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.