Duane Morris Class Action Review - 2023 - Report - Page 60
While appellate courts deny most Rule 23(f) petitions to appeal without explanation via
a summary order, during a one-week span in June 2022, the Sixth Circuit issued three
opinions explaining its basis for denying separate Rule 23(f) petitions. In Arends, et al.
v. Family Solutions of Ohio, Inc. (In Re Family Solutions of Ohio, Inc.), 2022 U.S. App.
LEXIS 16990 (6th Cir. June 17, 2022), the Sixth Circuit explained that Rule 23(f) gives it
unfettered discretion whether to permit the appeal, akin to the discretion exercised by
the Supreme Court in acting on a petition for certiorari. The Sixth Circuit explained that it
“eschew[s] any hard-and-fast test in favor of a broad discretion to evaluate relevant
factors that weigh in favor of or against an interlocutory appeal.” Id. at *3 (citing In Re
Delta Air Lines, 310 F.3d 953, 959 (6th Cir. 2002) (per curiam)). Some relevant factors
include whether “the case ‘raises a novel or unsettled question,’ the risk to the parties in
the absence of interlocutory review, and ‘the posture of the case as it is pending before
the district court.’” Id. The Sixth Circuit added that “‘the Rule 23(f) appeal is never to be
routine’ and ‘should not become a vehicle for early review of a legal theory that
underlies the merits of a class action.’” Id. (citation omitted). It also specified that “[f]our
factors typically guide our consideration of a Rule 23(f) petition” – namely: (1) whether
the case raises a novel or unsettled question (a factor that “weigh[s] more heavily in
favor of review when the question is of relevance not only in the litigation before the
court, but also to class litigation in general”); (2) the likelihood of petitioner’s success on
the merits; (3) the “death-knell” factor, which recognizes that the costs of continuing
litigation for either a plaintiff or defendant may present such a barrier that later review is
hampered; and (4) the posture of the case pending before the district court. In denying
the petition for interlocutory appeal, the Sixth Circuit rejected the defendant’s arguments
that the interlocutory appeal presented novel issues, that the defendant was likely to
succeed on the merits, and that review was appropriate to prevent the incursion of
unnecessary costs.
In In Re Macy’s West Stores, Inc., 2022 U.S. App. LEXIS 17222 (6th Cir. June 22,
2022), the Sixth Circuit again described, in similar terms, its standard of review
regarding Rule 23(f) petitions for interlocutory appeal. It added further that “any
pertinent factor may be weighed in the exercise of that discretion,” and “[n]ot all factors
can be foreseen or stated with particularity.” Id. at *2. The defendant argued that some
class members did not actually purchase a bed-linen product at issue that was allegedly
the subject of consumer protection violations in the underlying litigation. The defendant
thus maintained that its interlocutory appeal presented novel or unsettled questions
because “[n]o federal appellate court has set forth a clear standard for determining
whether, and when, named plaintiffs in consumer class-action lawsuits have Article III
standing to pursue class claims for unpurchased products.” The Sixth Circuit rejected
the defendant’s argument and denied interlocutory appeal because “the law in this
Circuit is clear” on the role of Article III standing in these circumstances – specifically,
once the plaintiff’s individual standing is established, whether the plaintiff can represent
the putative class depends solely on whether he is able to meet the additional criteria
encompassed in Rule 23. Here, the defendant did not dispute that the named plaintiff
had individual standing to bring her claims against the defendant based
on her purchase. Accordingly, the Sixth Circuit concluded that the defendant’s standing
argument “implicates the requirements of Rule 23(a) and (b), not Article III standing,”
and the issue was not sufficiently novel to warrant a Rule 23(f) appeal.
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Duane Morris Class Action Review – 2023
