The United States Law Week

Cobra Sexual Energy Class Action Tossed by Supreme Court (1)

Feb. 26, 2019, 3:14 PMUpdated: Feb. 26, 2019, 7:35 PM

The U.S. Supreme Court tossed a suit over a dietary supplement on Tuesday, finding that a lower court erred in reinstating a class action over the aphrodisiac effects of Cobra Sexual Energy.

The case ultimately didn’t turn on complaints about the product, but instead centered on the issue of when courts can extend appellate deadlines.

Courts can’t set aside the 14-day deadline for filing a notice of appeal of a class certification decision for fairness concerns, the justices said in the unanimous opinion authored by Justice Sonia Sotomayor.

That means that there is no second bite at the apple for attorneys who miss this deadline, even if—as the U.S. Court of Appeals for the Ninth Circuit found in this case—there is a good reason for doing so.

The Supreme Court, therefore, overturned the Ninth Circuit’s decision reinstating the class action over the aphrodisiac effects of the dietary supplement made by Nutraceutical Corp.

The case now returns to the appeals court to determine if there are other reasons for considering the motion timely.

The decision is the latest in the court’s 15-year attempt to sort out when judges can waive certain deadlines, and when they can’t, said E. King Poor, who argued one of the court’s earliest decisions in this quest.

Before the ruling, the court had identified two buckets of deadline rules: “jurisdictional” ones that can’t be waived for any reason and “claims processing” rules that looked as if they could be set aside when fairness required.

In its latest decision, however, the court found the appellate deadline in Federal Rule of Civil Procedure 23(f) wasn’t “jurisdictional,” but nevertheless couldn’t be set aside.

Attorneys can no longer assume that such claims processing rules will be set aside for good reason, Poor said.

Lawyers live in fear of jurisdictional rules, and now they may live in fear of claims processing rules, too, Mayer Brown’s Evan Tager said.

Second Inquiry

Tuesday’s decision sets out a second step in figuring out when a rule can be waived, Florida International University law professor Howard M. Wasserman said.

The first inquiry, set out in the court’s earlier decisions, is whether the deadline is a jurisdictional rule or merely a claims processing one, he said.

The answer to that depends on where they rule comes from, Wasserman said.

If it’s a statute set out by Congress, then it’s jurisdictional. Those rules can’t be waived even by the parties, Tager said.

If the rules is instead a judge-made one or one in the Federal Rules of Civil Procedure, it is a claims processing rule. Before Tuesday’s ruling, many attorneys likely believed that such rules were somewhat flexible if there was a good reason, Tager added.

But the court made clear that determining whether something is jurisdictional or a claims processing rule isn’t the end of the inquiry, Wasserman said. Courts must then look to the text, history, and precedent of the rule, he said.

The court found that the language of the claims processing rule here, as well as the court’s previous case law, was clear that deadline couldn’t be waived.

Take No Chances

Tager said that there are few things worse than blowing jurisdictional deadlines for attorneys. So this decision gives them something else to worry about.

The court did leave open a question of whether the filing was still within the 14-day deadline. But that’s likely never going to be answered by the Supreme Court because lawyers aren’t going to take a chance, Tager said.

The upshot of this decision is that lawyers are going to file their notice of appeal of a class certification decision within the 14-day period no matter what, Tager said.

The case is Nutraceutical Corp. v. Lambert, U.S., No. 17-1094, 2/26/19.

(addes comments, updates with ruling details)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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