Crown, Cork and Seal Company v. Parker Brief for Respondent

    No. 82418

In  T he

§u$tmup (Knurl nf %  Ittttrft ^tatra
October Term, 1982

Crown, Cork & Seal Company, Inc.,
v Petitioner,

T heodore Parker.

On Writ of Certiorari to the United States Court of Appeals 
for the Fourth Circuit

BRIEF FOR RESPONDENT

Norris C. Ramsey, P.A.*
712 Equitable Building 
Baltimore, Maryland 21202 
(301) 752-1646 

James L. F oster 
222 St. Paul PL, Suite 601 
Baltimore, Maryland 21202 
(301) 8374566 

W illiam L. Robinson 
Beatrice Rosenberg 
Norman J. Chachkin 
Ruth E. Gordon 

Lawyers’ Committee for Civil 
Rights Under Law 

733 15th Street, N.W., Suite 520 
Washington, D.C. 20005 
(202) 628-6700 

Attorneys for Respondent
* Counsel of Record

W ilson  - Ep e s  Printing  Co ., In c . - 7 8 9 - 0 0 9 6  - W a s h i n g t o n , D . C .  2 0 0 0 1



COUNTER-STATEMENT OF QUESTION PRESENTED

Whether equitable tolling principles, which suspend the 
running of statutes of limitations for class members’ in­
dividual claims during the pendency of a putative class 
action embracing those claims, permit class members only 
to intervene but not to file separate suits once class cer­
tification has been denied or revoked in that action.

(i)



TABLE OF CONTENTS
Page

Table of Authorities ........................................-...............  *v

Statement of the Case.......—..............................- ......... — 1

Summary of Argument ------- ---—....... -.................. ......  5

ARGUMENT—
The Pendency Of A Putative Class Action Tolls 
The Running Of The Statute Of Limitations For 
Individual Claims Of Members Of The Putative 
Class From The Time The Action Is Commenced 
Until Denial Of Class Certification .......................  7

Introduction ............ ................................................ -........  7
A. The Decision Below Correctly Construes And 

Applies This Court’s Ruling In American
Pipe —......... ...... ............. .............. —................. -  8
1. The basis for American P ipe ................. . 8
2. Scope of the American Pipe rule............. 9
3. Application of American Pipe to this case.. 10
4. The language and cases on which Crown

relies .....    13
B. Tolling the Statute Of Limitations In This Case

Is Consistent With The Purposes Of Limita­
tions Periods ............   17

Conclusion ........................................................................... 21

(iii)



IV

TABLE OF AUTHORITIES
Cases: Page

American Pipe & Construction Co. v. Utah, 414
U.S, 538 (1974) _________ _________ _________ passim

Arneil v. Ramsey, 550 F.2d 774 (2d Cir. 1977) ..4n, 14-15 
Eisen v. Carlisle & Jacquelin, 417 U.S. 156

(1974) ____________________ ____ _____ _______  4,14
Haas v. Pittsburgh National Bank, 526 F.2d 1083

(3d Cir. 1975) ...„ .................     16
In re Fine Paper Litigation, 632 F.2d 1081 (3d

Cir. 1980) .................................. ..... ................ .... 16
Jiminez v. Weinberger, 523 F.2d 689 (7th Cir.

1975), cert, denied, 427 U.S. 912 (1976).......... 16
McCarthy v. Kleindienst, 562 F.2d 1269 (D.C. Cir.

1977) _________________        19
Order of Railroad Telegraphers v. Railway Ex­

press Agency, 321 U.S. 342 (1944) ....... ........ . 18
Pavlak v. Church, 681 F.2d 617 (9th Cir. 1982), 

petition for cert, filed, 51 U.S.L.W. 3320 (No.
82-650, Oct. 12, 1982) ............... .......... ........ . 16

Parker v. Crown, Cork & Seal Co., 677 F.2d 391
(4th Cir. 1982) ..... ................. ................. ...........  4,16

Pendleton v. Crown, Cork & Seal Co., Civ. No.
M-78-1734 (D. Md.) ______ _____ ____________ passim

Satterwhite v. City of Greenville, 578 F.2d 987
(5th Cir. 1978), vacated, 445 U.S. 940 (1980).. 16-17 

Stull v. Bayard, 561 F.2d 429 (2d Cir. 1977), cert.
denied, 434 U.S, 1035 (1978) ....... ......... ........ 4n, 15-16

Susman v. Lincoln American Corp., 587 F.2d 866 
(7th Cir. 1978), cert, denied, 445 U.S. 942
(1980)  ......... ................. ........ .............. .............  16

Teamsters v. United States, 431 U.S. 324 (1977).. 11
United Air Lines, Inc. v. McDonald, 432 U.S. 385

(1977) ------------------------- ------ ------- ------------- 3n, 14,18
Zipes v. Trans World Airlines, Inc., ------  U.S.

——, 102 S. Ct. 1127 (1982)........... ........... . 20

Statutes:
Title VII, Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq----- ---------------- ---- --------- ------- -passim
§ 706(f) (3), Civil Rights Act of 1964, 42 U.S.C. 

