Philip Morris USA, Inc. v. Christensen

RAKER, J. This case concerns the statute of limitations and whether the commencement of a class action suspends the applicable statute of limitations as to asserted members of the class who would have been parties had the suit been permitted to continue as a class action. We are presented with two issues. First, in a matter of first impression before this Court, we must determine whether, and under what circumstances, the pendency of a putative class action tolls the statute of limitations for the members of the putative plaintiff class who are not named plaintiffs in the action. We shall affirm the judgment of the Court of Special Appeals on this issue, and hold that the pendency of a putative class action tolls the statute of limitations on the causes of action asserted in the class action complaint for the putative plaintiff class members, but only when the class action complaint gives the defendants in the class action complaint fair notice of the claims of the putative class member who claims the benefits of tolling.

Second, we must determine whether the Court of Special Appeals was correct in vacating the trial court’s grant of summary judgment in favor of petitioner Giant Food, LLC (“Giant”) against respondents and remanding the case to the Circuit Court for reconsideration of this issue in light of Benjamin v. Union Carbide, 162 Md.App. 173 , 873 A.2d 463 (2005). We granted certiorari in this case and affirmed the Court of Special Appeals in Georgia-Pacific Corp. v. Benjamin, 394 Md. 59 , 904 A.2d 511 (2006). Accordingly, we shall vacate the judgment of the Court of Special Appeals on this issue, and remand the case to the Court of Special Appeals with instructions to vacate the Circuit Court’s grant of summary judgment in favor of Giant, and to remand the case to the Circuit Court for reconsideration of this issue in light of our opinion in Georgia-Pacific. ²³² I. On August 13, 2001, respondent Nona Christensen (“Ms. Christensen”), in her individual capacity and in her capacity as the personal representative of her deceased husband, Russell Christensen (“Mr. Christensen”), brought a survival and wrongful death action against petitioners. In her complaint, Ms. Christensen alleged causes of action for strict liability for failure to warn, fraudulent misrepresentation, and civil conspiracy.

She sought to recover compensatory and punitive damages, including damages for loss of consortium. On September 25, 2002, the complaint was amended to add Mr. Christensen’s adult children, Lowell Christensen and Lisa Marie Christensen, as plaintiffs. Petitioners Philip Morris USA Inc., Lorillard Tobacco Co., and Liggett Group, Inc. are manufacturers of cigarette products. Petitioners Giant, Crown Service, Inc., George J. Falter Co., Inc., and A & A Tobacco Company, Inc. are involved in the distribution and sale of cigarette products.

With the exception of Giant, petitioners were all defendants in a prior putative class action suit filed in the Circuit Court for Baltimore City, which was before us on a petition for a writ of mandamus in Philip Morris v. Angeletti, 358 Md. 689 , 752 A.2d 200 (2000). 1 In that case, we explained the procedural history of the litigation of the Philip Morris class action litigation as follows: “On May 24, 1996, [the named plaintiffs] filed a complaint in the Circuit Court for Baltimore City against all manufacturers of tobacco and their Maryland distributors, as well as two industry trade groups and a marketing and public relations firm, the majority of whom have jointly filed the petition now before this Court. Seeking both compensatory and punitive damages as well as injunctive relief, [the named plaintiffs] assert claims on behalf of themselves and ²³³ all similarly situated Maryland residents (a) who have suffered or continue to suffer from physical injuries or disease caused by smoking cigarettes or using smokeless tobacco products, and/or (b) who are nicotine dependent and plead addiction as an injury. [The named plaintiffs’] Fourth Amended Complaint alleges ten counts, eight of which embody traditional causes of action sounding in tort and contract: fraud and deceit, negligent misrepresentation, intentional infliction of emotional distress, negligence, breach of express and implied warranties, strict product liability, and conspiracy. In addition, the complaint avers that Petitioners have violated several provisions of the Maryland Consumer Protection Act, codified at Maryland Code (1975, 2000 RepLVol.) §§ 13-101 to 13-501 of the Commercial Law Article. Lastly, Respondents plead a cause of action heretofore unrecognized in Maryland, requesting equitable/injunctive relief in the form of court-supervised, defendant-funded ‘medical monitoring’ of the classes, to detect, prevent and treat future disease, and to treat addiction. “[The named plaintiffs] filed a Motion for Class Certification on September 5, 1997.

Following oral argument on the motion, the Circuit Court issued an Order and Memorandum Opinion on January 28, 1998, granting the Motion for Class Certification. More specifically, the court approved for class action treatment, under Maryland Rule 2 — 231(b)(3), [the named plaintiffs’] eight traditional tort and contract causes of action and single consumer protection claim. In addition, the trial judge found [the named plaintiffs’] claim for medical monitoring appropriate for prosecution as a class action, under Rule 2-231(b)(2).” Philip Morris, 358 Md. at 699-701 , 752 A.2d at 205-06 (footnotes omitted). On February 19, 1998, the Circuit Court issued a class certification order certifying the named plaintiffs’ proposed class.

