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Interlocutory Review Of Class Certification Decisions By The U.S. Courts Of Appeals: New Rule 23(f) And The Exercise Of "Unfettered Discretion" (Parts I, II, III)

(Parts I, II, III)


By   Irwin H. Warren and Erin J. Law

Federal Rule of Civil Procedure 23(f), which governs interlocutory appeals of district court class certification orders, became effective on December 1, 1998.  The United States Supreme Court promulgated the new rule pursuant to its authority under 28 U.S.C. § 1292(e).1  Rule 23(f) provides:


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.2


Although Rule 23(f) is modeled on 28 U.S.C. § 1292(b),3 interlocutory review pursuant to Rule 23(f) is significantly different:  Rule 23(f) requires neither district court approval of the appeal, nor that the decision of the district court “involve[] a controlling question of law as to which there is substantial ground for difference of opinion.”4  Rather, the new Rule expressly vests the decision whether to grant a Rule 23(f) appeal entirely within the discretion of the federal appellate court, and provides no criteria for the exercise of that discretion.


Adoption of Rule 23(f) marked a dramatic change in class action procedure.  More than twenty years prior to passage of Rule 23(f), in Coopers & Lybrand v. Livesay, the Supreme Court rejected the “death knell” doctrine adopted by a number of Courts of Appeals as an exception to the final judgment rule authorizing federal appellate review.5  The death knell doctrine had permitted appeals from the denial of certification, by “assum[ing] that without the incentive of a possible group recovery [an] individual plaintiff may find it economically imprudent to pursue his lawsuit to a final judgment and then seek appellate review of an adverse class determination.”6  The Court in Coopers & Lybrand reasoned that there was no basis for federal appellate jurisdiction under 28 U.S.C. § 1291 because a class certification order “does not of its own force end the litigation.”7  Given the Court’s conclusion that “[p]erhaps the principal vice of the ‘death knell’ doctrine is that it authorizes indiscriminate interlocutory review of decisions made by the trial judge,”8 the potentially unlimited applicability of this doctrine to other types of interlocutory substantive or procedural rulings as well, and the apparent legislative preference for limiting uninvited appellate review to judgments, the Court held that “death knell” appellate review of class certification decisions must cease.

Rule 23(f) changed all of this.  The 1998 Committee Note emphasizes that granting leave to appeal pursuant to Rule 23(f) not only is within the sole discretion of the appellate court, but that the Courts of Appeals also are “given unfettered discretion whether to permit the appeal, akin to the discretion exercised by the Supreme Court in acting on a petition for certiorari.”9  Citing a Federal Judicial Center Study, the Committee stressed that although many class certification orders do not merit immediate review, several circumstances indeed could warrant immediate appellate consideration.  Nor is the Rule purely “pro-plaintiff” or “pro-defendant.”  The Committee noted that, for example, a denial of class certification may cause a plaintiff to abandon a meritorious claim due to financial constraints; but conversely, a grant of class status may cause a defendant to settle, due to the very sobering prospect of “potentially ruinous liability.”10  The Committee also pointed out that although a Court of Appeals presumably would be more inclined to grant a petition when the class certification decision likely is dispositive, or when the petition involves “a novel or unsettled question of law,” an appellate court also is authorized to grant a petition “on the basis of any consideration [it] finds persuasive.”11  Finally, the Committee contemplated that a district court would issue “a statement of reasons bearing on the probably [sic] benefits and costs of immediate appeal” subsequent to its certification decision, thereby assisting a Court of Appeals considering a Rule 23(f) petition.12


Since Rule 23(f) became effective, the United States Courts of Appeals for the First, Second, Third, Fourth, Seventh, and Eleventh Circuits have addressed whether, and under what circumstances, interlocutory appeals of class certification decisions should be accepted.13  Perhaps not surprisingly, as the courts grapple with a new Rule and its potential implications, these decisions fail to articulate a consistent, coherent standard for Rule 23(f) review.  Rather, each court has built both upon the language of the Rule and the Committee Note, as well as upon the analysis of the courts preceding it, in describing an ever-widening range of scenarios and considerations under which a Rule 23(f) petition may be granted or denied.  This article discusses these six decisions, in chronological order, to illustrate the factors that have been considered by, and the development of appellate jurisprudence in, the Circuit courts when facing a petition for appeal pursuant to Rule 23(f).