§2000e-5 ( f ) (3 )  ................................................... 20



V

TABLE OF AUTHORITIES-—Continued
Rules: Page

F.R. Civ. P. 19(a) (2) (i) ..............................-........  12
F.R. Civ. P. 2 3 .......................................................... 8, 11
F.R. Civ. P. 23(a) ..................................   3n
F.R. Civ. P. 23(b) (2) ..................................   2
F.R. Civ. P. 23(b) (3) ............................................  4
F.R. Civ. P. 24(a)(2) ...............    12
F.R. Civ. P. 24 (b) ............. .................... ............ 5n, 9n, 12
F.R. Civ. P. 24(b) (2) .... .............. ...... ..................  13

Other Authorities:
Advisory Committee Notes to Federal Rules of

Civil Procedure, 39 F.R.D. 69 (1966)______ _ 12
Developments in the Law: Class Actions, 89 Harv.

L. Rev. 1318 (1976) ......... ......... ......... ........... 17
Memorandum by Defendant Crown, Cork And Seal 

Company, Inc. in Opposition to Plaintiff’s Mo­
tion to Consolidate, Parker v. Crown, Cork &
Seal Company, Civ. No. M-80-2839 (D. Md.
filed Jan. 9, 1981) ................. ................ ..... ........ . 12,13

Note, Class Actions & Statutes of Limitations, 48
U. Chi. L. Rev. 106 (1981)..... .................. .......... 17, 19n

Note, Class Actions—Tolling of Statutes of Limita­
tions— Adequate Representation—Haas v. Pitts­
burgh Nat’l Bank, 17 B.C. Indus. & Com. L. Rev.
915 (1976) ........................................... ........ ...... ..17, 18n



In  T he

f&ojpnm (Emtrt at %  UtmUb
October Term , 1982

No. 82-118

Crown, Cork & Seal Company, Inc.,
Petitioner,

v.

T heodore Parker.

On Writ of Certiorari to the United States Court of Appeals 
for the Fourth Circuit

BRIEF FOR RESPONDENT

STATEMENT OF THE CASE

Respondent Theodore Parker, a black male, was dis­
charged by petitioner Crown, Cork & Seal Company, Inc. 
(hereinafter “ Crown” ) on July 15, 1977. On Octo­
ber 3, 1977, he filed a timely charge of discrimination 
with the Equal Employment Opportunity Commission 
( “EEOC” ) alleging racially motivated harassment and 
discharge. While that charge was pending before the



2

Commission, on September 18, 1978 two other black em­
ployees who also had been discharged by Crown, Pendle­
ton and Allen, filed a Title VII action in the United 
States District Court for the District of Maryland on 
their own behalf and on behalf of all similarly situated 
black persons. (Pendleton v. Crown, Cork & Seal Com­
pany, Civ. No. M-78-1734 (D. Md.).) Their complaint 
specifically included an allegation that Crown discrim­
inated against blacks as a class with regard to, inter 
alia, terminations, job assignments, and promotions.

On November 9, 1978 the EEOC disposed of Parker’s 
charge. It made a finding of no probable cause and 
sent Parker a Notice of Right to Sue. Parker consulted 
and retained the same attorney who was representing 
Pendleton and Allen in the putative class action filed the 
previous month but did not immediately file suit against 
Crown.

On May 31,1979 the Pendleton plaintiffs moved, pursuant 
to F.R. Civ. P. 23(b) (2), to certify a class consisting of 
all black persons subjected to racially discriminatory prac­
tices by Crown on or after March 31, 1973. This motion 
was denied and reconsideration also denied by the district 
court on September 4, 1980, on various grounds,* 1 2 includ­

1 The district court found, inter alia, that:
(1) Plaintiff Pendleton could not represent all black employees, 

because he was a probationary employee and therefore an inadequate 
class representative (Pet. Br, App. 9a) ;

(2) Plaintiff Allen was an inadequate class representative, be­
cause he had never filed a complaint of discriminatory discharge 
with the EEOC. (Although Allen had filed a charge with the Mary­
land Commission on Human Rights complaining of Crown’s dis­
criminatory termination policies, this occurred before Allen himself 
was actually discharged by Crown, and the district court ruled that 
Allen’s subsequent submission of an affidavit which mentioned termi­
nation to the EEOC after his charge had been referred to the fed­
eral agency by the Maryland Commission on Human Rights could



3

ing inadequate class representation, lack of numerosity 
and lack of typicality:2

On October 27, 1980 (less than 90 days after the 
denial of class certification in the Pendleton case), Parker 
filed this individual Title VII action and on January 6, 
1981 moved to consolidate the case with the Pendleton 
proceedings. Crown opposed consolidation.3 On March 27, 
1981 Crown moved for summary judgment in Parker’s 
case on the theory that the lawsuit was untimely, inas­
much as nearly two years had passed since the EEOC sent 
Parker a 90-day notice of his right to bring suit. Crown 
admitted that the pendency of the putative Pendleton

not be construed as an amendment of the original charge) (Pet. 
Br. App. 14a-15a) ;

(3) The court could not certify a class of employees who had 
allegedly been racially harassed by Crown because of plaintiffs’ fail­
ure to demonstrate that this class was so numerous that joinder was 
impracticable (Pet. Br. App. 17a).

None of these conclusions are involved in the present controversy 
before this Court.

