Thursday, August 07, 2008

Cross-Jurisdictional Class Action Tolling Scorecard

The quote “insanity is doing the same thing over and over and expecting a different result” has been attributed variously to Benjamin Franklin and Albert Einstein. That probably means neither of them said it. But whoever did, we think the principle applies to class action litigation involving mass torts.

We’ve kvetched before about plaintiffs’ persistent – yet almost universally futile – assertion of class actions in product liability litigation involving prescription medical products. Name a mass tort from the last decade or so – Vioxx, Baycol, SSRIs, Defibrillators, Prempro, Oxy-Contin, PPA, Propulsid. Chances are very high that there’s been an attempt to certify a class action. Chances are equally high that the class action either wasn’t certified, or else certification was reversed on appeal.

In the personal injury context, no class action certified over opposition has survived appeal since the Supreme Court’s landmark Amchem and Ortiz decisions in the mid-1990s. The most recent notable failure in the drug/device context was In re St. Jude Medical, Inc., 522 F.3d 836 (8th Cir. 2008).

We’ve speculated that a prime reason why the other side keeps this up is that they get something for nothing from even unsuccessful class actions – that something being class action tolling. Getting rid of class action tolling, we’ve suggested, would cut way down on the pursuit of futile class actions in drug/device product liability litigation.

That goes double for cross-jurisdictional class action tolling – the claim that the filing of an unsuccessful class action in, say Pennsylvania, would toll the statute of limitations for potential plaintiffs in some other state, say Illinois. That’s true because mass torts, by their very nature, are themselves cross jurisdictional.

Well, we’ve decided to do something about it. We recently saw another cross-jurisdictional class action tolling case the other day that we liked – Clemens v. DaimlerChrysler Corp., 530 F.3d 852 (9th Cir. 2008), modified on other grounds, 2008 WL 2840662 (9th Cir. July 24, 2008) – and we decided that cross-jurisdictional class action tolling is another area where we could keep a scorecard.

After all, the law has been mostly favorable to the defense position, so getting ahold of all of it is a much bigger problem for our side than for theirs.

These are the subissues that we see as significant in cross-jurisdictional class action tolling: (1) the venue, because the statute of limitations in our area of interest is state-specific; (2) whether the claims involve personal injury or not, because some courts are more tempted to toll state-law antitrust or securities claims (again, not our primary area of interest) where the claims mirror federal claims as to which United States Supreme Court decisions mandate tolling; and (3) if the original class was actually certified (an issue in some older cases). We’ll mention that issue too, because plaintiffs relying upon certified classes had more arguments to make in favor of tolling.

Although we considered doing this scorecard on a state by state, rather than chronological, basis, we decided against it because some cases involve more than one jurisdiction – and we’re too lazy to type in a bunch of cases more than once.