The Seventh Circuit
In Blair v. Equifax Check Services, Inc.,14 plaintiffs contended that defendant, a check-verification and fee-collection service provider, violated the Fair Debt Collection Practices Act (the “Act”).  Defendant sent collection letters implying that it would refuse to verify checks written by anyone who had not paid all previously outstanding checks.  Plaintiffs contended that these letters failed to inform recipients that they had thirty days to demand that defendant verify the debt with the merchant, as required under the Act.15  The district court certified the case as a class action under Rule 23(b)(3).16


At the same time that the Blair case was proceeding, however, the same defendant reached a settlement in another class action pending against it in the same district.17  The class of plaintiffs in the settling case included, but was not limited to, the Blair class members, and the terms of that settlement forbade the prosecution of other cases as class actions.18  After the Blair plaintiffs’ motion to intervene in the settling case was denied, their appeal of that decision prevented the settlement from becoming final.19  During this same time period, the district court certified the Blair class, explicitly rejecting defendant’s argument that the settlement in the other case mandated denial of certification of the Blair class.20  The district court ruled that a pending settlement in one action could not affect another pending suit.21  The defendant appealed the certification order pursuant to Rule 23(f).22  


In a decision authored by Judge Easterbrook, the Seventh Circuit began its analysis by stressing that the Committee Note accompanying Rule 23(f) states that “‘the court of appeals is given unfettered discretion’” when considering whether to grant an interlocutory appeal.23  Emphasizing that “[n]either a bright-line approach nor a catalog of factors” should set the standard, the court instead discussed the three rationales that resulted in the birth of Rule 23(f).24  First, the denial of class certification can sound the “death knell of the litigation” because the individual plaintiff’s claim may fail to justify the cost of litigation, although “we must be wary lest the mind hear a bell that is not tolling.”25  Second, the grant of class certification may place significant pressure on a defendant to settle, notwithstanding the defendant’s ultimate likelihood of prevailing on the merits.26  Third, an appeal may contribute to the development of class certification jurisprudence.27  

The Seventh Circuit stated that with regard to the first two rationales, the appellant must show that the district court’s ruling regarding certification is “questionable,” given the district court’s discretion when applyingRule 23 and the correspondingly deferential standard of appellate review.28  When review is granted because the appeal will assist in resolving a disputed issue of law, however, the appellant’s burden with regard to the district court’s ruling is reduced.29  Nonetheless, the court reiterated that “the more fundamental the question and the greater the likelihood that it will escape effective disposition at the end of the case, the more appropriate is an appeal under Rule 23(f),” thus perhaps signaling that many disputed issues of law still can be addressed satisfactorily at the conclusion of the case rather than through an interlocutory appeal.30  Finally, the court observed that “[j]udges have been stingy in accepting interlocutory appeals” under 28 U.S.C. § 1292(b), which permits appeals  when a district court order “involves a controlling question of law as to which there is substantial ground for difference of opinion and . . . an immediate appeal from the order may materially advance the ultimate termination of the litigation.”31  The court reasoned that judges disfavor interlocutory appeals pursuant to 28 U.S.C. § 1292(b) “because that procedure interrupts the progress of a case and prolongs its disposition.”32  The court concluded, however, that although appeals relating to certification determinations “cannot be divorced from the merits” of the underlying action, thus rendering some of this concern appropriate in the context of a Rule 23(f) appeal, the express drafting of the new Rule “to avoid delay” should result in this factor carrying “less weight.”33


