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Federal Rule of Civil Procedure 23, the class action rule, was amended in 1998 to allow discretionary interlocutory appeals of class certification decisions. This article will discuss the progression of interlocutory appeals of class action decisions and related issues, including the early attempts at appellate review of certification decisions; the resultant controversy; the intent of the drafters of Rule 23(f); and the first applications of the new rule in reported cases. This background should provide counsel contemplating an appeal under the new rule a basis for decision-making. EARLY ATTEMPTS AT INTERLOCUTORY APPEALS The idea of allowing interlocutory appellate review of class certification decisions is not new. Throughout the late 1960s and early 1970s, several federal circuits held orders denying class certification to be appealable pursuant to 28 U.S.C. Sec. 1291 as a final order under what came to be known as the “death knell” doctrine. See Ott v. Speedwriting Publishing Co., 518 F.2d 1143 (6th Cir. 1975); Graci v. United States, 472 F.2d 124 (5th Cir. 1973); Hartmann v. Scott, 488 F.2d 1215 (8th Cir. 1973). In Eisen v. Carlisle & Jacquelin, the Second U.S. Circuit Court of Appeals held that: Dismissal of the class action in the present case, however, will irreparably harm [the plaintiff] and all others similarly situated, for as we have already noted, it will for all practical purposes terminate this litigation. Where the effect of a district court’s order, if not reviewed, is the death knell of the action, review should be allowed. 370 F.2d 119, 120-21 (2d Cir. 1966), cert. denied 386 U.S. 1035 (1967). This doctrine, however, was never accepted by all circuits . See, e.g., Hackett v. General Host Corp., 455 F.2d 618, 622 (3d Cir. 1972), criticizing the “death knell” doctrine, because: “[I]t operates only in favor of the plaintiff who has unsuccessfully sought to be designated as a class representative. It neither requires nor permits general supervision by the court of appeals over class action designations.” Defendants also attempted to pursue interlocutory appeals of class determinations. See 15B Charles Alan Wright et al ., Federal Practice and Procedure, Sec. 1802, at 478-79 (2d ed. 1986). A common approach was to attempt to use 28 U.S.C. Sec. 1292(b), the Discretionary Interlocutory Appeals Act of 1958, which provides: When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such an order involves a controlling question of law as to which there is substantial ground for difference of opinion and that immediate appeal may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. In general, the response to the various attempts at interlocutory appeal under Sec. 1292(b) was unfavorable. See 15B Wright et al., Sec. 1802, at 478-79. Typical was the Third Circuit’s opinion in Link v. Mercedes-Benz of North America Inc., which announced a general policy against interlocutory appeal of class certification decisions: Sec. 1292(b) was not designed to substitute wholesale appellate certainty for trial court uncertainty under circumstances where, as here, the Rule gives broad discretion to the District Court to revise the class certification determination at any time prior to the decision on the merits. 550 F.2d 860, 862-63 (3d Cir. 1977). In 1978, the U.S. Supreme Court accelerated this trend, making clear that class certification decisions did not fit within the narrow category of issues that were eligible for interlocutory review. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468-69 (1978). In Coopers, the high court said: To come within the “small class” of decisions exempted from the final judgment rule by Cohen, the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment. … An order passing on a request for class certification does not fall in that category. Within 10 years, there was near unanimity on this issue, and circuits began to speak in terms of a “clearly articulated policy against freely accepting Sec. 1292(b) appeals from class certification orders.” See In re School Asbestos Litigation, 789 F.2d 996, 1002 (3d Cir. 1986). CIRCUITS SPLIT OVER MANDAMUS Still the perceived need for review of certain class action determinations continued. Another common attempt for defendants seeking interlocutory review of class determinations was to petition for a writ of mandamus under the All Writs Act, 28 U.S.C. Sec. 1651. See DeMasi v. Weiss, 669 F.2d 114 (3d Cir. 1982). Mandamus is not technically an appeal. Rather, mandamus is a request for the court to take jurisdiction so as to prevent “usurpation of power” by a lower court, under “exceptional circumstances.” Historically mandamus was an extraordinary procedure used only in unusual and near-emergent situations. See Will v. United States, 389 U.S. 90, 95 (1967). Yet, the chances of obtaining interlocutory review of class determinations through mandamus varied widely depending upon the circuit in which one appeared. The Third, Fourth and Eighth Circuits stuck to the