                FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

ALFRED ALBANO, an unmarried         
man; MONICA LEWIS, an unmarried
woman; SAMANTHA BAKER, an
individual; ARIEL BARR, an
unmarried man; PHILLIP BARR, a
single man; KEITH BODIE, husband;
STACY BODIE, wife; JON L. BRUCE,
an individual; CRAIG BURKE,
husband; LINDA BURKE, wife;
DAWN R. CAIN, an individual;
CHRISTINA CARLSON, an individual;
CHARLES CHEN, husband; LISA
CHEN, wife; CHRISTOPHER
CORDASCO, an individual; PAUL
CRANDELL, husband; JENNIFER         
CRANDELL, wife; KENT ELLSWORTH,
husband; LAUREE ELLSWORTH, wife;
RONALD FILIPSKI, husband; LAURA
FILIPSKI, wife; ANGELICA HARVEY,
an individual; DIRK HOWARD,
husband; NANCY HOWARD, wife;
GEORGE HULECKI, husband; JEANNE
HULECKI, wife; CANDACE HURTT,
wife; JAMES CRAIG, husband;
ROBERT KEGERREIS, Trustee of the
Kegerreis Family Trust u/a/d June
15, 2005; CYNTHIA KEGERREIS,
Trustee of the Kegerreis Family
trust u/a/d June 15, 2005;
                                    


                           29
30             ALBANO v. SHEA HOMES LIMITED


JOHN R. LETTEER, husband; JUDITH      
LETTEER, wife; KELLY J. MALLORY,
an individual; CHARLES
MCGOLDRICK, husband; MAUREEN
MCGICK, wife; ROBERT L.
MITCHELL, a single man; BEATRICE
M. LINNE, an unmarried woman;
RICHARD NAVARRO, an individual;
SCOTT A. OLMSTEAD, husband;
AMBER S. OLMSTEAD, wife;
DONALD W. ROBERTS, husband;
JULIA A. ROBERTS, wife; LINDA S.
RODELA, an individual; JACK E.
ROSE, JR., husband; SHAWNA R.
ROSE, wife; MARK B. SAMFORD,
husband; REBECCA L. SAMFORD,
wife; JANE D. SCHMALTZ, an            
individual; RICHARD SCOTT,
husband; SHARON SCOTT, wife;
DENNIS SIMPSON, an individual;
BLAKE SLAUGHTER, husband;
CHANTELL SLAUGHTER, wife; BRUCE
TARMAN, husband; JANELLE
TARMAN, wife; MICHAEL L.
TOMAINO, II, an individual; ERIC T.
VALIMAKI, husband; CRISTI D.
VALIMAKI, wife; DAVID A.
WENMAN, husband as Trustee of
the Wenman Family Trust dated
July 9, 1999; JACQUELINE DIANE
WENMAN, wife, as Trustee of the
Wenman Family Trust dated July
9, 1999;
                                      
                  ALBANO v. SHEA HOMES LIMITED                      31


SETH WHEELER, husband, on his             
own behalf and on behalf of all                    No. 09-15808
others similarly situated;                           D.C. Nos.
JACQUELINE WHEELER, wife, on her                  2:07-cv-02359-
own behalf and on behalf of all                        SMM
others similarly situated; PHILLIS J.             2:08-cv-00505-
SIMPSON, an individual,
                                          
                                                       SMM
               Plaintiffs-Appellants,
                                                    ORDER
                 v.                              CERTIFYING
SHEA HOMES LIMITED PARTNERSHIP,                 QUESTION TO
an Arizona limited partnership;                   THE STATE
J.F. SHEA CO., INC., a Nevada                  SUPREME COURT
corporation, DBA Shea Homes,                     OF ARIZONA
              Defendants-Appellees.
                                          
                      Filed January 3, 2011

     Before: Kenneth F. Ripple, Pamela Ann Rymer and
            Raymond C. Fisher, Circuit Judges.*


                            COUNSEL

Robert H. Willis, Burdman & Shore, Phoenix, Arizona, for
the plaintiffs-appellants.

Gary L. Birbaum and Barry R. Sanders, Mariscal Weeks
McIntyre & Friedlander, Phoenix, Arizona, for defendants-
appellees.




   *The Honorable Kenneth F. Ripple, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.
32               ALBANO v. SHEA HOMES LIMITED
                            ORDER

   Alfred Albano and two other homeowners in a Gilbert, Ari-
zona subdivision seek review of the district court’s judgment
holding that their defective construction claims against the
developer, Shea Homes Limited Partnership, are barred by the
Arizona state statute of repose. The district court held that
Arizona, as a matter of state law, would apply the tolling rule
of American Pipe & Construction Co. v. Utah, 414 U.S. 538
(1974), as expanded by Crown, Cork & Seal Co., Inc. v. Par-
ker, 462 U.S. 345 (1983). It further held, however, that under
the circumstances of this case, the rule did not save the plain-
tiffs’ claims.

   The Supreme Court of Arizona never has determined
whether the rule of American Pipe and its progeny applies to
state class actions filed in its courts and, more specifically, to
state class actions subject to a statute of repose. Because we
do not know how the Supreme Court of Arizona would apply
American Pipe tolling to the circumstances before us and
because these questions of law present important matters of
public policy for the State of Arizona, we conclude that the
most prudent course is to certify these matters to the Supreme
Court of Arizona.

                       BACKGROUND

A.   Hoffman Litigation

  In June 2003, a number of homeowners in the Carriage
Lane subdivision, located in Gilbert, Arizona, filed an action
against the developer, Shea Homes Limited Partnership, in
Superior Court in Arizona. The case, captioned Mark Hoff-
man, et al. v. Shea Homes Limited Partnership, et al.,
CV2003-011388, was filed as a class action and sought dam-
ages for various defects in the construction of the owners’
                   ALBANO v. SHEA HOMES LIMITED                          33
homes; the plaintiffs in the present action were members of
the putative class.1

   As of May 2005, no motion for class certification had been
filed. Accordingly, the Superior Court informed the parties
that it would “treat the case as one involving only three home-
owners.” Later, the Superior Court issued an order that, “[i]f
Plaintiffs intend to file a motion for class certification in this
case, that motion must be filed and served on all parties not
later than noon on Friday, October 28, 2005.” However, it
also stated: “The Court’s order permitting the filing of the
motion for class certification is without waiver on the part of
any defendant or third-party defendant to raise an issue as to
the timeliness of the motion.”

  The plaintiffs filed their motion for class certification on
November 2, 2005. The Superior Court denied the motion as
untimely and also because the class did not meet the require-
ments for certification under Arizona Rule of Civil Procedure
23. The Superior Court stated:

      Rule 23(c)(1) requires the Court to determine
      whether a class action may be maintained “[a]s soon
      as practicable after the commencement of an action
      brought as a class action . . . .” Here, Plaintiffs’
      motion was brought 28 months after its [sic] com-
      plaint was filed.

