A trial court’s decision on a motion for class certification, as a practical matter, often determines the outcome of the litigation. For defendants, the certification of a plaintiff class can dramatically increase their potential exposure, creating, in the words of the Second Circuit, an “inordinate or hydraulic pressure on defendants to settle, avoiding the risk, however small, of potentially ruinous liability.”1 On the plaintiffs’ side, a denial of class certification can be the equivalent of a dismissal: If no single plaintiff has a large enough claim to justify the costs and risks of going it alone, then it may not be feasible to carry on the suit.
In federal court, however, the district court does not necessarily have the last word on class certification. In 1998, Federal Rule of Civil Procedure 23 was amended to add subsection 23(f), which permits parties to petition the circuit court for interlocutory review of a class-certification order. In contrast to petitions for certiorari or other petitions for discretionary review, Rule 23(f) petitions are granted with some frequency. Despite the circuits’ general aversion to interlocutory review, studies have concluded that Rule 23(f) petitions are granted about 25 percent of the time both in the Second Circuit and in the federal system as a whole.2 A survey suggests that the success rate in recent years has been even higher.3 Although the vast majority of Rule 23(f) petitions are still denied, a one-in-four success rate means that counsel on the losing side of a class-certification decision in federal court should always consider whether Rule 23(f) is a viable option.
