Gelder Ex Rel. Coughlin v. Coxcom Inc., 696 F.3d 966

Plaintiffs sue Cox Enterprises on behalf of a nationwide putative class of Cox Premium Cable subscribers who paid for a set-top box rental, alleging an illegal Sherman Act tie-in.
Several related class actions were filed in 2009 and consolidated in the Western District of Oklahoma.
In 2011 the district court denied class certification but found numerosity, commonality, typicality, and adequacy; it held market power and injury methods not amenable to class proof.
Order denying class certification was entered December 28, 2011; motion for reconsideration filed January 6, 2012 and denied March 28, 2012.
Plaintiffs filed a petition for permission to appeal under Fed. R. Civ. P. 23(f) on April 11, 2012; the court denied the petition as not appropriate for immediate review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of the Rule 23(f) petition	Petition timely under Rule 23(f) as 14 days from denial of reconsideration.	Motion to reconsider tolls time; petition filed late beyond 5 days after tolling.	Timely under governing authority.
Effect of a timely reconsideration motion on appeal deadline	Rule 60(b) reconsideration motion tolls appeal time until decided.	Rule 58/Rule 4(a)(4) framework applies; reconsideration does not fit authority to extend time.	Treat motion as under Rule 60; appeal time runs from disposition of the last motion.
Discretionary nature of Rule 23(f) review	Petition should be reviewed due to potential merits and importance.	Interlocutory appeals under Rule 23(f) are disfavored and granted only rarely.	Petition denied as not appropriate for immediate review.
Interplay of Rule 60 with Rule 4(a)(4) extensions	Precedent allows tolling under Rule 60 to extend time for Rule 23(f) appeal.	No need to rely on Rule 4(a)(4) extensions for reconsideration motions.	Rule 60(d) construction adopted; time runs from disposition of last motion.

United States v. Ibarra, 502 U.S. 1 (1991) (time to appeal begins anew after timely reconsideration)
United States v. Dieter, 429 U.S. 6 (1976) (30-day period runs from denial of timely petition)
Hatfield v. Bd. of Cnty. Comm’rs for Converse Cnty., 52 F.3d 858 (10th Cir.1995) (treats motion types by substance, not label, for appeal timing)
Blair v. Equifax Check Services, Inc., 181 F.3d 832 (7th Cir.1999) (concurring view on tolling practice for reconsideration)
Warren v. American Bankers Ins. of Florida, 507 F.3d 1239 (10th Cir.2007) (critique of the broad use of ‘motion to reconsider’)
Vallario v. Vandehey, 554 F.3d 1259 (10th Cir.2009) (discretion in accepting Rule 23(f) petitions; interlocutory review rarity)
Carpenter v. Boeing Co., 456 F.3d 1183 (10th Cir.2006) (assumed tolling discussion regarding reconsideration timing)