TCPA Taking its Toll: Third Circuit Court of Appeal Rejects Tolling of TCPA Claims in favor of Plaintiff that Served as Class Representative in Earlier Suit
The TCPA legal doctrine atom smasher continues to, well, smash atoms.
Earlier today we learned a bit about Article III standing of class representatives from a TCPA case, and now the wide world gets to learn about the proper application of the American Pipe tolling doctrine brought to you–once again–through the vehicle of a TCPA dispute. Safe to say that TCPA litigators must remain on the cutting edge of emerging class action procedural doctrine to stand a chance out there–and we here at TCPAland exist to help make sure you can keep up.
Today the Third Circuit Court of Appeal addressed the issue of whether otherwise untimely claims brought in federal court might be made viable by American Pipe tolling by virtue of an earlier class action filed by the same named class representative that had brought the earlier suit. The Court held: Nope. See Weitzner v. Sanofi Pasteur, Case No. 17-3188, 2018 U.S. App. LEXIS 33226 (3rd Cir. Nov. 27, 2018).
Here’s the background:
Defendant sent some (allegedly) illegal faxes back in 2005. (Yep, 13 years ago.) Plaintiff filed a state court TCPA class action, in which certification was denied in 2008. (Yep, 10 years ago.) Plaintiff then turned around and sued Defendant in federal court in a new TCPA class actions for the same faxes in 2011, seeking to represent a class of folks that had received similar faxes from 2004 forward. (Yep, this stuff actually happens.)
The district court was unimpressed with the case and granted summary judgment to the defense on the ground that the four year statute of limitations on Plaintiff’s claim had already run and the doctrine of American Pipe tolling did not apply. As the Third Circuit viewed matters on appeal: “the primary issue…is whether the District Court correctly concluded that plaintiffs’ claims were not subject to American Pipe tolling and were therefore untimely.” Weitzner at *7.
The Court begins the analysis by walking through the American Pipe tolling doctrine–an exercise I’ve already put you through.
Next it turns to the issue of whether or not Plaintiff can pursue class claims in reliance on American Pipe tolling–and this piece of the analysis is easy enough. The Supreme Court recently handed down China Agritech, Inc. v. Resh, 584 U.S. ___, 138 S. Ct. 1800, 1810 (2018), holding that American Pipe tolling only applies to individual claims and does not permit successive class actions relying on tolling accomplished by the pendency of previous class litigation. (That’s the same case that recently saved Cirque Du Soleile from their TCPA class action nightmare BTW.)
The second (and primary) question is a closer call: does American Pipe tolling apply in favor of a plaintiff who was also the named class representative in the earlier class action?
Focusing on the fact that a named class representative is “necessarily aware” of the pending action, the Court found that the American Pipe tolling doctrine does not apply to toll the claims of an individual that has already sued a Defendant in an earlier class action. As Weitzner puts it:
Named plaintiffs are necessarily aware of the pending litigation and will be made aware of any denial of class certification such that tolling is unnecessary to protect their interests. Indeed, a named plaintiff’s individual claim will remain viable upon denial of class certification because the putative class action is then simply transformed into an individual action.
Weitzner at *14.
In the Third Circuit’s view the purpose of American Pipe tolling is to protect “unnamed” plaintiffs and, “[g]iven the equitable nature of American Pipe tolling, we discern no reason to extend its reach to named plaintiffs. ” Id. at *15. As such the Third Circuit panel agreed with the district court and held that American Pipe tolling did not apply to the Plaintiff’s claims.
So there you have it– a named class representative cannot leverage American Pipe tolling to pursue even a time barred individual suit in a subsequent action. Who’d a thunk it. This is true even where–as was the case in Weitzner–the second suit was brought in the name of a business that was wholly owned and controlled by the individual who had brought the first suit.