Under the American Pipe doctrine, the commencement of a class action tolls the statute of limitations for absent class members. American Pipe & Construction Co. v. Utah, 414 U.S. 538, 554 (1974). The intent of this rule is to protect the interests of class members and preserve the efficiencies of class litigation. Without tolling, absent class members would need to intervene or file individual claims to preserve their rights if the court denies class certification. See Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 350 (1983). We have discussed American Pipe tolling on the blog before, including whether it applies to successive class actions and the concept of cross-jurisdictional tolling.
In this post, we address an issue that has not received much attention from the federal courts and, where it has, is the source of some disagreement: When exactly does American Pipe tolling end? Sometimes the answer is obvious—tolling plainly ends when class certification is denied and when a class member opts out of a certified class. See American Pipe, 414 U.S. at 550-51 (for purposes of the limitations period, the putative class members “stood as parties to the suit until and unless they received notice thereof and chose not to continue”); Crown, Cork & Seal, 462 U.S. at 354 (the statute of limitations “remains tolled . . . until class certification is denied”). Outside of those clear examples, however, the endpoint is not cut and dried.
One question lower courts have grappled with is whether tolling ends when the named plaintiffs voluntarily abandon a claim. In Zaragoza v. Union Pacific Railroad Co., for example, the court considered the impact of the named plaintiffs’ decision to seek certification as to their ADA disparate treatment claim, but not their ADA disparate impact claim. 606 F. Supp. 3d 427, 432-34 (W.D. Tex. 2022). Because the two claims shared a common factual basis and legal nexus, the court concluded that tolling applied equally to both the disparate treatment claim and the abandoned disparate impact claim. Id. at 435-36. But other courts disagree with this reasoning, holding instead that abandonment of class treatment for a distinct claim ends American Pipe tolling—regardless of whether the abandoned claim is similar to any class claims. See id. at 434-36 (citing cases adopting both views). Litigants should pay special attention to which approach applies in their forum.
Another issue arises when the class definition changes during the litigation. When does American Pipe tolling end for those who fell within the scope of the original class but are no longer class members under a narrowed definition? The Ninth Circuit recently addressed this question and concluded that, to end American Pipe tolling based on a revised class definition, “a court must adopt a new definition that ‘unambiguously’ excludes the bystander plaintiff.” DeFries v. Union Pacific Railroad Co., 104 F.4th 1091, 1100 (9th Cir. 2024). Because the revised class definition in that case was ambiguous, tolling did not end until the class at issue was decertified. Id. at 1105. The Fourth Circuit and Tenth Circuit have addressed similar questions and agree that, for tolling to end, the revised class definition must be unambiguous. See Smith v. Pennington, 352 F.3d 884, 892-96 (4th Cir. 2003); Sawtell v. E.I. du Pont de Nemours & Co., 22 F.3d 248, 252-54 (10th Cir. 1994).
Though courts have not discussed the end of American Pipe tolling in much detail, the cases discussed above provide some helpful guidance. For defendants in follow-on litigation brought by former absent class members, this discussion should remind them not to assume that tolling ended at the default time—denial of class certification or the date the plaintiff opted out. In certain cases, tolling may have ended much sooner, which can have a significant impact on available defenses.
