Rule 23(f) Class Certification Appeals

Description

Rule 23(f) of the Federal Rules of Civil Procedure on appellate review of class certification decisions creates confusion for class action counsel in that it gives appeals courts discretion over whether to permit an appeal, but does not provide criteria to guide the courts’ decisions.

Because there is minimal case law interpreting Rule 23(f), many questions surround its application. When is interlocutory review of class certification decisions appropriate? Does an appellate court’s decision on whether to permit an appeal signal how it will ultimately rule?

Listen as our panel of class action attorneys — both plaintiff and defense side — examines how the various appellate courts are responding to Rule 23(f) appeals and provides strategies for counsel on pursuing and opposing appellate review of a class certification decision.

Outline

1. Key features of Rule 23(f)
   1. No automatic right to appeal
   2. No automatic stay of district court proceedings
   3. Appeal must be filed within 10 days of class certification order
2. Case law addressing Rule 23(f)
   1. “Death knell” cases and “reverse death knell” cases
   2. Appeal raises fundamental and unsettled legal issue
   3. Clear error in district court ruling
   4. “Sliding scale” standard
3. Strategies for pursuing appellate review of class certification decision
4. Strategies for challenging motion for appellate review of class certification

Benefits

The panel will review these and other key questions:

• What standards are the appellate courts applying in determining whether to grant an interlocutory appeal of a class certification decision?
• How often are courts of appeals granting and denying petitions for appeal of class certification rulings?
• What lessons can class action counsel learn from the minimal case law addressing Rule 23(f) appeals?

CLE Credit

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