Crown, Cork and Seal Company v. Parker Brief for Respondent
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January 1, 1982

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Brief Collection, LDF Court Filings. Crown, Cork and Seal Company v. Parker Brief for Respondent, 1982. 4c982faf-ae9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ede47cb6-d028-4c73-a5d8-601414b8fea4/crown-cork-and-seal-company-v-parker-brief-for-respondent. Accessed July 12, 2025.
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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