notion that class determinations were not appropriate for interlocutory review, whether by mandamus or otherwise. See DeMasi v. Weiss, 669 F.2d at 119, denying a petition for mandamus to review a class certification, stating: We therefore adhere to the clear and settled precepts of this court: a class action determination, affirmative or negative, is not a final order appealable under 28 U.S.C. Sec. 1291. … We will not employ mandamus in this case to circumvent these precepts and therefore the petition will be denied. In In re Allegheny Corp., the Eighth Circuit said: The issue is not whether the District Court correctly determined the issue of law concerning the proper application of [Rule 23]. For if we applied this as the governing criterion, then every interlocutory order which is wrong might be reviewed under the All Writs Act. 634 F.2d 1148, 1150 (8th Cir. 1980). Similarly, the Fourth Circuit in In re Catawba Indian Tribe, 973 F.2d 1133, 1137 (4th Cir. 1992), held that the Supreme Court’s decision in Coopers & Lybrand, supra, required circuit courts to refrain from allowing interlocutory review of class determinations under Sec. 1291, Sec. 1292(b) or mandamus “decisions regarding class certifications, however important their outcome might be to the underlying suit, are entitled to no special dispensation from fundamental procedural requirements.” Catawba, 973 F.2d at 1137. Other circuits, however, showed a much greater willingness to use mandamus to allow interlocutory review of class determinations. In particular, the Sixth, Seventh, and 11th circuits gained a reputation for permitting mandamus to provide almost routine interlocutory review of class determinations. See In re American Med. Sys. Inc., 75 F.3d 1069 (6th Cir. 1996); In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293 (7th Cir. 1995); Jackson v. Motel 6 Multipurpose Inc., 130 F.3d 999 (11th Cir. 1997). See also Kruse, Appealability of Class Certification Orders: the ‘Mandamus Appeal’ and a Proposal to Amend Rule 23, 91 Nw. U. L. Rev. 704, 731 (1997). The rationale underlying this policy was adopted over a vigorous dissent in the decision of Rhone-Poulenc Rorer Inc., a case stemming from a tragic AIDS-tainted blood transfusion program. The majority in this case set the stage for “mandamus appeals” of mass tort certification decisions as a means of protecting defendants from an unfair risk of industrywide bankruptcy: The protection of the right conferred by the Seventh Amendment to trial by jury in federal civil cases is a traditional office of the writ of mandamus. Beacon Theatres v. Westover, 359 U.S. 500, 510-11, 79 S.Ct. 948, 956-57, 3 L.Ed.2d 988 (1959). When the writ is used for that purpose, strict compliance with the stringent conditions on the availability of the writ (including the requirement of proving irreparable harm) is excused. * * * But the looming infringement of Seventh Amendment rights is only one of our grounds for believing this to be a case in which the issuance of a writ of mandamus is warranted. The others as we have said are the undue and unnecessary risk of a monumental industry-busting error in entrusting the determination of potential multi-billion dollar liabilities to a single jury when the results of the previous cases indicate that the defendants’ liability is doubtful at best and the questionable constitutionality of trying a diversity case under a legal standard in force in no state. We need not consider whether any of these grounds standing by itself would warrant mandamus in this case. Together they make a compelling case. Rhone, 51 F.3d at 1303-04. Still other circuits took a position somewhere short of Rhone, criticizing the decision for distorting mandamus principles, but nevertheless frequently allowing interlocutory appeal of class determinations under Sec. 1292(b), where the District Court had given permission for such an appeal. See Valentino v. Carter- Wallace Inc., 97 F.3d 1227 (9th Cir. 1996), decertifying a class action, but refusing to adopt the mandamus analysis of Rhone, stating: “We therefore do not accept Carter-Wallace’s invitation in this case to adopt the principles of Rhone-Poulenc as the law of this circuit.” See also Mullen v. Treasure Chest Casino Inc., 186 F.3d 620 (5th Cir. 1999)(granting interlocutory appeal of class certification decision under Sec. 1292(b)). USING RULE 23(f) TO PRESERVE PROCEDURAL INTEGRITY By the mid-1990s, there was growing concern that the Sixth, Seventh and 11th circuits were “stretching” mandamus principles to, or beyond, the breaking point. See Gould, Federal Rule of Civil Procedure 23(f): Interlocutory Appeals of Class Action Certification Decisions, 1 J. App. Prac. & Process 309, 318 (2000). In particular, critics from within and outside the Seventh Circuit denounced Rhone, as an attempt at judicial amendment of both the All Writs Act and the federal rules. See Kruse, 91 Nw. U. L. Rev. at 731, noting that “Rhone-Poulenc Rorer effects the judicial amendment of Rule 23 in the Seventh Circuit,” citing the dissent in Rhone, 51 F.3d at 1308 . See also Scott, Non-Traditional Resolutions to Mass Tort Disputes Take a Hit as AIDS-Infected Hemophiliacs Bear the Cost of Judge Posner’s Economic Justice, 12 Ohio St. J. on Disp. Resol. 