So what follows is a list of all decisions we know of that address cross-jurisdictional class action tolling. As always, let us know if we miss something.
  1. Lee v. Grand Rapids Board of Education, 384 N.W.2d 165 (Mich. App. 1986). Michigan recognizes cross-jurisdictional class action tolling where the prior class was certified. Non-personal injury case.
  2. In re Agent Orange Products Liability Litigation, 818 F.2d 210 (2d Cir. 1987). Predicting that Hawaii would not recognize cross-jurisdictional class action tolling. Personal injury case.
  3. Jolly v. Eli Lilly & Co., 751 P.2d 923 (Cal. 1988). California does not recognize cross-jurisdictional class action tolling. Personal injury case.
  4. Singer v. Eli Lilly & Co., 549 N.Y.S.2d 654, 658-60 (N.Y. App. Div. 1990). New York does not recognize cross-jurisdictional class action tolling. Personal injury case.
  5. Hyatt Corp. v. Occidental Fire & Casualty Co., 801 S.W.2d 382 (Mo. App. 1990). Missouri recognizes cross-jurisdictional class action tolling where the prior class was certified and settled. Insurance coverage dispute concerning personal injury claims.
  6. Thoubboron v. Ford Motor Co., 624 A.2d 1210 (D.C. App. 1993). The District of Columbia does not recognize cross-jurisdictional class action tolling. Personal injury case.
  7. Bell v. Showa Denko K.K., 899 S.W.2d 749 (Tex. App. 1995). Texas does not recognize cross-jurisdictional class action tolling. Personal injury case.
  8. Barela v. Showa Denko K.K., 1996 WL 316544 (D.N.M. Feb. 28, 1996). Predicting that New Mexico would not recognize cross-jurisdictional class action tolling. Personal injury case.
  9. Vaught v. Showa Denko K.K., 107 F.3d 1137 (5th Cir. 1997). Predicting that Texas would not recognize cross-jurisdictional class action tolling. Personal injury case.
  10. In re Norplant Contraceptive Products Liability Litigation, 173 F.R.D. 185 (E.D. Tex. 1997). Predicting that Texas would recognize cross-jurisdictional class action tolling in at least some personal injury cases.
  11. Portwood v. Ford Motor Co., 701 N.E.2d 1102 (Ill. 1998). Illinois does not recognize cross-jurisdictional class action tolling. Non-personal injury case.
  12. Senger Brothers Nursery, Inc. v. E.I. Dupont de Nemours & Co., 184 F.R.D. 674 (M.D. Fla. 1999).  Predicting that Florida would not recognize cross-jurisdictional class action tolling.  Property damage chemical exposure case.
  13. Wade v. Danek Medical, Inc., 182 F.3d 281 (4th Cir.1999). Predicting that Virginia would not recognize cross-jurisdictional class action tolling. Personal injury case.
  14. Staub v. Eastman Kodak Co., 726 A.2d 955 (New Jersey Super. 1999). New Jersey recognizes cross-jurisdictional class action tolling. Personal injury case.
  15. Smith v. Cutter Biological, 770 So.2d 392 (La. App. 2000). Louisiana would recognize cross-jurisdictional class action tolling, but only with respect to a class action that had been certified. Personal injury case.
  16. Maestas v. Sofamor Danek Group, Inc., 33 S.W.3d 805 (Tenn. 2000). Tennessee does not recognize cross-jurisdictional class action tolling. Personal injury case.
  17. Thelen v. Massachusetts Mutual Life Insurance Co., 111 F. Supp.2d 688 (D. Md. 2000). Predicting that Maryland would not recognize cross-jurisdictional class action tolling. Non-personal injury case.
  18. Primavera Familienstifung v. Askin, 130 F. Supp.2d 450 (S.D.N.Y. 2001), partial reconsideration granted on other grounds, 137 F. Supp.2d 438 (S.D.N.Y. 2001). Predicting that Connecticut would recognize cross-jurisdictional class action tolling in securities cases. Specifically distinguishing personal injury precedent.  Later cases consider this case superseded.
