F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

T R O Y L A M B E R

T , on B ehalf of Themselves and All Others Similarly Situated, Plaintiff-Appellant
,

v

.

N U T R A C E U T I C A L C O R

P

. , Defendant-Appellee. N o. 15-56423

D.C. No. 2:13-cv-05942- AB -E

OPI NI ON

A ppeal from the United States District Court for the Central District of California André B irotte, J r., District J udg e, Presiding

Arg ued and Submitted March 9, 2017 Pasadena, California

F iled September 15, 2017

B efore: Richard A. Paez , Marsha S. B erz on, and Morg an Christen, Circuit J udg es.
Opinion by J udg e PaezL A M B E R T V

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SUMMARY *

F ed. R. Civ. P . 23(f

) & 23(b)(3) / Class Certif ication

The panel concluded that plaintiff’s F ed. R. Civ. P. 23(f) petition for class certification was timely filed with this c ourt; reversed the d istrict court’s order decertify ing the class; a

nd remanded for further proceeding s.

Rule 23(f) g overns interlocutory appeals o f “order[ s]
g ranting or deny ing class-action certification,” and requires that a petition for permission to appeal be filed “within 14 day s after the order is entered.” F ed. R. Civ. P. 23 ( f )

. The plaintiff f iled his motion f

or reconsideration twenty day s a fter the district court decertified the class.

The panel held that the fourteen-day Rule 23(f) deadline

was not jurisdictional. Specifically
, the panel t h at under B o w l e s v. R ussell
, 551 U.S. 205 (2007), and Eberhart v. United States
, 546 U.S. 12 (2005), the Rule 23(f) deadline

was not jurisdictional because it w as procedural
, d id not

remove a court’s authority o ver subje c t m a t ters o r persons, and w as in the F ederal Rules of Civil Procedure, rather than in a statute.

The panel held that because the Ru l e 2 3(f) deadline was not jurisdictional, e quitable ex ceptions, such as tolling
, mig ht apply . The panel also held that a motion for reconsideration filed within the Rule 23(f) deadline would to ll the deadline.

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.L A M B E R T V

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The panel held that the Rule 23(f) deadline could be tolled

as a result of additional equitable circumstances. T h e p anel further held that a number of e q uitable factors supported
to l l i n g the Rule 23(f) d eadline. The panel held that because plaintiff informed the court orally of his intention to s e ek reconsideration of the decertification order and the b as i s for his intended filing within fourteen day s of the decertification order and otherwise acted d ilig ently
, and because the district
court set the deadline for filing a motion for reconsideration with which plaintiff complied, the Rule 23(f) deadline should be tolled. The panel noted that other circuits would likely not toll the Rule 23(f) deadline in this case, a nd would only allow tolling when the motion for r econsideration was filed within the fourteen-day period. The panel concluded that plaintiff’s Rule 23(f) petition was timely filed in this court.

Turning to the merits of the cert i fication petition, the panel held that the d istrict court abused its d i s c r e tion in decertify in g the class o n the b asis of plaintiff’s inability to prove restitution d amag es throug h the full r e f und model. Plaintiff b r oug ht his consumer class action under F ed. R. Civ. P. 23(b)(3), which requires that a p laintiff show a class wide method for damag es c a lculations as a part of the assessment of whether common questions predominate over individual
qu e stions. The full refund model measures damag es b y presuming a f

u l l refund for each customer, on the basis that the product has no , o r only a de minimis, value. The panel held that because plaintiff’s da mag e s model matched his theory of liability
, and because p laintiff ha d s h o w n that his damag es model was supportable on evidence t h a t could be introduced a t trial, the class should not have been decertified. The panel further held that whether plaintiff could prove damag es to a reasonable c e r t a i n ty on the basis of h is fullL A M B E R T V

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refund model was a question of f a c t that should be decided at trial on remand.

COUNSEL

Greg or y W e ston (arg

ued) and D avid Elliott, The W eston F irm, San D ieg o , California; Ro n ald A. Marron, The L aw Offices of Ronal d A. Marron APL C, San Dieg o, California; for Plaintiff-Appellant.

Steven N. F eld m a n ( a

r g ued) and J ohn C. Hueston, Hueston Hennig a n L L P, L os Ang eles, California; J on F

. Monroy
, Monroy Averbuck & Gy sler, W e st L ake Villag e, California; for Defendant-Appellee.

OP INION

PAEZ , Circuit J udg e:

F ederal Rule of Civil Procedure 23(f) allows a litig ant to seek an interlocutory appeal o f a district court’s order
g ranting o r deny ing c lass certificati o n

. This c ase is about whether a nd when the fourteen-day Rule 23(f) deadline may be tolled. I n a m at t e r o f first impression for this court, we hold that the R ule 23(f) deadline is n ot jurisdictional, thus equitable ex ceptions a

p ply

. W e therefore hold that a motion f or reconsideration filed within the Rule 23(f) deadline wil l toll the deadline. Parting way s w i th some of our sister circuits, we further hold that additional equitable circumstances may also warrant tolling

. As a result, we hold that the Rule 2 3(f) deadline was tolled here, when counsel for the lead plaintiff, within fourteen d ay s of the district court’sL A M B E R T V

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d e c ertification order, informed the court of his intention t o seek reconsideration, ex plained his reasons for doing so, a nd the court set a date for filing the motion w ith which counsel complied. As for the merits of the Rule 23(f) petition, we hold that the district court abused its discretion in decertify ing the class, and therefore reverse and remand.

I.

L ambert p u r c hased “Cobra Sex ual Energ y , ” an alleg ed aphrodisiac d ie t a

ry supplement manufactured and marketed by Nutraceutical, w h i c h the F ood and Drug Administration (“F DA”) had n ot approved. L abels on Cobra Sex ual E n erg y boasted that it contained performance-enhanc i n g h erbs that would provide users with “animal mag netism” and “potency wood.” On the basis of these labels, L ambert belie v e d that the product would enhance h is sex ual perf o rm a n ce a

nd increase the frequency with which he could eng ag e in sex ual activity

. H ad he known that the labels’ claims were false, he would not have purchased the product.