See id. at 701-02 , 752 A.2d at 206-07 . After the Circuit Court issued this class certification Order, the defendants in the Philip Morris class action litigation petitioned this Court for a writ of mandamus directing the Circuit Court to vacate the class certification Order. We ²³⁴ granted the petition and issued a writ of mandamus on June 15, 2000 directing the Circuit Court to vacate its class certification Order. Id. at 787-89 , 752 A.2d at 254-55 .

Mr. Christensen was not a named plaintiff in the Philip Morris class action litigation, nor did he file a motion to intervene as a plaintiff. He did, however, participate in the litigation. On May 11,1999, he provided an affidavit on behalf of the named plaintiffs, discussing his smoking habit and his lung cancer. Further, on June 30, 1999, he testified at a de bene esse deposition, in which he also discussed his lung cancer diagnosis and the history of his cigarette use.

Returning to the case sub judice, petitioners moved for summary judgment in the Circuit Court on September 4, 2003, arguing that all of respondents’ claims were barred by the statutes of limitations. The Circuit Court granted the motion on November 19, 2003. In its memorandum opinion in support of the Order, the Circuit Court concluded that Mr. Christensen was on inquiry notice by the Spring of 1998 of his claims against petitioners, rendering respondents’ survival claims untimely. The Circuit Court rejected respondents’ argument that the statute of limitations was tolled in any way by the pendency of the Philip Morris class action.

The court held that respondents’ wrongful death claims were also untimely, reasoning that Maryland’s wrongful death statute does not permit a wrongful death plaintiff to maintain a cause of action once the statute of limitations for causes of action arising out of the underlying wrongful acts has run. Respondents noted a timely appeal to the Court of Special Appeals. In a reported opinion, that Court reversed the judgment of the Circuit Court as to all petitioners except Giant, vacated the judgment of the Circuit Court granting summary judgment to petitioner Giant and remanded the case to that court for further consideration on the issue of Giant’s summary judgment motion. See Christensen v. Philip Morris, 162 Md.App. 616 , 875 A.2d 823 (2005).

The Court of Special Appeals held that the pendency of the Philip Morris class action tolled the statute of limitations for Mr. Christensen’s ²³⁵ claims against the Philip Morris petitioners, and reversed the Circuit Court’s grant of summary judgment to the Philip Moms petitioners on this basis. See Christensen, 162 Md. App. at 659 , 875 A.2d at 848 . Because Giant was not a defendant in the Philip Morris class action litigation, however, the Court of Special Appeals concluded it was necessary to reach the issue of when Mr. Richardson was placed on inquiry notice of his claims arising out of his cigarette smoking in order to determine whether the Circuit Court’s grant of summary judgment to Giant was proper. See id. at 659, 875 A.2d at 849 .

Taking note of the fact that it had recently addressed a similar issue in Benjamin v. Union Carbide Corporation, 162 Md.App. 173 , 873 A.2d 463 (2005), the Court of Special Appeals vacated the Circuit Court’s grant of summary judgment to Giant, and remanded the case for reconsideration in light of this case. See id. at 666-68, 875 A.2d at 853-56 . Petitioners timely petitioned this Court for a writ of certiorari, which we granted to consider the following two questions: “1. May Maryland courts create a judicial exception to statutes of limitations under which the filing of a class action lawsuit automatically tolls the running of limitations for all claims of would be class members? “2.

Did the Court of Special Appeals err in remanding the survival claims for reconsideration in light of Benjamin v. Union Carbide Corp., 162 Md.App. 173 , 873 A.2d 463 (2005), when that decision, as well as this Court’s precedent, supports the trial court’s determination that those claims were barred by the general statute of limitations ... ?” Philip Morris v. Christensen, 389 Md. 124 , 883 A.2d 914 (2005).

II

Petitioners offer three main arguments on the issue of class action tolling. First, they contend that this Court’s precedents preclude judicial recognition of a tolling exception to a statute of limitations such as the class action tolling exception ²³⁶ recognized by the Supreme Court in American Pipe & Construction Co. v. Utah, 414 U.S. 538 , 94 S.Ct. 756 , 38 L.Ed.2d 713 (1974), maintaining that the creation of such an exception is the exclusive prerogative of the General Assembly. Second, they argue that even if we do conclude that we have the authority to judicially recognize a class action tolling exception, we should not adopt a version of class action tolling that would toll the statute of limitations in mass-tort putative class actions such as the Philip Morris putative class action. Third, petitioners maintain that even if we were to adopt the rationale of American Pipe, the class action tolling rule enunciated therein would not render respondents’ claims timely, given the Supreme Court’s elaboration of American Pipe in Chardon v. Soto, 462 U.S. 650 , 103 S.Ct. 2611 , 77 L.Ed.2d 74 (1983).

