The Eleventh Circuit has reaffirmed the rule announced in Griffin v. Singletary, 17 F.3d 356 (11th Cir. 1994), that there can be no piggybacking of successive class actions for statute of limitations purposes regardless of the reason the first class action failed. The Eleventh Circuit’s opinion in Ewing Industries Corp. v. Bob Wines Nursery, Inc., No. 14-13842, acknowledges that the rule in Griffin has been distinguished by the Sixth, Seventh, and Ninth Circuits and expressly rejected by the Third and Eighth Circuits. Nonetheless, it adhered to Griffin under the prior panel precedent rule. Given the disagreement in the circuits, this issue is a candidate for Supreme Court review or en banc review by the Eleventh Circuit. In the meantime, plaintiffs in the Eleventh Circuit cannot use the pendency of a prior class action as a means to toll the statute of limitations for successive class actions. It should be noted that Ewing only applies to successive class actions. It does alter the rule that the pendency of a class action tolls the statute of limitations for individual class members.

In December 2006, Bob Wines Nursery sent several unsolicited fax advertisements to numerous businesses. In January 2010, Aero Financial, Inc. brought a putative class action in Florida state court against Bob Wines Nursery and its owner Robert L. Wines, Jr., alleging that these faxes violated the Telephone Consumer Protection Act (“TCPA”). The Florida court never reached the class certification issue in the Aero lawsuit. Instead, in June 2013, it determined that Aero lacked standing to pursue a TCPA claim and entered a summary judgment for the defendants.

On August 3, 2013, Plaintiff Ewing Industries Corporation, a member of the putative class in the Aero lawsuit, filed a second class action lawsuit against the same defendants in the federal district court for the Middle District of Florida. Ewing Industries alleged the same violations of the TCPA arising from the same December 2006 fax advertisements. Further, because the statute of limitations had expired in December 2010, Ewing Industries alleged that the statute had been tolled while the Aero lawsuit was pending.

The defendants moved to strike the class allegations and argued that, under Griffin, there can be no piggybacking of class actions for any reason. Ewing Industries countered that Griffin was distinguishable and noted that other federal circuit courts had held Griffin inapplicable when the first class action had failed, as was the case here, because of a deficiency in the class representative’s claim rather than the class itself. The district court rejected Ewing Industries argument and concluded that Griffin clearly prohibited tolling for successive class actions regardless of the reason the first class action had failed. Thus, it struck the class allegations.

On appeal, the Eleventh Circuit affirmed, concluding that Griffin had squarely rejected tolling for successive class actions regardless of “whether the first purported class action fails due to the inadequacy of the class representative or due to defects in the class itself.” The Eleventh Circuit noted that the Sixth, Seventh, and Ninth Circuits had distinguished Griffin from cases where the first class action fails because of a deficiency in the class representatives’ claim. It also noted that the Third and Eighth Circuits had expressly rejected Griffin as too rigid. Nonetheless, the Court concluded that, under the prior panel precedent rule, it had to apply Griffin.

Unless or until Ewing and Griffin are overruled by the Supreme Court or the Eleventh Circuit sitting en banc, they will continue to be the law in Florida, Georgia, and Alabama.

Balch & Bingham LLP has substantial experience defending class actions in both state and federal court. If you would like more information about our practice, please contact Greg Cook at or (205) 226-3426.