January 03, 2018 Top Story

Ninth Circuit Splits from Others in Tolling Deadline for Class Action Appeals

An appeal filed after the Rule 23 deadline may be timely where the plaintiff “acts diligently”

By Anthony R. McClure

The Ninth Circuit Court of Appeals has held, in a case of first impression, that where a class-action plaintiff misses a deadline to file a petition for interlocutory appeal—and even where the plaintiff misses the same deadline to file a motion for reconsideration—the court may still allow the appeal to go forward.

Despite filing the appeals outside the 14-day deadline, the court deemed it timely under the doctrine of equitable tolling

Despite filing the appeals outside the 14-day deadline, the court deemed it timely under the doctrine of equitable tolling

iStockphoto by Getty Images

In Lambert v. Nutraceutical Corp., the Ninth Circuit held that the deadline under Rule 23(f) of the Federal Rules of Civil Procedure is subject to equitable tolling under these same circumstances—where the plaintiff "acted diligently" in pursuing his rights. In so holding, the Ninth Circuit split from other circuits, including the Third, Tenth, and Eleventh Circuits.

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