# In Re Copper Antitrust Litigation

> Court of Appeals for the Seventh Circuit · February 6, 2006 · 436 F.3d 782

URL: https://www.frixlaw.com/law-library/cases/9498660

## Case

- **Full name:** In Re COPPER ANTITRUST LITIGATION
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** February 6, 2006
- **Citations:** 436 F.3d 782; 2006 U.S. App. LEXIS 2822; 2006 WL 267287
- **Precedential status:** Published
- **Opinion:** Dissent by Wood
- **Judges:** Cudahy, Rovner, Wood
- **Cited by:** 115 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9498660

## How later opinions describe it (automated extraction)

- finding material fact dispute regarding inquiry notice where available public information did not suggest defendant financial institution’s activities went beyond its normal role and CFTC did not name defendant as a subject of its reported investigation
- stating that when “the facts taken in the *592 light most favorable to the plaintiffs could support a finding that their suit was timely,” summary judgment would not be appropriate
- concluding that “a dispute of material fact exists regarding when a diligent inquiry” by a plaintiff would have revealed its cause of action despite publicly available information
- stating that a “judgment of a district court becomes effective and enforceable as soon as it is entered; there is no suspended effect pending appeal unless a stay is entered”
- stating that when “the facts taken in the light most favorable to the plaintiffs could support a finding that their suit was timely,” summary judgment would not be appropriate

## Opinion text

WOOD, Circuit Judge,
dissenting in part.
Unlike my colleagues, who conclude that a state-court class action like Heliotrope cannot, as a matter of law, have an effect on the statute of limitations applicable to the federal antitrust class action here, I conclude that a federal court is both entitled and obliged to take into account related activities in a state court when it decides whether a federal class action can go forward. My principal disagreement with the majority’s tolling analysis is that it reads as if Marrese v. Am. Acad. of Ortho. Surgeons, 470 U.S. 373, 380 , 105 S.Ct. 1327 , 84 L.Ed.2d 274 (1985), in which the Supreme Court stated that “a state court judgment may in some circumstances have preclusive effect in a subsequent action within the exclusive jurisdiction of the federal courts,” were never decided. Because of Marrese , there will be a significant number of cases in which a state antitrust claimant will not have the option, as the majority puts it, of “at some point [] filling] suit in federal court ... to invoke federal antitrust protection.” Opinion of Cudahy, J., at 794. Instead, because of the operation of 28 U.S.C. § 1738 , the claimant will have to be content with the way that the state courts protected the interests embodied in the federal antitrust laws. It is not open to this court to second-guess the wisdom of the holding of Marrese ; instead, we must base our interpretation of other parts of federal law, including the class action rules and tolling principles, on a realistic appreciation of the degree of interdependence between state and federal antitrust claims that Marrese decreed.
*798 The degree of weight any particular state court action must be given in a later federal case will vary, of course, depending on how related it is factually and legally to the federal litigation — there will be a potential range spanning from no weight at all, for wholly unrelated suits, to full-blown claim preclusion, under the principles articulated in Marrese . In the present case, the close identity between the facts and legal principles governing the state and federal cases are enough to require tolling the statute of limitations for the persons who were unnamed class members in the California suit. An examination of the pleadings in the Heliotrope litigation reveals that it covers exactly the same matters that the present suit involves. As unnamed members of the Heliotrope class, the plaintiffs here had no ability to control the course of that litigation. Moreover, had plaintiffs stayed in the Heliotrope litigation and the court had finally resolved such critical questions as relevant market and effect on competition, they would probably have faced issue preclusion in any subsequent effort to invoke the federal antitrust laws. Under those circumstances, I would find that the American Pipe tolling rule applies and I would thus conclude that the plaintiffs’ claims against Morgan are entitled to go forward without further fact-finding. Even with the benefit of class action tolling, however, I would find that Southwire’s claims against Sumi-tomo and Global were time-barred.
I
I believe that it is common ground that if the plaintiffs are entitled to benefit from tolling during the Heliotrope litigation and the tolling period lasted long enough, their claims against Morgan can proceed. I begin, therefore, with a discussion of the legal principles that govern and then turn to the application of those principles to the plaintiffs’ case.
