Law of the Case
After review of the several decisions in Lusardi, I do not find Xerox's law-of-the-case argument persuasive.
Xerox contends that Judge Lechner determined the tolling date for the plaintiffs' claims in Lusardi and, therefore, under the-law-of-the-case doctrine, this Court should stay its hand. Xerox claims that the form Notice of Decertification to Conditional Class Members ("Notice") that accompanied Judge Lechner's order, entered November 10, 1988, decertifying the class constitutes a decision that tolling began when each plaintiff opted-in to the class. The Notice advised the class members that "the statutes of limitations applicable to your federal age discrimination claim against Xerox have been tolled, or stayed, from the time you filed your consent to join this law suit. As a result of the court's decision to decertify this case as a class action, that stay will expire as of midnight December 23, 1988." Notice, p. 2.
Plaintiffs contend that the Notice is not the law of the case. Plaintiffs argue that the Notice was not an order and that the tolling issue was not litigated before Judge Lechner.
The law-of-the-case doctrine requires that "a decision on an issue of law made at one stage of the case becomes a binding precedent to be followed in successive stages of the same litigation." 1B Moore's Federal Practice P 0.404. The practical impact of this doctrine is "'that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'" Christianson, 486 U.S. at 816 (quoting Arizona, 460 U.S. at 618). The doctrine applies as much to the decisions of coordinate courts as to a court's own decisions. Id. The doctrine of the law of the case "is a discretionary doctrine which 'merely expresses the general practice of refusing to open what has been decided.'" Diduck v. Kaszycki & Sons Contractors, Inc., 737 F. Supp. 792, 796 (S.D.N.Y. 1990) (quoting Lasky v. American Broadcasting Companies, Inc., 631 F. Supp. 962, 964 (S.D.N.Y. 1986) and United States v. Birney, 686 F.2d 102, 107 (2d Cir. 1982)).
I do not believe that the Notice was a decision on an issue of law in this case. The decision to decertify the class was clearly an issue of law that the Lusardi Court resolved. However, to interpret the Notice to former members of the class as a final decision on any issue other than class decertification would be an overextension of the doctrine of-law-of-the-case.
"As a general rule, 'where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to do battle again.'" U.S. v. Martinez, 987 F.2d 920, 923 (2d Cir. 1993) (quoting Zdanok v. Glidden Co., Durkee Famous Foods Div., 327 F.2d 944, 953 (2d Cir.), cert. denied, 377 U.S. 934, 12 L. Ed. 2d 298, 84 S. Ct. 1338 (1964)).
Xerox has failed to convince me that the parties "did battle" concerning the applicable tolling date. There is nothing before me to indicate that the issue was ever briefed or argued. The Notice attached to Judge Lechner's decertification order notified class members that the case had been decertified, that each plaintiff could pursue his own action, and that the stay of the statute of limitations period would expire within about a month, on December 23, 1988. This Notice, although attached to Judge Lechner's order, was not signed by Judge Lechner but by the Clerk of the District Court. There is no evidence that the parties participated in the drafting of this Notice or consented to all of its terms.
On the state of this record, I am not prepared to rule that the issue of tolling was litigated between the parties in the Lusardi action. Because of the decertification order, issues concerning tolling were not before the Lusardi court, and there would be no need for Judge Lechner to entertain argument and rule on that aspect of the case. The record is simply not clear enough for me to hold now that the parties should be precluded from litigating this issue because of prior rulings in the Lusardi case.
In any event, the law-of-the-case doctrine is a discretionary one and a court may reconsider prior issues. Martinez, 987 F.2d at 923. Therefore, even if Judge Lechner's decision dealt with this tolling issue, which did not occur in my judgment, this Court could reconsider the matter if I believed it had not been properly or thoroughly briefed and argued between the parties. I conclude therefore that because the basis for Xerox's law-of-the-case argument rests on such a slim reed, that is, the Notice, this Court will consider the matter on the merits.
Tolling Under the ADEA
On the merits, I believe that the better view, the one more consistent with class action principles under the ADEA, is that tolling commences for statute of limitations purposes for subsequently filed complaints, when the initial class action complaint was filed and not when class members opted into the certified class.
If this case had been prosecuted as a class action under Fed. R. Civ. P. 23, the result would be clear concerning tolling. Generally, the claims of all members of a class action are tolled from the date the first action is filed. The Supreme Court in American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 38 L. Ed. 2d 713, 94 S. Ct. 756 (1974), ruled that the commencement of a class action tolls the statute of limitations for all class members. Id. at 554. The statute of limitations is tolled for all class members regardless of whether the class is later decertified. As Justice Stewart explained "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. Claims are tolled from the filing of the first action to prevent filing of numerous motions to join or intervene and preserve the "efficiency and economy of litigation" that is the principal purpose of Rule 23. Id. at 553.
Xerox contends that because the actions are brought not under the general class action statute, Rule 23, but under the ADEA, a more restricted rule applies concerning tolling. Resolution of this issue, therefore, involves an analysis of the statutory provisions of both the ADEA and the FLSA.
In some instances, the ADEA explicitly incorporates provisions of the FLSA. For example, the ADEA explicitly incorporates §§ 255 and 259 of the FLSA. See 29 U.S.C. § 626(e).
The crucial section that is disputed is § 256 of the FLSA. That section provides that:
In determining when an action is commenced . . . it shall be considered to be commenced in the case of any individual claimant--
(a) on the date when the complaint is filed, if he is specifically named as a party plaintiff in the complaint and his written consent to become a party plaintiff is filed on such date in the court in which the action is brought; or