Time Is on My Side, Yes It Is: The Timing of Class Certification Appeals Pursuant to Rule 23(f)

Abstract

This article analyzes the issues on appeal to the United States Supreme Court in Nutraceutical Corp. v. Lambert, argued to the Court in November 2018. The appeal involves a technical issue relating to the timing requirement that a party file a notice of appeal of a judge’s class certification order within 14 days of the issuance of the order, pursuant to Federal Rule of Civil Procedure 23(f). In the underlying class litigation, the plaintiff allegedly failed to file for permission to appeal a certification order within the 14-day limitation. Nevertheless, the appellate court accepted the petition, and the Ninth Circuit affirmed, applying equitable principles to relieve the plaintiff of the Rule 23(f) timing requirement. The defendant now contends that the Ninth Circuit erred in applying equitable principles to relieve the plaintiff’s alleged noncompliance with Rule 23(f). The Court’s decision is important to class action litigants who, upon losing a class certification decision, desire to appeal the court’s order.