11th Circuit Declines to Follow the Pack on “No Piggybacking” Rule

Class Actions  •  Litigation  •  TCPA

Supreme Ct Columns Petitions Denied

On August 3, 2015, the 11th Circuit held in Ewing Industries Corp. v. Bob Wines Nursery, Inc., No. 14-13842, 2015 WL 4605234 (11th Cir. Aug. 3, 2015) that the pendency of a purported class action does not toll the limitations period for a later class action seeking to represent the same class when the earlier class was denied certification on grounds of inadequate class representation.  While the decision was consistent with the “no-piggybacking” rule established in its 1994 ruling in Griffin v. Singletary, 17 F.3d 356 (11th Cir. 1994), its application of the rule to denials of class certification based on the adequacy of the class representative represents a divergence from the majority of other circuits that have ruled on this issue.

In Ewing, a class action complaint had been filed alleging that the defendants had violated the Telephone Consumer Protection Act (TCPA)  by faxing unsolicited advertisements to the purported class members.  That putative class action was dismissed in June 2013 because the class representative had not actually received the advertisements; the inadequacy of the class representative was dispositive and the court never ruled on whether the class itself was proper.  Shortly thereafter, the plaintiff in Ewing filed a new class complaint against the same defendants and making similar allegations to those in the earlier class action.  The complaint alleged that the four-year statute of limitations period (which would otherwise have run since the complaint concerned conduct from more than six years earlier) was tolled while the earlier class action was pending.  But the district court disagreed and struck the class allegations from the complaint because the statute of limitations period had run.

The 11th Circuit affirmed, applying Griffin’s “no-piggybacking” rule, which states that “the pendency of a previously filed class action does not toll the limitations period for additional class actions by putative members of the original asserted class.”  Ewing, 2015 WL 4605234, at *3 (quoting Griffin, 17 F.3d at 359).  As the court explained in Griffin, this “no-piggybacking” rule protects defendants by preventing plaintiffs from “piggyback[ing] one class action onto another and thereby engag[ing] in endless rounds of litigation” to try to correct the defects of the prior failed actions.  Griffin, 17 F.3d at 359.  Without such a rule, a putative class of plaintiffs could toll the applicable statute of limitations on their claims indefinitely by filing another class action as soon as the previous one failed, thereby preserving the limitations period because the clock would be stopped as long as a class action was pending.

The plaintiff in Ewing argued that this rule only applies when the earlier class action fails because the class itself is found to be improper, and that it does not apply when the class representative is merely found to be inadequate.  The 11th Circuit rejected this argument and held that, under its “no-piggybacking rule,” the limitations period does not toll for later class actions by the original class regardless of whether the original class action failed because of defects in the class itself or because of the inadequacy of the class representative.  This conclusion, the court held, was required because Griffin had dealt with essentially this precise issue.

Interestingly, the court seemed to be at pains to note that Griffin compelled the outcome in this case.  The court observed that a number of other circuits have reached different conclusions on similar facts, distinguishing between cases where the class representative was inadequate and cases where there were defects inherent in the class itself; these other circuits generally have held that the limitations period does toll in the former situation but not in the latter.  At the end of the opinion, the 11th Circuit cites in detail recent cases from the 3rd, 6th, 7th, 8th, and 9th Circuits that have distinguished Griffin on these grounds, or that have criticized Griffin and rejected it outright.  The opinion ends by stating, “the merits of the holding in Griffin [] are not before us.  Under our prior precedent rule, a panel cannot overrule a prior panel’s holding.”  Ewing, 2015 WL 4605234, at *4.

The opinion’s conclusion almost seems to invite a petition for a rehearing en banc, which would give the 11th Circuit the opportunity to revisit its holding in Griffin.  Until that happens, however, Ewing solidifies a marked divergence between the 11th Circuit and a number of the other circuits in their treatment of limitations periods for later-filed class actions.

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