A. American Pipe and Tolling
The question for this part of the case is whether the four-year statute of limitations in the Clayton Act should have been tolled during the pendency of the state antitrust action. Although federal courts have an obligation to respect state court proceedings — one that finds expression in federal statutes such as the Full Faith and Credit Act, 28 U.S.C. § 1738 , and the Anti-Injunction Act, 28 U.S.C. § 2283— our primary duty here is to give proper scope to both the Clayton Act, 15 U.S.C. § 15b (four-year statute of limitations), and Fed. R. Civ. P. 23. In my view, there is no per se rule that bars a federal court from tolling the Clayton Act’s statute of limitations for litigants who earlier were unnamed members in closely related state court class litigation. Whether tolling is appropriate should depend upon both the factual and legal overlap between the two actions. If the earlier state court class action arises out of the same transaction or occurrence as the later federal class action, and the parties and claims are functionally identical, as I believe they are here, I would find that the federal interest in making a forum available to the unnamed members of the earlier class who have allegedly suffered from violations of the antitrust laws is strong enough to call for tolling.
My conclusion is consistent with the purpose that statutes of limitations are designed to serve. Justice Jackson summarized this purpose with characteristic eloquence in Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342 , 64 S.Ct. 582 , 88 L.Ed. 788 (1944):
Statutes of limitation, like the equitable doctrine of laches, in their conclusive effects are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, *799 memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.
Id. at 348-49 , 64 S.Ct. 582 . In American Pipe & Constr. Co. v. Utah, 414 U.S. 538 , 94 S.Ct. 756 , 38 L.Ed.2d 713 (1974), the Court observed that these goals are satisfied in the class action setting when the named plaintiff brings a putative class action and alerts the defendants “not only of the substantive- claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment.” Id. at 555 , 94 S.Ct. 756 .
The Supreme Court has held that the same law should govern both a statute of limitations and the tolling principles that go along with it. See, e.g., Board of Regents v. Tomanio, 446 U.S. 478, 485 , 100 S.Ct. 1790 , 64 L.Ed.2d 440 (1980). Thus, in Tomanio , as well as in Chardon v. Fumero Soto, 462 U.S. 650, 662 , 103 S.Ct. 2611 , 77 L.Ed.2d 74 (1983), both cases in which the federal courts were borrowing an analogous state statute of limitations for an action under 42 U.S.C. § 1983 , the Court held that the state tolling rules had to be applied. This was so even though in Chardon the result, consistent with governing Puerto Rican law, was that the statute of limitations began running anew after class certification was denied in the first suit, rather than simply continuing after suspension. The Court acknowledged that American Pipe had required only suspensive effect, but it distinguished American Pipe on the ground that the antitrust case there was governed by a federal statute of limitations provided by the Clayton Act.
These cases suggest that here, where the question is whether to toll the Clayton Act’s limitations period, the court should apply federal law to the issue rather than California law. (In the present case, as it happens, there is little difference between the federal and the state tolling rules. The California Supreme Court follows American Pipe when it serves the twin purposes that the court has recognized for that case’s tolling rule — efficiency of the litigation process and protection of the defendant through adequate notice. Jolly v. Eli Lilly & Co., 44 Cal.3d 1103 , 245 Cal.Rptr. 658 , 751 P.2d 923, 934-35 (1988).) Federal courts have a broad interest in litigation efficiency even when an earlier lawsuit occurs in the courts of a state or even those of a foreign country. Indeed, both the federal law governing recognition and enforcement of foreign judgments and the law of many states presently take the position that foreign judgments should be recognized and enforced even if the issuing court would not give similar treatment to a U.S. judgment. See, e.g., Bank of Montreal v. Kough, 612 F.2d 467 (9th Cir.1980); Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435 (3d Cir.1971); Uniform Foreign Money Judgments Recognition Act § 4 (not listing lack of reciprocity as a permissible ground for nonrecognition); Restatement (Third) Of Foreign Relations Law Of The United States §§ 481-82 (1987). To the extent that courts and legislatures have eschewed a reciprocity rule, they are making the point that interests in both efficiency and fairness operate across judicial systems; different tribunals that entertain fundamentally the same case should not be hermetically sealed off one from the other.
