Full opinion text
MEMORANDUM ALETA A. TRAUGER, District Judge. The defendant, Wal-Mart Stores, Inc. (“Wal-Mart”), has filed a Motion to Dismiss in Part Plaintiffs’ Complaint or in the Alternative to Strike Class Claims (Docket No. 19) (“Partial Motion to Dismiss”), to which the plaintiffs have filed a Response in opposition (Docket No. 35), and the defendants have filed a Reply (Docket No. 39). The court heard oral argument on the motion on January 30, 2013. For the reasons set forth herein, the motion will be granted and the court will dismiss the class claims with prejudice. BACKGROUND I. Procedural History A. Dukes (N.D.CaL), Odie (N.D.Tex.), Love (S.D.FIa.), and Phipps (M.D.Tenn.) This case has its origins in the federal district court for the Northern District of California (hereinafter “California district court”), where several named plaintiffs brought a putative national class action against Wal-Mart (Dukes v. Wal-Mart Stores, Inc. (“Dukes”)) in June 2001 on behalf of themselves and others similarly situated, alleging that Wal-Mart had systematically discriminated against female employees nationwide with respect to pay and promotion, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. After extensive class discovery and briefing, the district court, pursuant to Fed.R.Civ.P. 23, certified a nationwide class consisting of all current and former female Wal-Mart employees who had worked at Wal-Mart during a specified time frame. Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 188 (N.D.Cal.2004). On appeal, after rehearing en banc, the Ninth Circuit substantially affirmed the district court’s certification order. See Dukes v. Wal-Mart, Inc., 474 F.3d 1214 (9th Cir.2007) (panel decision affirming in full); Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir.2010) (en banc decision affirming in part and remanding in part). However, in a landmark decision concerning the standards of Rule 23, the United States Supreme Court reversed the Ninth Circuit, holding that, for purposes of certifying a nationwide class, the plaintiffs had failed to demonstrate the requisite commonality under Rule 23(a)(2). Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). Following the Supreme Court’s decision in Dukes, the parties continued to litigate before the California district court. Pursuant to the United States Supreme Court decision in American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), the California district court issued an opinion tolling the statute of limitations applicable to sex discrimination claims by the former class members, with respect to whom the court set deadlines for filing EEOC charges and/or lawsuits concerning their discrimination charges. {See Docket No. 1, Compl., Ex. 9, July 25, 2011 order.) Following that order, certain former nationwide class members filed EEOC charges (to the extent that they had not done so already) and, ultimately, filed three putative class action lawsuits in other jurisdictions: (1) Odle v. Wal-Mart Stores, Inc., No. 3:11-cv-2954-O, 2011 WL 5119693 (N.D.Tex. filed Oct. 28, 2011) (“Odie ”) (relating to ‘Wal-Mart’s regions located in whole or in part in Texas”); (2) Phipps, et al. v. Wal-Mart Stores, Inc., 3:12-cv-1009, 2012 WL 4896677 (M.D.Tenn. filed Oct. 2, 2012) (“Phipps”) [i.e., this case]; and (3) Love, et al. v. Wal-Mart Stores, Inc., No. 0:12-cv61959-RNS, 2012 WL 4739296 (S.D. Fla. filed Oct. 4, 2012) {“Love ”). These three lawsuits broadly share the following characteristics: (1) they were filed by named plaintiffs who purported to have complied with the deadlines set forth in the California district court’s July 25, 2011 order concerning American Pipe tolling; (2) the named plaintiff(s) in each case filed a class action complaint on behalf of current and former employees within a specific geographic “Region” (or Regions) within Wal-Mart’s nationwide network — i.e., a geographic subclass of the nationwide class at issue in Dukes; (3) the Title VII claims in each case are broadly similar to those originally asserted in Dukes; (4) each complaint contains new Region-specific allegations; and (5) each complaint, in some respects, supplements and/or re-characterizes the allegations that the Supreme Court in Dukes had found were insufficient to satisfy Rule 23 as to a nationwide class. Within the original Dukes action, certain California-based plaintiffs also filed a motion for leave to file a Fourth Amended Complaint, which sought to certify a class related only to Wal-Mart’s “Region 41,” a Region based largely in California. WalMart sought to dismiss or strike the class claims on several grounds. On September 21, 2012, the California district court denied Wal-Mart’s motion and permitted class discovery to proceed with respect to Region 41. See Dukes, 2012 WL 4329009, at *8-*9. In reaching this holding, the California district court found, inter alia, that (1) the Supreme Court’s Dukes decision merely “rested not on a total rejection of plaintiffs’ theories, but on the inadequacy of their proof’ with regard to a nationwide class,- id. at *5; (2) “Plaintiffs now bring a narrower class-action claim, which the Supreme Court has yet to consider and did not foreclose,” id. at *6; (3) district courts traditionally retain continuing jurisdiction to revisit the class certification issue, even after a district court’s certification of a broader class is overturned on appeal, id. at *4-*5; and (4) American Pipe tolling extended to the (narrowed) class claims, because the case was not a “new” action, but rather a continuation of the previously filed action. Id. at *8. Accordingly, as of October 4, 2012 — the date the Love complaint was filed — four parallel putative class action lawsuits were proceeding against Wal-Mart, each asserting Region-specific gender discrimination claims under Title VII: (1) Dukes (N.D.Cal.), which was a continuation of the original nationwide class action lawsuit; (2) Odie (N.D.Tex.); (3) Love (S.D.FL); and (4) Phipps (M.D.Tenn.) — ie., this case. B. Phipps Allegations As discussed herein, because the court is constrained to find that the putative class members’ claims are presumptively barred by the statute of limitations, the court need not address the sufficiency of the Phipps complaint under the Rule 23 standard. However, the Phipps complaint allegations are relevant insofar as they demonstrate that the allegations in this lawsuit are substantively similar to those at issue in Dukes in certain important respects and different from the allegations in Dukes in others. Broadly, like the complaint the Supreme Court considered in Dukes, the Phipps Complaint asserts that Wal-Mart systematically discriminated against women in hiring and promotion. The Complaint also contains some of the same allegations concerning national meetings that involved District Managers. Furthermore, the basic theory of the case is broadly similar to the theory of the case rejected in Dukes, albeit with customized allegations specific to Region 43. (See Docket No. 25, Conway Deck, Ex. 6 (chart comparing Phipps complaint to the plaintiffs’ arguments to the Supreme Court in Dukes)). However, the Complaint also contains new Region-specific