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Tolling Issues in Class Actions | Troutman Pepper

Based on the facts before it, the Supreme Court in American Pipe limited the tolling of absent class member claims in at least two ways: (1) to cases in which class certification had been denied and (2) to cases in which the denial of class certification was not for lack of standing by the named plaintiff. American Pipe, 414 U.S. at 552–53. While American Pipe noted these limitations, courts have struggled with both restrictions because they can appear to lead to inequitable results and be inconsistent with the reasoning behind American Pipe. This has led some courts to allow tolling in both exceptions: cases without denial of class certification and case in which dismissal was based on the named plaintiff’s lack of standing. This has created conflict among lower courts.

Ninth Circuit Stresses District Court s Duty to Weigh Competing Expert Evidence at Class Certification | McGuireWoods LLP

In Olean Wholesale, litigation related to the long-running tuna price-fixing saga, purchasers of packaged seafood alleged a price-fixing conspiracy against the three largest domestic producers of packaged tuna. At class certification, the parties’ experts disagreed on whether a sufficient portion of the proposed class had been harmed by the alleged scheme. The plaintiffs’ expert “relied on statistical evidence in the form of a regression model which purports to prove that the price-fixing conspiracy harmed all, or nearly all, of the Class members.” The defendants’ expert challenged this methodology, arguing that this “model incorrectly assumed every direct purchaser was injured and necessarily in the same way.” Under these competing models, the plaintiffs’ expert concluded that a

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