According to L ambert, Cobra Sex ual Energ y violated the F DA’s aphrodisiac drug rule because it claimed to increase

sex ual desire but had not b e e n t h roug h clinical testing
, a s required by 21 C.F .R. § 3 10.528(c); nor had it received F D A approval, as required by 21 C.F .R. § 310.528(b). The product also failed to display prominently a disclaimer that it h ad not been evaluated by the F DA, in alleg ed violation of 21 U .S.C. § 343(r)(6)(C). Moreover, L ambert alleg es that the supplement contained an ing redient, y ohimbe, wh i ch is dang erous for certain persons in certain doses, y et the product label contained no warning of that risk.L A M B E R T V

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L ambert broug ht a consumer class a c tion for v iolations o f California’s Unfair Competition L aw (“UCL ”) (Cal. B us. & Prof. Code §17200 et seq.), F alse Advertising L a w (“F AL ”) ( Cal. B us. & Prof. Code § 17500 et seq.), and Cons u m e r L eg al Remedies Act (“CL RA”) (Cal. C i v

. Code § 1750 et seq.). L ambert broug ht his class a c tion under F ederal Rule o f Civil Procedure 23(b)(3), which provides that a class may be certified if “questions o f law or fact common to class members predomina t e o ver any questions affecting only individual members.”

The d i s t rict c ourt initially g ranted class certification on the basis of t h e f

u ll refund damag es model. That model applies wh e n a product is shown to be w orthless, a nd damag es may be calculated b y multiply ing the averag e retail price by the number of unit s sold. I n g ranting class

c e rtification, the district court concluded that L a mbert p u t forth a “tenable theory that monetary relief can be a scertained

on a c lasswide basis

. . . [that] can be readily calculated using Defendant’s sales numbers and a n averag e retail price.” The

case was subsequently reassig ned to a different d istrict judg e because the orig inal judg e retired. Discovery proceeded a nd closed. N utraceutical then filed a motion for decertification of the class, upon which the newly a ssig ned district judg e held a hearing

.

On F ebruary 20, 2015, the district court g rante d t h e motion to d ecertify

. The district court f o und that L ambert’s full refund d amag es model was “consistent with h is theories of liability .” The court pr oceeded to find, however, that L ambert “failed to p r o vide the key evidence necessary to apply h is classwide mo d e l f o r damag es,” so common issues did n ot predominate. T he d istrict co u r t required L ambert toL A M B E R T V

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provide the actual averag e retail price, a n d L ambert h ad provided only

the sug g ested retail price.

During a March 2, 2015 status conference, ten day s a fter
t he order decertify

ing the class, L a mbert informed the co u r t of his intention to file a motion for reconsideration. Counsel

e x p l a i n ed that he had a damag e s model and evidentiar y support for it. The district court instructed L ambert to file the motion f or reconsideration w ithin ten day s—i.e., within twenty day s in total from the order decertify ing the class.

As directed by the district court, ten day s later, o n March 12, 2015, L ambert moved for reconsideration and asked for recertificat i o n

. I n his motion f or r econsideration, L ambert pointed to evidence he h ad presented in his class c ertification motion showing that the sug g ested retail price could be used in conjunction with other evidence to establish the full refund damag es model. L ambert also arg ued for the first time that,

as an alternative, he could p rove damag es throu g h nonrestitutionary

disg o rg ement.

T h e district court denied L ambert’s motion f o r reconsi deration three months later. The court rejected L ambert’s c ontention that t h e a v e rag e retail price could be calculated from the sug g ested retail price. The district court also rejected L ambert’ s non-restitutionary disg org ement arg ument, reasoning that he waived it b y presenting it for the first time i n h i s motion for reconsideration. T he court proceeded to hold that even if L ambert had not w a i v e d t he non-restitutionary disg org e ment arg ument, it was i mproper under California law, as re s t i t u tion should be measured b y what the plaintiffs lost, not by what the defendants g ained; in other words, the district c ourt held, non-restitutionaryL A M B E R T V

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d i s go r g e ment is not available under California law. 1 I n addition to declining to recertify the class, the order set forth a plan for notify

ing the class reg arding decertification.

W ithin fourteen d ay s of the order d eny ing his motion for reconsideration, L ambert f i l e d in this court a Rule 23(f) petition for per m i ssion to appeal the district court’s orders
g ranting the motion f

or class decertification a

nd deny ing the motion for reconsideration. U pon the filing of that petition, the d istrict court stay ed proceeding s p ending appeal. A motions panel of this court conditionally g ranted L ambert’s Rule 23(f) petition, instructing the parties “[ i] n addition to all other issues the[ y ] wish to raise in t h ei r briefs in the appeal, [ to] . . . address the timeliness of this petition.”

II.

B e cause the motions panel only conditionally g ranted the petition and referred the issue of timeliness to this panel, we review de novo its timeliness. See Briggs v. Merck Sharp & Dohme , 796 F .3d 1038, 1045–46 ( 9th Cir. 2015) (reviewing the timeliness of a Rule 23(f) petit i o n a fter the petition was conditionally

g ranted by

a motions panel).

A s t o the merits of the petition, we review the district court’s class decertification ruling for an abuse of discretion. Pulaski & Middleman, LLC v

. Google, Inc.
, 8 02 F .3d 979, 984 (9th Cir. 2 015); Y

okoyama v. Midland Nat’l Life I ns. Co.
,

1 W h ile n o n

- restitu

tio n ary d am ag es ref

er t o th e d ef

en d an t’ s rev en u es reg ard less o f th e p lain tif

f ’ s relatio n sh ip t o th o se d am ag es, restitu tio n ary d am ag es ref

er to th e p o rtio n o f th e def en d an t’ s rev en u es o v er w hi c h t h e p lain tif f h as so m e o w

n ersh ip claim

. S

ee Ko rea S

u p p ly Co

. v. Lo ckh eed Ma rtin Co rp

. , 6 3 P .3 d 9 3 7 , 9 4 1 (Cal. 2 0 0 3).L A M B E R T V

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5 9 4 F .3d 1087, 1090–91 (9th Cir. 2 010). “A district cour t would necessarily abuse its discretion if it based its ruling on

an erroneous view o f t h e law or a clearly erroneous assessment of the evid e n c e. ” United States v. Hinkson
, 585 F. 3 d 1247, 1259 (9th Cir. 2 009) (en banc) (quoting Cooter & G ell v. Hartmax Corp.
, 496 U.S. 384, 4 05 (1990)). W e review finding s of fact in the class certificatio n determination for clear error. Abdullah v. U.S. Sec. Assocs., Inc. , 731 F .3d 952, 956 (9th Cir. 2013).