  19. Prieto v. John Hancock Mutual Life Insurance Co., 132 F. Supp.2d 506 (N.D. Tex. 2001). Predicting that Texas would recognize cross-jurisdictional class action tolling where the prior class was certified and settled. Securities case.
  20. Vaccariello v. Smith & Nephew Richards, Inc., 763 N.E.2d 160 (Ohio 2002). Ohio recognizes cross-jurisdictional class action tolling. Personal injury case.
  21. Ravitch v. Pricewaterhouse, 793 A.2d 939 (Pa. Super. 2002), affirming 2000 WL 35496909. Pennsylvania does not recognize cross-jurisdictional class action tolling. Non-personal injury case.
  22. Johnson v. American Home Products Corp., 62 Pa. D. & C.4th 20 (Pa. C.P. Philadelphia Co. 2003). Pennsylvania does not recognize cross-jurisdictional class action tolling even where the class action was certified. Personal injury case.
  23. In re West Virginia Rezulin Litigation, 585 S.E.2d 52 (W. Va. 2003). West Virginia allows cross-jurisdictional class action tolling. Personal injury case.
  24. Williams v. Dow Chemical Co., 2004 WL 1348932 (S.D.N.Y. June 16, 2004). Illinois does not recognize cross-jurisdictional class action tolling. Personal injury case.
  25. Todd v. F. Hoffman-La Roche, Ltd., 2004 WL 5238952 (Kan. Dist. Aug. 20, 2004). Kansas does not recognize cross-jurisdictional class action tolling. Antitrust case.
  26. In re Linerboard Antitrust Litigation, 223 F.R.D. 335 (E.D. Pa. 2004) Predicting that Colorado, Indiana, Kansas, South Carolina, and Tennessee would recognize cross-jurisdictional class action tolling in antitrust cases. Specifically distinguishing personal injury precedent.
  27. In re General American Life Insurance Co. Sales Practices Litigation, 391 F.3d 907 (8th Cir. 2004). Overriding Pennsylvania law to permit cross-jurisdictional class action tolling in federal court of state law economic loss claims.
  28. Stone v. Wyeth, 2005 WL 3589423 (Pa. C.P. Philadelphia Co. Aug. 1, 2005). Pennsylvania does not recognize cross-jurisdictional class action tolling even where the class action was certified. Personal injury case.
  29. Bozeman v. Lucent Technologies, Inc., 2005 WL 2145911 (M.D. Ala. Aug. 31, 2005). Predicting that Alabama would not recognize cross-jurisdictional class action tolling. Securities case.
  30. In re: Rezulin Products Liability Litigation, 2006 WL 695253 (S.D.N.Y. Mar. 15, 2006).  Florida does not recognize cross-jurisdictional class action tolling.  Personal injury case.
  31. In re Vitamins Antitrust Litigation, 183 Fed. Appx. 1 (D.C. Cir. May 15, 2006). Predicting that Florida would not recognize cross-jurisdictional class action tolling. Antitrust case.
  32. In re Enron Corporation Securities Derivitive and ERISA Litigation, 465 F. Supp.2d 687 (S.D. Tex. 2006). Predicting that Texas would not recognize cross-jurisdictional class action tolling. Ohio recognizes cross-jurisdictional class action tolling. Securities case.
  33. In re Dynamic Random Access Memory (Dram) Antitrust Litigation, 516 F. Supp.2d 1072 (N.D. Cal. 2007). Declaring that cross-jurisdictional class action tolling is generally unavailable in antitrust actions brought under Alaska, Idaho, Louisiana, Montana, Oregon, Utah, and Wyoming law.
  34. In re Vioxx Products Liability Litigation, 522 F. Supp.2d 799 (E.D. La. 2007). Pennsylvania and Illinois do not recognize cross-jurisdictional class action tolling. Predicting that Puerto Rico would not recognize cross-jurisdictional class action tolling. Personal injury case.
  35. In re Vioxx Products Liability Litigation, 2007 WL 3334339 (E.D. La. Nov. 8, 2007). Texas and California do not recognize cross-jurisdictional class action tolling. Predicting that Indiana would not recognize cross-jurisdictional class action tolling. Personal injury case.
