China Agritech, Inc. v. Resh , 201 L. Ed. 2d 123 ( 2018 )

(Slip Opinion) OCTOBER TERM, 2017 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CHINA AGRITECH, INC. v. RESH ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 17–432. Argued March 26, 2018—Decided June 11, 2018
American Pipe & Constr. Co. v. Utah, 414 U.S. 538, established that
the timely filing of a class action tolls the applicable statute of limita-
tions for all persons encompassed by the class complaint and that
members of a class that fails to gain certification can timely inter-
vene as individual plaintiffs in the still-pending action, shorn of its
class character. American Pipe’s tolling rule also applies to putative
class members who, after denial of class certification, “prefer to bring
an individual suit rather than intervene.” Crown, Cork & Seal Co. v.
Parker, 462 U.S. 345, 350. The question presented in this case is
whether American Pipe tolling applies not only to individual claims,
but to successive class actions as well.
This suit is the third class action brought on behalf of purchasers of
petitioner China Agritech’s common stock, alleging materially identi-
cal violations of the Securities Exchange Act of 1934. The Act has
both a two-year statute of limitations and a five-year statute of re-
pose, 28 U.S. C. §1658(b). Here, the accrual date for purposes of the
Act’s limitation period is February 3, 2011, and for the repose period,
November 12, 2009. Theodore Dean, a China Agritech shareholder,
filed the first class-action complaint on February 11, 2011. As re-
quired by the Private Securities Litigation Reform Act of 1995
(PSLRA), his counsel posted notice of the action and invited any
member of the purported class to move to serve as lead plaintiff. Six
shareholders sought lead-plaintiff status. On May 3, 2012, the Dis-
trict Court denied class certification; the action settled in September
2012, and the suit was dismissed. On October 4, Dean’s counsel filed
a new complaint (Smyth), still timely, with a new set of plaintiffs.
Eight shareholders sought lead-plaintiff appointment in response to
the PSLRA notice, but the District Court again denied class certifica-
2 CHINA AGRITECH, INC. v. RESH
Syllabus
tion. Thereafter, the Smyth plaintiffs settled their individual claims
and dismissed their suit.
Respondent Michael Resh, who did not seek lead-plaintiff status in
the earlier actions, filed the present class action in 2014, a year and a
half after the statute of limitations expired. The other respondents
moved to intervene in the suit commenced by Resh, seeking lead-
plaintiff status. The District Court dismissed the class complaint as
untimely, holding that the Dean and Smyth actions did not toll the
time to initiate class claims. The Ninth Circuit reversed, holding
that the reasoning of American Pipe extends to successive class
claims.
Held: Upon denial of class certification, a putative class member may
not, in lieu of promptly joining an existing suit or promptly filing an
individual action, commence a class action anew beyond the time al-
lowed by the applicable statute of limitations. Pp. 5–15.
(a) American Pipe and Crown, Cork addressed only putative class
members who wish to sue individually after a class-certification de-
nial. The “efficiency and economy of litigation” that support tolling of
individual claims, American Pipe, 414 U.S., at 553, do not support
maintenance of untimely successive class actions such as the one
brought by Resh. Economy of litigation favors delaying individual
claims until after a class-certification denial. With class claims, on
the other hand, efficiency favors early assertion of competing class
representative claims. If class treatment is appropriate, and all
would-be representatives have come forward, the district court can
select the best plaintiff with knowledge of the full array of potential
class representatives and class counsel. And if the class mechanism
is not a viable option, the decision denying certification will be made
at the outset of the case, litigated once for all would-be class repre-
sentatives.
Federal Rule of Procedure 23 evinces a preference for preclusion of
untimely successive class actions by instructing that class certifica-
tion should be resolved early on. The PSLRA, which governs this lit-
igation, evinces a similar preference, this time embodied in legisla-
tion providing for early notice and lead-plaintiff procedures. There is
little reason to allow plaintiffs who passed up opportunities to partic-
ipate in the first (and second) round of class litigation to enter the
fray several years after class proceedings first commenced.
Class representatives who commence suit after expiration of the
limitation period are unlikely to qualify as diligent in asserting
claims and pursuing relief. See, e.g., McQuiggin v. Perkins, 569 U.S.
383, 391. And respondents’ proposed reading would allow extension
of the statute of limitations time and again; as each class is denied
certification, a new named plaintiff could file a class complaint that
Cite as: 584 U. S. ____ (2018) 3
Syllabus
resuscitates the litigation. Endless tolling of a statute of limitations
is not a result envisioned by American Pipe. Pp. 5–11.
(b) If Resh’s suit meets the requirements of Rule 23(a) and (b), re-
spondents assert, the suit should be permitted to proceed as a class
action in keeping with Shady Grove Orthopedic Associates, P. A. v.
Allstate Ins. Co., 559 U.S. 393. Shady Grove, however, addressed a
case in which a Rule 23 class action could have been maintained ab-
sent a state law proscribing class actions, while Resh’s class action
would be untimely unless saved by American Pipe’s tolling exception.
Rule 23 itself does not address timeliness of claims or tolling and
nothing in the Rule calls for the revival of class claims if individual
claims are tolled.
The clarification of American Pipe’s reach does not run afoul of the
Rules Enabling Act by abridging or modifying a substantive right.
Plaintiffs have no substantive right to bring claims outside the stat-
ute of limitations. Nor is the clarification likely to cause a substan-
tial increase in the number of protective class-action filings. Several
Courts of Appeals have already declined to read American Pipe to
permit a successive class action filed outside the limitations period,
and there is no showing that these Circuits have experienced a dis-
proportionate number of duplicative, protective class-action filings.