A look at the Heliotrope litigation reveals that all relevant interests would be served here by tolling: efficiency, fairness to the unnamed plaintiff class members, and protection of the defendant through *800 adequate notice. The claims in Heliotrope are functionally the same as those in the federal case, and the defendants were fully on notice of the alleged misconduct of which they were accused. There is a separate question whether individuals who opt out of a certified class ought to be able to take advantage of tolling principles, but I. am satisfied, based on the Supreme Court’s decisions in Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 351-52 , 103 S.Ct. 2392 , 76 L.Ed.2d 628 (1983), and Eisen v. Carlisle & Jacquelin, 417 U.S. 156 , 176 n. 13, 94 S.Ct. 2140 , 40 L.Ed.2d 732 (1974), that this too is appropriate, on the condition that the statute begins running again as of the date the opt-out becomes effective. (California would do the same thing. See San Francisco Unified Sch. Dist. v. W.R. Grace & Co.-Connecticut, 37 Cal.App.4th 1318 , 44 Cal.Rptr.2d 305, 318 (1995).) Otherwise, parties who are swept into a class action by a self-designated class representative and who later assert their right to opt out will essentially be forced to remain in the class for reasons relating to limitations periods, rather than because they are satisfied with the representation they are receiving.
B. Heliotrope Class Actions
The district court found significance for tolling purposes in the fact that the Heliotrope class action was not based on the federal antitrust laws. Indeed it was not, because it could not have been. The Supreme Court has long understood the antitrust laws as conferring exclusive jurisdiction on the federal courts to adjudicate federal antitrust claims. See Gen. Inv. Co. v. Lake Shore & Mich. S. Ry. Co., 260 U.S. 261, 287 , 43 S.Ct. 106 , 67 L.Ed. 244 (1922). But the plaintiffs’ claims were brought under California’s Cartwright Act (its state antitrust law), Cal. Bus. & Prof.Code §§ 16720-16770, and other states’ antitrust laws. The first question thus should be whether it is enough to show as a matter of substance that different statutes underlay the two claims in order to defeat tolling under American Pipe.
It is helpful in this connection to recall the background of the American Pipe decision. There, the Supreme Court was faced with an antitrust action initially brought by the State of Utah as a class action. After transfer to another district under the multidistrict litigation procedures, the transferee judge granted the defendants’ motion to deny class certification. Eight days later, many of the unnamed members of the class moved to intervene. The district court denied that motion, finding that the four-year statute of limitations had run with respect to their claims, and that it had not been tolled during the pendency of the requested class action. The court of appeals reversed, and the Supreme Court upheld its decision, stating 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.” 414 U.S. at 554 , 94 S.Ct. 756 .
To hold otherwise, the Court had explained earlier,
would frustrate the principal function of a class suit, because then the sole means by which members of the class could assure their participation in the judgment if notice of the class suit did not reach them until after the running of the limitation period would be to file earlier individual motions to join or intervene as parties — precisely the multiplicity of activity which Rule 23 was designed to avoid in those cases where a class action is found superior to other available methods for the fair and efficient adjudication of the controversy.
Id. at 551 , 94 S.Ct. 756 (internal quotation marks omitted). The Court noted that *801 this rule was also consistent with the purpose of ensuring that defendants were protected from claims by plaintiffs who have “slept on [their] rights.” Id. at 554 , 94 S.Ct. 756 . In Croton, the Supreme Court extended American Pipe’s tolling rule to situations where the class action has been dismissed and those who would have been class members commence an independent action instead of intervening. 462 U.S. at 350-51, 103 S.Ct. 2392 .
The American Pipe rule cannot be divorced from the class action context. In the case of ordinary litigation, in which A, B, and C file a lawsuit against X in state court, each of these plaintiffs is responsible — and knows that she is responsible— for protecting her own interests. Thus, if C immediately dropped out of the original lawsuit and failed to file a related action in federal court until after the expiration of the statute of limitations, she would be out of luck. Compare Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394 , 101 S.Ct. 2424 , 69 L.Ed.2d 103 (1981) (holding that nonappealing plaintiffs could not avoid dismissal on res judicata grounds of new lawsuits raising essentially the same claims under federal and state antitrust law, even though appealing co-plaintiffs won a reversal on appeal). With either a federal or state class action, in contrast, the unnamed class members do not enjoy full party rights during the course of the litigation. See, e.g., Devlin v. Scardelletti, 536 U.S. 1, 10-11 , 122 S.Ct. 2005 , 153 L.Ed.2d 27 (2002) (unnamed class members are “parties” for purposes of tolling the statute of limitations; are not “parties” for purposes of defeating complete diversity; are “parties” for purposes of being bound by settlement); Earley v. Superior Court, 79 Cal.App.4th 1420 , 95 Cal.Rptr.2d 57, 66 (2000) (“[t]he structure of the class action does not allow absent class members to become active parties”); Shapell Indus., Inc. v. Superior Court, 132 Cal.App.4th 1101 , 34 Cal.Rptr.3d 149, 155 (2005) (“California courts recognize and preserve the rights of absentee class members [ ] even before the issue of certification has been determined.”). Because there is no pertinent distinction between the way that California treats class actions and the way federal Rule 23 does, the fact that the first class action in this case happened to be in California is not enough to defeat tolling here.