III.

R u le 23(f) g overns interlocutory appeals of “order[ s]
g ranting or deny ing class-action certification

. ” F ed. R. Civ. P. 23(f). The Rule requires that a petition for permission to appeal be filed “within 14 day s after the order is entered.” Id. Rule 23(f) is silent as to the effect of m o t i o n s for reconsideration o n this deadline. Here, the d istrict court decertified the class o n F ebruary 20, 2015

. L ambert’s Rule 23(f) petition, however, was not filed u n til J une 24, 2015, f o urteen day s after the c ourt denied his motion f o r reconsideration. Under the p l a i n tex t of Rule 23(f), L ambert’s petition would be untimely because it was not filed within fourteen day s of the distri c t court’s initial order decertify ing the c l a s s. I n o ther words, unless an ex c eption applies, L ambert’s Rule 23(f) petition would be barred.

To determine whether L ambert’ s R u le 23(f) petition is timely
, we must first determine whethe r Rule 23(f) is jurisdictional. W e conclude that it is non-jurisdictional, a nd that equitable remedies softening the deadline a r e therefore
g enerally available. Specifically
, we hold that a motion for reconsideration filed w ithin fourteen day s of the c ertification

o r d e r tolls the Rule 2 3(f) deadline. W e also hold that t h eL A M B E R T V

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d e a d l i n e can be tolled as a r esult of additional equitabl e circumstances. I n lig ht of the circumstances in this c ase, we conclude that the Rule 23(f) deadline was tolled and deem L ambert’s petition timely

.

A.

W e turn first to whether the fourteen-day deadline in Rule 23(f) is juri s d i ctional. Two Supreme Court cases p rimarily
g uide our i n q u i r y

. I n Eberhart v. United States
, the Court held that a deadline in the F ederal Rules of Criminal Procedure was not jurisdictional because it was a procedural claim-processing rule, as opposed to a rule that delineated the classes of cases or persons withi n a court’s a djudicatory authori t y

. 546 U.S. 1 2, 15–16 (2005). Several y ears later, th e C ourt held in Bowles v. Russell that deadlines contained in statutes are jurisdictional, but non-statutory deadlines, such

as those in the F ederal Rules of Civil or Criminal Procedure,
may instead be procedural “claims-processing ” r u les. 551 U.S. 205, 211–14 (2007).

W e have not y et had o ccasion to apply these cases to Rule 23(f). W e have, however, concluded that an immig r ation
reg ulation requiri ng a petitioner to file his notice of appeal with the B o ard of I mmig ration Appeals within thirty day s o f the immig rat i on judg e’s adverse ruling is not jurisdictional because it is reg ulatory
, rather than statutory

. IrigoyenBriones v. Holder
, 644 F .3d 9 43, 948–49 (9th Cir. 2011). I n Irigoyen-Briones
, w e also n oted that the reg ulatory provision that contained the d eadline did not use t h e w ord “jurisdiction,” and that the Supreme Court had n arrowly def i n ed jurisdictional r

ules as those that remove a court’s authority to hear a case. Id.L A M B E R T V

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The Third Circuit h a s h ad occasion to consider the jurisdictional nature o f Rule 23(f). I n G utierrez v. Johnson & Johnson
, t h e T hird Circuit held that in lig ht of Bowles
, the Rule 23(f) deadline is not jurisdictional because it is set forth in a rule promulg ated by t h e S u p reme Court, not a statute enacted by Cong ress. 523 F .3d 187, 197–98 (3d Cir. 2008). Other circuits have likewise sug g ested that the Rul e 23(f) deadline is not jurisdictional. See, e.g. , Carpenter v. Boeing Co.
, 456 F .3d 1183, 1190 n.1 (10th Cir. 2006) (no t i n g t h at

a l t houg h the court had previously h eld Rule 23(f) to b e jurisdictional, Eberhart “c a sts doubt” on that notion); Coco

v. Inc. Vill. of Belle Terre, N.Y

. , 448 F .3d 4 90, 491–92 (2d Cir. 2006) (declining to decide whether Rule 23(f) is jurisdict i o n al, but noting that Eberhart “calls the jurisdictional nature of Rule 23(f) into question”).

W e conclude that u nder Bowles a nd Eberhar t , the Rule 23(f) dead l i ne is not jurisdictional because it is procedural, does not remove a court’s authority over s u b j ect matters o r persons, and is in the F e deral Rules of Civil Procedure, rather than in a statute.

B.

B e cause the Rule 23(f) deadline is not jurisdictional, equitable ex ceptions, such as to l l ing
, may apply

. 2 W h en deadlines are not j urisdictional, courts may apply judicial equitable ex c eptions to avoid or soften the time lim itations. Bowles
, 551 U.S. at 211–14; Gutierrez
, 5 23 F .3d at 197 (“The

2 Eq u itab le ex cep tio n s in clu d e to llin g , th e u n iq u e circu m sta n c es d o ctrin e, an d oth ers. S

ee Gu tierrez
, 5 2 3 F .3 d at 1 9 7

. Becau se w e reso lv e th is case o n th e b asis o f to llin g , w e n eed n o t a d d r e ss th e u n iq u e circu m s tan ces d o ctrin e.L A M B E R T V

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import of this distinction between jurisdictional a nd non

jurisdictional r

ules, according to the Supreme Cour t , is that
courts cannot create equitable ex ceptions to jurisdictional time limits.”).

Equitable ex ceptions arise from the “traditional power o f the courts to apply the principles

. . . of equity jurisprudence. The classic ex ample is the doctrine of equitable tolling
, which permits a court to pause a statutory time limit when a litig ant has pursued h i s rig hts dilig ently b ut some ex traordinary circumstance prevents him from b ring ing a timely action.” Cal. Pub. Emps. Ret. Sys. v

. ANZ Sec., I nc. , 137 S. Ct. 2042, 2051 (2017) (citations and internal quotation marks omitted). “At bottom, the p urpose of equitable tolling is to ‘soften the harsh impact of te c h n ical rules w hich mig ht otherwise prevent a g ood faith litig ant f rom having [ her] day in court.’” R u din v. Myles
, 781 F .3d 1043, 1055 (9th Cir. 20 1 5 ) (alteration in orig inal) (quoting United Stat es v. Buckles
, 647 F .3d 883, 891 (9th Cir. 2011)).