           ....

         Plaintiffs’ only explanation for their delay is that,
      for approximately 24 months, Shea “stonewalled”
  1
    In Hoffman, the plaintiffs sought to represent a class comprised of “all
persons and entities presently owning an interest in one or more homes
within Carriage Lane, as well as persons who may hereafter acquire an
interest in one or more such living units within the Carriage Lane commu-
nity.”
34                ALBANO v. SHEA HOMES LIMITED
      Plaintiffs’ discovery requests. The Court has
      reviewed the supplemental briefing on this issue and
      finds Plaintiffs’ explanation unpersuasive and, essen-
      tially, undocumented. The Court also notes that,
      except for the usual requests to “tweak” the Court’s
      scheduling orders, no discovery disputes of any sig-
      nificance were brought by Plaintiffs to the Court’s
      attention until the briefing on the instant motion.

Turning to the merits, the Superior Court further held that the
plaintiffs had not “carried their burden here to show that there
is sufficient ‘typicality’ and ‘commonality’ to warrant grant-
ing the motion for class certification.”

   In the same order, the Superior Court denied the plaintiffs’
motion to amend the complaint to add eighty-six new plain-
tiffs. It appeared to the court that plaintiffs’ counsel had
“ ‘warehoused’ the proposed, new plaintiffs.” Additionally,
Shea and the third-party defendants would suffer “significant
prejudice” as a result of the delay. After these rulings by the
Superior Court, the three named plaintiffs in Hoffman settled
their claims.

B.    Albano I

   In 2006, the plaintiffs—individuals who owned homes in
Carriage Lane but who were not allowed to intervene in
Hoffman—served a Notice and Opportunity to Repair
(“NOR”) on Shea Homes Limited Partnership identifying
alleged defects in the construction of their homes. Plaintiffs
filed a new action in Superior Court, Albano, et al. v. Shea
Homes Limited Partnership, CV2006-00812 (“Albano I”).2
This action was dismissed because the plaintiffs had failed to
comply with the Arizona Purchaser Dwelling Act, Ariz. Rev.
  2
    In Albano I, the plaintiffs named Shea Homes Limited Partnership and
J.F. Shea Co., Inc. d/b/a Shea Homes as defendants.
                  ALBANO v. SHEA HOMES LIMITED                     35
Stat. Ann. § 12-1361 et seq.; specifically, they had not
responded to the defendants’ offers to repair.

C.    Albano II & Albano III

   After receiving the court’s ruling in Albano I, the plaintiffs
sent additional NORs to Shea Homes Limited Partnership. On
November 5, 2007, the plaintiffs filed a third action in Supe-
rior Court, Albano, et al. v. Shea Homes Limited Partnership,
CV2007-020525 (“Albano II”).3 The defendants removed this
diversity action to federal court and subsequently moved to
strike parts of the complaint. They also moved for summary
judgment on the ground that the action was brought outside
the applicable eight-year statute of repose set forth in Arizona
Revised Statutes § 12-552(A), which provides:

      Notwithstanding any other statute, no action or arbi-
      tration based in contract may be instituted or main-
      tained against a person who develops or develops
      and sells real property, or performs or furnishes the
      design, specifications, surveying, planning, supervi-
      sion, testing, construction or observation of construc-
      tion of an improvement to real property more than
      eight years after substantial completion of the
      improvement to real property.

For their part, the plaintiffs moved to remand to Superior
Court.

  Plaintiffs did not respond to the motion for summary judg-
ment, and the defendants moved for summary disposition.
The plaintiffs misinterpreted the motion as an entry of judg-
ment and therefore filed a motion to set aside the judgment.
The district court issued an order clarifying that a judgment
had not been entered, denying the motion to set aside judg-
  3
   The named defendants in Albano II were the same as the named defen-
dants in Albano I.
36              ALBANO v. SHEA HOMES LIMITED
ment as moot and granting the plaintiffs thirty days to respond
to the motion for summary judgment.

  Before the response deadline had passed, the plaintiffs filed
another action in Superior Court; this action, Albano et al. v.
Shea Homes Arizona Limited Partnership, CV2008-002357
(“Albano III”), named as the only defendant Shea Homes Ari-
zona Limited Partnership. The defendant subsequently filed a
voluntary appearance in Superior Court and removed the
action to federal court.

   Albano II and Albano III were consolidated and reassigned.
The district court then held a conference to determine how to
proceed on the defendants’ motions for summary judgment.
The “parties agreed that the issues presented in the Albano II
and Albano III motions were substantively identical and could
be resolved by a single order.” In essence, these motions pre-
sented the question whether the plaintiffs’ claims were barred
by the eight-year statute of repose or whether the rule of
American Pipe tolled the time between the filing of the Hoff-
man class action and the denial of the certification motion in
that case.

D.   District Court’s Summary Judgment

   The district court determined that the claims asserted in
Albano II and Albano III were time-barred. The court
observed that, for purposes of Erie Railroad Co. v. Tompkins,
304 U.S. 64 (1938), statutes of limitations are substantive in
nature, and, therefore, state statutes of limitations applied in
diversity cases. Similarly, “[t]olling provisions are treated as
an integral part of a statute of limitations, and district courts
must apply whatever tolling provisions are recognized under
state law.”

  The district court noted that the Supreme Court of Arizona
had not adopted the American Pipe rule. However, the court
was persuaded that the Supreme Court of Arizona would
                 ALBANO v. SHEA HOMES LIMITED                  37
adopt that rule because Arizona’s class action rule is identical
to the federal rule and because Arizona treats cases interpret-
ing the federal rule as authoritative, but not controlling. Addi-
tionally, Arizona appellate courts had indicated that they
would apply the American Pipe rule under appropriate cir-
cumstances. Finally, the court observed that “the Arizona
Supreme Court [had] held that filing a class claim in an
administrative procedure tolled the statute of limitations for
all putative class members who were not, at the time of filing,
barred by the statute of limitations.”

  The district court also found persuasive the reasoning of the
majority of the courts which had held that the tolling rule of
American Pipe was a rule of legal tolling, not equitable toll-
ing. As such, the rule could toll a statute of repose.

   Applying the American Pipe rule to the plaintiff’s claims,
the court concluded that legal tolling could not save the action
against Shea Homes Arizona Limited Partnership (the defen-
dant in Albano III) because the rule “presupposes that the
defendant is identical in both the class action suit and the indi-
vidual class members’ suits.” Shea Homes Arizona Limited
Partnership had not been named as a defendant in the Hoff-
man action; consequently, the Hoffman class action did not
toll the time to bring claims against Shea Homes Arizona
Limited Partnership.

