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Class Action Certification Appeals and Cobra Sexual Energy

What do class action certification appeal deadlines and an over-the-counter supplement called “Cobra Sexual Energy” have in common?  A poor consumer who created new law in the Ninth Circuit after discovering that his sexual supplement did not, um, perform as expected.

Enough People Were Duped by Cobra Sexual Energy to File a Class Action Lawsuit . . . Allegedly.  

Some guy named Lambert filed a “class action” lawsuit against the manufacturers of the supplement Cobra Sexual Energy after the supplement did not provide the advertised (and, I guess, desired) “animal magnetism” and “potency wood.”  Class action lawsuits are lawsuits in which the defendant has allegedly harmed such a large number of people that the “class” – or every individual plaintiff – cannot easily be determined. FRCP 23(a); NRCP 23(a). One (or two, or five, etc.) plaintiffs who have come forward are designated to be representatives of the “class” and sue on behalf of those harmed.

To turn a lawsuit into a class action, the plaintiff(s) have to get “certified” as a class by the Court. NRCP 23(c); FRCP 23(c). Once a class has been “certified,” it can always be “de-certified” if the court later determines that the lawsuit is more appropriate as a traditional lawsuit rather than a class action.  FRCP 23(c)(1)(C); NRCP 23(c)(1).

That is precisely what happened to Lambert. His lawsuit was first certified as a class action, and then later de-certified by a new judge.  Lambert appealed.

This is the part where the lawsuit gets significantly less interesting for those who are not appellate lawyers (or class action practitioners).

Interlocutory Appeals from Class Action Certifications

Generally, you have to wait until the bitter end of a case before you can appeal. However, some rules allow for “interlocutory,” or mid-case appeals. FRCP 23(f) permits a party to petition the Ninth Circuit for interlocutory review of an order certifying or decertifying a class action. These appeals must be filed within 14 days of the order certifying or decertifying the class.  Id.  Nevada does not have a reciprocal rule.

It seems like a fairly straightforward rule, but it is not. As Lambert learned, the 14-day deadline to file the appeal can be “tolled,” i.e., expanded.

In the Ninth Circuit, the 14-day Deadline Under FRCP 23(f) May Be Equitably Tolled

The general consensus among the various court is that time limitations contained in rules are merely procedural, whereas time limitation contained in statutes are generally jurisdictional (i.e., the court cannot hear the case if the time limitations are not followed).  This means that time deadlines found in rules can be expanded under certain circumstances.  Relying on this line of authority, the Ninth Circuit concluded that FRCP 23(f)’s 14-day appeal deadline is not jurisdictional, and can be expanded.  Lamber v. Nutraceutical Corp., 870 F.3d 1130 (9th Cir. 2017).

Generally, with any appeal, filing a motion for reconsideration will “toll” the time in which an appeal must be filed if the motion is filed before the deadline to appeal.  The Ninth Circuit reasoned that it should be no different for interlocutory appeals under FRCP 23(f).  Lambert filed a motion for reconsideration, but he did not file it within the 14-day deadline.

Fortunately for Lambert, deadlines can also be expanded for “equitable” (i.e., fair) reasons.  To determine whether FRCP 23(f)’s 14-day deadline should be expanded for equitable reasons, the Ninth Circuit will consider whether (1) the appellant was diligent in pursuing their rights, (2) external circumstances prevented the appeal from being timely filed, and (3) the appellant filed something that was similar to filing a motion for reconsideration within the 14-day deadline.  Lambert, 870 F.3d at 1177-78.

According to the Ninth Circuit, Lambert met all of these factors.  First, he communicated his intention to file a motion for reconsideration at a hearing that took place ten days after the court order (and within the 14-day deadline).  Second, the district court instructed Lambert to file his motion within ten days, giving him twenty days from the date of the order.  Lambert complied.  Finally, Lambert filed his Rule 23(f) petition within fourteen days after his motion for reconsideration was denied.

The moral of Lambert’s story is that sometimes appellate filing deadlines are not so much rules as they are guidelines.  You should still try to comply with them, however.  Not all of us are as sympathetic of appellants as poor Lambert, the guy who just wanted to experience the sexual energy of a cobra and instead experienced…something less.