There is now a clear and vibrant Circuit split as to whether American Pipe permits tolling for a plaintiff who files a separate action pending class certification, in light of the Ninth Circuit’s decision on Tuesday in In re Hanford Nuclear Reservation Litig., 2007 U.S. App. LEXIS 19291 (9th Cir. Aug. 14, 2007). Without citing the Second Circuit’s July 26th decision in In re WorldCom, Inc. Sec. Litig., 2007 U.S. App. LEXIS 17797 (2d Cir. July 26, 2007) (see our post of July 28, 2007), which came to exactly the opposite conclusion, the Ninth Circuit relied, inter alia, on a 1983 Second Circuit decision (and an S.D.N.Y. decision overruled by WorldCom) which it read as supportive of its view that no tolling was permitted for plaintiffs who file suit before the class certification issue is decided.

The Ninth Circuit joined what it perceived to be ‛the prevailing view that precluding tolling in this situation satisfies the judicial economy concerns of American Pipe without jeopardizing protections that exist for plaintiffs who opt out of the class. We should not allow a plaintiff to file an individual suit, which is in essence a signal that the plaintiff is opting out of a class, and then simultaneously give the same plaintiff class action benefits.“ In a sense, the Ninth Circuit’s statement about the ‛prevailing view“ is correct, if a self-fulfilling prophecy. Now, the Sixth and Ninth Circuits hold that there is no tolling if a plaintiff files suit before awaiting the class certification decision, while the Second disagrees. The implication of the Sixth and Ninth Circuit decisions is that the plaintiff not only need await class certification but also must agree to remain a class member (otherwise, what is the inefficiency?), while the Second Circuit implies nothing of the sort. Needless to say, it would be quite useful if the Supreme Court would resolve this issue and end the forum shopping that this split will necessarily produce.