Respondents reply that there is precedent in Maryland law for the judicial recognition of tolling exceptions to statutes of limitations. They then argue that Maryland should adopt American Pipe tolling, and should not carve out an exception for mass-tort putative class actions to the class action tolling rule of American Pipe, because adopting such an exception would be inconsistent with this Court’s conclusion in Philip Morris v. Angeletti, 358 Md. 689 , 752 A.2d 200 (2000), that there is no per se prohibition against mass-tort class action suits, but that each such suit must be examined individually on its merits to determine whether certification of the suit as a class action is appropriate. Finally, respondents reply to petitioners’ final argument that Chardon is inapplicable to the facts of this case because Mr. Christensen’s claims did not accrue until after the filing of the putative class action in Philip Morris.

III

A. This Court’s Authority to Recognize American Pipe Tolling As a threshold matter, we first consider the issue of whether this Court has the authority to recognize a tolling exception ²³⁷ to statutes of limitations akin to the American Pipe class action tolling exception. Although, as petitioners quite correctly point out, our precedents generally have been less than hospitable to the concept of judicially created tolling exceptions, this lack of hospitality is not uniform. In short, although we have on several occasions declined to recognize tolling exceptions, we have been willing to do so when the tolling exception was consistent with the purposes of statutes of limitations. Thus, because the version of American Pipe tolling we find to be preferable is consistent with the purposes of statutes of limitations, we conclude that we do have the authority to recognize this version of American Pipe tolling.

In Bertonazzi v. Hillman, 241 Md. 361 , 216 A.2d 723 (1966), we recognized a tolling exception to a statute of limitations, and, in the course of doing so, delineated the scope of our authority to recognize such exceptions. There, we addressed the issue of whether a statute of limitations for the filing of a claim against a decedent’s estate that required such a suit to be filed within six months after the qualification of the estate’s personal representative was tolled during the pendency of an action against the estate that had been filed in the wrong venue. 2 See Bertonazzi, 241 Md. at 363-64 , 216 A.2d at 724-25 . Appellant, mistakenly believing that appellee resided in Baltimore County rather than Baltimore City after misreading a map, filed suit in Baltimore County within the six month limitations period. Id. at 363 , 216 A.2d at 724 .

After the suit in Baltimore County was dismissed for improper venue, appellant then filed suit in Baltimore City, the proper venue, but only after six months had passed from the time of the appointment of the personal representative. Id. at 364 , 216 A.2d at ²³⁸ 724. Appellant argued that the statute of limitations was tolled during the pendency of the suit in Baltimore County, but the Baltimore City trial court rejected this argument and dismissed the case. Id. at 364 , 216 A.2d at 724-25 .

We reversed the judgment of the trial court, holding that the running of the statute of limitations was tolled during the pendency of the suit in Baltimore County. Id. at 365 , 216 A.2d at 725 . In support of our holding, we first noted that, at the time, Maryland was one of the few jurisdictions without a “savings” rule that permitted a suit filed prior to the expiration of the applicable limitations provision that was dismissed for a reason unrelated to the merits to be refiled within a specified time period. Id.

We then examined the tolling rule urged by the plaintiff in light of the purposes statutes of limitations are intended to serve. See id. at 366-67 , 216 A.2d at 726 . In this vein, we noted that “[sjtatutes of limitations are designed primarily to assure fairness to defendants on the theory that claims, asserted after evidence is gone, memories have faded, and witnesses disappeared, are so stale as to be unjust.” Id. at 367 , 216 A.2d at 726 . Under the facts in Bertonazzi , we concluded that tolling the running of the limitations period during the pendency of the suit filed in the improper venue was consistent with this “primary purpose” because “the appellee ... was as fully put on notice of the appellant’s claim by suit in Baltimore County as she would have been by suit in Baltimore City.” Id.

(emphasis added). The rule we established in Bertonazzi may be distilled as follows: we will recognize a tolling exception to a statute of limitations if, and only if, the following two conditions are met: (1) there is persuasive authority or persuasive policy considerations supporting the recognition of the tolling exception, and (2) recognizing the tolling exception is consistent with the generally recognized purposes for the enactment of statutes of limitations. See id. at 366-67 , 216 A.2d at 726 (noting that our interpretation of the statute of limitations at issue in Bertonazzi “is consistent with the purposes and aims of limitation statutes generally” and “is supported by eminent and persua ²³⁹ sive authority”); see also Weaver v. Leiman, 52 Md. 708, 718 (1880) (observing that running of a statute of limitations may be suspended if there is a “certain and well-defined exception clearly established by judicial authority” (emphasis added)). The second condition ensures that our recognition of a tolling exception to a statute of limitations does not invade the prerogative of the General Assembly.

