July 22, 2019

July 22, 2019

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United States Supreme Court Says that Equitable Tolling Cannot Extend Deadline to Appeal Class Certification Decisions Under Rule 23(f)

In a unanimous decision authored by Justice Sotomayor on February 26, 2019, the Supreme Court held that the 14-day deadline to seek permission to appeal a decision granting or denying class certification under Federal Rule of Civil Procedure 23(f) cannot be extended through the doctrine of equitable tolling. Nutraceutical Corp. v. Lambert, No. 17-1094, 586 U.S. ___ (2019).

The Court reversed the Ninth Circuit’s decision, which had accepted a petition filed more than 14 days after the trial court’s decertification order, because the plaintiff had “acted diligently.”

Although the Supreme Court confirmed that Rule 23(f)’s time limitation is not jurisdictional in nature, the Court held that it is a claim-processing rule that is “unalterable” if properly raised by an opposing party. The Court then examined the text of the governing rules and concluded that the Federal Rules of Appellate Procedure, particularly, Appellate Rule 26(b), express “a clear intent to compel rigorous enforcement of Rule 23(f)’s deadline, even where good cause for equitable tolling might otherwise exist.”

As a result, the Supreme Court held that equitable tolling could not salvage the plaintiff’s untimely Rule 23(f) petition and reversed the Ninth Circuit’s decision on the underlying appeal. This decision confirms what attorneys have generally understood the rule to be pertaining to deadlines for Rule 23(f) petitions, but nonetheless conclusively resolves any question as to whether equitable tolling may extend that deadline.

© 2019 Proskauer Rose LLP.

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About this Author

Elise Bloom, Labor Employment Attorney, Wage, Hour, Class Action, Proskauer
Partner

Elise M. Bloom is a member of Proskauer’s Executive Committee, co-head of the Class/Collective Actions Group and former co-chair of the Labor & Employment Law Department. During her tenure as co-chair, the department was named one of the top three U.S. labor and employment practices by The American Lawyer, ranked by Chambers Global2014 as Band 1 in the U.S. and by Chambers USA 2014 as Band 1 Nationwide, and recipient of the Chambers USA 2012 Award for Excellence.

Elise is recognized as one of the leading employment lawyers and was named “Best in Labor & Employment” at ...

212.969.3410
Mark W Batten, Labor & Employment Attorney, Proskauer Law Firm
Partner

Mark Batten is a Partner in the Labor & Employment Law Department and co-head of the Class/Collective Action Group, resident in the Boston office.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is responsive, pragmatic and team-oriented, and offers excellent legal advice.”

He assists clients with all aspects of employment policies and practices, including hiring, termination, leaves, accommodation of disabilities, and other matters. Mark also handles diverse civil litigation, including litigation of noncompetition agreements, ERISA matters, discrimination and wrongful termination litigation in federal and state courts; proceedings before the Massachusetts Commission Against Discrimination; wage and hour matters; and labor arbitrations. He is also an experienced appellate attorney both in employment cases and other civil litigation, handling appeals at all levels in the state courts and in the United States Courts of Appeals.

617-526-9850
Noa M Baddish, Labor and Employment Attorney, Proskauer Law Firm
Associate

Noa M. Baddish is an Associate in the Labor & Employment Department, resident in the New York office. She is a member of the Employment Litigation & Arbitration, Class and Collective, Employment Law Counseling & Training, and Whistleblower & Retaliation Groups.

212-969-3630