On November 27, the Third Circuit Court of Appeals affirmed a district court's dismissal of a second putative Telephone Consumer Protection Act class action on the grounds that the American Pipe tolling principles did not apply, meaning the plaintiff's claims on behalf of himself, his company, and the purported class were untimely.
In Weitzner v. Sanofi Pasteur, Inc., Ari Weitzner and Ari Weitzner M.D. P.C. argued that their TCPA claims—stemming from unsolicited faxes sent in April 2004 and May 2005—filed in federal court in November 2011 were timely under the tolling principles of American Pipe.
Ari Weitzner originally filed a purported class action for violation of the TCPA in Pennsylvania state court seeking to represent a class of individuals that received unsolicited faxes from the appellee. The state court denied class certification in June 2008, after which Weitzner continued to pursue his claim individually in state court. In November 2011, more than six years after receipt of the alleged unsolicited faxes, the plaintiffs filed a second putative TCPA class action, this time in the Western District of Pennsylvania.
Sanofi moved for summary judgment on statute of limitations grounds, arguing the four-year statute of limitations under the TCPA expired more than two years prior to their filing of the complaint. The plaintiffs opposed summary judgment, arguing that the statute of limitations for their TCPA claims and the claims of the putative class members were tolled under American Pipe due to the class action complaint filed in state court.
The district court granted summary judgment, finding "that American Pipe tolling did not apply to [appellants'] class or individual claims and that [appellants'] claims were therefore untimely." The Third Circuit Court of Appeals reviewed the district court's decision de novo and ultimately affirmed the decision.
The Court of Appeals looked at three issues: application of American Pipe to the class claim, to Ari Weitzner's individual claims, and to Ari Weitzner M.D. P.C.'s claims.
First, the Court quickly disposed of the purported class claim by relying on recent Supreme Court precedent, China Agritech, Inc. v. Resh, 138 S. Ct. 1800, 1804 (2018), which clarified "that American Pipe tolling does not allow a putative class member to commence a new class action outside of the statute of limitations." The Third Circuit found that because China Agritech "precludes the application of American Pipe tolling to successive class claims," the class claims were not subject to tolling and were therefore untimely.
Second, the Court of Appeals addressed the application of American Pipe to a named plaintiff in a putative class action. Here, Weitzner was the named plaintiff in the purported class action filed in state court. When assessing whether American Pipe applied to appellant Weitzner's individual claim, the Court of Appeals looked to the two primary purposes underlying the Supreme Court's decision in American Pipe: (1) efficiency and economy of litigation, and (2) "protecting the interest of putative unnamed class members who had not received notice and were unaware of the pending class action." Weighing the purposes of American Pipe tolling, the Court held there was no reason to extend the tolling to a named plaintiff. Specifically, the Court found that because a named plaintiff may pursue their individual claim after class certification is denied in the originally filed class action, there was no purpose for allowing a named plaintiff to file a new individual claim outside of the statute of limitations period and "no injustice results from denying those parties tolling."
Third, the Court of Appeals assessed whether American Pipe tolling saved appellant Ari Weitzner M.D. P.C.'s individual claim. This corporation was not a named plaintiff in the state court action but rather a putative class member. However, because the company was not an "unaware, absent class member American Pipe was designed to protect" the Third Circuit held its claim was also time-barred. The Court noted that Weitzner was the sole shareholder in Ari Weitzner M.D. P.C., and as a result the company had actual notice of the pending state court action and the denial of class certification. Accordingly, tolling the company's claim would "result in an abuse of American Pipe."
The Third Circuit's application of American Pipe in Weitzner v. Sanofi Pasteur, Inc. makes clear that a named plaintiff from a putative class action may not later pursue a time-barred individual claim based upon the same conduct. The holding also stands for the proposition that a company that is owned and controlled by a named plaintiff in a putative class action may not take advantage of tolling the statute of limitations for a claim based upon the same conduct at issue in its owner's original suit.
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