159, 166 (1996): “According to the Rhone court’s logic, the irreparable harm requirement for granting mandamus will be satisfied by almost every class certification order.” Thus, it may well be that the Advisory Committee on Civil Rules, facing a near revolt from some circuits on the issue of appealability of class determinations, decided that an alternative was necessary to preserve the overall integrity of the civil rules and to return mandamus to its original purpose. To bring an appearance of uniformity back to this area of civil procedure an amendment was made to Federal Rule of Civil Procedure 23. On Dec. 1, 1998, a new section was added to expressly authorize “discretionary” interlocutory appeals of class certification decisions. The text of new Rule 23(f) states: A court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification under this rule if application is made to it within ten days after entry of the order. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders. An analysis of the history and text of the rule is enlightening. The rule speaks to the circuit courts, not the District Courts. One would ordinarily expect to find a grant of appellate jurisdiction in either a statute or the Federal Rules of Appellate Procedure, not the Federal Rules of Civil Procedure. Indeed, according to the Journal of Appellate Practice and Procedure, Fed. R. Civ. P. 23(f) represents the first time a grant of appellate jurisdiction has been implemented by court rule, rather than by statute. Creation of a federal court appeal procedure by rule, rather than statute, is unique. … [S]ubsection (e) of Sec. 1292 gives the Supreme Court authority to “prescribe rules, in accordance with the Rules Enabling Act to provide for an appeal of an interlocutory decision to the courts of appeals that is not otherwise provided for.” The interlocutory appeal procedure of rule 23(f) was promulgated by the authority granted the Supreme Court by that subsection. Rule 23(f) is the only federal rule of civil procedure created through the Sec. 1292(e) process. Gould, supra, at 310. ‘DISCRETION’ AS THE BETTER PART OF VALOR Another fact evident from the text of Rule 23(f) is the lack of any guidance as to when interlocutory review of a class decision is appropriate. The history surrounding the drafting of Rule 23(f) confirms this, noting that “permission to appeal may be granted or denied on the basis of any consideration that the court of appeals finds persuasive.” See April 18 and 19, 1996 Minutes of the Civil Rules Advisory Committee, reprinted at 5 Newberg on Class Actions (3d ed. 1992), July 1999 Cumulative Supplement, Appendix A. See also Advisory Committee Note to Fed. R. Civ. P. 23(f): “The court of appeals is given the unfettered discretion whether to permit the appeal, akin to the discretion exercised by the Supreme Court in acting on a petition for certiorari.” The decision to vest such vast discretion in the circuit courts was not without its opponents. Some members of the Advisory Committee sought to create an interlocutory appeal of certain class determinations “as of right.” See Judicial Conference of the United States, Advisory Committee on Civil Rules, Minutes of Nov. 9-10, 1995, 1995 WL 870908, at *4-5. The primary concern voiced by opponents of the “discretionary” appeal procedure seemed to be that the new procedure would simply encourage circuit courts to continue their prior practice. The discretionary opportunity provided by the draft was thought to be illusory. It was observed that at least in some circuits, certification for appeal under Sec. 1292(b) frequently fails because the court of appeals denies permission to appeal; eliminating the need for district-court certification does not ensure that the court of appeals will grant permission. Id. at *4. The majority of the Advisory Committee, however, apparently feared that appeal “as of right” would cause an unwanted rush to the circuit court clerk’s office. “The response to the fear that a discretionary system of interlocutory appeal would prove illusory was the fear that a right to appeal woud lead to abuse.” Id. A TRUE BREAK WITH THE PAST? Does new Rule 23(f) represent a true break with past practice? Or does it simply codify the right of circuits to take the varying approaches to class certification appeals they were already taking? As correctly observed by the advocates of interlocutory appeal “as of right,” nothing in Fed. R. Civ. P. 23(f) prevents a circuit from continuing its previous policies regarding allowing — or not allowing — interlocutory appeals of class certifications. Indeed, Rule 23(f)’s grant of “unfettered discretion” to the circuits legitimizes these varying practices. See Knibb, Federal Court of Appeals Manual, 4th ed. (2000) Sec. 5.7, noting that under new Rule 23(f): [a]s courts of appeals gain experience