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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 video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, March 17, 2022

Recorded event now available

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This CLE course will guide class litigators in appealing or challenging appellate review of class certification decisions under Rule 23(f) of the FRCP. The panel will examine how circuit courts exercise their discretion to permit or deny appeals and the differences among the circuits on essential issues and standards. The panel will also discuss considerations for class counsel on either side of the certification issue if they wish to appeal (or hope to prevent an appeal) of the certification order.

Description

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, but they do not need to seek leave of the trial court.

The Committee Notes to Rule 23(f) observe that appeals "may be granted or denied based on any consideration that the court of appeals finds persuasive." Nonetheless, all the courts of appeal have identified considerations they find more persuasive in permitting appeals, but no two are alike.

Listen as our panel examines how the federal courts address 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.

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Outline

  1. Critical features of Rule 23(f)
    1. No automatic right to appeal
    2. No automatic stay of district court proceedings
    3. Time to appeal
    4. Standards of review
  2. "Death knell" cases and "reverse death knell" cases
  3. Blair approach
  4. Prado five-factor test
  5. Variations of the Blair and Prado approaches
    1. Sumitomo Copper Litig. v. Credit Lyonnais Rouse Ltd. (2d, 3d Circuits)
    2. In re Lorazepam & Clorazepate Antitrust Litig. (D.C., 9th, 10th Circuits)
    3. In re Delta Air Lines (6th Circuit)
  6. Challenging motion for appellate review of class certification

Benefits

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?

Faculty

Leffel, Michael
Michael D. Leffel
Partner
Foley & Lardner

Mr. Leffel is a partner and litigation lawyer with Foley & Lardner LLP. His practice focuses on complex commercial...  |  Read More

Lovell, Christopher
Christopher Lovell
Partner
Lovell Stewart Halebian Jacobson

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 |  Read More
McGrath, Aileen
Aileen M. McGrath
Senior Counsel
Akin Gump Strauss Hauer & Feld

Ms. McGrath focuses her practice on federal and state appellate litigation, including the U.S. Supreme Court, the...  |  Read More

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