In fact, although the Supreme Court has had no occasion to discuss the situation presented in this case, where the first class action is in state court and the later individual action is in federal court, I see no principled way to distinguish the two scenarios. For the reasons I have already explained, the federal courts are not indifferent to the existence of related litigation in state courts. To the contrary, as the recent passage of the Class Action Fairness Act (CAFA), Pub.L. 109-2, 119 Stat. 4 (2005), illustrates, federal and state class actions are becoming more intertwined by the day. CAFA is designed to facilitate the removal of state-law based class actions filed in state courts to federal court, by permitting such removal whenever minimal diversity and special amount in controversy rules are satisfied. Once in federal court, of course, federal procedural rules (including Rule 23) will govern. See Hanna v. Plumer, 380 U.S. 460 , 85 S.Ct. 1136 , 14 L.Ed.2d 8 (1965). As a result of CAFA, federal courts will inevitably be called upon to interpret and apply state antitrust laws with increased frequency. The effect of the federal court’s judgment will be a matter of federal common law, in accordance with the Supreme Court’s holding in Semtek Int’l. Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508 , 121 S.Ct. 1021 , 149 L.Ed.2d 32 (2001). In general, the federal rule will be one borrowed from the state in which the federal court is sitting, unless that state law is “incompati *802 ble with federal interests.” Id. at 509 , 121 S.Ct. 1021 .
The key question, once we know that we are dealing with unnamed members of an earlier putative class, ought to be how closely the two cases are related. As a matter of substance, it is plain in the case before us that the California suit and the current suit cover the same ground. The Heliotrope litigation involved the same facts, evidence, and witnesses as the present action. The two lawsuits also involve virtually identical legal claims, albeit with different statutory labels. The California Supreme Court recognized in Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 , 107 Cal.Rptr.2d 841 , 24 P.3d 493 (2001), that “section 1 of the Cartwright Act ... like its Sherman Act analogue, makes a conspiracy among competitors to restrict output and/or raise prices unlawful per se without regard to any of its effects.” Id. at 511. Indeed, in Oakland-Alameda County Builders’ Exchange v. F.P. Lathrop Constr. Co., 4 Cal.3d 354 , 93 Cal.Rptr. 602 , 482 P.2d 226 (1971), the state supreme court went so far as to hold that “[b]eeause the Cartwright Act is patterned after the federal Sherman Act and both have their roots in the common law, federal cases interpreting the Sherman Act are applicable in construing the Cartwright Act.” Id. at 231 n. 3.
It is also worth reiterating that had these individual plaintiffs remained members of the Heliotrope class, issue-preclu-sive effect would probably have arisen from the state litigation. Cf. U.S. Gypsum Co. v. Indiana Gas Co., 350 F.3d 623, 628-29 (7th Cir.2003) (explaining that Indiana state court ruling could have issue-preclu-sive effect on aspects of Sherman Act claim). Marrese instructs that the preclusion rules of California would govern. 470 U.S. at 375 , 105 S.Ct. 1327 , relying on 28 U.S.C. § 1738 . Even though it appears that a California court’s ruling in a Cartwright Act case will not have claim-preclu-sive effects in a later Sherman Act claim, see Freeman v. San Diego Ass’n of Realtors, 322 F.3d 1133 , 1142 n. 8 (9th Cir.2003), because California does not apply res judicata to claims that the first forum was incompetent to hear, issue preclusion is another matter. Key questions such as the definition of relevant market, the competitive effect of restraints in that market, and antitrust injury to the plaintiffs would have been resolved in the state litigation, as long as California’s other criteria for issue preclusion were satisfied. (California, like practically every state, has a five-part test for issue preclusion: (1) identity of issue, (2) actual litigation in prior proceeding, (3) necessarily decided, (4) final and on the merits, and (5) party against whom preclusion is sought must be same as, or in privity with, party to former proceeding. See Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA Inc., 129 Cal.App.4th 1228 , 29 Cal.Rptr.3d 521, 536 (2005), quoting Lucido v. Superior Court, 51 Cal.3d 335 , 272 Cal.Rptr. 767 , 795 P.2d 1223, 1225 (1990).) Marrese is not narrowly limited to questions of claim preclusion (nor, for that matter, is § 1738), see, e.g., Jaskolski v. Daniels, 427 F.3d 456, 460-61 (7th Cir.2005); its underlying message is that the state and federal antitrust laws are hardly strangers. If key findings in a state antitrust action will have issue-preclusive effect on a later federal antitrust claim, and those findings as a practical matter will dispose of the federal case, then the unnamed members of a class in the state court risk losing exactly the same rights that unnamed members of a federal class would stand to lose. The distinction between issue and claim preclusion, at least in instances like this one, is more formal than real.