8 F.R, Civ. P. 23(a) states as follows:
Prerequisites to a Class Action. One or more members of a 

class may sue or be sued as representative parties on behalf 
of all only if (1) the class is so numerous that joinder of all 
members is impracticable, (2) there are questions of law or 
fact common to the class, (3) the claims or defenses of the rep­
resentative parties are typical of the claims or defenses of the 
class, and (4) the representative parties will fairly and ade­
quately protect the interests of the class.

3 The individual claims of Pendleton and Allen were ultimately 
settled and on February 26, 1981 a stipulated order of dismissal 
with prejudice was issued by the district court in Pendleton. There­
after, Parker sought and was granted leave to intervene in the 
Pendleton suit for the purpose of appealing the denial of class cer­
tification (Pet. Br. App. 18a-20a; see United Air Lines, Inc. v. Mc­
Donald, 432 U.S. 385 (1977)) but his appeal to the Fourth Circuit 
was dismissed on July 17, 1981 as untimely (J.A. 2A).



4

class action tolled the running of the time limits within 
which Parker (a member of the putative class) could 
have intervened in Pendleton, until final denial of class 
certification on September 4, 1980. Nevertheless, it main­
tained, the tolling principle did not apply to the institu­
tion of a separate Title VII action by Parker within 90 
days of the ruling against certification in Pendleton.4

The district court agreed and granted Crown’s motion 
for summary judgment. It recognized that in American 
Pipe & Construction Company v. Utah, 414 U.S. 538 
(1974), this Court applied equitable principles of “ tolling” 
to allow intervention by a putative class member after 
denial of certification in the putative class action, and 
long after the applicable statue of limitations would 
otherwise have run. However, the district court limited 
American Pipe to its facts and refused to apply the same 
tolling principles where the putative class member files 
a separate action, rather than intervening.

On Parker’s appeal, the Fourth Circuit reversed. 677 
F.2d 391. The Court of Appeals believed that the ration­
ale of American Pipe is not limited to intervention. It 
noted the suggestion in Eisen v. Carlisle & Jacquelin, 417 
U.S. 156, 176 n.13 (1974) (a decision requiring individ­
ual notice to all class members prior to certification in 
in an F.R. Civ. P. 23(b) (3) case) that the statute of 
limitations would be tolled in accord with American Pipe 
for all class members who desired to opt out of the class 
action. The court below also reasoned that the purpose 
of a statute of limitations, to put a defendant on notice

4 Crown relied on two Second Circuit decisions adopting this nar­
row view of this Court’s decision in American Pipe & Const. Co. v. 
Utah, 414 U.S. 538 (1974). See Arneil v. Ramsey, 550 F.2d 774, 782- 
83 (2d C'ir. 1977); Stull v. Bayard, 561 F.2d 429, 433 (2d Cir. 1977), 
cert, denied, 434 U.S. 1035 (1978), discussed infra at pp. 14-16.



5

of a claim with reasonable promptness, is fulfilled where 
an individual plaintiff’s complaint is within the scope of 
a putative class action, since the defendant will have 
sufficient information within the statutory period con­
cerning the nature and scope of prospective litigation. 
The Court of Appeals further observed that intervention 
may often be denied in the discretion of the district 
court5 and for this reason, limiting American Pipe only 
to intervention might produce the inequitable result of 
allowing some putative members of the class to obtain 
an adjudication of their claims while excluding others 
who seek adjudication at the same time. For these rea­
sons, the Court of Appeals concluded that the statute of 
limitations is tolled for the purposes either of interven­
tion or of filing a new suit based upon a cause of action 
embraced within a putative class action.

SUMMARY OF ARGUMENT

The equitable tolling principles applied by this Court 
in American Pipe govern this case, even though the in­
dividual member of the putative class filed a separate 
suit after denial of class certification rather than seeking 
to intervene in the original litigation. For a variety of 
reasons, wholly unrelated to the matter of tolling, inter­
vention may be unavailable, inappropriate or undesirable 
to protect the rights of the class member whose individ­
ual claim accrues during the pendency of a putative class 
suit. Hence, if class members are limited to interven­
tion in the original case in order to obtain the benefits 
of tolling, the American Pipe doctrine will fail to achieve 
its purpose of discouraging premature interventions or 
filings of separate suits before the resolution of the cer­
tification issue in the putative class action.

«SeeF.R. Civ. P. 24(b).



e

The facts of this case demonstrate the wisdom of per­
mitting an individual suit by a class member after denial 
of certification. It was completely proper for Parker to 
rely upon the Pendleton suit plaintiffs to protect his 
rights as a class member until the ruling against certifi­
cation. Thereafter, the company opposed consolidation 
of this case with Pendleton on grounds which it could also 
have raised in opposition to any attempt by Parker to 
intervene. Unless the attorney for an individual claimant 
who is also a member of a putative plaintiff class knows 
that he will be able to protect his client’s rights by filing 
a separate suit after certification is denied or withdrawn, 
instead of having to rely upon discretionary interven­
tion, he will be compelled to prosecute a separate case as 
soon as the claim accrues, thus vitiating the American 
Pipe rule and eliminating the class action advantages 
of judicial economy and efficiency.

