Yesterday, in China Agritech, Inc. v. Resh, the U.S. Supreme Court ruled that, under its prior decision in American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974), the filing of a putative class action suit tolls the statutes of limitations only to allow individual, non-class suits to be filed after class certification is denied or the putative class action otherwise ends. The practice of “piggyback” class action filings, where an otherwise untimely class suit is filed on the theory that the time to sue was extended by the pendency of a prior class case, has come to an end. In a nearly unanimous opinion by Justice Ginsburg, the Court held that “American Pipe does not permit the maintenance of a follow-on class action past expiration of the statute of limitations.” (Slip opinion, at 2.) The Court reasoned that American Pipe is an equitable rule to promote efficiency in litigation, and that is not supported by allowing the filing of serial, “piggyback” class actions. Such a rule would also be contrary, the Court says, to Rule 23’s instruction that class certification should be resolved at “an early practicable time.” And equitable tolling requires diligence on the part of plaintiffs, which is not demonstrated by late piggyback filings.

Justice Ginsburg offers some advice for plaintiffs’ lawyers, suggesting that “any additional class filings should be made early on, soon after the commencement of the first action seeking class certification.” (Id. at 6.) She suggests that where there are several early filings, district courts can then select lead plaintiffs and lead counsel in non-securities cases (that is mandated by the Private Securities Litigation Reform Act (“PSLRA”) where it applies).

There has been some debate about whether this decision will cause more copycat class action suits and lead to more MDL proceedings. Perhaps, but China Agritech is not a change in the law of most circuits that had addressed the issue (see id. at 5). So we might not see much more in terms of repetitive filings.

Justice Sotomayor concurred only in the judgment. She would have ruled on narrower grounds, limiting the decision to class actions subject to the PSLRA. She expresses concern that outside of PSLRA class actions (where early notice by publication is required), class members may not learn of the pendency of class suits that are not certified. But that is true of class members who may want to file individual suits as well. She suggests that outside of the PSLRA context, it might be appropriate to allow tolling if the first case failed on a ground such as the lack of an adequate class representative. But the majority chose not to rule so narrowly.

One advantage I see for defendants here is that it is now clear that if the first class action is filed near the end of the limitations period, and the claims are not ongoing in nature, the defendant should have to litigate only one class action. If class certification is not granted, any follow-on suits could only be individual ones.

There remains a small loophole, as the Court and Justice Sotomayor note. A court in a pending class action might be persuaded to allow amendment of the complaint or a new plaintiff to intervene after the limitations period has expired, and perhaps that amendment would relate back for purposes of determining the statute of limitations. But where that comes late in the game, after extensive discovery and a denial of class certification, the defendant may have a strong argument that such an amendment or intervention should not be allowed for the purpose of a “redo.”

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Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career at Skadden.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and I was fortunate to have the opportunity to work on some prominent class actions arising from the 2004 hurricanes in Florida and later Hurricane Katrina, including cases involving the applicability of the flood exclusion, statutes known as valued policy laws, and various other issues.  My interest and experience in class actions gradually led me to focus on that area.

In Connecticut courts I’ve defended various kinds of class actions that go beyond insurance, including cases involving products liability, securities, financial services and consumer contracts.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at my desk or flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation (for more on those, see the Seminars/Programs page of this blog), I often can be found playing or reading with my young daughter, helping my wife with her real estate and mortgage businesses, reading a book about history or politics, or watching the Boston Red Sox (I managed to find bleacher seats for Game 2 of the 2004 World Series when Curt Schilling pitched with the bloody sock).  When the weather is good I also love to take the ferry to Block Island, Rhode Island and ride a bike or walk the trails there. If you go, I highly recommend the Clay Head Trail.