with class certification appeals, they are likely to develop standards about the types of issues they will exercise their discretion in favor of reviewing, but for now the only standards are those you may find in cases granting or denying mandamus. Rule 23(f) clearly does make at least some changes to the prior practice surrounding interlocutory appeals in class actions. The most obvious is that a party no longer needs the permission of the District Court as was necessary under Sec. 1292(b). The party seeking to appeal need only obtain the permission of the circuit court itself. A review of the minutes of the Advisory Committee leaves little doubt that this was considered to be an important step by the drafters. Removing the requirement of District Court permission was not without its critics on the Advisory Committee. The arguments for requiring District Court approval of interlocutory appeals were summarized in the minutes of the committee meeting as follows: An argument was advanced for restoring the requirement of district court permission to appeal, drawing from the observation that a class certification decision may be provisional. … These arguments were later renewed, with the added suggestion that district-court discretion is particularly important in cases that have generated lengthy records on the certification question. The district court’s familiarity with the record will support a better evaluation of the value of appeal. 1995 WL 870908, at *5. The majority of the Advisory Committee, however, found the arguments for retaining the District Court as “gate keeper” of interlocutory appeals to be unpersuasive. Indeed, the minutes of the Advisory Committee meetings voice a fear that District Court judges were refusing to allow interlocutory appeal for reasons wholly unrelated to the certification issue. Id. The District Court, however, was not dropped from the interlocutory appeals equation entirely. The drafters of new Rule 23(f) recognized the need for at least some informal District Court involvement. See Fed. R. Civ. P. 23(f) Committee Note. Obviously, there is no requirement in the rule itself that the District Court submit any such “statement of reasons.” This has led some commentators to question the value of this statement in the Committee Note. See Gould at 325. Another change brought by Rule 23(f) is that the objective standards imposed by Sec. 1292(b) are no longer present. For example, there is no longer any requirement that a party show that the class decision involved a “controlling issue” of law or that there exists a “substantial ground for difference of opinion.” See Knibb at Sec. 5.7, noting that under Rule 23(f): [A]ppeals of class certification orders are not restricted to the potentially limiting requirements of appeals under section 1292(b). In other words, they do not need to meet the test of a controlling question of law with substantial grounds for differing opinions, and the prospect of ending the litigation sooner with an immediate appeal. WILL RULE 23(f) INCREASE APPEALS? It seems unlikely the circuit courts will use their “unfettered discretion” to greatly increase the number of interlocutory class certification appeals accepted. The Advisory Committee minutes echo this view: Permission to appeal should be granted with restraint. The 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 immediate appeal than many other interlocutory rulings. See April 18 and 19, 1996 Minutes of the Civil Rules Advisory Committee, supra. Was Rule 23(f) expected to increase the number of interlocutory appeals? While there is no doubt that Rule 23(f) was intended to increase the opportunity for interlocutory appeal of class decisions; the drafters opined that the number of appeals actually heard will not greatly increase. “It is anticipated and the Advisory Committee Note would make clear that permission to appeal, although discretionary in the court of appeals, will rarely be given.” Advisory Committee on Civil Rules, Minutes of Nov. 9-10, 1995, 1995 WL 870908, at *5 That does not mean that parties who lose the certification decision below will not attempt to transform new Rule 23(f) into a device for automatic interlocutory review of almost every class certification decision. Indeed, the minutes of the Advisory Committee predict just such attempts will initially occur; though they express the hope that these attempts will be short-lived. Id. at *4-5; see also Report of the Judicial Conference Committee on Rules of Practice and Procedure, contained in the Communication from the Chief Justice, at 4, where it was “recognized that there might be strong temptations to seek permission to appeal, particularly during the early days of Rule 23(f)” but expressing hope “that lawyers would soon recognize that appeal would be granted only in cases that present truly important and difficult issues.” THE RULE IN PRACTICE Very few reported appellate opinions have thus far considered petitions for appeal under Rule 23(f). Currently, only two such cases have been located; both from the Seventh Circuit. In Blair v. Equifax Check Services Inc., 181 F.3d 832 (7th Cir. June 22, 1999), the court took the opportunity to attempt to define some of the parameters of the “unfettered discretion” granted by Rule 23(f). In particular, Blair outlined three circumstances when the Seventh Circuit would allow interlocutory appeal of a class determination. 