Applying these standards, the Blair court permitted the appeal and affirmed the district court’s certification of the class.34  The court observed that the case fell squarely within the third category of cases appropriate for interlocutory review: specifically, it involved an important issue of law regarding the proper management of multiple, overlapping class actions.35  Further, the issue clearly could evade appellate review, because at the conclusion of the case, the issue would be the relationship of multiple overlapping judgments, rather than the management of ongoing litigation.36  The Seventh Circuit affirmed the district court, holding that although a judgment in the settling case would bind the Blair class, and certainly would require decertification of the class, the settlement’s lack of finality due to the intervention appeal rendered the district court’s decision to proceed with its certification determination entirely within its discretion.37


The First Circuit
In Waste Management Holdings, Inc. v. Mowbray,38 plaintiff sued for breach of defendant’s contractual warranty (guaranteeing the accuracy of its financial statements) and proposed to sue on behalf of a class of all persons who entered into asset purchase agreements with the defendant in exchange for shares of the defendant’s stock.  The proposed class was comprised of more than 300 sellers in 119 separate transactions from numerous jurisdictions.39  Of these transactions, thirty-two involved an agreement containing an express warranty regarding the accuracy of the defendant’s financial statements.40  The defendant opposed class certification and argued, inter alia, that the necessary application of the laws of multiple jurisdictions resulted in the predominance of individual questions over common questions so as not to warrant class treatment.41  The district court denied class certification as to those individuals who had entered into agreements absent an express warranty, but granted class status to the eighty-one individuals who had entered into agreements containing an express warranty.42  The defendant appealed under Rule 23(f).43


The Mowbray court began its analysis, as did the Blair court, by noting the “unfettered discretion” possessed by the court of appeals in determining whether to grant an interlocutory appeal under Rule 23(f).44  The court emphasized, however, that the Committee Note “predict[s] that ‘permission is most likely to be granted when the certification decision turns on a novel or unsettled question of law, or when, as a practical matter, the decision on certification is likely dispositive of the litigation.’”45  The court then underscored the two main rationales for the creation of Rule 23(f): (1) “restor[ing] equilibrium” caused by a questionable class certification ruling that could cause a party to abandon a claim or defense prematurely before trial, and (2) enabling the court of appeals to address an unsettled area of law at an early stage in the litigation.46
Although the First Circuit characterized the Blair holding as sound, the court narrowed the circumstances under which it would review a certification determination to clarify a “fundamental issue of law.”47  The court reasoned that, as explained in Blair, the third category could invite unwarranted Rule 23(f) applications, given the nature of the law as a “seamless and evolving web.”48  Mowbray therefore limited the circumstances under which the First Circuit would grant Rule 23(f) review of certification decisions involving a question of law to “instances in which an appeal will permit the resolution of an unsettled legal issue that is important to the particular litigation as well as important in itself and likely to escape effective review if left hanging until the end of the case.”49


In addition to establishing the circumstances under which it would grant leave to appeal, the court indicated that it would exercise its discretion “judiciously,” highlighting that “interlocutory appeals are disruptive, time-consuming, and expensive.”50  Although the Mowbray court recognized that Rule 23(f) is “designed to operate from a more accessible plateau,” the court stressed its preference for showing appellate restraint and providing district courts with the opportunity to revisit a certification decision pursuant to Rule 23(c)(1).51

Turning to the case before it, the court observed that it normally would have denied leave to appeal, because – even accepting the economic pressures to settle – the defendant had failed to establish that the district court’s decision was questionable.52  Further, the court found that the unsettled legal issues were not sufficiently novel to warrant interlocutory appeal, despite the presence of issues “both fundamentally important and important in the context of this litigation.”53  Given the extensive briefing, however, the Mowbray court exercised its discretion to hear the appeal and affirmed the decision of the district court, reasoning that a decision would clarify the case law, as well as illuminating areas of the certification decision that could be raised for reconsideration at a later date.54


The Eleventh Circuit
In Prado-Steiman v. Bush,55 individuals with developmental disabilities sued state officials, challenging the state’s administration of a program to provide Medicaid-related services and seeking both declaratory and injunctive relief.  Over defendants’ objection, the district court certified a “broad” class, comprised of all persons with developmental disabilities receiving or eligible for Medicaid-related services provided by the state of Florida, including future potential recipients.56


