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Follow the springing notice of appeal

October 10, 2013 by in General

This case involves the appeal of a class action settlement. Who would appeal the settlement of a class action? The insurer who has to pay for it. Unfortunately for the insurer, its appeal came too late.

A little less than a month after the district court entered final judgment approving a class action settlement (which was entered into without notice to, or approval of, the defendant’s insurer), the Seventh Circuit issued decision in another case that, as the court put it, cast “significant doubt on the conduct of class counsel” and vacated class certification in that case. A day after that decision was released, the insurer moved to intervene in this case to reopen the judgment, challenge the settlement, and seek decertification of the class based on the same class counsel’s alleged misconduct. The district court held a hearing on the intervention motion on a date which just happened to be the last date to appeal the judgment. The court did not rule then, but ultimately denied the motion three days later. The next day, the insurer filed a notice of appeal from the denial of its motion to intervene and the judgment approving the settlement.

The court held that the appeal of the judgment on the settlement was untimely because it was filed 36 days after the judgment was entered and no extension of the deadline had been granted. Further, although the appeal was timely as to the denial of the intervention motion, the court of appeals found that it could provide no meaningful relief in that respect because the underlying judgment was final so intervention to challenge it would have been pointless. For that reason, the court dismissed the appeal for lack of jurisdiction.

What should the insurer have done? According to the court, it had several options before 30 days passed after entry of the judgment. Within that time, it should have: (1) secured a ruling on the intervention motion; (2) obtained an extension of time to file the appeal; or (3) filed a protective “springing” notice of appeal before the expiration of the 30-day appeal period. Because the insurer allowed the time to elapse without doing any of those, it was left without an appellate remedy.

CE Design, Ltd. v. Cy’s Crab House North, Inc., 2013 WL 5425342 (7th Cir. 2013).

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