Multiple filings, moreover, could aid a district court in determining,
early on, whether class treatment is warranted, and if so, who would
be the best representative. The Federal Rules provide a range of
mechanisms to aid district courts in overseeing complex litigation,
but they offer no reason to permit plaintiffs to exhume failed class ac-
tions by filing new, untimely class claims. Pp. 11–15.
857 F.3d 994, reversed and remanded.
GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, THOMAS, BREYER, ALITO, KAGAN, and GORSUCH, JJ.,
joined. SOTOMAYOR, J., filed an opinion concurring in the judgment.
Cite as: 584 U. S. ____ (2018) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–432
_________________
CHINA AGRITECH, INC., PETITIONER v.
MICHAEL H. RESH, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 11, 2018]
JUSTICE GINSBURG delivered the opinion of the Court.
This case concerns the tolling rule first stated in Ameri-
can Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974). The
Court held in American Pipe that the timely filing of a
class action tolls the applicable statute of limitations for
all persons encompassed by the class complaint. Where
class-action status has been denied, the Court further
ruled, members of the failed class could timely intervene
as individual plaintiffs in the still-pending action, shorn of
its class character. See id., at 544, 552–553. Later, in
Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983),
the Court clarified American Pipe’s tolling rule: The rule is
not dependent on intervening in or joining an existing
suit; it applies as well to putative class members who,
after denial of class certification, “prefer to bring an indi-
vidual suit rather than intervene . . . once the economies of
a class action [are] no longer available.” 462 U.S., at 350,
353–354; see California Public Employees’ Retirement
System v. ANZ Securities, Inc., 582 U. S. ___, ___ (2017)
(slip op., at 13) (American Pipe “permitt[ed] a class action
to splinter into individual suits”); Smith v. Bayer Corp.,
2 CHINA AGRITECH, INC. v. RESH
Opinion of the Court
564 U.S. 299, 313–314, n. 10 (2011) (under American Pipe
tolling rule, “a putative member of an uncertified class
may wait until after the court rules on the certification
motion to file an individual claim or move to intervene in
the [existing] suit”).
The question presented in the case now before us: Upon
denial of class certification, may a putative class member,
in lieu of promptly joining an existing suit or promptly
filing an individual action, commence a class action anew
beyond the time allowed by the applicable statute of limi-
tations? Our answer is no. American Pipe tolls the stat-
ute of limitations during the pendency of a putative class
action, allowing unnamed class members to join the action
individually or file individual claims if the class fails. But
American Pipe does not permit the maintenance of a
follow-on class action past expiration of the statute of
limitations.
I
The instant suit is the third class action brought on
behalf of purchasers of petitioner China Agritech’s com-
mon stock, alleging violations of the Securities Exchange
Act of 1934, 48 Stat. 881, as amended, 15 U.S. C. §78a
et seq. In short, the successive complaints each make
materially identical allegations that China Agritech en-
gaged in fraud and misleading business practices, causing
the company’s stock price to plummet when several re-
ports brought the misconduct to light. See App. 60–100
(Resh complaint), 205–235 (Smyth complaint), 133–156
(Dean complaint). The Exchange Act has a two-year
statute of limitations that begins to run upon discovery of
the facts constituting the violation. 28 U.S. C. §1658(b).
The Act also has a five-year statute of repose. Ibid.1 The
——————
1 A statute of limitations “begin[s] to run when the cause of action
accrues—that is, when the plaintiff can file suit and obtain relief.”
California Public Employees’ Retirement System v. ANZ Securities, Inc.,
Cite as: 584 U. S. ____ (2018) 3
Opinion of the Court
parties agree that the accrual date for purposes of the two-
year limitation period is February 3, 2011, and for the
five-year repose period, November 12, 2009. Brief for
Respondents 8, n. 3.
Theodore Dean, a China Agritech shareholder, filed the
first class-action complaint on February 11, 2011, at the
start of the two-year limitation period. As required by the
Private Securities Litigation Reform Act of 1995 (PSLRA),
109 Stat. 737, Dean’s counsel posted notice of the action in
two “widely circulated national business-oriented publica-
tion[s],” 15 U.S. C. §78u–4(a)(3)(A)(i), and invited any
member of the purported class to move to serve as lead
plaintiff. App. 274–280. Six shareholders responded to
the notice, seeking to be named lead plaintiffs; other
shareholders who had filed their own class complaints
dismissed them in view of the Dean action. On May 3,
2012, after several months of discovery and deferral of a
lead-plaintiff ruling, the District Court denied class certi-
fication. The plaintiffs, the District Court determined,
had failed to establish that China Agritech stock traded on
an efficient market—a necessity for proving reliance on a
classwide basis. App. 192. Dean’s counsel then published
a notice informing shareholders of the certification denial
and advising: “You must act yourself to protect your
rights. You may protect your rights by joining in the
current Action as a plaintiff or by filing your own action
against China Agritech.” Id., at 281–282. The Dean
action settled in September 2012, occasioning dismissal of
the suit. See 857 F.3d 994, 998 (CA9 2017).
On October 4, 2012—within the two-year statute of
limitations—Dean’s counsel filed a new complaint (Smyth)
——————
582 U. S. ___, ___ (2017) (slip op., at 5) (internal quotation marks
omitted). A statute of repose, by contrast, “begin[s] to run on the date
of the last culpable act or omission of the defendant.” Ibid. (internal
quotation marks omitted).
