If two circuits split in the forest, do they make a sound?

Blawgletter supposes that they do.  But, whether you agree with us on that epistomelogical question or not, we bet you know a circuit-split when you see it.

Take a gander at this one.  The Ninth Circuit held that the American Pipe line of cases does not toll the statute of limitations for people who file an individual lawsuit before certification of a pending class action.   In re Hanford Nuclear Reservation Litig., No. 05-35648 (9th Cir. Aug. 14, 2007).  By contrast, as we reported three weeks ago, the Second Circuit in In re WorldCom Sec. Litig., No. 05-6979 (2d Cir. July 26, 2007), held that it does. 

Looks pretty splitty to us.

But the Ninth Circuit didn’t mention the Second Circuit’s WorldCom decision.  Indeed, the court thought that it simply joined "the Sixth Circuit, which which is the only circuit to have addressed the issue directly." Hanford Nuclear, slip op. at 9821 (citing Wyser-Pratte Mgmt. Co., Inc. v. Telxon, 413 F.3d 553, 569 (6th Cir. 2005)).  And — and this will really make you laugh — the Ninth Circuit even cited the WorldCom district court’s opinion!  So had the Sixth Circuit!!

Barry Barnett

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