allegations that were not contained in the relevant Dukes complaint. The plaintiffs in this case allege that, within Region 43, Wal-Mart denied women (1) equal pay for hourly retail store positions and certain salaried management positions, and (2) equal opportunities for promotion to certain management track positions, in violation of Title VII. In support of these claims, it contains the following types of Region 43-specific information: • A description of the Region 43 structure, which includes scores of retail stores operated by Wal-Mart and, at least as of 2011, is subdivided into “Districts” of 6-8 stores each. • Allegations concerning commonalities across retail stores within Region 43, including, inter alia, common job titles and job hierarchies, common departments, common management structure in each store, and common District Manager roles in the approval of compensation and promotion decisions in each store. • Allegations concerning the Region 43 hierarchy, including the roles of a single Regional Vice President and a single Regional Personnel Manager. • Allegations concerning common forms of pay discrimination within Region 43. • Anecdotal information relating to the experiences of various employees within Region 43 that reflect racial stereotyping by supervisors at various levels within Region 43, as well as various examples of discrimination in pay and promotion at retail stores within Region 43. The Complaint identifies two putative subclasses: (1) an “Injunctive Relief Class” consisting of all women who are currently employed, or will be employed, at any Wal-Mart retail store in Region 43; and (2) a “Monetary Relief Class” consisting of all women employed at any Wal-Mart retail store in Region 43 at any time beginning on December 26, 1998 who have been, or may be, subject to discrimination in pay or promotion for certain job titles. (Comply 15.) For ease of reference only, this court will refer to these subclasses collectively as the “Region 43 class” or “Region 43 subclass” of the former nationwide class. Also for ease of reference, the court will at times refer to a follow-on lawsuit seeking to certify a subclass of a previously rejected broader class — such as Odie, Love, and this case — as a “follow-on subclass action.” C. Recent Relevant Developments in the Sister Subclass Actions On October 15, 2012, the Texas district court issued an opinion in Odie dismissing the class allegations and dismissing plaintiff Odle’s individual claim. Odle v. Wal-Mart Stores Inc., No. 3:11-CV-2954-O, 2012 WL 5292957 (N.D.Tex. Oct. 15, 2012). In most relevant part, the Texas district court held that, under Salazar-Calderon v. Presidio Valley Farmers Ass’n, 765 F.2d 1334 (5th Cir.1985), which it construed as controlling precedent, it was constrained to find that the putative class members did not benefit from American Pipe tolling of the statute of limitations retroactive to the Dukes lawsuit. Id. at *9. In reaching this holding, the Texas district court analyzed whether the United States Supreme Court decisions in Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010) and Smith v. Bayer, — U.S. -, 131 S.Ct. 2368, 180 L.Ed.2d 341 (2011), impacted Salazar-Calderon in such a way as to implicitly overrule it. Odie, 2012 WL 5292957, at *6-*9. The court narrowly construed the holdings in Shady Grove and Smith and found that the Odie plaintiffs had not met the high threshold to justify ignoring otherwise controlling Fifth Circuit precedent. Id. On January 7, 2013, the Odie court granted the plaintiffs’ motion to certify the issue of American Pipe tolling to the Fifth Circuit for immediate interlocutory review. See Odle v. Wal-Mart Stores Inc., No. 3:11-CV-2954-O, 2013 WL 66035 (N.D.Tex. Jan. 7, 2013). In the narrowed Dukes action, the court has set a future date for the plaintiffs to submit a motion for class certification, which, as of the date of this opinion, has not yet been filed. In Love, Wal-Mart has filed a Motion to Dismiss Class Allegations, which remains pending before the Florida district court. D. The Parties’ Arguments Here, Wal-Mart’s Partial Motion to Dismiss concerns only the viability of the putative class claims, not the named plaintiffs’ individual claims. Wal-Mart argues that the class claims are not viable for a host of reasons, including, inter alia, that (1) the putative class members’ claims are time-barred because, under Andrews v. Orr, 851 F.2d 146, 149 (6th Cir.1988), American Pipe tolling does not extend to follow-on class actions filed by members of a former putative class; (2) the putative class members who have not yet filed EEOC charges cannot “coattail” on otherwise timely charges filed by the named plaintiffs; (3) the Complaint allegations do not satisfy the Rule 23(a)(2) deficiencies identified by the Supreme Court in Dukes; and (4) the proposed class violates Title VII’s particularized venue requirements. In response, the plaintiffs argue that Andrews is no longer good law, that the putative class members should benefit from coattailling, that the Complaint allegations establish a plausible basis that the putative Region 43 class will meet the Dukes Rule 23 standard (thereby justifying class discovery), and that only the named plaintiffs must meet Title VII’s special venue requirements, which plaintiffs argue they do. Were it not for the American Pipe tolling issue, the court would address the viability of the Region 43 class allegations — under the relevant Rule 12 legal standard set forth in the next section — and would be disinclined to dismiss those allegations without class discovery and the benefit of a fully briefed Rule 23 motion supported by material evidence. However, for the reasons described herein, the court is constrained by Andrews to find that the claims of the putative class members do not benefit from American Pipe tolling and, therefore, are time-barred. Accordingly, the court need not reach the merits of the class allegations, whether under the Rule 12 standard now or, if class discovery were justified, the Rule 23 standard later. Nevertheless, in light of more recent jurisprudential trends, the court believes that Andrews merits reconsideration — or at least refinement — to permit follow-on subclass actions to benefit from American Pipe tolling under appropriate circumstances, such as those presented here. STANDARD OF REVIEW In deciding a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), the court will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The Federal Rules of Civil Procedure require that a plaintiff provide “ ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (quoting Fed.R.Civ.P. 8(a)(2)). The court must determine whether “the claimant is entitled to offer evidence to support the claims,” not whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). The complaint’s allegations, however, “must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To establish the “facial plausibility” required to “unlock the doors of discovery,” the plaintiff cannot rely on “legal conclusions” or “[threadbare] recitals of the elements of a cause of action,” but, instead, the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009). Rule 