Tolling the statute of limitations whether the individ­
ual class member seeks to intervene or to file a separate 
suit after denial of certification is not inconsistent with 
the purposes of limitations periods. There is no dispute 
in this case, and the trial court explicitly found, that 
Parker was a member of the putative class on whose 
behalf the Pendleton litigation was brought. Therefore, 
the defendant had ample and timely notice when Pendle­
ton was initiated of the substantive claims being raised 
and of “ the number and generic identities of the potential 
plaintiffs [including Theodore Parker] who may partici­
pate in the judgment,” American Pipe, 414 U.S. at 554. 
The purpose of the limitations period was satisfied.

Finally, Crown’s remaining claims, that tolling is un­
available in the absence of explicit statutory authoriza­
tion, and that the 90-day period for filing suit under 
Title VII is a “ jurisdictional prerequisite”  rather than 
a statute of limitations, are without merit.



7

ARGUMENT

THE PENDENCY OF A PUTATIVE CLASS ACTION 
TOLLS THE RUNNING OF THE STATUTE OF LIMI­
TATIONS FOR INDIVIDUAL CLAIMS OF MEMBERS 
OF THE PUTATIVE CLASS FROM THE TIME THE 
ACTION IS COMMENCED UNTIL DENIAL OF CLASS 
CERTIFICATION

Introduction

In this case the Court must decide whether respondent 
Parker has lost the opportunity to redress his claims of 
unlawful employment discrimination by petitioner Crown 
because of a procedural abyss created by the decision in 
American Pipe & Construction Company v. Utah, 414 
U.S. 538 (1974). No language in American Pipe explic­
itly limits the equitable tolling doctrine which the Court 
there enunciated to cases in which intervention is sought 
after denial of class certification or announces that toll­
ing is unavailable when a separate action is commenced 
following the refusal to certify. That differing results 
have been reached by Courts of Appeals emphasizes the 
reasonableness of Parker’s belief that American Pipe 
tolling principles apply to new suits as well as interven­
tions. Yet, if  Crown is correct, the American Pipe deci­
sion (intended to facilitate efficient litigation and to pro­
tect class members from loss of their claims) set a pro­
cedural trap which will serve, in this and other cases, to 
defeat potentially meritorious claims.

That result would be particularly ironic in this case. 
Crown concedes that under American Pipe, Parker could 
have waited until after class certification was denied in 
the Pendleton case before intervening but argues that the 
same principle does not apply to Parker’s decision to 
commence a separate Title VII action. Yet Crown 
opposed consolidation of Parker’s claims with those of 
Pendleton and Allen in the same action (a step which 
would have shaped a lawsuit identical to that which the



8

company would have had to defend if Parker had inter­
vened).

As we show below, the rationale of American Pipe 
is fully applicable to the filing of a separate action by a 
class member. Moreover, application of equitable tolling 
principles to allow the institution of separate suits, as 
well as intervention, by putative class members following 
the denial of certification in cases brought as class ac­
tions is fully consonant with the important purposes un­
derlying statutes of limitations.

A. The Decision Below Correctly Construes And Applies 
This Court’s Ruling In American Pipe

1. The basis for American Pipe

In American Pipe, 414 U.S. at 554, this Court said:
[T]he rule most consistent with federal class action 
procedure must be that the commencement of a class 
action suspends the applicable statute of limitations 
as to all asserted members of the class who would 
have been parties had the suit been permitted to 
continue as a class action, [footnote omitted]

As the court below ruled, the rationale underlying Ameri­
can Pipe applies with full force to the bringing of an 
individual action by a member of the putative class who 
could properly believe that he was covered by the action 
in which class certification was ultimately denied.

The purpose of tolling the statute of limitations in 
American Pipe was to discourage premature interventions 
by putative class members which would remove the ad­
vantages of judicial economy and efficiency that are 
available in class litigation under F.R. Civ. P. 23, If the 
statute of limitations were not tolled while the motion 
for class certification were pending, members of the class 
would be obliged, in order to protect their individual 
rights, either to file separate lawsuits or to seek to inter­
vene in the putative class action, thus unnecessarily bur­



9

dening the courts. Thus, tolling the limitations period 
during the pendency of the class action is designed to 
encourage class members to delay pursuing their claims 
for redress until the motion for certification has been 
acted upon.

2. Scope of the American Pipe rule

With this purpose in mind, it makes little sense to view 
the availability of tolling as limited to post-certification- 
denial intervention only. Wholly apart from considera­
tions of tolling, a member of a putative plaintiff class, 
whose individual claim has accrued, has at least two op­
tions to obtain judicial relief: intervention and the filing 
of a separate suit. Any number of factors may make 
intervention the less desirable course. For example, the 
number of parties already in the suit may be so large 
that further joinder would make it unmanageable.6 Dis­
covery schedules may already have been established which 
would be difficult for the proposed intervenor to meet. 
The putative class action may be regional or nationwide 
in scope and have been filed in a jurisdiction far from the 
residence or workplace of the proposed intervenor.7 
Finally, intervention may be available only at the dis­
cretion of the trial court and may be denied on grounds 
unrelated to the merits of the proposed intervenor’s claim.8

8 Especially in the case of a large company against which a 
Title VII putative class action has been brought, the number of 
individual employees or applicants who could seek intervention or 
file separate suits is likely to be substantial.

