Eleventh Circuit Reaffirms Rejection Of 'Piggybacking' In Class Actions

A recent Eleventh Circuit decision that rejected a putative class representative's attempt to "piggyback" onto a previous class action may provide a defense to companies faced with seriatim class actions. The court found that the pendency of a previous class claim—even where the class was not ultimately certified—did not toll the statute of limitations. Thus, a later class action asserting essentially the same claims under the Telephone Consumer Protection Act ("TCPA") was barred by the statute of limitations. Ewing Indus. Corp. v. Bob Wines Nursery, Inc., No. 14-13842, 2015 BL 247415 (11th Cir. Aug. 3, 2015).

The First Class Action

The saga of the Ewing case traces its beginnings to December 2006, when Bob Wines Nursery ("Bob Wines") allegedly sent out a series of unsolicited fax advertisements. In January 2010, Aero Financial Inc. ("Aero") initiated a class action in Florida state court against Bob Wines, asserting that Bob Wines had violated the TCPA by sending out unsolicited faxes. Thus, as the Ewing court was later to note, "a little over three years had passed between the alleged conduct and the filing of the complaint." Ewing, 2015 BL 247415 at *1.

On June 25, 2013, the Florida state court granted summary judgment in favor of the defendants. The state court held that Aero could not prove it had ever received a fax. In an apparent effort to fill that void, Aero asserted it had standing by virtue of a post-litigation assignment of claims. This was deemed insufficient to cure the standing issue. Given that Aero could not prove it had ever received a fax, it did not have standing.

The Aero court "never ruled on the issue of class certification .... The dispositive issue was a defect in the class representative, and the court never ruled on the whether the class itself was a proper class." Id.

The Ewing Piggyback Class Action

In August 2013roughly six weeks after judgment in Aero but almost seven years after the faxes were sentEwing Industries Corporation ("Ewing") filed a new putative class action against Bob Wines based on the same faxes at issue in Aero. Recognizing the impediment posed by the four-year statute of limitations, Ewing's complaint met the issue square on and alleged that the statute of limitations had been tolled during the pendency of Aero's purported class action. If the Aero case tolled the statute of limitations, then the Ewing case was supposedly still timely, because the years that had passed between the filing of...