   The court then addressed whether American Pipe tolled the
statute of repose with respect to the claims brought against the
remaining defendants in Albano II. The plaintiffs had argued
that the statute of repose should be tolled “for the entire time
Hoffman was pending.” However, the court believed that a
modified application of the rule was appropriate. It stated that
“such prolonged tolling [was] unwarranted” given “that the
Hoffman plaintiffs did not seek to certify the class for nearly
two and a half years, and that delay was a basis on which the
motion to certify was denied.” The district court elaborated:
38               ALBANO v. SHEA HOMES LIMITED
     “The tolling rule of American Pipe is a generous
     one, inviting abuse.” Crown, Cork, 462 U.S. at 354
     (Powell, J., concurring). Arizona Rule of Civil Pro-
     cedure 23, like its federal counterpart, assumes that
     a motion for class certification will be brought “as
     soon as practicable after the commencement” of a
     class action. See Ariz. R. Civ. P. 23(c)(1); see also
     Fed. R. Civ. P. 23(c)(1)(A). To permit tolling as
     urged by Plaintiffs “tests the outer limits of the
     American Pipe doctrine and . . . falls beyond its care-
     fully crafted parameters into the range of abusive
     options.” Robbins v. Fluor Corp., 835 F.3d 213, 214
     (9th Cir. 1987) (quoting Korwek v. Hunt, 827 F.2d
     874, 879 (2d Cir. 1987)) (declining to extend the
     American Pipe doctrine to include successor class
     actions); Catholic Soc. Servs., Inc. v. INS, 182 F.3d
     1053, 1059-61 (9th Cir. 1999). Plaintiffs’ position
     would encourage plaintiffs to file putative class
     actions in name only, with no intention of actually
     pursuing the case as a class claim, and delay seeking
     class certification until the last possible minute.
     Those plaintiffs would clearly benefit from any
     resulting delay and frustrate the principal purposes
     of the class action procedure—“promotion of effi-
     ciency and economy of litigation.” Crown, Cork, 462
     U.S. at 349.

To account for plaintiffs’ delay, therefore, the district court
determined that “tolling is appropriate for the period of time
representing the date from which the motion for class certifi-
cation [was filed] until it was decided, “ specifically Novem-
ber 2, 2005 to February 24, 2006. According to the court,
“[t]his period of tolling recognizes the careful balancing of
the interests of plaintiffs, defendants, and the court system
struck in American Pipe and Crown, Cork.” Without the ben-
efit of tolling from the time the Hoffman case was filed, the
plaintiffs’ claims asserted in Albano II were untimely. Conse-
                 ALBANO v. SHEA HOMES LIMITED                    39
quently, the district court granted the defendants’ motion for
summary judgment.

                         DISCUSSION

   The plaintiffs contend that the district court erred in failing
to give them the full benefit of American Pipe tolling. The
plaintiffs argue that American Pipe is a rule of legal tolling
and thus can operate to toll a statute of repose. Indeed, the
plaintiffs submit that American Pipe and Crown, Cork estab-
lished a bright-line rule: Any time a motion to certify a class
action is filed, the statute of limitations or repose is tolled dur-
ing the pendency of that cause of action. The plaintiffs con-
clude that the district court therefore erred in failing to toll the
statute of repose during the entire pendency of the motion to
certify in the Hoffman litigation. Had the district court given
the plaintiffs the full benefit of American Pipe tolling, their
claims would have been timely.

   The defendants also believe that the Arizona courts would
adopt the rule of American Pipe/Crown, Cork. However, the
defendants maintain that the rule is an equitable tolling doc-
trine, based on the balancing of competing interests. As an
equitable doctrine, it does not apply to toll a statute of repose.
The defendants maintain that the courts of Arizona would not
be swayed by the reasoning of the federal courts that have
treated the rule of American Pipe as a legal tolling rule.
Instead, they believe that the Supreme Court of Arizona
would treat American Pipe as an equitable doctrine and, there-
fore, subject to a more flexible application according to the
equities of each case.

   As suggested by our discussion of the parties’ arguments,
our task here is to discern how the Supreme Court of Arizona
would resolve the limitations and tolling questions before us.
A federal court sitting in diversity applies the substantive law
of the state, including the state’s statute of limitations. Nevada
Power Co. v. Monsanto Co., 955 F.2d 1304, 1306 (9th Cir.
40                ALBANO v. SHEA HOMES LIMITED
1992) (“[F]ederal courts exercising diversity jurisdiction are
to use state statutes of limitation.”). Federal courts must abide
by a state’s tolling rules, which are integrally related to stat-
utes of limitations. See State Farm Mut. Auto. Ins. Co. v.
Boellstorff, 540 F.3d 1223, 1228 (10th Cir. 2008) (following
Colorado’s tolling rules in a diversity action because “they are
an integral part of several policies served by the statute of
limitations” (internal quotation marks omitted)).4 In determin-
ing the law of the state for purposes of diversity, a federal
court is bound by the decisions of the highest state court. Har-
vey’s Wagon Wheel, Inc. v. Van Blitter, 959 F.2d 153, 154
(9th Cir. 1992). If the state’s highest court has not decided an
issue, it is the responsibility of the federal courts sitting in
diversity to predict “how the state high court would resolve
it.” Air-Sea Forwarders, Inc. v. Air Asia Co., Ltd., 880 F.2d
176, 186 (9th Cir. 1989) (internal quotation marks omitted).
There are times, however, when diversity cases in federal
courts “ ‘present significant issues . . . with important public
policy ramifications.’ ” Munson v. Del Taco, Inc., 522 F.3d
997, 1003 (9th Cir. 2008) (quoting Kremen v. Cohen, 325
F.3d 1035, 1037 (9th Cir. 2003)). In such circumstances, it
may be appropriate, when permitted under state law, to certify
those questions to the state court as a matter of “ ‘deference
to the state court on significant state law matters.’ ” Id. (quot-
ing Kremen, 325 F.3d at 1037).

A.    Application of American Pipe and Crown, Cork

                                   1.

   In determining whether the Supreme Court of Arizona
would adopt the rule of American Pipe/Crown, Cork, we
begin with a review of that rule. In American Pipe, the plain-
tiffs instituted a Sherman Act suit, which was brought as a
  4
   See also Hollander v. Brown, 457 F.3d 688, 694 (7th Cir. 2006) (treat-
ing tolling and equitable estoppel as substantive for Erie purposes and,
therefore, applying state law).
                ALBANO v. SHEA HOMES LIMITED                  41
class action representing “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 also those
States in the Western Area which had not previously filed
similar actions.” 414 U.S. at 541 (internal quotation marks
omitted). However, class certification later was denied
because the district court determined that the number of plain-
tiffs was not so numerous as to make joinder impracticable.
See id. at 543. Subsequently, individual members of the puta-
tive class moved to intervene, but that motion was denied on
the ground that the limitations period had run.

