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A recurring task for litigators is to seek to obtain appellate review of an issue prior to final judgment in a case. For significant practical reasons, this endeavor often involves class action issues. Unfortunately, the Supreme Court has held that the grant or denial of class certification is not appealable under the “collateral order” doctrine of 28 U.S.C. 1291, even where the ruling marks the “death knell” of the litigation. See Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978). In addition, other possible avenues of immediate appellate review, such as certification pursuant to 28 U.S.C. 1292(b) or mandamus, typically have proved futile. Reflecting the legitimate need for immediate review of class certification decisions in appropriate circumstances, the Federal Rules of Civil Procedure were amended in 1998 to add Rule 23(f). This new section provides that a “court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification.” PROCEDURES AND STANDARDS UNDER RULE 23(f) Rule 23(f) specifies that an application to appeal must be filed within 10 days. The application for a permissive appeal is governed by Fed. R. App. P. 5. Under Rule 5, in turn, the 10-day period is computed pursuant to Fed. R. Civ. P. 6(a). See, e.g., In re Veneman, 309 F.3d 789, 793 (D.C. Cir. 2002). A timely motion for reconsideration in the district court tolls the period for filing the Rule 23(f) application. See, e.g., Blair v. Equifax, 181 F.3d 832, 837 (7th Cir. 1999). The 10-day limit is jurisdictional and cannot be extended by either the district court or the court of appeals. Furthermore, that period is not subject to the additional three days provided where service is made by mail. See Delta Airlines v. Butler, 383 F.3d 1143, 1144-45 (10th Cir. 2004). By the express terms of Rule 23(f), neither the filing nor the granting of an application to appeal automatically stays proceedings in the district court. Either the district court or the court of appeals may enter a stay under the usual equitable standard; while courts retain considerable discretion, stays pending Rule 23(f) appeals are not to be routinely granted. See, e.g., Blair, 181 F.3d at 835. Rule 23(f) differs from the other bases for permissive appeals in two principal respects. First, the authority to screen and allow such appeals is vested solely in the court of appeals. The district court has no role, either on its own (as under Fed. R. Civ. P. 54(b)) or in conjunction with the appellate court (as under 28 U.S.C. 1292(b)). Second, the text of the rule sets forth no standard that must be met for an appeal to be authorized, such as the “controlling question of law” requirement under Section 1292(b). Instead, as explained in the Advisory Committee Notes, the courts of appeals have “unfettered discretion … akin to the discretion exercised by the Supreme Court in acting upon a petition for certiorari.” In implementing Rule 23(f), the courts of appeals have developed standards to guide their discretion in passing upon applications for appeal. While some divergence exists, the circuits generally agree on the fundamental principles. First, every circuit to address Rule 23(f) has concluded that interlocutory appeal is available in “death knell” cases. In such cases, the representative plaintiffs’ individual claims are sufficiently small that denial of class certification is likely as a practical matter to be fatal to continuation of the action. Thus, absent a Rule 23(f) appeal, the district court’s class action ruling may never be subject to appellate review. See, e.g., Blair, 181 F.3d at 834; Chamberlan v. Ford Motor Co., 402 F.3d 952, 957-58 (9th Cir. 2005). Second, this same line of decisions similarly recognizes that Rule 23(f) is applicable in “reverse” death-knell cases. There, the grant of class certification substantially increases the stakes of the litigation for the defendant and pressures it to settle irrespective of the merit of its legal position. Once again, in this situation the court of appeals may never have the opportunity to review the class certification absent a Rule 23(f) appeal. For both of these death-knell categories, the courts of appeals have imposed the additional requirement that the Rule 23(f) applicant show that the district court’s order is “questionable” or has a “substantial weakness.” Blair, 181 F.3d at 835; Prado-Steiman v. Bush, 221 F.3d 1266, 1274 (11th Cir. 2000). Such a showing should take account of the discretion of the district court on many class action issues and the correspondingly deferential standard of appellate review. Third, all of these circuits agree that Rule 23(f) applies where the appeal raises a fundamental and unsettled legal issue. Some courts also consider whether the issue may otherwise escape review if appeal must await the end of the case and whether the question is important not only to the particular case but also to class action law in general. See, e.g., Chamberlan, 402 F.3d at 959. In this category, however, appealability does not turn on a likelihood of error below because “[l]aw may