C.

A l l circuits to consider tolling the Rule 23(f) dea d l i n e have held that the deadline may b e tolled when a litig ant f iles

a motion for reconsiderat ion within the fourteen-day deadl i n e. 3 These circuits have reasoned, for ex ample, that

3 S ee Gu tierrez
, 5 2 3 F.3 d at 1 9 3 (h o ld in g th at “ f o r t h e p u r p o s e o f
to llin g th e tim e w ith in w h ich to f ile a R u l e 2 3 (f ) p etitio n , a ‘ tim ely ’

m o tio n to reco n si d e r is o n e th at is f iled w i th i n th e [f

o u rteen ]- d ay p erio d
set f o rth i n Ru le 2 3 (f

)”); Nu co r Co rp

. v. Bro wn , 7 6 0 F.3 d 3 4 1
, 3 4 3 (4 th Cir. 2 01 4 ) (statin g th at a m o tio n f o r reco n sid eratio n f

iled w ith i n f

o u rteen d a y s o f t h e ord er g ran tin g o r d en y in g class certif

icatio n can to ll a Ru le 2 3 (f ) d ead lin e); Fleisch ma n v. Alb a n y Med

. Ctr
., 6 3 9 F.3 d 2 8, 3 1– 3 2 (2 d Cir. 2 01 1 ) (sam e w ith

resp ect to a m o tio n

to am en d ); In re DC W

a ter &L A M B E R T V

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“federal courts l ong have held that a motion for reconsiderat i o n tolls the time for appeal, provided that the motion is made within the time f or appeal.” Blair v. Equifax Check Servs., Inc.
, 181 F .3d 8 32, 837 ( 7th Cir. 1999). W e ag ree, a nd therefore h old, as a baseline matter, that a motion for rec o n sideration filed within fourteen day s of a certification decision tolls the Rule 23(f) deadline.

D.

Of course, in this case, that holding does no t en d t h e inquiry

. L ambert did not file his motion for reconsideration until twenty d a

y s after the d istrict court decertified the class. W e nonetheless hold that L ambert is entitled to tolling g iven the history

of this case.

Equitable ex ceptions such as tolling are meant to allow a “a g ood faith litig ant” to have “[ h er] day in court.” Rudin
, 781 F .3d at 1 0 55 (alteration in o rig inal) (internal qu o t ation marks omitted). According ly
, in determining when equitable circumstances bey ond a motion for reconsideration fi l ed within the fourteen day Rule 23(f) d eadli n e c an toll that deadline, we look to equitable f act o rs such as whether the litig ant “pursued his rig hts dilig ently ,” and whether ex ternal circumstances, such as a deadline imposed b y t h e district

S ewer Au th

. , 5 6 1 F.3 d 4 94
, 4 96 (D.C. C ir. 2 0 0 9 ) (sam e w ith resp ect to a

m o tio n f o r reco n sid eratio n ); Jen kin s v. BellS ou th Co rp

. , 4 9 1 F.3 d 1 2 8 8
, 1 2 9 1

– 9 2 (1 1 th C i r

. 2 0 0 7 ) (sam e); Ca rp en ter , 4 56 F.3 d at 1 1 9 0

– 9 2 (sam e); McNa ma ra v. Feld erh o

f
, 4 1 0 F.3 d 2 7 7
, 2 8 1 (5 th Cir. 2 00 5 ) (sam e); Ga r y

v. S h ea h a n , 1 8 8 F.3 d 8 9 1
, 8 9 2 (7 th Cir. 19 9 9 ) (sam e); S h in v. Co b b Cty. Bd

. o f Ed u c. , 2 4 8 F

. 3 d 1 0 6 1
, 1 0 6 4 n .1 (1 1 t h Cir. 2 0 0 1 ) (sam e); Bla ir v. Eq u ifa x Ch eck S

ervs., In c. , 18 1 F.3 d 8 3 2
, 8 36 –3 7 (7 th Cir. 1 9 9 9 ) (sam e).L A M B E R T V

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court, 4 affected the litig ant. Cal. Pub. Emps. Ret. Sys.
, 137 S. Ct. at 2050.

W e also look, as a factor, to whether a litig ant took some other a ction similar to filing a motion for reconsideration within the fourteen-day deadline, such as a letter or verbal representation convey

ing a n intent to seek reconsid e r ation and providing the basis for such action. W e are not alone in considering this as a factor. I n M cNamara v. Felderhof

, the F ifth Circuit considered whether tolling of Rule 2 3(f)’s deadline was available when a litig ant stated in a c ourt filing that he w ould seek reconsideration of certific a t i o n within f o urteen day s, but d id not file a f ormal motion f

o r reconsideration within that time. 410 F

. 3d 277, 279–80 (5th Cir. 2005). T he F ifth Circuit concluded th a t a “Trial a nd Case Manag ement Plan” (“the Plan”) could toll the Rule 23(f) filing deadline. Id. The Plan specifically soug ht “ revisitation and modification” of the class certification ruling

. Id. at 280 (internal quotation marks omitted). The F ifth Circuit reasoned that the Plan should be considere d a m o t ion for