   In reviewing this determination, the Supreme Court first
looked at the history of Federal Rule of Civil Procedure 23,
which governs class actions. In its original form, the rule had
not contained any mechanism for determining the appropriate
class in advance of final judgment. The Court observed that
“[a] recurrent source of abuse under the former Rule lay in the
potential that members of the claimed class could in some sit-
uations await developments in the trial or even final judgment
on the merits in order to determine whether participation
would be favorable to their interests.” American Pipe, 414
U.S. at 547. Given Rule 23’s structural bias towards the plain-
tiff, courts were hesitant to allow individuals to intervene in
the action after the statute of limitations for an individual
claim had run. See id. at 549-50.

   The 1966 amendments to Federal Rule of Civil Procedure
23 directly addressed much of the potential unfairness of the
prior rule by requiring that a determination on the class action
be made “[a]s soon as practicable after the commencement of
an action brought as a class action.” Id. at 547 (internal quota-
tion marks omitted). The Court elaborated:

    A federal class action is no longer “an invitation to
    joinder” but a truly representative suit designed to
    avoid, rather than encourage, unnecessary filing of
    repetitious papers and motions. Under the circum-
42               ALBANO v. SHEA HOMES LIMITED
     stances of this case, where the District Court found
     that the named plaintiffs asserted claims that were
     “typical of the claims or defenses of the class” and
     would “fairly and adequately protect the interests of
     the class,” Rule 23(a)(3), (4), the claimed members
     of the class stood as parties to the suit until and
     unless they received notice thereof and chose not to
     continue. Thus, the commencement of the action sat-
     isfied the purpose of the limitation provision as to all
     those who might subsequently participate in the suit
     as well as for the named plaintiffs. To hold to the
     contrary would frustrate the principal function of a
     class suit, because then the sole means by which
     members of the class could assure their participation
     in the judgment if notice of the class suit did not
     reach them until after the running of the limitation
     period would be to file earlier individual motions to
     join or intervene as parties—precisely the multiplic-
     ity of activity which Rule 23 was designed to avoid
     in those cases where a class action is found “superior
     to other available methods for the fair and efficient
     adjudication of the controversy.” Rule 23(b)(3).

Id. at 550-51 (emphasis added). Thus, the Court held that “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 553. A contrary
rule, the Court also explained, “would deprive Rule 23 class
actions of the efficiency and economy of litigation which is
a principal purpose of the procedure.” Id. The Court did not
believe that this new rule was “inconsistent with the func-
tional operation of a statute of limitations.” Id. at 554. It
explained:

     [S]tatutory limitation periods are “designed to pro-
     mote justice by preventing surprises through the
     revival of claims that have been allowed to slumber
                 ALBANO v. SHEA HOMES LIMITED                  43
    until evidence has been lost, memories have faded,
    and witnesses have disappeared. . . . The policies of
    ensuring essential fairness to defendants and of bar-
    ring a plaintiff who “has slept on his rights,” are sat-
    isfied 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 sub-
    stantive claims being brought against them, but also
    of the number and generic identities of the potential
    plaintiffs who may participate in the judgment.

Id. at 554-55 (internal citations omitted).

   The Court observed that it was not establishing a right of
intervention. By contrast, it simply was holding that a class
action operated to toll the applicable statute of limitations,
and, therefore, the statute of limitations did not act as a bar to
intervention. Whether the plaintiffs should be granted inter-
vention was a matter, in the first instance, for the district
court. See id. at 560.

  The concurring opinion emphasized that the new rule does
not “necessarily guarantee intervention for all members of the
purported class.” Id. at 561 (Blackmun, J., concurring).
Rather, whether individual parties were allowed to join the
action would continue to be determined by the mandatory and
permissive joinder rules set forth in Federal Rule of Civil Pro-
cedure 24 (a) and (b).

   Almost ten years after American Pipe, the Court handed
down its decision in Crown, Cork & Seal Co., Inc. v. Parker,
462 U.S. 345 (1983). Crown, Cork considered whether the
rule of American Pipe should be extended to parties who,
after the denial of a motion for class certification, institute
their own actions as opposed to seeking to intervene in the
purported class action. The Court observed that “[m]uch the
same inefficiencies would ensue if American Pipe’s tolling
rule were limited to permitting putative class members to
44              ALBANO v. SHEA HOMES LIMITED
intervene after the denial of class certification.” Id. at 350.
Further, extending American Pipe to individuals who institute
separate actions does not frustrate the policies behind a statute
of limitations: “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 353.

   As in American Pipe, a concurring opinion noted the limi-
tations of the rule announced. According to the concurring
opinion, the linchpin of the American Pipe rule was that it
guaranteed timely notice of an action to the defendant. Conse-
quently, “[c]laims 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. at 355 (Powell, J., concurring).

   Crown, Cork thus expanded the rule of American Pipe in
two ways. First, it severed the connection between tolling
under Federal Rule of Civil Procedure 23 and intervention
under Federal Rule of Civil Procedure 24. Because parties
now could institute their own actions, rather than being lim-
ited to seeking intervention, they no longer had to satisfy
either the requirements of Rule 24(a), governing intervention
as of right, or Rule 24(b), governing permissive intervention,
in order to gain access to the court. Second, Crown, Cork
“ ‘untethered’ ” the American Pipe rule “ ‘from any necessary
connection to the reasons for denying certification.’ ” Bridges
v. Dep’t of Maryland State Police, 441 F.3d 197, 211 (4th Cir.
2006) (quoting Smith v. Pennington, 352 F.3d 884, 892 (4th
Cir. 2003)). The result of this untethering was to extend
American Pipe

     as far as is justified by the objectively reasonable
     reliance interests of the absent class members. If
     courts were to toll statutes of limitations only when
     class certification was denied for lack of numerosity,
     the rule, which would turn on the substantive reason
                 ALBANO v. SHEA HOMES LIMITED                   45
    for the denial, would not discourage premature inter-
    vention because class members could not know or
    predict at the time of filing why class certification
    might eventually be denied.

Bridges, 441 F.3d at 211.

                                2.

   With this understanding of the American Pipe rule, we
must address whether the Supreme Court of Arizona would
adopt this rule to toll statutes of limitations for purported class
actions filed under its own version of Rule 23. As noted by
the district court, Arizona Rule of Civil Procedure 23 “is iden-
tical to Federal Rule of Civil Procedure 23,” and “Arizona
courts view federal cases construing the federal rule as
authoritative, though not controlling.” (citing Lennon v. First
Nat’l Bank of Ariz., 518 P.2d 1230, 1232 n.3 (Ariz. Ct. App.
1974); ESI Ergonomic Solutions, LLC v. United Artists The-
atre Circuit, Inc., 50 P.3d 844, 848 n.2 (Ariz. Ct. App. 2002)).