4 CHINA AGRITECH, INC. v. RESH
Opinion of the Court
with a new set of plaintiffs and new efficient-market
evidence. Eight shareholders responded to the PSLRA
notice, seeking lead-plaintiff appointment. The District
Court again denied class certification, this time on typical-
ity and adequacy grounds. See App. 254. Thereafter, the
Smyth plaintiffs settled their individual claims with the
defendants and voluntarily dismissed their suit. Because
the Smyth litigation was timely commenced, putative class
members who promptly initiated individual suits in the
wake of the class-action denial would have encountered no
statute of limitations bar.
Respondent Michael Resh, who had not sought lead-
plaintiff status in either the Dean or Smyth proceedings
and was represented by counsel who had not appeared in
the earlier actions, filed the present suit on June 30, 2014,
styling it a class action—a year and a half after the stat-
ute of limitations expired. The other respondents moved
to intervene, seeking designation as lead plaintiffs; to-
gether with Resh, they filed an amended complaint. The
District Court dismissed the class complaint as untimely,
holding that the Dean and Smyth actions did not toll the
time to initiate class claims. App. to Pet. for Cert. 36a.
The Court of Appeals for the Ninth Circuit reversed:
“[P]ermitting future class action named plaintiffs, who
were unnamed class members in previously uncertified
classes, to avail themselves of American Pipe tolling,” the
court reasoned, “would advance the policy objectives that
led the Supreme Court to permit tolling in the first place.”
857 F.3d, at 1004. Applying American Pipe tolling to
successive class actions, the Ninth Circuit added, would
cause no unfair surprise to defendants and would promote
economy of litigation by reducing incentives for filing
protective class suits during the pendency of an initial
certification motion. 857 F.3d, at 1004.
We granted certiorari, 583 U. S. ___ (2017), in view of a
division of authority among the Courts of Appeals over
Cite as: 584 U. S. ____ (2018) 5
Opinion of the Court
whether otherwise-untimely successive class claims may
be salvaged by American Pipe tolling. Compare the in-
stant case and Phipps v. Wal-Mart Stores, Inc., 792 F.3d
637, 652–653 (CA6 2015) (applying American Pipe tolling
to successive class action), with, e.g., Basch v. Ground
Round, Inc., 139 F.3d 6, 11 (CA1 1998) (“Plaintiffs may
not stack one class action on top of another and continue
to toll the statute of limitations indefinitely.”); Griffin
v. Singletary, 17 F.3d 356, 359 (CA11 1994) (similar);
Korwek v. Hunt, 827 F.2d 874, 879 (CA2 1987) (American
Pipe does not apply to successive class suits); Salazar-
Calderon v. Presidio Valley Farmers Assn., 765 F.2d 1334,
1351 (CA5 1985) (“Plaintiffs have no authority for their
contention that putative class members may piggyback
one class action onto another and thus toll the statute of
limitations indefinitely, nor have we found any.”). See
also Yang v. Odom, 392 F.3d 97, 112 (CA3 2004) (Ameri-
can Pipe tolling does not apply to successive class actions
where certification was previously denied due to a class
defect, but does apply when certification was denied based
on the putative representative’s deficiencies).
II
A
American Pipe established that “the commencement of
the original class suit tolls the running of the statute [of
limitations] for all purported members of the class who
make timely motions to intervene after the court has
found the suit inappropriate for class action status.” 414
U.S., at 553. “A contrary rule,” the Court reasoned in
American Pipe, “would deprive [Federal Rule of Civil
Procedure] 23 class actions of the efficiency and economy
of litigation which is a principal purpose of the procedure.”
Ibid. This is so, the Court explained, because without
tolling, “[p]otential class members would be induced to file
protective motions to intervene or to join in the event that
6 CHINA AGRITECH, INC. v. RESH
Opinion of the Court
a class was later found unsuitable.” Ibid. In Crown, Cork,
the Court further elaborated: Failure to extend the Ameri-
can Pipe rule “to class members filing separate actions,” in
addition to those who move to intervene, would result in “a
needless multiplicity of actions” filed by class members
preserving their individual claims—“precisely the situa-
tion that Federal Rule of Civil Procedure 23 and the toll-
ing rule of American Pipe were designed to avoid.” 462
U.S., at 351.
American Pipe and Crown, Cork addressed only putative
class members who wish to sue individually after a class-
certification denial. See, e.g., American Pipe, 414 U.S., at
552 (addressing “privilege of intervening in an individual
suit”); Crown, Cork, 462 U.S., at 349 (applying American
Pipe to those who “file individual actions”); 462 U.S., at
352 (tolling benefits “class members who choose to file
separate suits”).
What about a putative class representative, like Resh,
who brings his claims as a new class action after the stat-
ute of limitations has expired? Neither decision so much
as hints that tolling extends to otherwise time-barred
class claims. We hold that American Pipe does not permit
a plaintiff who waits out the statute of limitations to
piggyback on an earlier, timely filed class action. The
“efficiency and economy of litigation” that support tolling
of individual claims, American Pipe, 414 U.S., at 553, do
not support maintenance of untimely successive class
actions; any additional class filings should be made early
on, soon after the commencement of the first action seek-
ing class certification.
American Pipe tolls the limitation period for individual
claims because economy of litigation favors delaying those
claims until after a class-certification denial. If certifica-
tion is granted, the claims will proceed as a class and
there would be no need for the assertion of any claim
individually. If certification is denied, only then would it
Cite as: 584 U. S. ____ (2018) 7
Opinion of the Court
be necessary to pursue claims individually.
With class claims, on the other hand, efficiency favors
early assertion of competing class representative claims.
If class treatment is appropriate, and all would-be repre-
sentatives have come forward, the district court can select
the best plaintiff with knowledge of the full array of po-
tential class representatives and class counsel. And if
the class mechanism is not a viable option for the claims,
the decision denying certification will be made at the
outset of the case, litigated once for all would-be class
representatives.2
Rule 23 evinces a preference for preclusion of untimely
successive class actions by instructing that class certifica-
tion should be resolved early on. See Fed. Rule Civ. Proc.