develop through affirmances as well as through reversals.” Blair, 181 F.3d at 835. Fourth, as an independent category, some circuits also allow Rule 23(f) appeals based on clear error in the class action ruling irrespective of the preceding “death knell” and “fundamental issue” criteria. Where the district court’s decision is “manifestly erroneous,” these courts reason, the efficiency and fairness purposes of Rule 23(f) are properly served by correcting the error before rather than after final judgment. See, e.g., Chamberlan, 402 F.3d at 959. Fifth, a few circuits have adopted a “sliding scale” standard that balances all of the factors in deciding whether a Rule 23(f) appeal should be authorized. These courts also look to such additional factors as the procedural posture of the case in the district court on discovery and dispositive motions, the prospect of settlement, and the likelihood of significant change in the financial situation of a party (such as bankruptcy). See, e.g., Prado-Steiman, 221 F.3d at 1274-75 & n.10; Lienhart v. Dryvit Systems, 255 F.3d 138, 144-46 (4th Cir. 2001). Another court, however, has rejected the sliding-scale approach. See Chamberlan, 402 F.3d at 960. Finally, a Rule 23(f) appeal can be based on “special circumstances” that do not come within the foregoing categories. See, e.g., In re Lorazepam Antitrust Litigation, 289 F.3d 98, 103 (D.C. Cir. 2002). This residual ground ensures that the courts of appeals retain sufficient discretion to permit interlocutory appeal in all appropriate circumstances. The circuits uniformly hold that Rule 23(f) permits appeal only from orders granting or denying class certification and no others, such as rulings on motions to dismiss or for summary judgment. See, e.g., Lorazepam, 289 F.3d at 107. For instance, issues of antitrust standing and market definition have been held to be outside the scope of a Rule 23(f) appeal. Id.; In re Delta Airlines, 310 F.3d 953, 961 (6th Cir. 2002), cert. denied, 539 U.S. 904 (2003). Courts have, however, permitted certain fundamental threshold issues to be raised in Rule 23(f) appeals. Thus, questions of constitutional standing under Article III and of subject-matter jurisdiction have been resolved in Rule 23(f) appeals even though they do not directly present class action issues. See, e.g., Bertulli v. Independent Assoc. of Continental Pilots, 242 F.3d 290, 294 (5th Cir. 2001) (constitutional standing); Samuel-Bassett v. Kia Motors America Inc., 357 F.3d 392, 395-96 (3rd Cir. 2004) (subject-matter jurisdiction). Likewise, a number of circuits in Rule 23(f) appeals have addressed issues relating to the underlying merits of the substantive claims in the case if such issues are necessary to the review of the grant or denial of class certification. As one court explained, the inquiry under Rule 23(f) “must focus on the requirements” relevant to class certification “even if they overlap with issues on the merits.” Gariety v. Grant Thornton LLP, 368 F.3d 356, 366 (4th Cir. 2004). For example, in securities fraud cases, reliance is an essential element of the cause of action. Often reliance must be proven for each individual investor, and that generally precludes class certification. However, under the “fraud on the market” theory, reliance can be presumed, thereby making the case suitable for class treatment. Accordingly, in adjudicating Rule 23(f) appeals, courts have decided whether the requirements for “fraud on the market” have been satisfied even though that issue, while integral to the class action determination, goes well beyond the question of class certification and directly bears on the substantive merits of the securities claim. See Unger v. Amedisys Inc., 401 F.3d 316 (5th Cir. 2005); Gariety, supra; Hevesi v. Citigroup Inc., 366 F.3d 70 (2d Cir. 2004); West v. Prudential Securities Inc., 282 F.3d 935 (7th Cir. 2002). MERITS ISSUES ON RULE 23(f) APPEALS Similarly, courts in Rule 23(f) appeals have decided statute-of-limitations issues that are relevant to both class certification and the merits. See McKowan Lowe & Co. Ltd. v. Jasmine Ltd., 295 F.3d 380, 390 (3d Cir.), cert. denied, 537 U.S. 1088 (2002). They also have resolved comparable choice-of-law questions. See Zinser v. Accufix Research Inst., 253 F.3d 1180, 1186-87 (9th Cir. 2001). Courts likewise have addressed issues of Chevron v. NRDC deference that, by defining the elements of the plaintiffs’ cause of action under a federal statute, determined the propriety of class certification. See Glover v. Standard Federal Bank, 283 F.3d 953 (8th Cir.), cert. denied, 537 U.S. 943 (2002). And they even have examined the theories of the parties’ experts to ensure an adequate methodology to litigate on a class basis. In re Visa Check/Mastermoney Antitrust Litig., 280 F.3d 124, 135 (2nd Cir. 2001), cert. denied, 536 U.S. 917 (2002); Blades v. Monsanto, 400 F.3d 562, 572 (8th Cir. 2005). Mark I. Levy is the director of the appellate advocacy group in the Washington office of Atlanta’s Kilpatrick Stockton. He can be reached at [email protected] .

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