See id. at 367-68, 216 A.2d at 726-27 (noting that tolling exceptions can be recognized when they “gratiffy] legislative intent,” and in order to “prevent perversion of the policy and purpose of a statute of limitations”). 3 The cases where we have refused to recognize a tolling exception to a statute of limitations are not inconsistent with this rule. For instance, in Walko Corp. v. Burger Chef, 281 Md. 207 , 378 A.2d 1100 (1977), we declined to recognize a tolling exception to the default three year statute of limitations on civil actions. Walko, 281 Md. at 208 , 378 A.2d at 1100 . In Walko, appellant argued that the statute of limitations was ²⁴⁰ tolled during the pendency of its motion to intervene in another suit involving appellee in the United States District Court for the District of Columbia, rendering its subsequent suit against appellee timely.

See id. at 209 , 378 A.2d at 1101 . In rejecting appellant’s claim that the pendency of his motion to intervene tolled the statute of limitations, we contrasted appellant’s proposed tolling exception with the exception we recognized in Bertonazzi , effectively concluding that appellant’s proposed tolling rule did not meet either of the Bertonazzi requirements. See id. at 214-15, 378 A.2d at 1104 (“[wjhatever facts may have been present in Bertonazzi ... that moved us ... do not exist here”). We did not find that the first requirement, that the proposed tolling exception needs to be supported by persuasive authority or argument, was met, because appellant’s proposed tolling rule would permit a plaintiff to “effectively postpone the running of the statute [of limitations] for an indefinite period of time.” Id. at 215, 378 A.2d at 1104 .

Nor did we find that the second Bertonazzi requirement, consistency with the purposes of statutes of limitations, had been met. We found that appellant’s actions did not rise to a level of “ordinary diligence” in pursuing a cause of action, and thus concluded that permitting tolling under these circumstances would be inconsistent with the legislative intent behind statutes of limitations, which embody “a legislative judgment of what is deemed an adequate period of time in which ‘a person of ordinary diligence’ should bring his action.” Id. (quoting Ferrucci v. Jack, 255 Md. 523, 526 , 258 A.2d 414, 415 (1969)). In other cases in which we have declined to recognize a tolling exception to a statute of limitations, we have also found, as we did in Walko, that the tolling exception under examination failed to meet one or both of the Bertonazzi requirements.

See, e.g., Booth Glass Co. v. Huntingfield Corp., 304 Md. 615, 624-25 , 500 A.2d 641, 645-46 (1985) (declining to recognize a tolling exception that would suspend the running of the statute of limitations applicable to a claim based on negligent installation of a product during the time that the installer of the product attempted to repair the product because there was ²⁴¹ authority only for the proposition that the initiation of repairs suspends the running of the statute of limitations on a theory of equitable estoppel, and, under Maryland law, equitable estoppel can suspend the running of a statute of limitations only if the defendant holds out an inducement not to file suit or indicates that limitations will not be plead, neither of which is accomplished by undertaking repairs of a product alleged to have been negligently installed); Burket v. Aldridge, Adm’r, 241 Md. 423, 428 , 216 A.2d 910, 912 (1966) (declining to recognize a tolling exception that would toll the general three-year statute of limitations applicable to tort actions upon the alleged tortfeasor’s death because the absence of an express statutory provision providing for such tolling was understandable “in the light of the purposes of Statutes of Limitations”); dec lining to recognize a tolling exception to a twelve-year statute of limitations for initiation of an action to collect on a note that would suspend the running of the statute upon a payment of principal on grounds that the statute expressly provided for a three-year suspension upon each payment of interest, indicating the legislature had expressly considered when and how payments on the note should suspend the running of the limitations period and decided that payments of principal should not suspend the running of the limitations period). In assessing whether we have authority to recognize a version of the American Pipe class action tolling rule, it is also significant that the principal justification for recognition of such a rule is that it is necessary to preserve the integrity of the class action procedures set out in Md. Rule 2-231. The Rules of Procedure established by this Court in its exercise of its rulemaking power have the force of law. See Dotson v. State, 321 Md. 515, 523 , 583 A.2d 710, 714 (1991).

