Improving Predictability and Consistency in Class Action Tolling
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Class action tolling means that when parties in a suit allege federal treatment, the individual claims of putative class members are tolled federal courts while the class action is pending. Commonly referred to as American Pipe tolling, this rule prevents duplicative litigation that would result if plaintiffs were required to intervene or file independent lawsuits to protect their interests while the class action was pending. Federal courts have long settled the application of American Pipe tolling in scenarios involving later-filed individual actions. In other scenarios, however, the application of American Pipe tolling has caused considerable uncertainty. This Article examines the difficulties caused by conflicting rules in one of those scenarios, successive class action tolling, and suggests how courts in a related scenario, cross-jurisdictional tolling, may learn from those difficulties. Part I of this Article discusses the history and policies underlying the Supreme Court's adoption of the American Pipe tolling rule. Part II analyzes the circuit courts' approaches to successive class action tolling through the lens of the subclass actions that plaintiffs filed in the wake of the Wal-Mart Stores v. Dukes case. With the analysis of successive class action tolling as a backdrop, Part II of this Article introduces the problem of cross-jurisdictional tolling, which courts will face with increasing regularity due to the increased federal jurisdiction over class actions in light of Congress' passage of the Class Action Fairness Act of 2006 ("CAFA"). This increased federal jurisdiction means parties will often be required to litigate stat-based class actions in federal courts where it has never been more difficult to certify those actions. And because courts often take years to reach certification decisions, cross-jurisdictional tolling issues will likely become more prominent as those class certification requests ultimately fail.
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