Absent a Martian invasion, are you out of luck?

OT18

Is there a "catastrophic exception or the apocalyptic exception" to Rule 23(f)'s 14-day deadline to file a petition for permission to appeal an order granting or denying class certification? What if "there's a Martian invasion"? What if "the attorney is sick"? What if a judge tells a litigant the "wrong" date? Is the right rule that there is "not necessarily never [an exception], but not more than hardly ever?" Or is there "never" an exception? Those were the questions of Justices Samuel Alito, Ruther Bader Ginsburg and Elena Kagan during oral argument in Nutraceutical Corp. v. Lambert on Nov. 27, but they could have just as easily come from almost any practitioner.

These are interesting hypotheticals, but you still may be asking yourself why you should pay attention to a case about deadlines (and keep reading this article), when the Supreme Court has a docket chock full of headline-grabbing cases. The answer, at least for those of us who litigate, is that there are few more nerve-wracking frustrations than not knowing when an important filing is due. And this case is particularly important to those who litigate class actions -- on both sides of the "v." -- because all parties use Rule 23(f) to seek permission to take an interlocutory appeal of adverse class certification decisions. And both sides thus run up against difficulties in crafting a persuasive petition within a 14-day window. (Notably, there were no amicus briefs filed in the case, suggesting that practitioners and parties not involved in this case may be agnostic on whatever rule is adopted.)

In this case, Troy Lambert filed suit against Nutraceutical back in 2013, alleging the company violated California's false advertising and unfair competition laws in its marketing of a dietary supplement. The district court initially granted class certification, but later decertified the class after Lambert failed to produce evidence of the amount class members actually paid for the supplement, which Lambert claimed should be refunded to each class member because the supplement was worthless.

Lambert did not file a Rule 23(f) petition or a reconsideration motion within 14 days of the district court's decertification ruling (the latter of which tolls the Rule 23(f) deadline under established precedent in every circuit to consider the issue). Instead, two days before that deadline, Lambert sought permission from the district court to file a renewed motion for class certification. The court denied that request, but allowed Lambert to file a motion for reconsideration, setting a deadline for that motion outside Rule 23(f)'s 14-day window. Lambert filed his reconsideration motion on the date set by the district court, the court denied the motion, and Lambert then filed a Rule 23(f) petition to the 9th U.S. Circuit Court of Appeals.

Addressing the deadline first, the 9th Circuit held that the plaintiffs' Rule 23(f) petition was timely "because Lambert informed the court orally of his intention to seek reconsideration of the decertification order and the basis for his intended filing within 14 days of the decertification order and otherwise acted diligently, and because the district court set the deadline for filing a motion for reconsideration with which Lambert complied, the Rule 23(f) deadline should be tolled." Lambert v. Nutraceutical Corp., 870 F.3d 1170, 1179 (9th Cir. 2017).

As was evident at oral argument in the Supreme Court, Nutraceutical has both the text of the rules and the weight of authority on its side. Rule 26(b) of the Federal Rules of Appellate Procedure specifically provides that "the court may not extend the time to file ... a petition for permission to appeal." Id. (emphasis added). And, as the 9th Circuit itself recognized, the "other circuits would likely not toll the Rule 23(f) deadline" in Lambert's situation. 870 F.3d at 1179.

Nevertheless, Lambert's counsel argued in the briefing and at the lectern that the deadline in the district court should not be the 14-day deadline of Rule 23(f), but the 28-day deadline under Rule 59(e) for motions to alter a judgment. If motions for reconsideration toll the Rule 23(f) deadline, as the Courts of Appeals agree they do, the plaintiff reasoned, then the operative deadline should be the motion for reconsideration's deadline, not Rule 23(f)'s 14-day deadline.

Put aside for a moment whether you prosecute or defend class actions. There is some appeal to this argument, particularly because Rule 23(f) does not have a tolling provision for motions for reconsideration and no rule suggests that a litigant must file the motion for reconsideration within 14 days. In contrast, the rules do specify a deadline of 28 days for a motion to amend or alter a judgment.

However, Justice Ginsburg turned this argument against Lambert's counsel at oral argument. If there is no exception in the text of Rule 23(f) to allow tolling for a motion for reconsideration, then "[y]ou could do both": file a timely motion for reconsideration and a Rule 23(f) petition. Justice Brett Kavanaugh also questioned the validity of this unwritten exception, even though the parties both agreed that a motion for reconsideration filed within the 14-day limit tolled the deadline to file a Rule 23(f) petition. Finally, the justices appeared to be skeptical of Lambert's fall back argument that the 14-day deadline is subject to equitable exceptions.

Whichever way the Supreme Court rules, this dispute may prompt the Rules Committee to examine Rule 23(f). Although the courts have historically taken the view "the window of review is deliberately small," Gary v. Sheahan, 188 F.3d 891, 893 (7th Cir. 1999), all class action litigations can agree that 14 days is extremely short, and it would be simpler and fairer for everyone if the rule spelled out whether motions to reconsider toll the time limits. On the other hand, courts will likely be hesitant to authorize a procedure that would make reconsideration motions more likely in these circumstances.