Noting that it was establishing circuit precedent for Rule 23(f) appeals, the Eleventh Circuit reviewed with approval the decisions of the First and Seventh Circuits.57  Further, the court agreed with narrowing the third standard, as established in Mowbray, to circumstances in which the question of law “‘is important to the particular litigation as well as important in itself and likely to escape effective review if left hanging until the end of the case.’”58  Despite its approval of the three standards previously articulated by Blair and Mowbray under which interlocutory review would be appropriate, however, the Prado-Steiman court proceeded to set out a litany of additional factors “that may weigh against frequent interlocutory appellate review of class action certification decisions.”59


First, the Eleventh Circuit observed that the dramatic rise in the number of class actions filed in federal court renders frequent review of class certification decisions impractical.60 Second, the court cautioned that it is not the appellate court’s role “to micro-manage complex class action litigation as it unfolds in the district court,” especially given the authority of district courts to review and revise class certification decisions throughout the litigation.61  The court of appeals warned that a reversal or affirmance of a class certification decision on appeal could make a district court less likely to revisit a class certification determination, given the delay often caused by those appeals.62  Finally, the Eleventh Circuit stated that an appellate court should grant a Rule 23(f) appeal in the case of a disputed question of law only if the appellant demonstrates “a compelling need for resolution of the legal issue sooner rather than later.”63

After discussing these limitations on Rule 23(f) appeals, the court further refined the standards established by the First and Seventh Circuits.  The “most important” standard, according to the Eleventh Circuit, is whether the district court’s class determination ruling will cause a “death knell” for either litigant.64  In assessing this factor, it noted that appellate courts also should consider: (1) the size of the class and the financial resources of the parties; (2) the existence of any related litigation (especially in the case of a mass tort claim against a corporate defendant); and (3) the nature of the relief sought, i.e. a class seeking only declaratory and/or injunctive relief may place less pressure on a defendant to settle.65  Next, the Eleventh Circuit stated that the appellate court should evaluate whether the appellant has established a “substantial weakness” in the certification decision amounting to an abuse of discretion; merely demonstrating, without more, that a district court’s ruling is “questionable” typically is insufficient to warrant immediate review.66  The court reasoned that “this factor should be viewed as a sliding scale,” implying that, even in the absence of a strong showing of the remaining factors, a clear abuse of discretion may call for appellate review.67  Finally, a reviewing court should determine if the appeal “will permit the resolution of an unsettled legal issue that is ‘important to the particular litigation as well as important in itself.’”68  In evaluating the importance of the issue, the reviewing court should consider whether the issue: (1) is capable of repetition, (2) “has a strong public interest component,” or (3) “relates specifically to the requirements of Rule 23.”69


In addition to refining the standards established by the First and Seventh Circuits, the Eleventh Circuit added two additional factors to be considered in determining whether to grant a Rule 23(f) petition.  Appellate courts “should consider the nature and status of the litigation before the district court,” including “the status of discovery, the pendency of relevant motions, and the length of time the matter already has been pending.”70  Also, “a court should consider the likelihood that future events may make immediate appellate review more or less appropriate.”71  A prospective settlement, a change in the financial status of a party, or even a district court’s indication that it would be amenable to revisiting its certification determination at a later date, are all factors that should be considered by an appellate court when deciding whether to grant a 23(f) petition.72


Notwithstanding the extensive discussion of the circumstances under which it would be more or less inclined to grant review, the Eleventh Circuit emphasized that “the foregoing list of factors is not intended to be exhaustive; there may well be special circumstances that lead us to grant or deny a Rule 23(f) petition even where some or all of the relevant factors point to a different result.”73  Rather than utilizing each of the discussed criteria as a prerequisite for review, the court observed that “each relevant factor should be balanced against the others, taking into account any unique facts and circumstances.”74