4 P etitio n s f

o r certio rari in t

h e Su p rem e Co u rt pro v id e a u sef u l

an alo g y

. T h e ad v iso ry co m m ittee n o tes to Ru le 2 3 (f

) p ro v id e th at “ [t]h e

co u r t o f ap p eals is g iv en u n f ettered d iscretio n w

h eth er to p erm it th e ap p eal, ak in t o th e d i scretio n ex ercised b y th e S u p rem e Co u rt in actin g on

a p etitio n f

o r certio rari.” Fed

. R. Civ

. P

. 23 (f ) ad v iso ry co m

m ittee’ s n o te to 1 9 9 8 am en d m en t. In d iscu ssin g th e tim elin ess o f a R u le 2 3 (f ) p etitio n , th e Elev en th Circu it cited t h e ad v iso ry co m

m i ttee’ s certio rari an alo g y

. J e n kin s , 4 9 1 F.3 d at 1 2 9 0; cf. Bla ir
, 1 8 1 F.3 d at 8 3 3

– 3 4 (lo o k i n g t o p etitio n s f

o r certio rari to d eterm in e su b stan t iv e stan d ard s f

o r Ru l e 2 3 (f

)). P etitio n s f

or certio rari m

u st b e f iled w ith in

n in ety d ay s, b u t m ay b e f iled later w h en

a tim ely p etitio n f or reh earin g is g ran ted o r w h en th e co u rt o f
ap p eals en tertain s an u n tim ely p etitio n f or reh earin g

. Su

p

. C t

. R. 1 3 (1 ), (3 ). B y a n a l o g y , m

u ch lik e th e co u rts o f ap p eals’ au th o rity to af f ect th e Su p rem e Co u rt’ s certio rari petitio n d ead lin e, d istrict co u rts h av e au t h o rity
to af f ect th e Ru le 2 3 (f

) d ead l in e.L A M B E R T V

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reconsideration f

o r t o lling purposes b ecause it “called into question the correctness of the district court’s [ certification] order.” I d

. The F ifth Circuit also reached this conclusion because it “d[ id] not re a d Rule 23(f) as so limiting in nature.” 5 Id. T he Seventh Circuit has stated, similarly
, that it does not “matter[ ] w h a t caption the litig ant places on the motion to r e consider.” Gary v. Sheahan
, 188 F .3d 891, 893 (7th Cir. 1999). Accordingl y , a n important factor in the
to l l i n g analy sis is w hether the litig a n t p rovided, w ithin the R u l e 23(f) deadline, notice of the intent to se e k reconsideration.

Here, a number of e quitable factors support tolling the Rule 23(f) deadline. L ambert clearly convey ed his intention
to file a motion for reconsideration seeking recertification on the tenth day after entry of t h e o r d er decertify ing the c lass. At a status conference, L ambert spec i fi c a lly informed the
court o f his intention to seek recertifi c ation and briefly

ex p lained his r easons f

or doing so. The distri ct c o u r t then instructed L ambert to file his motion within ten day s, which allotted him twenty day s in total f ro m the decertification order. The district court imposed the deadline a fter an

ex c h a ng e with L ambert’s counsel as to whether it was reasonable. L a mbert complied, and filed his motion for reconsideration w i thin the period set by the district court. L ambert also filed the Rule 23(f ) p etition within f

ourteen day s after the district c o u r t denied the motion for reconsideration. W e hold that b ecause L ambert informed the
court orally of his intention to seek reconsideration of the decertifi c a tion order a

nd the basis for his intended filing within fourteen day s of the decertification order a nd

5 McNa ma ra u ltim ately d ism issed th e p etitio n as u n tim ely b ecau s e th e P lan w as n o t f iled w ith in

th e Ru l e 2 3 (f

) d ead lin e.L A M B E R T V

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otherwise acted d ilig ently
, and because t h e district court set the deadline for fili n g a motion for reconsideration with which L ambert complied
, t h e Rule 23(f) deadline should be tolled.

W e recog niz e that other circuits would likely not toll the Rule 23(f) d eadline i n L a m b ert’s case. To the ex tent other circuits limit Rule 23(f) tolling o nly to the c irc u m s t a nce where a motio n f

or r econsideration is filed within f ourteen day s of the c e r t i f

i cation order, we part way s with them. Other circuits h a v e , for ex ample, held that a motion for reconsideration filed more than fourteen day s a fter a certification ord e r w i l l not toll the deadline even when the district court set or influe n c e d t h at deadline. I n a case in which a district cour t e x tended the time to file a motion for reconsideration well bey ond th e R u le 23(f) deadline, the Third Circuit held that e ven if a motion for reconsideration is timely for the district court’s purposes, it is unti m e l y if it is filed outside of Rule 2 3(f)’s fourteen-day period. Gutierrez
, 523 F .3d at 1 93 n.5 (“[ A] motion to recons i d er t h a t is filed more than [ fourteen] day s after an order g ranting or deny

ing class certification will not toll the time to file a 23(f) petition,

even if the motion is ‘timely ’ as defined by the district court’s rules o r its scheduling o rder.”); see a lso Jenkins v. BellSouth Corp.
, 491 F .3d 1288, 1289 (11th Cir. 2007) ( providing that

a district court cann o t manipulate the timeliness of a Rule 23(f) petition by vacating and reentering the order deny ing class certification to make it timely ); Delta Airlines v. Butler
, 383 F .3d 1143, 1145 (10th Cir. 2004) (holding that even if a district court e x tended the time to file a Rule 23(f) petition, this could not toll the fourteen-day period because the district
court lacked such authority ). Similarly
, the Third Circuit h eld that an informal letter to the d istrict court convey ing an intent
to seek reconsideration of a c ertification d ecision filed withinL A M B E R T V

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f o u rteen day s would n ot toll the time to file a Rule 23(f ) petition, b ec ause it did not specifically request c ertification

n o r provide reasons why the certification o rder was wro n g. Gutierrez , 523 F .3d at 194–95.

The reasons offered b y other circuits for strictly limiting the availability of Rule 23(f) tolling
, by only a l lowing for tolling w h en a motion for r econsideration is filed within the fourteen-day

period, are not persuasive.

F irst, t he fourteen-day deadline is for filing a Rule 23(f) petition, not for filing a motion for reconsideration in federal
court. T hus, the fourteen-day limitation on tolling h a s no basis in Rule 2 3 or any o the r R u l e , but instead is a judicial
construct. L itig ants h av e n o reason to know that their deadline for filing a motion for reconsideration is effectively fourteen day s, rather than w hatever the d i s t r ict judg e has ordered.

