Supreme Court rejects equitable tolling of class action appeals


The Supreme Court today issued a new opinion addressing the timing of requests to appeal class certification rulings. The decision gives practitioners another new reason to be especially careful when plotting potential appeals.

Under Federal Rule of Civil Procedure 23(f), circuit courts have virtually unfettered discretion to “permit an appeal from an order granting or denying class-action certification.” The timing for petitioning such an appeal, however, is more firm: “A party must file a petition for permission to appeal with the circuit clerk within 14 days after the order is entered…”

So, what happens when a district court grants or denies class certification, and then one of the parties moves for reconsideration of that order — rather than immediately petitioning for appeal?

The circuit courts typically allow intervening motions for reconsideration, followed by appeals, as long as the motion is filed within 14 days of the certification ruling, and the petition is filed within 14 days of the reconsideration ruling.

But under the Supreme Court’s new ruling in Nutraceutical Corp. v. Lambert., the filing of a motion for reconsideration may waive the ability to later take an appeal. In Lambert, the plaintiff waited 20 days from a decertification order to move to reconsider — and then, after that motion was denied, petitioned for appeal 14 days after the denial.… Read more

SCOTUS Set to Decide American Pipe Tolling For Subsequent Class Actions


Last week, the Supreme Court agreed to decide whether the tolling rule of American Pipe and Construction Co. v. Utah, 414 U.S. 538 (1974), allows absent class members to bring a subsequent class action outside of a limitations period. The question is an important one to class action practice and will resolve a circuit-level split.

In American Pipe and Construction Co. v. Utah, 414 U.S. 538 (1974), and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983), the Supreme Court held that the claims of absent class members are tolled by the timely filing of a defective class action. Does this mean that the only claims tolled are “the individual claims of purported class members?” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 n.3 (1990). Or may purported class members also file a separate class action outside the limitations period?

That question, according to the petition for certiorari, has divided the courts of appeals, with the First, Second, Third, Fifth, Eighth, and Eleventh Circuits declining to toll the limitations period for such follow-on class actions, and with the Sixth, Seventh, and Ninth Circuits extending the limitations period in this scenario based on American Pipe.Read more

Supreme Court Applied ‘Settled Principles’ In BMS Ruling


Leslie Brueckner of Public Justice and I just published an article in Law360 about the Supreme Court’s recent decision in  Bristol-Myers Squibb Co. v. Superior Court. Here it is in full:


The U.S. Supreme Court’s June 26 ruling in Bristol-Myers Squibb Co. v. Superior Court[1] has been characterized by some in the defense bar as portending a sea change in “specific,” or “case-linked,” personal jurisdiction. Not so fast.

Although the case was closely watched by both sides of the aisle because of its potential to strictly limit plaintiffs’ ability to sue corporations outside of their “home” state, the 8-to-1 ruling was decided on “settled principles” of law[2] — and, as a result, it did not move the legal needle anywhere near as far as the defense bar was hoping.

In this case, both California and nonresident plaintiffs sued Bristol-Meyer Squibb (BMS), a national pharmaceutical company, for personal injuries caused by Plavix, a cardiovascular drug linked to strokes and other serious injuries. Because BMS is incorporated in Delaware and headquartered in New York, and conducts most of its operations on the East Coast, there was no basis for asserting “general,” or “all-purpose,” jurisdiction over BMS in California.[3]

Instead, the question was whether California courts could assert specific jurisdiction over BMS, which exists where the plaintiff’s claims “aris[e] out of or relat[e] to the defendant’s contacts with the forum.”[4]

Read more

Class Cert Appeals & the Muddy Waters of the 9th Circuit



In less than two weeks, the Supreme Court will hear oral argument on the following issue: Whether a federal court of appeals has jurisdiction to review an order denying class certification after the named plaintiffs voluntarily dismiss their individual claims with prejudice.

The underlying decision, which we’ve written about previously, is the Ninth Circuit’s ruling in Baker v. Microsoft.  In Baker, the district court struck class allegations, Plaintiffs sought leave to appeal under Federal Rule of Civil Procedure 23(f), and leave was denied.  Plaintiffs then voluntarily dismissed their individual claims with prejudice and appealed.  The Ninth Circuit concluded it had jurisdiction because the dismissal – even though it came by stipulation – was “sufficiently adverse” to be an appealable final decision.

With the Supreme Court poised to rule in Baker, the Ninth Circuit recently issued a second published decision involving a similar issue. Bates v. Bankers Life & Casualty Co.  In Bates, as in Baker, the district court granted a motion to strike class allegations.  From there, the posture of the cases diverged.  Rather than voluntarily dismissing with prejudice (as in Baker), the Bates plaintiffs filed an unopposed motion for entry of final judgment pursuant to Federal Rule of Civil Procedure 54(b).… Read more

For Defense Bar, Class Action and Arbitration Issues Remain Hot Topics for Supreme Court Review


A recent post by Adam Feldman at Emprical SCOTUS entitled “Cert Filing Leaders” demonstrates that the defense bar’s interest in Supreme Court review of arbitration and class action issues has not abated, despite the passing of Justice Scalia, who often provided a fifth and decisive vote on such issues.

Feldman has reviewed cert petitions pending before the Supreme Court with an eye towards who is filing. He finds that Gibson Dunn, Sidley Austin, WilmerHale, Bancroft PLLC, Jones Day, Kellogg Huber, Latham & Watkins, and Mayer Brown “combine for 46 docket filings so far this year.” More interesting is that “[t]he most petitions from these firms so far this year are in the class action and arbitration areas,” with patent law taking third place.

At least insofar as class actions are concerned, this was a bit surprising. For one, recent efforts to secure a Supreme Court ruling which kills off class actions–think Spokeo, Inc. v. Robins or Campbell-Ewald Co. v. Gomez or Tyson Foods, Inc. v. Bouaphakeo–have largely failed (Robins, Gomez) or backfired (Bouaphakeo). For another, the Supreme Court may remain an 8-member court for a substantial portion of its October 2016 Term. Without a ninth Justice, the Court is unlikey to grant cert in cases which stand a high chance of resulting in a tie vote.… Read more

U.S. Supreme Court to Consider Appellate Jurisdiction to Review Denial of Class Cert After Named Plaintiffs Voluntarily Dismiss Suit With Prejudice


In an earlier post, we flagged a cert petition filed in the U.S. Supreme Court by Microsoft Corporation, asking whether federal courts of appeals have jurisdiction to review a denial of class certification after the named plaintiff voluntarily dismisses his individual claims with prejudice. The issue arises in long-running litigation brought by consumers who purchased Xbox consoles which allegedly damage discs during use.

The Supreme Court has now granted review. Interestingly, it has rewritten the question presented, presumably to make clear that it wants argument on whether there is Article III jurisdiction and statutory jurisdiction under 28 U.S.C. § 1291. As rephrased by the Court, the question now is: “Whether a federal court of appeals has jurisdiction under both Article III and 28 U. S. C. §1291 to review an order denying class certification after the named plaintiffs voluntarily dismiss their individual claims with prejudice.”

Now that the Court has taken this case, it is worth observing that any victory by Microsoft would be pyrrhic. Because a class was not certified by the district court, but should have been according to the Ninth Circuit; and because the voluntary dismissal with prejudice binds only the named individuals in the Baker case, other consumers could simply file another class action seeking redress for the same consumer harm.… Read more