Rule 23(f) Class Certification Appeals: Pursuing or Challenging Interlocutory Review of Certification Orders

Complying With Strict Procedural Requirements, Developing a Solid Appeal Strategy

Recording of a 90-minute CLE webinar with Q&A

Conducted on Tuesday, September 12, 2017

Recorded event now available

or call 1-800-926-7926
Course Materials

This CLE course will provide guidance to class litigators for appealing, or challenging the appeal of, class certification decisions under Rule 23(f) of the FRCP. The panel will examine the Supreme Court’s Microsoft v. Baker ruling as well as recent federal court cases addressing interlocutory appeals of class certification orders. The program will outline best practices for counsel navigating a Rule 23(f) appeal.


Rule 23(f) of the Federal Rules of Civil Procedure authorizes interlocutory review of class certification orders at the discretion of the federal courts of appeal. Litigants seeking interlocutory review must comply with strict procedural requirements under Rule 23(f), including a limited amount of time to appeal.

The Supreme Court’s Microsoft v. Baker ends a plaintiff’s ability to circumvent Rule 23(f) by voluntarily dismissing the underlying claims with prejudice after the district court denies certification. While a victory for defendants, defense counsel must prepare for new plaintiff tactics to evolve.

Listen as our panel examines how the federal courts are addressing Rule 23(f) appeals and provides strategies for counsel for pursuing or opposing interlocutory review of a class certification decision. The panel will also address the recent Supreme Court Microsoft v. Baker ruling halting a plaintiff’s ability to circumvent Rule 23(f) by voluntarily dismissing the underlying claims with prejudice after the district court denies certification.



  1. 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
    5. Microsoft v. Baker (Sup Ct. 2017)
  2. Key features of Rule 23(f)
    1. No automatic right to appeal
    2. No automatic stay of district court proceedings
    3. Appeal filing deadline within 10 days of certification order
  3. Pursuing appellate review of class certification decision
  4. Challenging motion for appellate review of class certification


The panel will review these and other key issues:

  • What are the lessons for class counsel from recent case law addressing Rule 23(f) appeals?
  • What are key procedural requirements of Rule 23(f)?
  • What standards are the courts applying in granting or denying an interlocutory appeal of a certification decision?


S. Stewart Haskins, II
S. Stewart Haskins, II

King & Spalding

Mr. Haskins specializes in defending class actions and other complex commercial litigation, particularly cases...  |  Read More

Peter J. Wozniak
Peter J. Wozniak

Senior Counsel
Seyfarth Shaw

Mr. Wozniak's practice includes defending employers throughout the U.S. in complex employment discrimination class...  |  Read More

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