Antitrust Law Daily Wrap Up, PRIVACY—11th Cir.: Statute of limitations dooms TCPA class claims, (Aug 4, 2015)

By Greg Hammond, J.D.

A glass installation, work, and contracting company was properly precluded from bringing claims under the Telephone Consumer Protection Act (TCPA) for unsolicited facsimile advertisements, where the claims were not brought within the TCPA’s four-year statute of limitations. In affirming the lower court’s order striking the TCPA claims, the U.S. Court of Appeals in Atlanta determined that pendency of a class action does not toll the statute of limitations for a later class action, seeking to represent the same class, when suit was dismissed due to inadequacy of the class representative rather than a defect in the class itself (Ewing Industries Corp. v. Bob Wines Nursery, Inc., August 3, 2015, Cox, E.).

Ewing Industries Corp. filed suit against Bob Wines Nursery, Inc. and Robert L. Wines, alleging violations of the TCPA for sending unsolicited facsimile advertisements. Bob Wines previously obtained summary judgment in a similar class action because the alleged unlawful fax was not sent to the class representative. The lower court in the instant case granted Bob Wines’ motion to strike, finding the claims were time-barred under the TCPA’s four-year statute of limitations. On appeal, the court was required to consider whether the pendency of a purported class action tolls the statute of limitations for a later class action, seeking to represent the same class, when the original purported class action was dismissed due to the inadequacy of the class representative rather than a defect in the class itself.

The appeals court determined that its earlier decision in Griffin v. Singletary, 17 F.3d 356 (11th Cir. 1994) controls in this case. The Griffin court held that plaintiffs may not “piggyback one class action onto another” and thereby engage in endless rounds of litigation in the district court and appellate courts over the adequacy of successive named plaintiffs to serve as class representatives. Finding that Griffin concerns the very issue confronted in the instant dispute—the potential for multiple rounds of litigation as the class seeks an adequate class representative—the court concluded that the earlier class action did not toll the statute of limitations in this case. The lower court’s order granting Bob Wines’ motion to strike was therefore affirmed.

The case number is 14-13842.

Attorneys: Phillip Andrew Bock (Bock & Hatch, LLC) and Ryan Michael Kelly (Anderson + Wanca) for Ewing Industries Corp. Michael Resis (SmithAmundsen, LLC) and Russell Willliam LaPeer (Landt Wiechens LaPeer & Ayres, LLP) for Bob Wines Nursery, Inc. and Robert L. Wines.

Companies: Ewing Industries Corp.; Bob Wines Nursery, Inc.

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