Legal Opinions - U.S. District Court, Maryland: May 5, 2008

Plaintiff filed its original complaint on July 24, 2007 in the Superior Court of the State of Arizona. Accordingly, unless the statute of limitations was tolled, A.R.S. [section] 44-1410 would bar all overcharge claims for the period before July 24, 2003 because those purchases occurred, and the claims based on them accrued, more than four years before plaintiff filed its original complaint.

The class action tolling doctrine provides 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." Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554 (1974).

The class action that potentially suspended the statute of limitations as to plaintiff in the instant case is Friedman v. Microsoft Corp., No. CV 2000-000722 (Ariz. Sup. Ct., Maricopa County Jan. 12, 2000), which was filed on January 12, 2000. Both Microsoft and Daisy agreed that the filing of the Friedman class action tolled the limitations period. Their disagreement centered on when, if ever, the tolling period ended.

In In re Microsoft Corp. Antitrust Litigation II, the court held that tolling ceased when class counsel filed a motion for class certification excluding governmental entities from the class. 2005 WL 906364, at *4 (D. Md. 2005).

Similarly, Ganousis v. E.I. du Pont de Nemous & Co. held that a purported class member ceases to be a member of the putative class as soon as class counsel files a motion excluding that class member. 803 F. Supp. 149, 156 (N.D. Ill. 1992).

Accordingly, the court determined that when class counsel "unequivocally focused their sights as including within the proposed class only Minnesota residents -- and thus as excluding [Ganousis]" - - the tolling of the statute of limitations ended. Id. at 155-56. Ganousis rejected plaintiff's argument that only a court's determination of class certification, not a class counsel's motion, could end the tolling. Id. at 156.

It is true that both the Friedman plaintiffs' motion to certify the amended class and the court's granting of that motion emphasized the addition of operating systems and application programs to the suit (which apparently expanded the class), not the simultaneous narrowing of the class in other respects.

However, Daisy's argument ultimately failed because it ignored the fact that the Friedman plaintiffs' motion to certify the amended class asserted an unambiguous definition of their desired class that was narrower than in their original complaint. See Smith, 352 F.3d at 893-94.

The court specified in granting the motion that "[t]he class therefore includes the operating systems and applications" does not contradict the conclusion that it simultaneously narrowed the class to exclude governmental entities. (Rosenfeld Decl., Ex. D.)

In fact, the Friedman court's Minute Entry explicitly "grant[ed] the Plaintiffs' Motion to Certify Classes as Amended." (Id.) Those "classes as amended" expressly did not include government entities. (Rosenfeld Decl. [para] 3, Ex. B, Friedman Am. Compl. [para] 58.)