Thus, insofar as our recognition of an American Pipe class action tolling rule is grounded in Rule 2-231, it differs from those situations where we have declined to recognize a tolling exception in part because there was no provision in existing law that supported the tolling exception. Compare Booth, 304 Md. at ²⁴² 624, 500 A.2d at 645 (declining to recognize a tolling exception because “the legislature ... made no such provision” that would toll the statute in accordance with the proposed tolling exception) with Walko, 281 Md. at 211-12 , 378 A.2d at 1102 (concluding that the statute of limitations would not be tolled during pendency of a motion to intervene “[a]bsent a statutory provision saving the plaintiffs rights” to bring suit upon denial of the motion to intervene). Indeed, this Court not only has the authority to adopt rules that alter the operation of existing statutes of limitations, it has exercised its rulemaking authority to adopt such a rule. Maryland Rule 2-101(b), added to the Maryland Rules in 1992, provides as follows: “Except as otherwise provided by statute, if an action is filed in a United States District Court or a court of another state within the period of limitations prescribed by Maryland law and that court enters an order of dismissal (1) for lack of jurisdiction, (2) because the court declines to exercise jurisdiction, or (3) because the action is barred by the statute of limitations required to be applied by that court, an action filed in a circuit court within 30 days after the entry of the order of dismissal shall be treated as timely filed in this State.” Thus, to the extent that Rule 2-231 provides authority for our recognition of a version of the American Pipe class action tolling rule, our adoption of Rule 2-101(b) provides support for our recognition of such a rule, because our adoption of Rule 2-101(b) provides precedent for alteration of existing statutes of limitations by a Maryland Rule.

B. The Scope of the American Pipe Class Action Tolling Rule We now consider the arguments for adopting a version of the rule at all, and those for adopting particular versions of the rule. To this end, we begin by examining in detail American Pipe and its progeny, in particular Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345 , 103 S.Ct. 2392 , 76 L.Ed.2d 628 (1983). ²⁴³ In American Pipe, the State of Utah filed a civil antitrust action in the United States District Court for the District of Utah for treble damages against American Pipe and the other petitioners, alleging that they had fixed the price of concrete and steel pipe sold to the State. American Pipe, 414 U.S. at 541 , 94 S.Ct. at 760 . The suit was filed as a class action suit, purporting to be brought on behalf of “public bodies and agencies of the state and local government in the State of Utah who are end users of pipe acquired from the defendants,” and on behalf of other western States that had not brought similar actions.

Id. The suit by the State of Utah was timely under the applicable statute of limitations, 15 U.S.C. § 16 (b), which provides that a party has one year from the time that civil or criminal proceedings brought by the United States to enforce the antitrust laws have concluded to file a civil antitrust suit. Id. at 541-42 , 94 S.Ct. at 760 . 4 Alter the suit was transferred to the United States District Court for the Central District of California by the Judicial Panel on Multi-district Litigation, the petitioners moved pursuant to Fed.R.Civ.P. 23(c) for an order that the suit could not be maintained as a class action. Id. at 542 , 94 S.Ct. at 760-61 .

The trial judge granted the motion. Id. at 542-43 , 94 S.Ct. at 761 . In its memorandum opinion in support of the Order, the trial court evaluated whether the proposed class satisfied the four prerequisites for bringing a class action set forth in Fed.R.Civ.P. 23(a). 5 Id. at 543 , 94 S.Ct. at 761 . The trial ²⁴⁴ court concluded that, although the prerequisites of commonality, typicality, and the suitability of the class representative had all been met, the requirement of numerosity had not been met, on the ground that the estimate of the size of the plaintiff class provided in the complaint was, in the court’s opinion, overstated.

Id. Consequently, the trial court concluded that joinder of all the members of the class was not impracticable, and refused to certify the proposed plaintiff class. Id. After the trial court denied class certification, approximately sixty members of the proposed plaintiff class moved to intervene as plaintiffs pursuant to Fed.R.Civ.P. 24, moving to intervene as of right pursuant to Fed.R.Civ.P. 24(a)(2), and in the alternative, to intervene by permission pursuant to Fed. R.Civ-P. 24(b)(2).

Id. at 543-44 , 94 S.Ct. at 761 . The trial court denied the request on grounds that the motions to intervene were untimely, concluding that the running of the limitations period had not been tolled by the filing of the putative class action on their behalf. Id. at 544 , 94 S.Ct. at 762 . On appeal, the United States Court of Appeals for the Ninth Circuit reversed, holding that the limitations period was tolled by the filing of the pendency of the putative class action, and did not begin to run again until the trial court entered its Order denying class certification.

