Collision Course: How Federal Rule of Civil Procedure 23(f) Has Silently Undermined the Prohibition on American Pipe Tolling During Appeals of Class Certification Denials

Author:Kevin Welsh
Collision Course: How Federal Rule of Civil
Procedure 23(f) Has Silently Undermined the
Prohibition on American Pipe Tolling During Appeals
of Class Certification Denials
At first glance, the Fifth Circuit’s decision in Calderon v.
Presidio Valley Farmers Association1 is unremarkable. Calderon, a
class action brought on behalf of a group of Mexican farm workers,
arose from numerous alleged violations of the Farm Labor
Contractor Act.2 Although the Western District of Texas initially
denied the plaintiffs’ motion for class certification, the Fifth Circuit
agreed to hear an interlocutory appeal on the question and, phrasing
its decision diplomatically, “invited” the district court to reconsider
the issue.3 This victory, however, would be short-lived for a small
group of class members.
A group of then unnamed plaintiffs submitted class claim forms
following the Western District of Texas’s decision to certify a class.4
Surprisingly, though, the district court held that the unnamed
plaintiffs’ claims were now time-barred, despite their initial
timeliness.5 Indeed, the unnamed plaintiffs’ claims became untimely
in the period between the initial, erroneous denial of class
certification and the subsequent decision to certify the class.6 The
untimeliness of the plaintiffs’ claims was a result of the rules on
class action tolling, the jurisprudential doctrine which holds that the
filing of a class action suspends the running of a claim’s statute of
limitations against all putative members of the class.7 The Fifth
Circuit affirmed that the tolling effect ceased upon the denial of
class certification and began again when the class was certified.8
Because the plaintiffs failed to intervene in the action or file
independent actions during the period between the initial class
certification denial and its subsequent reversal, the statute of
Copyright 2013, by KEVIN WELSH.
1. 863 F.2d 384 (5th Cir. 1989) (per curiam).
2. Id. at 386.
3. Id. at 389.
4. Id. at 390.
5. Id.
6. See id.
7. See, e.g., Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 350 (1983).
The tolling of a statute of limitations is e quivalent to a suspension of prescription
under Louisiana law. Compare id., with LA. CODE CIV. PROC. art. 596 (2012).
8. See Calderon, 863 F.2d at 390.
limitations continued to run and the claims became untimely.9 Thus,
despite the timeliness of the initial action and appropriate notice to
the defendants,10 the unnamed plaintiffs lost the ability to state a
claim against the defendant solely because the district court initially
and erroneously decided against class certification.11 This situation
is undoubtedly a “worst case scenario” under the widely held notion
that procedure alone should not, without good reason, foreclose on a
party’s ability to argue a claim’s merits.12
The loss that the Calderon plaintiffs suffered is the most
egregious consequence of the widely followed judicial policy of
ending a class action’s tolling effect immediately upon a district
court’s denial of class certification.13 In the past, some courts have
examined the policy and concluded that the realistic costs of tolling
beyond the denial of class certification were simply too high—
tolling would often extend through final judgment, which may come
years after a class certification decision, thereby forcing defendants
to defend stale claims.14 The prospect of multiyear tolling arose
from the historical difficulty of achieving interlocutory review of
class certification decisions.15 However, the entire landscape of
interlocutory appeals in this area was altered in 1998 b y the
promulgation of Federal Rule of Civil Procedure 23(f), which
provides a special mechanism for nearly immediate appellate review
of class certification decisions.16 To date, federal circuit courts of
appeal have not responded to the fact that Rule 23(f) seriously
9. See id.
10. A properly pled class action complaint is commonly understood to give a
defendant notice of the type and number of claims that he or she faces. See Am.
Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554–55 (1974).
11. See Calderon, 863 F.2d at 390.
12. See, e.g., TCI Grp. Life Ins. Plan v. Knoebber, 244 F.3d 691, 695 (9th Cir.
2001) (noting that there is an “overriding judicial goal of deciding cases correctly,
on the basis of their legal and factual merits”); Foman v. Davis, 371 U.S. 178, 182
(1962) (“If the underlying facts or circumstances relied upon by a plaintiff may be
a proper subject of relief, he ought to be afforded an opportunity to test his claim
on the merits.”).
13. See, e.g., Stone Container Corp. v. United States, 229 F.3d 1345, 1355
(Fed. Cir. 2000); Nelson v. Cnty. of Allegheny, 60 F.3d 1010, 1013 (3d Cir.
1995); Calderon, 863 F.2d at 390; Armstrong v. Martin Marietta Corp., 138 F.3d
1374, 1390 (11th Cir. 1998) (en banc); Taylor v. United Parcel Serv., Inc., 554
F.3d 510, 519–21 (5th Cir. 2008); Nat’l Asbestos Workers Med. Fund v. Phillip
Morris, Inc., No. 98 CV 1492, 2000 WL 1424931, at *1–2 (E.D.N.Y. Sept. 26,
2000); Andrews v. Orr, 851 F.2d 146, 149–50 (6th Cir. 1988).
14. See Armstrong, 138 F.3d at 1390.
15. See infra Part I.B.1. The interlocutory appeal in Calderon was an
exception to this general rule.
16. See infra Part I.B.3.
2013] COMMENT 1185
undermines the logic of ceasing tolling upon the denial of class
This Comment argues that the policy of ending tolling
immediately upon the initial denial of class certification contradicts
the very purposes of class action tolling and can lead to prejudicial
results, as Calderon demonstrates. Part I of this Comment examines
the development of class action tolling and the evolution of
interlocutory appeals of class certification decisions. Part II explores
the interrelationship between class action tolling and interlocutory
appeals of class certification rulings b y discussing bellwether
decisions on the issue, including the opinions that have linked the
tolling policy observed in Calderon to the historical rarity of
interlocutory appeals. Part III challenges the current jurisprudence
on the grounds that it incentivizes many behaviors that Rule 23 and
class action tolling seek to avoid, fails to recognize the vast changes
in interlocutory appellate practice ushered in by Rule 23(f), causes
litigants to be treated unequally due to an initial, erroneous
certification decision, and fails to protect plaintiffs from Calderon-
like prejudice. Part IV of this Comment proposes an alternative
approach to the issue’s current jurisprudential treatment.
Specifically, it argues that tolling should continue through the time
period available for requesting interlocutory review of a class
certification decision under Rule 23(f) and, where a circuit court
grants review, through final resolution of the certification issue. This
proposal, which is based in part on the approach taken by
Louisiana’s Code of Civil Procedure, simultaneously protects
plaintiffs from unnecessary harm, evens the pretrial playing field,
and furthers Rule 23’s goals of efficiency and economy in litigation.
Finally, Part IV contextualizes the proposed rule by assessing recent
scholarship on class action tolling.
A. The Class Action and Statutes of Limitations
The class action’s defining characteristic is representation.18
Class actions depend on a legal fiction that instructs courts to treat
unnamed class members as if they were named parties in the
action.19 Indeed, Rule 23 “both permits and encourages class
17. See infra Part II.
18. Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 550 (1974) (“A federal
class action is . . . truly [a] representative suit . . . .”).
1 9. State Farm Mut. Auto Ins. Co. v. Boellstorff, 540 F.3d 1223, 1229 (10th
Cir. 2008).

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