In reviewing the case before it, the Prado-Steiman court concluded that interlocutory review of the certification decision would not be warranted under typical circumstances.75  The defendants failed to demonstrate that: (a) they faced substantial pressure to settle, especially given the equitable nature of the relief sought; (b) the district court’s ruling amounted to a “profound error of law”; or (c) the case involved any “fundamental issue of law.”  Nonetheless, the court ruled that the overwhelming public interest in the resolution of the case, coupled with the need to establish Rule 23(f) standards (and the full briefing and argument on the merits), rendered consideration of the appeal appropriate.76  The court vacated the class certification order and remanded the case to the district court, concluding that the claim of the named representative failed to “possess the requisite typicality with the claims of the class at large.”77


The Fourth Circuit
In Lienhart v. Dryvit Systems, Inc.,78 plaintiff homeowners asserted that the defendant manufacturer’s product suffered from design defects and that the defendant had failed to warn purchasers of those defects.  The district court certified a class over the defendant’s objection, and the defendant appealed under Rule 23(f).79
The Fourth Circuit began by discussing the Committee Note and the holdings of its sister circuits in Blair, Mowbray, and Prado-Steiman.80  The court concluded that while Mowbray narrowed the field of cases appropriate for review when compared to Blair, “Prado-Steiman . . . broadened the bases for a grant of review.”81  As interpreted by Lienhart, Prado-Steiman added two additional circumstances favoring review: (1) “the weakness of the district court’s certification decision as an independent factor”; and (2) the impact of a Rule 23(f) determination on related litigation.82  


The court expressly rejected plaintiff’s call for more limited review, characterizing its suggested standards as “exceptionally stringent,” especially when considered in conjunction with Rule 23(f)’s purpose of eliminating the “unduly restrictive review practices” applicable to mandamus petitions.83  Despite acknowledging that the standards adopted should take into account, as a practical matter, the limited ability of the federal appellate courts to review class certification determinations as a matter of course, the court emphasized that “a careful and sparing use of Rule 23(f) may promote judicial economy by enabling the correction of certain manifestly flawed class certifications prior to trial.”84  The court, therefore, adopted the five-factor test first delineated by the Eleventh Circuit in Prado-Steiman, noting that it would use the third factor – the “substantial weakness” of the district court’s ruling – as a “sliding scale.”85  The strength or weakness of this third factor, in turn, determines the requisite showing with regard to the remaining four factors.86


Applying this test to the case before it, the  court concluded that the district court’s certification decision was “manifestly erroneous” and guaranteed to be vacated on appeal.87  The appellate court found that the district court erred because it failed to consider the state’s contributory negligence statute – specifically, that the district court improperly found that common issues would predominate despite the need to assess individualized proof of damages.88  Given the significance of the district court’s error, the appellate court did not consider the remaining four factors at all, reasoning that interlocutory review was “appropriate . . . in order to avoid the judicial diseconomy entailed in allowing a class certification which is clearly infirm to be litigated to final judgment only to face vacatur on appeal.”89


The Second Circuit

In In re Sumitomo Copper Litigation,90 plaintiffs raised claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO”) and the Commodities Exchange Act (“CEA”), asserting that defendants engaged in a conspiracy “to manipulate the prices of copper futures contracts” traded on a divisionof the New York Mercantile Exchange.  The district court certified a class of more than 20,000 copper futures contract traders who traded during two discrete time periods, but expressly noted “that it would modify the class period if it proved too unwieldy.”91  Defendants appealed the class certification order pursuant to Rule 23(f).92  In a decision published this past September, the Second Circuit clarified its earlier order denying the defendants’ petition and addressed the standards it would apply to future Rule 23(f) petitions.93


The Sumitomo court began its analysis by pointing to the Committee Note’s emphasis upon the appellate court’s “unfettered discretion” with regard to Rule 23(f) petitions.94  It then discussed the holdings of the other appellate courts, beginning with the basic standards of review set forth in Blair, and highlighting the “refined” standards subsequently established by the courts in Mowbray and Prado-Steiman.95  The court noted that although Mowbray and Prado-Steiman added more contour to the basic Blair standards, both emphasized that appellate authority pursuant to 23(f) was highly discretionary, permitting review even under circumstances where neither basic test was met.96
The Sumitomo court held that parties seeking review pursuant to Rule 23(f) must satisfy one of the two Blair tests, as modified by Mowbray and Prado-Steiman.97  

