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ARTICLE · 13 MAY 2008

Rule 23(f) Class Certification Appeals: 10 Days Means 10 Days

Sutherland Asbill & Brennan LLP
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A new opinion from the U.S. Court of Appeals for the Third Circuit is a reminder of the rigor with which courts apply Rule 23(f)'s requirement that a petition for permission to appeal an order granting or denying class action certification be filed with the circuit clerk within 10 days after the order is entered.

United StatesLitigation, Mediation & Arbitration
Thomas Byrne
Thomas Byrne
Tom Curvin
Tom Curvin

Originally published April 29, 2008

A new opinion from the U.S. Court of Appeals for the Third Circuit is a reminder of the rigor with which courts apply Rule 23(f)'s requirement that a petition for permission to appeal an order granting or denying class action certification be filed with the circuit clerk within 10 days after the order is entered.

The case is Gutierrez v. Johnson & Johnson, ___ F.3d ___, 2008 WL 1792260 (3d Cir. April 22, 2008) in which the court dismissed the Fed. R. Civ. P. 23(f) petition of a putative class of employees for failing to meet the 10-day deadline. The Third Circuit joined other circuits in recognizing that the 10-day period within which to file a Rule 23(f) petition is tolled by the filing of a timely motion to reconsider the grant or denial of class certification. A timely motion to reconsider, the court held, is "one that is filed within the 10-day period set

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