7 For example, a Title VII suit might challenge the hiring or pro­
motion practices of a large corporation with plants or facilities 
throughout the nation. In other types of class suits, the possibility 
of concentrating many separable suits in one jurisdiction could be 
even greater.

s See F.R. Civ. P. 24(b).



10

For all of these reasons, the filing of separate litiga­
tion by a class member is at least as likely, and often 
more likely, than attempted intervention. Yet, if the 
tolling rule of American Pipe is to be limited to interven­
tion, as Crown contends, it will have little efficacy. Coun­
sel for putative class members will be on notice (as they 
are not presently on notice from the American Pipe opin­
ion) that if they take advantage of the tolling rule during 
the pendency of the class action, they may be unable 
fully to protect their clients’ rights, should certification 
be denied, because they will be limited to seeking inter­
vention in the former class lawsuit, no matter what its 
procedural posture, no matter how inconvenient the forum 
in which it is pending, etc. Obviously, there will be no 
incentive to employ the American Pipe option and the 
federal courts will be burdened with a multiplicity of 
suits.

This result is especially likely because there may be no 
way for counsel representing an individual member of a 
putative class to predict, at the time his client’s claim 
accrues, what the relative advantages and disadvantages 
of intervention may be, many months later (after disposi­
tion of the certification question). At that point in time, 
however, the remaining individual claims in the suit may 
be sufficiently different from those of the proposed inter- 
venor that, had he been a party to the suit from its incep­
tion a court might properly have ordered a severance of 
his claim. In such a case, of course, there is no reason 
why disparate claims should be tied together by an “ inter­
vention only” reading of American Pipe.

3. Application of American Pipe to this case

The facts of this case demonstrate why the American 
Pipe decision should be construed to toll the statute of 
limitations and permit a putative class member to bring 
an individual suit once class certification has been denied. 
At the time Parker’s cause of action accrued, i.e., when he



11

received the notice of right to sue, the Pendleton class 
action had already been started. Parker could reasonably 
believe that his rights would be fully protected by that 
action, since the allegations in Pendleton, specifically cov­
ered his complaint of harassment and discharge because 
of his race. (Pet. Br. App. 2a-4a.) An individual action 
by Parker at that time would have involved a tremendous 
duplication of effort. Evidence of bias against the class 
as a whole would have been relevant to his individual 
claim, and thus broad discovery would have been involved 
in both cases. See Teamsters v. United States, 431 U.S. 
324, 361-62 (1977).

There was also no need for Parker to intervene in the 
class action because of any dissatisfaction with the repre­
sentation of the putative class by the named plaintiffs. 
In this case, as it happens, Parker and the named plain­
tiffs had the same attorney, so that intervention prior to 
denial of class certification would not have added new 
counsel to the case. Normally, however, intervention by 
all the various members of a class who have individual 
claims would involve unnecessary participation by a num­
ber of lawyers with all the possibilities of time-consuming 
differences that often attend multiple representation in 
the same case. It was therefore proper and efficient, and 
in accordance with the purposes of Rule 23, for Parker to 
rely on the class action while it was pending.

After class certification was denied, Parker filed this 
lawsuit, rather than following the exact procedural route 
(intervention) used in American Pipe. However, this 
difference is of no significance since Parker then moved 
to consolidate this suit with what remained of the puta­
tive class action brought by Pendleton and Allen. Thus, 
the considerations of judicial efficiency and fairness—  
litigation of all of the discrimination claims against 
Crown at the same time and in the same court— which 
led this Court to announce the tolling rule in American 
Pipe, would be realized by permitting Parker’s action to



12

continue. On its facts, therefore, there is no viable dis­
tinction between this case and American Pipe which could 
justify the district court’s refusal to apply the tolling 
principle of that decision.

Moreover, Crown’s opposition to consolidation of the 
Parker and Pendleton cases indicates the defect inherent 
in a reading of American Pipe which limits the tolling 
doctrine to intervention. Intervention by a member of the 
putative class into a suit still pending as classwide liti­
gation may qualify as intervention “ of right” under 
F.R. Civ. P. 24(a) (2). See Advisory Committee Notes, 
39 F.R.D. 69, 110 (1966) [Rule 24 (a )(2 ) incorporates 
standards of Rule 19(a) (2) (i ) ]. However, once class 
certification has been denied, the only possible basis for 
intervention by a member of the class that had been pro­
posed for certification would be F.R. Civ. P. 24(b). Such 
intervention is permissive and may be denied in the 
discretion of the court.

As Crown’s opposition to the motion to consolidate the 
Parker and Pendleton cases indicates, the basis for deny­
ing intervention may have nothing to do with the claims 
of the individual seeking to enter the case. Crown’s first 
ground for objecting to consolidation was that, because 
of its earlier filing and active discovery the Pendleton 
suit was in a different procedural posture from Parker’s. 
Memorandum by Defendant Crown, Cork And Seal Com­
pany, Inc., in Opposition to Plaintiff’s Motion to Consoli­
date, Parker v. Crown, Cork & Seal Company, Civ. No. 
M-80-2839 (D. Md. filed Jan. 9, 1981), at 1-3 [hereinafter 
cited as “ Crown Consolidation Memo” ]. Of course, this 
will always be the case where an individual claimant in­
tervenes following American Pipe tolling. Since delay in 
adjudication is explicitly identified as a ground for deny­
ing permissive intervention, F.R. Civ. P. 24(b), to re­
quire a member of the putative class to proceed only by 
way of intervention following denial of class certification 
could result in extinguishing the very claim whose preser­



13

vation it is the object of the American Pipe tolling rule to 
secure.

