Duane Morris Class Action Review - 2023 - Report - Page 56
Unlike interlocutory appeals under 28 U.S.C. §1292(b), Rule 23(f) does not require the
district court to certify an issue for appeal. Moreover, Rule 23(f) does not include the
potentially limiting requirements of Section 1292(b), under which the district court can
certify an issue for appeal only where an order “involve[s] a controlling question of law
as to which there is substantial ground for difference of opinion” and where “an
immediate appeal from the order may materially advance the ultimate termination of the
litigation.”
Finally, class action litigants can appeal final orders issued by the district court under 28
U.S.C. § 1291, which states that “courts of appeals (other than the United States Court
of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final
decisions of the district courts of the United States.”
II.
Key Rulings In Class Action Appeals In 2022
A.
Rulings Involving Class Action Appeals Under Rule 23(f)
Studies show that appellate courts deny approximately 75% of Rule 23(f) petitions to
appeal class certification decisions, and most denials are accomplished via summary
orders. A published or unpublished opinion explaining the reasons for the denial is
issued in only around 10% of cases. Nonetheless, appellate courts issued several
noteworthy decisions in 2022 regarding application of Rule 23(f) appeals.
55
© Duane Morris LLP 2023
Duane Morris Class Action Review – 2023
