U.S. Fifth Circuit Dismisses Appeal for Lack of Jurisdiction Where Appellant Fails to Timely Object in the District Court

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“The class members get nothing. The attorneys get their fees. A class member objects, but untimely. Consequently, we lack appellate jurisdiction.”

Explaining more fully: “The Supreme Court has often underscored that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment. But then the Devlin Court came along and concluded that it should carve out a limited exception to this well-established rule: Nonnamed class members … who have objected in a timely manner to approval of the settlement at the fairness hearing have the power to bring an appeal without first intervening. Central to this appeal, however, the Court stated that its holding did not address a case in which an objector made an untimely objection. That situation implicates basic concerns about waiver that should be easily addressable by courts of appeals….

“Notwithstanding Duggan’s arguments, we conclude that we lack jurisdiction over this appeal because Duggan, a nonparty, non-intervenor, waived his right to appeal by filing an untimely, procedurally deficient objection….  The district court’s June order stated that objectors who filed noncompliant objections ‘would be deemed to have waived their objection(s) (including any right of appeal)…unless otherwise ordered by the Court.’ The court, in approving the settlement agreement, did indeed interrogate the parties relating to the subject matter of Duggan’s objection, but it neither indicated that it had accepted, approved, or waived the objection’s procedural defects. It certainly did not hold that Duggan had good cause for failing to timely submit his objection. Moreover, waiver of appellate rights does not turn on how a district court chooses to address a late or deficient objection… The issue of waiver essentially turns on whether waiver was made knowingly and voluntarily. This test is easily applied here because Duggan duly received specific notice of the objection requirements, yet knowingly failed to comply with those requirements.”

 

Farber v. Crestwood Midstream Partners, No.16-20742, 2017 WL 3014427 (5th Cir. July 17, 2017).

 

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