Second, those circuits that have strictly const r ued the Rule 23(f) f

ourteen-day deadline have reasoned that Rule 23(f) p etitions slow down litig ation, are disruptive, and inject uncertainty into class action litig ation. 6 F or ex ample, the

6 In d ef i n in g th e su

bstan tiv e sta n d ard s o f Ru le 2 3 (f ), w e ad op ted

m u ch o f th e reaso n in g d iscu ssed

b y o th er circu i ts w ith

resp ect t o t im in g :

First, th e ru l e p ro v id es a m ech an ism th ro u g h w h ich
ap pellate co u rts, in th e in terests o f f airn ess, can resto re eq u i lib riu m w

h en a do u b tf u l class certif

icati o n ru lin g

w o u l d v irtu ally co m

pel a party to ab an do n a p o ten tially

m erito rio u s claim o r d ef

en se b ef o re trial. A n d seco n d
, th e ru le f u rn ish es an av en u e

. . . [to ] tak e earlier- th an

u su al co g n izan ce o f im p o rtan t, u n settled le g al
q u estio n s, t

h u s co n t rib u tin g to b o th th e o rd erly p ro g ressL A M B E R T V

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D i s trict of Columbia Circuit ex plained that “[ c] our t s g enerally disfavor interlocutory appeals because they disrupt
ong oing trial court proceeding s and squander resources.” I n

re DC W ater & Sewer Au t h

. , 5 6 1 F .3d 494, 497 (D.C. Cir. 2009); see also Shin v. Cobb Cty. Bd. of Educ.
, 248 F .3d 1061, 1064 (11th Cir. 2001) (describing Rule 23(f) p e titions

as “an avenue o f last resort” and “inherently disruptive, timeconsuming
, and ex pensive”). The Third Circuit in G utierrez

ex p lained that, as a result, the Rule 23(f) dea d l i n e is purposely short, to “ensure that interlocutory appeals of class certification decisions are he ar d a n d decided in a timely
manner, so as not to d i s r u pt the proceeding s at the district
court level.” 52 3 F. 3 d a t 199 ( citing F ed. R. Civ. P. 23(f) advisory com m ittee’s note to 1998 amendment). The Eleventh Circuit has ex pressed concern that a ppellate court

re v i e w ge nerally takes more time than disposition by a trial
court. Shin
, 248 F .3d at 1064. Moreover, the Seventh Circuit

ex p lained that because class certific a t ion can have major
consequences for litig ation strateg ies and resources, a n d for the possibility of settlement, allowing for only one short window of r eview “p e r m i t[ s] the parties to proceed in confidence about the scope and stakes of the case.” S heahan
, 188 F .3d at 893.

T h e p r e mise that Rule 23(f) petitions are disruptive a nd slow is not universally true and we decline to adopt any hard

a n d fast rule on the basis of such a n idea. F irst, R u l e 2 3 ( f

)

o f co m p lex litig atio n an d th e o rd erly dev elo p m en t of law

. . . . In terlo cu to ry ap p eals are g en erally d isf av o red b ecau se t h ey are d isru p tiv e, tim e- co n su

m in g , an d

ex p en siv e.

Ch a m b erla n v. Fo rd Mo t o r Co

. , 40 2 F.3 d 9 5 2
, 9 5 7 –5 9 (9 th Cir. 20 0 5) (p er cu riam ) (citatio n s an d in t ern al q u o tatio n m ark s o m itted ).L A M B E R T V

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petitions do n ot actually slow down l i t i gation. Rule 23(f)
p e t i t i o n s d o n o t a u t o m a t i c a lly s t a y d i s t r i c t co u r t proceeding s—only the district court can g rant a stay , as it did in this case, a

nd it has discretion whether or not to do so. See B l a i r , 181 F .3d at 835 (sug g esting that such stay s wi l l b e infrequent). L ikewise, d istrict courts are bound to ex perience delay when they are confron t e d with motions for reconsideration, irrespective of any Rule 23(f) petition. The district court in this case, for e x ample, kept L ambert’s motion for reconsid e r a t ion under submission for more than three months; and statistical studies b y the F ederal J udicial Center show that median rang e s f o r decisions on class c ertification motions rang e from seven to fifteen months. See Thomas E. W illg ing et al., F ed. J udici al Ctr., Empirical Study of Class Actions in F our F ederal District Courts: F inal Report to the A d v i s o r y C o m m i t t e e o n C i v i l R u l e s 2 7 ( 1 9 9 6 )
, h t t p : / / w w w.uscourts

. g o v / s i t e s / d e f

a u l t / f i l e s / r u l e 2 3

_ 1

. p d f

. T h e T h ird a nd Eleventh Circuits’ sug g estions that district courts “ordinarily ” r

ule on motions for reconsideration more quickly than appellate courts, and are “ex pect[ ed] ” to do so, are v ag ue and lack persuasive force in lig ht of th e ev idence to the contrary

. See Gutierrez
, 523 F

. 3 d at 199; Shin
, 248 F .3d at 1064. W e r ecog niz e that Rule 23(f) petitions may leng then litig ation. B ut so d o m otions for reconsideration of a class action decertification decision when no 23(f) petition is filed, which every circuit t o c o nsider the question h as treated a s valid g rounds for equitable tolling

.
Third, Ru l e 2 3 (f) petitions do not uniquely disrupt o r inject uncertainty into the litig ation. Rule 23(c)(1)(C) a llows modify ing o r amendi ng an order g ranting or deny ing class certification up to the time o f final judg ment, at the discretionL A M B E R T V

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of the district court. F ed. R. Civ. P. 23(c)(1)(C) 7 ; see I n re DC W ater & Sewer Auth.
, 561 F .3d a t 497 (noting that district
courts may reconsider and modify class cert i f i cation throug hout the case); Shin
, 248 F .3d at 1064 (ex plaining that district courts h ave the ability
, “and perhaps even a d uty ,” to reconsider certification as the c ase prog resses). I f the district court may chang e its class certification decision at any time, interlocutory review should not a ffect the parties’ level o f certainty as to the f

inality of that d ecision, n or should i t be unusually or particularly d i s ruptive. See Michael G

. McL ellan, If at First Y ou D o n’t Succeed: The V a rying Standards Applicable to Renewed Mo t i ons for Class Certificatio n , 3 0 A.B .A. A N T I T R U S T 89, 92 (Summer 2 016) (sug g esting that Rule 23(f) and Rule 23(c)(1)(C) are strateg ic alternatives available to class action litig ants).

