The Supreme Court has held that class action tolling under American Pipe does not toll the time within which a suit must be filed under a statute of repose.
In American Pipe the Court held that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class.” American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554 (1974). The open question was whether class tolling would also apply to statutes of repose.
In California Public Employees’ Retirement System v. ANZ Securities, No. 16–373 (June 26, 2017), a putative class action was filed under Section 11 of the Securities Act of 1933 concerning securities offerings of Lehman Brothers Holdings. Section 13 of the Securities Act contains a three-year statute of repose. More than three years after the securities were offered, the petitioner filed an individual action alleging identical violations. After a proposed settlement was reached in the putative class action, the petitioner opted out of the class. The respondents moved to dismiss the individual suit as untimely but the petitioner argued that American Pipe tolled limitations during the pendency of the putative class action.
The Supreme Court disagreed. It reasoned that American Pipe was based on “the judicial power to promote equity, rather than to interpret and enforce statutory provisions.” Whereas the statute at issue in American Pipe was a traditional statute of limitations, Section 13 of the Securities Act was held to be a true statute of repose whose purpose is to “create ‘an absolute bar on a defendant’s temporal liability.’” In light of their purpose, the court held that statutes of repose “override customary tolling rules arising from the equitable powers of courts” and are not subject to tolling without legislative direction.
The court therefore affirmed the dismissal of the individual suit over the vigorous opposition of a four-justice dissent, which would have held that American Pipe tolling applies to statutes of repose. Justice Gorsuch participated in the opinion and was in the majority.