Christopher Blake v. JP Morgan Chase Bank NA , 927 F.3d 701 ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 18-2368
_______________
CHRISTOPHER BLAKE; JAMES ORKIS, individually and
on behalf of all others similarly situated,
Appellants
v.
JP MORGAN CHASE BANK NA; CHASE BANK USA
NA; JP MORGAN CHASE & CO; CROSS COUNTRY IN-
SURANCE COMPANY
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 5-13-cv-06433)
District Judge: Honorable Lawrence F. Stengel (Retired)
_______________
Argued March 20, 2019
Before: SHWARTZ, KRAUSE, and BIBAS, Circuit Judges
(Filed: June 19, 2019)
_______________
Natalie Lesser
Donna Siegel Moffa [ARGUED]
Terence S. Ziegler
Kessler Topaz Meltzer & Check
280 King of Prussia Road
Radnor, PA 19087
Counsel for Appellant
Jonathan S. Massey [ARGUED]
Massey & Gail
1000 Maine Avenue, S.W.
Suite 450
Washington, DC 20024
Matthew P. Previn
Buckley
1133 Avenue of the Americas
Suite 3100
New York, NY 10036
Counsel for Appellee
Brian T. Burgess
Thomas M. Heffernon
David L. Permut
Matthew S. Sheldon
Goodwin Proctor
901 New York Avenue, N.W.
Suite 900 East
Washington, DC 20001
Counsel for Amicus Appellee
2
________________________
OPINION OF THE COURT
______________________
BIBAS, Circuit Judge.
Statutes of limitations can be tricky. What events trigger
them may present thorny questions. And when courts may toll
them can involve judgment calls. Because of the way that
Christopher Blake and James Orkis have brought their class
action, this case presents both kinds of issues. And they need
to win on both to make their suit timely.
In 2005 and 2006, Blake and Orkis took out mortgages
from JP Morgan to buy homes. Then in 2013, they filed a class
action against JP Morgan under the Real Estate Settlement and
Procedures Act, alleging a scheme to refer homeowners to
mortgage insurers in exchange for streams of kickbacks. But
the Act has a one-year statute of limitations that runs from the
date of the violation. 12 U.S.C. § 2614. So Blake and Orkis
need to bridge the gap from when they closed their mortgages
in 2005 and 2006 to when they sued in 2013.
They raise two theories, each of which bridges only half the
gap. First, Blake and Orkis argue that each kickback separately
violates the Act and has its own limitations period. In other
words, they argue that the Act follows the separate-accrual
rule. JP Morgan disagrees, arguing that the Act’s statute of lim-
itations runs only from the mortgage closing, not from each
later kickback. But the Act’s plain text makes each kickback a
violation, so the limitations period accrues separately from the
date of each kickback.
3
That theory gets them only halfway there. The kickbacks
ended more than a year before they sued, so the Act’s one-year
limitations period would still bar their claims. To make their
2013 suit timely, Blake and Orkis next try to piggyback on a
different class action filed in 2011 that raised the same claims
against JP Morgan. As members of that putative class, they say
that we should toll the limitations period under American Pipe
& Construction Co. v. Utah, 414 U.S. 538 (1974). But in China
Agritech, Inc. v. Resh, the Supreme Court reasoned that a
timely class action should never toll other class actions under
American Pipe. 138 S. Ct. 1800 (2018). Blake and Orkis try
but fail to distinguish China Agritech. So they are not entitled
to American Pipe tolling, and their suit is untimely. We will
thus affirm.
I. BACKGROUND
A. Blake and Orkis’s allegations
1. The mortgage insurance market. Before banks will enter
into a home mortgage, they usually expect a 20% down pay-
ment. But many home buyers cannot pay that much up front.
Banks are willing to lend to these buyers on a condition: that
they buy mortgage insurance to protect against default.
The mortgage insurers, in turn, often reinsure these mort-
gages. Typically, they assign part of the risk to a reinsurer in
exchange for giving up part of the insurance premiums. Ideally,
reinsurance thus spreads risk and lets people buy homes who
otherwise could not.
2. Blake and Orkis’s claims. But Blake and Orkis allege
that this system was rife with abuse. Each bought a home and
took out a mortgage from JP Morgan. Because they paid less
4
than 20% up front, they had to buy mortgage insurance. JP
Morgan referred each of them to specific mortgage insurers,
who then reinsured with Cross Country Insurance.
