eciding to decide: class action certification and interlocutory review by the United States Courts of Appeals under Rule 23(f).

AuthorSolimine, Michael E.
PositionFederal Rules of Civil Procedure


As the twentieth century comes to a close, class actions are hot. Whether reading academic journals or leafing through the lay press, one cannot avoid seeing some reference to a threatened or actual filing of a proposed class action lawsuit. The subjects of these suits range from the profound--against firearms, tobacco, or breast implant manufacturers, and Swiss banks and German employers for actions taken during World War II--to the amusing--against airlines for flight delays.(1) The United States Supreme Court has begun to pay increasing attention to the class action device,(2) and Congress has recently enacted,(3) or is considering,(4) several pieces of legislation that would regulate class actions. Rule 23 of the Federal Rules of Civil Procedure, which governs class actions, has been considered for possible amendment.(5) All of these developments, and more, have led to a daunting growth of scholarly discussion on class actions.(6)

This attention is not particularly surprising, for a class action is relatively anomalous even in the modern procedural developments of this century. A class action is a lawsuit brought in the name of individual class representatives on behalf of, or against, an entire group of individuals with common issues that make a collective lawsuit more efficient.(7) As the Eighth Circuit famously noted five decades ago, the class action "was an invention in equity ... mothered by the practical necessity of providing a procedural device so that mere numbers would not disable large groups of individuals, united in interest, from enforcing their equitable rights nor grant them immunity from their equitable wrongs."(8) By allowing a case that has ramifications for a great number of people to be resolved in a single proceeding, the class action serves both the needs of justice and judicial economy.(9) Plaintiffs, who otherwise would be denied their day in court, can find relief through a class action. Furthermore, defendants, who otherwise might face seemingly endless streams of litigation, can have their complete liability established in one proceeding. The class action is an increasingly popular and necessary tool in today's legal system, helping to address the claims of mass tort victims and to abrogate the injustices of civil fights violations.(10) The class action, however, is not without its critics, and calls for changes in its structure abound.(11)

At present, Rule 23 requires the trial court to certify, or approve of, the class before a case can proceed as a class action.(12) The rule contains various provisions that instruct the court on which factors to consider in its determination.(13) The court's decision, which is made as early as possible in the litigation,(14) can control the parties' litigation strategy for the balance of the case, as a practical matter.(15) As a result, the certification orders of the trial court often are targeted for appeal by the parties adversely affected by them.(16) Waiting until the end of the litigation, however, before contesting the court's decision on class certification, is often not a viable option.(17) Unhappy litigants may want to pursue an immediate interlocutory appeal of the class certification decision.(18)

Until recently, parties seeking interlocutory relief have had few options.(19) Due to the restraints of the final judgment rule, which permits appeal only at the end of the litigation, courts have not been very receptive to attempts to appeal interlocutory orders.(20) Moreover, the exceptions to the final judgment rule that do exist have stringent requirements that restrict their application to a limited set of circumstances.(21) Thus, it has been extremely difficult for litigants to gain an immediate appeal of a class certification order. In response to these constraints, the Advisory Committee on the Federal Rules of Civil Procedure, in 1996, proposed an amendment to Rule 23 that would provide litigants an additional means by which to seek an interlocutory appeal.(22) The amendment, a new Rule 23(f), effective December 1, 1998, 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 under this rule if application is made to it within ten days after entry of the order. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders it.(23) This provision has the potential to open broad new avenues of interlocutory review of class certification decisions in the federal courts. To date, Rule 23(f) has received little scholarly attention.(24) As of the writing of the present Article, only one circuit has rendered a published opinion discussing the application of the rule.(25) Indeed, the burgeoning literature on class actions has devoted relatively little discussion to the role of appellate courts in general and, in particular, to interlocutory review.(26) This Article aims to fill in some of the gap by addressing the appellate courts' new power to grant a discretionary appeal of class certification decisions. Under the new rule, appellate judges now must decide how to decide whether to hear such appeals. As the Eleventh Circuit suggested, in its discussion of the then proposed Rule 23(f), much will "depend in large part upon how [courts choose] to exercise the discretion granted" by the amendment.(27) This Article focuses on how Rule 23(f) came to be, and how United States Courts of Appeals should exercise the discretion granted to them in the rule.

Part I provides a brief overview of the prerequisites necessary to certify a class under Rule 23. Part I summarizes the reasons for the recent, heightened prominence of class action litigation, including its use in mass tort litigation, the concerns that entrepreneurial plaintiffs will take action to further their own interest, which at times will be adverse to those of the class, and the problems associated with concurrent or sequential class litigation in federal and state courts.

Part II addresses the availability of interlocutory review of trial court decisions on class certification motions before the adoption of Rule 23(f). This Part first addresses the final judgment rule and then considers exceptions to that rule. Part II explains that class certification decisions have been held not to be appealable final judgments, and usually have failed to meet any exception to the final judgment rule. One recent caveat to that generalization is the apparent receptivity of some courts of appeals to review such decisions through the writ of mandamus.(28) Part II explains that use of mandamus lacks sturdy jurisprudential roots and has not developed into a broadly available exception. Indeed, the adoption of Rule 23(f) may prevent the expansion of mandamus in this regard.

Part III directly addresses Rule 23(f) by analyzing the development of the amendment in the 1990s, the intent of the amendment's framers, and how the rule compares to preexisting exceptions to interlocutory review. Finally, Part III proposes several criteria that the courts of appeals should consider in exercising their discretion under Rule 23(f). Part III concludes by applying these criteria to two prominent class action certification cases in which interlocutory appeal was a contested issue, and examining the first published opinion in which the court of appeals applied Rule 23(f).


    1. An Overview of Class Action Procedures

      Rule 23, as it stands today, is the result of amendments in 1966 that completely overhauled the original class action rule. The Advisory Committee, with Harvard Professor Benjamin Kaplan as the reporter,(29) noted several deficiencies in the original rule and sought to provide a more practical approach to determine when a class action should be maintained and to define the extent to which the suit could bind class members to the results.(30) The following discussion provides a brief survey of the requisite characteristics of a Rule 23 class action.

      Rule 23(a) sets forth four prerequisites for class certification.(31) First, the class must be "so numerous that joinder of all members [would be] impracticable."(32) This "numerosity" requirement focuses on the impracticability of proceeding with all members appearing as joined parties, as opposed to being represented by a class representative.(33) Impracticability is not equated with impossibility and this requirement is fulfilled if joinder would be inconvenient or extremely difficult.(34)

      Rule 23 requires that questions of law or fact exist that are common to all class members.(35) This "commonality" requirement does not necessitate that class member claims be identical.(36) Instead, this element is satisfied when there are "common elements of law or fact such that the class action would be an economical way of prosecuting and defending claims."(37) The third prerequisite is closely related to the commonality requirement and requires that the class representative's claims or defenses be typical of the class in general.(38) The inquiry here focuses solely on the representative party and not on the class as a whole, and this prerequisite is met when a "class representative [is] a part of the class and `possess[es] the same interest and suffer[s] the same injury' as the class members."(39)

      The last prerequisite likewise focuses on the class representative and requires that the representative will "fairly and adequately protect the interests of the class."(40) The court must determine if the representative has common interests with the unnamed members of the class; specifically, the representative's interests in the case cannot be antagonistic to the interests of the other class members.(41) Likewise, the court must find that the representative will prosecute vigorously the interests of the class through qualified counsel.(42) The...

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