Duane Morris Class Action Review - 2023 - Report - Page 59
itself.” Id. at 259. Regarding the standard for reviewing a Rule 23(f) petition, the plaintiff
argued that the Third Circuit’s discretion should be limited to “only those ‘rare’ cases
that justify taking jurisdiction in interlocutory appeals.” The Third Circuit disagreed on
the grounds that it exercises its board discretion “using a more liberal standard” and
identified circumstances when appellate review of a class certification order is
appropriate: “‘when denial of certification effectively terminates the litigation because the
value of each plaintiff’s claim is outweighed by the costs of stand-alone litigation’; ‘when
class certification risks placing inordinate . . . pressure on defendants to settle’; ‘when
an appeal implicates novel or unsettled questions of law’; ‘when the district court’s class
certification determination was erroneous’; and ‘when the appeal might facilitate
development of the law on class certification.’” Applying these factors, the Third Circuit
granted the petition “[b]ecause of the apparent pressure the purported certification
places on [the defendant] to settle and this Court’s opportunity to facilitate development
of the law on class certification.”
Rulings Denying Rule 23(f) Petitions To Appeal Class Certification Decisions
In Grupo Televisa SAB, et al. v. Palm Tran Inc. Amalgamated Transit Union Local 1577
Pension Plan, No. 22-1689 (2d Cir. Aug. 3, 2022), the plaintiffs were investors who
alleged that the defendant bribed Federation Internationale de Football Association
officials to secure the rights to the 2018, 2022, 2026, and 2030 World Cup games. The
plaintiffs claimed that the defendant made false and misleading statements regarding
the alleged bribery payments, in violation of the Securities Exchange Act of 1934. The
district court initially denied the plaintiffs’ motion for class certification because the
proposed representative was not typical of the class. But a new class representative, a
transit union pension plan, obtained certification soon thereafter. The defendant sought
an immediate appeal to the Second Circuit, arguing that it faced hundreds of millions of
dollars in potential liability stemming from an improperly long class period. The
defendant lost its argument for immediate review of the class status of investors. The
Second Circuit stated in a one-paragraph order that an interlocutory appeal was not
warranted – marking the second time the Second Circuit has declined to intervene in
class certification decisions in the case.
In Mastercard International Inc., et al. v. Scoma Chiropractic, P.A., 2022 U.S. App.
LEXIS 6844 (11th Cir. Mar. 16, 2022), the Eleventh Circuit issued an opinion explaining
its denial of a Rule 23(f) petition. The Eleventh Circuit noted that it considers five factors
when deciding whether to grant interlocutory appellate review of a district court’s classcertification decision, including: (i) whether the district court’s ruling is likely dispositive
of the litigation by creating a “death knell” for either the plaintiff or the defendant; (ii)
whether the petitioner has shown a substantial weakness in the district court’s classcertification decision, such that the decision likely constitutes an abuse of discretion; (iii)
whether the appeal will resolve an unsettled legal issue that is important both to this
particular litigation and in and of itself; (iv) the nature and status of litigation before the
district court; and (v) the likelihood that future events may make immediate appellate
review more or less appropriate. In denying the defendant’s petition in this case, the
Eleventh Circuit held that the defendant failed to satisfy any of the five factors.
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Duane Morris Class Action Review – 2023
