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.

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Photo of Elise M. Bloom Elise M. Bloom

Elise M. Bloom is widely hailed as one of the nation’s top employment lawyers and one of the most creative and effective discrimination wage and hour, class/collective action trial lawyers. She is particularly well-known for handling high profile, bet-the-company matters on behalf of…

Elise M. Bloom is widely hailed as one of the nation’s top employment lawyers and one of the most creative and effective discrimination wage and hour, class/collective action trial lawyers. She is particularly well-known for handling high profile, bet-the-company matters on behalf of significant national employers.

Elise is the former co-chair of Proskauer’s Labor & Employment Department, co-head of the Class & Collective Actions Group and previously served as a member of Proskauer’s elected Executive Committee for two terms.

With 30+ years in practice, Elise possesses extensive pre-trial and jury trial experience as well as conducting high-profile investigations. She has represented more companies in class actions challenging interns, trainees and volunteers than most others; this includes her precedent-setting win for Fox Searchlight Pictures in the “Black Swan” case. She also addresses a wider range of general employment issues through counseling and employer training programs.

A noted author and speaker on employment-related topics, Elise spearheads Proskauer’s annual Value Insights: Delivering Value in Labor and Employment Law survey. Elise has been recognized as one of the leading employment lawyers by several leading publications such as Chambers USA, Legal 500, New York Law Journal and Employment Law360, to name a few. She was recently recognized as “Labor & Employment Management Attorney of the Year” at Benchmark Litigation’s 2020 US Awards EAST. She has also been named “Best in Labor & Employment” at Euromoney’s Women in Business Law Awards Americas in 2018, 2017, 2016 and 2014. A client recently told Chambers USA, “She’s incredible. She has an intensity about her work and she knows how corporations work. To watch her in litigation is magic.”

Photo of Mark W. Batten Mark W. Batten

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters…

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

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.

Mark also has substantial experience with traditional labor matters. He regularly represents employers in a variety of industries, including a number of newspaper and media companies, in collective bargaining, practice before the NLRB, labor arbitrations, union organizing campaigns, and day-to-day advice on administration of collective bargaining agreements. He regularly advises clients in both union and non-union settings on diligence matters in corporate acquisitions and financings. He also has experience on behalf of securities firms in arbitrations before the NASD and NYSE of customer and employee complaints.

Mark also practices on behalf of newspapers and other media in newsroom litigation, including libel defense and representation of reporters under subpoena, and has substantial experience in litigation involving access to sealed records and judicial proceedings on behalf of media companies.

Before joining Proskauer, Mark was a trial attorney in the Civil Division of the U.S. Department of Justice in Washington, where he was lead counsel in major litigation for over two dozen federal agencies, ranging from the U.S. Air Force, the CIA, and the U.S. Secret Service to the Department of Housing and Urban Development and the National Endowment for the Arts.

Mark regularly writes and lectures on employment-related matters, including, for instance, MCLE’s Representing Clients Before the Massachusetts Commission Against Discrimination.

In his spare time, Mark is an experienced computer programmer, conversant in C, C++, and other languages. He has ported software between computer operating systems and has published several commercial computer games.

Photo of Noa Baddish Noa Baddish

Noa M. Baddish is a senior counsel in the Labor & Employment Law Department. She is a member of the Sports, Employment Litigation & Arbitration, Class and Collective Action, Wage & Hour and Whistleblower & Retaliation Practice Groups.

Noa’s practice concentrates on all…

Noa M. Baddish is a senior counsel in the Labor & Employment Law Department. She is a member of the Sports, Employment Litigation & Arbitration, Class and Collective Action, Wage & Hour and Whistleblower & Retaliation Practice Groups.

Noa’s practice concentrates on all aspects of labor and employment law. Her employment litigation practice in state and federal courts includes class and collective actions and defending claims of discrimination, harassment, breach of contract and violations of wage and hour laws. Noa represents Major League Baseball and its clubs in an ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. In addition, Noa has represented clients in the media and entertainment and fashion industries in lawsuits brought by unpaid interns in wage and hour disputes.

Noa also provides significant assistance on counseling matters on a wide array of issues for clients in various industries, including, but not limited to, sports, law firms, financial institutions, media and fashion.

Noa has been recognized as a Rising Star by New York Super Lawyers since 2015. She has authored and contributed to several articles and newsletters on employment and labor topics, including “State Whistleblowing Laws Provide Whopping Verdicts,” New York Law Journal (January 2014). Noa is also a frequent contributor to the Firm’s Whistleblower Defense blog.

Previously served as Assistant General Counsel to the New York City Mayor’s Office of Labor Relations, Noa defended the Mayor and City agencies against both employee grievances at arbitration and improper practice petitions before the Board of Collective Bargaining. Prior to that, she was a Law Clerk to Judge Ellen L. Koblitz of the Appellate Division of the New Jersey Superior Court.

While in law school, Noa served on the Executive Board as notes and articles editor of the Fordham Urban Law Journal.