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On February 26, 2019, the Supreme Court of the United States ruled that under Rule 23(f) of the Federal Rules of Civil Procedure (FRCP), a petition for permission to appeal an order decertifying a class must be filed within 14 days from the date the district court issued its order. In Nutraceutical Corp. v. Lambert, the respondent, Tony Lambert, successfully argued in the Ninth Circuit Court of Appeals that the 14-day deadline should be equitably tolled because he acted diligently to pursue the matter after the court issued its decertification order. Instead of filing a petition for permission to appeal within 14 days, he filed a motion for reconsideration 20 days after the decertification order. He waited to file his petition for permission to appeal until the court denied the motion for reconsideration, which was months after the initial decertification order.

Although the Ninth Circuit applied equitable tolling, the Supreme Court reversed, explaining that whether a party is “diligent, reasonably mistaken, or otherwise deserving,” the time to petition an order under Rule 23(f) of the FRCP does not change.

In reaching its conclusion that the time frame is “purposefully unforgiving,” the Supreme Court stated that “the Federal Rules of Appellate Procedure single out Civil Rule 23(f) for inflexible treatment.” Specifically, the general appellate rules related to timing reference Rule 26(b) of the Federal Rules of Appellate Procedure as controlling. That rule specifically prohibits a court of appeals from extending “the time to file . . . a petition for permission to appeal.” This was the precise type of filing at issue in the case. Given this express and unambiguous statement regarding timing, the petition to appeal was rejected by the Supreme Court for being late.

Key Takeaways

What does this ruling mean for employers that are defending class actions? According to this decision, an employer interested in challenging a class certification as an interlocutory appeal needs to file a timely petition for permission to appeal, even if it challenges the district court’s order with a motion to reconsider. Conversely, if an opposing party challenges decertification after the 14-day window from the date of the trial court’s order, employers may use this case as precedent to challenge the timeliness of that petition.



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