Courts can’t invoke the doctrine of equitable tolling to set aside the 14-day deadline for seeking appellate review of a decision granting or denying class certification, the U.S. Supreme Court ruled Feb. 26 in a unanimous opinion authored by Justice Sonia Sotomayor in Nutraceutical Corp. v. Lambert.
The case involved a dietary supplement—called Cobra Sexual Energy—but the underlying facts of the case were irrelevant to the decision. In fact, this is all that the Supreme Court said about them: “In March 2013, respondent Troy Lambert sued petitioner Nutraceutical Corporation in federal court, alleging that its marketing of a dietary supplement ran afoul of California consumer-protection law.”
Clock Started After District Court Order
Federal Rule of Civil Procedure 23(f) specifies that a party wishing to seek interlocutory review of an order granting or denying class certification must file a petition for review “within 14 days after the order is entered.” The Supreme Court held that, although this rule is not jurisdictional and therefore can be waived, it is otherwise “mandatory” and therefore not subject to equitable tolling.
The issue arose after the district court entered an order decertifying a class that it had previously certified. The entry of that order started the clock on the 14-day period for filing a petition for review under Rule 23(f).
During the 14-day period, Lambert notified the district court that he wanted to file a motion for reconsideration. The court gave him ten days to do so. When he filed the motion for reconsideration on the tenth day, the 14-day period for filing a petition for review had expired. After the district court denied the motion for reconsideration, Lambert filed his petition for review.
In opposing review, Nutraceutical contended that the petition was untimely. The Ninth Circuit nonetheless granted review, concluding that the 14-day deadline was subject to equitable tolling. The court proceeded to reverse the order decertifying the class.
The Supreme Court unanimously reversed the Ninth Circuit’s decision. The opinion explained that “[w]here the pertinent rule or rules invoked show a clear intent to preclude tolling, courts are without authority to make exceptions merely because a litigant appears to have been diligent, reasonably mistaken, or otherwise deserving.”
Here, the court continued, “the governing rules speak directly to the issue of Rule 23(f)’s flexibility and make clear that its deadline is not subject to equitable tolling.” In particular, read together, Rule 23(f) itself and Federal Rules of Appellate Procedure 5(a)(2) and 26(b)(1) “express a clear intent to compel rigorous enforcement of Rule 23(f)’s deadline, even where good cause for equitable tolling might otherwise exist.”
The court left open whether a 23(f) petition that is filed within 14 days of the denial of a motion for reconsideration that itself is filed within 14 days of entry of an order granting or denying class certification would be timely, noting that this is a question of when the 14-day limit begins to run, not the availability of tolling.
That may be an interesting question for civil procedure professors to ponder, but as a practical matter we doubt that the federal courts of appeals will frequently get to do so.
Filing Deferral Highly Unlikely
Given the consequences of guessing wrong and the strictness with which the Supreme Court applied Rule 23(f) in this case, we think it highly unlikely that attorneys on the losing end of a class-certification order will take the risk of deferring the filing of a 23(f) petition during the pendency of a motion for reconsideration—even one filed within 14 days of entry of the class-certification order.
We expect, instead, that insofar as parties believe that an order granting or denying class certification presents issues that a court of appeals might deem worthy of review, they will file a Rule 23(f) petition within 14 days of entry of the order, reasoning that, if the petition is denied, they can still ask the district court to reconsider its decision at a later date under Rule 23(c)(1)(C).
The bottom line of Nutraceutical is that, barring an amendment to the pertinent rules, the law is now clear that the deadline for filing a 23(f) petition is inflexible—at least absent a waiver of the issue by the party that prevailed in the district court. Parties wishing to file such a petition must do so within 14 days of the entry of an order granting or denying class certification.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Evan Tager is a partner in the Washington, D.C., office of Mayer Brown LLP. He is a co-leader of the Firm’s Supreme Court and Appellate practice and specializes in, among other things, class-action litigation.
Archis A. Parasharami is a litigation partner in Mayer Brown’s Washington, D.C., office, is a co-chair of the firm’s Consumer Litigation & Class Actions practice and a member of the firm’s Supreme Court & Appellate practice.