by Brian Wolfman
We have posted (for instance, here and here) about efforts to push forward in various ways with the massive Title VII employment disrimination class action thrown out by the Supreme Court in Wal-Mart v. Dukes on the ground that the nationwide class did not meet the requirements of the federal class-action rule (Rule 23). The plaintiffs in the nationwide case were present and former female employees of Wal-Mart. They alleged systematic sex discrmination in pay, promotions, and other
Because the Supreme Court threw out the nationwide class action, the efforts to litigate the plaintiffs' claims after Wal-Mart have included regional or state-based class actions. That effort hit a road block on Monday when a Florida district court ruled in Love v. Wal-Mart that a class limited to the southeast region of the U.S. was time barred (that is, had been filed too late, years after the plaintiffs were harmed). The court acknowledged longstanding Supreme Court precedent holding that the
statute of limitations on class members' claims are tolled (that is, does not run) while a class action is pending (at least until class certification is denied). But relying on 11th circuit precedent, the court said that this tolling principle does not apply to a subsequent class action:
Although the limitations period is tolled for individual claims while a class action suit is pending, in the Eleventh Circuit “the pendency of a previously filed class action does not toll the limitations period for additional class actions by putative members of the original class.” Griffin v. Singletary, 17 F.3d 356, 359 (11th Cir. 1994) (emphasis in original) (quoting Andrews v. Orr, 851 F.2d 146, 149 (6th Cir. 1988)). The Eleventh Circuit categorically refuses to toll the limitations period for subsequent class actions by members of the original class once class certification is denied in the original suit. Id. As it explained, the Eleventh Circuit was loath to “adopt any rule that has the potential for prolonging litigation about class representation even further.” Id. So, while an individual may file a new suit once previously filed class claims are rejected, the individual “may not piggyback one class action onto another.” Griffin, 17 F.3d at 359 (internal quotations omitted); Mitchell v. Osceola Farms Co., 408 F. Supp. 2d 1275, 1278 (S.D. Fla. 2005) (Cohn, J.) (“tolling does not . . . apply to a subsequent class action that merely attempts to correct deficiencies in a previous class action.”). The Eleventh Circuit is not alone; other Circuits have adopted similar “no piggybacking” rules for class claims. Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988); Salazar-Calderon v. Presido Valley Farmers Ass’n, 765 F.2d 1334 (5th Cir. 1985). Plaintiffs’ class claims run afoul of the no-piggybacking rule. Plaintiffs were members of the original Dukes class. And Plaintiffs now assert class claims for a regional subclass that was part of the nationwide class certified, and then decertified, in Dukes. Plaintiffs’ class claims are time-barred — the limitations period for class claims was not tolled, and Plaintiffs cannot assert class claims that were previously asserted and rejected in Dukes.
The plaintifs argued, among other things, that the "no piggybacking" rule was inconsistent with two recent Supreme Court class-action decisions (the Shady Grove and Smith v. Bayer cases), the latter of which allowed a second class action to go forward after a first one was rejected. But the district court in Love did not agree. So, if the district court is right, the plaintiffs in Love presumably can sue individually, but not as a class.