23 confers “substantial discretion” on the trial court to decide whether to certify and how to manage a proposed class. Reeb v. Ohio Dep’t of Rehab. & Corr., 435 F.3d 639, 643 (6th Cir.2006). A party seeking class certification must first meet all four prerequisites of Rule 23(a)— numerosity, commonality, typicality, and adequacy of representation — before a class action can be certified. Fed.R.Civ.P. 23(a). “Once those conditions are satisfied, the party seeking certification must also demonstrate that it falls within at least one of the subcategories of Rule 23(b).” In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir.1996); Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 945-46 (6th Cir.2011). The Sixth Circuit has recognized that, where there is no reasonable prospect that discovery or additional time would assist the named plaintiffs in demonstrating the potential viability of a proposed class, a court may strike class allegations pursuant to Rule 23(c)(1)(A) and Rule 12(f). See Pilgrim, 660 F.3d at 949 (affirming district court dismissal of class claims on the pleadings, where putative class member’s claims were “governed by different States’ laws, a largely legal determination, and no proffered or potential factual development offers any hope of altering that conclusion, one that generally will preclude class certification”). Nevertheless, absent such a showing, courts will typically address the viability of a class in the context of a fully briefed class certification motion following class discovery. See, e.g., Allen v. Andersen Windows, Inc., 913 F.Supp.2d 490, 516, 2012 WL 6644387, *21 (S.D.Ohio Dec. 20, 2012). ANALYSIS I. Early Supreme Court Tolling Cases: American Pipe and Crown, Cork In its 1974 decision in American Pipe, the Supreme Court articulated a tolling doctrine that has come to be referred to as “American Pipe tolling.” The threshold question presented here is whether American Pipe tolling permits the named plaintiffs in this case to pursue classwide relief on behalf of a subclass, after the Supreme Court in Dukes held that certification of the broader class was not appropriate. If they are not, the claims of any putative class members who otherwise failed to file EEOC charges in compliance with the California district court’s July 25, 2011 order are time-barred. A. American Pipe The American Pipe decision addressed the application of the then-recent 1966 amendments to Fed.R.Civ.P. 23. 414 U.S. at 545 — 16, 94 S.Ct. 756. In American Pipe, the state of Utah had filed a putative class action 11 days before the relevant limitations period expired on a set of price-rigging claims under the federal Sherman Act. Id. at 541 — 42, 94 S.Ct. 756. After consolidation into MDL proceedings, the MDL court held that the suit could not be maintained as a class action because joinder of the putative class members with potentially viable claims was practicable and, therefore, the proposed class did not satisfy Rule 23(a)(1). Id. at 541-43, 94 S.Ct. 756. Eight days after that decision by the MDL court, several members of the former putative class filed motions to intervene in the case under Rule 24, id. at 543 — 44, 94 S.Ct. 756, but the MDL court found that Utah’s previous lawsuit had not tolled the statute of limitations as to any putative class members, meaning that the statute of limitations had run 11 days after the lawsuit was filed. Id. at 544, 94 S.Ct. 756. On appeal, the Supreme Court found that the trial court had erred in refusing to toll the putative class members’ claims during the pendency of Utah’s certification motion. The Court expressed concern about frustrating the purposes of Rule 23, particularly where the district court had found that the substantive factors other than numerosity (including commonality, typicality, and adequacy of representation) had been met: A contrary rule allowing participation only by those potential members of the class who had earlier filed motions to intervene in the suit would deprive Rule 23 class actions of the efficiency and economy of litigation which is a principal purpose of the procedure. Potential class members would be induced to file protective motions to intervene or to join in the event that a class was later found unsuitable. In cases such as this one, where the determination to disallow the class action was made upon considerations that may vary with such subtle factors as experience with prior similar litigation or the current status of a court’s docket, a rule requiring successful anticipation of the determination of the viability of the class would breed needless duplication of motions. Id. at 553-54, 94 S.Ct. 756. Thus, the Court was “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. 756. Significantly, the Court also rejected the defendants’ argument that, because the Sherman Act specified a one-year statute of limitations, tolling the statute of limitations as to the putative class members effectively deprived the defendants of a substantive right conferred by the Sherman Act, in violation of the Rules Enabling Act, 28 U.S.C. § 2072, which provides that the Federal Rules of Civil Procedure “shall not abridge, enlarge or modify any substantive right.” See id. at 556-559, 94 S.Ct. 756. The Court found that “the mere fact that a federal statute providing for substantive liability also sets a time limitation upon the institution of suit does not restrict the power of the federal courts to hold that the statute of limitations is tolled under certain circumstances not inconsistent with the legislative purpose.” Id. at 559, 94 S.Ct. 756. Applying these principles, the Court found that, because the original statute of limitations had been tolled as to the putative class members with 11 days to spare, the former putative class members who filed motions to intervene within 11 days of the trial court’s ruling denying class certification had done so within the limitations period. Id. In a short concurring opinion, Justice Blackmun expressed concern that the American Pipe tolling rule could be abused. See id. at 561-62, 94 S.Ct. 756 (Blackmun, J., concurring). He stated that the rule “must not be regarded as encouragement to lawyers in a case of this kind to frame 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, 94 S.Ct. 756. He stressed that “the purpose of statutes of limitations is to prevent surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.” Id. (internal quotation marks omitted). He was comforted by the fact that intervenors as of right necessarily “have an interest relating to the property or transaction” that “invariably will concern the same evidence, memories, and witnesses as the subject matter of the original class suit,” with respect to which “the defendant will not be prejudiced by later intervention, should class relief be denied.” Id. at 562, 94 S.Ct. 756. On the other hand, he cautioned district courts to exercise discretion before admitting permissive intervenors after class certification is denied, based on whether their intervention would force the defendants to defend claims with respect to which they had “no prior notice.” Id. B. Crown, Cork & Seal In Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), the Court extended the American Pipe tolling rule to former class members who file individual actions after the denial of class certification. There, Parker, a black male employee, had filed an EEOC race discrimination charge against his employer. Id. at 347,103 S.Ct. 2392. While that charge was pending, two other employees of the same employer filed a putative class action lawsuit in federal district court (“Pendleton ”), which included Parker as a member of the putative class. Id. Parker received a right to sue letter from the EEOC, but withheld filing suit pending the Pendleton court’s decision whether to certify the case as a class action. Two years later, the Pendleton court declined to certify the class on the basis that it failed to meet Rule 23’s typicality, numerosity, and adequacy of representation requirements. Id. at 347-48, 103 S.Ct. 2392. The Pendleton court permitted the named plaintiffs to pursue their individual claims. Rather than moving to intervene in Pendleton, Parker filed a separate action (“Parker ”) in federal court on his own behalf (in the same district) within 90 days of that denial, in compliance with the statutory 90-day limitations period to file suit after receiving a right to sue letter. Parker then moved the Parker court to consolidate his individual case with the Pendleton case. Id. at 348, 103 S.Ct. 2392. The Parker court denied the motion to consolidate and granted judgment to the employer, finding that Parker’s claims were time-barred because, following the denial of class certification, American Pipe tolling was limited only to intervenors, not individual actions. Id. On appeal, the Supreme Court found that the district court had interpreted American Pipe too narrowly. “While American Pipe concerned only intervenors, we conclude that the holding of that case is not to be read so narrowly. The filing of a class action tolls the statute of limitations ‘as to all asserted members of the class,’ not just as to intervenors.” Id. (citing Am. Pipe, 414 U.S. at 554, 94 S.Ct. 756). In support of this finding, the Court cited the following policy rationale for extending American Pipe tolling to former putative class members who file individual actions after the denial of class certification: The American Pipe Court recognized that unless the statute of limitations was tolled by the filing of the class action, class members would not be able to rely on the existence of the suit to protect their rights. Only by intervening or taking other action prior to the running of the statute of limitations would they be able to ensure that their rights would not be lost in the event that class certification was denied. Much the same inefficiencies would ensure if American Pipe’s tolling rule were limited to permitting putative class members to intervene after the denial of class certification. There are many reasons why a class member, after the denial of class certification, might prefer to bring an individual suit rather than intervene. The forum in which the class action is pending might be an inconvenient one, for example, or the class member might not wish to share control over the litigation with other plaintiffs once the economies of a class action were no longer available. Moreover, permission to intervene might be refused for reasons wholly unrelated to the merits of the claim. A putative class member who fears that class certification may be denied would have every incentive to file a separate action prior to the expiration of his own period of limitations. The result would be a needless multiplicity of actions — precisely the situation that Federal Rule of Civil Procedure 23 and the tolling rule of American Pipe were designed to avoid. Id. at 350-51, 103 S.Ct. 2392 (emphasis added). The Court also expounded upon its previous finding in American Pipe that tolling the statute of limitations for putative class members did not frustrate the purposes served by statutes of limitations: Limitations periods are intended to put defendants on notice of adverse claims and to prevent plaintiffs from sleeping on their rights, but these ends are met when a class action is commenced. Class members who do not file suit while the class action is pending cannot be accused of sleeping on their rights; Rule 23 both permits and encourages class members to rely on the named plaintiffs to press their claims. And a class complaint 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. The defendant will be aware of the need to preserve evidence and witnesses respecting the claims of all the members of the class. Tolling the statute of limitations thus creates no potential for unfair surprise, regardless of the method class members choose to enforce their rights upon denial of class certification. Id. at 352-53, 103 S.Ct. 2392 (emphases added) (internal citations and quotations omitted). Furthermore, the Court indicated that the use of other procedural means to handle complex actions following the denial of class certification would be appropriate: Restricting the rule of American Pipe to intervenors might reduce the number of individual lawsuits filed against a particular defendant but, as discussed above, this decrease in litigation would be counterbalanced by an increase in protective filings in all class actions. Moreover, although a defendant may prefer not to defend against multiple actions in multiple forums once a class has been decertified, this is not an interest that statutes of limitations are designed to protect. Other avenues exist by which the burdens of multiple lawsuits may be avoided; the defendant may seek consolidation in appropriate cases, see Fed. Civ. P. 42; 28 U.S.C. § 1404 (change of venue), and multidistrict proceedings may be available if suits have been brought in different jurisdictions, see 28 U.S.C. § 1407. Id. at 353, 103 S.Ct. 2392. Thus, ruling on the case before it, the Court held that, “[ojnce the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action.” Id. at 354,103 S.Ct. 2392. Justice Powell, joined by Justices Rehnquist and O’Connor, issued a short concurring opinion that expressed concerns about the application of the American Pipe rule in future class action litigation. Id. at 354-55, 103 S.Ct. 2392 (Powell, J., concurring). Justice Powell stated that “[t]he tolling rule of American Pipe is a generous one, inviting abuse.” Id. at 354, 103 S.Ct. 2392. Accordingly, “[t]he rule should not be read [ ] as leaving a plaintiff free to raise different or peripheral claims following denial of class status.” Id. Justice Powell noted that a rationale behind American Pipe was that a class action put defendants on notice within the statutory limitations period of the substantive claims being brought against them, along with the generic identities of the potential plaintiffs who could participate in the action. Id. at 354-55, 103 S.Ct. 2392. However, Justice Powell advised courts as follows: ... [T]o make certain [ ] that American Pipe is not abused by the assertion of claims that differ from those raised in the original class suit ... [,] 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. (internal citations and quotation