181 F.3d at 834. The first of these circumstances was a promise by that circuit to revive the old “death knell” theory struck down by the U.S. Supreme Court in Coopers, supra. In describing this circumstance, the Blair court noted: Rule 23(f) gives appellate courts discretion to entertain appeals in “death knell” cases … when denial of class status seems likely to be fatal, and when plaintiff has a solid argument in opposition to the district court’s decision, then a favorable exercise of appellate discretion is indicated. 181 F.3d at 834. The second “circumstance” outlined in Blair are those cases where class certification puts “excessive pressure” on a defendant to settle, “even when the plaintiff’s probability on the merits is slight.” 181 F.3d at 834. This circumstance appears to call for at least some consideration of the “merits” of a plaintiff’s claims. How else can such a “probability” be calculated? The third “circumstance” discussed in Blair is loosely described as any case with issues that may “facilitate the development of the law.” 181 F.3d at 835. In such cases, Blair indicates the Seventh Circuit will probably accept the appeal, even if it cannot be shown “that the district judge’s decision is shaky.” Id. Another Seventh Circuit opinion, Gary v. Sheahan, 188 F.3d 891 (7th Cir. 1999), also touches upon the subject of Rule 23(f). Unlike Blair, Gary does not dwell upon the circumstances governing when a circuit should accept an interlocutory appeal. Rather, it emphasizes one of the limits placed on the opportunity to seek interlocutory appeal: the 10-day time limit set forth in Fed. R. Civ. P. 23(f). Gary makes clear that this time limit will be strictly enforced and denies the petition for appeal on that basis. 188 F.3d at 893. See also Advisory Committee on Civil Rules, supra, at *4: “The limits built into the draft were noted repeatedly throughout the discussion. Application for permission to appeal must be made within 10 days of the order granting or denying certification.” It is impossible to draw firm conclusions about how Rule 23(f) will operate from only two reported opinions, especially since both are from the same circuit. The nature of the new rule itself, which grants “unfettered discretion” to each circuit, provides no guarantee that anything said in Blair or Gary will be followed in any other circuit. Moreover, a very strong argument can be made that in Blair, the Seventh Circuit was simply continuing its pre-Rule 23(f) policy of allowing increased interlocutory review of class decisions, a policy previously established in mandamus cases such as In re Rhone-Poulenc Rorer Inc., supra. CONCLUSION It is unclear whether Rule 23(f) will actually change prior practice regarding interlocutory review of class determinations. Some practitioners might argue that the new rule simply recognizes the state of affairs that already existed: some circuits strongly oppose interlocutory review and others seem to favor it. By granting “unfettered discretion” to each circuit court, Rule 23(f) is essentially a license for each circuit to continue following its prior policy regarding such appeals. The argument would assert that Rule 23(f) was adopted merely to preserve the integrity of mandamus and the All Writs Act. If this interpretation is correct, then one might opine that some circuits, including the Third, Fourth and Eighth, will continue their firm policy against allowing interlocutory review of class determinations. Other circuits, which previously “stretched” mandamus principles to allow frequent interlocutory review of class determinations — such as the Sixth, Seventh and 11th — can be expected to continue that prior practice; but this time under the more intellectually acceptable rubric of Rule 23(f)’s “unfettered discretion.” The future actions of other circuits, however, will be harder to predict. Courts such as the Fifth and Ninth circuits have shown a willingness to allow Sec. 1292(b) appeals of class determinations. These same circuits, however, have expressed reluctance to follow the Seventh’s Circuit’s approach in Rhone because of their belief that it distorted mandamus principles. That objection having been rendered moot by new Rule 23(f), these circuits may very well use their discretion to accept more interlocutory appeals. Accordingly, while it would be trite to say that “only time will tell” whether Rule 23(f) completely revamps class action appellate procedure, it would be true. Philip Stephen Fuoco heads a Haddonfield firm that concentrates its practice in class actions and complex litigation. Joseph A. Osefchen is an associate at the firm.

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