Cobra Sexual Energy Pill Likely to Escape Class Action (1)

Nov. 27, 2018, 4:38 PMUpdated: Nov. 27, 2018, 7:03 PM

The U.S. Supreme Court seemed likely to derail a class action about the effectiveness of a sexual energy supplement after argument Nov. 27.

The case is part of the court’s recent efforts to clarify earlier “drive-by” jurisdictional rulings, in which previous courts used the term “jurisdiction” loosely, Chief Justice John G. Roberts Jr. said during oral argument. Truly jurisdictional deadlines can’t be lengthened for fairness reasons, though the court has yet to decide if certain court-made time limits can be set aside.

Here, the court took the case to decide whether the non-jursidictional limit in Federal Rule of Civil Procedure 23(f) can be set aside for equitable reasons, like if a hurricane closes down the courthouse or the lawyer is misled about the proper deadline.

The U.S. Court of Appeals for the Ninth Circuit said that it could, and reinstated a class action over the aphrodisiac effects of Cobra Sexual Energy, a dietary supplement made by Nutraceutical Corp.

Allowing courts to set aside Rule 23(f)'s 14-day deadline for filing a notice of appeal of a class certification would destroy the purposely short window that Congress specified for such appeals, John Hueston, of Hueston Hennigan LLP, Los Angeles told the justices. Hueston argued for Nutraceutical.

Martian Attacks

But Jonathan A. Herstoff, an associate at Haug Partners, New York, noted that the court has suggested in earlier cases that court-made, non-jurisdictional rules—also known as “mandatory claims processing rules"—might be set aside in “unique” circumstances, such as the judge misleading the parties about filing deadlines.

Herstoff, who argued the court’s last foray into jurisdictional versus claims processing rules, represented the plaintiffs seeking to sue over the sexual energy supplement.

Roberts and Justice Samuel A. Alito Jr. wondered if a judge misleading a party as to the proper deadline really counted as “unique,” or whether it encompassed only situations as extreme as a “Martian attack.”

But this case didn’t seem to even meet the lower requirement, as several justices didn’t think the district court judge here had actually misled the parties. The district judge here didn’t even mention the rule that you are trying to set aside, Justice Ruth Bader Ginsburg told Herstoff.

Ginsburg, who was an expert on civil procedure even before joining the Supreme Court, has written several of the court’s opinions in this area and may, therefore, be a key vote.

Because the case didn’t even seem to meet the court’s “unique circumstances” requirement, though, the court’s ultimate holding may not provide much guidance as to whether Rule 23(f)'s 14-day deadline for filing a notice of appeal of a class certification decision can be tolled under any circumstances.

The case is Nutraceutical Corp. v. Lambert, U.S., No. 17-1094, argued 11/27/18.

(Updated throughout)

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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