Chapter 10 - § 10.2 • INTERLOCUTORY APPEAL OF CLASS CERTIFICATION RULING

• Jurisdiction: Colorado

§ 10.2 • INTERLOCUTORY APPEAL OF CLASS CERTIFICATION RULING

C.R.S. § 13-20-901(1) provides, "A court of appeals may, in its discretion, permit an interlocutory appeal of a district court's order that grants or denies class action certification under court rule so long as application is made to the court of appeals within fourteen days after entry of the district court's order." The court of appeals considers five non-exclusive factors when determining whether to exercise its discretion to permit an interlocutory appeal of an order granting or denying class certification:

1) Whether the trial court's ruling effectively prevents the plaintiff from continuing to pursue the matter or places irresistible pressure on the defendant to settle (death knell);
2) Whether the trial court's class certification decision likely constitutes an abuse of discretion (substantial weakness);
3) Whether allowing the appeal will permit resolution of an unsettled legal issue important to the particular litigation, as well as important in itself;
4) The status of discovery, pendency of relevant motions, and length of time the action has been pending; and
5) The likelihood that future events could make immediate appellate review more or less appropriate.²³

Apart from the five non-exclusive factors listed above, special compelling circumstances may require a different result as to whether to permit interlocutory appeal of an order granting or denying class certification.²⁴ However, the most important consideration for making such determination is whether the trial court's order is likely to effectively dispose of the litigation.²⁵

The Colorado Supreme Court's approval of a homeowners' association suing on behalf of its unit owners in a representative capacity as to matters affecting the common interest community under CCIOA²⁶ avoids the need to seek class certification of such claims and the risk of being subject to an interlocutory appeal under C.R.S. § 13-20-901(1).

§ 10.2.1—Class Action Fairness Act

In 2005, Congress passed the Class Action Fairness Act (CAFA).²⁷ This law generally allows easier removal to the federal courts of class actions filed in state court.²⁸ CAFA enacted a "consumer class action bill of rights" that augmented federal diversity jurisdiction. With some exceptions, class actions with 100 or more class members, in which more than $5 million is in controversy after aggregating class members' claims, and in which any member of the plaintiff class is a citizen...