Crown’s second ground for opposing consolidation was 
that there were not “ common issues of fact” in the two 
cases because “ Parker’s termination involved entirely dif­
ferent facts, circumstances and witnesses, different super­
visory employees, different work rules, a different depart­
ment and a different employment history than those in­
volved in the terminations of Pendleton and Allen.” 
Crown Consolidation Memo, at 3. Again, this sort of 
argument will be available, almost by definition, to an 
employer resisting a motion for intervention by a putative 
class member following American Pipe tolling. Since the 
existence of a common question of law or fact is a 
prerequisite for intervention, see F.R. Civ. P. 24(b) (2), 
the difficulty created by limiting American Pipe to post­
certification-denial intervention is at once apparent.

4. The language and cases on which Crown relies
Crown relies on this language in the American Pipe 

opinion:
[A] t least where class action status has been denied 
solely because of failure to demonstrate that “ the 
class is so numerous that joinder of all members is 
impracticable,” the commencement of the original 
class suit tolls the running of the statute of limita­
tions 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 552-53. The holding in that case was, of 
course, no broader than required to decide the matter 
before the Court. In American Pipe, class certification 
had been denied by the district court on the sole ground 
that the class was not so numerous as to make joinder 
impracticable— the court finding that all other prerequi­
sites for class action status had been satisfied. Local 
jurisdictions originally covered by the class definition in



14

Utah’s complaint then sought to intervene as parties plain­
tiff in Utah’s action, but intervention was denied on the 
ground that the statute of limitations had run. Under 
these circumstances, this Court’s holding was that inter­
vention should have been granted in the case before it 
because the running of the statute was tolled during the 
period prior to denial of class certification.

Crown apparently would read the Court’s language as 
defining the outer limits of the equitable tolling principle 
which it was applying, although it can point to nothing 
in the opinion itself which so states. As we have earlier 
explained, the reasoning which led the Court to apply toll­
ing pending the determination of a motion for class 
certification applies not only to intervention, but also— 
and with equal force—-to the commencement of a separate 
action. The Court itself intimated this in the dictum in 
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176 n.13 
(1974):

Petitioner also argues that class members will not 
opt out because the statute of limitations has long 
since run out on the claims of all class members other 
than petitioner. This contention is disposed of by 
our recent decision in American Pipe & Construction 
Co. v. Utah [citation omitted], which established that 
commencement of a class action tolls the applicable 
statute of limitations as to all members of the class.

(Since class members would not opt out of a class action 
only to seek to intervene into it again, this statement 
must mean that a putative class member can opt out and 
bring his own suit within the time remaining under the 
applicable statute of limitations.) See also- United Air 
Lines, Inc. v. McDonald, 432 U.S. 385, 402 (1977) (Pow­
ell, J., dissenting).

The lower court opinions on which Crown also relies 
likewise fail to analyze American Pipe’s rationale and in­
stead reflexively apply the language describing the Court’s 
holding. In Arneil v. Ramsey, 550 F.2d 774, 782-83 (2d



15

Cir. 1977), plaintiffs sought the benefit of the tolling prin­
ciple during the entire pendency of a class action even 
though the putative class did not include them for nearly 
two years after the suit was filed, when an attempt was 
made to expand the class by filing an amended complaint. 
Unless the amended complaint “ related back” to the ini­
tiation of the case for tolling purposes, the claims in ques­
tion were barred by a three-year statute of limitations. 
See 550 F.2d at 779. The Second Circuit refused to ex­
tend the tolling principle in this fashion, noting that it 
“would not accord with one of the rationales of American 
Pipe, that commencement of the class action adequately 
notifies the defendants” of the number and generic iden­
tities of the potential plaintiffs. Id. at 782. The Second 
Circuit went on, in dictum, to use the language on which 
Crown relies (see Pet. Br. 8) :

Of especial significance is the fact that the rule of 
American Pipe was intended for the benefit of pur­
ported members of the class who sought to intervene 
in the action after class status was denied.

However, in the same paragraph, the panel made it clear 
that this was not the basis for its judgment:

To suspend the statute in this case, however, would 
result in the maintenance of another suit by plain­
tiffs who took no action [i.e., neither intervention nor 
commencement of litigation] for almost five years 
after they were aware of information sufficient to 
put them on notice of possible fraud by the defendant.

Id. at 783 (footnote omitted).
In Stull v. Bayard, 561 F.2d 429, 433 (2d Cir. 1977), 

cert, denied, 434 U.S. 1035 (1978), also cited by Crown, 
the panel rejected an American Pipe tolling claim in one 
short paragraph which merely quoted the dictum of 
Arneil v. Ramsey and described the claim as “ completely 
without merit.”  There was no analysis of the purposes of 
the equitable tolling doctrine or consideration of circum­
stances which might have led a court of equity to decline 
to apply the doctrine. (For example, the putative class



16

action which was the claimed basis for tolling the statute 
of limitations in Stull was an action filed by the appellant 
on behalf of his wife against the same defendant “ on a 
complaint almost identical to” that before the court. 561 
F.2d at 433.)