Acknowledging its discretion to grant Rule 23(f) petitions even absent such a showing, the court reiterated that its discretion would be “tempered by our longstanding view that the district court is often in the best position to assess the propriety of the class and has the ability, under Federal Rule of Civil Procedure 23(c)(4)(B), to alter or modify the class.”98  Decisions certain to be reversed on appeal are “particularly appropriate” for interlocutory review; decisions requiring a mere modification of a certification or further development of the factual record are not.99  Likewise, a “novel” legal issue is not per se sufficient to compel Rule 23(f) review.100  Rather, the legal issue must be of  “fundamental importance to the development of the law of class actions and . . . likely to escape effective review after entry of final judgment.”101  Finally, noting that Rule 23(f) authorizes either the district court or the appellate court to issue a stay, the court held that it would not issue a stay pending consideration of a Rule 23(f) petition “unless the likelihood of error on the part of the district court tips the balance of hardships in favor of the party seeking the stay.”102  

In conclusion, the Sumitomo court observed that its approach to review of Rule 23(f) petitions would continue to promote the values of efficiency and deference that the final judgment rule embodies.103  The court emphasized, however, that it was not foreclosing a grant of review – even in the case of a petition that failed to satisfy either prong of the Blair test – if there existed “special circumstances that militate in favor of an immediate appeal.”104  


Turning to the case before it, the court denied the Rule 23(f) petition.105  Accepting the defendants’ argument that the grant of class status would sound the “death knell” for the litigation and force it to settle, the court nonetheless reasoned that the defendants “failed to make a substantial showing” that the decision of the district court was questionable.106  Further, the defendants failed to establish that the question of law raised in its petition called for immediate resolution, rather than upon a final appeal, a failure that alone justified denying the petition.107


The Third Circuit
In Newton v. Merrill Lynch, Pierce, Fenner & Smith,108 investors asserted that the defendant broker-dealers’ practice of executing orders based solely on the National Best Bid and Offer system (“NBBO”) without investigating the possibility of price improvement violated § 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5.  The district court denied the plaintiffs’ class certification motion: it reasoned that factual differences existed with regard to each investor’s economic loss, which neither had been established, nor could be presumed, on a class-wide basis; thus, plaintiffs’ claims were “atypical and the class representatives [were] inadequate to represent the class.”109  Plaintiffs petitioned for review of the district court’s denial pursuant to Rule 23(f).110  Ruling for the first time on the standards that it would apply to Rule 23(f) petitions, the Third Circuit granted the petition, and affirmed the district court’s denial of class certification.111


The Newton court began its analysis by reviewing the history of Rule 23(f) and the rationale behind its adoption: “the Rule acknowledges the extraordinary nature of class actions and permits the appellate courts to develop a coherent body of jurisprudence in this area.”112  Observing that the Committee Note discussed the three main circumstances under which interlocutory appeal is appropriate, the court stressed that Rule 23(f) appellate review is not governed by the limitations engrafted on 28 U.S.C. § 1292(b).113  The court concluded that granting a motion pursuant to Rule 23(f) would be appropriate if: (1) the district court’s ruling constituted an “imprudent” class certi-

fication determination that effectively terminates the litigation; (2) the district court’s ruling was “erroneous;” or (3) review would “facilitate development of the law on class certification.”114  The court repeatedly emphasized, however, that its authority to grant a Rule 23(f) petition was not limited only to those circumstances.  Rather, it was authorized “to grant or deny these petitions ‘on the basis of any consideration that the court of appeals finds persuasive.’”115  

Turning to the petition before it, the court concluded that these standards were met: the district court’s denial of class status would have the effect of terminating the litigation for many of the individual plaintiffs and, had the class been certified, the defendants certainly would have faced “hydraulic pressure” to settle.116  In addition, the case presented “fundamental questions about what type of private securities claims merit class certification.”117  Upon review, the court affirmed the denial of class certification, concluding that the proposed class failed to meet the predominance and superiority requirements of Rule 23(b)(3), thus supporting the district court’s denial of class certification.118


Conclusion
Each of these appellate decisions built on the language of new Rule 23(f) and expanded on the prior decisions, thereby illustrating the wide range of scenarios under which a Rule 23(f) petition should be considered.  In addition, the more recent decisions signal that some factors will carry more weight than others, and that appeals may be granted more readily in the case of an egregious error of law.119  Finally, all of the decisions stress the “unfettered discretion” conferred by the new Rule, with the more recent decisions noting that review may be appropriate even in the absence of one of the many judicially established criteria.  Although every one of the factors examined and utilized by these courts constitutes an appropriate factor for a court of appeals to consider when deciding whether to grant a Rule 23(f) petition, that list is by no means exhaustive.


1.        See Comm. Note, Fed. R. Civ. P. 23(f).
2.        Fed. R. Civ. P. 23(f) (2001).
3.        See 7B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1802 (Supp. 2001).  28 U.S.C. § 1292(b) governs discretionary interlocutory appeals.
4.        28 U.S.C. § 1292(b) (2001).
5.        Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978).  Pursuant to 28 U.S.C. § 1291, “[f]ederal appellate jurisdiction generally depends on the existence of a decision by the District Court that ‘ends the litigation on the merits and leavesnothing for the court to do but execute the judgment’” (citing Catlin v. United States, 324 U.S. 229, 233 n.8 (1945)).  See also infra note 103.
6.        Id. at 469-70.
7.        Id. at 467.
8.        Id. at 474 (emphasis added).
9.        Comm. Note, Fed. R. Civ. P. 23(f).
10.        Id.
11.        Id. (emphasis added).
12.        Id.
13.        See Newton v. Merrill Lynch, Pierce, Fenner & Smith, 259 F.3d 154 (3d Cir. 2001); In re Sumitomo Copper Litig., 262 F.3d 134 (2d Cir. 2001); Lienhart v. Dryvit Sys., Inc., 255 F.3d 138 (4th Cir. 2001); Prado-Steiman v. Bush, 221 F.3d 1266 (11th Cir. 2000); Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288 (1st Cir. 2000); Blair v. Equifax Check Servs., Inc., 181 F.3d 832 (7th Cir. 1999).

14.        181 F.3d 832 (7th Cir. 1999).
15.        Id. at 835-36.
16.        Id.
17.        Id.
18.        Id.  
19.        Id. at 837-38.
20.        Id. at 836.  
21.        Id.  
22.        Id.  
23.        Id. at 833 (quoting Comm. Note, Fed. R. Civ. P. 23(f)).
24.        Id. at 834.
25.        Id.
26.        Id.  Indeed, the court observed that a grant of class status could tempt some litigants, and even some courts, to attempt to “wring settlements from defendants whose legal positions are justified but unpopular.”  Id.
27.        Id. at 835.
28.        Id.  
29.        Id.
30.        Id.; see also Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 293-94 (1st Cir. 2000) (discussing Blair and observing that “even when an application [for leave to appeal] touts a supposedly fundamental issue of law, a showing that an end-of-case appeal promises to be an adequate remedy will weigh heavily against granting a Rule 23(f) application”).
31.        Id.; see also 28 U.S.C. § 1292(b) (2001).
32.        181 F.3d at 835.
33.        Id.
34.        Id. at 839.
35.        Id. at 837.
36.        Id. at 838.
37.        Id. at 837-38.
38.        208 F.3d 288 (1st Cir. 2000).
39.        Id. at 292.

40.        Id.
41.        Id.
42.        Id.
43.        Id.
44.        Id. at 293.
45.        Id. (citing Comm. Note, Fed. R. Civ. P. 23(f)).
46.        Id. at 293.
47.        Id. at 293-94.
48.        Id. at 294.
49.        Id.
50.        Id.
51.        Id.  Rule 23(c)(i) provides:  “As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.  An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.”
52.        Id.  
53.        Id. at 295.
54.        Id.
55.        221 F.3d 1266 (11th Cir. 2000).
56.        Id. at 1267.
57.        Id. at 1272-73.
58.        Id. at 1273 (quoting Mowbray, 208 F.3d at 294).
59.        Id.
60.        Id.
61.        Id.  
62.        Id. at 1273-74.
63.        Id. at 1274.
64.        Id.
65.        Id.
66.        Id. at 1274-75 (emphasis in original).  Because class certification determinations require “the application of broad and flexible legal standards to unique and complex sets of facts that do not fit squarely within prior precedent,” district courts usually are given a wide berth with regard to class certification decisions.  Id. at 1275.  A mistake of law, therefore, would be “more readily reviewable” than “an improper application of the law to the facts.”  Id. at 1275 n.9.  

67.        Id. at 1275 n.10.  The court stressed, however, that “[w]e do not mean to suggest that this factor weighs in favor of a Rule 23(f) appeal only when the party seeking interlocutory review meets the extremely demanding test applied to mandamus petitions.”  Id.
68.        Id. at 1275 (quoting Mowbray, 208 F.3d at 294).
69.        Id. at 1275.
70.        Id. at 1276.
71.        Id.
72.        Id.
73.        Id.
74.        Id.
75.        Id. at 1277.
76.        Id. at 1278.
77.        Id. at 1283.
78.        255 F.3d 138 (4th Cir. 2001).
79.        Id. at 142.
80.        Id. at 142-46.
81.        Id. at 145.
82.        Id.
83.        Id.
84.        Id.
85.        Id. at 145-46.
86.        Id. at 146.
87.        Id.
88.        Id. at 146-50.  
89.        Id. at 146.
90.        262 F.3d 134 (2d Cir. 2001).
91.        Id. at 136-37.
92.        Id. at 136.
93.        Id.  In August 2001, the Third Circuit filed its Rule 23(f) decision in Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154 (3rd Cir. 2001) (discussed infra).  Because the Third Circuit amended its decision in October 2001, we discuss it last.
94.        Id. at 138.
95.        Id. at 138-39.
96.        Id. at 139.
97.        Id.  The court, however, neither referenced the fourth and fifth factors added by Prado-Steiman, nor discussed the viability of the “sliding-scale” approach to errors in the district court’s certification order.

98.        Id.  Rule 23(c)(4)(B) states that: “a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly.”
99.        Id.
100.        Id. at 140.
101.        Id.
102.        Id.
103.        Id. “[T]he final judgment rule ‘minimizes the possibility of piecemeal appeals, accords due deference to trial court judges, and promotes the conservation of judicial resources’” (quoting Aluminum Co. of Am. v. Beazer E., Inc., 124 F.3d 551, 561 (3d Cir. 1997)).
104.        Id.
105.        Id.
106.        Id.
107.        Id. at 142.  Alternatively, although the defendant’s claim raised an unresolved question of law, it remained “insufficiently connected to the district court’s certification order” to warrant immediate review.  Id. at 143.
108.        259 F.3d 154 (3d Cir. 2001).
109.        Id. at 182.  The district court also held that common issues did not predominate over individual issues and that litigation as a class was “neither superior nor manageable.”  Id.
110.        Id. at 171.
111.        Id. at 165, 193.

112.        Id. at 162.
113.        Id. at 163.
114.        Id. at 165.
115.        Id. (quoting Comm. Note, Fed. R. Civ. P. 23(f)).
116.        Id. at 165.
117.        Id.
118.        Id. at 193.
119.        Also notable is the appellate courts’ apparent adherence to the Committee Note’s suggestion that a reviewing court consider, when available, the reasoning of the district court when evaluating a complicated Rule 23(f) petition.  See Newton, 259 F.3d at 165 n.6 (observing that “the district courts ‘having walked through the certification decision, can provide cogent advice on the factors’ animating their decisions”) (quoting Comm. Note, Fed. R. Civ. P. 23(f)); Sumitomo, 262 F.3d at 140 (noting that “[v]iews expressed by the district court at the time of class certification, although not required, would be relevant to our determination of whether interlocutory appeal is warranted”); Prado-Steiman, 221 F.3d at 1276 (stressing that an appellate court should consider whether the district court has signaled its amenability to revising a certification decision).

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