Isaac Sawyer, doing business as A-1 Security Locksmiths v. Atlas Heating and Sheet Metal Works, Incorporated

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3672
ISAAC SAWYER, doing business as
A-1 Security Locksmiths,
Plaintiff-Appellee,
v.
ATLAS HEATING AND SHEET METAL WORKS,
INCORPORATED,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 10-C-331—Lynn Adelman, Judge.
ARGUED MAY 4, 2011—DECIDED MAY 26, 2011
Before EASTERBROOK, Chief Judge, and FLAUM and
SYKES, Circuit Judges.
EASTERBROOK, Chief Judge. On December 9, 2005, Atlas
Heating and Sheet Metal Works faxed unsolicited ad-
vertisements to Isaac Sawyer and many other persons,
violating the Telephone Consumer Protection Act, 47

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2 No. 10-3672
U.S.C. §227. (So the complaint says, and we must accept
its allegations at this stage of the litigation.) The statute
of limitations is four years. 28 U.S.C. §1658. On May 18,
2009, with more than six months to go, Park Bank, one
of the fax’s recipients, sued Atlas Heating in a state
court of Wisconsin. It proposed to represent a class of
all recipients. See Wis. Stat. §803.08. But on March 16,
2010, more than four years after the ad had been faxed,
and before the state judge had decided whether to
certify a class, Park Bank dismissed its complaint. This
left other recipients in the lurch. Isaac Sawyer tried to
intervene in Park Bank’s suit to keep it alive, but
the state judge denied his motion. On March 19
Sawyer filed his own complaint, also in state court,
seeking to represent the class of persons who had
received unsolicited faxes from Atlas Heating on Decem-
ber 9, 2005, or any other time within four years before
May 18, 2009, when Park Bank began its suit.
Atlas Heating removed the case under the federal-
question jurisdiction. See 28 U.S.C. §§ 1331, 1441. Counsel
for Park Bank, and perhaps counsel for Sawyer, may
have believed that state courts have exclusive jurisdic-
tion of suits under §227, but we held otherwise in Brill v.
Countrywide Home Loans, Inc., 427 F.3d 446, 449–52 (7th
Cir. 2005). Properly in federal court, Atlas Heating
moved to dismiss the complaint as barred by the statute
of limitations. The district court denied this motion, 731
F. Supp. 2d 850 (E.D. Wis. 2010), holding that the limita-
tions period was tolled by Park Bank’s suit for as long as
it was pending. See American Pipe & Construction Co. v.
Utah, 414 U.S. 538 (1974); Crown, Cork & Seal Co., Inc. v.

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No. 10-3672 3
Parker, 462 U.S. 345 (1983). This meant that more than six
months remained in the limitations period when Sawyer
filed suit. The district judge also denied Atlas Heating’s
request to limit the new litigation to Sawyer’s personal
claim. We accepted an interlocutory appeal following
certification under 28 U.S.C. §1292(b).
American Pipe holds “that the commencement of a
class action suspends the applicable statute of limita-
tions as to all asserted members of the class who would
have been parties had the suit been permitted to
continue as a class action.” 414 U.S. at 554. Crown, Cork &
Seal adds that it does not matter whether the member
of the putative class intervenes in the original action or
files an independent suit. Atlas Heating insists, how-
ever, that American Pipe does not come into play when
the first suit is dismissed voluntarily. Many decisions
in this circuit and elsewhere say that, when a suit is
voluntarily dismissed, the statute of limitations is
treated as running continually; it is not suspended or
tolled. Lee v. Cook County, 635 F.3d 969 (7th Cir. 2011), is
one recent example. But those cases concern sequential
suits filed by the same person, who could have con-
tinued the original suit and can’t use his own maneuvers
or errors to extend a period of limitations; they do not
deal with doctrines, such as American Pipe, that specify
how a representative’s suit affects third persons.
Sawyer did not have any way to prevent Park Bank
from dismissing the original suit—nor did the state court
permit Sawyer to intervene and take over that litigation.
(Wisconsin authorizes class actions but unlike Fed. R. Civ.

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4 No. 10-3672
P. 23(e) does not provide for judicial review of voluntary
dismissals.) If Atlas Heating is right, the only way
Sawyer and the fax’s other recipients could have pro-
tected their interests would have been to intervene
before Park Bank threw in the towel. Yet intervention
would undermine the representative quality of a class
action. The premise of class litigation is that individual
suits and collective actions (large numbers of persons
litigating under a single docket number) are inefficient,
and perhaps prohibitively expensive in relation to the
potential relief per victim. The Supreme Court decided
American Pipe as it did in order to eliminate any need
for members of the putative class to intervene in order
to guard against an adverse outcome in the original
case. 414 U.S. at 553–54. The Court’s goal of enabling
members of a putative class to rely on a pending action
to protect their interests can be achieved only if the way
in which the first suit ends—denial of class certification
by the judge, abandonment by the plaintiff, or any
other fashion—is irrelevant. Accord, Robbin v. Fluor Corp.,
835 F.2d 213 (9th Cir. 1987).
According to Atlas Heating, the tolling doctrine
of American Pipe applies only when both suits were filed
in federal court. It is true enough that both American
Pipe and Crown, Cork & Seal involved sequential fed-
eral suits. But it does not follow that any rule or policy
prohibits what Atlas Heating calls “cross-jurisdictional
tolling.” Not that this sequence itself is cross-jurisdic-
tional: recall that both suits began in state court. A suit’s
removal does not change the substantive rule of deci-
sion—and the statute of limitations, unlike the procedures

