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“The class certification decision is the most important thing that’s going to happen in this case short of a jury verdict.” So said Brad Seligman, counsel for the plaintiffs in a sex discrimination suit against Wal-Mart, and he should know. He recently persuaded a California federal judge to certify a class of 1.5 million women currently or previously employed in Wal-Mart stores, thereby ballooning an ordinary Title VII case into a colossal, nationwide inquiry into the employment practices of the world’s largest employer. Not so fast, says Wal-Mart, which has sought permission to appeal, hoping to nip in the bud what could prove to be both a public relations disaster and a voracious drain on the company’s finances. Wal-Mart’s interlocutory appeal of the class certification ruling invokes a useful discretionary procedure that is unavailable in Connecticut courts. Rule 23(f) of the Federal Rules gives federal courts of appeal discretion to permit interlocutory appeals from orders granting or denying motions for class certification. The rule recognizes that the decision whether a lawsuit may proceed as a class, though not a final judgment, is often the whole ball game. For plaintiffs, a trial court’s refusal to certify a class may be the death knell for the entire case, particularly when the damages incurred by each plaintiff are too small to justify the costs of pursuing the lawsuit to final judgment. For defendants, the threat of exposure to ruinous damage awards posed by a class certification order often creates overwhelming pressure to settle. Not surprisingly, then, very few class actions are prosecuted to final judgment, which means that — absent an interlocutory appeal — there is little prospect of obtaining appellate review of a trial judge’s ruling on class certification. The standards adopted by the courts to guide their discretion in applying Rule 23(f) reflect these concerns. The 2nd U.S. Circuit Court of Appeals allows an appeal of a class certification ruling if it will “effectively terminate the litigation,” and there has been a “substantial showing” that it is “questionable,” or if the ruling implicates a legal question about which there is a need for “immediate resolution.” These parameters are less demanding than the procedural hurdles in the general federal interlocutory appeal statute, and permit a second look at class certification rulings without opening the door to frivolous appeals. Hevesi v. Citigroup, a high-profile securities case in which the 2nd Circuit permitted only one of two groups of defendants to appeal a class certification order, illustrates how Rule 23(f) can serve as an efficient screen against weak appeals. The court considered the arguments made by both groups of defendants — each of which faced different types of claims — and concluded that only the first group had raised a serious challenge to the merits of the class certification order. In effect, the court took a “peek” at the merits of the trial judge’s certification decision, found that it warranted further scrutiny only for the claims against the first group, and denied leave to appeal as to the remaining claims. Yet both sets of defendants received some degree of appellate review before they were forced to embark on the defense of a class action. At a time when state-court class actions are mushrooming, Connecticut still lacks an effective analogue to Rule 23(f). True, there is a statute that permits appeals from orders granting or denying class certification of CUTPA claims. And the Connecticut Supreme Court has sensibly extended appellate review to other parts of such orders where they are “inextricably intertwined” with the class certification of a CUTPA claim. In Collins v. Anthem Health Plans, the court also dropped a hint that some class certification orders might be appealable under State v. Curcio, which allows appeals of interlocutory orders that “terminate[d] a separate and distinct proceeding” or “so conclude[d] the rights of the parties that further proceedings cannot affect them.” The court has held that an order decertifying an earlier-certified class is immediately appealable under Curcio. But if interlocutory review of class certification rulings makes sense, why limit it to CUTPA cases? One need look no further than the Wal-Mart case to see that novel, potentially decisive class certification rulings occur in other types of cases too. Even allowing appeals of some class certification rulings under the Curcio doctrine would not ensure the consistent potential for appellate review that class certification rulings warrant. Class litigants should not have to jump through the narrow hoops of Curcio to secure appellate review of what amount to case-dispositive decisions in some of the most important lawsuits in our court system. One of my co-columnists has advocated discretionary appellate review of interlocutory orders in general. That is an interesting proposal warranting further discussion. But allowing discretionary appellate review of class certification rulings should be a no-brainer. Michael P. Shea is an appellate attorney at Day, Berry & Howard. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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