  36. In re Vioxx Products Liability Litigation, 2007 WL 3353404 (E.D. La. Nov. 8, 2007). Predicting that Kentucky would not recognize cross-jurisdictional class action tolling. Tennessee does not recognize cross-jurisdictional class action tolling. Personal injury case.
  37. Champion v. Homa, 2008 WL 900967 (M.D. Ala. March 31, 2008). Declaring that cross-jurisdictional class action tolling is generally unavailable in securities actions brought under Alabama, California, Colorado, Florida, Iowa, Kansas, Kentucky, Michigan, Nebraska, Ohio, and Washington law.
  38. One Star v. Sisters of St. Francis, 752 N.W.2d 668 (S.D. 2008). South Dakota does not recognize cross-jurisdictional class action tolling. Personal injury case.
  39. Love v. Wyeth, 569 F. Supp.2d 1228 (N.D. Ala. July 24, 2008). Predicting that Alabama would not recognize cross-jurisdictional class action tolling. Personal injury case.
  40. Clemens v. DaimlerChrysler Corp., 534 F.3d 1017 (9th Cir. July 24, 2008). California does not recognize cross-jurisdictional class action tolling. Non-personal injury case.
  41. Newport v. Dell, Inc., 2008 WL 4347311 (D. Ariz. Aug. 21, 2008). Predicting that Arizona would not recognize cross-jurisdictional class action tolling. Non-personal injury case.
  42. Newby v. Enron Corp., 542 F.3d 463 (5th Cir. Sept. 8, 2008). Predicting that Texas would not recognize cross-jurisdictional class action tolling. Non-personal injury case.
  43. Shimari v. CACI International, Inc., 2008 WL 7348184 (E.D. Va. Nov. 25, 2008).  Predicting that Virginia would extend a holding recognizing cross-jurisdictional tolling in an individual case to class actions.  Personal injury, non-product liability case.
  44.  Easterly v. Metropolitan Life Insurance Co., 2009 WL 350595 (Ky. App. Feb. 13, 2009) (unpublished). Kentucky does not recognize cross-jurisdictional class action tolling. Non-personal injury case.
  45. Hatfield v. Halifax PLC, 564 F.3d 1177 (9th Cir. May 8, 2009). California does not recognize cross-jurisdictional class action tolling. Non-personal injury case. Permits equitable tolling for California residents only.
  46. In re Urethane Antitrust Litigation, 663 F. Supp.2d 1067 (D. Kan. Aug. 14, 2009). Tennessee does not recognize cross-jurisdictional class action tolling. Predicting that Indiana would not recognize cross-jurisdictional class action tolling. Non-personal injury case.
  47. New York Hormone Replacement Therapy Litigation (Ansley), 2009 WL 4905232 (N.Y. Sup. Nov. 30, 2009).  New York does not recognize cross-jurisdictional class action tolling.  Personal injury case.
  48. In re Fosamax Products Liability Litigation, 694 F. Supp.2d 253 (S.D.N.Y. March 15, 2010), aff'd, 678 F.3d 134 (2d Cir. 2012) (see below).  Predicting that Virginia will not recognize cross-jurisdictional class action tolling.  Personal injury case.
  49. Torkie-Tork v. Wyeth, 739 F. Supp.2d 887 (E.D. Va. June 16, 2010).  Predicting (contrary to Wade) that Virginia statutorily allows cross-jurisdictional class action tolling. Personal injury case.
  50. In re Aredia & Zometa Products Liability Litigation, 754 F. Supp.2d 939 (M.D. Tenn. Dec. 7, 2010).  Tennessee does not recognize cross-jurisdictional class action tolling.  Personal injury case.
  51. Stevens v. Novartis Pharmaceuticals Corp., 247 P.3d 244 (Mont. Dec. 30, 2010).  Montana recognizes cross-jurisdictional class action tolling. Personal injury case.
  52. Centaur Classic Convertible Arbitrage Fund Ltd. v. Countrywide Financial Corp., 878 F. Supp.2d 1009 (C.D. Cal. Jan. 20, 2011).  California does not recognize cross-jurisdictional class action tolling. Non-personal injury case.
  53. Soward v. Deutsch Bank AG, 814 F. Supp.2d 272 (S.D.N.Y. Sept. 1, 2011).  Refusing to predict that New York would adopt cross-jurisdictional class action tolling.  Non-personal injury case.