I recognize, of course, that the policies behind statutes of limitations and res judi-cata differ in some respects. Statutes of *803 limitations are concerned with the balance between the defendant’s interest in notice and repose and the plaintiffs interest in vindicating her rights. In contrast, rules of res judicata and collateral estoppel (or if one prefers, claim and issue preclusion) are primarily concerned with putting an end to litigation. See, e.g., David P. Cur-rie, Res Judicata: The Neglected Defense, 45 U. Chi. L. Rev. 317 , 325 (1977) (quoting Restatement (Second) Of Judgments § 1 cmt. a (1942)). This interest in finality comes from the need to avoid waste of judicial resources (including the recognition that a person is entitled to only one full and fair adjudication of a claim), respect for the judgment of the first court, and the need to avoid harassment through repeated lawsuits. See generally Allan D. Vestal, Rationale of Preclusion, 9 St. Louis U. L.J. 29 (1964). The common concern with efficiency and the right to a meaningful (but singular) opportunity to present one’s claim to a court supports the application of the American Pipe rule.
Tolling here would recognize the near-identity of claims and transactions and at the same time further the goals of Fed. R. Civ. P. 23 to promote the fair and efficient adjudication of a controversy. As the Second Circuit explained, “limiting American Pipe tolling to the identical ‘causes of action’ asserted in the initial class action would encourage and require absent class members to file protective motions to intervene and assert their new legal theories prior to class certification, thereby producing the very results the New York courts seek to prevent by such tolling, [] court congestion, wasted paperwork and expense.” Cullen v. Margiotta, 811 F.2d 698, 721 (2d Cir.1987) (internal quotation marks omitted), overruled on other grounds, Agency Holding Corp. v. Malley-Duff & Assocs. Inc., 483 U.S. 143 , 107 S.Ct. 2759 , 97 L.Ed.2d 121 (1987). Some of that protective litigation could easily end up in federal court either as a federal claim or as a state law claim based on diversity jurisdiction — a possibility that underscores further the federal interest in what goes on during the state court class action.
I am not persuaded, as the district court was, that Johnson v. Railway Express Agency, Inc., 421 U.S. 454 , 95 S.Ct. 1716 , 44 L.Ed.2d 295 (1975), requires a different result. Johnson involved the question whether the filing of a charge of employment discrimination with the EEOC for purposes of a Title VII claim had the effect of tolling the statute of limitations for a suit based on the same facts brought under 42 U.S.C. § 1981 . The Supreme Court found that § 1981 and Title VII were “separate, distinct, and independent” avenues of relief, 421 U.S. at 461 , 95 S.Ct. 1716 , and that the Title VII administrative filing did not toll the relevant limitations period for a § 1981 action (at that time, a period determined by borrowing from state law). The Court rejected the plaintiffs effort to rely on American Pipe to support tolling, commenting generally that in American Pipe there was “a substantial body of relevant federal procedural law”— presumably referring to Rule 23 — that guided the decision. 421 U.S. at 466 , 95 S.Ct. 1716 . Thus, both because Johnson did not involve a class action and because it involved distinct legal claims, it does not preclude tolling in this case.
II
The question remains how much time the plaintiffs have gained as a result of Heliotrope and which defendants the tolling affects. I address Morgan’s situation first.
A. Application of Tolling Rules to Morgan
The Asarco Group argues that it is entitled to have the benefit of the period from the time when Morgan was added as defendant in February 2000 until the Asarco *804 Group opted out of the Heliotrope II litigation on March 21, 2003. Southwire asserts that it too should benefit from tolling during the Heliotrope litigation against Morgan (as well as against Sumitomo and Global, whose position I address in a moment). Southwire filed its federal antitrust case on December 30, 2002, and it opted out of the Heliotrope litigation on March 22, 2003 (only one day after the Asarco Group did).
