United States: Eleventh Circuit Reaffirms Rejection Of "Piggybacking" In Class Actions

A recent Eleventh Circuit decision that rejected a putative class representative's attempt to "piggyback" onto a previous class action may provide a defense to companies faced with seriatim class actions. The court found that the pendency of a previous class claim—even where the class was not ultimately certified—did not toll the statute of limitations. Thus, a later class action asserting essentially the same claims under the Telephone Consumer Protection Act ("TCPA") was barred by the statute of limitations. Ewing Indus. Corp. v. Bob Wines Nursery, Inc., No. 14-13842, 2015 BL 247415 (11th Cir. Aug. 3, 2015).

The First Class Action

The saga of the Ewing case traces its beginnings to December 2006, when Bob Wines Nursery ("Bob Wines") allegedly sent out a series of unsolicited fax advertisements. In January 2010, Aero Financial Inc. ("Aero") initiated a class action in Florida state court against Bob Wines, asserting that Bob Wines had violated the TCPA by sending out unsolicited faxes. Thus, as the Ewing court was later to note, "a little over three years had passed between the alleged conduct and the filing of the complaint." Ewing, 2015 BL 247415 at *1.

On June 25, 2013, the Florida state court granted summary judgment in favor of the defendants. The state court held that Aero could not prove it had ever received a fax. In an apparent effort to fill that void, Aero asserted it had standing by virtue of a post-litigation assignment of claims. This was deemed insufficient to cure the standing issue. Given that Aero could not prove it had ever received a fax, it did not have standing.

The Aero court "never ruled on the issue of class certification .... The dispositive issue was a defect in the class representative, and the court never ruled on the whether the class itself was a proper class." Id.

The Ewing Piggyback Class Action

In August 2013—roughly six weeks after judgment in Aero but almost seven years after the faxes were sent—Ewing Industries Corporation ("Ewing") filed a new putative class action against Bob Wines based on the same faxes at issue in Aero. Recognizing the impediment posed by the four-year statute of limitations, Ewing's complaint met the issue square on and alleged that the statute of limitations had been tolled during the pendency of Aero's purported class action. If the Aero case tolled the statute of limitations, then the Ewing case was supposedly still timely, because the years that had passed between the filing of the Aero case and the order of dismissal would be properly excluded in assessing the timeliness of the Ewing complaint.

The defendants filed a motion to strike the class allegations in Ewing's complaint based on the statute of limitations. The federal district court struck the class allegations, held that the claims were time-barred, and denied Ewing's motion for class certification with prejudice. Ewing appealed.

The Eleventh Circuit Rejects Ewing's Tolling Argument

On appeal, the central and dispositive issue was whether the Ewing class action was time-barred in light of the Eleventh Circuit's precedent in Griffin v. Singletary, 17 F.3d 356 (11th Cir. 1994) (hereinafter, "Griffin II"). As in the Ewing case, Griffin II also involved seriatim class actions. In that lengthy action, a plaintiff filed a putative class action in 1979, but the Eleventh Circuit held in 1987 that the class must be decertified because the named plaintiffs were not properly representative of the class. Griffin v. Dugger, 823 F.2d 1476 (11th Cir. 1987). Following remand, a new set of putative class representatives stepped forward and tried to assert their own action. The trial court denied all motions to amend and held that the new class plaintiffs were untimely.

On the second appeal, Griffin II held in 1994—some 15 years after the case started—that the statute of limitations was not tolled during the first round of litigation and affirmed the judgment of the district court. It held that "the pendency of a previously filed class action does not toll the limitations period for additional class actions by putative members of the original asserted class." Griffin II, 17 F.3d at 359.

Ewing attempted to distinguish Griffin II by pointing out that a class had been certified and then overturned in Griffin II, whereas the Aero lawsuit never even reached the issue of class certification. The Eleventh Circuit rejected that argument, finding no distinction between a class that was decertified based on inadequate representatives (as in Griffin II) and a class that failed to reach the certification stage because its representative did not have standing to bring a claim (as in Ewing). The Eleventh Circuit reinforced this decision by quoting from Griffin II: "If there is any doubt whether Griffin II governs this case, it is resolved by the following excerpt from this court's opinion in Griffin II,

Ewing, 2015 BL 247415 at *4.

While other courts have questioned the outcome in Griffin II, defendants facing seriatim TCPA or other class actions should be aware of the precedential value and practical logic of both Griffin II and Ewing.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.