23(c)(1)(A). Indeed, Rule 23(c) was amended in 2003 to
permit district courts to take account of multiple class-
representative filings. Before the amendment, Rule 23(c)
encouraged district courts to issue certification rulings “as
soon as practicable.” The amendment changed the rec-
ommended timing target to “an early practicable time.”
The alteration was made to allow greater leeway, more
time for class discovery, and additional time to “explore
designation of class counsel” and consider “additional
——————
2 Encouraging early class filings will help ensure sufficient time re-
mains under the statute of limitations, in the event that certification is
denied for one of the actions or a portion of the class. Subclasses might
be pleaded in one or more complaints and taken up if necessary; as
class discovery proceeds and weaknesses in the class theory or adequacy
of representation come to light, the lead complaint might be amended
or a new plaintiff might intervene. See Brief of Plaintiffs in Post-Dukes
Successor Class Actions as Amici Curiae 8–10 (describing regional
subclasses asserted in the Dukes v. Wal-Mart litigation following this
Court’s decision decertifying the nationwide class, Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338 (2011)); Pierce, Improving Predictability
and Consistency in Class Action Tolling, 23 Geo. Mason L. Rev. 339,
349 (2016) (some Dukes plaintiffs moved to amend the original com-
plaint to replead subclasses).
8 CHINA AGRITECH, INC. v. RESH
Opinion of the Court
[class counsel] applications rather than deny class certifi-
cation,” thus “afford[ing] the best possible representation
for the class.” Advisory Committee’s 2003 Note on subds.
(c)(1)(A) and (g)(2)(A) of Fed. Rule Civ. Proc. 23, 28
U.S. C. App., pp. 815, 818; see Willging & Lee, From
Class Actions to Multidistrict Consolidations: Aggregate
Mass-Tort Litigation after Ortiz, 58 U. Kan. L. Rev. 775,
785 (2010) (2003 amendments “raised the standard for
certifying a class from an early, conditional ruling to a
later, relatively final decision” and “expand[ed] the oppor-
tunity for parties to engage in discovery prior to moving
for class certification”).
The PSLRA, which governs this litigation, evinces a
similar preference, this time embodied in legislation, for
grouping class-representative filings at the outset of litiga-
tion. See supra, at 3. When the Dean and Smyth timely
commenced actions were first filed, counsel put any
shareholder who might wish to serve as lead plaintiff on
notice of the action. Several heeded the call—six in Dean
and eight in Smyth. See 857 F.3d, at 997–998. The
PSLRA, by requiring notice of the commencement of a
class action, aims to draw all potential lead plaintiffs into
the suit so that the district court will have the full roster
of contenders before deciding which contender to appoint.3
——————
3 Although the Private Securities Litigation Reform Act of 1995
(PSLRA), 109 Stat. 737, includes a presumption that the most adequate
plaintiff is the one who moves first and has the largest financial inter-
est in the case, see 15 U.S. C. §78u–4(a)(3)(B)(iii)(I), multiple potential
lead plaintiffs have reason to apply for the role because there may not
be an obvious candidate. Which plaintiff has the largest financial
interest may not be immediately apparent; the statute does not define
the term, and the size of a shareholder’s financial interest can depend
on how many shares were purchased and sold, when, and at what price,
as well as the order in which the losses are tallied. See, e.g., Cortina v.
Anavex Life Sciences Corp., 2016 WL 1337305 (SDNY, Apr. 5, 2016).
District courts often permit aggregation of plaintiffs into plaintiff
groups, so even a small shareholder could apply for lead-plaintiff
Cite as: 584 U. S. ____ (2018) 9
Opinion of the Court
See Brief for Securities Industry and Financial Markets
Association as Amicus Curiae 12–13 (PSLRA “seeks to
achieve Congress[’] goal of curbing duplicative . . . litiga-
tion by encouraging all interested parties to apply to serve
as lead plaintiff at the early stages of the case [and]
providing for the consolidation of similar class actions”).
With notice and the opportunity to participate in the first
(and second) round of class litigation, there is little reason
to allow plaintiffs who passed up those opportunities to
enter the fray several years after class proceedings first
commenced.
Ordinarily, to benefit from equitable tolling, plaintiffs
must demonstrate that they have been diligent in pursuit
of their claims. See, e.g., McQuiggin v. Perkins, 569 U.S.
383, 391 (2013); Menominee Tribe of Wis. v. United States,
577 U. S. ___, ___ (2016) (slip op., at 5). Even American
Pipe, which did not analyze “criteria of the formal doctrine
of equitable tolling in any direct manner,” ANZ, 582 U. S.,
at ___–___ (slip op., at 10–11), observed that tolling was
permissible in the circumstances because plaintiffs who
later intervened to pursue individual claims had not slept
on their rights, American Pipe, 414 U.S., at 554–555.
Those plaintiffs reasonably relied on the class representa-
tive, who sued timely, to protect their interests in their
individual claims. See Crown, Cork, 462 U.S., at 350. A
would-be class representative who commences suit after
expiration of the limitation period, however, can hardly
qualify as diligent in asserting claims and pursuing relief.
——————
status, hoping to join with other shareholders to create a unit with the
largest financial interest. See Choi & Thompson, Securities Litigation
and Its Lawyers: Changes During the First Decade After the PSLRA,
106 Colum. L. Rev. 1489, 1507, 1521, 1530 (2006) (80% of securities
class actions in post-PSLRA data sample had two or more co-lead
counsel firms). Thus, it is a reasonable expectation that, in litigation
governed by the PSLRA, a district court will have several competing
candidates for lead plaintiff to choose among.
