Cobra-Sexual-Energy

In a case over a purported aphrodisiac dietary supplement that promised “animal magnetism,” the U.S. Court of Appeals for the Ninth Circuit, splitting with nearly half the country’s federal appellate courts on a matter of first impression, decided that an appeal of class decertification was timely even though a reconsideration motion went beyond a deadline set in the federal rules.

The Sept. 15 ruling reversed decertification of a class action brought over the labeling of “Cobra Sexual Energy” pills, which promised “animal magnetism” and “potency wood.” Lead plaintiff Troy Lambert claimed such statements were misleading, particularly as to the ingredients. But it was the Ninth Circuit’s decision to take up Lambert’s petition in the first place that parted with rulings in other courts.

At issue is whether Lambert had failed to timely petition the Ninth Circuit to take up an appeal of the decertification order. Federal Rule of Civil Procedure Rule 23(f) allows appeals courts to take up such interlocutory petitions within 14 days. Lambert filed his petition 14 days after filing a motion for reconsideration of the decertification order—which most courts have held is allowed—but he waited 20 days to file that reconsideration motion at the outset.

While other courts would have found that violated Rule 23(f)’s 14-day window, the Ninth Circuit tolled that deadline.

“We recognize that other circuits would likely not toll the Rule 23(f) deadline in Lambert’s case,” wrote Judge Richard Paez for a unanimous panel. “To the extent other circuits limit Rule 23(f) tolling only to the circumstance where a motion for reconsideration is filed within 14 days of the certification order, we part ways with them.”

Steven Feldman, counsel at Hueston Hennigan in Los Angeles who represented defendant Nutraceutical Corp., said he planned to petition an en banc panel of the Ninth Circuit to reverse the decision.

“The panel’s decision here placed the Ninth Circuit at odds with every other circuit to consider this issue, including the D.C., Third, Fourth, Fifth, Tenth and Eleventh Circuits,” he wrote in an email. “Equitable tolling should not and cannot excuse a plaintiff’s blatant failure to comply with the federal rules, particularly in a case wholly lacking merit.”

Plaintiffs attorney Gregory Weston, of The Weston Firm in San Diego, did not respond to a request for comment.

Interlocutory appeals of class certification orders, while allowed under Rule 23(f), aren’t mandatory. Lawyers in both sides of class actions have fought for appeals courts to take up more appeals for certification orders. A tort reform bill passed earlier this year would make such petitions mandatory.

The timeline is essential in understanding the Cobra Sexual Energy case. U.S. District Judge André Birotte of the Central District of California granted Nutraceutical’s motion for decertification on Feb. 20, 2015. He found Lambert had failed to provide enough evidence to support his damages model, which was to offer full refunds to class members. On March 12, 2015, Lambert filed his motion for reconsideration, which Birotte denied on June 24, 2015. Lambert petitioned the Ninth Circuit on July 8, 2015.

But the Ninth Circuit found that Lambert’s petition was timely given that he gave the judge a head’s up within 14 days after the decertification order that he planned to file a reconsideration motion. He also was complying with Birotte’s deadline when he filed that motion 20 days later, the panel concluded. The opinion, while unique to the specifics of the case, also addressed the general view of other circuits that class certification appeals tend to be disruptive and drag out the litigation.

“The premise that Rule 23(f) petitions are disruptive and slow is not universally true and we decline to adopt any hard-and-fast rule on the basis of such an idea,” Paez wrote.

The Ninth Circuit also reversed the decertification order in the case. The panel found that the uncertainties in Lambert’s damages model should be worked out at trial. “We have repeatedly emphasized that uncertain damages calculations should not defeat certification,” Paez wrote. “At this stage, the question is only whether Lambert has presented a workable method. We conclude that he has.”

Steven Feldman, in his email, stood by Birotte’s finding. “Regardless, Nutraceutical provided multiple, independently sufficient grounds for decertification, which if necessary he will consider on remand,” he wrote.