But Cross Country is a subsidiary of JP Morgan. So accord-
ing to Blake and Orkis, this was a classic kickback scheme: JP
Morgan referred home buyers to mortgage insurers in ex-
change for kickbacks, funneled through its subsidiary as insur-
ance premiums. Any reinsurance, they claim, was just a cover
for the kickback scheme.
Federal regulators apparently agreed. After the financial
crisis, they clamped down on these alleged practices, getting
consent decrees against several leading mortgage reinsurers
that banned these captive-reinsurance arrangements for ten
years. These decrees, however, did not come in time for Blake
and Orkis. They both claim that their mortgage insurers paid
kickbacks through 2012 and 2013.
3. The Real Estate Settlement and Procedures Act. Blake
and Orkis claim that the kickbacks violate 12 U.S.C. § 2607 of
the Real Estate Settlement and Procedures Act (RESPA or the
Act), 12 U.S.C. §§ 2601–17. The Act is designed to eliminate
kickbacks and other fees that raise the cost of “settlement ser-
vices” related to mortgage closings, like mortgage insurance.
Id. §§ 2601(b)(2), 2602(3). So it bans giving or receiving “any
fee, kickback, or thing of value pursuant to any agreement or
understanding” that either party will refer these services to the
other. Id. § 2607.
This section of the Act has a one-year statute of limitations.
Id. § 2614. And that limitations period runs “from the date of
5
the occurrence of the violation.” Id. This case turns in part on
defining the violation that triggers the statute of limitations.
B. Procedural history
1. The 2011 Samp lawsuit. Blake and Orkis were not the
first to make these claims. In 2011, a group of plaintiffs filed a
class-action suit against JP Morgan in California, bringing the
same claims as Blake and Orkis. Samp v. JP Morgan Chase
Bank, N.A., No. EDCV 11-1950, 2013 WL 1912869, at *2
(C.D. Cal. May 7, 2013). Though Blake and Orkis were not
named plaintiffs, they belonged to Samp’s putative class of all
those who took out mortgages from JP Morgan in or after 2004.
But the District Court in California dismissed that case as un-
timely in May 2013. Id. at *5, *10. The Samp plaintiffs ap-
pealed.
In November 2013, several of the Samp plaintiffs’ lawyers
changed their litigation strategy. They filed a new class action,
with Blake and Orkis as the named plaintiffs, in federal district
court in Pennsylvania. The very next day, they asked the Ninth
Circuit to dismiss their Samp appeal. Two days after that, the
court granted that motion and put an end to Samp.
2. This lawsuit. Blake and Orkis picked up where Samp left
off. They too sought to represent a class of those who took out
mortgages from JP Morgan in or after 2004. But they them-
selves had taken out their mortgages in 2005 and 2006, at least
seven years before they filed their complaint in 2013. So JP
Morgan moved to dismiss their suit as barred by the Act’s one-
year statute of limitations. Blake and Orkis had to bridge at
least a seven-year gap.
6
They tried to bridge it in two ways. First, they claimed that
the Act makes each kickback a violation with its own limita-
tions period—a separately accruing wrong. And they claimed
that their mortgage insurers paid a kickback to JP Morgan
(through Cross Country) each time they paid an insurance pre-
mium. They continued to pay these premiums for years after
their mortgages closed. So under that theory, their suit would
be timely up to one year after the last kickback.
But Blake and Orkis concede that they had paid no premi-
ums in the year before their complaint. The statute of limita-
tions would thus have expired in the year or two before they
filed their own suit in 2013.
Blake and Orkis’s lawyers, however, filed Samp in Decem-
ber 2011. So second, Blake and Orkis argued that the filing of
Samp tolled the limitations period for their claims. They rea-
soned that they were members of Samp’s putative class and
were bringing the same claims as in Samp. And because Samp
continued until November 2013, they claimed that American
Pipe tolling would extend their limitations period until then
and make their suit timely.
In other words, Blake and Orkis needed both theories to
make their suit timely. They needed the separate-accrual rule
to justify starting the limitations period for some kickbacks at
the end of 2010. And they needed American Pipe tolling to
span the period from 2011 to 2013, when they filed their own
suit.
The District Court agreed with the first theory, but not the
second. Blake v. JP Morgan Chase Bank, N.A., No. 13-6433,
7
2018 WL 1518613, at *4-8 (E.D. Pa. Mar. 28, 2018). It held
that each kickback is a separately accruing wrong with its own
limitations period. Id. at *4-5. But it also held that American
Pipe tolling does not apply to a second class action filed before
the end of the first one. Id. at *7-8. So the District Court held
that the suit was untimely and dismissed it.