10 CHINA AGRITECH, INC. v. RESH
Opinion of the Court
Her interest in representing the class as lead plaintiff,
therefore, would not be preserved by the prior plaintiff ’s
timely filed class suit.
Respondents’ proposed reading would allow the statute
of limitations to be extended time and again; as each class
is denied certification, a new named plaintiff could file a
class complaint that resuscitates the litigation. See Yang,
392 F.3d, at 113 (Alito, J., concurring in part and dissent-
ing in part) (tolling for successive class actions could allow
“lawyers seeking to represent a plaintiff class [to] extend
the statute of limitations almost indefinitely until they
find a district court judge who is willing to certify the
class”); Ewing Industries Corp. v. Bob Wines Nursery, Inc.,
795 F.3d 1324, 1326 (CA11 2015) (tolling for successive
class actions allows plaintiffs “limitless bites at the ap-
ple”).4 This prospect points up a further distinction be-
tween the individual-claim tolling established by Ameri-
can Pipe and tolling for successive class actions. The time
to file individual actions once a class action ends is finite,
extended only by the time the class suit was pending; the
time for filing successive class suits, if tolling were al-
lowed, could be limitless. Respondents’ claims happen to
be governed by 28 U.S. C. §1658(b)(2)’s five-year statute
of repose, so the time to file complaints has a finite end.
Statutes of repose, however, are not ubiquitous. See
——————
4 Respondents observe that in Smith v. Bayer Corp., 564 U.S. 299
(2011), we held that federal class-certification denials do not have
preclusive effect in subsequent state-court suits, despite concerns about
successive class actions. See Brief for Respondents 40–41. But in
Smith, we were guided by “the fundamental nature of the general rule
that only parties can be bound by prior judgments.” 564 U.S., at 313
(internal quotation marks omitted). The state-court plaintiffs were not
parties to the federal-court litigation, hence they could not be bound by
its holding—despite a “stron[g] argument” about the inefficiencies of
serial class relitigation supporting the contrary position. Id., at 316.
No such countervailing presumption favors Resh’s untimely third
federal class suit.
Cite as: 584 U. S. ____ (2018) 11
Opinion of the Court
Dekalb County Pension Fund v. Transocean Ltd., 817 F.3d
393, 397 (CA2 2016). Most statutory schemes provide for
a single limitation period without any outer limit to safe-
guard against serial relitigation. Endless tolling of a
statute of limitations is not a result envisioned by Ameri-
can Pipe.5
B
Respondents emphasize that in Shady Grove Orthopedic
Associates, P. A. v. Allstate Ins. Co., 559 U.S. 393 (2010),
we said that “a class action may be maintained,” id., at
398 (internal quotation marks omitted), if the require-
ments of Rule 23(a) and (b) are satisfied, and “Rule 23
automatically applies in all civil actions and proceedings
in the United States district courts,” id., at 400 (internal
quotation marks omitted). See Brief for Respondents 21–
23. If Resh’s suit meets the requirements of Rule 23(a)
and (b), respondents assert, there is no reason why Resh’s
suit cannot proceed as a class action. Shady Grove does
not call for that outcome. In Shady Grove, the Court held
that a federal diversity action could proceed under Rule 23
despite a state law prohibiting class treatment of suits
——————
5 JUSTICE SOTOMAYOR suggests that the Court might adopt a rule
under which tolling “becomes unavailable for future class claims where
class certification is denied for a reason that bears on the suitability of
the claims for class treatment,” but not where “class certification is
denied because of the deficiencies of the lead plaintiff as class repre-
sentative.” Post, at 5; see Yang v. Odom, 392 F.3d 97, 112 (CA3 2004)
(embracing similar rule). But Rule 23 contains no instruction to give
denials of class certification different effect based on the reason for the
denial. And as the Advisory Committee Notes explain, affording
district courts time to consider competing claims for class representa-
tion will advance the likelihood that lead plaintiff or class counsel
deficiencies will be discovered and acted upon early in the litigation.
See supra, at 7–8. Rule 23 and putative class members’ own interests
in adequate representation, and the efficient adjudication thereof,
weigh heavily against tolling for successive class actions. There is
nothing inequitable in following these guides. See post, at 5, n. 2.
12 CHINA AGRITECH, INC. v. RESH
Opinion of the Court
seeking damages of the kind asserted in the Shady Grove
complaint. 559 U.S., at 396, 416. Our opinion in Shady
Grove addressed a case in which a Rule 23 class action
could have been maintained absent a contrary state-law
command. Id., at 396. Resh’s case presents the reverse
situation: The class action would be untimely unless saved
by American Pipe’s equitable-tolling exception to statutes
of limitations. Rule 23 itself does not address timeliness of
claims or tolling and nothing in the Rule calls for the
revival of class claims if individual claims are tolled. In
fact, as already explained, Rule 23 prescribes the opposite
result. See supra, at 6–8.
Today’s clarification of American Pipe’s reach does not
run afoul of the Rules Enabling Act by causing a plaintiff’s
attempted recourse to Rule 23 to abridge or modify a
substantive right. See Brief for Respondents 23–26 (citing
Tyson Foods, Inc. v. Bouaphakeo, 577 U. S. ___ (2016)).
Plaintiffs have no substantive right to bring their claims
outside the statute of limitations. That they may do so, in
limited circumstances, is due to a judicially crafted tolling
rule that itself does not abridge, enlarge, or modify any
substantive right. American Pipe, 414 U.S., at 558.