Finally, in Pavlak v. Church, 681 F.2d 617 (9th Cir. 
1982), petition for cert, filed, 51 U.S.L.W. 3320 (No. 
82-650, Oct. 12, 1982), a divided panel declined to apply 
American Pipe tolling to allow a separate suit after 
denial of class certification because, it said, policies of 
judicial efficiency and economy would not be furthered. 
The majority rejected the appellant’s argument that pro­
ceeding by way of intervention would be cumbersome 
since there was “ an unchallenged factual finding that the 
class was not numerous. . . . The American Pipe rule, 
therefore, does not support appellant’s argument that she 
should be authorized to commence an independent suit 
without regard to limitations where class action status 
has been denied and no intervention is sought.” 681 F.2d 
at 620. The panel majority neither considered other 
potential problems for a would-be intervener (see pp. 
9-10 supra) nor evaluated the tolling claim with the 
same depth as the court below, see 677 F.2d at 393-94.

On the other hand, a number of Courts of Appeals*— 
while not directly deciding the question whether the 
American Pipe tolling doctrine should be limited to in­
tervention— have, in construing that decision in other 
contexts, enunciated the tolling principle in terms which 
would obviously cover the institution of separate actions. 
E.g., In re Fine Paper Litigation, 632 F.2d 1081, 1085, 
1087 (3d Cir. 1980) ; Susman v. Lincoln American Corp., 
587 F.2d 866, 869 (7th Cir. 1978), cert, denied, 445 U.S. 
942 (1980) ; Jiminez v. Weinberger, 523 F.2d 689, 696 
(7th Cir. 1975) (Stevens, J .) , cert, deniedl, 427 U.S. 912 
(1976) ; Haas v. Pittsburgh National Bank, 526 F.2d 
1083, 1096-98 (3d Cir. 1975) ; cf. Satterwhite v. City of 
Greenville, 578 F.2d 987, 997 (5th Cir. 1978) (pretermit- 
ting question), vacated on other grounds, 445 U.S. 940



17

(1980). Many commentators have also rejected a narrow 
interpretation of American Pipe in light of its underlying 
rationale. E.g., Developments in the Law: Class Actions, 
89 Harv. L. Rev. 1818, 1448 (1976) ; Note, Class Actions 
& Statutes of Limitations, 48 U. Chi. L. Rev. 106 (1981) ; 
Note, Class Actions— Tolling of Statutes of Limitation— 
Adequate Representation— Haas v. Pittsburgh National 
Bank, 17 B.C. Indus. & Com. L. Rev. 915, 919 (1976).

In sum, if American Pipe is read narrowly, either to 
limit its holding to situations where class certification, is 
denied only on the ground of lack of numerosity or where 
intervention after denial of certification is sought, many 
potential class members will undoubtedly feel obliged to 
commence their own suits while class certification is 
pending if there is a danger that otherwise they will be 
barred by a statute of limitations. This would be con­
trary to the underlying rationale of the American Pipe 
decision, to promote judicial efficiency and economy. To 
say that Parker could have intervened in the Pendleton 
suit after denial of class certification but could not, 
within the same time limits, bring his own action, is 
truly, as the court below stated, to exalt form above sub­
stance.9

B. Tolling The Statute Of Limitations In This Case Is 
Consistent With The Purposes Of Limitations Periods

Crown argues that the application of American Pipe 
tolling principles to sustain the filing of separate Title 
VII actions following denial of class certification will 
“ [ujndermine the [p] urpose and [ejffect of [sjtatues of 
[1]imitation” (Pet. Br. at 21). This contention is com­
pletely without merit, especially in light of the company’s 
concession that Parker could probably have intervened in 
the Pendleton case after denial of class certification. Un~

9 Parker’s motion for intervention after class certification was de­
nied has no relevancy to the issue in this case. It was solely for the 
purpose of taking an appeal from the denial of class certification, an 
issue not here presented. See note 3 supra.



18

iess action other than intervention would present issues 
that were not raised by the original class filing, or other­
wise seriously inconvenience or prejudice the defendant, 
there is no reason why the statute of limitations should 
not toll for putative class members using a procedure 
other than intervention.10

Statutory limitations periods are “designed to promote 
justice by preventing surprises through the revival of 
claims that have been allowed to slumber until evidence 
has been lost, memories have faded and witnesses have 
disappeared.” American Pipe, 414 U.S. at 554, quoting 
Order of Railroad Telegraphers v. Railway Express 
Agency, 321 U.S. 342, 348-49 (1944). As American Pipe 
holds, in the context of class actions the policy of ensur­
ing essential fairness to defendants is satisfied where a 
class suit “ notifies the defendants not only of the sub­
stantive claims being brought against them, but also of 
the number and generic identities of the potential plain­
tiffs who may participate in the judgment.” Thus, within 
the limitations period, “ defendants have the essential in­
formation necessary to determine both the subject matter 
and size of the prospective litigation . . . .”  414 U.S. at 
555. See United Air Lines, Inc. v. McDonald, 432 U.S. at 
392-93, where this Court stated that “ the lawsuit had 
been commenced by the timely filing of a complaint for 
class-wide relief, providing United with the essential 
information necessary to determine both the subject mat­
ter and size of the prospective litigation.”