marks omitted). Accordingly, as with Justice Blackmun’s concurrence in American Pipe, Justice Powell expressed concern that American Pipe tolling could be abused to force defendants to defend otherwise untimely claims for which they had never been put on notice. That is, as this court construes Justice Powell’s concurrence, he seemed to fear that, after a class was decertified, a district court might permit a putative class member to file an otherwise untimely lawsuit that included causes of action that were not at issue in the prior putative class action. Following American Pipe and Crown, Cork, it was clear that the statute of limitations would remain tolled for putative class members who, following decertification, timely sought to file their own individual suits or to intervene as plaintiffs in the pending action. Furthermore, Crown, Cork suggested that, following the refusal to certify a class, parties could later seek to consolidate follow-on individual lawsuits under the federal rules and/or MDL procedures. However, neither American Pipe nor Crown, Cork addressed whether or under what circumstances American Pipe tolling could extend to former putative class members who file a follow-on class action. II. Pre-Andrews Circuit Court Decisions Prior to the Sixth Circuit decision in Andrews v. Orr, 851 F.2d 146, 149 (1988), three circuits addressed the question of extending American Pipe tolling to follow-action class actions in particularized procedural contexts. See Salazar-Calderon v. Presidio Valley Farmers Ass’n, 765 F.2d 1334, 1349-1351 (5th Cir.1985); Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir.1987); Bobbin v. Fluor Corp., 835 F.2d 213, 214 (9th Cir.1987). Because the Sixth Circuit relied on these three cases in reaching its holding in Andrews, the court will analyze these cases in detail. A. Salazar-Calderon (Fifth Circuit) In Salazar-Calderon, the Fifth Circuit considered whether, after class certification was denied on the merits in an initial case, the statute of limitations would be tolled on the putative class members’ individual claims during the pendency of a second action seeking to relitigate the same class certification issue. In the lower courts, a set of plaintiffs had originally filed one class action in a federal district court in El Paso (“Lara ”) in April 1979, seeking to represent a class of 809 migrant farm workers, but the El Paso court denied the named plaintiffs’ motion to certify that putative class on March 30, 1981. Id. at 1349-50. Following the El Paso court’s class certification denial in Lara, 251 members of the former putative class filed two parallel lawsuits in a district court in Pecos (“Salazar” and “Primero ”), both of which sought to certify the same class of 809 workers that the El Paso court had rejected in Lara. Id. at 1350. The district court in Salazar and Primero denied class certification in both cases on February 2, 1982, on essentially the same grounds as the Lara court. Id. at 1350. Thereafter, 235 additional members of the former putative class — i.e., former members of the Lara and Salazar/Primero putative classes who had not filed as named plaintiffs in either case— sought to intervene in the Salazar/Primero cases, but were denied. Id. Those 235 individuals then jointly filed a separate action (“Zuniga”) in the Pecos court, alleging the same two causes of action at issue in Salazar and Primero, apparently on an individual basis. Id. All four cases (Lara, Salazar, Primero, and Zuniga), were consolidated before the Pecos court. The Zuniga plaintiffs’ individual claims were governed by a two-year statute of limitations. Id. at 1351. The district court reasoned that these plaintiffs, who originally were putative class members in Lara, had benefitted from American Pipe tolling from the date Lara was filed to the date the Lara court denied class certification — approximately two years. Id. Even with the benefit of tolling for two years, the statute of limitations apparently expired at some point between the date on which Salazar and Primero were filed and the date Zuniga was filed. The Pecos court held that no additional American Pipe/Crown tolling applied to the Zuniga plaintiffs’ individual claims and, therefore, dismissed them as time-barred. Id. On appeal, the Fifth Circuit found that the Pecos court was correct in denying class certification on the merits in Salazar/Primero. Id. at 1350. As to Zuniga, the Zuniga plaintiffs argued that their claims were timely because, in addition to extending American Pipe tolling relative to Lara, the district court should have tolled their individual claims between the date Salazar and Primero were filed and the date on which the Pecos court denied certification in Salazar/Primero. That is, the Zuniga plaintiffs argued that they benefited from American Pipe tolling not just from the Lara action (ie., through the date of class certification denial by the El Paso court in Lara), but also from the Salazar and Primero actions, which sought to relitigate before the Pecos court the same class certification issue that the El Paso court had rejected in Lara. That is, the plaintiffs argued that American Pipe tolling applied “not only for the first certification petition filed but also for any subsequent petitions involving the same class.” Id. at 1351. Under these circumstances, the Fifth Circuit rejected the Zuniga plaintiffs’ argument, finding that the Zuniga plaintiffs only benefited from American Pipe tolling relative to the Lara action. The court was “not persuaded” that American Pipe tolling applied “not only for the first class certification petition filed but also for any subsequent petitions involving the same class.” Id. at 1351. The court observed that the plaintiffs had not cited to any authority for the position that they could “piggyback one class action onto another and thus toll the statute of limitations indefinitely.” Id. The court also cited to Justice Powell’s concurrence in American Pipe for the proposition that “the tolling rule [in class actions] is a generous one, inviting abuse,” (brackets in original), concluding that, “to construe the rule as plaintiffs would have us [do] presents just such dangers.” Id. Accordingly, the Fifth Circuit held that the individual Zuniga plaintiffs did not get a further extension of the statute of limitations from the Salazar/Primero lawsuit. Id. Notably, however, the Fifth Circuit did not suggest that the Salazar/Primero plaintiffs — ie., the follow on class-actions following denial of class certification in Lara — should not have benefitted from tolling after Lara. Indeed, the district court and the Fifth Circuit both addressed the Salazar/Primero class certification petitions on the merits. Moreover, the Fifth Circuit reiterated that the district court in Salazar/Primero could revisit the class certification issue on remand: “Although we affirm the district court’s refusal to certify the class, we in no way restrict the court’s discretion to change that decision on remand. It is well-settled that decisions on class certification are always interlocutory.” Id. at 1350 (emphasis added). Accordingly, as this court construes Salazar-Primero, the