Blake and Orkis appealed. We review the dismissal of a
complaint de novo, accepting the plaintiffs’ well-pleaded alle-
gations as true. Cowell v. Palmer Twp., 263 F.3d 286, 290 (3d
Cir. 2001).
II. UNDER RESPA, THE LIMITATIONS PERIOD FOR
EACH KICKBACK ACCRUES SEPARATELY
Blake and Orkis first need a theory to span the time from at
least 2006 to 2010. There are two possibilities: the separate-
accrual rule and the continuing-violations doctrine. Blake and
Orkis invoke the separate-accrual rule, claiming that each kick-
back is a discrete violation with its own limitations period.
JP Morgan replies that the only alleged violations were at
the mortgage closings in 2005 and 2006. But much of JP Mor-
gan’s argument targets the continuing-violations doctrine,
largely ignoring the separate-accrual rule. So the parties argue
past each other. And the text of the Act is clear: each kickback
is a separately accruing violation.
A. We can decide this question
But first, Blake and Orkis argue that we cannot even reach
this issue because they did not raise it on appeal and JP Morgan
did not cross-appeal. The District Court held that the separate-
8
accrual rule applied, so Blake and Orkis appealed only the
American Pipe issue. And without an appeal or cross-appeal,
we may not modify a judgment or change the parties’ rights.
Morley Const. Co. v. Md. Cas. Co., 300 U.S. 185, 191 (1937).
But we can affirm for any reason in the record. Id.; Nation-
wide Mut. Ins. Co. v. Cosenza, 258 F.3d 197, 205 (3d Cir.
2001). And both the separate-accrual rule and American Pipe
tolling go to the same basic question: is Blake’s and Orkis’s
suit timely? JP Morgan says no, because there were no new
wrongs after 2006. If we agreed, then we would affirm without
changing the judgment or altering the parties’ rights. Cf. Con-
nell v. Trs. of the Pension Fund of the Ironworkers Dist. Coun-
cil of N. N.J., 118 F.3d 154, 156-158 (3d Cir. 1997) (dismissing
suit as time-barred without a cross-appeal). So we can reach
this question without a cross-appeal.
B. The Act’s plain text provides that the limitations pe-
riod accrues separately for each kickback
1. Separate accrual, not continuing violations. We must
decide which actions trigger the statute of limitations: the clos-
ings or the individual kickbacks. The “standard rule” is that a
federal cause of action accrues, and the limitations period starts
to run, when and only when “the plaintiff can file suit and ob-
tain relief” for that particular wrong. Bay Area Laundry & Dry
Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal., 522 U.S.
192, 201 (1997). “Congress has been operating against the
background rule recognized in Bay Area Laundry for a very
long time.” TRW Inc. v. Andrews, 534 U.S. 19, 38 (2001)
(Scalia, J., concurring in the judgment). We have no reason to
depart from it here.
9
A corollary of the standard rule is the separate-accrual rule.
In other words, “when a defendant commits successive viola-
tions, the statute of limitations runs separately from each vio-
lation.” Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663,
671 (2014). The separate-accrual rule governs laws that ban
discrete wrongs, like copying a copyrighted work or defraud-
ing investors. Id.; see Gabelli v. SEC, 568 U.S. 442, 447-48
(2013). Because each act violates the law on its own, each act
separately triggers its own limitations period. Petrella, 572
U.S. at 671. And because each violation is its own claim, plain-
tiffs can sue only for those claims that were timely when they
filed suit. Id. at 671-72.
But not all wrongs are discrete wrongs. Some wrongs are
diffuse and comprise many acts over a period of time, like hos-
tile work environments. E.g., Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 115 (2002). These are called continuing
violations. No single act may be enough to make out a claim.
So the statute of limitations runs from the last act of the illegal
conduct. Id. at 118. And though the last act triggers the statute
of limitations, a plaintiff challenging a continuing violation
may sue for all acts that make out his claim, even acts that pre-
date the limitations period. See id. at 122.
So which rule applies depends on the wording of the law.
If the law forbids a discrete act, as most do, then the separate-
accrual rule governs each act. But if it forbids diffuse conduct,
comprising many acts at different times, then the continuing-
violation doctrine applies. Petrella, 572 U.S. at 671-72 nn.6 &
7.