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No. 10-3672 5
for certifying class actions, is substantive. Compare
Guaranty Trust Co. v. York, 326 U.S. 99 (1945) (limitations),
with Shady Grove Orthopedic Associates, P.A. v. Allstate
Insurance Co., 130 S. Ct. 1431 (2010) (Rule 23). Let us
suppose, however, that Sawyer’s suit should be treated
as if filed originally in federal court. Still there is no
reason to conclude that the Wisconsin litigation should
be disregarded. It was a putative class action under a
federal law; Sawyer’s reliance interests were the same as
if the first suit had been filed in federal court.
In re Copper Antitrust Litigation, 436 F.3d 782 (7th Cir.
2006), is the principal decision on which Atlas Heating
relies for its objection to cross-jurisdictional tolling. We
held in Copper Antitrust that a class action filed in state
court, under state antitrust law, did not toll the time
to file suit in federal court under federal antitrust law.
436 F.3d at 793–97. The point of that decision, however,
was not that a change of forum was dispositive; it was
that state and federal antitrust laws differ. They create
different legal claims. That the period of limitations
may be tolled for one claim (state antitrust law) does
not imply that it is tolled for another (federal antitrust
law). State rather than federal law supplies the rules
for assessing the consequences of a state court’s deci-
sion under state law. Marrese v. American Academy of
Orthopaedic Surgeons, 470 U.S. 373 (1985). Park Bank’s suit,
by contrast, was under federal law, and the statute of
limitations also comes from federal law. Federal law
determines the tolling effect of a suit governed by a
federal statute of limitations. American Pipe establishes
that federal rule. Chardon v. Fumero Soto, 462 U.S. 650

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6 No. 10-3672
(1983), drives this point home by holding that, when the
statute of limitations depends on state law, then state
rules determine the tolling effect of a class suit, even if
all litigation occurs in federal court. The source of law, and
not the identity of the forum, determines the effect of
a failed class action.
And it does not matter, under federal law, whether the
first suit’s status as a would-be class action ends by
choice of the plaintiff (who may abandon the quest to
represent a class or, as Park Bank did, bow out altogether)
or by choice of the judge. Atlas Heating insists that Park
Bank’s suit does not count because it was “never a class
action.” Yet the first suits in American Pipe and Crown,
Cork & Seal also were “never class actions.” If they had
been certified as class actions, there would have been
no occasion for sequential class litigation. The rationale
of American Pipe does not permit a distinction among
situations in which the putative class representative
gives up before, or after, the judge decides whether the
case may proceed on behalf of a class. Tolling lasts from
the day a class claim is asserted until the day the suit is
conclusively not a class action—which may be because
the judge rules adversely to the plaintiff, or because
the plaintiff reads the handwriting on the wall and
decides not to throw good money after bad. (Or
perhaps because the defendant buys off the original
plaintiff as soon as the statute of limitations runs, hoping
to extinguish the class members’ claims. That’s a good
reason for tolling, not a reason for blocking later suits.)
We arrive at Atlas Heating’s final argument, and the
reason why the district judge found that the case

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No. 10-3672 7
presents a substantial and difficult question justifying an
interlocutory appeal. The judge thought that there is a
conflict among the circuits on the question whether a
second case may proceed as a class action. In both
American Pipe and Crown, Cork & Seal, the second suits
were brought as individual litigation, after the judge in
the initial suits had determined that the victims were not
numerous enough to justify class litigation (American
Pipe) or that the representative’s claims were not typical
of the class (Crown, Cork & Seal). As the district judge
and the parties understand the cases, five courts of
appeals have concluded that successive suits that rely
on American Pipe’s tolling principle never may proceed
as class actions, while three courts of appeals have held
otherwise. Compare Basch v. Ground Round, Inc., 139 F.3d
6 (1st Cir. 1998); Korwek v. Hunt, 827 F.2d 874 (2d Cir. 1987);
Salazar-Calderon v. Presidio Valley Farmer’s Association, 765
F.2d 1334, 1351 (5th Cir. 1985); Andrews v. Orr, 851 F.2d 146,
149 (6th Cir. 1988); and Griffin v. Singletary, 17 F.3d 356
(11th Cir. 1994) (all holding that the successive suits cannot
proceed as class actions), with Yang v. Odom, 392 F.3d 97,
111 (3d Cir. 2004); Great Plains Trust Co. v. Union Pacific
R.R., 492 F.3d 986, 997 (8th Cir. 2007); and Catholic Social
Services, Inc. v. INS, 232 F.3d 1139, 1147–49 (9th Cir. 2000)
(en banc) (all holding that the successive suits may be
certified as class actions). The parties ask us to choose
sides.
There is no conflict. The decisions collected in
the preceding paragraph concern, not the statute of
limitations or the effects of tolling, but the preclusive
effect of a judicial decision in the initial suit applying