This court previously has held that “filing of a class action suit tolls the statute of limitations for all the members of the class, but when the suit is dismissed without prejudice or when class certification is denied the statute resumes running for the class members.” Culver v. City of Milwaukee, 277 F.3d 908, 914 (7th Cir.2002) (citations omitted); see also Crown, 462 U.S. at 354 , 103 S.Ct. 2392 . Thus, when a court denies certification or dismisses an action, the tolling benefit ceases. Logically, the tolling benefit must also cease when the plaintiff opts out of the class and thereby forfeits its class membership. In this case, the California Superior Court ordered certification of the Heliotrope II class on January 22, 2003, allowing the state antitrust claims against Morgan to go forward. Both the Asarco Group and Southwire were members of the Heliotrope II class, until they filed their opt-out requests on March 21 and 22, 2003, respectively. At that point, they communicated both to the court and to the defendants that they no longer intended to rely on the Heliotrope litigation to press their claims. As of March 21 and 22, therefore, both sets of plaintiffs ceased to benefit from the Heliotrope II litigation.
Although the majority has concluded that disputed questions of fact make summary judgment inappropriate for the claims against Morgan, the availability of class action tolling is important for the plaintiffs’ claims against it. If accepted, tolling would eliminate the need to resolve those factual issues with respect to Morgan. Starting with July 23, 1996, which is the point of reference the district court used, approximately three years and six and a half months elapsed until Morgan was first added to Heliotrope I on February 14, 2000. With only a couple of days’ slippage after the early June end of Heliotrope I, Heliotrope II took over on June 5, 2000. Even if the statute were running between July 23, 1996, and February 14, 2000,1 would find that it was tolled during the period from February 14, 2000, to March 21, 2003, or for three years and 35 days (for Southwire, three years and 36 days). After March 21, 2003, plaintiffs therefore had approximately five and a half months left in which to file their actions against Morgan. They in fact filed these claims on June 13, 2003, a little less than three months after the statute of limitations restarted. Plaintiff Superior filed its action about a month later, on July 11, 2003. Both of these filing dates were well within the remaining five and a half month period available to the plaintiffs. This result would be no different if one were to choose the earlier date of June 14, 1996, as the date when the plaintiffs realized generically that they had been injured, even though at that point they may not have known about Morgan’s role in the injury.
Although Southwire is in a somewhat different position than the Asarco Group with respect to the timing of the new claim, nothing of consequence follows from this. Southwire indicated that it no longer intended to rely on the Heliotrope II class action to press its claims against Morgan when it filed its federal action against Morgan on December 30, 2002. Nevertheless, Southwire also had the same five and a half months from the time it was no longer involved in the Heliotrope II proceeding, because the tolling period began for it on February 14, 2000, even though it *805 ended earlier. Southwire obviously filed its suit against Morgan within five months of December 30, 2002, because it filed on that very day.
B. Application of Tolling Rules to Sum-itomo and Global
The situation of defendants Sumitomo and Global is different. Although South-wire also claims that the Heliotrope litigation operated to toll its claims against these two defendants, I conclude otherwise. The district court held that these claims accrued on June 14, 1996. The California Superior Court denied certification of the proposed Heliotrope I class on October 10, 1997, thus terminating the tolling benefit for the class action against Sumitomo. See Culver, 277 F.3d at 914 . Even though the court’s October 10, 1997, order was without prejudice and it later certified a class for settlement purposes, these circumstances do not support the conclusion that the case remained a putative class action along the lines envisioned by American Pipe and Crown . Clear rules are the best ones for the litigation process. Only confusion could result from a rule requiring every litigant to figure out whether a denial of certification was really a denial, or just a meaningless interim step. For these reasons, I would find that Southwire’s claims against Sumitomo and Global were untimely. 1
For these reasons, I respectfully dissent in part from the majority’s judgment.
. A detailed breakdown of the tolling process for Southwire’s case may help. Starting with June 14, 1996, Southwire used up 24 days before Heliotrope I began on July 8, 1996. It then used up another 606 days between the October 10, 1997, denial of class certification and June 8, 1999, when the Loeb I litigation against Sumitomo and Global began. Another 858 days elapsed from the August 24, 2000, rejection of the Loeb I class until it filed suit on December 30, 2002. The total number of days was 1488, in excess of the 1461 days in four years.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9498660. Public record. Not legal advice.