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September 26, 2017 Practice Points

Ninth Circuit: No Formal Motion for Reconsideration Motion Needed to Toll 23(f) Deadline

The suit alleges that a pharma company sold an aphrodisiac supplement that was not approved by the FDA.

By Adam E. Polk

On September 15, 2017, in Lambert v. Nutraceutical Corp., the United States Court of Appeals for the Ninth Circuit issued an opinion resolving the circumstances under which it is appropriate to equitably toll the Rule 23(f) deadline. The court held that a moving party does not need to file a formal motion to reconsider within 14 days of the class certification order to toll the deadline to petition for permission to appeal under Rule 23(f)—equitable circumstances can support tolling where the movant gives the court notice that it intends to seek reconsideration within 14 days of the certification order.

Lambert involves allegations that Nutraceutical sold an aphrodisiac dietary supplement that was not approved by the Food and Drug Administration, violated the FDA’s aphrodisiac drug rule requiring clinical testing, and included a dangerous ingredient. Lambert alleged Nutraceutical’s conduct violated California’s Unfair Competition Law, California’s False Advertising Law, and the Consumer Legal Remedies Act.

While the district court initially certified the class, after the judge originally assigned to the case retired, the matter was assigned to a new judge, who—on Nutraceutical’s motion—decertified the class. Ten days after the decertification order, Lambert advised the court orally of his intention to file a motion for reconsideration, and the court gave him an additional 10 days to do so. He ultimately filed his reconsideration motion 20 days after the decertification order, and the district court denied the motion for reconsideration three months later. Within 14 days of the reconsideration order, Lambert filed his 23(f) petition for permission to appeal the orders decertifying the class and denying reconsideration. The Ninth Circuit granted the 23(f) petition, and instructed the parties to address the timeliness of the appeal, among other things.

Rule 23(f) provides that a petition for permission to appeal be filed “within 14 days after the order is entered.” The rule does not address the impact of motions for reconsideration on the deadline. Accordingly, under the plain language of Rule 23(f), Lambert’s 23(f) petition—filed well after the decertification order—was untimely. After determining that the Rule 23(f) deadline is not jurisdictional, meaning equitable exceptions, like tolling, apply, the Ninth Circuit moved on to address what is needed to toll the deadline.

The Second, Third, Fourth, Fifth, Seventh, Tenth, Eleventh, and D.C. Circuits have all found that a motion for reconsideration filed within 14 days of the certification order will toll the 23(f) deadline. In Lambert, however, the motion for reconsideration was filed 20 days after the decertification order. The Ninth Circuit held that the 23(f) deadline was nevertheless equitably tolled because Lambert verbally told the district court he intended to move for reconsideration within 14 days of the decertification order. In declining to elevate form over substance, the Ninth Circuit held that the 23(f) deadline can be equitably tolled if the movant “took some other action similar to filing a motion for reconsideration within the fourteen-day deadline, such as a letter or verbal representation conveying an intent to seek reconsideration and providing the basis for such action.”

Accordingly, while the best practice remains petitioning for permission to file a 23(f) appeal within 14 days of the relevant order, in the Ninth Circuit, so long as the appellant provides the court with notice of the intent to seek reconsideration within 14 days, it is likely that the 23(f) deadline will be equitably tolled.

Adam E. Polk is a partner with Girard Gibbs LLP in San Francisco, California.

Adam E. Polk – September 26, 2017