But that’s not, generally speaking, how class actions roll. The non-class representative plaintiffs are along for the ride, not expected to take up the cudgel. Venue may be inconvenient (or jurisdiction not present). Etc. etc.

It’s just weird that those plaintiffs can file individual claims, but cannot aggregate, unless you want to bring in issue-preclusion, which isn’t easy either.

I am not disagreeing with the result as a policy matter–it just seems that the path is far more difficult than meets the eye.

Shouldn’t this be something the rules themselves address?

Agreed, issue preclusion seems a more straight forward answer to this legal knot – if you don’t like the unsuccessful certification result, appeal – don’t dismiss and start over, knowing that none of the months or perhaps years leading up to this point count against any SoL.

Understood—but isn’t the point that the individuals aren’t time-barred by virtue of the pending class-action, so why would their ability to avail themselves of procedural devices in the FRCP–I could see some sort of issue preclusion argument, but Sotomayor’s argument isn’t out to lunch, as far as I can tell.

The APC v Utah rule essentially tolled the SoL for filing while the prior class was in place, allowing the litigation (specifically, unsuccessful attempts at certification) to go on essentially forever. Given the costs of repeat Discovery at the pre-certification stage, and the lack of any finality until a class wide settlement was reached, a series of individual actions, pled ad infinitum as potential classes, has an en terrorem effect on Defendants.

one can’t be a silent potential class member until the case falls apart, then bring the potential class again until the Defendant is compelled to settle to avoid further costs, w/o regard to the underlying merits. Once the clock has ticked, it should be done.

Or so I understand it.

But if the individual plaintiffs aren’t time-barred, then why would their ability to use a device found in the FRCP be barred?