will be revisited this year, although currently there does not appear to be any political momentum to do so.  If the bill does not become law by the end of 2018, then the legislative process will go back to square one.