Without American Pipe, respondents would have no peg to
seek tolling here; as we have explained, however, Ameri-
can Pipe does not provide for the extension of the statute
of limitations sought by Resh for institution of an untimely
third class suit.
Respondents urge that American Pipe’s logic in fact
supports their position because declining to toll the limita-
tion period for successive class suits will lead to a “need-
less multiplicity” of protective class-action filings. Brief
for Respondents 32–34. See also post, at 6–7 (expressing
concern about duplicative and dueling class actions). But
there is little reason to think that protective class filings
will substantially increase. Several Courts of Appeals
have already declined to read American Pipe to permit a
Cite as: 584 U. S. ____ (2018) 13
Opinion of the Court
successive class action filed outside the limitation period.
See supra, at 5; 3 W. Rubenstein, Newberg on Class Ac-
tions §9:64, n. 5 (5th ed. 2012). These courts include the
Second and Fifth Circuits (no strangers to class-action
practice); both courts declined to entertain out-of-time
class actions in the 1980’s. See Korwek, 827 F.2d 874
(CA2 1987); Salazar-Calderon, 765 F.2d 1334 (CA5 1985).
Respondents and their amici make no showing that these
Circuits have experienced a disproportionate number of
duplicative, protective class-action filings.
Amicus National Conference on Public Employee Re-
tirement Systems cites examples of protective filings
responding to courts’ disallowance of American Pipe tolling
for statutes of repose, but those examples in fact suggest
that protective class filings are uncommon. See Brief of
the National Conference on Public Employee Retirement
Systems as Amicus Curiae 7–8. Between dozens and
hundreds of class plaintiffs filed protective individual
claims while class-certification motions were pending in
securities cases and the statute of repose was about to run
out, placing a permanent bar against their claims. Ibid.
But none of the plaintiffs appears to have filed a protective
class action—even though, if the statute of repose expired
and the pending class-certification motions were denied,
there would be no further opportunity to assert class
claims.6
Nor do the incentives of class-action practice suggest
that many more plaintiffs will file protective class claims
as a result of our holding. Any plaintiff whose individual
claim is worth litigating on its own rests secure in the
——————
6 The Second Circuit Petrobras litigation, referenced in amicus’ brief,
illustrates that multiple timely class filings do not sow unmanageable
chaos. Five class actions were filed there and consolidated, along with
individual claims, for pretrial purposes, including class-certification
determination. See In re Petrobras Securities, 862 F.3d 250, 258 (CA2
2017).
14 CHINA AGRITECH, INC. v. RESH
Opinion of the Court
knowledge that she can avail herself of American Pipe
tolling if certification is denied to a first putative class.
The plaintiff who seeks to preserve the ability to lead the
class—whether because her claim is too small to make an
individual suit worthwhile or because of an attendant
financial benefit7—has every reason to file a class action
early, and little reason to wait in the wings, giving another
plaintiff first shot at representation.
In any event, as previously explained, see supra, at 6–8,
a multiplicity of class-action filings is not necessarily
“needless.” Indeed, multiple filings may aid a district
court in determining, early on, whether class treatment is
warranted, and if so, which of the contenders would be the
best representative. And sooner rather than later filings
are just what Rule 23 encourages. See ibid. Multiple
timely filings might not line up neatly; they could be filed
in different districts, at different times—perhaps when
briefing on class certification has already begun—or on
behalf of only partially overlapping classes. See Wasser-
man, Dueling Class Actions, 80 B. U. L. Rev. 461, 464–465
(2000) (describing variety of “dueling” class filings). But
district courts have ample tools at their disposal to man-
age the suits, including the ability to stay, consolidate, or
transfer proceedings. District courts are increasingly
familiar with overseeing such complex cases, given the
surge in multidistrict litigation. See Cabraser & Issa-
charoff, The Participatory Class Action, 92 N. Y. U. L. Rev.
846, 850–851 (2017) (multidistrict litigation frequently
combines individual suits and multiple putative class
actions). The Federal Rules provide a range of mecha-
nisms to aid courts in this endeavor. What the Rules do
not offer is a reason to permit plaintiffs to exhume failed
——————
7 The class representative might receive a share of class recovery
above and beyond her individual claim. See, e.g., Cook v. Niedert, 142
F.3d 1004, 1016 (CA7 1998) (affirming class representative’s $25,000
incentive award).
Cite as: 584 U. S. ____ (2018) 15
Opinion of the Court
class actions by filing new, untimely class claims.
* * *
The watchwords of American Pipe are efficiency and
economy of litigation, a principal purpose of Rule 23 as
well. Extending American Pipe tolling to successive class
actions does not serve that purpose. The contrary rule,
allowing no tolling for out-of-time class actions, will propel
putative class representatives to file suit well within the
limitation period and seek certification promptly. For all
the above-stated reasons, it is the rule we adopt today:
Time to file a class action falls outside the bounds of Amer-
ican Pipe.
Accordingly, the judgment of the Court of Appeals for
the Ninth Circuit is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
Cite as: 584 U. S. ____ (2018) 1
SOTOMAYOR, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–432
_________________
CHINA AGRITECH, INC., PETITIONER v.
MICHAEL H. RESH, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 11, 2018]
JUSTICE SOTOMAYOR, concurring in the judgment.
I agree with the Court that in cases governed by the
Private Securities Litigation Reform Act of 1995 (PSLRA),
15 U.S. C. §78u–4, like this one, a plaintiff who seeks to
bring a successive class action may not rely on the tolling
rule established by American Pipe & Constr. Co. v. Utah,
414 U.S. 538 (1974). I cannot, however, join the majority
in going further by holding that the same is true for class
actions not subject to the PSLRA.
