Whether a named plaintiff in a securities class action retains appellate standing when an institutional lead plaintiff declines to appeal after a district court dismissal

No question identified. : APPLICATION FOR EXTENSION OF TIME IN WHICH TO FILE A PETITION FOR A WRIT OF CERTIORARI TO: The Honorable Elena Kagan, Associate Justice of the Supreme Court of the United States and Circuit Justice for the United States Court of Appeals for the Ninth Circuit: Pursuant to 28 U.S.C. § 2101(c) and Rule 13.5 of the Rules of this Court, Applicant Mark Habelt, individually and on behalf of others similarly situated, respectfully requests an extension of thirty (80) days in which to file a petition for a writ of certiorari in this case. The U.S. Court of Appeals for the Ninth Circuit issued its decision on October 11, 2023. Habelt v. iRhythm Techs., Inc., 83 F.4th 1162 (9th Cir. 2023); App. Exh. 2. The Ninth Circuit denied the petition for rehearing en banc on December 6, 2023. App. Exh. 1. Absent extension, the time to file a petition for writ of certiorari will be March 5, 2024. With the requested extension, the petition would be due on April 4, 2024. This application is being filed more than ten days before the petition is due. Respondents do not object to this application. The jurisdiction of this Court will be invoked under 28 U.S.C. § 1254(1). In support of this application, Applicant states: 1. Mark Habelt is a retail investor who bought shares in a digital healthcare company, iRhythm Technologies, Inc. He suffered significant financial losses after iRhythm received a lower-than-expected Medicare reimbursement rate for its core product. Habelt filed suit on behalf of himself and similarly situated investors, alleging iRhythm misled investors in the months leading up to the reimbursement rate announcement. As required by the Private Securities Litigation Reform Act (PSLRA), the district court appointed as lead plaintiff an institutional investor with the largest financial loss. Habelt remained a named plaintiff, and was named on the caption of every subsequent filing. When the district court dismissed the case with prejudice, the appointed lead plaintiff declined to seek an appeal. Habelt, with the lead plaintiff's consent, filed an appeal on behalf of himself and the class. A divided Ninth Circuit panel dismissed Habelt’s appeal for lack of standing, ruling he lacked party status and did not meet the Ninth Circuit’s requirements for non-party appellate standing. 2. This case is a serious candidate for review. The decision below creates a circuit conflict over whether a named plaintiff can appeal when the lead plaintiff chooses not to in a securities class action. The Ninth Circuit concluded that Habelt lost his party status, and thus his standing to appeal, when the institutional investor was appointed lead plaintiff and filed an amended complaint. See Habelt, 83 F.4th at 1165-66. That is so despite Habelt’s name remaining in the caption, him seeking and receiving consent to appeal from the appointed lead plaintiff, his paying of filing fees in district court and the Ninth Circuit, and his involvement in researching and investigating the claims at issue. Conversely, the Second Circuit has held that appointing a lead plaintiff does not eliminate a named plaintiffs appellate standing. See Cho v. Blackberry Limited, 991 F.3d 155, 164 (2d Cir. 2021). The fact that these two jurisdictions now take opposing positions on this issue weakens enforcement of federal securities laws and casts a cloud of legal uncertainty over retail investors seeking to bring claims on appeal. 3. The Ninth Circuit’s decision also implicates a split over the proper criteria for courts to consider when evaluating whether a nonparty has standing to appeal. Writing for the dissent, Judge Bennett explicitly observed that other circuits assess non-party appellate standing differently than the Ninth Circuit. Habelt, 83 F.4th at 1174 (Bennett, J., dissenting). Most circuits evaluate some combination of the following: (1) whether the nonparty participated in lower court proceedings; (2) whether the equities weigh in favor of hearing the