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8 No. 10-3672
the criteria of Rule 23. The opinions that Atlas Heating
reads as holding that a plaintiff who relies on American
Pipe to toll the statute of limitations cannot represent a
class actually hold instead that a decision declining to
certify a class in the first suit binds all class members,
who cannot try to evade that decision by asking for a
second opinion from a different judge. Class members
must abide by the first court’s understanding and ap-
plication of Rule 23.
If, after concluding that the plaintiff would be an ade-
quate representative of the class, the court denies certif-
ication for a reason that would be equally applicable to
any later suit—for example, that the supposed victims
are too few to justify class litigation, that a common
question does not predominate, or that person-specific
issues would make class treatment unmanageable—then
members of the asserted class are bound by that deci-
sion. We have applied this rule of issue preclusion (collat-
eral estoppel) to at least two sequences in which the
second suit would have been timely even if the first had
never been filed. In re Bridgestone/Firestone, Inc., Tires
Products Liability Litigation, 333 F.3d 763 (7th Cir. 2003);
Thorogood v. Sears, Roebuck & Co., 624 F.3d 842, rehearing
denied, 627 F.3d 289 (7th Cir. 2010). But if the reason why
class certification is denied in the first suit is that
the plaintiff was not an appropriate class representa-
tive, then there is no basis for binding other members
of the putative class, who have yet to receive a judicial
decision on the question whether a class is certifiable
under Rule 23. So, too, when the original plaintiff

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No. 10-3672 9
abandons the class, as Park Bank did. The remaining
members are entitled to one full and fair opportunity to
litigate the question whether a class action is proper.
Although we said above that there is no conflict, and
that the different outcomes depend on the rules of
issue preclusion rather than a doctrine that knocks out
Rule 23 whenever the time to sue has been extended by
a tolling rule, the eleventh circuit expressed its decision
in Griffin more broadly. The first suit in the sequence
leading to Griffin initially was certified as a class action,
but the class was decertified years later when the court
recognized that the representative plaintiff was not a
member. (The plaintiff had not filed a timely charge
of discrimination and therefore could not represent a
class of employees in a suit under Title VII of the Civil
Rights Act of 1964.) The eleventh circuit concluded that
a successive suit that depended on the first’s tolling
effect could not proceed as a class action. 17 F.3d at
359–60. It did not distinguish between a situation in
which class status was denied in the first suit because
the plaintiff was not a suitable representative, and a
situation in which class status was denied because the
other criteria of Rule 23(a) and (b) could not be met. These
two situations seem to us different, for the reasons we
have given. Perhaps the eleventh circuit would think so
too; Griffin does not reject that possibility, which the
parties apparently did not draw to the court’s attention.
To the extent that the eleventh circuit may believe that
Rule 23 must be set aside when a suit’s timeliness
depends on a tolling rule, that view cannot be reconciled
with the Supreme Court’s later decision in Shady Grove

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10 No. 10-3672
Orthopedic Associates, which holds that Rule 23 applies to
all federal civil suits, even if that prevents achieving
some other objective that a court thinks valuable.
Griffin stated that litigation should be brought to an end
quickly, while allowing class certification will prolong
the process. We don’t disparage the value of swift
dispute resolution, but that goal is not a reason to disre-
gard Rule 23.
The propriety of class certification in Sawyer’s suit has
nothing to do with tolling or American Pipe, and everything
to do with the preclusive effect of the first decision, plus
a proper application of Rule 23’s criteria. Because
Park Bank dismissed its suit before the state judge
could decide whether to certify a class, that disposition
does not carry any force for any class member other
than Park Bank. (Issue preclusion applies only to
subjects actually and necessarily decided in the earlier
suit. See Flooring Brokers, Inc. v. Florster Sales, Inc., 324
Wis. 2d 186, 202, 781 N.W.2d 248, 251 (Wis. App. 2010);
Restatement (Second) of Judgments §27 (1982).) It is there-
fore unnecessary to hold this appeal for the Supreme
Court’s decision in Smith v. Bayer Corp., cert. granted, 131
S. Ct. 61 (2010) (argued Jan. 18, 2011), which may decide
what force to give to a federal court’s decision that class
litigation would be unmanageable, when a class member
asks a state court to reach a different conclusion under
state procedures. Our case does not involve any similar
problem.
The district court has yet to decide whether a class
may be certified under the criteria of Rule 23. That is the

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No. 10-3672 11
next order of business, now that this interlocutory
appeal is over.
AFFIRMED
5-26-11

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