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Does a United States Circuit Court of Appeals decision not to review an order granting or denying class certification mean that the appellate court agreed with the class certification order?  Not necessarily.

Since 1998, Rule 23(f) of the Federal Rules of Civil Procedure has provided a way to seek appellate review of a federal district court’s grant or denial of class certification.  However, appellate review is completely discretionary.  The rule states that a “court of appeals may permit an appeal” of a class certification order if filed within 10 days.  FRCP 23(f) (emphasis added).  This means that before considering any of the issues raised on appeal, the court of appeals first considers whether to allow the appeal to go forward at all.  The court of appeals has “unfettered discretion whether to permit the appeal” and “[p]ermission to appeal may be granted or denied on the basis of any consideration that the court of appeals finds persuasive.”  Rule 23, comment to 1998 amendments. 

Thus, when a U.S. Circuit Court of Appeals denies permission to appeal a class certification order, the denial has no obvious meaning in terms of the ultimate resolution of the issues sought to be raised by the appeal.  Denial could mean that the court agrees with the underlying decision regarding class certification, but more likely it means that the court simply did not believe that it was necessary to resolve the issues on interlocutory (before trial and/or final judgment) review.   Normally, interlocutory issues may not be appealed at all, the exception to this rule being where interlocutory appeal is allowed by a specific statute or rule.  See 28 U.S.C. 1292.  As the 1998 comments to Rule 23 note, a Federal Judicial Center study “supports the view that many suits with class-action allegations present familiar and almost routine issues that are no more worthy of appellate review than many other interlocutory rulings.”  So, the fact of denial of a request under Rule 23 for review of a class certification order doesn’t mean that the court of appeals agrees with the substance of the order.

Any number of things can happen to a class certification order even if interlocutory review is denied.  The trial court can exercise its discretion under Rule 23(c)(1)(C) to alter or amend the order at any time.  Later proceedings at the trial court level, especially the development of key facts, can change the court’s decision on certification.  Alternatively, the parties may reach a settlement in which they agree to alter the class definition for settlement purposes, subject to the trial court’s approval.  Still another possibility is that the court of appeals may review a court’s pretrial class certification decision as part of an appeal after a final judgment is entered by the trial court, either as a result of a trial or as a result of other rulings on the merits of the claims.  The fact that a court of appeals denied permission to appeal a class certification decision before a final judgment does not bar it from considering those issues in an appeal taken as of right after the final judgment.  As a result, it is possible–although rarely do proceedings ever get this far in practice–for a trial court to grant certification, have a trial on the claims for which the class was certified, and enter judgment for or against the class, only to have the court of appeals later reverse the initial order granting class certification.

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