I
A
To understand why the PSLRA is essential to the con-
clusion the Court reaches here, recall that this case in-
volves a putative class-action lawsuit brought by a plain-
tiff with a timely individual claim, joined by coplaintiffs
with timely individual claims, on behalf of a putative class
of absent class members with timely individual claims.
See ante, at 4. One might naturally think, then, that the
class claims in the lawsuit are timely. The majority,
however, concludes that the named plaintiffs’ and putative
class members’ class claims are time barred.
At first blush, this result might seem surprising, for the
Court has rejected the idea that class claims are categori-
cally different from individual claims. See Shady Grove
2 CHINA AGRITECH, INC. v. RESH
SOTOMAYOR, J., concurring in judgment
Orthopedic Associates, P. A. v. Allstate Ins. Co., 559 U.S.
393, 398 (2010). Although it did not hold that class claims
may never be treated differently from individual claims,
Shady Grove indicates that there must be a special reason
for doing so.
Here, the PSLRA supplies that special reason. The
PSLRA imposes significant procedural requirements on
securities class actions that do not apply to individual or
traditionally joined securities claims. See §78u–4(a)(1).
Foremost among these requirements is a process for the
“[a]ppointment of lead plaintiff.” §78u–4(a)(3). Under the
PSLRA, the named plaintiff in a putative class action
must publish within 20 days of filing the complaint a
nationwide notice alerting putative class members to the
filing of the suit and informing them that, “not later than
60 days after the date on which the notice is published,
any member of the purported class may move the court to
serve as lead plaintiff.” §78u–4(a)(3)(A)(i). The district
court then must evaluate all prospective lead plaintiffs
and choose the “most adequate” one based on a set of
enumerated considerations. §78u–4(a)(3)(B). The PSLRA
thus contemplates a process by which all prospective class
representatives come forward in the first-filed class action
and make their arguments to the court for lead-plaintiff
status. See H. R. Conf. Rep. No. 104–369, p. 32 (1995).
Respondents here bypassed that statutory process.
They do not dispute that notice was published in the two
earlier-filed putative class actions concerning the same
securities claims as here, as required by the PSLRA. Yet
they did not seek to be chosen lead plaintiffs in either of
those actions. See ante, at 3–4, 8. For that reason alone, I
agree with the majority that respondents “can hardly
qualify as diligent in asserting [class] claims and pursuing
relief.” Ante, at 9. Respondents’ failure to utilize the
PSLRA’s lead-plaintiff selection procedure distinguishes
them from the American Pipe absent class members, who
Cite as: 584 U. S. ____ (2018) 3
SOTOMAYOR, J., concurring in judgment
were subject only to the traditional Federal Rule of Civil
Procedure 23 class procedure, which is “designed to avoid,
rather than encourage, unnecessary filing of repetitious
papers and motions.” 414 U.S., at 550.
Unlike the PSLRA, Rule 23 contains no requirement of
precertification notice to absent putative class members; it
provides only for postcertification notice. See Fed. Rule
Civ. Proc. 23(c)(2). There thus is no mechanism for absent
putative class members to learn that a putative class
action is pending, much less that they are entitled to seek
to displace the named plaintiff in that lawsuit as class
representative. Also unlike the PSLRA, Rule 23 contains
no process for a district court to choose from among the
various candidates for lead plaintiff, nor does it specify
what would make a person the most adequate representa-
tive of the class. See 7A C. Wright, A. Miller, & M. Kane,
Federal Practice and Procedure §1765, p. 321 (3d ed.
2005). In class actions not subject to the PSLRA, the class
representative is generally the first person who files the
suit, and so is self-selected (subject to an adequacy deter-
mination), rather than selected by the court.1 See Rule
23(a)(4) (“One or more members of a class may sue or be
sued as representative parties on behalf of all members
only if . . . the representative parties will fairly and ade-
quately protect the interests of the class”); Rule 23(c)(1)(A)
(“At an early practicable time after a person sues or is
sued as a class representative, the court must determine
——————
1 There may, of course, be competition among putative class members
to proceed on behalf of the putative class in an action not governed by
the PSLRA, and the district court generally considers their relative
qualities. But the point is that the court is not required by Rule 23 to
identify and designate as lead plaintiff the person most capable of
adequately representing the class; it is only required to determine for
certification purposes whether the class representative adequately
represents the class. See 7A Wright, Federal Practice and Procedure
§1765, at 321.
4 CHINA AGRITECH, INC. v. RESH
SOTOMAYOR, J., concurring in judgment
by order whether to certify the action as a class action”);
H. R. Conf. Rep. No. 104–369, at 33–35.
The majority points to Rule 23(c)’s requirement that the
determination whether to certify a class be made at “ ‘an
early practicable time,’ ” ante, at 7, but there is no signifi-
cance to that requirement with respect to the diligence of
would-be class representatives. The Advisory Committee
notes accompanying the 2003 amendment to Rule 23(c),
which changed the recommended timing for a certification
determination from “as soon as practicable” to “at an early
practicable time,” explained that the change would permit
time for “controlled discovery into the ‘merits,’ ” efforts by
defendants “to win dismissal or summary judgment as to
the individual plaintiffs without certification,” and the
considered “designation of class counsel.” Advisory Com-
mittee’s 2003 Notes on subd. (c)(1)(A) of Fed. Rule Civ.
Proc. 23, 28 U.S. C. App., p. 815. The notes say nothing
about lead-plaintiff selection, and Rule 23(c) in no way
ensures that potential lead plaintiffs know about the
putative class action or about their opportunity to repre-
sent the class.