I f any thing
, Rule 2 3(f) appellate review may increase the level of certainty for litig a n ts. Once a

n appellate court speaks
to class certification issues in a Rule 23(f) appeal, the district

c o u r t can no long er reconsider those issues under Rule 23(c)(1)(C), or at least its authority to d o so will be narrowed by the court of appeals’ ruling
, t h u s e n hancing certainty for the parties and the district court. See McLellan
, supra , a t 92 (ex plaining that a Rule 23(f) decision constrains the district court’s ability to alter o r amend certification under Rule 23(c)(1)(C)) (citing Gene & G ene, L.L.C. v. BioPay, L.L.C.
, 624 F .3d 698, 703 (5th Cir. 2010)).

I n sum, we hold that (1) Rule 23(f)’s d ea dline is not jurisdictional, (2) equitable ex ceptions therefore apply
, such

7 Fed eral Ru l e o f Civ il P ro ced u re 2 3 (c)(1 )(C) p ro v id es: “ A n o r d e r t h a t g ran ts o r den ies class certif icatio n m ay b e altered o r am en d ed b ef o re f in al j u d g m en t.”L A M B E R T V

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that (3) motions for reconsideration filed within fourteen day s toll that deadline. W e also hol d t hat (4) equitable circumstances bey ond a formal motion to reconsi der filed

w i thin fourteen day s can toll the Rule 23(f) deadline. A s discussed above, equitable circumstances tolled the R u le 23(f) fourteen-day deadline so that L ambert’s 23(f) p etition was timely

filed in this court. 8

IV.

As L ambert’s p e t i t i o n was timely
, we turn to the merits, and conclude that the d istrict court abused its discretion in decertify ing the class on the basis o f L ambert’s inability to prove restitution damag es throug h the full refund model.

L ambert broug ht his c o n sumer class action under F ederal Rule of Civil Procedure 2 3(b)(3). “Under Rule 23(b)(3), the
court must find that ‘questions of law or fact c ommon to class

m e m b e rs predominate over any questions affecting only individual members.’” Pulaski
, 802 F .3d a t 985. A Rule 23(b)(3) plaintiff must show a c lass wide method for damag e s

8 T h e p arties also d eb ate w h eth er an o rd er g ran tin g a m o tio n f or

reco n sid eratio n

p ro v id es a n ew

f o u rteen

- d ay w in d o w to f ile a Ru l e 2 3 (f

)
p etitio n , b ecau se su ch an o rd er is “ an o rd e r g r a n t in g o r d en y in g class certif icatio n .” T h is w o u ld b e an o th er i s s u e o f f irst im p ressio n f

o r th is

co u rt. Oth er circu i ts t o co n sid er t h e issu e h av e h eld th at p etitio n ers receiv e an ad d itio n al f

ou rteen d ay s to f

ile a Ru le 2 3 (f

) p etitio n if a m o tio n f o r reco n sid eratio n is g ran ted an d ch an g es th e statu s q u o o f c l ass certif icatio n , reg ard less o f w

h en t h e m o tio n i s fi l e d

. S

ee Nu co r Co rp

. , 7 6 0 F.3 d at 3 4 3 ; Fleisch ma n , 6 39 F.3 d at 3 1 ; In r e D C W a ter & S ewer Au th

. , 56 1 F.3 d at 4 9 6 ; Gu tierrez , 5 2 3 F.3 d at 1 9 4 ; Jen kin s , 4 9 1 F .3 d at 1 2 9 1

– 9 2 ; Ca rp en ter , 4 56 F.3 d at 11 9 1

– 9 2 ; McNa ma ra , 4 10 F.3 d at 2 8 1

. W e n eed n o t d ecid e th is q u estio n , as w e h o ld th at L am b ert’ s p etitio n w as tim ely u n d er a to llin g t

h eo ry , a n d
, in an y case, th e d i strict co u rt d en ied L am b ert’ s m o tio n

.L A M B E R T V

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c a l culations as a part of the assessment of whether commo n q u e s tions p redominate over individual questions. Leyva v. Medline Indus. Inc. , 716 F .3d 510, 514 (9th Cir. 2013). The party seeking to maintain class c ertification bears the burden of demonstrating that the Rule 23 requirements are satisfied,

even on a motion to decertify

. Marlo v. United Parcel Serv., Inc.
, 639 F

. 3d 9 42, 9 47 (9th Cir. 2011); United Steel W orkers v. ConocoPhillips Co.
, 593 F .3d 802, 807 (9th Cir. 2010).

W e have repeated l y emphasiz e d that uncertain damag e s calculations should not defeat c ertification. I n Y okoyama
, we held that “damag e calculations a lone cannot defeat certification.” 594 F

. 3d a t 109 4

. A ft er our d e cision in Y o koyama
, the Supreme Court held in Comcast that a Rule 23(b)(3) plaintiff must show that “ damag es are capable o f
measurement on a classwide bas is.” Comcast Corp. v

. Behrend
, 133 S.Ct. 1426, 1433 (2013). W e h a v e since reconciled our holding that uncertain damag es cannot destroy class certification with Comcast ’s holding that plaintiffs must show that their damag es a re capable of cla s s wide
measurement. I n Leyva
, we r e a ffi rmed that uncertain damag es calculations alone c annot defeat class c ertification because Comcast stood on l y for the proposition that “plaintiffs must b e able to show that their damag es stemmed from the defendant’s actions that c reated the leg al liability

. ” Leyva , 716 F .3d at 513–14.

Uncertainty

reg arding class members’ damag e s does not prevent certification of a class as long a s a valid method has been proposed for calculating those damag es. Id. at 514; see also A laska Rent-A-Car, Inc. v. Avis Budget G rp

. , I n c. , 738 F .3d 960, 970 (9th Cir

. 2 0 1 3 ) ( ex plaining that the law “requires only that damag es be capable of measurement based
upon reliable factors wi t h o ut undue speculation”). “[ T] heL A M B E R T V

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fact that the a mount o f damag e may not be s u s c e p t ible o f

ex a c t proof or may b e uncertain, c o n t i n gent or difficult o f ascertainment does not b ar reco v e r y

. ” Pulaski
, 802 F .3d at 989 (quoting Marsu, B.V. v. W alt Disney Co. , 185 F .3d 932, 939 (9th Cir.1999)); see al s o J u s t Film, Inc. v. Buono
, 847 F .3d 1108, 1121 (9th Cir. 2017) (reaffirming that so long

as the proposed damag es model is at t r i b utable to the plaint i f f’ s leg al theory of the harm, and damag es can be determined without ex c essive difficulty
, decertification is not warranted).

