High court to hear whether 9th Circuit violated federal procedure

The U.S. Supreme Court will hear arguments over whether the 9th U.S. Circuit Court of Appeals breached federal procedure law by allowing counsel in a class action to file an appeal past a two-week deadline.

The writ of certiorari, granted Monday, will resolve a disagreement between the circuit courts over Federal Rule of Civil Procedure 23(f), which establishes a 14-day deadline to file a petition for permission to appeal an order granting or denying class action certification.

At issue is the decertification of a 2013 class that claimed dietary supplements sold by Nutraceutical Corp. violate California's false advertising and unfair competition laws. Following discovery, the district court decertified the class pursuant to a defense motion, ruling damages were not measurable on a class-wide basis.

U.S. District Judge André Birotte Jr. of the Central District did not allow the plaintiff to file a renewed motion for class certification but allowed a motion for reconsideration, which Nutraceutical's attorneys at Hueston Hennigan LLP said passed the 14-day deadline from the original order. The judge ultimately denied the motion. Lambert v. Nutraceutical Corp., 870 F.3d 1170, 1177 (9th Cir. 2017).

The plaintiff appealed to the 9th Circuit, which broadly ruled that the deadline was tolled because plaintiff's counsel told the court orally of his intention to seek reconsideration of the decertification and was found to have "otherwise acted diligently, and because the district court set the deadline for filing a motion for reconsideration with which Lambert complied," the appellate panel ruled.

Nutraceutical's attorneys, led by counsel of record John C. Hueston of Hueston Hennigan, filed a petition arguing the 9th Circuit ignored appellate court precedent, as well as rulings by the U.S. Supreme Court.

"In fact, every other circuit to consider this issue -- i.e., the Second, Third, Fourth, Fifth, Seventh, Tenth, and Eleventh Circuits -- has held that the Rule 23(f) deadline is 'strict and mandatory,'" the petition states.

The petition also said the appellate court's ruling violates federal appellate rule 26(b)(1), which states courts may not extend time for a petition or permission to appeal.

Now, courts will need to comb through district court records to determine whether the petitioner engaged in any conduct that would entitle it to equitable tolling, the petition states.

"This type of review will add even more work to the already heavy court dockets," according to the petition.

The law was meant as a hard and fast rule in order to minimize a disruption in litigation, the petition states,

Ronald Marron of San Diego, who filed the lawsuit on behalf of plaintiff Troy Lambert, said in an email that most cases should be decided on the merits instead of what he called unreasonable procedural rules.

"We anticipate any decision will settle a longstanding split between the circuit courts on timing for an appeal. We look forward to advocating on behalf of our client and anticipate a positive outcome," Marron wrote.

Defense attorney Steven Feldman, a Hueston Hennigan partner, said, "We are pleased the Supreme Court agreed that certiorari is warranted in this significant class action appeal."

Although it is usually a gamble to speculate on whether merely granting certiorari says anything about the Supreme Court's thinking toward a particular case, it can't be a good sign for the class based on past precedent alone, said one commenter.

"Particularly as past courts have ruled the other way," said Jeremy Robinson, who heads the appellate practice for Casey Gerry Schenk Francavilla Blatt & Penfield LLP.