Duane Morris Class Action Review - 2023 - Report - Page 55
CHAPTER 3
Appeals In Class Actions
I.
Executive Summary
Appeals in class action litigation, whether involving a trial court’s interlocutory order or
final decision, remain an area of key focus for class action plaintiffs and defendants
alike. For plaintiffs, counsel may wish to appeal decisions denying class certification, or
decisions that grant class certification for only a limited subset of the proposed class.
For defendants, counsel often wish to immediately appeal orders granting class
certification.
Parties have limited options when it comes to seeking interlocutory appellate review of a
class certification decision. The primary mechanism is Rule 23(f) of the Federal Rules of
Civil Procedure, which was promulgated in 1998. Under Rule 23(f), “[a] court of appeals
may permit an appeal from an order granting or denying class action certification under
this rule, but not from an order under Rule 23(e)(1). A party must file a petition for
permission to appeal with the circuit clerk within 14 days after the order is entered or
within 45 days after the order is entered if any party is the United States, a United
States agency, or a United States officer or employee sued for an act or omission
occurring in connection with duties performed on the United States’ behalf. An appeal
does not stay proceedings in the district court unless the district judge or the court of
appeals so orders.” See Fed. R. Civ. P. 23(f). The text of Rule 23(f) does not limit the
discretion an appellate court can exercise in deciding whether to permit such an appeal,
though courts have articulated factors used to guide their discretion in the years
following the promulgation of Rule 23(f).
Parties can also seek interlocutory appellate review of district court decisions involving
class certification, in addition to a broader array of decisions issued in class actions,
pursuant to 28 U.S.C. § 1292(b). In pertinent part, § 1292(b) states that “[w]hen a
district judge, in making in a civil action an order not otherwise appealable under this
section, shall be of the opinion that such order involves a controlling question of law as
to which there is substantial ground for difference of opinion and that an immediate
appeal from the order may materially advance the ultimate termination of the litigation,
he shall so state in writing in such order. The Court of Appeals which would have
jurisdiction of an appeal of such action may thereupon, in its discretion, permit an
appeal to be taken from such order, if application is made to it within ten days after the
entry of the order. Provided, however, that application for an appeal hereunder shall not
stay proceedings in the district court unless the district judge or the Court of Appeals or
a judge thereof shall so order.” As a result, § 1292(b) appeals are especially helpful in
complex cases to correct early errors on questions of law that, if left until after final
judgment, might otherwise require the parties to re-do years of expensive and extensive
litigation.
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Duane Morris Class Action Review – 2023
