Eciding to Decide: Class Action Certification and Interlocutory Review by the United States Courts of Appeals under Rule 23(f)

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INTRODUCTION

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. …