   Furthermore, the Supreme Court of Arizona has recognized
class-action tolling in the administrative context. In Arizona
Department of Revenue v. Dougherty, 29 P.3d 862 (Ariz.
2001), the court considered whether “filing a class claim in an
administrative procedure will toll the statute of limitations for
all putative class members,” id. at 863, or whether individual
administrative claims were necessary to preserve one’s rights.
The court held that the filing of a class administrative claim
satisfied the exhaustion requirement as to all members of the
putative class and further held that the filing of the adminis-
trative claim tolled the statute of limitations “for other puta-
tive class members.” Id. at 869. The court explained:

    The relevant section of the Arizona tax code is
    A.R.S. § 42-1106(C) (1999), which states that “fail-
    ure to begin an action for refund or credit within the
    time specified in this section is a bar against recov-
46               ALBANO v. SHEA HOMES LIMITED
     ery of taxes. . . .” However, the statute of limitations
     is tolled while the claimant exhausts his or her
     administrative remedies. See Third & Catalina
     Assocs. v. City of Phoenix, 182 Ariz. 203, 207, 895
     P.2d 115, 119 (App. 1994). Logic dictates that, if a
     claimant is allowed to exhaust administrative reme-
     dies on behalf of a class of those similarly situated,
     tolling of the statute of limitations should receive
     similar treatment. This conclusion, of course, does
     not apply to those claims already barred at the
     administrative level by the statute of limitations at
     the time Ladewig’s representative claim was filed.
     See A.R.S. § 42-1106 (1999).

Id. at 869-70.

   Finally, lower Arizona courts have acknowledged the pos-
sibility that American Pipe tolling may apply in an appropri-
ate situation. In Hall v. Romero, 685 P.2d 757 (Ariz. Ct. App.
1984), the plaintiffs sued the paid spokesperson for a planned
development, claiming that he had misrepresented negligently
the amenities that the development would have. In an attempt
to save an otherwise untimely action, the plaintiffs argued
that, under American Pipe, the state attorney general’s prior
action against the developer tolled the time within which the
plaintiffs had to institute their action against the spokesper-
son. The Arizona Court of Appeals disagreed:

     [The American Pipe] rule provides that commence-
     ment of a class action tolls the applicable statute of
     limitations for individual suits, as to all members of
     the class, until the class is certified. The rule presup-
     poses that the defendant is identical in both the class
     action suit and the individual class members’ suits.
     This presupposition would prevent us from applying
     the rule, even if we were to accept the plaintiffs’
     characterization of the attorney general’s suit as one
     for the benefit of a “class.”
                   ALBANO v. SHEA HOMES LIMITED                           47
Id. at 763.

   Given that the state and federal rules are identical, that the
Arizona courts treat federal courts’ interpretation of Rule 23
as authoritative, and that the Supreme Court of Arizona has
embraced the class action construct as a means of protecting
individuals’ rights in the administrative context, a strong
argument can be made that the state supreme court would
adopt American Pipe, as expanded by Crown, Cork, at least
in some form.

   However, the opposite view also has merit. Although Ari-
zona courts treat federal interpretations of Rule 23 as authori-
tative, they are not controlling. Furthermore, Dougherty,
although a seemingly strong endorsement of class action toll-
ing, was a case that involved an action against the State;
extending Dougherty’s holding to allow class action tolling
against private individuals or corporations, however, involves
the weighing of policy considerations different from those at
play when a public defendant is involved.5 Finally, Hall v.
Romero did nothing more than acknowledge the existence of
the American Pipe rule as an abstract principle of law; it can-
not be read as a strong indication of Arizona’s willingness to
adopt American Pipe. In sum, whether the Supreme Court of
Arizona would embrace American Pipe is by no means a
given.

B.    Application of American Pipe to Statutes of Repose

   Moreover, even if we were able to conclude confidently
that the Supreme Court of Arizona would adopt the rule of
  5
    For instance, courts may determine that, for reasons of institutional
integrity, it is necessary to allow a citizen to pursue an otherwise untimely
action against a governmental entity, especially if the action involves alle-
gations of constitutional wrongdoing. Furthermore, governmental entities
can use the taxing power to pay for unforeseen expenses (or at least spread
those costs over a wider population); private defendants, whether individu-
als or corporations, do not have that power at their disposal.
48                 ALBANO v. SHEA HOMES LIMITED
American Pipe, the more difficult question is whether and to
what extent the Supreme Court of Arizona would apply the
rule of American Pipe to a statute of repose, specifically the
statute of repose for construction defects. Because Arizona
courts consider federal cases interpreting Federal Rule of
Civil Procedure 23 as authoritative, the plaintiffs believe that
Arizona courts likely would follow the lead of the majority of
federal courts, which hold that American Pipe tolling is legal
tolling and applies to statutes of repose.

   The defendants believe, however, the district court’s
approach is more indicative of the approach that Arizona
courts would follow. They note that the federal courts have
not been consistent in categorizing American Pipe tolling as
either equitable or legal. They argue that the rule is an equita-
ble one grounded in concepts of fairness, an idea that seems
to have been accepted by the Supreme Court of Arizona.6
Consequently, Arizona courts would treat American Pipe toll-
ing as a type of equitable tolling. Because it is equitable, the
defendants conclude that American Pipe tolling may be
applied to toll a statute of limitations, but not a statute of
repose.

                                    1.

   Although the general rule of class action tolling is well
established, as are some applications of the American Pipe rule,7
others still are being vetted in the courts of appeals and dis-
  6
     See infra at 54-57 (discussing Hosogai v. Kadota, 700 P.2d 1327, 1331
(Ariz. 1985)).
   7
     For instance, the courts of appeals agree that American Pipe does not
“allow tolling when the district court in the previous action had denied
class certification, and when the second action sought to relitigate the
issue of class certification and thereby to circumvent the earlier denial.”
Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139, 1147 (9th Cir. 2000) (en
banc); Basch v. Ground Round, Inc., 139 F.3d 6, 11 (1st Cir. 1998); Kor-
wek v. Hunt, 827 F.2d 874, 879 (2d Cir. 1987).
                   ALBANO v. SHEA HOMES LIMITED                           49
trict courts.8 Among the issues on which there is no consensus
is whether American Pipe tolling should be characterized as
a legal tolling doctrine or as an equitable one. Because it is
generally accepted that “[s]tatutes of repose are not subject to
equitable tolling,” Munoz v. Ashcroft, 339 F.3d 950, 957 (9th
Cir. 2003),9 whether American Pipe sets forth a legal or equi-
table tolling doctrine takes on special importance in the con-
text of a statute of repose.

   The majority of the lower federal courts that have
addressed the issue have held that American Pipe tolling is
not equitable, but legal. In Joseph v. Wiles, 223 F.3d 1155
(10th Cir. 2000), for example, the court considered whether
the filing of a class action tolled the three-year statute of
repose for securities fraud under 15 U.S.C. § 77m. Relying on
Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501
U.S. 350, 363 (1991), the defendants argued that American
Pipe could not be invoked to toll the three-year statute of
repose. The Tenth Circuit, however, held that Lampf was

      not relevant in the present context because the tolling
      that Mr. Joseph seeks is legal rather than equitable
      in nature. . . . [T]he tolling Mr. Joseph claims is the
      legal tolling that occurs any time an action is com-
  8
     The courts of appeals are split on whether American Pipe tolls the stat-
ute of limitations for an individual among a plaintiff-class who files an
untimely, individual lawsuit before the disposition of a certification
motion in the class action litigation. Compare State Farm Mut. Auto. Ins.
Co. v. Boellstorff, 540 F.3d 1223, 1234 (10th Cir. 2008) (tolling limita-
tions period); In re Hanford Nuclear Reservation Litig., 534 F.3d 986,
1009 (9th Cir. 2008) (same), with Wyser-Pratte Mgmt. Co. v. Telxon
Corp., 413 F.3d 553, 569 (6th Cir. 2005) (refusing to toll limitations
period under Ohio law); Glater v. Eli Lilly & Co., 712 F.2d 735, 739 (1st
Cir. 1983) (refusing to toll limitations period).
   9
     See also Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501
U.S. 350, 363 (1991) (holding that equitable tolling principles do not
apply to the three-year statute of repose for claims brought pursuant to
§ 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b)).
50               ALBANO v. SHEA HOMES LIMITED
     menced and class certification is pending. Cf. Kor-
     wek v. Hunt, 827 F.2d 874, 879 (2d Cir. 1987)
     (tolling no longer appropriate after court ruled defin-
     itively to deny class certification).

        The Supreme Court addressed this type of tolling
     in American Pipe & Const. Co. v. Utah, 414 U.S.
     538 (1974), where it held in the context of a statute
     of limitation that “the commencement of the original
     class suit tolls the running of the statute for all pur-
     ported members of the class who make timely
     motions to intervene after the court has found the
     suit inappropriate for class action status.” Id. at 553.
     The Court expanded this rule in Crown, Cork & Seal
     Co. v. Parker, 462 U.S. 345 (1983), to include puta-
     tive class members who later seek to file indepen-
     dent actions. See id. at 353-54 (statute of limitations
     remains tolled for all members of putative class until
     class certification is denied). Lampf did not overrule
     or even mention these cases, and we are not per-
     suaded the three are incompatible. In fact, Lampf
     states that the “litigation . . . must be commenced
     within one year after the discovery of the facts con-
     stituting the violation and within three years after
     such violation,” indicating that the commencement
     of the action is the event which triggers tolling.
     Lampf, 501 U.S. at 364 (emphasis added).

        Tolling the limitations period for class members
     while class certification is pending serves the pur-
     poses of Rule 23 of the Federal Rules of Civil Proce-
     dure governing class actions. Rule 23 encourages
     judicial economy by eliminating the need for poten-
     tial class members to file individual claims. If all
     class members were required to file claims in order
     to insure the limitations period would be tolled, the
     point of Rule 23 would be defeated.
                ALBANO v. SHEA HOMES LIMITED                   51
Joseph, 223 F.3d at 1166-67 (footnote omitted) (parallel cita-
tions omitted); see also Bright v. United States, 603 F.3d
1273, 1287-88 (Fed. Cir. 2010) (characterizing class action
tolling as “statutory” and holding that this type of tolling “is
not triggered by equitable considerations”); Arivella v. Lucent
Techs., Inc., 623 F. Supp. 2d 164, 176 (D. Mass. 2009) (not-
ing differences between American Pipe and equitable tolling
and stating that “[l]egal tolling is [ ] distinct from equitable
tolling, which is a judicially created doctrine that stops the
running of a statute of limitations in certain situations involv-
ing unfairness or excusable mistake”).

   According to these courts, applying statutory tolling to stat-
utes of repose does not frustrate the policies reflected in a
statute of repose. In Joseph, the Tenth Circuit explained:

       Tolling the limitations period while class certifica-
    tion is pending does not compromise the purposes of
    statutes of limitation and repose. Statutes of limita-
    tion are intended to protect defendants from being
    unfairly surprised by the appearance of stale claims,
    and to prevent plaintiffs from sleeping on their
    rights. See Crown, Cork, 462 U.S. at 352. “[T]hese
    ends are met when a class action is commenced.” Id.
    In this case, because a class action complaint was
    filed, defendants were on notice of the substantive
    claim as well as the number and generic identities of
    potential plaintiffs. Defendants cannot assert Mr.
    Joseph’s claim was stale or that he slept on his
    rights.

       Statutes of repose are intended to demarcate a
    period of time within which a plaintiff must bring
    claims or else the defendant’s liability is extin-
    guished. Here, the claim was brought within this
    period on behalf of a class of which Mr. Joseph was
    a member. Indeed, in a sense, application of the
    American Pipe tolling doctrine to cases such as this
52               ALBANO v. SHEA HOMES LIMITED
     one does not involve “tolling” at all. Rather, Mr.
     Joseph has effectively been a party to an action
     against these defendants since a class action cover-
     ing him was requested but never denied. Defendants’
     potential liability should not be extinguished simply
     because the district court left the class certification
     issue unresolved. Consequently, we conclude that
     American Pipe tolling applies to the statute of repose
     governing Mr. Joseph’s action.

223 F.3d at 1167-68 (internal and parallel citations omitted).
Similarly, in Arivella v. Lucent Techs., Inc., 623 F. Supp. 2d
164 (D. Mass. 2009), the district court stated:

         The differences between the forms of tolling is
     crucial because the animating principles of legal toll-
     ing are compatible with tolling a statute of repose,
     while the reasoning behind equitable tolling is not.
     . . . [T]he purpose of a statute of repose is to demar-
     cate a period in which a plaintiff must place a defen-
     dant on notice of his or her injury, regardless of
     whether the plaintiff himself is aware that he has suf-
     fered an injury. The filing of a class action, which is
     the only conduct that can trigger American Pipe toll-
     ing, accomplishes the exact same goal, rendering the
     statute of repose superfluous for the period of time
     that the class action is pending. . . . In contrast to
     legal tolling, equitable tolling would frequently work
     to frustrate statutes of repose by extending the time
     in which a plaintiff could file suit without providing
     the defendants with any notice of the potential claims
     against them.

Id. at 177 (emphasis added).

                               2.

  There also is support for the contrary proposition—that
American Pipe tolling is equitable. Indeed, the Supreme Court
                   ALBANO v. SHEA HOMES LIMITED                         53
indicated that, in fashioning the existing rule, it took into
account traditional equitable considerations. The Court noted
that, in the case before it, certification had not been denied
“for reasons of bad faith or frivolity,” but for lack of numero-
sity. American Pipe, 414 U.S. at 553 (internal quotation
marks omitted). Furthermore, the Court observed that, “[i]n
recognizing judicial power to toll statutes of limitation in fed-
eral courts we are not breaking new ground.” Id. at 558
(emphasis added). Among the examples of the Court’s prior
invocation of this power were “cases where the plaintiff ha[d]
refrained from commencing suit during the period of limita-
tion because of inducement by the defendant . . . or because
of fraudulent concealment,” id. at 559 (internal citation omit-
ted), in other words, cases involving equitable tolling.

   Equitable considerations also prompted the three concur-
ring Justices in Crown, Cork to issue the following caution:

       It seems important to reiterate the view expressed by
       Justice BLACKMUN in American Pipe & Constr.
       Co. v. Utah, 414 U.S. 538 (1974). He wrote that our
       decision “must not be regarded as encouragement to
       lawyers in a case of this kind to frame their plead-
       ings as a class action, intentionally, to attract and
       save members of the purported class who have slept
       on their rights.” Id., at 561 (concurring opinion). The
       tolling rule of American Pipe is a generous one,
       inviting abuse. It preserves for class members a
       range of options pending a decision on class certifi-
       cation. The rule should not be read, however, as
       leaving a plaintiff free to raise different or peripheral
       claims following denial of class status.

462 U.S. at 354 (Powell, J., concurring) (parallel citations omit-
ted).10
  10
    Additionally, the Court has cited American Pipe in support of proposi-
tions involving equitable tolling. See Young v. United States, 535 U.S. 43,
54                 ALBANO v. SHEA HOMES LIMITED
   Furthermore, in circumstances where the distinction
between legal and equitable tolling was not dispositive, courts
regularly have referred to American Pipe tolling as “equita-
ble.” See supra note 10; Bridges, 441 F.3d at 211 (character-
izing the rule of American Pipe/Crown, Cork as an “equitable
tolling rule”); Ellis v. City of San Diego, Cal., 176 F.3d 1183,
1189 n.3 (9th Cir. 1999) (citing American Pipe in support of
the proposition that “[e]quitable tolling of the statute of limi-
tations is a defense to all federal statutes of limitations, even
those expressly contained within a given cause of action,
unless tolling would be inconsistent with the legislative pur-
pose”).

                                     3.

   Although the weight of federal authority favors the view
that American Pipe/Crown, Cork rule should be characterized
as a rule of statutory tolling, it is not at all clear whether the
Supreme Court of Arizona would adopt that view. The Ari-
zona case that discusses American Pipe in the greatest detail
is Hosogai v. Kadota, 700 P.2d 1327 (Ariz. 1985). In Hoso-
gai, the Supreme Court of Arizona addressed the following
issue: “May the statute of limitations for a second wrongful
death action be equitably tolled by the filing of a first action
dismissed because of a procedural defect?” Id. at 1329. In
resolving this issue, the court stated:

        A court has a legitimate interest in the procedural
     rules that govern lawsuits, especially to prevent such
     rules from becoming a shield for serious inequity.

49 (2002) (citing American Pipe, among other authorities, for the proposi-
tion that “[i]t is hornbook law that limitations periods are customarily sub-
ject to equitable tolling unless tolling would be inconsistent with the text
of the relevant statute” (internal quotation marks and citations omitted));
Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 & n.3 (1990) (citing
American Pipe in support of the proposition that “[w]e have allowed equi-
table tolling in situations where the claimant has actively pursued his judi-
cial remedies by filing a defective pleading during the statutory period”).
                ALBANO v. SHEA HOMES LIMITED                    55
    Accordingly, a court may under certain circum-
    stances make narrow equitable exceptions to statutes
    of limitations. See American Pipe & Constr. Co. v.
    Utah, 414 U.S. 538, 552-59 (1974); Burnett v. New
    York Central R.R., [380 U.S. 424, 426-30 (1965)].
    The history of the equitable tolling doctrine evi-
    dences this claim.

Id. at 1331 (parallel citations omitted). After reviewing some
of the history of the equitable tolling doctrine, the court set
forth the circumstances under which equitable tolling was
appropriate:

       Equitable tolling is appropriate when it would
    effectuate: 1) the policies underlying the statute, and
    2) the purposes underlying the statute of limitations.
    Burnett v. New York Central R.R., supra, 380 U.S.
    at 427-28; American Pipe & Constr. Co. v. Utah,
    supra, 414 U.S. at 554-56. Equitable tolling has been
    found to effectuate the policies underlying a number
    of remedial federal statutes, including: the Federal
    Employer’s Liability Act (FELA), Burnett v. New
    York Central R.R., supra; Annot., 16 A.L.R.3d 637
    (1967) (equitable tolling of statute of limitations in
    FELA cases); Title VII actions for unlawful discrim-
    ination in violation of the Civil Rights Act of 1964;
    Zipes v. Transworld Airlines, 455 U.S. 385 (1982)
    (timely filed claim with administrative agency which
    was dismissed after the expiration of the statute of
    limitations equitably tolls second action in federal
    court); . . . antitrust actions under the Clayton and
    Sherman Acts, see American Pipe & Constr. Co. v.
    Utah, supra (where class action suit is dismissed
    because class action status denied, the timely filing
    of technically deficient first action equitably tolls the
    statute of limitations); the Railway Labor Act, Order
    of Railroad Telegraphers v. Railway Express
    Agency, 321 U.S. 342 (1944) (statute of limitations
56                  ALBANO v. SHEA HOMES LIMITED
       equitably tolled during pendency of lengthy adminis-
       trative proceedings).