  54. Casey v. Merck & Co., 722 S.E.2d 842 (Va. Mar. 2, 2012).  Virginia does not recognize cross-jurisdictional class action tolling.  Personal injury case.
  55. Irby v. Novartis Pharmaceuticals Corp., 212 WL 897787 (N.J. Super. L.D. March 16, 2012).  Virginia does not recognize cross-jurisdictional class action tolling.  Personal injury case.
  56. Casey v. Merck & Co., 678 F.3d 134 (2d Cir. May 1, 2012).  Virginia does not recognize cross-jurisdictional class action tolling. Personal injury case.
  57. Flick v. Wyeth LLC, 2012 U.S. Dist. Lexis 78900 (W.D. Va. June 6, 2012).  Virginia does not recognize cross-jurisdictional class action tolling. Personal injury case.
  58. In re TFT-LCD (Flat Panel) Antitrust Litigation, 2012 WL 3155693 (N.D. Cal. Aug. 2, 2012).  Refusing to predict that Massachusetts would adopt cross-jurisdictional class action tolling. Non-personal injury case.
  59. Quinn v. La. Citizens Property Insurance Corp., 118 So. 3d 1011 (La. Nov. 2, 2012).  Louisiana does not recognize cross-jurisdictional class action tolling.  Non-personal injury case.
  60. FDIC v. Countrywide Financial Corp.,  2012 U.S. Dist. Lexis 167696 (C.D. Cal. Nov. 21, 2012).  California would not recognize cross-jurisdictional class action tolling.  A federal securities law claim cannot be tolled by a similar state-court action.  Non-personal injury case.
  61. Vincent v. Money Store, 915 F. Supp. 2d 553 (S.D.N.Y. Dec. 12, 2012).  California does not recognize cross-jurisdictional class action tolling.  Non-personal injury case.
  62. Patterson v. Novartis Pharmaceuticals Corp., 909 F. Supp.2d 116 (D.R.I. Dec. 19, 2012) (adopting C.A. No. 11-402 ML, slip op. (Mag. D.R.I. Aug. 28, 2012)). Refusing to predict that Massachusetts would adopt cross-jurisdictional class action tolling. Personal injury case.
  63. Becnel v. Deutsche Bank, AG, 2013 U.S. App. Lexis 723 (2d Cir. Jan. 11, 2013).  Florida does not recognize cross-jurisdictional class action tolling.  Non-personal injury case.
  64. In re Countrywide Financial Corporation Mortgage-Backed Securities Litigation, 934 F. Supp.2d 1219 (C.D. Cal. March 21, 2013).  Statutes of limitations for federal claims cannot be tolled by state-court class actions involving similar claims.  State court action cannot control how federal statutes of limitations operate.  Non-personal injury case.
  65. Blanco v. AMVAC Chemical Corp., 67 A.3d 392 (Del. 2013).  Delaware recognizes cross-jurisdictional class action tolling. Personal injury case.
  66. Adedje v. Westat, Inc., 2013 Md. App. Lexis 119, 214 Md. App. 1 (Md. App. Sept. 6, 2013).  Maryland does not recognize cross-jurisdictional class action tolling.  Non-personal injury case.
  67. Hendrix v. Novartis Pharmaceutical Corp., ___ F. Supp.2d ___, 2013 WL 5491846 (C.D. Cal. Oct. 2, 2013).  California does not recognize cross-jurisdictional class action tolling.  Personal injury case.
  68. NCUA Board v. Morgan Stanley & Co., 2013 U.S. Dist. Lexis 180563 (D. Kans. Dec. 27, 2013).  So few states recognize cross-jurisdictional class action tolling, that tolling should not be allowed for claims originating in state court.  Non-personal injury case.
  69. In re Bear Stearns Cos. Securities, Derivative, & ERISA Litigation, 2014 U.S. Dist. Lexis 14751 (S.D.N.Y. Feb. 3, 2014).  New York does not recognize cross-jurisdictional class action tolling.  Non-personal injury case.
  70. In re Cathode Ray Tube CRT Antitrust Litigation, 2014 U.S. Dist. Lexis  35391 (N.D. Cal. March 13, 2014).  Tennessee, New York, California, and Florida do not recognize cross-jurisdictional class action tolling.  New Jersey only recognizes it only for claims actually raised by former class members.  Non-personal injury case.

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