Thursday, January 29, 2009
Interesting post yesterday at the Drug & Device Law Blog arguing that the American Pipe tolling rule does not make sense in the mass tort context, and praising Beisner and Miller for their arguments along the same lines. In 1974, the Supreme Court held in American Pipe v. Utah that the pendency of a class action tolls the statute of limitations for the claims of the class members. The idea was that if a class action has been filed, even if not yet certified, we don't want each class member to feel the need to file a timely individual action (or to intervene in the class action) to preserve the claim. Rather, the individual class members should be allowed to wait and rely on the class action to protect their interests; if the class action is not certified, then the individuals can go ahead and file claims if they so choose.
Defense lawyers, seeking dismissal of potentially time-barred individual claims, have advanced a number of arguments against applying the tolling rule in mass torts:
(1) Class certification in most mass torts is a long shot, unlike some other types of class litigation.
(2) Individual claimants in mass torts rarely rely on class actions as a reason to postpone individual complaints because (a) class cert is a long shot, (b) claimants don't know whether a class action has been filed, (c) even if they know a class action has been filed, claimants with sizeable claims would file individual complaints anyway, and (d) claimants with very small (negative value) claims would not file individual complaints regardless of a class action.
(3) In mass torts, MDL and statewide centralization and consolidation procedures allow courts to handle an influx of individual claims, so a flood of individual complaints presents less of a downside than thought in 1974.
These arguments are neither new nor ready to disappear. My former colleagues Mitchell Lowenthal and Menachem Feder made similar arguments in a 1996 article, The Impropriety of Class Action Tolling for Mass Tort Statutes of Limitations, 64 Geo. Wash. L. Rev. 532 (1996). More recently, Judge Fallon in the Vioxx litigation acknowledged these arguments but nonetheless faithfully applied American Pipe in denying several of Merck's motions to dismiss on statute of limitations grounds.