```
                  United States Court of Appeals
                        For the First Circuit
    
                         ____________________
    
    No. 97-1550
    
    ALAN BASCH, ROBERT EISENBERG, SUSAN WINSPEAR, PETER COUTU,
  THOMAS HOWELL, WILLIAM JORGENSEN, DIANA KURTZ, SCOTT SEENEY,
      SHANO EZZELL, ANDREW CHAPMAN AND WILLIAM CONNELLY,
                                
                    Plaintiffs, Appellants,
                                
                               v.
                                
                    THE GROUND ROUND, INC.,
                                
                      Defendant, Appellee.
                      ____________________
                                
         APPEAL FROM THE UNITED STATES DISTRICT COURT 
                                
               FOR THE DISTRICT OF MASSACHUSETTS
                                
         [Hon. Richard G. Stearns, U.S. District Judge]
                                  
                         ____________________
    
                                Before
                                   
                      Boudin, Circuit Judge,
                                
                 Aldrich, Senior Circuit Judge,
                                
                   and Lynch, Circuit Judge.
                                
                      ___________________
                                
                                        Jonathon J. Margolis, with whom Sara Fleschner and
    Kushner & Sanders were on brief, for appellants.
        Edward P. Leibensperger, with whom Christa Von Der Luftand Nutter, McClennen & Fish were on brief, for appellee. 
                       ____________________
                                  
                          March 17, 1998
                      ____________________
                                  
        LYNCH, Circuit Judge.  This case involves the
    intersection of the ADEA statute of limitations and the special
    tolling rules which may apply when the plaintiffs are within a
    class alleged but not certified in earlier ADEA actions.  The
    plaintiffs are eleven people, all over 40 years old, who lost
    their management level jobs at The Ground Round.  In all,
    members of this group, represented by the same counsel, have
    filed four different actions accusing Ground Round of age
    discrimination.  If this, the fourth action, is untimely, then
    the district court correctly entered summary judgment.  
        This action is untimely if the plaintiffs' otherwise
    concededly untimely claims are not saved by the fact that there
    were two prior lawsuits with class action allegations, and
    plaintiffs were within the classes alleged.  We hold that this
    stacking of two class actions does not save the plaintiffs'
    claims.  We affirm.
                                I.
                                      This is the fourth lawsuit by former Ground Round
    employees alleging class-wide age discrimination by Ground
  Round.  Each action described the same set of events   and
    asserted essentially the same class.  The first such action,
    Dionne v. Ground Round, was filed in Massachusetts state court
    and removed by Ground Round to federal court based on
    plaintiffs' ADEA claims.  The Dionne plaintiffs sought class
    certification, which the district court denied on July 6, 1994. 
    The Dionne plaintiffs then voluntarily dismissed their ADEA
    claims and successfully moved to remand the case to state
    court.
        The second action, Halligan v. Ground Round, was filed in
    federal district court on November 22, 1993.  As of the time
    the complaint in this case was filed, the Halligan plaintiffs
  still had not moved for class certification.    On December 21,
    1995, after the complaint in this case was filed, the Halliganplaintiffs voluntarily dismissed their ADEA claims and the
    action was dismissed.
        After the district court denied class certification in
    Dionne, but before remand to state court, several members of
    the putative class sought to intervene in that action.  The
    district court denied their motion, at which point the would-be
    intervenors filed the third related lawsuit, Winspear v. Ground
    Round, in state court alleging only state-law causes of action. 
    Seven of the plaintiffs in the Winspear action are plaintiffs
    here.  The Massachusetts Superior Court granted Ground Round's
    motion for summary judgment in Winspear without reaching the
  merits.  
       Plaintiffs here filed this action against Ground Round on
    October 6, 1995, alleging that Ground Round instituted a
    company-wide policy of dismissing older management workers and
    replacing them with younger workers, in violation of the ADEA. 
    Plaintiffs claimed to represent a class of similarly situated
  former Ground Round employees.   
