The Supreme Court Holds that American Pipe Tolling Does Not Apply to Subsequent Class Actions; Clarifies that Five-Year Period for Section 10(b) Claims Is a Statute of Repose
On June 11, 2018, the United States Supreme Court handed down its decision in China Agritech v.
Resh, 1 holding that the American Pipe equitable tolling rule—which tolls the statute of limitations for
individual claims while a class action is pending—does not apply to subsequently filed class action
claims. The Court also clarified that the five-year limit on bringing claims under the Exchange Act is a
statute of repose. Accordingly, under the Court’s prior decision in CalPERS v. ANZ Securities, Inc., the
Exchange Act’s five-year statute of repose is not tolled by the filing of a class action lawsuit.
The China Agritech decision follows a trend set by other recent Supreme Court decisions limiting the
application of equitable doctrines to expand or contract a legislatively enacted statute of limitations.
American Pipe Tolling
In its landmark 1974 decision, American Pipe and Construction Co. v. Utah, 2 the Supreme Court held that
the filing of a class action tolls the statute of limitations for putative class members; thus, even if the
statute of limitations has run, putative class members are still free to join an existing class action,
intervene in the resulting individual action if class certification is denied, or bring an individual action if the
class action is dismissed.
Circuits had split on the issue of whether American Pipe equitable tolling applied to subsequently filed
class actions. For example, the Ninth Circuit held that it did, reasoning that doing so “would advance the
policy objectives that led the Supreme Court to permit tolling in the first place.”4
In contrast, other Circuits refused to apply American Pipe to prospective class actions, reasoning that doing so would allow plaintiffs to “stack one class action on top of another and continue to toll the statute of limitations indefinitely.”5
The China Agritech Decision
China Agritech involved the third of three class actions brought by purchasers of China Agritech’s
common stock. The first two class actions were brought within the applicable two-year statute of
limitations,
The Supreme Court held that American Pipe tolling does not apply to class actions. The Court reasoned
that the policy rationales supporting the tolling of individual claims do not apply to class claims. While it
may be efficient to delay the litigation of individual claims until after the class certification stage, there is
no efficiency in delaying future class litigation. Instead, the Court reasoned, Rule 23 and the Private
Securities Litigation Reform Act of 1995 (PSLRA) evince a preference to bring in all potential lead
plaintiffs and class counsel as soon as practicable so that a court may choose among the best
candidates.
The Court also expressed concern that applying American Pipe tolling to class actions
“would allow the statute of limitations to be extended time and again,” essentially allowing for endless
class litigation. The Court rejected arguments that its holding would result in duplicative, protective filings
(i.e., class actions filed solely to preserve the right to proceed in case the initial class action fails),
observing that there was no evidence of such filings in Circuits that had refused to apply American Pipe
tolling to subsequent class actions.
Justice Sotomayor filed a concurring opinion, arguing that the majority’s holding should be limited to
securities class actions under the PSLRA. Justice Sotomayor reasoned that there was no principled
grounds for treating individual and class claims differently, but that the tolling of securities class actions
was incompatible with the PSLRA’s requirement that prospective lead plaintiffs move the court to serve
as lead plaintiff.
In addition to addressing the inapplicability of American Pipe tolling to class claims, China Agritech also
clarified that the five-year limitation period applicable to Section 10(b) claims (and other fraud claims
under the Exchange Act) 6 is a statute of repose that imposes a “finite end” on the time to bring a claim,
notwithstanding any toll of the limitation period.
The Court foreshadowed that position last year in CalPERS v. ANZ Securities, Inc.7 by holding that a similarly worded three-year limit under the Securities Act is a statute of repose that is not tolled under American Pipe, and in subsequently denying certiorari petitions challenging two Court of Appeals cases holding that the Exchange Act’s five-year period is likewise a statute of repose.
Implications of the Supreme Court’s Decision
The China Agritech opinion will provide some certainty to companies facing securities class action
lawsuits by preventing the “stacking” of class actions, i.e., new class actions being filed after the statute of
limitations period following the failure of an earlier filed class action. While it is possible the opinion will
lead to more class actions being filed upfront in an attempt to preserve potential class claims, it seems
unlikely there will be a significant increase in activity. As the majority in China Agritech pointed out, there
is no evidence of increased protective filings in Circuits that had already refused to apply American Pipe
tolling to class claims.
Moreover, federal courts are already well-equipped to handle duplicative litigation.
The opinion is also consistent with the Supreme Court’s recent refusals to expand or contract statutes of
limitations through the use of judge-made doctrines. In addition to cases like China Agritech and
CalPERS, the Supreme Court’s decisions in Petrella v. Metro-Goldwyn-Mayer, Inc.8 and SCA Hygiene
Products v. First Quality Baby Products, LLC9 refused to apply laches to bar copyright and patent claims
that fall within a statutory limitations period.
6 See 28 U.S.C. § 1658(b) (providing that a “private right of action that involves a claim of fraud, deceit, manipulation, or contrivance in contravention of a regulatory requirement concerning the securities laws . . . may be brought not later than the earlier of (1) 2 years after the discovery of the facts constituting the violation; or (2) 5 years after such violation”).
7 137 S. Ct. 2042 (2017).
8 134 S. Ct. 1962 (2014).
9 137 S. Ct. 954 (2017).
