ITT Corporation employed hundreds of American workers in performing a contract to provide services to the U.S. military in Kuwait. Workers claiming that ITT failed to comply with Kuwaiti wage-and-hour laws filed a class action in a federal district court in Washington state. The district court initially denied class certification on the ground that the plaintiffs had not shown that common issues predominated, then certified it based in part on its conclusion that Kuwaiti substantive law and Washington state’s statute of limitations would govern the claims of all members of the class. On an interlocutory appeal, the U.S. court of appeals for the Ninth Circuit held in a non-precedential opinion that a one-year Kuwaiti statute of limitations was applicable, vacated the certification order, and remanded for consideration of whether the class was still certifiable in light of the applicability of the Kuwaiti limitations period. The district court again certified a narrower class, and ITT again appealed. On appeal, ITT argued that the class could not be certified because the limitations period had run out for all members of the class between the filing of the action and the district court’s second order granting certification. The Ninth Circuit, in another non-precedential opinion, rejected that argument. The court held that under the Supreme Court’s longstanding “American Pipe” rule, the statute was tolled between the filing of the action and the initial denial of certification; ran again between that order and the first order granting certification; was tolled again between that order and the effective date of the decision in the first appeal vacating it; and then ran again until the second order granting certification. Because the amount of time during which the statute ran following the filing of the action was not, as ITT argued, more than a year, the court rejected ITT’s contention that the class could not be certified because all members’ claims were time-barred.
ITT filed a petition for a writ of certiorari, arguing that the Ninth Circuit’s application of American Pipe principles conflicts with decisions of other circuits. Public Citizen Litigation Group, as cocounsel with the plaintiffs’ attorneys, prepared a brief in opposition explaining that there is no conflict and that the Ninth Circuit’s opinion, if anything, bent over backward in favor of ITT by assuming that the statute ran against non-named class members during periods of time in which a class had not been certified. In October 2017, the U.S. Supreme Court denied certiorari.