U.S. Supreme Court reverses 9th Circuit over missed deadline

Ruling the 9th U.S. Circuit Court of Appeals improperly accepted a late filing, the U.S. Supreme Court on Tuesday sided with a trial court judge's decision to decertify a class action against a manufacturer accused of falsely claiming a drug would improve sex lives.

In a unanimous opinion written by Justice Sonia M. Sotomayor, the court reversed the 9th Circuit's decision that the 14-day appeal deadline outlined in Federal Rule of Civil Procedure 23(f) should be "tolled" because the plaintiff acted diligently when missing it.

The high court held the rule is not subject to "equitable tolling," concluding the civil procedure rules "express a clear intent to compel rigorous enforcement of Rule 23(f)'s deadline, even where good cause for equitable tolling might otherwise exist."

The case has been remanded to the appellate court to address other arguments about whether the petition was timely "even without resort to tolling," according to the 12-page opinion. Nutraceutical Corp. v. Lambert, 2019 DJDAR 1473 (U.S. Feb. 26, 2019).

Los Angeles-based defense lawyer John C. Hueston of Hueston Hennigan LLP, who worked with partner Steven N. Feldman, said the court "adopted our argument that all mandatory claim-processing rules are unalterable if properly raised."

"The Court's decision has significant implications for civil and administrative procedure and will provide clarity to the lower courts and litigants on this important issue," Hueston said in an email.

Plaintiff's lawyer Gregory S. Weston of The Weston Firm in San Diego declined comment.

The court heard oral arguments on Nov. 27 from Hueston and Jonathan A. Herstoff of Haug Partners LLP.

The opinion reversed a 9th U.S. Circuit Court of Appeals ruling, issued in September 2017. That decision overturned U.S. District Judge Andre Birotte, Jr., who in February 2015 granted a motion to decertify the class.

Birotte was assigned the case after the judge who certified the class, U.S. District Judge Audrey B. Collins, left for the 2nd District Court of Appeal. Collins certified the class based on a full-refund damages model that, after discovery ended, Birotte found inconsistent with the plaintiff's liability theories.

The plaintiff, Troy Lambert, sued Nutraceutical Corp. in 2013 over its marketing of a supplement called Cobra Sexual Energy, which the company said would enhance sexual performance and frequency.

"Had he known the labels' claims were false, he would not have purchased the product," according to the 9th Circuit opinion.

Ten days after Birotte decertified the class, Weston's team told Birotte they planed to file a motion for reconsideration. Birotte told them to do so within 10 days then later held a hearing in which he rejected it.

Weston then filed a petition for permission to appeal with the 9th Circuit. Nutraceuctical objected because it wasn't filed within 14 days of Birotte's decertification order, but the appellate court said because plaintiffs told Birotte of their appellate plans within the 14-day window, they complied with Birotte's deadline "and otherwise acted diligently."

The high court's reversal of that decision said the relevant rules, including Rule 23(f) "clearly foreclose the flexible tolling approach on which the Court of Appeals relied to deem Lambert's petition timely."