relevant issue decided by the Fifth Circuit was relatively narrow. The court seems to have found that: (1) where a district court had held that a particular class did not meet the requirements of Rule 23, former class members could, within the applicable American Pipe tolling period, file a second putative class action seeking to relitigate essentially the same class; but (2) remaining former class members could not utilize this second action as an excuse to benefit from further tolling of their individual claims. B. Korwek v. Hunt (Second Circuit) Following Salazar-Calderon, the next circuit to address the boundaries of American Pipe tolling was the Second Circuit in Korwek v. Hunt, 827 F.2d 874 (1987). Like Salazar-Calderon, Korwek involved a particularized set of circumstances that influenced the case’s holding. Korwek concerned allegations that several defendants had conspired to manipulate the silver futures market. Id. at 875. A named plaintiff, Ronald Gordon, had initially filed a putative class action against these defendants in Gordon v. Hunt (“Gordon”), in which he moved to certify a broad class. Id. The district court, however, certified a “drastically” narrower class than Gordon had sought. Id. at 875-76. Three months after that decision, Gordon moved to expand the class (essentially arguing for the same class the court had rejected), and several putative class members simultaneously filed a motion to intervene. Id. at 876. The district court in Gordon construed Gordon as improperly seeking to relitigate the court’s previous denial of class certification with respect to the broader class and also denied the putative intervenors’ motion to intervene, informing them that they could file their own “plenary suit.” Id. at 876. Three days after the district court contemporaneously issued these decisions, the disappointed putative intervenors filed a separate lawsuit, Korwek v. Hunt, asserting “claims virtually identical to those previously asserted in Gordon v. Hunt.” Id. The new lawsuit named nearly all of the same defendants as Gordon and sought to certify a nearly identical class to the broad class that the Gordon court had previously rejected and refused to reconsider. Id. In relevant part, the district court in Korwek found that the pendency of the Gordon action tolled the statute of limitations on the Korwek plaintiffs’ individual claims, but did not toll the limitations period for the class claims. Id. On appeal, the Second Circuit stated that “[t]he specific question presented on this appeal is a narrow one: whether the tolling rule established by the Supreme Court in its seminal decision, American Pipe [], applies to permit the filing by putative class members of a subsequent class action nearly identical in scope to the original class action which was denied certification.” Id. at 876 (internal citation omitted) (emphasis in original). The Second Circuit appropriately observed that Salazar-Calderon and several district court decisions each “arose in a slightly different procedural context, making them distinguishable from each other....” Id. at 879. Nevertheless, the Second Circuit found that these cases reflected an “oft-repeated refrain which echoes through these cases [ ]: the tolling rule established by American Pipe, and expanded upon by Croton, Cork, was not intended to be applied to suspend the running of the statute of limitations for class action suits filed after a definitive determination of class certification; such an application of the rule would be inimical to the purposes behind statutes of limitations and the class action procedure.” Id. at 879 (emphasis added). Also, in another part of the Korwek opinion, the Second Circuit characterized Salazar-Calderon (in addition to several district court decisions) as holding that “the American Pipe tolling rule does not apply to permit putative class members to a file a subsequent class action.” Id. at 878. As discussed above, this court at least construes Salazar-Calderon as articulating a more case-specific principle than that for which Korwek cited it. Notwithstanding its potential over-characterization of the holding in Salazar-Calderon, the remainder of the Korwek opinion makes clear that the Second Circuit’s holding was narrower than the broad language might otherwise indicate. At any rate, applying the principle that American Pipe tolling should not apply to a follow-on action on behalf of the same class that a previous court had definitively rejected on the merits under Rule 23, the Korwek court reasoned as follows: Appellants filed a complaint alleging class claims identical theoretically and temporally to those raised in a previously filed class action suit which was denied class certification mainly because of overwhelming manageability difficulties. Appellants ignored the district court’s express finding that the original action was unwieldy, first when attempting to intervene and expand the Gordon class, and again when filing [] ivhat was essentially a duplicate of the original complaint [in Gordon]. The Supreme Court in American Pipe and Crown, Cork certainly did not intend to afford plaintiffs the opportunity to argue and reargue the question of class certification by filing new but repetitive complaints. “While appellants are correct in noting that appellees were apprised fully of the pending adverse claims, this fact alone is insufficient to justify filing a class action of a nature already determined to be unmanageable. Id. (emphases added). Finally, in language that is crucial to the question presented in the instant case, the Second Circuit explicitly stated that “it leaves for another day the question of whether the filing of a potential proper subclass would be entitled to tolling under American Pipe.” Id. (emphasis added). Thus, the Second Circuit explicitly left open the possibility that, if certification of a broad class were denied in Putative Class Action 1, former putative class members could file Putative Class Action 2 and seek certification of a “proper subclass”— i.e., a narrower class — than that rejected in Putative Class Action 1. C. Robbin (Ninth Circuit) The last circuit to address the potential extension of American Pipe tolling to follow-on class actions before the Sixth Circuit Andrews decision was the Ninth Circuit in Robbin v. Fluor Corp., 835 F.2d 213, 214 (9th Cir.1987). There, a set of named plaintiffs had originally filed a putative class action in federal district court in New York (“Schlesinger ”), alleging securities fraud claims against two defendants. Id. at 213-14. The New York district court denied class certification and the matter was voluntarily dismissed. Id. at 214. Over two years later, Leon Robbin, a former putative class member from the initial lawsuit, filed a class action complaint in the Central District of California, alleging the same class claims that the Schlesinger court had rejected. Id. With limited analysis, the Robbin court over-characterized the Salazar-Calderon and Korwek decisions as “squarely rejecting” the proposition that “the tolling doctrines of American Pipe and Crown, Cork should be extended to include class members who file subsequent class actions.” Id. at 214 (emphasis added). The Robbin court purported to “agree with the Second Circuit that to extend tolling to [subsequent] class actions ‘tests the outer limits of the American Pipe doctrine and ... falls beyond its carefully crafted parameters into the range of abusive options.’ ” Id. (quoting Korwek, 827 F.2d at 879). The court then held that Robbin’s class claims, which asserted the same class that had previously been rejected by the district court in New York, did not benefit from tolling relative to Schlesinger and, therefore, were time-barred. Id. at 214. In sum, although Salazar-Calderon, Korwek, and Robbin each contained some broad language concerning the application of American Pipe to follow-on class actions, they arose in specific procedural contexts that led to relatively narrow case-specific holdings. In Salazar-Calderon, the Fifth Circuit held that, after an initial class certification denial, the Zuniga plaintiffs were not entitled to wait for the results of separate follow-on class actions (Salazar/Primero) before filing individual lawsuits. In Korwek and Robbin, the Second Circuit and Ninth Circuit held that, after an initial denial of class certification, putative class members could not benefit from American Pipe tolling for class claims relating to the same class that the previous court had found did not satisfy Rule 23. Under the specific circumstances presented in each of these cases, the circuit courts understandably viewed the follow-on actions as potentially seeking to abuse the American Pipe tolling rule. Moreover, in Salazar-Calderon, the Fifth Circuit specifically permitted the district court on remand to revisit its denial of class certification in Salazar and Primero, which were follow-on putative class actions on behalf of the same class that the Lara court had previously rejected on the merits. Similarly, the Second Circuit in Korwek explicitly “left for another day” whether a follow-on class action asserting a subclass could benefit from American Pipe tolling. D. Andrews v. Orr (Sixth Circuit) Following Salazar-Calderon, Korwek, and Robbin, the Sixth Circuit confronted the issue of extending American Pipe tolling to a follow-on subclass action in Andrews v. Orr. As with the preceding circuit court cases, the procedural history in Andrews was complex and merits a detailed explanation before addressing the Sixth Circuit’s ultimate holding. Andrews was the third in a succession of class action racial discrimination lawsuits against the government relating to the use of the Professional Administrative Career Examination (the “PACE”) in government hiring and/or promotion. The first lawsuit was filed in 1979, when a group of named plaintiffs filed a class action complaint on behalf of all blacks and Hispanics who suffered from discrimination in government hiring by the government’s use of the PACE. Luevano v. Campbell, 93 F.R.D. 68 (D.D.C.1981). Luevano was ultimately resolved through a consent decree that bound all class members except those who had opted out. Id. Following Luevano, Joan Brown, a black employee of the Air Force Logistics Command (“AFLC”) at the Wright Patterson Air Force Base (“WPAFB”), filed a putative class action complaint against the government related to the PACE examination (“Brown ”). Brown v. Orr, 99 F.R.D. 524, 524 (S.D.Ohio 1983). Her complaint alleged that the government’s use of the PACE had a disproportionate impact on black employees seeking promotion within the AFLC, in violation of Title VII. Id The PACE was utilized by the AFLC with respect to promotional opportunities at the WPAFB (located in Dayton, Ohio) and at bases located in Oklahoma, Utah, Texas, California, and Georgia, and Brown purported to sue on behalf of all black employees denied promotions at any of those six bases. Id at 524-25. After Brown moved to certify this broad' class of AFLC employees, the district court held that Brown had not satisfied the commonality requirement of Rule 23(a)(2) or the typicality requirement of Rule 23(a)(3), nor had she shown that the defendant had acted on grounds generally applicable to the class as required by Fed.R.Civ.P. 23(b)(2). Id at,528. With respect to the commonality requirement, the district court appeared to construe each putative class member’s claim as necessarily requiring an individualized inquiry. See id at 526 (“Plaintiffs individual claim for relief will then depend on an examination of the facts particular to her situation.... The substantial questions of fact related to a showing of proximate cause and damages are unique to each proposed class member.”) Eight days after the Brown court denied certification of the broad class, Brown informed the district court that she intended to file a motion under Rule 23 to certify a narrower putative class consisting only of employees at the WPAFB (the Ohio base) — ie., a subclass of the six-base class that the Brown court had previously rejected. Andrews, 851 F.2d at 149. On March 23, 1983, two days after that conference, the court ordered Brown to file the motion to certify a narrower class within 30 days, which Brown did. Id. While this second class certification motion was pending, Brown (the only named plaintiff) settled her claim with the defendants, at which point the court dismissed the case with prejudice, thereby mooting the pending subclass certification motion. Id at 148. Following the district court’s dismissal of Brown, multiple members of the WPAFB subclass (ie., the class subject to the second class certification motion that was mooted by Brown’s settlement in Brown) filed administrative charges, after which they filed a putative class action complaint against the government. Id at 148. Their complaint alleged the same claims at issue in Brown and sought certification of the same putative subclass (ie., the subclass restricted to the WPAFB in Ohio) that the Brown court had not addressed. See Andrews, 851 F.2d at 148 (citing Andrews, 614 F.Supp. at 691 n. 1) (“This second motion to certify in Brown limited the class to employees at WPAFB, precisely the same class as the Plaintiffs seek to represent herein [in Andrews ].”) Thus, the Andrews district court was presented with the following issues: (1) whether the named plaintiffs’ individual claims benefitted from American Pipe tolling; (2) if so, when that tolling period began to run and whether it had elapsed; (3) if the tolling period had elapsed, whether the named plaintiffs were entitled to equitable tolling; and (4) whether American Pipe tolling extended to the class claims, as well as the individual claims. First, the district court found that (a) the plaintiffs individually benefitted from American Pipe tolling only through the date on which the Brown court denied the first class certification motion, and (b) the plaintiffs failed to file timely administrative charges within 30 days of that date. See Andrews, 614 F.Supp. at 692-93. Accordingly, the court found that the individual claims were time-barred. Id. at 694. Second, as to the class claims, the district court stated that, because “the tolling principle in American Pipe and Crown, Cork, & Seal applies only to the