        The plaintiffs here claim to represent the class of "all
    past, present and future managerial employees of Ground Round,
    who have been or may be terminated from their employment on the
    basis of age," not including those who left Ground Round's
    employ before January 1, 1990.  The Dionne, Halligan, and
    Winspear complaints defined the putative class in a nearly
    identical manner.
        Ground Round moved for summary judgment on several
    grounds.  First, relying on the Massachusetts Superior Court's
    dismissal of the Winspear action to which seven of the present
    plaintiffs were parties, Ground Round argued that the claims of
  those seven plaintiffs   were barred by the doctrine of res
    judicata.  The district court rejected this argument based on
    its conclusion that the Winspear action was dismissed for
    procedural reasons, and not on its merits.  
        Defendant's second argument for summary judgment was that
  the claims of seven plaintiffs   were barred because those
    plaintiffs failed to file administrative charges with the EEOC
    within 300 days of their discharge from employment, as required
  by the ADEA.    The seven plaintiffs admit that they did not
    file administrative charges within the requisite time period,
    but argue that their claims are nevertheless saved by the
    "single-filing rule" adopted by the majority of circuits, but
    not yet addressed by this circuit.  That rule, also referred to
    as "piggybacking," permits plaintiffs who have failed to file
    administrative charges, or who have filed untimely charges, to
    "piggyback" on the timely-filed charges of other plaintiffs,
    provided the timely-filed charge gives the EEOC and the
    employer adequate notice of allegations of class-wide
    discrimination.  See Grayson v. K Mart Corp., 79 F.3d 1086,
    1101-02 (11th Cir. 1996); Howlett v. Holiday Inns, Inc., 49
    F.3d 189, 194 (6th Cir. 1995); Anson v. University of Tex.
    Health Science Ctr., 962 F.2d 539, 541-42 (5th Cir. 1992);
    Tolliver v. Xerox Corp., 918 F.2d 1052, 1057-59 (2nd Cir.
    1990); Kloos v. Carter-Day Co., 799 F.2d 397, 400-401 (8th Cir.
  1986).   
        Defendant also argued that even if the single-filing rule
    were adopted, plaintiffs' claims would still be barred because
    the timely-filed administrative charges on which plaintiffs
  rely provided inadequate notice of class-wide allegations.   
    See Kloos, 799 F.2d at 400 ("To be faithful to the purposes of
    the filing requirement, an administrative charge must allege
    class-wide age discrimination or claim to represent a class in
    order to serve as the basis for an ADEA class action . . . ."). 
    The district court found that this circuit would adopt the
    majority rule, but accepted defendant's argument that the
    single-filing rule offered plaintiffs no refuge here because
    the underlying charges contained no allegations of class-wide
    discrimination.
        Defendant's final argument for summary judgment was that
    the claims of all of the plaintiffs were time-barred for
    failure to file their complaint within 90 days of receiving
    notice from the EEOC of termination of its proceedings, as
  required by the ADEA.    The EEOC proceedings on plaintiffs'
    charges terminated at various dates between July 21, 1993, and
    January 4, 1995.  This action was filed on October 6, 1995,
    long after the 90-day period had expired for all plaintiffs.  
        Plaintiffs concede they all missed the 90-day deadline
    for filing their complaint, but seek shelter in the statute of
    limitations tolling rule announced in American Pipe & Const.
    Co. v. Utah, 414 U.S. 538 (1974), and reiterated in Crown, Cork
    & Seal Co. v. Parker, 462 U.S. 345 (1983).  Those cases held
    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."  American Pipe, 414
    U.S. at 554.  Plaintiffs argue that the filing of the
    Dionne and Halligan actions suspended the running of the
    statute of limitations for plaintiffs, who would have been
    members of the Dionne and Halligan classes had class
    certification been granted in those cases.  The district court
    accepted the application of the American Pipe tolling rule, but
    rejected plaintiffs' argument that the rule saved their claims
    in this case.