Class wide damag es calculations under the UCL
, F AL
, and CL RA are particularly forg iving

. California law “requires only that some reasonable basis of computation o f damag es be u sed, and the damag es may be computed even if the result reached is an a

p prox imation.” Pulaski
, 8 02 F .3d at 989 (quoting Marsu
, 185 F .3d at 938– 3 9 ) (referring to the UCL and F A L ); see a lso W iener v. Dannon Co.
, 255 F .R.D. 658, 670 (C.D. Cal. 2009) (providing th a t courts also have “‘very broad’ discretion to determine” dam a ge s under the CL RA); Colgan v. Leatherman Tool Grp., Inc.
, 38 Cal. Rptr. 3d 3 6
, 61 ( Cal. Ct. App. 2006) ( ex plaining that damag e s under the UCL and F AL “must be of a measurable amount to restore to the plai n t i f

f what has been acquired b y violations of the statutes, and that measurable amount must be supported by evidence”). Under California law, because restitution “damag es may be computed even if the result re a ch e d i s an approx imation,” GHK Assocs. v. M ayer Grp., Inc.
, 274 Cal. Rptr. 168
, 1 7 9 (Cal. Ct. App. 1990), uncertain damag e s should not prevent class certification, B .W .I

. Custom Kitchen

v. Owens-Illinois, Inc.
, 235 Cal.Rptr. 228, 237 (Cal. Ct. App. 1987) (“[ W ] e know o f no c ase where [ f actual determinations of damag es] ha[ ve] prevented a court from aiding the class to obtain its just restitution.”).L A M B E R T V

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L ambert proposed measuring c lass wide damag e s under the full refund model. The full r ef u n d m odel measures damag es b y presuming a full refund for each customer, on the basis that the product has no o r only a de minimis value. FTC

v

. Figgie Int’l, Inc.
, 9 94 F .2d 595, 606 (9th Cir. 19 9 3 ) (“Customer s w ho purchased rhinestones sold as diamonds should have the o pportunity to g et all of their money back.”). Here, L ambert presented e vidence that the p roduct at i ssue

w as v alueless and therefore amenable to full r e fu n d
treatment. W e ag ree with the district court tha t the full refund model is c onsistent with L ambert’s theory of liability

. According ly
, L ambert w as required only to show that the full
p r i c e amount o f retail sales of the product could b e approx imated over the re l e v a nt time p eriod, even if that fig ure or the data supporting it—in this c ase the averag e retail price multiplied by the number of units sold—was uncertain. 9 Leyva , 716 F .3d at 514.

Althoug h L ambert did not present evidence of the actual
averag e retail price, he did present evidence of both u nit sales and the sug g ested retail price over the relevant time period. 1 0 There may well be additional evidence that L ambe rt c o u ld present at trial to support an averag e ret a il price. F o r

9 T h is i s n o t to say t

h at ev ery case p ro ceed in g u n d er a f u ll ref u n d th eo ry m u s t p r o d u c e f

ig u res f o r th e av erag e p rice an d u n it sales o f a p ro d u ct. A s L am

b ert arg u ed in h is m o tio n f o r class certif

icatio n , po in t- o f

sale d ata ap p ro x im atin g th e to t al retail ex p en d itu re w o u ld also b e an ap p ro p riate m eth o d of calcu latin g restitu tio n o n a w o rth less item

. So
, to o , w o u ld ev id en ce o f th e d ef en dan t’ s w

h o lesale rev en u e, if reaso n ab ly
cap ab l e o f b ein g w e i g h ed o r ad j u sted by th e trier o f f

act to acco u n t f

or p o ssib le d if

f eren ce b etw een w

h olesale an d retail v alu es.

10 No tab ly
, th e su g g ested retail p rice w as cited as o n e o f th e o rig in al
g ro u n d s f o r certif y in g th e class.L A M B E R T V

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ex a mple, the record contains evidence that L a mbert p aid $16–$18 per 30-count bottle of the product and that Nutraceutical, throug h its w ebsite, sold 30- c ount b ottles for $14.39 during this time frame. The sug g ested retail price in conjunction with L ambert’s other e vidence sug g ests that a trier of fact could cal c u l a te or sufficiently approx imate the
averag e retail price for the product.

W e recog n iz e that a sug g ested retail price doe s n o t “automatical l y config u re an averag e,” but such a precise
averag e is unnecessary f

or class cer t i fi c a tion. At this stag e , the q uestion is only whether L ambert h as presented a workable method. W e conclude that he has.

According ly
, becaus e L a

mbert’s damag es model matched his theory of liability
, and because L ambert had sh o w n that his damag es model was supportable on evidence that c ould be introduced a t trial, the class should not have been decertified. The district court abused its discretion in holdingotherwise,

c o ntrary to our law. See Hinkson
, 5 85 F .3d at 1261–62 (holding that leg al error is an a b use of disc r e t i o n); see also Pulaski
, 802 F

. 3d at 989; Leyva
, 716 F .3d at 5 1 3

– 1 4; Y o koyama
, 594 F .3d a t 1094. Whether L ambert could prove damag es to a reasonable certainty o n t h e basis of h is full refund model is a q u e s t ion o f fact that should b e decided at trial. 1 1

11 Becau se w e h o ld th at L am b ert sh o w ed d am ag es s u f

f icien t to av oid d ecertif icatio n u n d er th e f

u ll ref u n d m o d el, w e n eed n o t reach th e q u estio n

o f w h eth er h e w aiv e d h is n o n

- restitu tio n ary disg o rg em en t arg u m en t, or

w h eth er th at arg u m en ts f

ails o n th e m erits.L A M B E R T V

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V.

F or the foreg oin g reasons, we conclude that L ambert’s Ru l e 2 3(f) petition was timely
, reverse the district court’s order decerti f

y ing the class, a

nd remand for f

urther proceeding s consistent with this opin ion.

REVERSED AND REMANDED.