Monday, March 05, 2012

At Long Last - Virginia Definitively Rejects Class Action Tolling

Over a decade ago, Bexis convinced the Fourth Circuit to predict that Virginia would reject cross-jurisdictional class action tolling - the notion that a meritless class action filed in one jurisdiction could suspend the running of the statute of limitations in another jurisdiction.  See Wade v. Danek Medical, Inc., 182 F.3d 281 (4th Cir.1999).  But what was won in Wade had a hard time staying won.  Some federal courts, deviating from their federalist duty to construe state law conservatively, nonetheless made conflicting predictions that, maybe Virginia law (despite not recognizing class actions at all) would allow cross-jurisdictional tolling.  See Torkie-Tork v. Wyeth, 739 F. Supp.2d 887 (E.D. Va. 2010); Shimari v. CACI International, Inc., 2008 WL 7348184 (E.D. Va. Nov. 25, 2008).

But not all courts.  In In re Fosamax Products Liability Litigation, 694 F. Supp.2d 253 (S.D.N.Y. 2010), the court followed Wade in another multidistrict litigation (Wade had followed an MDL remand).  The plaintiffs appealed, and the Second Circuit certified the question to the Virginia Supreme Court, which accepted the appeal.

Virginia's highest court has now killed cross-jurisdictional class action tolling dead in that jurisdiction.  Casey v. Merck & Co., No. 111438, slip op. (Va. Mar. 2, 2012).  Good riddance, we say.  It was a long enough time coming - as was the underlying Fosamax class action decision.  The plaintiffs wanted over two years of tolling - just for filing a meritless complaint - because it took various courts (it was an MDL, after all) from September 15, 2005 until January 28, 2008 to dismiss the patently bogus personal injury class action.

The Virginia Supreme Court first took the occasion to reject any and all forms of equitable tolling relating to class actions (and maybe more generally):

A statute of limitations may not be tolled, or an exception applied, in the absence of a clear statutory enactment to such effect.  [A]ny doubt must be resolved in favor of the enforcement of the statute.  Given these principles, there is no authority in Virginia jurisprudence for the equitable tolling of a statute of limitations based upon the pendency of a putative class action in another jurisdiction.
Casey, slip op. at 5-6 (citations and quotation marks omitted).

The statutory aspect of Casey is equally interesting, because various other jurisdictions have general tolling statutes for plaintiffs who find their suits in other jurisdictions dismissed on a non-merits (some sort of procedural) basis.  The court determined that, since these plaintiffs were not the named representatives of the putative class, such a statute did not apply to them.  They had never filed the first suit:


[F]or tolling to be permitted, the subsequently filed action must be filed by the same party in interest on the same cause of action in the same right. . . .  [I]n the instant matter, it is undisputed that the four plaintiffs were not named plaintiffs in the putative class action that they claim triggered the tolling.  They were merely members of a putative class that included every single American who took Fosamax. . . .  For the filing of an action to toll the statute of limitations from running on a subsequently filed action pursuant to [statutory tolling], there must be identity of the parties in the two lawsuits.

Casey, slip op. at 6-7.

An unnamed class member, never filed any suit, and doesn't acquire any rights by reason of the dismissal of the class action.  Such a person has no standing to invoke statutory standing.  That right belongs solely to a plaintiff that actually filed a prior suit:

[T]o toll the statute of limitations, the plaintiff in the first suit must have legal standing to assert the rights that are at issue in the second lawsuit.  A putative class action is a representative action in which a representative plaintiff attempts to represent the interests of not only named plaintiffs, but also those of unnamed class members.  Virginia jurisprudence does not recognize class actions. Under Virginia law, a class representative who files a putative class action is not recognized as having standing to sue in a representative capacity on behalf of the unnamed members of the putative class.  Thus, under Virginia law, there is no identity of parties between the named plaintiff in a putative class action and the named plaintiff in a subsequent action filed by a putative class member individually.

Casey, slip op. at 9-10 (citations omitted).

That should settle the question.  Add Virginia - fully and finally - to the large majority of jurisdictions that reject cross-jurisdictional class action tolliing.

No comments: