Within 10 days after the district court decertified a Rule 23(b)(3) aphrodisiac dietary supplement class for failure to show a class wide method for calculating damages, plaintiff orally advised the court of his intention to seek reconsideration. The district court then set a 10-day deadline for filing a motion for reconsideration — in other words, 20 days after the decertification order. Plaintiff complied with the court's schedule. The district court denied the motion for reconsideration, and plaintiff filed a Rule 23(f) petition within 14 days of the order denying reconsideration.

In a matter of first impression, the Ninth Circuit held that the Rule 23(f) deadline — which allows a litigant to seek an interlocutory appeal of a district court's order granting or denying class certification within 14 days after the order is entered — is procedural, not jurisdictional. Thus, the deadline can be tolled as a result of additional equitable circumstances to allow a good faith litigant to have her day in court. In doing so, the Ninth Circuit split from other circuits that strictly construe the language of Rule 23(f). In finding that the motion for reconsideration equitably tolled the 14-day Rule 23(f) deadline, the court reasoned that the plaintiff acted in good faith in following the district court's order regarding timing of the motion for reconsideration, and that motions for reconsideration also cause delay yet are frequently given the benefit of equitable tolling; the court further noted that Rule 23(f) review of certification decisions may in fact increase the level of certainty for litigants by providing appellate guidance on the certification issue prior to trial.

Second, the Ninth Circuit panel reversed the decertification order for abuse of discretion, holding that as long as a method for calculating damages has been proposed, uncertainty regarding the amount of damages does not prevent class certification. Because plaintiff proposed that class damages be calculated by multiplying the average retail price by the number of units sold, his failure to provide evidence of the average retail price was not fatal to certification.

Troy Lambert v. Nutraceutical Corp., No. 15-56423 (9th Cir. September 15, 2017).

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