If Class Action Litigants Could Turn Back Time (The Text Would Have Said So)

Last week, the Supreme Court unanimously reversed a Ninth Circuit decision, resolving a circuit split in ruling that Federal Rule of Civil Procedure 23(f)'s 14-day deadline for a losing party to file a petition for permission to appeal an order granting or denying class certification is not subject to equitable tolling. Nutraceutical Corp. v. Lambert, 586 U.S. — (2019).

The putative class action lawsuit alleged California law false advertising claims arising from Nutraceutical's sale and marketing of purported aphrodisiac supplements. The original district court judge assigned to the case certified the class and subsequently retired. Later, the judge to whom the case was reassigned granted Nutraceutical's motion for decertification. From that point under 23(f), the plaintiff had 14 days to file a petition with the Court of Appeals for leave to appeal the decertification order.