Certainly in the instant case Crown had ample notice 
of Parker’s individual claims. The allegations of racially 
motivated harassment and termination were included in 
the class complaint. Parker was also identified as one of 
the putative class members (cf. Pet. Br. App. 19a). In 
addition, Parker had filed a timely charge with the

See Note, Class Actions— Toiling of Statutes of Limitations— 
Adequate Representation— Haas v. Pittsburgh Nat’l Bank, 17 B.C. 
Indus. & Com. L. Rev. 915, 922 (1976).



19

EEOC, thereby giving Crown notice of his elaims. Crown 
concedes that it had sufficient notice to defend against 
Parker’s allegations if Parker had intervened in the 
Pendleton case rather than brought his individual cause 
of action. Since the instant action will involve the same 
evidence, witnesses and memories that would have been 
involved if Parker had intervened, it is difficult, if not 
impossible, to understand why notice would be sufficient 
for him to intervene, but not sufficient to bring an in­
dividual action.

While in American Pipe, the lower court had deter­
mined that the named plaintiffs’ claims were typical of 
those of the putative class members, this Court did not 
require typicality as a prerequisite to tolling; nor have 
most lower courts. What is required is that the defend­
ant receive the essential information necessary to deter­
mine both the subject matter and size of the prospective 
litigation. McCarthy v. Kleindienst, 562 F.2d 1269, 1274 
(D.C. Cir. 1977). Although a typicality finding is one 
factor indicating that the defendant has received ade­
quate notice of the potential claims against him, the 
court can also determine whether the defendant has re­
ceived fair notice by comparing the allegations of the 
class complaint with those of the motion to intervene 
(id.), or the complaint in an individual action.11

Because Crown cannot seriously argue that it was un­
aware of Parker’s individual claims during the time that 
Pendleton was proceeding as a putative class action on 
behalf of black employees allegedly subjected to racially

11 One commentator has suggested that in many of these cases the 
question of notice to the defendant may not have been presented by 
the defendant or it may have been obviated because it was clear to 
all that the defendant must have received notice. Indeed in most 
cases it will be obvious that the defendant received notice from the 
filing of the class suit that class members would have claims. 
Note, Class Actions & Statutes of Limitations, 48 U. Chi. L. Rev. 
106, 110 n.22 (1981).



20

based harassment and termination, application of equita­
ble tolling principles in this case results in no unfairness 
to the employer nor inconsistency with the purposes of 
the 90-day suit requirement of Title VII.12

Finally, there is also no merit in petitioner’s argument 
that the ninety-day period for bringing suit under Title 
VII should be construed as a jurisdictional prerequisite 
rather than as a statute of limitations (Pet. Br. 24-29). 
It is no more jurisdictional than the statute involved in 
American Pipe. Indeed, it is no more, but rather less, 
jurisdictional than the time for filing administrative 
charges which this Court in Zipes v. Trans World Air­
lines, Inc., ------ U.S. -------- , 102 S. Ct. 1127 (1982), held
not to be jurisdictional. The charge marks the first offi­
cial notice to the employer of the claims against him, 
whereas the filing of suit notifies the employer that the 
plaintiff intends to pursue the charge in court. The juris­
diction of the court is conferred by Section 706(f) (3), 
giving district courts power to determine the cause of 
action; the ninety-day period is purely one of limitation 
on the time for bringing suit. The statute is thus sub­
ject to the tolling principles announced in American 
Pipe.

12 Crown’s suggestion that the federal courts cannot apply equita­
ble tolling principles in Title VII cases because “ the language of 
Section 2000e-5 does not provide any exception to, or provision for, 
the tolling of that ninety-day period” (Pet. Br. at 21) finds no sup­
port in American Pipe, where this Court’s determination to* apply 
tolling principles did not rest upon any reference to the quite 
different tolling provision in the Clayton Act. Compare 414 U.S. at 
541-42 & nn.2, 3 with id. at 545-56. The argument is very similar 
to one made in American Pipe, to the effect that the courts were 
without power to apply equitable tolling because the statute of limi­
tations was a “substantive” right under the statute. The Court re­
jected that contention, emphasizing that “ [t]he proper test is not 
whether a time limitation is ‘substantive’ or ‘procedural,’ but 
whether tolling the limitation in a given context is consonant with 
the legislative scheme.” Id. at 558 (footnote omitted). See text 
infra.



21

CONCLUSION

For the foregoing reasons, the judgment of the Court 
of Appeals for the Fourth Circuit should be affirmed.

Respectfully submitted,

Norris C. Ramsey, P.A.*
712 Equitable Building 
Baltimore, Maryland 21202 
(301) 752-1646 

James L. Foster 
222 St. Paul PL, Suite 601 
Baltimore, Maryland 21202 
(301) 837-1566 

W illiam L. Robinson 
Beatrice Rosenberg 
Norman J. Chachkin 
Ruth E. Gordon 

Lawyers’ Committee for Civil 
Rights Under Law 

733 15th Street, N.W., Suite 520 
Washington, D.C. 20005 
(202) 628-6700 

Attorneys for Respondent 
* Counsel of Record