Last month, in Roach v. T.L. Cannon Corp.,1 the U.S. Court of Appeals for the Second Circuit reversed a district court’s order that denied certification of a class of restaurant employees alleging labor-law violations. Roach is an important decision for class-action lawyers who practice in the Second Circuit, as it held that classes may (sometimes) be certified even if the assessment of damages will require individualized, person-by-person fact-finding. But perhaps as significant as Roach’s holding was a single, easy-to-miss sentence in its standard-of-review paragraph: “We review a district court’s class certification determination for abuse of discretion, applying a ‘noticeably less deferential’ standard when the district court has denied class certification.”2
This is curious, to say the least. As one Second Circuit judge has noted, standards of review are ordinarily a function of the type of decision on appeal—motion to dismiss (de novo), motion for leave to amend a complaint (abuse of discretion), etc.—and “do not vary depending on the outcome” the district court reached.3 Other courts have expressly rejected such an asymmetric standard, concluding that “the standard of review” (and the level of “deferen[ce]” to the lower court) “ does not depend on whether the trial court grants or denies class certification.”4
