Academic journal article Northwestern University Law Review

Appealability of Class Certification Orders under Federal Rule of Civil Procedure 23(F): Toward a Principled Approach

Academic journal article Northwestern University Law Review

Appealability of Class Certification Orders under Federal Rule of Civil Procedure 23(F): Toward a Principled Approach

Article excerpt


Since the early 1970s, the class action has enjoyed a "Jekyll and Hyde" reputation as both a "Shining Knight" and a "Frankenstein Monster."1 There is little debate, however, that the number of class action suits filed is on the rise.2 In response to the continued growth in the number of class actions filed, Federal Rule of Civil Procedure 23 (the class action rule) was recently amended to allow for interlocutory appeals of class certification decisions.3 Only eight circuits have decided cases under new rule 23(f) since its adoption in 1998.4 The jury is still out on whether this reform will change the docket of the federal courts, but many commentators had long called for such a change, anticipating it would be the answer to the "class action problem."5 This Comment will examine the circuit courts' approach to the amendment.

Class actions indisputably are a common device for dispute resolution in the American adversary system, and are integral to the American system of civil litigation.6 Indeed, the device dates back to before the Federal Rules of Civil Procedure were adopted in 1938, and thus before Rule 23 itself.7 The growth of class actions as a common procedural device can be traced from the 1960s and 1970s, when the device was used to accomplish social change in the form of increased civil rights for women and minorities.8 In the 1980s, the class action took its most widely recognized form: the mass tort and consumer products liability class action.9 Class actions are now "big business,"10 and courts often criticize them as "legalized


Commentators suggested that one resolution of the "crisis" of class actions flooding court dockets would be to permit an interlocutory appeal of a district court's order certifying or denying class status. 12 The "final judgment" rulel3 requires that in most cases,14 plaintiffs and defendants wait until entry of judgment in a case to appeal a ruling of the district court. 15 Because class certification decisions are "of paramount importance to the parties to a cause of action,"16 and because the litigation strategy and resources of each party are intimately bound up with a grant or denial of class status,17 the certification question is often the most important issue to the litigation. In the 1960s the Second Circuit pioneered an approach called the "death knell doctrine," which allowed interlocutory appellate review of a denial of class certification where a plaintiff would be unable to continue a suit without the economic benefit of aggregating with other plaintiffs. 18 Many courts followed the lead of the Second Circuit.19

In 1978, the Supreme Court decided Coopers & Lybrand v. Livesay,20 and held that under 28 U.S.C. 1291, orders relating to class certification are not independently appealable prior to final judgment.21 The decision overruled the holdings of several circuit courts.22 Although Coopers & Lybrand largely gutted the viability of appealing class certification decisions, courts have continued to permit appeal either through writs of mandamus23 or 28 U.S.C. 1292(b).24 Both of these avenues, however, have proved arduous for litigants because the standards for garnering review under both are strict.25

A 1998 amendment to Rule 23 resulted in new Rule 23(f), which allows an appellate court, within its discretion, to grant a petition to review a grant or denial of class certification.26 This includes allowing the "death knell" appeals rejected by the Court in Coopers & Lybrand.27 To date, only eight circuits have suggested standards for deciding whether to grant a petition under Rule 23(f).28

This Comment addresses the current standards used by courts of appeal in granting interlocutory appeals of class certification decisions. This Comment suggests that these standards should require certification of the death knell situation, and clarifies which cases are "important" enough for interlocutory review by looking to case law in various areas. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed


An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.