Given these important differences between Rule 23’s
general class procedures and the specific procedures im-
posed by the PSLRA, the majority’s conclusion that absent
class members were not diligent because they failed to ask
to be the class representative in a prior suit makes sense
only in the PSLRA context. The same conclusion simply
does not follow in the generic Rule 23 context, where
absent class members are most likely unaware of the
existence of a putative class action. Cf. American Pipe,
414 U.S., at 551–552 (explaining that even absent class
members who are unaware of the putative class action are
entitled to tolling).
B
In addition to its focus on plaintiff diligence, the majority
Cite as: 584 U. S. ____ (2018) 5
SOTOMAYOR, J., concurring in judgment
offers a separate line of reasoning to support its broad
holding. It explains that its limitation on American Pipe
tolling is necessary to prevent a “limitless” series of class
actions, each rendered timely by the tolling effect of the
previous ones. Ante, at 10. As the majority acknowledges,
however, there is no such risk in this case, see ibid., be-
cause the applicable statute of repose puts a 5-year “outer
limit on the right to bring a civil action.” CTS Corp. v.
Waldburger, 573 U. S. ___, ___ (2014) (slip op., at 6). The
majority is right, of course, that in many other types of
cases, no statute of repose will apply. See ante, at 10–11.
But the Court has elsewhere pointed to the power of “com-
ity among courts to mitigate the sometimes substantial
costs of similar litigation brought by different plaintiffs.”
Smith v. Bayer Corp., 564 U.S. 299, 317 (2011). There is
no reason to assume that this existing safeguard will
prove inadequate if the Court holds that American Pipe
tolling is available for successive class actions outside the
PSLRA context.
Even if principles of comity prove insufficient such that
some modification to the American Pipe rule is necessary
to prevent indefinite tolling, a narrower form of redress is
available. Instead of adopting a blanket no-tolling-of-
class-claims-ever rule outside the PSLRA context, the
Court might hold, as a matter of equity, that tolling only
becomes unavailable for future class claims where class
certification is denied for a reason that bears on the suit-
ability of the claims for class treatment. Where, by con-
trast, class certification is denied because of the deficien-
cies of the lead plaintiff as class representative, or because
of some other nonsubstantive defect, tolling would remain
available.2 See Yang v. Odom, 392 F.3d 97, 112 (CA3
——————
2 Such an approach would, of course, be “grounded in the traditional
equitable powers of the judiciary,” which are “the source of the tolling
rule applied in American Pipe,” and not Rule 23, which “does not so
6 CHINA AGRITECH, INC. v. RESH
SOTOMAYOR, J., concurring in judgment
2004). This approach would, for instance, ensure that in
cases where the only problem with the first suit was the
identity of the named plaintiff, a new and more adequate
representative could file another suit to represent the
class. Preserving the opportunity for such a fix may seem
unimportant in a PSLRA case like this one, where the
court in the first-filed case will usually have a choice
among possible lead plaintiffs. See ante, at 8–9, n. 3. But,
as just explained, in class actions not subject to the
PSLRA, the certifying court often will have no choice as to
the class representative.
Whether this or another rule ultimately is the right one,
there is no need for the Court today to reach beyond the
facts of this case, where the specter of indefinite tolling is
merely hypothetical, and foreclose the possibility of a more
tailored approach.
C
Finally, the majority suggests that its broader approach
will encourage multiple potential class representatives to
come forward early, which may “aid a district court” in
making class certification decisions. Ante, at 14. This
may well be so in the PSLRA context, given the statute’s
notice requirement and built-in mechanism for selecting
the most adequate lead plaintiff. But in suits not covered
by the PSLRA, absent class members may not know of the
pending class action early enough to “aid” the court, and
will likely have to file a completely separate lawsuit if
what they seek is lead-plaintiff status.
In addition to increasing the number of unnecessary
filings, a result at odds with American Pipe’s concern with
avoiding “needless duplication,” 414 U.S., at 554, the
existence of multiple putative class actions covering the
——————
much as mention the extension or suspension of statutory time bars.”
California Public Employees’ Retirement System v. ANZ Securities, Inc.,
582 U. S. ___, ___ (2017) (slip op., at 10); see ante, at 11, n. 5.
Cite as: 584 U. S. ____ (2018) 7
SOTOMAYOR, J., concurring in judgment
same harm to the same class may lead to a “race toward
judgment or settlement.” Wasserman, Dueling Class
Actions, 80 B. U. L. Rev. 461, 472 (2000). Each class
lawyer knows that only the lawyers in the first-resolved
case will get paid, because the other suits will then be
dismissed on claim-preclusion grounds. Ibid. Defense
lawyers know this, too, so they are “able to engage in a
‘reverse auction,’ pitting the various class counsel against
one another and agreeing to settle with the lawyer willing
to accept the lowest bid on behalf of the class.” Id., at 473.
This gamesmanship is not in class members’ interest, nor
in the interest of justice. I therefore think it unwise to
encourage the filing of such dueling class actions outside
the PSLRA context.
II
Although there is ample support for denying American
Pipe tolling to successive class actions subject to the
PSLRA, the majority’s reasoning does not justify denying
American Pipe tolling to other successive class actions.
The majority could have avoided this error by limiting its
decision to the issues presented by the facts of this case.
Despite the Court’s misstep in adopting an unnecessarily
broad rule, district courts can help mitigate the potential
unfairness of denying American Pipe tolling to class claims
not subject to the PSLRA. Where appropriate, district
courts should liberally permit amendment of the pleadings
or intervention of new plaintiffs and counsel.
Because I agree with the majority’s conclusion just as
applied to class actions governed by the PSLRA, like this
one, I concur only in the judgment.