Too Little, Too Late: Eleventh Circuit Rejects Multiple Bites At The Apple For Class Claims

Defendants can add a new decision to their arsenal for defending against multiple proposed class actions on the same claims. The Eleventh Circuit recently issued a decision in Ewing Industries Corporation v. Bob Wines Nursery, Inc., et al., No. 14-13842 (11th Cir. Aug. 3, 2015), holding that a proposed class action does not toll the statute of limitations for future proposed class actions, even where the class claims fail for reasons which have nothing to do with the proposed class.

Though not a workplace class action, the teaching of the cases are important for all employers.

Background Of The Case

On January 12, 2010, Aero Financial, Inc. ("Aero") filed a proposed class action in Florida state court against a Florida nursery for sending unsolicited facsimile advertisements to a putative class in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(1)(C), which carries a four year statute of limitations. The complained of conduct allegedly occurred in December 2006, about three and a half years before the commencement of the action.

On June 25, 2013, the Florida state court granted summary judgment for Defendants, finding Aero lacked standing to bring the claim because the faxes were not sent directly to Aero. Because Aero lacked standing, the claims were rejected solely due to inadequate class representation, and not any defect in the proposed class itself.

On August 2, 2013, Ewing Industries Corporation ("Ewing") filed a similar class complaint against the same defendants in federal court for the same alleged violations. While the complaint acknowledged that the statute of limitations had passed, Ewing argued that the claims were tolled during the pendency of Aero's proposed class action. On June 26, 2014, the District Court granted defendants' motion to strike the class allegations on the grounds that the claims were time-barred and denied Ewing's motion for class certification. Ewing appealed to the Eleventh Circuit.

The Eleventh Circuit's Opinion

The Eleventh Circuit affirmed the District Court's ruling. It relied heavily on a twenty-year old ruling in Griffin v. Singletary, 17 F.3d 356 (11th Cir. 1994) ("Griffin II"), which established a no "piggy backing" rule to avoid class actions piggy backing "one after another in an attempt to find an adequate class representative." Ewing, at 4. In Griffin II an action consolidating appeals by the original proposed class representatives and other class members who subsequently...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT