18‐1120‐cv
Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT
                                August Term, 2018
                (Argued: March 4, 2019 Decided: August 7, 2019)
                               Docket No. 18‐1120‐cv



  TOBIAS BERMUDEZ CHAVEZ, GERARDO ANTONIO FONESCA TORRES, FRANKLIN
  GUILLEN SALAZAR, GARCIA MONTES JOSE GABINO, MARIANO DE LOS ANGELES
PIZARRO, ANTONIO OSORNO OSORNO, EUSEBIO PEREZ DINARTES, ANGEL NAPTALI
 AGILA SALINAS, JOSE VICENTE CAMPOS DEL PESO, GABRIEL RODOLFO CAMPOVE
 ARCE, JOSE ANTONIO E. ESPINOZA, MANUEL ISAIAS ESTRADA MOSQUERA, PEDRO
RAMON GARCIA VILLON, MANUEL JESUS INGA DOMINGUEZ, JOSE VIRGILIO LOPEZ
  CORREA, JUAN BAUTISTA NORIEG MOREIRA, ANGEL RAFAEL ROMERO CASTRO,
     JULIAN GONZALO SUAREZ DEL ROSARIO, SIXTO TORRES FARIAS, TEODORO
   FERNANDO UNAMUN CORONEL, IDELFONSO ARAUZ ARAUZ, HECTOR ARCIA,
 SANTOS CAMARENA‐CABALLERO, FULVIO CESAR CHAVEZ SUIRA, JOSE ANTONIO
 GONZALE HERNANDEZ, VALENTIN MONTERO MENDEZ, JUSTO GERMAN OPORTO
  VILCHEZ, JULIO SEVILLA FLORES, FELIX VARGAS RODRIGUEZ, LEOCADIO ZURDO
 AMADOR, JULIO ABREGO ABREGO, BERNARDO ABREGO JORIETO, SIMON ABREGO
  PINEDA, ONCHI ABREGO QUINTERO, DILVIO ALVAREZ MORENO, JUAN CHOLY
APARICIO, FRANCISCO DEL SOCORRO BAT MORA, CELIO BONILLA VALDEZ, PEDRO
BRICENO ESCALANTE, SANTIAGO CASTILO CASTILLO, LIBERATO CASTILO CASTILLO,
  GERARDO DELEON ZAPATA, ABNEGO GUILLERMO DUGEL WILLIAMS, FELICIMO
 DUGUEL MICHI, MANUEL GONZALES SANCHEZ, ERNESTO GUADAMUZ, HILARIO
   JULIAN MILTON, RICARDO ADOLFO MALDONAD SMITH, JOSE MIRANDA NICO,
PANCHO MOLINA ACUNA, RAMON ABREGO, LORENZO MORALES MORALES, JULIO
 MORENO MONTEZUMA, MARIO MUNOZ SANTOS, ALEJANDRO PALACIO PINEDA,
    GENITO QUINTERO GONZALEZ, GREGORIO ELLINGTON, DIONICIO SANTIAGO
 ABREGO, SIMON SANTOS VILLAGRA, JULIO SANTOS SANTOS, NAPOLEON SERRANO
NITI, VICTORIANO SERRANO CHICO, SAMUEL SMITH SMITH, SAMUEL TAYLOR ERA,
DEMETRIO WILLIAMS JIMENEZ, SEBASTIAN WILLIAMS MIGAR, ALVARADO ALFARFO
                                                                                  18‐1120‐cv
                                  Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

  MIGUEL FRANCISCO, EDGAR ARROYO GONZALEZ, MARCELO COREA COREA, JOSE
DAIZ BENAVIDEZ, GONZALEZ MARIN MARVIN, MIGUEL ANGEL MORALES GUZMAN,
   RODRIGO QUIROS CHAVARRIA, GUILLER SANDRE REYES MORA, VEGA UGALDE
    NORMAN, FLORENTINO GILBERTO ALCIBA MONTESARRATE, TOMAS GILBERTO
 ASUNCI QUIMI, ODILO CASTRO LOPEZ, JOSE SANTIAGO LOJA ALVARADO, RICARDO
   ALBERTO ORRALA RAMIREZ, JOSE NICANOR PACHECO URGILES, LUIS ALFONSO
     PALADIN ILLESCAS, MANUEL JOSE PORRAS ALVAREZ, JOSE LEONCIO PUCHA
  VILLAMAGUA, LEOPOLDO MAURICIO QUEZAD VITONERA, GERMASN ELEUTERIO
   RAMIR OYOLA, EUGENIO DE JESUS VIVAR SANCHEZ, ESTEBAN GARCIA ACOSTA,
 MARIANO GONZALEZ PITTI, HECTOR GUTIERREZ VICTORIA, WILLFREDO MIRANDA
  PATINO, JUAN DEDIOS QUINTERO, MARIO REYES SALDANA, DANIEL RODRIGUEZ
   MADRID, ARCENIO RODRIGUEZ GALLARDO, FERMIN ROMERO DE LEON, JAVIER
ENRIQUE RUBIO MORALES, MARGARITO SALINAS MOJICA, BASILIO SALINAS MOJICA,
  LINO VILLARREAL CONCEPCION, JORGE LUIS AGUILAR MORA, CARLOS AGUIRRE
    FLORES ALVAREZ, JUAN JOSE ARGUELLO JIMENEZ, JOSE BUSTOS OSES, RAFAEL
     BUSTOS BUSTOS, GERMAN FALLAS HERRERA, ELIZONDO GUARIN EDUARDO,
  FEDERICO CLEVER MONTERO SALAS, JULIAN ALVAREZ JOVINO, NERTOR EVELINO
      CACAY CORDOVA, JOSE DARIO CHICA ROMERO, MARIANO CRUZ JIMENEZ
GUANOQUIZA, ALCIDES HUMBERTO LUPU REYES, MANUEL BENIGNO ORTIS, MIGUEL
ANGEL QUITO AREVALO, GREGORIO JUAN TORRES TENESACA, FRANCISCO OSWALDO
    VILLACR MENDOZA, EULOGIO APOLOGIO ZAMBRA OTERO, ALCIDES BAULES
RODRIGUEZ, LAUDINO CABALLERO RIOS, AGRIPINO CAMARENA CEDENO, DOMINGO
 CASTILLO MORALES, DANIEL CENSION CAMANO, DANIEL ESPINOSA MITRE, OSCAR
     ALEXIS GANTES ARAUZ, CESAR AUGUSTO GONZALE CABALLERO, EDUARDO
     GONZALEZ CABALLERO, ENEDICTO JIMENEZ MIRANDA, RAFAEL MARTINEZ
 GONZALEZ, AURELIO MIRANDA DIAZ, MARCOS MORALES GUTIERREZ, ABRAHAM
MORENO CONCEPCION, JUAN ADOLFO OLIVERO MAGUE, LEOPOLDO PENA SANJUR,
PAULINO PITTY SANCHEZ, LUIS ENRIQUE NAVARRO QUINTERO, CATALINO ROSALES
   PINEDA, NICOLAS SANTOS MONTENEGRO, CATALINO SERRUD, SANTOS TORRES
   PINZON, AQUILINO VIGIL SANCHEZ, EDWIN AGUERO JIMENEZ, JORGE AGUERO
   RETANA, ALBERTO CONEJO CHACON, DIDIER CORDERO CISNEROS, ESTANISLAO
       CRUZ CRUZ, MIGUEL ANTONIO DIAZ CORDERO, DOGABERTO ESQUIVEL
    VALDELOMAR, JOSE GAMBOA CASTILLO, MARCOS GOLUBOAY MEJIAS, ROGER
    ANTONIO LOPEZ ZAMORA, RUFINO MATARRITA MORENO, JOSE FABIO NUNEZ
  CASTRO, CARLOS LUIS PEREIRA OROZCO, FRANCISCO PEREIRA RAMIREZ, CARLOS
  MANUEL QUIROS ZUNIGA, WILLIAM FELICIANO RODRIGUEZ, JOSE ANGEL ROJAS

                                    2
                                                                                  18‐1120‐cv
                                  Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

 BARQUERO, HERNAN SOLANO CASTRO, RAFAEL SOLANO SABORIO, MARIO TORRES
  MORA, RAFAEL VALDERRAMA GRANADOS, GREIVIN VALENCIA LOPEZ, MELECIO
   VARELA SOTO, VICTOR VARGAS ARIAS, NIXON MODESTO ALVARAD VASQUEZ,
    ROBERTO WILLIAM BARONA BENITES, LAURO OLMEDO CHACON QUICHIMBO,
  FRANCISCO DOMINGO CONTRER ESPINOZA, EPIFANIO ARCHIBALDO CORN LEON,
MANUEL GUAICHA CARDENAS, JUAN DE JESUS HUERTA MOSQUERA, MIGUEL ANGEL
 INIGUEZ OCHOA, HUGO EBERIO LEON VELEZ, MILTON MEDARDO MAZA VIVANCO,
    ROSARIO AVELINO NICANOR VIRGILIO, GALO MIGUEL ORBE VALENCIA, JOSE
  NICANOR PACHECO URGILES, ERICK FRANKLIN PALOMI ROMERO, ANGEL RAFAEL
  ROMERO CASTRO, LUIS VINICIO SALVATI VILLA, MIGUEL ANGEL SARAGURO, JOSE
FERNANDO SARMIE CABRERA, LUIS GILBERTO VASQUE LOPEZ, EUGENIO APOLINARIO
 VILL PRIMITIVO, MAURO GREGORIO ZERDA GUERRA, BELISARIO ATENCIO MUNOZ,
LUIS ALBERTO BARRIA ARAUZ, BENEDICTO CORELLA VASQUEZ, HUMBERTO DEL CID
    QUINTERO, ABEL GALLARDO CONCEPCION, ALCIBIADES GOMEZ QUIEL, CIRO
GUTIERREZ CORTEZ, SALVADOR MILLAN PENALBA, MANUEL MAYORGA MOREDIBU,
 FELIX ANTONIO QUIROZ MORANTE, EMILIANO VEGA MORALES, GONZALEZ ARAYA
   FRANKLIN, GERMAN EDUARDO BRAVO VALDERRAMOS, EDWIN CERDAS MASIS,
 JORGE LUIS CORDERO BAQUERO, JOHNNY ESPINOZA GAMBOA, ESNEY HERNANDEZ
   FAJARDO, JIMENEZ RAMIREZ GILBERTO, ALVARADO RODRIGUEZ WILBERT, JOSE
    MANUEL SALAZAR BRENES, AUDIT VARGAS ROBLES, ELVIN VARGAS BLANCO,
    ROLANDO VILLEGAS JIMENEZ, ELEVIO VINDAS ZAMORA, DOUGLAS ROLANDO
 SANCHEZ, VICENTE BARRIA ARAUZ, GENARO BONILLA QUINTERO, NOEL ENRIQUE
   VALDES RODRIGUEZ, MARIO ESTEBAN CACERAS HERNANDEZ, TOMAS ALBERTO
  CEDENO RODRIGUEZ, WILFREDO GOMEZ VARGAS, EVIDELIO GONZALEZ ACOSTA,
 EDWIN ENUVIN GUERRA GONZALEZ, JUAN DEDIOS BAUTISTA SANCHEZ, RONALDO
       MORALES VARGAS, LIONEX MORALES MONTENEGRO, ALBERTO PINEDA
   MARQUINEZ, RAFAEL PINEDA MARQUINEZ, FELIX ANTONIO PINEDA ESPINOSA,
ERICK ELIAS PINEDA JURADO, PABLO RIVERA BUICOBO, ISRAEL SANCHEZ GONZALEZ,
                           ADOLFO VEGA GUERRA,

                                 Plaintiffs ‐ Appellees,

                                    v.

  OCCIDENTAL CHEMICAL CORPORATION, INDIVIDUALLY AND AS A SUCCESSOR TO
   OTHER OCCIDENTAL CHEMICAL COMPANY OTHER OCCIDENTAL CHEMICAL


                                    3
                                                                                        18‐1120‐cv
                                        Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

 AGRICULTURAL PRODUCTS INC. OTHER HOOKER CHEMICAL AND PLASTICS OTHER
 OCCIDENTAL CHEMICAL COMPANY OF TEXAS OTHER BEST FERTILIZER COMPANY,

                                     Defendant ‐ Appellant.


Before:      SACK, RAGGI, and CARNEY, Circuit Judges.

      The plaintiffs filed this action in 2012 in the United States District Court for

the District of Delaware, alleging that several American corporations, including

Occidental Chemical Corporation, manufactured, sold, distributed, and used

dibromochloropropane (DBCP), a pesticide to which the plaintiffs were exposed

when they worked on banana plantations in Central and South America between

the 1960s and the 1980s. They allege that as a result of their exposure, they

suffered various injuries, including sterility, sexual and reproductive

abnormalities, and cancer. The plaintiffsʹ claims against Occidental were

transferred to the Southern District of New York in 2017, after which Occidental

filed a motion for judgment on the pleadings, arguing, inter alia, that the

plaintiffsʹ claims were time‐barred under New Yorkʹs three‐year statute of

limitations for personal‐injury suits. On January 10, 2018, the district court (Paul

A. Engelmayer, Judge) denied Occidentalʹs motion, holding that the plaintiffsʹ




                                          4
                                                                                         18‐1120‐cv
                                         Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

claims were tolled between 1993 and 2010 by the pendency of a related class

action in Texas.

      The questions on interlocutory appeal are (1) whether New York law

recognizes ʺcross‐jurisdictional class action tolling,ʺ i.e., tolling of a New York

statute of limitations by the pendency of a class action in another jurisdiction;

and (2) whether, under New York law, a non‐merits dismissal of class

certification can terminate class action tolling, and if so, whether the Orders at

issue did so. New Yorkʹs courts have yet to address these questions. A decision

on these questions, either of which may be dispositive of this appeal, requires

value judgments and important public policy choices that the New York State

Court of Appeals is better suited to make than is this Court. We therefore

CERTIFY the questions to the New York Court of Appeals.

                                        JOHN P. ELWOOD, Vinson & Elkins LLP,
                                        Washington, DC (D. Ferguson McNiel, III,
                                        Vinson & Elkins LLP, Houston, TX,
                                        Timothy Jay Houseal, Young Conaway
                                        Stargatt & Taylor, LLP, Wilmington, DE, on
                                        the brief), for Defendant‐Appellant.
                                        JONATHAN S. MASSEY, Massey & Gail LLP,
                                        Washington, DC (Paul J. Berks, Massey &
                                        Gail LLP, Chicago, IL, Scott M. Hendler,
                                        Hendler Flores Law PLLC, Austin TX, on
                                        the brief), for Plaintiffs‐Appellees.


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                                                                                         18‐1120‐cv
                                         Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

SACK, Circuit Judge:

      This appeal presents two state‐law questions that neither this Court nor

New Yorkʹs courts have addressed: (1) whether New York law recognizes ʺcross‐

jurisdictional class action tolling,ʺ i.e., tolling of a New York statute of limitations

by the pendency of a class action in another jurisdiction; and (2) whether a non‐

merits dismissal of class certification can terminate class action tolling, and if so,

whether the Orders at issue here, which include a ʺreturn jurisdictionʺ clause, did

so where the plaintiffs filed a motion to reinstate their claims within six months

of the caseʹs dismissal.

      The plaintiffs are agricultural workers from Costa Rica, Ecuador, and

Panama, who allegedly suffered adverse health effects from exposure to the

pesticide dibromochloropropane (ʺDBCPʺ) between the 1960s and the 1980s,

while working on banana plantations in Central and South America. In 2012, the

plaintiffs filed a putative class action in the United States District Court for the

District of Delaware against DBCP manufacturers and distributors, including

Occidental Chemical Corp. (ʺOccidentalʺ), as well as companies that owned or

operated the farms where the plaintiffs worked. Their claims against Occidental

were transferred by the Delaware district court to the Southern District of New

York in May 2017.
                                           6
                                                                                        18‐1120‐cv
                                        Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

      Occidental filed a motion for judgment on the pleadings, arguing, inter alia,

that the plaintiffsʹ claims were time‐barred under New Yorkʹs three‐year statute

of limitations for personal‐injury suits. The district court (Paul A. Engelmayer,

Judge) denied Occidentalʹs motion, concluding that the plaintiffsʹ claims were

tolled between 1993 and 2010 because of the pendency of a putative class action

filed in Texas state court in 1993 (the ʺTexas Actionʺ). The district courtʹs

decision was based on its view that the New York State Court of Appeals would

likely (1) permit ʺcross‐jurisdictional tolling,ʺ the tolling of claims in New York

during the pendency of a class action filed in another jurisdiction; and (2) decide

that the dismissal of the Texas Action on the basis of forum non conveniens and the

denial of class certification as moot did not terminate class action tolling.

      On appeal, Occidental challenges both conclusions. It argues that

although New York courts have adopted the class action tolling doctrine

established under different circumstances in American Pipe Construction Co.

v. Utah, 414 U.S. 538 (1974), the New York Court of Appeals likely would not

apply that doctrine in the cross‐jurisdictional context. In the alternative,

Occidental asserts that even if New York law permits cross‐jurisdictional class

action tolling, the plaintiffsʹ claims would still be untimely because the 1995



                                          7
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                                          Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

dismissal of the Texas Action on the grounds of forum non conveniens terminated

any such tolling.

      The district court lacked the authority to tender the issues of New York

law raised before it to the New York Court of Appeals; we, though, have the

ability to do so. See New York Court of Appeals Rules, § 500.27;1 United States

Court of Appeals for the Second Circuit Rule 27.2. The principal questions on

appeal have important implications that have yet to be addressed by New Yorkʹs

appellate courts. In light of the dearth of precedential opinions, and the

potentially far‐reaching consequences for New York courts of the answer to these

questions, we elect not to attempt to resolve them in the first instance, but

instead to invite the Court of Appeals to address them if it so wishes. We

therefore certify the following two questions to the Court of Appeals and stay

resolution of this case in the interim:

      1. Does New York law recognize cross‐jurisdictional class action tolling, as
         described in this opinion?


 1    Whenever it appears to the Supreme Court of the United States, any United
      States Court of Appeals, or a court of last resort of any other state that
      determinative questions of New York law are involved in a case pending before
      that court for which no controlling precedent of the [New York] Court of
      Appeals exists, the court may certify the dispositive questions of law to the [New
      York] Court of Appeals.
N.Y. Comp. Codes R. & Regs. tit. 22, § 500.27(a).
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                                          Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

      2. Can a non‐merits dismissal of class certification terminate class action
         tolling, and if so, did the Orders at issue here do so?

                                   BACKGROUND

      General Factual Background2

      Between 1965 and at least 1985, Occidental and other U.S.‐based

corporations manufactured and distributed DBCP, a pesticide that was injected

into the soil or sprayed over banana plantations in Costa Rica, Ecuador, and

Panama, among other countries. The plaintiffs lived and worked on those

plantations. The plaintiffs allege that they were never warned of the health risks

posed by exposure to DBCP and were not instructed or encouraged to wear any

protective gear to prevent skin absorption or inhalation of the pesticide. They

allege that they suffered various injuries resulting from their exposure to DBCP,

including, inter alia, sterility, low sperm quantity and reduced sperm quality,

liver damage, an increased risk of cancer, vision loss from cornea damage,

chronic skin disorders, and compromised pulmonary and respiratory systems.




 2The facts set forth in this opinion are drawn from the Complaint, originally filed on
June 1, 2012, in the United States District Court for the District of Delaware. Appʹx 14.
That remains the operative Complaint in the action against Occidental before us, which
was transferred to the Southern District of New York in May 2017. See id. at 113, 137.
                                            9
                                                                                         18‐1120‐cv
                                         Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

      The risks associated with exposure to DBCP were allegedly known by

some manufacturers as early as 1961. By 1976, the U.S. Environmental Protection

Agency (ʺEPAʺ) had identified DBCP as a suspected carcinogen. In July 1977,

Occidental allegedly discovered that 35 of 114 workers at its Lathrop, California

manufacturing plant were sterile. In September 1977, the EPA prohibited

DBCPʹs use everywhere but in a few locations in Hawaii, and even there only

under restricted conditions. Occidental nevertheless continued to manufacture,

sell, market, and distribute DBCP until at least 1979 for agricultural use,

including on banana plantations in Costa Rica, Panama, and Ecuador.

       Procedural History

      This case is the latest in a series of putative class actions filed by

agricultural workers from Central and South America against Occidental and

others for DBCP‐related injuries. The plaintiffsʹ timeliness argument relies

heavily on the existence of two previous actions: one filed in Texas and the other

in Hawaii. We therefore summarize those actionsʹ procedural histories before

turning to the procedural history of the case at bar.




                                          10
                                                                                          18‐1120‐cv
                                          Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

             1.     Texas and Hawaii Class Actions

      In August 1993, a group of plaintiffs brought a putative class action in

Texas state court asserting claims against Occidental and others purporting to be

on behalf of all persons exposed to DBCP between 1965 and 1990 in several

countries, including Costa Rica, Panama, and Ecuador.3 In April 1994, the

defendants impleaded Dead Sea Bromine, a corporation indirectly owned in part

by the State of Israel, which removed the case to federal court in the Southern

District of Texas. The district court consolidated the action with a similar action

captioned Delgado v. Shell Oil Co., No. H‐94‐1337 (S.D. Tex.).

      On April 17, 1995, the defendants filed a motion to dismiss the Texas

actions on the grounds of forum non conveniens. The district court granted the

motion on July 11, 1995 (the ʺJuly 1995 Orderʺ). The court concluded, as an

initial matter, that Dead Sea Bromine was an agent of a foreign state and that the

court therefore could exercise subject matter jurisdiction under the Foreign

Sovereign Immunities Act, 28 U.S.C. §§ 1602‐1611 (the ʺFSIAʺ). Delgado v. Shell

Oil Co., 890 F. Supp. 1324, 1336‐38, 1372 (S.D. Tex. 1995). The court then




 3The case was originally captioned Bermudez v. Shell Oil Co., No. 93‐C‐2290 (23rd Dist.
Ct., Brazoria Cty., Tex.), and subsequently renamed, Carcamo v. Shell Oil Co., No. 93‐C‐
2290 (23rd Dist. Ct., Brazoria Cty., Tex.).
                                           11
                                                                                        18‐1120‐cv
                                        Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

concluded that dismissal was appropriate because adequate alternative fora

existed in the plaintiffsʹ home countries, and the balance of public and private

interests tipped strongly in favor of dismissal. Id. at 1358‐72.

      The district court conditioned dismissal on the defendants ʺagree[ing] to

waive all jurisdictional and certain limitations‐based defenses.ʺ Delgado, 890 F.

Supp. at 1372. It also noted that dismissal on the basis of forum non conveniens

was proper only insofar as ʺthe courts in [the countries where the plaintiffs

resided or were injured] do not refuse to exercise jurisdiction over these actions.ʺ

Id. It ʺdenied as mootʺ ʺall pending motions . . . not otherwise expressly

addressed,ʺ which included motions for class certification. Id. at 1375. The court

did not specifically address class certification, but denied it alongside all other

ʺpending motionsʺ as an administrative matter instead. The court inserted a

ʺreturn jurisdictionʺ clause at the end of its order, however, which stated:

             Notwithstanding the dismissals that may result from this
             Memorandum and Order, in the event that the highest court
             of any foreign country finally affirms the dismissal for lack of
             jurisdiction of any action commenced by a plaintiff in these
             actions in his home country or the country in which he was
             injured, that plaintiff may return to this court and, upon
             proper motion, the court will resume jurisdiction over the
             action as if the case had never been dismissed for [forum non
             conveniens].
Id.

                                          12
                                                                                         18‐1120‐cv
                                         Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

      On October 27, 1995, the defendants having met the district courtʹs

conditions for dismissal, the district court entered a ʺfinal judgmentʺ dismissing

the action (together with the July 1995 Order, the ʺ1995 Ordersʺ). The plaintiffs

responded by filing an appeal with the United States Court of Appeals for the

Fifth Circuit, which challenged the district courtʹs exercise of subject matter

jurisdiction under the FSIA.

      After their claims were thus dismissed by the district court, the Costa Rica

plaintiffs filed suit in Costa Rica. The Costa Rica courts dismissed their claims

for lack of personal jurisdiction, however. The decision was affirmed by the

Costa Rica Supreme Court.

      On April 1, 1996, while the appeal to the Fifth Circuit was pending, the

Costa Rica plaintiffs filed a motion in the Southern District of Texas to reinstate

their claims pursuant to the ʺreturn jurisdictionʺ clause in the July 1995 Order.

The district court denied the motion without prejudice, deferring judgment until

after the Fifth Circuit resolved the plaintiffsʹ then‐pending appeal. On October

19, 2000, the Fifth Circuit affirmed the dismissal of the plaintiffsʹ claims,

concluding, in relevant part, that Dead Sea Bromide was an instrumentality of

the State of Israel, and that the district court therefore had not erred in exercising



                                          13
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                                          Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

subject matter jurisdiction. Delgado v. Shell Oil Co., 231 F.3d 165, 176‐77 (5th Cir.

2000).

         In 1997, another group of plaintiffs filed a DBCP‐related class action in

Hawaii state court captioned Patrickson v. Dole Food Co., No. 07‐1‐0047 (Haw. Cir.

Ct. Oct. 3, 1997). As the defendants in the Texas Action had done, the defendants

in the Hawaii litigation, which included Occidental, impleaded Dead Sea

Bromine. They also impleaded a second Israeli entity, Bromine Compounds, Ltd.

The Israeli companies, in turn, removed the case to federal court.

         On March 8, 1999, the United States District Court for the District of

Hawaii dismissed the plaintiffsʹ claims on the basis of forum non conveniens. The

plaintiffs appealed to the United States Court of Appeals for the Ninth Circuit,

which reversed and remanded the case to the district court with instructions to

remand the case in turn to Hawaii state court, concluding that the district court

lacked subject matter jurisdiction under the FSIA. Patrickson v. Dole Food Co., 251

F.3d 795, 808‐09 (9th Cir. 2001). The defendants appealed, and the Supreme

Court granted their petition for writ of certiorari on June 28, 2002. Dole Food Co. v.

Patrickson, 536 U.S. 956 (2002).




                                           14
                                                                                          18‐1120‐cv
                                          Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

      The Supreme Court agreed with the Ninth Circuit. Contrary to the Fifth

Circuitʹs holding in Delgado, 231 F.3d at 176‐77, it concluded that neither Dead

Sea Bromine nor Bromine Compounds, Ltd. was an instrumentality of the State

of Israel because the State of Israel did not own a majority of either companyʹs

shares. See Dole Food Co. v. Patrickson, 538 U.S. 468, 477 (2003). Therefore, neither

entity could invoke the FSIA provisions allowing removal of state‐court actions

to federal court, and the district court could not exercise subject matter

jurisdiction over the plaintiffsʹ claims. Id. at 480 (ʺ[W]e hold . . . that a foreign

state must itself own a majority of the shares of a corporation if the corporation is

to be deemed an instrumentality of the state under the provisions of the FSIA.ʺ).

      The Hawaii plaintiffs then continued to pursue their class action in Hawaii

state courts. In 2008, a Hawaii court denied the plaintiffsʹ motion for class

certification. In 2009, it granted the defendantsʹ motion for summary judgment,

concluding that the plaintiffsʹ claims were time‐barred. In 2014, the Intermediate

Court of Appeals of Hawaii affirmed. Patrickson v. Dole Food Co., Inc., 330 P.3d

389 (Haw. Ct. App. 2014). The following year, the Supreme Court of Hawaii

vacated the Intermediate Courtʹs judgment, concluding that (1) Hawaii law

recognizes cross‐jurisdictional tolling, and (2) the July 1995 Order did not



                                           15
                                                                                        18‐1120‐cv
                                        Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

terminate such tolling because the denial of class certification was ʺnot expressʺ

and did not ʺput putative members of the class on notice that the Hawaiʹi state

statute of limitations had begun to run against them.ʺ Patrickson v. Dole Food Co.,

368 P.3d 959, 970‐71 (2015) (internal quotation marks omitted). The case

continues to be litigated in Hawaii state court.

      Meanwhile, in the Texas Action, the Carcamo/Delgado plaintiffs filed a

motion on May 13, 2003, requesting that the district court vacate its July 1995

Order in light of the Supreme Courtʹs ruling that Dead Sea Bromine was not an

instrumentality of the State of Israel. On March 12, 2004, the district court denied

the motion, reasoning that the change in law did not require vacatur. It issued a

final judgment denying the plaintiffsʹ motion to vacate the July 1995 Order but

indicated that it would consider remanding the case to state court upon the filing

of a properly supported motion.

      On March 23, 2004, the Costa Rica plaintiffs filed a motion requesting that

the district court reinstate the case and remand it to Texas state court. On June

18, 2004, the district court granted the plaintiffsʹ motion. It determined that

under the ʺreturn jurisdiction clauseʺ in the July 1995 Order, it had jurisdiction

ʺto ensure that an American forum remain[ed] available to adjudicate plaintiffsʹ



                                         16
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                                         Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

claims if and when the highest court of a foreign country dismisse[d] them for

lack of jurisdiction,ʺ and that the plaintiffsʹ motion was ʺa direct continuation of

the prior proceedings over which the court expressly stated its intent to retain

jurisdiction.ʺ Delgado v. Shell Oil Co., 322 F. Supp. 2d 798, 813‐15 (S.D. Tex. 2004).

It decided that under 28 U.S.C. § 1447(c), it had power to remand a case ʺat any

time before final judgment,ʺ and concluded that the forum non conveniens

dismissal ʺwas not a ʹfinal judgment.ʹʺ Id. at 816 (quoting 28 U.S.C. § 1447(c)).

Because Patrickson had ʺterminated whatever ancillary jurisdiction existed from

the courtʹs original (now [held] erroneous) assertion of subject matter jurisdiction

over this controversy,ʺ id., it remanded the case to Texas state court, id. at 816‐17.

      On April 26, 2005, following remand, the 23rd District Court of Brazoria

County, Texas, granted the plaintiffsʹ motion to reinstate their claims. In

September 2009, the plaintiffs filed a motion for class certification. The following

month, the defendants attempted once more—this time unsuccessfully—to

remove the case to federal court. On June 3, 2010, the Texas state court denied

the plaintiffsʹ motion for class certification. The plaintiffs voluntarily dismissed

their claims the next day.




                                          17
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                                        Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

             2.    Instant Action

      In June 2011, approximately one year after the Texas state court had

denied the Carcamo/Delgado plaintiffsʹ motion for class certification, seven DBCP‐

related lawsuits were filed in the United States District Court for the Eastern

District of Louisiana. In September 2012, the district court dismissed those cases

on statute‐of‐limitations grounds under Louisiana law. Chaverri v. Dole Food Co.,

896 F. Supp. 2d 556, 568‐74 (E.D. La. 2012).

      In June 2012, while the Louisiana cases remained pending, the plaintiffs in

the instant action filed eight complaints in the United States District Court for the

District of Delaware and one in Delaware state court. In November 2012, the

federal district court consolidated the cases before it into two actions, captioned

Marquinez v. Dole Food Co., No. 12‐cv‐695 (D. Del.), and Chavez v. Dole Food Co.,

No. 12‐cv‐697 (D. Del.).

      The Marquinez defendants filed a motion for summary judgment, which

the district court granted, concluding that the 1995 Order dismissing the Texas

Action on the basis of forum non conveniens had terminated class action tolling.

Marquinez v. Dole Food Co., 45 F. Supp. 3d 420, 424‐25 (D. Del. 2014). The

plaintiffs appealed the judgment to the Third Circuit, which certified the



                                         18
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                                        Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

following question to the Delaware Supreme Court: ʺDoes class action tolling

end when a federal district court dismisses a matter for forum non conveniens and,

consequently, denies as moot all pending motions . . . even where the dismissal

incorporated a return jurisdiction clause . . . ?ʺ Marquinez v. Dow Chem. Co., 183

A.3d 704, 705 (Del. 2018) (internal quotation marks omitted). The Delaware

Supreme Court accepted certification and on March 15, 2018, concluded that the

1995 Order did not terminate tolling because it did not ʺclearly, unambiguously,

and finally den[y] class action status.ʺ Id. at 711. On May 29, 2018, after

receiving the Delaware Supreme Courtʹs response to the certified question, the

Third Circuit vacated the district courtʹs grant of summary judgment and

remanded the case to the district court for further proceedings. Marquinez v. Dole

Food Co., 724 F. Appʹx 131, 132 (3d Cir. 2018).

      Separately, in Chavez, Occidental filed a motion to dismiss for lack of

personal jurisdiction, which the district court granted in part on May 4, 2017.

The district court simultaneously transferred the claims against Occidental to the

United States District Court for the Southern District of New York. On

September 1, 2017, Occidental filed a motion for judgment on the pleadings,

arguing that the plaintiffsʹ claims were time‐barred. The district court (Paul A.



                                         19
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                                        Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

Engelmayer, Judge) denied the motion on January 10, 2018, concluding that

(1) the New York Court of Appeals would likely adopt cross‐jurisdictional

tolling, and (2) the July 1995 Order did not terminate tolling because it did not

address class certification on the merits and contained a ʺreturn jurisdiction

clauseʺ that anticipated the actionʹs reinstatement. Chavez v. Occidental Chem.

Corp., 300 F. Supp. 3d 517, 534, 537 (S.D.N.Y. 2018). In so ruling, the district court

acknowledged that its conclusion regarding cross‐jurisdictional class action

ʺinvolves a controlling question of law as to which there is substantial ground for

difference of opinion and that an immediate appeal from the order may

materially advance the ultimate termination of the litigation.ʺ Id. at 540 (quoting

28 U.S.C. § 1292(b)). The district court then denied Occidentalʹs motion for

reconsideration, see Chavez v. Occidental Chem. Corp., No. 17 Civ. 3459 (PAE), 2018

WL 620488, at *4, 2018 U.S. Dist. LEXIS 14522, at *17 (S.D.N.Y. Jan. 29, 2018), and

Occidental moved for leave to file an interlocutory appeal, which this Court

granted on April 18, 2018.

                                   DISCUSSION

      Occidental argues that the district court erred in denying its motion for

judgment on the pleadings because, in its view, New York law does not permit



                                          20
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                                           Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

cross‐jurisdictional class action tolling, and, even if it did, such tolling would

have ended in 1995, when the district court dismissed the Texas Action on the

basis of forum non conveniens. The plaintiffs, unsurprisingly, disagree.

          For the following reasons, we decline to determine for ourselves, at least at

this juncture, whether New York law recognizes cross‐jurisdictional tolling and,

if so, whether the 1995 Orders terminated tolling in this case. We certify both

questions to the New York State Court of Appeals instead.

     I.      Standard of Review

          We review de novo a district courtʹs decision on a motion for judgment on

the pleadings pursuant to Rule 12(c). L‐7 Designs, Inc. v. Old Navy, LLC, 647 F.3d

419, 429 (2d Cir. 2011). In deciding a Rule 12(c) motion, we ʺaccept all factual

allegations in the complaint as true and draw all reasonable inferences in [the

plaintiffsʹ] favor.ʺ Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009).


    II.      Certification

          Section 27.2 of the Second Circuitʹs Local Rules permits us, ʺ[i]f state law

permits,ʺ to ʺcertify a question of state law to that stateʹs highest court.ʺ 2d Cir.

R. 27.2. New York law allows certification from this Court to the New York

Court of Appeals for ʺdispositive questionsʺ of New York law for which ʺno


                                             21
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                                         Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

controlling precedent of the Court of Appeals exists.ʺ N.Y. Comp. Codes R. &

Regs. tit. 22, § 500.27(a). We have certified questions where, inter alia, ʺstate law

is not clear and state courts have had little opportunity to interpret it.ʺ Briggs

Ave. LLC v. Ins. Corp. of Hannover, 516 F.3d 42, 46 (2d Cir. 2008); see also Tire Engʹg

& Distribution LLC v. Bank of China Ltd., 740 F.3d 108, 114 (2d Cir. 2014) (certifying

questions permitted ʺwhere the New York Court of Appeals has not spoken

clearly on an issue and we are unable to predict, based on other decisions by

New York courts, how the Court of Appeals would answer a certain questionʺ).

      Before we certify a question, then, we consider ʺ(1) whether the New York

Court of Appeals has addressed the issue and, if not, whether the decisions of

other New York courts permit us to predict[4] how the Court of Appeals would

resolve it; (2) whether the question is of importance to the state and may require

value judgments and public policy choices; and (3) whether the certified question

is determinative of a claim before us.ʺ Barenboim v. Starbucks Corp., 698 F.3d 104,

109 (2d Cir. 2012).




 4Presumably the panel meant ʺpredict with confidenceʺ since panels in general, and
we in this case in particular, can make such predictions that we fear, however, are
unreliable because they are based on insufficient state authority.
                                          22
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                                           Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

   III.      Application

    1. Whether New York Law Recognizes Cross‐Jurisdictional Class Action Tolling

          The parties agree that the plaintiffsʹ claims are subject to New Yorkʹs three‐

year statute of limitations for personal injury actions. See Appellant Br. 1, 17 n.6;

Appellees Br. 1, 32. They further agree that the plaintiffs discovered their

injuries—and that their claims therefore accrued under New York law—no later

than August 31, 1993. See N.Y. C.P.L.R. § 214‐c (toxic tort claims accrue upon the

ʺdiscovery of the injury by the plaintiffʺ or ʺthe date when through the exercise of

reasonable diligence such injury should have been discovered by the plaintiff,

whichever is earlierʺ). Their disagreement concerns the tolling of the plaintiffsʹ

claims: whether, under New York law, the 1995 Orders in the Texas Action

suspended the time their claims were running, and, if so, for how long.

          New York courts have adopted the federal law rule espoused by the

Supreme Court in American Pipe, that the pendency of a class action filed (unlike

in the present case) in New York tolls absent class membersʹ claims. See, e.g.,

Cullen v. Margiotta, 811 F.2d 698, 719 (2d Cir. 1987) (ʺNew York courts have . . .

long embraced the principles of American Pipe.ʺ), overruled on other grounds,

Agency Holding Corp. v. Malley‐Duff & Assocs., Inc., 483 U.S. 143 (1987); Osarczuk



                                            23
                                                                                         18‐1120‐cv
                                         Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

v. Associated Univs., Inc., 130 A.D.3d 592, 595, 12 N.Y.S.3d 286, 289 (2d Depʹt 2015)

(explaining that ʺNew York courts have adopted [the American Pipe] ruleʺ such

that ʺcommencement of a class action suit tolls the running of the statute of

limitations for all purported members of the classʺ); Paru v. Mutual of Am. Life Ins.

Co., 52 A.D.3d 346, 348, 863 N.Y.S.2d 151, 152 (1st Depʹt 2008) (noting in dicta that

a putative class action would be tolled due to pendency of an earlier class action

complaint filed in New York).

      New Yorkʹs courts have yet to decide, however, the issue presented in this

appeal: whether New York law recognizes cross‐jurisdictional class action

tolling, i.e., whether an action pursued outside New York tolls the New York

statute of limitations for absent class membersʹ claims in New York courts. See,

e.g., Chavez, 300 F. Supp. 3d at 530 (ʺNew York courts have not squarely

addressed whether New York law permits cross‐jurisdictional tolling.ʺ); Famular

v. Whirlpool Corp., No. 16 Civ. 944 (VB), 2017 WL 2470844, at *7, 2017 U.S. Dist.

LEXIS 8265, at *20 (S.D.N.Y. June 7, 2017) (same); Soward v. Deutsche Bank AG, 814

F. Supp. 2d 272, 281 (S.D.N.Y. 2011) (same).5 The threshold question in this



 5Courts in this Circuit have not arrived at a consensus in predicting whether the New
York Court of Appeals would adopt cross‐jurisdictional tolling. Compare Hart v. BHH,
LLC, 323 F. Supp. 3d 560, 566 (S.D.N.Y. 2018) (predicting that the New York Court of

                                          24
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                                           Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

appeal is whether—despite the dearth of relevant case law—we can determine

with some degree of confidence whether the Court of Appeals would likely

conclude that New York law recognizes such cross‐jurisdictional tolling. See




Appeals would apply cross‐jurisdictional tolling), Chavez, 300 F. Supp. 3d at 530 (same,
and noting that, as of January 2018, ʺ[c]ourts in the [Southern District of New York]
ha[d] split, 2‐2, . . . in their predictions as to whether the New York Court of Appeals
would apply cross‐jurisdictional tolling as a matter of New York lawʺ), Famular v.
Whirlpool Corp., 2017 WL 2470844, at *7‐9, 2017 U.S. Dist. LEXIS 8265, at *19‐23 (S.D.N.Y.
June 7, 2017) (same), and In re LIBOR‐Based Fin. Instruments Antitrust Litig., 2015 WL
6243526, at *145‐46, 2015 U.S. Dist. LEXIS 147561, at *457‐59 (S.D.N.Y. Oct. 20, 2015)
(same), with In re Bear Stearns Cos., Inc. Sec., Derivative, & ERISA Litig., 995 F. Supp. 2d
291, 311‐12 (S.D.N.Y. 2014) (declining to recognize cross‐jurisdictional tolling under
New York law), affʹd on other grounds sub nom. SRM Glob. Master Fund Ltd. Pʹship v. Bear
Stearns Cos. LLC, 829 F.3d 173 (2d Cir. 2016), and Soward, 814 F. Supp. 2d at 281 (same).
        State and federal courts in other jurisdictions have similarly failed to agree on the
significance, for purposes of the cross‐jurisdictional tolling inquiry, of a stateʹs adoption
of American Pipe and its progeny. Compare In re Linderboard Antitrust Litig., 223 F.R.D.
335, 348‐51 (E.D. Pa. 2004) (predicting that the courts in Colorado, Indiana, Kansas,
South Carolina, and Tennessee would adopt cross‐jurisdictional tolling, in part because
they had previously adopted intra‐jurisdictional tolling), Dow Chemical Corp. v. Blanco,
67 A.3d 392, 397 (Del. 2013) (recognizing cross‐jurisdictional tolling under Delaware law
after noting that the American Pipe ʺanalysis is equally sound regardless of whether the
original class action is brought in the same or in a different jurisdiction as the later
individual actionʺ), and Patrickson v. Dole Food Co., 368 P.3d 959, 968‐70 (2015)
(concluding, based in part on Hawaiiʹs adoption of American Pipe, that Hawaii law
permits cross‐jurisdictional tolling), with Clemens v. DaimlerChrysler Corp., 534 F.3d 1017,
1025 (9th Cir. 2008) (declining to read cross‐jurisdictional tolling rule into California law
after noting that ʺ[t]he rule of American Pipe . . . does not mandate cross‐jurisdictional
tolling as a matter of state procedureʺ), Maestas v. Sofamor Danek Grp., Inc., 33 S.W.3d
805, 808 (Tenn. 2000) (declining to recognize cross‐jurisdictional tolling under
Tennessee law after noting the distinctions between cross‐jurisdictional and intra‐
jurisdictional tolling), and Portwood v. Ford Motor Co., 701 N.E.2d 1102, 1104‐05 (Ill. 1983)
(same, under Illinois law).

                                             25
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                                          Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

Barenboim, 698 F.3d at 109; see also, e.g., State Farm Mut. Auto. Ins. Co. v. Mallela,

372 F.3d 500, 505 (2d Cir. 2004) (ʺWhere the substantive law of the forum state is

uncertain or ambiguous, the job of the federal courts is carefully to predict how

the highest court of the forum state would resolve the uncertainty or ambiguity.ʺ

(quoting Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir. 1994)). We

do not think that we can.

      Occidental argues that the New York Court of Appeals would likely reject

cross‐jurisdictional tolling. In its view, the doctrine conflicts with New Yorkʹs

ʺtraditional presumption in favor of reposeʺ and practice of ʺconstru[ing] tolling

doctrines ʹas narrowly as possible,ʹʺ Appellant Br. 24 (quoting Overall v. Estate of

Klotz, 52 F.3d 398, 404 (2d Cir. 1995)), in order to ʺavoid undermining [New

Yorkʹs] important interests in ʹfinality, certainty and predictability,ʹʺ id. (quoting

ACE Secs. Corp. v. DB Structured Prods., Inc., 25 N.Y.3d 581, 593 (2015)). Cross‐

jurisdictional tolling would weaken ʺthe Stateʹs control over the limitations

period for litigation in [New Yorkʹs] courts—one of the most basic and

fundamental aspects of state judicial policy—and subject[] [New York] to the

choices of other sovereignsʹ legislatures and courts.ʺ Id. at 25‐26. It ʺbrings with

it the possibility . . . of ʹsuspending the statute of limitations indefinitely into the



                                           26
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                                         Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

future and, in the process, undermining the very purpose of statutes of

limitations.ʹʺ Id. at 26 (quoting Quinn v. La. Citizens Prop. Ins. Corp., 118 So.3d

1011, 1022 (La. 2012) (brackets omitted)). And, Occidental argues, it invites

forum‐shopping. Id. at 29.

      The plaintiffs assert to the contrary that the New York Court of Appeals

would likely adopt cross‐jurisdictional tolling for the same reason that New York

courts adopted American Pipe tolling: to reduce court congestion and discourage

placeholder lawsuits. Appellees Br. 22‐23. ʺBy recognizing cross‐jurisdictional

tolling, New York furthers its own interest in avoiding duplicative litigation in its

own courts,ʺ a threat to which New York courts are ʺuniquely vulnerableʺ

because New York is ʺthe state of incorporation or principal place of business of

many corporations.ʺ Id. at 32. Therefore, ʺif New York fails to recognize cross‐

jurisdictional tolling, it is more likely than other states to experience preemptive

suits from class members in putative class actions who fear losing access to the

New York forum.ʺ Id. at 33. In response to Occidentalʹs argument that cross‐

jurisdictional tolling would result in an increase in forum‐shopping, the plaintiffs

note that New Yorkʹs borrowing statute, N.Y. C.P.L.R. § 202, protects against

opportunistic filing by prohibiting claims that would be untimely under either



                                          27
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                                        Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

New Yorkʹs or the foreign jurisdictionʹs statutes of limitations. They further note

that data suggest that Occidental overstates the forum‐shopping threat:

ʺ[N]umerous states have adopted cross‐jurisdictional tolling, but Occidental does

not identify a single one that has experienced the flood of stale claims that it

predicts will inundate New York.ʺ Id. at 31.

      New York courtsʹ adoption of American Pipe tolling for New York‐only

cases may be the most persuasive evidence of how the Court of Appeals would

decide this question. As the district court observed, the principles from which

American Pipe tolling derives—fair notice of claims to defendants, reasonable

reliance by putative class members on the pending class action, and judicial

efficiency—ʺapply with equal force in the context of cross‐jurisdictional tolling.ʺ

Chavez, 300 F. Supp. 3d at 532.

      Yet that evidence is insufficient to allow this Court to predict with

sufficient confidence how the New York Court of Appeals would resolve the

matter. Despite some important similarities, American Pipe tolling and cross‐

jurisdictional tolling are different such that adoption of the former does not

necessarily imply adoption of the latter. Unlike American Pipe tolling, cross‐

jurisdictional tolling may ʺrender [a stateʹs] limitations period effectively



                                          28
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                                          Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

dependent on the resolution of claims in other jurisdictions, with the length of

the limitations period varying depending on the efficiency (or inefficiency) of

courts in those jurisdictions.ʺ Wade v. Danek Med., Inc., 182 F.3d 281, 288 (4th Cir.

1999). It may also result in opportunistic filings by forum‐shopping plaintiffs.

Id. at 287. We are not convinced that New York courts would reject cross‐

jurisdictional tolling because of these risks: New York courts have applied N.Y.

C.P.L.R. § 205(a), a statutory provision that tolls claims following certain non‐

merits dismissals, in the cross‐jurisdictional context. See, e.g., Stylianou v. Inc. Vill.

of Old Field, 23 A.D.3d 454, 457, 805 N.Y.S.2d 573, 573 (2d Depʹt 2005). But we

cannot confidently predict, in light of these differences, that the New York Court

of Appeals would adopt cross‐jurisdictional tolling based primarily on its

adoption of American Pipe tolling.

     2. Effect on Cross‐Jurisdictional Tolling of Non‐Merits Denial of Class Certification

      Even if we were able to conclude that the New York Court of Appeals

would likely adopt cross‐jurisdictional tolling, that would not end our inquiry.

We would still have to decide whether the Texas Action tolled the plaintiffsʹ




                                           29
                                                                                           18‐1120‐cv
                                           Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

claims at least until June 1, 2009.6 The plaintiffs assert that the Texas Action

tolled their claims until June 3, 2010, when the Texas state court denied their

motion for class certification on the merits. Occidental argues that the plaintiffsʹ

claims were tolled, if at all, until no later than October 1995, when the Southern

District of Texas issued a final judgment dismissing the Texas Action from

federal court and denying all ʺpending motions,ʺ including class certification, as

moot, notwithstanding the fact that the court did not address the merits of any of

the pending motions. At the core of the partiesʹ disagreement is the effect, for

tolling purposes, of the 1995 Orders dismissing the Texas Action on the basis of

forum non conveniens.

       The Supreme Court has explained that, ʺ[o]nce the statute of limitations

has been tolled, it remains tolled for all members of the putative class until class

certification is denied.ʺ Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 354 (1983).

In Giovanniello v. ALM Media, LLC, 726 F.3d 106 (2d Cir. 2013), we concluded that

ʺAmerican Pipe tolling does not extend beyond the denial of class status,ʺ at which

point ʺ[i]ndividual class members [a]re required . . . to take action to preserve




 6 Because the plaintiffs filed the instant action on June 1, 2012, their claims would be
timely under New Yorkʹs three‐year statute of limitations only if filed on or after June 1,
2009.
                                            30
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                                         Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

their rights or face the possibility that their action could become time barred.ʺ Id.

at 116. We further noted that ʺ[t]he American Pipe rule is based on the idea that

under Rule 23 of the Federal Rules of Civil Procedure, potential class members

are protected by the commencement of a putative class action,ʺ and that ʺ[t]his

objectively reasonable reliance rationale breaks down once the district court

disallows class status.ʺ Id. at 117.

      Neither this Court nor the Supreme Court has determined, however,

whether a denial of class certification must be on the merits in order to terminate

class action tolling. Here, the Southern District of Texas denied class certification

as an administrative matter: Because it concluded that dismissal was justified on

the basis of forum non conveniens, it denied ʺall pending motionsʺ as moot.

Occidental argues that the denial of class status for any reason terminates tolling.

See Appellant Br. 40 (ʺ[T]he underlying reason for the termination of class status

is irrelevant to tolling,ʺ which ʺstops upon denial of the class certification

motion.ʺ). The plaintiffs assert that only a ʺclear and unambiguousʺ denial of

class status on the merits ends tolling, Appellees Br. 49, because ʺ[a]n order that

does not clearly operate to terminate tolling does not adequately put absent class

members on notice of the need to file individual claims to protect their interests,ʺ



                                          31
                                                                                          18‐1120‐cv
                                          Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

id. at 51. They further note that the 1995 Orders did not deny class status on the

merits, and that the July 1995 Order contained a ʺreturn jurisdiction clauseʺ that

authorized the plaintiffs to reinstate the class action if the highest court of any

foreign country affirmed the dismissal of their claims for lack of jurisdiction. Id.

at 53. This, they claim, made it reasonable for them to continue to rely on the

pendency of the Texas Action to toll their claims.

      Existing case law sheds little light on whether a non‐merits denial of class

status necessarily terminates tolling. Few courts have addressed the issue, and

there is no consensus among those that have. Some have held that denial of class

status or dismissal of class action claims does not necessarily terminate tolling.

See, e.g., Betances v. Fischer, 144 F. Supp. 3d 441, 457‐58 (S.D.N.Y. 2015) (explaining

that ʺthe statute of limitations was tolled during the pendency of . . . three

previous actionsʺ because ʺthe appropriateness of a class action had not been

addressed in any of th[os]e . . . actionsʺ); Scott v. District of Columbia, 87 F. Supp.

3d 291, 298 (D.D.C. 2015) (concluding, in relevant part, that tolling did not begin

when the court dismissed the class action claims with leave to amend, but only

when the court dismissed the claims with prejudice). Others have concluded

that the denial of class status for any reason terminates tolling. See, e.g., Collins v.



                                           32
                                                                                          18‐1120‐cv
                                          Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

Village of Palatine, 875 F.3d 839, 841 (7th Cir. 2017), cert. denied, 138 S. Ct. 2014

(2018) (concluding that ʺ[t]olling stops immediately when a class‐action suit is

dismissed—with or without prejudice—before the class is certifiedʺ); Bridges v.

Depʹt of Md. State Police, 441 F.3d 197, 211‐12 (4th Circ. 2006) (noting that ʺ[t]he

American Pipe rule provides a narrow exception to the fixed statutes of

limitations,ʺ and concluding that, even where denial of class certification was

only for administrative purposes, ʺno absentee class member could reasonably

have relied on the named plaintiffsʺ).

      Similarly, courts are divided on the issue of the effect on tolling, if any, of

the ʺreturn jurisdiction clauseʺ in the July 1995 Order. The Delaware Supreme

Court, relying in part on the July 1995 Orderʹs inclusion of a ʺreturn jurisdiction

clauseʺ and the Costa Rica plaintiffsʹ motion to reinstate the action fewer than six

months after the October 1995 dismissal, decided that the Texas court had not

ʺclearly and unambiguously end[ed] the class action as a final matter.ʺ

Marquinez v. Dow Chem. Co., 183 A.3d 704, 713 (Del. 2018). Because, under

Delaware law, ʺcross‐jurisdictional class action tolling ends only when a sister

trial court has clearly, unambiguously, and finally denied class action status,ʺ id.




                                            33
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                                          Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

at 711, the court concluded that ʺclass‐action tolling did not end in 1995,ʺ id. at

713.

       The Fifth Circuit, which examined the issue under Louisiana law, held

otherwise, albeit by non‐precedential unpublished opinion: Even if cross‐

jurisdictional tolling were permissible, and despite the inclusion of a ʺreturn

jurisdiction clauseʺ in the July 1995 Order, ʺdismissal of th[e] suit in 1995 would

have caused the prescriptive period to begin anew.ʺ Chaverri v. Dole Food Co., 546

F. Appʹx 409, 413 (5th Cir. 2013) (per curiam) (characterizing, and agreeing with,

the district courtʹs conclusion). The Chaverri court largely adopted the reasoning

of the United States District Court for the Eastern District of Louisiana in the case

on appeal. It had concluded that Louisiana courts ʺd[o] not make any distinction

based upon the type or manner of denial, nor d[o] they require that the denial be

on the merits.ʺ Chaverri v. Dole Food Co., 896 F. Supp. 2d 556, 568‐69 (E.D. La.

2012), affʹd, 546 F. Appʹx 409 (5th Cir. 2013).7




 7 The United States District Court for the Eastern District of Louisiana concluded, in
the alternative, that even if the July 1995 Order had not terminated tolling, the October
1995 ʺfinal judgmentʺ did. Chaverri v. Dole Food Co., 896 F. Supp. 2d 556, 569 (E.D. La.
2012) (ʺPer Louisiana law, the entrance of the final judgment absolutely stopped the
pendency of the case and restarted prescription.ʺ).
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                                         Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

       Finally, the Hawaii Supreme Court, which, in the litigation described

above, examined the issue under Hawaii law, explained that ʺthe pendency of a

class action in another jurisdiction operates to toll our stateʹs applicable statute(s)

of limitations until the court in our sister jurisdiction issues an order expressly

denying a motion for class certification.ʺ Patrickson v. Dole Food Co., 368 P.3d 959,

971 (2015). Applying that rule to the 1995 Orders, the court concluded—without

specific reference to the ʺreturn jurisdiction clauseʺ—that the July 1995 Order

ʺwas not an express denial of class certification; therefore, July 11, 1995 is not the

date our state statute of limitations began to run again,ʺ and the plaintiffsʹ claims

were timely filed. Id. It went on to note, in dicta and with little analysis, that

ʺthe Texas district courtʹs October 27, 1995 final judgment dismissing [the Texas

Action] for [forum non conveniens] clearly denied class certification and triggered

the resumption of our state statute of limitations.ʺ Id.

       We are aware of no controlling authority that would provide us with

reliable guidance in determining whether, if New York law recognized cross‐

jurisdictional tolling, the 1995 Orders, which denied class status, not on the

merits but as moot, and contained a ʺreturn jurisdiction clause,ʺ would terminate

tolling.



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                                            Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

     3. Certification of These Two Questions to the New York Court of Appeals

       In deciding whether to certify a question to the Court of Appeals, we ask

(1) whether the Court of Appeals has addressed the issue and, if not, whether we

can confidently predict, based on the decisions of other New York courts, how

the Court of Appeals would resolve it; (2) whether the question raises an

important issue that requires value judgments and public policy choices; and

(3) whether the question is dispositive. See Barenboim, 698 F.3d at 109. We

conclude that certification of both questions presented on appeal is appropriate:

       First, as discussed above, New York courts have yet to address either

question. Second, either question may be dispositive: If New York law does not

recognize cross‐jurisdictional tolling, or if either of the 1995 Orders terminates

tolling, the plaintiffsʹ claims would be time‐barred. Third, answering these

questions will likely require significant policy judgments. The Supreme Court

has long noted the public policy aspects of decisions regarding the scope of, and

exceptions to, tolling doctrines and statutes of limitations.8 Insofar as the



 8 See, e.g., Rotella v. Wood, 528 U.S. 549, 555 (2000) (limitations provisions serve various
policy goals, including ʺrepose, elimination of stale claims, and certainty about a
plaintiffʹs opportunity for recovery and a defendantʹs potential liabilitiesʺ); Hardin v.
Straub, 490 U.S. 536, 543 (1989) (ʺ[a] Stateʹs decision to toll the statute of
limitations . . . does not frustrate § 1983ʹs compensation goal [but instead] enhances the

                                             36
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                                             Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

questions presented on appeal implicate the scope and viability of a tolling

doctrine that New York courts have yet to adopt, the answers to these questions

implicate the balance between victimsʹ interest in redress, defendantsʹ interest in

repose and accurate factfinding, and the publicʹs interest in a well‐functioning

judicial system. And insofar as cross‐jurisdictional tolling might expose New

York to long periods of tolling based on class actions filed in other jurisdictions,

they directly affect New York Stateʹs ʺinterest in managing its own judicial

system.ʺ Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1025 (9th Cir. 2008).

       We conclude that the New York Court of Appeals is far better suited than

we are to decide whether, under the circumstances presented, New York law

recognizes cross‐jurisdictional tolling, and when such tolling ends. See Casey v.

Merck & Co., Inc., 653 F.3d 95, 103‐04 (2d Cir. 2011) (certifying cross‐jurisdictional

tolling question to the Virginia Supreme Court because of the ʺlack of

authoritative state court decisions on point,ʺ the issueʹs ʺconsiderable importance




inmateʹs ability to bring suit and recover damages for injuriesʺ); Mills v. Habluetzel, 456
U.S. 91, 99 (1982) (long periods of limitations may ʺpresent a real threat of loss or
diminution of evidence, or an increased vulnerability to fraudulent claimsʺ); Bd. Of
Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S. 478, 487 (1980) (statutes of limitations
ʺhave long been respected as fundamental to a well‐ordered juridical systemʺ).
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                                         Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

to the state,ʺ and the likelihood that certification would ʺresolve th[e] litigation as

the issue[] to be certified [was] determinative of th[e] appealʺ).

                                  CONCLUSION

      Determination of the applicable law ʺrequires value judgments and

important public policy choices that the New York Court of Appeals is better

situated than we to make.ʺ Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 42

(2d Cir. 2010). We therefore certify the following two questions to the New York

Court of Appeals:


    1. Does New York law recognize cross‐jurisdictional class action tolling, as
       described in this opinion?

    2. Can a non‐merits dismissal of class certification terminate class action
       tolling, and if so, did the Orders at issue here do so?

      Should the New York Court of Appeals choose to grant certification to

either or both questions, then it is, of course, invited to address any other issues it

deems germane or to reframe the question or questions as it deems appropriate.

Consistent with our prior practice, ʺwe do not intend to limit the scope of the

Court of Appealsʹ analysis through the formulation of our question[s], and we

invite the Court of Appeals to expand upon or alter th[ese] question[s].ʺ

10 Ellicott Square Court Corp. v. Mountain Valley Indem. Co., 634 F.3d 112, 126 (2d

Cir. 2011).
                                          38
                                                                                         18‐1120‐cv
                                         Tobias Bermudez Chavez, et al. v. Occidental Chemical Corp.

      Pursuant to N.Y. Comp. Codes R. & Regs. tit. 22, § 500.27, and Second

Circuit Rule 27.2, it is hereby ORDERED that the Clerk of the Court transmit to

the Clerk of the New York Court of Appeals this opinion as our certificate,

together with a complete set of the briefs, appendices, and record filed by the

parties in this Court. We direct the parties to bear equally any fees and costs that

may be imposed by the New York Court of Appeals in connection with this

certification. This panel will retain jurisdiction of the appeal after disposition of

this certification by the New York Court of Appeals.




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