10
The parties argue past each other about which doctrine ap-
plies to Blake and Orkis’s case. Blake and Orkis say that this
is a separate-accrual case. But JP Morgan argues that this is a
continuing-violations case—while denying that this doctrine
applies and saying that the only violation was at closing.
2. The plain text. The separate-accrual rule applies here be-
cause the Act forbids the discrete act of giving or taking a kick-
back.
Like many laws, the Act’s one-year statute of limitations
runs “from the date of the occurrence of the violation.” 12
U.S.C. § 2614. So when the limitations period starts turns on
what the violation is. Section 2607(a) in turn bans “giv[ing]”
or “accept[ing] any fee, kickback, or thing of value pursuant to
any agreement or understanding . . . that business incident to or
a part of a real estate settlement service . . . shall be referred to
any person.”
As the text says, the precise conduct that violates the Act is
giving or accepting a kickback. The agreement to make refer-
rals is only an attendant circumstance. An agreement must ex-
ist at the time of the kickback, but an agreement on its own
does not violate § 2607(a). So a party violates the Act anew
each time it takes the discrete act of giving or receiving a kick-
back under an agreement to make referrals.
JP Morgan rightly insists that the continuing-violations
doctrine does not apply here. But that is beside the point. The
Act does not require Blake and Orkis to show a diffuse scheme
of illegal conduct, encompassing many kickbacks—it forbids
even a single a kickback for a single referral. 12 U.S.C.
11
§ 2607(a). So the separate-accrual rule applies, giving each dis-
crete kickback its own limitations period.
3. JP Morgan’s textual arguments. JP Morgan disagrees.
It claims that one can violate the Act only at closing, when one
agrees to the stream of kickbacks. It offers many textual and
policy arguments. None has merit.
First, JP Morgan argues that the Act’s statute of limitations
runs from the date of the “violation,” singular. Id. § 2614. So it
reasons that the Act forbids only a single act like agreeing to
kickbacks, not receiving individual kickbacks repeated over
time. But the reference to a single “violation” changes nothing.
The Act forbids even a single kickback, and each kickback is a
singular violation.
Second, JP Morgan claims that the Act focuses on mort-
gage closings to reduce the costs of settlement services. Id.
§ 2601. According to JP Morgan, this focus means that only
actions at closing violate the Act. But the Act’s stated purpose
is “the elimination of kickbacks or referral fees that tend to in-
crease unnecessarily the costs of certain settlement services.”
Id. § 2601(b)(2) (emphasis added). So the Act focuses on ban-
ning any kickback for referring settlement services, and giving
or taking that kickback violates the Act’s text. See id.
§ 2607(a). Those kickbacks, whether paid at closing or later,
could increase the cost of settlement services for everyone.
Third, JP Morgan says the Act forbids giving or taking a
“thing of value” for referrals, which includes the agreement at
closing for kickbacks. Id. § 2607(a). We need not decide
whether an agreement to provide kickbacks would amount to a
12
separate violation of the Act. Cf. Snow v. First Am. Title Ins.
Co., 332 F.3d 356, 360 (5th Cir. 2003) (rejecting an attempt to
split one discrete kickback into separate violations). Even if an
agreement for kickbacks did qualify, so would the actual kick-
backs. And the statute does not require that the kickback be
paid at closing. The one-year limitations period runs separately
from the giving or taking of each discrete kickback, whether
paid at closing or later.
4. JP Morgan’s policy arguments. Because the separate-
accrual rule governs, JP Morgan’s policy arguments also lack
merit. For example, it fears that letting Blake and Orkis sue
will extend the statute of limitations for too long. It frets that
this lawsuit will prompt others to wait before suing, letting
memories fade and evidence decay. And it worries that restart-
ing the statute of limitations for each kickback will treat like
plaintiffs unalike, depending on how the defendants structured
their conduct.
But these are no answer to the separate-accrual rule. If a
defendant fears indefinite liability, it need only cease its illegal
conduct. Parties still have incentives to sue promptly, because
the only kickbacks they may challenge are those given or taken
within one year of their lawsuits. See Petrella, 572 U.S. at 671-
72. And whether one plaintiff has longer to sue than another
depends only on whether a defendant has continued to harm
him.
5. Precedent supports our holding. Finally, JP Morgan in-
sists that both the Fifth Circuit’s precedent and our own require
pegging the statute of limitations to the time of closing. See
Cunningham v. M&T Bank Corp., 814 F.3d 156 (3d Cir. 2016);
13
Snow v. First Am. Title Ins. Co., 332 F.3d 356 (5th Cir. 2003).
