In a recently issued opinion, the Virginia Supreme Court held that Virginia law does not permit either equitable or statutory tolling of a state statute of limitations based on the pendency of a putative class action. This decision provides a strong basis for early dismissals of state-law-based individual and class actions where the named plaintiffs were putative class members in a previously filed class action.
This opinion arose out of two certified questions from the United States Court of Appeals for the Second Circuit in the case Casey v. Merck, 2012 Va. LEXIS 48 (Va. Mar. 2, 2012). In Casey, the plaintiff, a Virginia resident, was a putative class member in a previously filed action in which the Southern District of New York denied class certification. Casey subsequently filed an individual state-law-based action in the Southern District of New York, which that court dismissed as barred by Virginia’s statute of limitations. Casey appealed to the Second Circuit, which certified two questions to the Virginia Supreme Court regarding equitable and statutory cross-jurisdictional tolling of Virginia statutes of limitations during the pendency of a putative class action.
As to equitable tolling, the Virginia Supreme Court found that Virginia law requires strict enforcement and application of Virginia statutes of limitations unless the Virginia legislature has created a clear exception to their enforcement. “[A]ny doubt must be resolved in favor of the enforcement of the statute.” Finding no authority in Virginia case law to support equitable tolling of a state statute of limitations due to the pendency of a putative class action in a foreign jurisdiction, the court held that Virginia law does not recognize such tolling.
As to statutory tolling, the Virginia Supreme Court distinguished Welding, Inc. v. Bland Cnty. Serv. Auth., 261 Va. 218 (2001), where it previously held that Virginia recognized cross-jurisdictional tolling for individual actions. The court held that statutory tolling is permitted only where the later action was filed by the same party-in-interest on the same cause of action as in the first-filed action. The court then held that because Virginia does not recognize class actions, a purported representative plaintiff in a class action lacks standing to assert the rights of putative class members under Virginia law. Accordingly, because there is no identity of parties between the named plaintiff in a previously filed class action and a later-filed individual action filed by a putative class member, there could be no statutory tolling.
For any questions regarding cross-jurisdictional tolling of state or federal statutes of limitations in the class action context please contact the authors.