Interlocutory Appeal of Class Action Certification Decisions Under Federal Rule of Civil Procedure 23(f): A Proposal for a New Guideline

Abstract

The class action is an “invention in equity,” created to allow large groups of plaintiffs to enforce their equitable rights. Over the past decade, it has assumed a prominent and important role in American civil litigation. A uniquely complex form of litigation, the class action presents many special risks and challenges. A court’s decision whether to certify a class is often the decisive moment in a class action, as it can turn a relatively inconsequential case into one with hundreds, even thousands, of claimants and carry with it damages upwards of one billion dollars. As the Supreme Court stated: “Certification of a large class may so increase the defendant’s potential damages liability and litigation costs that he may feel it economically prudent to settle and to abandon a meritorious defense.” Similarly, from the plaintiffs’ point of view, denial of certification of a class can doom the litigation if the representative plaintiffs’ individual claims are insufficient to make individual litigation economically feasible. Historically, however, there have been few options for parties to appeal a certification decision. Congress, with the guidance of the Advisory Committee on the Federal Rules of Civil Procedure, sought to remedy this situation with the adoption of Federal Rule of Civil Procedure 23(f) in 1998, which provides for interlocutory appeal of class certification decisions. Rule 23(f) gives the federal circuit courts discretion to grant such an appeal, and the Advisory Committee’s notes direct the courts of appeals to “develop standards for granting review.” Most of the circuits have chimed in with their version of the appropriate standards and the result is a body of guidelines that, while possessing a similar core, also greatly diverge. This Note will argue that the current body of appellate court guidelines under Rule 23(f) is too restrictive. Specifically, because the cost of an erroneous denial of appeal is so high, and because the ways the circuits deal with an erroneous district court decision vary greatly, forum-shopping opportunities are created. Therefore, the courts of appeals should each adopt a guideline that allows for appeal when it can be shown that the district court’s decision is “likely erroneous.”