Id. at 544-45 , 94 S.Ct. at 762 . The Supreme Court, in upholding the judgment of the United States Court of Appeals for the Ninth Circuit, began by examining the history of the then-current version of Fed. R.Civ.P. 23, contrasting it with the pre-1966 version of the Rule. See id. at 545-50 , 94 S.Ct. at 762-64 . 6 The Court noted ²⁴⁵ that, under the prior version of the Rule, there was “no mechanism for determining at any point in advance of final judgment which of those potential members of the class claimed in the complaint were actual members and would be bound by the judgment.” Id. at 545-46 , 94 S.Ct. at 762-63 . Accordingly, the prior version of the Rule was characterized as being “ ‘merely an invitation to joinder — an invitation to become a fellow traveler in the litigation, which might or might not be accepted.’ ” Id. at 546 , 94 S.Ct. at 763 (quoting 3B Jambs Wm.

Moore Et. Al., Moore’s Federal Practice ¶ 23.10(1) (2d ed.)). This facet of the prior rule permitted members of the putative plaintiff class to sit on the sidelines ²⁴⁶ during the course of litigation and intervene only if they concluded that the course of events during trial was favorable, because there was no fear that they would be bound by an unfavorable final judgment if they chose not to intervene. Id. at 547 , 94 S.Ct. at 763 .

It takes little perspicacity to discern that this facet of the Rule prompted objections on grounds of unfairness to defendants, who were not given a corresponding right under the prior version of the Rule to potentially have multiple attempts to achieve a favorable outcome in litigation. See id. 7 The Court then observed that the 1966 amendments to Rule 23 were intended to remedy this perceived defect. Id. The Court explained the mechanics and ultimate effects of these amendments as follows: “Under the present Rule, a determination whether an action shall be maintained as a class action is made by the court ‘(a)s soon as practicable after the commencement of an action brought as a class action.... ’ Rule 23(c)(1).

Once it is determined that the action may be maintained as a class action under subdivision (b)(3), the court is mandated to direct to members of the class ‘the best notice practicable under the circumstances’ advising them that they may be excluded from the class if they so request, that they will be bound by the judgment, whether favorable or not if they do not request exclusion, and that a member who does not request exclusion may enter an appearance in the case. Rule 23(c)(2). Finally, the present Rule provides that in Rule 23(b)(3) actions the judgment shall include all those found to be members of the class who have received notice and who have not requested exclusion. Rule 23(c)(3).

Thus, potential class members retain the option to participate in or withdraw from the class action only until a point in the litigation ‘as soon as practicable after the commencement’ of ²⁴⁷ the action when the suit is allowed to continue as a class action and they are sent notice of their inclusion within the confines of the class. Thereafter they are either nonparties to the suit and ineligible to participate in a recovery or to be bound by a judgment, or else they are full members who must abide by the final judgment, whether favorable or adverse.” Id. at 547-49 , 94 S.Ct. at 763-64 (footnotes omitted). The Court then proceeded to articulate the rationale for its holding. The principal rationale offered by the Court was that tolling was necessary to effectuate the purposes behind the revised version of Rule 23.

Id. at 553-54 , 94 S.Ct. at 766 . The Court noted that “[a] contrary rule ... would deprive Rule 23 class actions of the efficiency and economy of litigation which is a principal purpose of the procedure.” Id. at 553 , 94 S.Ct. at 766 . This is so because, without a rule that tolls the statute of limitations, members of the putative class would be forced to file protective motions to join or intervene in the action in order to ensure that they would not be barred from bringing suit individually in the event that the court determined that the action could not be maintained as a class action. See id. at 553-54 , 94 S.Ct. at 766 .

Thus, the Court, in an oft-quoted passage, concluded as follows: “We are convinced that the rule most consistent with federal class action procedure must be 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.” Id. at 554 , 94 S.Ct. at 766 . Despite the apparent breadth of the above-quoted language, both the opinion of the Court and, in particular, the concurring opinion of Justice Blackmun, were careful to note that the class action tolling rule adopted by the Court in American Pipe was to be applied in such a way that its application was not inconsistent with the purposes behind statutes of limitations. The Court, noting that statutes of limitations are ²⁴⁸ intended to give notice of suit to defendants within a reasonable amount of time to prevent loss of evidence and the fading of witnesses’ memories, concluded that these policies underlying statutes of limitation were not undermined under the facts of American Pipe. Id. at 554-55, 94 S.Ct. at 766-67 .

The Court stated as follows: “The[se] policies ... are satisfied when, as here, a named plaintiff who is found to be representative of a class commences a suit and thereby notifies 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. Within the period set by the statute of limitations, the defendants have the essential information necessary to determine both the subject matter and size of the prospective litigation, whether the actual trial is conducted in the form of a class action, as a joint suit, or as a principal suit with additional intervenors.” Id. at 554-55 , 94 S.Ct. at 766-67 (footnotes omitted). The Court’s concern with ensuring that the tolling rule it was adopting was not at odds with the policies underlying statutes of limitations was further evidenced by the narrowness of its statement of its holding: “We hold that in this posture, at least where class action status has been denied solely because of failure to demonstrate that ‘the class is so numerous that joinder of all members is impracticable, ’ the commencement of the original class suit tolls the running of the statute for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status.” Id. at 552-53 , 94 S.Ct. at 765-66 (emphasis added). Justice Blackmun, in his concurring opinion in American Pipe, wrote separately to emphasize that he did not regard the Court’s opinion as necessarily tolling the statute of limitations for every member of a putative plaintiff class once a putative class action has been filed.

