Clients regularly ask: If we win this putative class action, can the opposition just file another one on behalf of another as-yet-unidentified putative class representative?  Until June 11, the answer was “Maybe?”  Now, the answer is clearly no.

In a unanimous decision, the Supreme Court (in reversing the Ninth Circuit) clarified that the tolling recognized under American Pipe applies only to successive individual actions, not successive putative class actions.  China Agritech v. Resh, 2018 U.S. LEXIS 3502, *23 (U.S. 2018).  According to the opinion authored by Justice Ginsburg: “We hold that American Pipe does not permit a plaintiff who waits out the statute of limitations to piggyback on an earlier, timely filed class action.  The ‘efficiency and economy of litigation’ that support tolling of individual claims . . . do not support maintenance of untimely successive class actions.”  Id. at *13-*14.

In her concurrence in the judgment, Justice Sotomayor wrote she would limit the holding to cases under the PSLRA.  Id. at *24.  But she was alone in that view.  Id.

We applaud the U.S. Supreme Court in continuing to recognize the inherent limits of class action procedure, and we look forward to similar opinions in the future.

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Photo of Blaine C. Kimrey Blaine C. Kimrey

Blaine C. Kimrey is a Shareholder at Vedder Price, Chair of the Media & Entertainment Litigation practice group, and a member of the Privacy, CyberSecurity, & Media practice group.  A former journalist at two daily newspapers (the Austin American-Statesman and the Arkansas Democrat-Gazette), Mr. Kimrey is a trial lawyer who has dedicated more than 20 years to working for and defending media entities. Mr. Kimrey’s practice, however, extends well beyond media defense, focusing on a broad range of direct and class action litigation involving topics as diverse as privacy, consumer deception, intellectual property, entertainment, insurance, banking, real estate, civil rights, telecommunications, and mass catastrophes and torts.  Among other accolades, Mr. Kimrey is Chambers USA Band 2 rated for Media & Entertainment Litigation in the state of Illinois, is listed in Best Lawyers in America for Intellectual Property Litigation, and is AV-rated by Martindale-Hubbell.

Photo of Bryan K. Clark Bryan K. Clark

Bryan K. Clark is an Associate at Vedder Price and a member of the Privacy, CyberSecurity & Media practice group.  He has an extensive media and privacy practice that includes privacy class action defense, mobile-marketing litigation, class action TCPA litigation, copyright litigation, right of publicity litigation, data breach response, FOIA issues, reporter’s privilege issues and prepublication review.