        Assuming arguendo that the American Pipe and Crown, Corktolling rules apply to ADEA actions, we nevertheless find that
    plaintiffs' claims are time-barred.  We do not reach the merits
    of the res judicata or single-filing rule arguments.
                               II.
                                        In American Pipe the Supreme Court balanced the policies
    served by the class action rule, Fed. R. Civ. P. 23, and the
    policies served by the statute of limitations.  The case arose
    under the Sherman Antitrust Act, and was brought as a putative
    class action.  After the district court denied class
    certification, several would-be class members moved to
    intervene.  Although the applicable statute of limitations had
    run as to the intervenors, the Supreme Court held that their
    claims were not time-barred because the filing of the putative
    class action tolled the statute of limitations as to all
    alleged class members until the district court denied
    certification, "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." 
    Id. at 552-53 (internal quotation marks omitted).
        In Crown, Cork, a Title VII case, the Court reaffirmed
    the American Pipe tolling rule and extended it to apply not
    only to plaintiffs who seek to intervene in the pending action,
    but also to would-be class members who file actions of their
    own.  See id. at 349-50.  The Court also did not limit its
    holding to instances when the class certification was denied
    solely on numerosity grounds.
        A logical initial question is whether the Crown, Corkrule for Title VII cases also applies to ADEA cases.  Defendant
    argues that these tolling rules do not apply to ADEA
    plaintiffs.  This argument is grounded in the fact that both
    American Pipe (a Sherman Act case) and Crown, Cork (a Title VII
    case) arose in the context of class actions brought under Fed.
    R. Civ. P. 23.  Rule 23 provides that all members of a class
    are included in the action and are bound by the judgment unless
    they "opt out" of the action by affirmatively requesting
    exclusion.  The ADEA, in contrast, adopts the enforcement
    procedures of the Fair Labor Standards Act, see 29 U.S.C. ��
    201-219, which provides for an "opt in" procedure for class
    actions, requiring individuals to affirmatively file consent to
    the action in order to be a member of the class.  See 29 U.S.C.
    �� 216(b), 626(b).  Defendant contends that the difference
    between these two procedures results from different policy
    considerations, and that the rationale behind the American Pipeand Crown, Cork tolling rules does not apply in the context of
    "opt in" class actions.  
        The courts of appeals that have addressed this issue have
    split on the outcome.  Compare Sperling v. Hoffman-La Roche,
    Inc., 24 F.3d 463, 471-72 (3rd Cir. 1994) (opt-in plaintiff may
    join ADEA action after limitations period for that individual
    plaintiff has run if the representative plaintiffs' actions are
    timely) with Grayson, 79 F.3d at 1106 (opt-in ADEA plaintiffs
    must meet the statute of limitations and may not rely on filing
    of class action complaint) and O'Connell v. Champion Int'l
    Corp., 812 F.2d 393, 394 (8th Cir. 1987) (same).  We consider
    this an issue of some complexity, and we do not reach or
    resolve it here.  Even assuming that the American Pipe and
    Crown, Cork tolling rules do apply to ADEA actions, we find
    that the rules do not save plaintiffs' claims.  This is because
    plaintiffs' claims depend on the "stacking" of two sequential
    class actions to keep their claims from being untimely.  We do
    not believe the tolling rules were meant to permit the stacking
    of class actions.
        In Crown, Cork, the Court stated that "[o]nce the statute
    of limitations has been tolled, it remains tolled for all
    members of the putative class until class certification is
    denied," at which point "class members may choose to file their
    own suits or to intervene as plaintiffs in the pending action." 
    462 U.S. at 354.  In this case, the first class action relevant
    is the Dionne action.  The Dionne action was filed as a
    putative class action on April 20, 1993, and the district court
    denied class certification on July 6, 1994.  Plaintiffs here
    were within the class sought in Dionne.  Applying American Pipeand Crown, Cork would toll the running of the 90-day
    limitations period for each plaintiff from April 20, 1993,
    until July 6, 1994.  At that point, each plaintiff would have
    had at most 90 days to move to intervene in that action or to
    file an individual action.  But plaintiffs did not do that. 