initiation of a new personal action and not a new class action,” the class claims were also time-barred. Id. at 694. Thus, it found that “the time limitation, imposed upon Plaintiffs by the regulations [requiring a timely administrative charge] for requesting classwide relief, as opposed to merely personal relief, was not tolled during the pendency of the [second] motion to certify in Brown.” Id. Accordingly, it concluded that “the Plaintiffs’ claims for classwide relief were long ago time barred.” Id. (emphasis added). On appeal, the plaintiffs argued that American Pipe tolling should have extended to their class claims, which related to the viability of the WPAFB subclass that the Brown court had not addressed. The plaintiffs also argued that, even if the class claims were time-barred, their individual claims should benefit from equitable tolling. The Sixth Circuit affirmed the district court as to dismissal of the class claims, but found that the plaintiffs’ individual claims benefitted from equitable tolling and, therefore, were not time-barred. Id. at 149, 152. In reaching these holdings, the Sixth Circuit first held that the Andrews district court was “clearly correct” that the pendency of the Luevano and Brown class actions tolled the limitations periods for the named plaintiffs’ individual claims in Andrews. Andrews, 851 F.2d at 148. However, with respect to the class claims, the Sixth Circuit stated, without analysis, that “[t]he courts of appeals that have dealt with the issue appear to be in unanimous agreement that the pendency of a previously filed class action does not toll the statute of limitations for additional class actions by putative members of the original asserted class.” Id. (citing Korwek, 827 F.2d at 879; Salazar-Calderon, 765 F.2d at 1351; and Robbin, 835 F.2d at 214). The Sixth Circuit added that “[t]hese decisions reflect the concern expressed by Justice Powell, concurring separately in Croton, Cork & Seal: ‘The tolling rule of American Pipe [ ] is a generous one, inviting abuse.’ ” Andrews, 851 F.2d at 149 (quoting Crown, Cork, 462 U.S. at 354, 103 S.Ct. 2392 (Powell, J., concurring)). As this court’s analysis of Salazar-Calderon, Korwek, and Robbin makes clear, this court views the holdings in those cases as reflecting narrower principles than certain broad language contained therein might otherwise have suggested. Indeed, in relying on Korwek, the Sixth Circuit in Andrews appears to have misconstrued Korwek as highly persuasive authority on the very issue that the Second Circuit explicitly left open: namely, whether American Pipe tolling should extend to a follow-on putative class action on behalf of an otherwise “proper subclass” of the broader class rejected by a previous court. See Korwek, 827 F.2d at 879. At any rate, the Sixth Circuit held that the district court should have equitably tolled the individual claims. Id. at 152. The Sixth Circuit found that the Andrews named plaintiffs reasonably believed that the Brown district court’s March 23 order permitting Brown to file a motion to certify a subclass — of which the named plaintiffs in Andrews were originally a part— “kep[t] open the class action question” pending Brown’s timely filing of that Rule 23 motion. Id. at 151. Accordingly, “the circumstances appear to justify the plaintiffs’ belief that the question of whether Brown could proceed as a class action was not finally determined until that case ivas settled and dismissed” in July 1985. Id. at 152 (emphasis added). Because “[t]he plaintiffs acted promptly” to file an administrative charge after receiving a notice sent to all affected class members, and because of the “lack of prejudice to the defendant,” the Sixth Circuit found that the named plaintiffs’ individual claims benefitted from equitable tolling and were not time-barred. Id. at 152. The Sixth Circuit has not squarely revisited its holding in Andrews and the plaintiffs here appear to concede that, unless the court finds that Andrews is no longer good law, it bars the class claims here. Indeed, the circumstances in Andrews are analogous to the circumstances presented here in several respects: (1) named plaintiffs in an initial putative class action lost on the merits a motion to certify a broad geographic class (military bases in six states in Brown; nationwide Wal-Mart operations in Dukes), on grounds suggesting that, at least based on the proof provided, individual issues would trump common issues as to the broad putative class; (2) the court that issued that denial did not address the potential viability of a narrower geographic subclass (the WPAFB in Brown; Region 43 in Dukes); (3) the former putative class members received notice of the adverse decision, at which point certain members of the (rejected) former broad class promptly filed administrative charges; and (4) those former putative class members then filed a putative class action on behalf of a geographic subclass that the earlier court had not addressed on the merits (the WPAFB employees in Andrews, the Region-specific subclasses in this case, Dukes, Odie, and Love ). Accordingly, unless this court finds that Andrews is no longer good law, the court is constrained to apply the holding in Andrews to this case. III. Post-Andrews Decisions A. Pre-Bayer Circuit Court and District Court Decisions Subsequent to Andrews, several circuit court decisions have construed Andrews (and other early circuit court decisions) as articulating a categorical rule that the pendency of a previously filed class action does not toll the statute of limitations period for additional separately filed class actions by putative members of the original asserted class. See, e.g., Griffin v. Singletary, 17 F.3d 356, 359 (11th Cir.1994); Catholic Social Servs., Inc. v. I.N.S., 232 F.Sd 1139, 1147-48 (9th Cir.2000); Sawyer v. Atlas Heating & Sheet Metal Works, Inc., 642 F.3d 560, 564 (7th Cir.2011) (construing Andrews as asserting that American Pipe tolling “never” extends to subsequent class actions). Notably, several of these decisions have criticized the application of a categorical rule and/or extended American Pipe tolling to follow-on class actions in certain contexts. See Catholic Social Servs., 232 F.3d at 1149 (extending American Pipe tolling to follow-on class action, where the plaintiffs “are not attempting to relitigate an earlier denial of class certification, or to correct a procedural deficiency in an earlier would-be class”); McKowan Lowe & Co., Ltd. v. Jasmine, Ltd., 295 F.3d 380, 389 (3d Cir.2002) (class of intervening class members tolled, where class certification had been denied for reasons “unrelated to the appropriateness of the substantive claims for certification”); Yang v. Odom, 392 F.3d 97, 111 (3d Cir. 2004) (extending McKowan rule to subsequent class actions by former putative class members); Sawyer, 642 F.3d at 564 (“[I]f the reason why class certification is denied in the first suit is that the plaintiff was not an appropriate class representative, then there is no basis for binding other members of the putative class, who have yet to receive a judicial decision on the question whether a class is certifiable under Rule 23.”)