On Dec. 8, 2017, the U.S. Supreme Court granted China Agritech's certiorari petition in Resh v. China Agritech, 857 F. 3d 994 (9th. Cir. 2017). In accepting certiorari, the Supreme Court will decide whether a class action filing tolls the limitations period for putative class members who wish to file additional class actions—an issue that fundamentally impacts the often-criticized practice of filing successive class action litigations.

Under existing U.S. Supreme Court precedent in American Pipe & Construction v. Utah, 414 U.S. 539 (1974) and Crown, Cork & Seal v. Parker, 462 U.S. 345 (1983), the commencement of a class action tolls the statute of limitations for individual claims later brought by putative class members. However, the Supreme Court did not specify in either of these cases that the filing of a putative class action tolls the statutory period for claims later brought as another class action. As a result of this ambiguity, a sharp circuit split has developed among the U.S. Courts of Appeals. The Eleventh Circuit has long held, and has recently affirmed, that the pendency of a class action does not toll the statute of limitations for putative class members who wish to file additional class actions, as in Griffin v. Singletary, 17 F. 3d 356, 359 (11th Cir. 1994); Ewing Industries v. Bob Wines Nursery, 795 F. 3d 1324, 1328 (11th Cir. 2015). The Eleventh Circuit reasoned that plaintiffs may not “piggyback one class action onto another and therefore engage in endless rounds of litigation … over the adequacy of successive named plaintiffs to serve as class representatives.” Appellate courts in the First, Second, Third, Fifth and Eighth Circuits have all reached the same or similar conclusions. As each of these courts have acknowledged, adopting this conclusion is critical in preventing abuse of the class action device. Under current Supreme Court precedent, the denial of class certification is not binding on unnamed members of the putative class. Thus, putative class members can—and frequently do—file successive class actions even after the denial of class certification. Imposing a statute of limitations on putative class members who wish to bring additional class actions is one of the only available ways to prevent the indefinite filing of successive class actions.

In contrast with the decisions reached in these Circuits, the Ninth Circuit concluded in Resh v. China Agritech that a putative class action does toll the statute of limitations for additional class claims. In so concluding, the Ninth Circuit reasoned that “the current legal system” adequately responds to concerns regarding the abusive filing of repeated class actions since potential future plaintiffs will have little to gain from repeatedly filing new suits and would be unwilling to assume the financial risk in doing so. It further articulated that “ordinary principles of preclusion and comity will further reduce incentives to relitigate frivolous or already dismissed class claims.” The Sixth and Seventh circuits have reached conclusions similar to that in Resh.

Following the Ninth Circuit's decision in Resh, the defendant China Agritech filed a certiorari petition with the U.S. Supreme Court. In its petition, China Agritech outlines the clear circuit split on this issue and the various reasons why it believes the Ninth Circuit's reasoning is flawed. Among the arguments it makes, China Agritech spends significant time criticizing the efficacy of the comity principles relied upon by the Ninth Circuit—which are the same principles the Supreme Court has previously relied upon in finding that a denial of certification is not binding on unnamed putative class members. Now that the Supreme Court granted certiorari over this divisive issue, there is little doubt that the law in at least some circuits across the country will change, and it possible that long-standing law in the Eleventh Circuit will be impacted. Indeed, given that the Supreme Court is so selective in the types of class action cases it reviews—and that those cases which it does review often effectuate a significant shift in class action jurisprudence—it is likely that the decision will have lasting impact for years to come. Importantly, as made clear by China Agritech's brief and the numerous appellate courts that have agreed with China Agritech, the issue of statutory tolling has far reaching implications on the abusive filing of successive class actions. Thus, the Supreme Court's decision may shed light not only on the narrow issue of statutory tolling but also on whether—and how—courts should deal with litigants who engage in repeated rounds of class action litigation. For class action litigants across a variety of industries, the Supreme Court's decision will be an important one to watch.

Erica Rutner is an attorney with Lash & Goldberg in Miami and focuses on class action defense.