    The complaint in this action was filed on October 6, 1995, more
    than 90 days after the denial of class certification in Dionne.
        Plaintiffs argue that they are saved by the filing of the
    Halligan putative class action.  Halligan was filed in November
    of 1993, after Dionne was filed but before the court had denied
    class certification in Dionne.  Halligan remained pending as an
    asserted but not certified class action, plaintiffs not yet
    having moved for class certification, on the day the instant
    action was filed.  Plaintiffs claim that because "at all
    relevant times there was at least one class-action suit pending
    against Ground Round, and each of the plaintiffs was a member
    of the defined classes in those cases[, t]hose actions tolled
    the statute of limitations."  We disagree.
        The Halligan complaint alleged the same class and the
    same claims as did the Dionne complaint.  In fact, the named
    plaintiff, David Halligan, was active in the effort to attain
    class certification in the Dionne action.  Halligan submitted
    an affidavit in support of the Dionne motion to certify a
    class, in which he alleged age discrimination by Ground Round. 
      The policies -- respect for Rule 23 and considerations of
    judicial economy -- which animated the Crown, Cork and American
    Pipe tolling rules dictate that the tolling rules, if adopted
    at all in ADEA cases, not permit plaintiffs to stretch out
    limitations periods by bringing successive class actions.
        Plaintiffs may not stack one class action on top of
    another and continue to toll the statute of limitations
    indefinitely.  Permitting such tactics would allow lawyers to
    file successive putative class actions with the hope of
    attracting more potential plaintiffs and perpetually tolling
    the statute of limitations as to all such potential litigants,
    regardless of how many times a court declines to certify the
    class.  This simply cannot be what the American Pipe rule was
    intended to allow, and we decline to embrace such an extension
    of that rule.  At least one of our sister circuits agrees.  SeeSalazar-Calderon v. Presidio Valley Farmers Ass'n, 765 F.2d
    1334, 1351 (5th Cir. 1985) ("Plaintiffs have no authority for
    their contention that putative class members may piggyback one
    class action onto another and thus toll the statute of
    limitations indefinitely, nor have we found any.").  On closely
    related issues, each court of appeals to address the question
    has reasoned similarly and rejected efforts by late plaintiffs
    to resuscitate their claims through stacking of subsequent
    class actions.  See Andrews v. Orr, 851 F.2d 146, 149 (6th Cir.
    1988) (class action tolls statute of limitations only for
    subsequent individual actions, not for subsequent class action
    alleging similar class and similar claims); Robbin v. Fluor
    Corp., 835 F.2d 213, 214 (9th Cir. 1987) (same); Korwek v.
    Hunt, 827 F.2d 874, 879 (2d Cir. 1987) (same).  
        The dangers which Justice Blackmun warned against in his
    concurring opinion in American Pipe are vividly demonstrated by
    plaintiffs' theory.  Justice Blackmun wrote separately to
    stress that the Court's decision "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."
    414 U.S. at 561 (Blackmun, J. concurring).  This point was
    emphasized by Justice O'Connor in her Crown, Cork concurrence,
    in which she stated that "[t]he tolling rule of American Pipeis a generous one, inviting abuse."  462 U.S. at 354 (O'Connor,
    J., concurring).  Rational policy considerations led the
    Congress to impose a statute of limitations on the bringing of
    ADEA actions.  After class certification has been denied in an
    action, potential individual plaintiffs cannot extend that
    limitations period by relying on successive class actions which
    allege the same class and the same claims.  Plaintiffs' claims
    are therefore time-barred, and the district court properly
    entered summary judgment in Ground Round's favor.
        Affirmed.  Costs to defendant.
```