Author: Aaron Gott
If you are a defendant in a federal class action case, you probably already know that class certification is an important pivot point in the litigation: once the class is certified, it could be a bet-the-company moment where the risk of a large judgment outweighs any considerations about the merits or your likelihood of successfully defending at trial. The fact that you could appeal class certification after final judgment is cold comfort.
Fortunately, there is good news: the Federal Rules of Civil Procedure allow immediate appeals of class certification orders. But there is also bad news: the courts of appeals have unfettered discretion whether to hear the appeal—you must persuade the court why it should consider the case immediately rather than after final judgment, as it usually does. Here are ten things you should know about immediate appeals of class certification orders under Rule 23(f) if you are a party or counsel involved in a class action in federal district court.
You don’t have much time.
You only have 14 days from the date of the certification order to file a petition for immediate appeal. Fed. R. Civ. P. 23(f). The 14-day time limit is considered jurisdictional. So there are no extensions: you must either file your petition within 14 days or not file it at all. In fact, the U.S. Supreme Court in Nutraceutical v. Lambert just held that the 14-day deadline cannot be tolled.
That is 14 days from the order. No extra time for mailing (to the extent you still do that). No extra time for that Memorial Day Weekend, Fourth of July holiday, or Thanksgiving week smack dab in the middle of that 14 days.
14 days is not a lot of time to prepare a brief to convince an appellate court to exercise its “unfettered discretion” to hear your appeal.
In practice, it is best to assume that the trial court’s decision won’t be favorable to you and to begin working up your arguments for the petition well in advance of the court’s decision. After all, it often takes months (or years) for the trial court to issue one. Defendants in most class actions—particularly antitrust class actions like those we focus on at Bona Law—face ruinous joint and several liability that means most defendants prefer not to risk trial regardless of the risk of liability on the merits. It is worth having the insurance of a head start on a 23(f) petition long before the 14-day timer starts ticking.
You should also consider hiring appellate counsel for purposes of the appeal (more on this below).
23(f) appeals are discretionary and rarely granted.
The U.S. Supreme Court held, back in 1978, that orders denying class certification are not final decisions within the meaning of federal law, and thus are not appealable as a matter of right. After changes from Congress and the Federal Rules of Civil Procedure, Rule 23(f) was created. Nevertheless, a 23(f) appeal is permissive and, in fact, the committee notes state that the courts of appeals have “unfettered discretion” in deciding whether to permit an appeal of a class certification order or denial.
Thus, a 23(f) petition is a lot like a petition for certiorari to the U.S. Supreme Court. Luckily, a 23(f) petition is much more likely to be granted (by some accounts and depending on the circuit, around 25%).
See below for guidelines on how to convince a court of appeals to take up your 23(f) appeal.
The rules on the form and contents of filing are different than merits appeals
Rule 23(f) petitions vary from typical opening briefs in several respects. First, although you must necessarily make merits arguments, your arguments should focus on the reasons why the court should grant the petition and set a schedule for briefing on the merits of the order.
Second, the petition has some specific requirements. You must include the questions presented, the relevant facts, the relief sought, the rule that authorizes the appeal and the reasons why the court should grant it, and a copy of the order. You only get 20 pages to succinctly state complex facts and make complex legal arguments to convince three judges why they should volunteer to do extra work on top of their already crowded mandatory docket. Use those pages wisely.
Third, while an opposing party may file an answer or cross-petition, you do not automatically have the right to file a reply brief. You can, of course, seek leave to file a sur-reply, but these efforts to get the last word in can sometimes turn the court off—only do it if it’s necessary to address something new raised by the other side.
Fourth, check the local rules. They might include additional requirements or restrictions relating to 23(f) petitions.
You must convince the court twice over
First, you must convince the court why it should exercise its “unfettered discretion” to take up your appeal.
Then, you often must also convince the court why it should reverse the district court’s order.
Sometimes courts make both decisions in one stroke. If sufficient evidence of error appears on its face, a court of appeals could summarily reverse or affirm the order. See, e.g., CE Design Ltd. v. King Arch. Metals, Inc., 637 F.3d 721 (7th Cir. 2011). Other times, the court will grant the petition and order briefing on the merits.
What this means in practice is that your petition should be compelling in both respects—why the court should grant it and why it should reverse. Luckily, as you will see below, you will have a good shot because, as explained below, one of the most common reasons for granting a petition is that the trial court’s order is “manifestly erroneous.”
There are several reasons why the court might grant a petition
As explained above, courts of appeals have “unfettered discretion” in deciding whether to grant a petition for review. In practice, however, most courts have set forth a test or series of factors for cases warranting review. Each circuit has developed such a standard or test, with the exception of the Eight Circuit, which declined to do so.
In the Ninth Circuit, for example, there are three situations warranting review of a class certification order under Rule 23(f):
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