See id. at 561 , 94 S.Ct. at 770 ²⁴⁹ (Blackmun, J., concurring). Interpreting the Court’s holding to toll the statute of limitations only for putative class members who move to intervene pursuant to Fed.R.Civ.P. 24, Justice Blackmun noted that, under Fed.R.Civ.P. 24(b), a trial court may deny intervention if it “concludes that [it] will ‘unduly delay or prejudice the adjudication of the rights of the original parties.’ ” Id. at 562 , 94 S.Ct. at 770 (quoting Fed.R.Civ.P. 24(b)). Given the importance of upholding the purposes behind statutes of limitations, Justice Blackmun cautioned that trial courts should exercise their discretion under Rule 24(b) to prevent attorneys in class actions cases from “fram[ing] their pleadings as a class action, intentionally, to attract and save members of the purported class who have slept on their rights.” Id. at 561-62 , 94 S.Ct. at 770 . In Crown, Cork & Seal, the Court considered whether the filing of a putative class action tolled the statute of limitations for putative class members who filed individual claims after class certification was denied rather than intervened in the original action, an issue left unresolved by American Pipe, Crown, Cork & Seal, 462 U.S. at 348-49, 103 S.Ct. at 2395.

The Court answered this question in the affirmative, holding that American Pipe applies to toll the statute of limitations for the individual claims of putative class members filed after denial of class certification just as it tolls the statute of limitations for intervenors. See id. at 350-51, 103 S.Ct. at 2395-96. The Court reasoned that extension of American Pipe to later-filed individual claims was necessary to prevent individual putative class members from filing protective claims, and hence was necessary to avoid the inefficiencies that the American Pipe tolling rale was designed to avoid. Id. at 350-51, 103 S.Ct. at 2396.

This is so, the Court maintained, because there are many reasons for a plaintiff to prefer filing an individual claim over intervention: the putative class member may choose to file in a more convenient forum than the forum of the original putative class action, the putative class member may not wish to share control of the litigation with the other plaintiffs in the original action, and, if intervention as of right is not available, the plaintiff runs a ²⁵⁰ real risk of a denial of its motion to intervene under Fed. R.CivJP. 24(b). Id. In a concurring opinion, Justice Powell, joined by Justices Rehnquist and O’Connor, wrote separately to “reiterate the view expressed by Justice Blackmun” in his concurrence in American Pipe. Id. at 354, 103 S.Ct. at 2398 (Powell, J., concurring).

Justice Powell admonished that the American Pipe tolling rule “should not be read ... as leaving a plaintiff free to raise different or peripheral claims following denial of class status.” Id. He endorsed Justice Blaekmun’s view in his concurrence in American Pipe that, when a putative class member seeks to intervene by permission pursuant to Fed. R.Civ.P. 24(b) after denial of class certification, the trial court should protect defendants from having to defend claims of which they had no prior notice. Id. at 355, 103 S.Ct. at 2398. Justice Powell then cautioned that the same concern about ensuring that defendants are not prejudiced by permissive intervenors asserting claims of which the class action suit did not give notice applies with equal force when a putative class member files a separate claim after class certification is denied, stating as follows: “Similarly, when a plaintiff invokes American Pipe in support of a separate lawsuit, the district court should take care to ensure that the suit raises claims that ‘concern the same evidence, memories, and witnesses as the subject matter of the original class suit,’ so that ‘the defendant will not be prejudiced.’ Claims as to which the defendant was not fairly placed on notice by the class suit are not protected under American Pipe and are barred by the statute of limitations.” Id.

(quoting American Pipe, 414 U.S. at 562 , 94 S.Ct. at 770 (Blackmun, J., concurring)). The wide majority of states with class action rules similar to Fed.R.Civ.P. 23 have followed American Pipe and endorsed a class action tolling rule. 8 State court opinions endorsing ²⁵¹ American Pipe class action tolling and lower federal court opinions applying it, however, vary in terms of their depth of treatment, and, most significantly, in terms of the emphasis they place on ensuring that American Pipe is applied consistently with the purposes of statutes of limitations. In Jolly v. Eli Lilly & Co., 44 Cal.3d 1103 , 245 Cal.Rptr. 658 , 751 P.2d 923 (1988), the California Supreme Court aptly observed that American Pipe represented an attempt to balance two fundamental policy considerations, “the protection of the class action device,” and “the effectuation of the purposes of the statute of limitations.” Id. at 935. Consequently, the Jolly court observed, some courts implementing American Pipe have emphasized the first policy consideration, and others have emphasized the latter.