But both cases accord with our holding today.
We never resolved this issue in Cunningham because the
parties treated the closing date as the accrual date. In that case,
the plaintiffs recounted the same scheme as Blake and Orkis:
that their mortgage insurers had given their banks a series of
kickbacks for referrals. Cunningham v. M&T Bank Corp., No.
1:12-cv-1238, 2015 WL 539761, at *1 (M.D. Pa. Feb. 10,
2015). We said in passing that the statute of limitations ran
from “the closing of the loan.” Cunningham, 814 F.3d at 160.
But the Cunningham plaintiffs had conceded that they had filed
outside the statute of limitations. 2015 WL 539761, at *3. They
argued only for equitable tolling. So we had no reason to inter-
pret the Act’s statute of limitations.
And the Fifth Circuit’s decision in Snow supports our own.
JP Morgan reads Snow as laying down a rule that the Act’s
statute of limitations runs only from the mortgage closing. But
Snow does not say that. In that particular case, the limitations
period ran from the date of closing because that was the only
date of a transfer—a different kind of violation from the kick-
back scheme alleged here. Snow, 332 F.3d at 359. And Snow
acknowledged that in other cases, buyers could pay for a set-
tlement service “at a time other than the closing.” Id. at 359
n.3. In that case, the trigger for the limitations period “presum-
ably would be the date of payment, not the unrelated closing.”
Id. So each kickback has its own limitation period.
6. Blake and Orkis have alleged separate violations. Be-
cause the Act follows the separate-accrual rule, Blake and
Orkis’s suit would have been timely in 2011. They claim that
14
JP Morgan accepted kickbacks until at least the end of 2010.
And they allege that JP Morgan agreed to refer business to their
mortgage insurers. So they have alleged that JP Morgan vio-
lated the act in 2010 by taking kickbacks under an agreement
to refer settlement services. Their suit would thus have been
timely in late 2011, but only for kickbacks paid in late 2010.
III. UNDER AMERICAN PIPE, A PENDING CLASS ACTION
TOLLS THE TIME ONLY FOR PUTATIVE CLASS MEMBERS’
INDIVIDUAL CLAIMS—NOT THEIR CLASS CLAIMS
Next, Blake and Orkis must bridge the time from 2011
(when Samp was filed) to 2013 (when they filed their own class
action). To do that, they seek American Pipe tolling because
they were members of the putative Samp class. But in China
Agritech, the Supreme Court reasoned that American Pipe toll-
ing is available only for individual claims, not for class claims.
On appeal, Blake and Orkis raise only one theory to save their
case: that China Agritech does not apply because they filed
their class claims before Samp ended. But that distinction
makes no difference. So their suit is untimely.
A. China Agritech limited American Pipe tolling to indi-
vidual claims
1. American Pipe tolling explained. The Supreme Court has
long held that a timely class action tolls the claims of all puta-
tive class members. American Pipe, 414 U.S. at 552-53; see
Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 350 (1983).
The Court has given two main reasons for its holding. First,
tolling is needed to avoid duplicative lawsuits. American Pipe,
414 U.S. at 551, 553-54. Putative class members should be able
15
to wait on the sidelines pending class certification, hoping for
a victory in the class action. Without tolling, they might try to
protect their claims by flooding courts with individual law-
suits—“precisely the multiplicity of activity which Rule 23
was designed to avoid.” Id. at 551.
Second, tolling is fair to both sides. Id. at 554. Statutes of
limitations encourage plaintiffs to sue promptly and prevent
surprises to defendants. But putative class members reasonably
expect the class action to protect their claims. And the class
action gives defendants ample notice.
2. American Pipe tolling does not apply to new class ac-
tions. The Supreme Court has since limited American Pipe toll-
ing to individual claims. Courts may not toll new class actions
just because there was a prior timely class action. China
Agritech, 138 S. Ct. at 1811. Doing so would cause problems
in three ways.
First, tolling new class actions would breed duplicative
lawsuits instead of reducing them. Id. at 1807. Plaintiffs could
file new class actions after class certification was denied, un-
dermining Rule 23’s instruction to resolve class certification
“early.” Id. (quoting Fed. R. Civ. P. 23(c)(1)(A)). Instead, they
should file class actions “at the outset of the case.” Id. This lets
courts resolve up front both whether to grant class certification
and which plaintiff will lead the class, once and for all.
