For in-house counsel, a federal district court order granting or denying class certification is often a watershed moment. If certification is denied, it may be economically impractical for the plaintiff to continue to litigate and the case may effectively be won. If certification is granted, in-house counsel may face extraordinary pressure to settle and avoid the risk of an adverse judgment on hundreds or thousands of claims.
Given such high stakes, it is critical that in-house counsel begin preparing for possible appellate review of an order granting or denying certification while the case is in the district court. Such preparation starts with an understanding of the factors that may lead a court of appeals to grant interlocutory review of a class certification ruling under firm grasp of Federal Rule of Civil Procedure 23(f). But it also should include a realistic assessment of how a highly active appellate court might second-guess the record, the parties' legal theories and even the district court's case-management decisions.