Id. Courts emphasizing the policy of ensuring that the class action rule functions efficiently have either held explicitly that the concern of the American Pipe Court with ensuring that efficiency of class action procedure and avoiding duplicate individual filings takes primacy over the promotion of the purposes of statutes of limitations, or have adopted or implemented American Pipe in such a way as to implicitly indicate such primacy by omission of discussion of the purposes of statutes of limitation. See, e.g., Appleton Elec. Co. v. Graves Truck Line, Inc., 635 F.2d 603, 609 (7th Cir.1980) (concluding that it was “implicit” in American Pipe that “ ‘effectuation of the purpose of litigative efficiency and economy,’ (which Rule 23 was designed to perform) transcends the policies of repose and certainty behind statutes of limitations”); Blaylock, 954 S.W.2d at 941 (citing American Pipe ²⁵² and concluding that pending putative class action tolled applicable statute of limitations without further analysis).

Cases applying American Pipe that have focused on the policies underlying statutes of limitations, echoing Justice Blackmun’s concurrence in American Pipe and Justice Powell’s concurrence in Crown, Cork & Seal, have held that American Pipe class action tolling applies only when the class action complaint gives the defendants notice of the claims of the putative class members who intervene or file suit individually after class certification is denied. See, e.g., McCarthy v. Kleindienst, 562 F.2d 1269, 1272 (C.A.D.C.1977) (declining to adopt a per se rule that would render American Pipe inapplicable when class certification is denied on grounds of lack of typicality or commonality, but noting that the class action complaint must result in “the defendant receiving] fair notice of the nature of the intervenors’ claims” for American Pipe to apply); Jolly, 245 Cal.Rptr. 658 , 751 P.2d at 936 (declining to apply class action tolling where class action complaint sought only injunctive relief for the putative class, but individual claim filed after class certification was denied sought money damages). This divergence in the interpretation and application of American Pipe and its progeny is understandable given the ambiguity in American Pipe’s discussion of the relation between the purposes of statutes of limitations and the class action tolling rule the Court articulated in the opinion. Specifically, the Court’s discussion of this issue in American Pipe is ambiguous between (1) imposing an additional necessary condition for the application of the class action tolling rule it was adopting, and (2) simply claiming that the rule it was adopting was in fact consistent with the purposes underlying statutes of limitations, at least under the facts of the case before it.

Thus, when the Court in American Pipe noted that the policies underlying statutes of limitations were satisfied when defendants have been “notifie[d] ... not only of the substantive claims against them, but also of the number and generic identities of the potential plaintiffs,” it is unclear whether the American Pipe Court intended, by virtue of the narrow ²⁵³ statement of its holding, to adopt a requirement that a defendant be so notified by a class action complaint in order for a plaintiff to assert class action tolling against the defendant. The differing approaches taken by courts applying American Pipe identified by the Jolly court, in our view, can be seen as representing the different possible resolutions of this ambiguity in American Pipe. We adopt the American Pipe class action tolling rule, and its extension in Crown,, Cork & Seal, but with the understanding that the American Pipe tolling rule incorporates the discussion of notice as an additional requirement that must be met in order for a plaintiff or intervenor to claim the benefit of the rule. Md. Rule 2-231 was modeled after the 1966 version of Fed.R.Civ.P. 23, the version of Rule 23 in effect when American Pipe was decided.

See Md. Rule 2-231, Source Note (every subsection of the Rule, other than subsection (g) dealing with discovery, derived in whole or in part from the 1966 version of Fed.R.Civ.P. 23). In particular, subsections (a) and (c) of the 1966 version of Rule 23, those aspects of the Rule principally relied upon by the American Pipe Court, are virtually identical to subsections (a) and (c) of Rule 2-231. We have long held that federal caselaw interpreting a Federal Rule of Civil Procedure is persuasive authority for the interpretation of a Maryland Rule patterned after the federal rule. See, e.g., Garay v. Overholtzer, 332 Md. 339, 355 , 631 A.2d 429, 437 (1993).

In particular, in interpreting Rule 2-231 we have looked to federal authority interpreting Rule 23 given the “dearth of authority in Maryland analyzing the specific requirements of ... Rule 2-231.” Philip Morris, 358 Md. at 724 , 752 A.2d at 219 . We find the principal rationale offered by the American Pipe and Crown, Cork & Seal courts for the recognition of a class action tolling rule to be persuasive. One