Second, tolling new class actions would be inequitable. A
would-be class claimant cannot say that he was hoping the first
class action would protect his claim, because he could have
16
sought lead-plaintiff status or brought his own claim. See id. at
1808. He would have “slept on [his] rights.” Id.And last, tolling new class actions would encourage repet-
itive claims. Id. at 1809. For new individual claims, any tolling
is “finite, extended only by the time the class suit was pend-
ing.” Id. But new class actions would re-toll all class actions,
letting class claimants stack their claims forever.
So “the rule [the Court] adopt[ed]” was unequivocal: “Time
to file a class action falls outside the bounds of American
Pipe.” Id. at 1811.
B. It does not matter that Samp was pending when
Blake and Orkis sued
Blake and Orkis try to distinguish their case from China
Agritech. They note that China Agritech’s posture was like
American Pipe’s: the first class action had fully ended when
the new plaintiffs filed their own action. See Resh v. China
Agritech, Inc., 857 F.3d 994, 998 (9th Cir. 2017), rev’d by
China Agritech, 138 S. Ct. 1800. But Blake and Orkis filed
their suit while Samp was pending on appeal. So they say that
their case is distinguishable.
But that is a distinction without a difference. To support it,
they selectively quote a few sentences and phrases from China
Agritech. For example, that case does say that Rule 23 “per-
mit[s] district courts to take account of multiple class-repre-
sentative filings.” 138 S. Ct. at 1807. And it explains that “mul-
tiple filings may aid a district court in determining, early on,
whether class treatment is warranted.” Id. at 1811. But in con-
text, those statements mean only that plaintiffs should file their
17
class actions and sort out lead-plaintiff status within the statute
of limitations. They presuppose “[m]ultiple timely filings.” Id.(emphasis added).
Elsewhere, China Agritech is clear and unequivocal: courts
may not toll new class actions under American Pipe, period.
E.g., id. at 1811; see also In re Celexa & Lexapro Mktg. &
Sales Practices Litig., 915 F.3d 1, 16-17 (1st Cir. 2019) (sug-
gesting this view of China Agritech); Weitzner v. Sanofi Pas-
teur Inc., 909 F.3d 604, 609-10 (3d Cir. 2018) (same). For ex-
ample, China Agritech “h[e]ld that American Pipe does not
permit a plaintiff who waits out the statute of limitations to pig-
gyback on an earlier, timely filed class action.” 138 S. Ct. at
1806. It explained that “Rule 23 evinces a preference for pre-
clusion of untimely successive class actions.” Id. at 1807. So
“the Rules do not offer . . . a reason to permit plaintiffs to ex-
hume failed class actions by filing new, untimely class claims.”
Id. at 1811.
China Agritech thus recognized that district courts can deal
with multiple filings and that additional filings may inform
whether to certify a class. But that was all in the context of
timely class filings. The Court meant only that class claimants
should file their claims within the statute of limitations so that
courts may decide up front whether to certify classes and which
plaintiffs should lead them. It never suggested that courts
should toll overlapping class actions.
And Blake and Orkis’s distinction is at odds with China
Agritech’s logic. Tolling new class actions filed while the first
one was pending would encourage more plaintiffs to seek sec-
ond bites at the apple. Those plaintiffs also would have slept
18
on their rights. This would all undermine Rule 23’s instruction
to resolve class certification early on. And it could lead to end-
less tolling, so long as each new class action overlapped the
previous one.
So Blake and Orkis’s proposed exception would swallow
China Agritech’s rule: a timely class action tolls its purported
class members’ individual claims, but never their class claims.
In so holding, we do not reach amendments to putative class
definitions, substitution of proposed class representatives, or
intervenors and objectors seeking to join a class action. E.g., In
re Cmty. Bank of N. Va., 622 F.3d 275, 298 (3d Cir. 2010) (al-
lowing an objector to intervene under the relation-back doc-
trine). We also do not reach whether tolling applies to Blake
and Orkis’s claims for individual relief even though they were
filed before Samp ended, as Blake and Orkis offer no reason
for their individual claims to survive other than those we reject
above. Our holding today is limited to American Pipe tolling
and its inapplicability to successive class actions.
*****
Blake and Orkis are right that, under the Act, each discrete
kickback separately triggers its own limitations period. That
means their suit would have been timely in 2011. But the pen-
dency of the Samp class action from 2011 to 2013 does not toll
the time for filing a second class action. So their suit is un-
timely, and we will affirm.
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