Why Cross-Jurisdictional Class Action Tolling Is Such A Bad Idea

We've always been against the concept of class action tolling: that merely by filing a class action – the class action does not have to have any merit – a class action lawyer magically stops the running of the statute of limitations for everybody in the class. To us, this gives Fed. R. Civ. P. 23 a substantive effect, which violates the Rules Enabling Act (you can read more about that, here, and here, in other contexts). It also confers an automatic one-way benefit on putative class members, although in other circumstances the class action lawyers perpetrating this sleight of hand will cheerfully tell courts that "no class exists before certification."

The Supreme Court first allowed class action tolling in American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), an antitrust case, ostensibly to "further[] the purposes of litigative efficiency and economy," so that no "protective litigation" (by plaintiffs fearing their own claims would be time barred)