Id. at 1331-32 (parallel citations omitted). The court then
went on to determine that the policies underlying the wrong-
ful death statute were consistent with equitable tolling. Simi-
larly, the requirements for equitable tolling—timely notice to
the defendant, lack of prejudice to the defendant in gathering
evidence to defend against the later claim, and reasonable and
good faith conduct by the plaintiff in prosecuting the initial
action—had been met. Consequently, the court concluded that
equitable tolling should apply to save the plaintiff’s claim.11

   Hosogai, as support for the proposition that American Pipe
tolling is equitable, cannot be dismissed as easily as the fed-
eral authorities that employ that characterization. The federal
cases refer to American Pipe in passing and make no distinc-
tion between equitable and legal tolling. The same is not true
of Hosogai. First, Hosogai did not simply reference American
Pipe in support of a general proposition; the Supreme Court
of Arizona mentioned American Pipe several times in direct
reference to equitable tolling. Second, in Hosogai, the court
incorporated concepts of legal tolling into its requirements for
equitable tolling. The court held that, before equitable tolling
could apply, there must be a determination as to whether toll-
ing was consistent with the policies underlying the statute and
the purposes underlying the statute of limitations. 700 P.2d at
1331. In this respect, the Supreme Court of Arizona’s consid-
erations in Hosogai are strikingly similar to those of the
Supreme Court in American Pipe, in which the Court
observed: “[T]he mere fact that a federal statute providing for
  11
    The Supreme Court of Arizona also called upon the Arizona legisla-
ture to enact a general savings statute for civil actions to “allow[ ] an
action, dismissed for reasons unrelated to the merits after the statute of
limitations has expired, to be reinstated if a second action is promptly filed
thereafter.” Hosogai v. Kadota, 700 P.2d 1327, 1330, 1334 (Ariz. 1985).
The legislature did so. See Ariz. Rev. St. Ann. § 12-504.
                 ALBANO v. SHEA HOMES LIMITED                  57
substantive liability also sets a time limitation upon the insti-
tution 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.”
American Pipe, 414 U.S. at 559 (emphasis added).

   The Supreme Court of Arizona’s characterization of Ameri-
can Pipe tolling as equitable, coupled with its articulated con-
cern that tolling be applied in a manner consistent with the
statute’s purpose, suggests that Arizona may not apply Ameri-
can Pipe to toll all statutes of limitations and repose. Pertinent
to the present action, the Arizona legislature has crafted a
detailed procedure for addressing construction defects and has
set forth a specific time within which claims must be brought.
It is possible that the Supreme Court of Arizona may agree
with the district court in Arivella that, as a general proposi-
tion, the filing of a class action complaint satisfies the “pur-
pose of a statute of repose . . . to demarcate a period in which
a plaintiff must place a defendant on notice of his or her
injury, regardless of whether the plaintiff himself is aware that
he has suffered an injury.” 623 F. Supp. 2d at 177. It also is
possible, however, that the Arizona court would determine
that class action tolling is not consonant with the detailed stat-
utory scheme. The Supreme Court of Arizona also might be
persuaded that the statute of repose incorporates a policy
determination that tolling of any kind, but especially class
action tolling, is not appropriate in the context of litigation
over construction defects. As explained by the Court in Amer-
ican Pipe, “statutory limitation periods are designed to pro-
mote justice by preventing surprises through the revival of
claims that have been allowed to slumber until evidence has
been lost, memories have faded, and witnesses have disap-
peared.” 414 U.S. at 554 (internal quotation marks omitted).
However, assuming construction claims involve habitable res-
idences, the defendant developer/contractor/subcontractor will
not be in a position to preserve evidence critical to proving or
disproving the claim. Additionally, construction litigation fre-
quently does not involve the commonality of facts and issues
58                    ALBANO v. SHEA HOMES LIMITED
necessary for class certification. See, e.g., Becker v. McMillin
Constr. Co., 226 Cal. App. 3d 1493, 1496 (Cal. Ct. App.
1991) (recounting that class action was denied in earlier liti-
gation for lack of commonality).12 Thus, the Supreme Court
of Arizona may conclude that the Arizona legislation, in
enacting the statute of repose, was of the view that class-
action construction claims are uniquely capable of bringing
about the abuse identified by the concurrence in Crown, Cork:

        It seems important to reiterate the view expressed by
        Justice BLACKMUN in American Pipe & Constr.
        Co. v. Utah, 414 U.S. 538 (1974). He wrote that our
        decision “must not be regarded as encouragement to
        lawyers in a case of this kind to frame their plead-
        ings as a class action, intentionally, to attract and
        save members of the purported class who have slept
        on their rights.” Id., at 561 (concurring opinion). The
        tolling rule of American Pipe is a generous one,
        inviting abuse. It preserves for class members a
        range of options pending a decision on class certifi-
        cation. The rule should not be read, however, as
        leaving a plaintiff free to raise different or peripheral
        claims following denial of class status.

462 U.S. at 354 (parallel citations omitted).

   In short, application of American Pipe to toll Arizona’s
statute of repose for construction defects involves important
  12
    The Superior Court in Hoffman, the earlier class action in this matter,
echoed this fact:
       Cases of this type are rarely, if ever, appropriate for class-action
       treatment, primarily because of the significant lack of “typicality”
       and “commonality” among the various homeowners. The court
       need not discuss this matter in detail but, instead, will refer the
       parties to its previous orders in three similar cases, in which it
       denied class certification where the claims, as here, involved
       alleged defects in “soils and slabs” and window/door waterproof-
       ing . . . .
                ALBANO v. SHEA HOMES LIMITED                  59
public policy decisions for that state. Given the paucity of
Arizona case law in this area, and the concomitant uncertainty
in discerning the path the Arizona courts would follow, we
believe the most prudent and respectful course is to certify
these questions to the Supreme Court of Arizona.

                          ORDER

   We find that questions of state law will be determinative of
the claims currently pending in this court. We note that there
is no controlling precedent in the decisions of the Arizona
Supreme Court or in the Arizona Courts of Appeals. There-
fore, pursuant to Arizona Revised Statutes § 12-1861 and Ari-
zona Supreme Court Rule 27, we certify the following
questions to the Arizona Supreme Court:

    1. Does the filing of a motion for class certification
    in an Arizona court toll the statute of limitations for
    individuals, who are included within the class, to file
    individual causes of action involving the same
    defendants and the same subject matter?

    2. If so, does this class-action tolling doctrine apply
    to statutes of repose, and more specifically, to the
    statute of repose for construction defects set forth in
    Arizona Revised Statute § 12-552?

    3. If the doctrine applies to statutes of repose, and
    specifically Arizona Revised Statute § 12-552, may
    a court weigh the equities of the case in determining
    whether, and to what extent, an action is tolled?

   We respectfully request the Arizona Supreme Court to
exercise its discretionary authority under Arizona Supreme
Court Rule 27 to accept and to decide these questions. Our
phrasing of the questions should not limit the Court’s consid-
eration of the issues involved. If the Arizona Supreme Court
60              ALBANO v. SHEA HOMES LIMITED
declines certification, it should so state, and we will resolve
the case based on our perception of Arizona law.

   The Clerk will file with the Arizona Supreme Court an
original and six certified copies of this Order and a list of the
counsel appearing in this matter along with their addresses
and telephone numbers, pursuant to Arizona Supreme Court
Rule 27(a)(3)(c) & (a)(4). The panel retains jurisdiction over
further proceedings in this court.

     QUESTIONS CERTIFIED
