Commercial Litigation and Arbitration

Class Actions — The 3½ Grounds Warranting Discretionary Review of a Certification Decision under Rule 23(f)

In re Rail Freight Fuel Surcharge Antitrust Litig., 2013 U.S. App. LEXIS 16500 (D.C. Cir. Aug. 9, 2013):

Before addressing the merits, we pause to consider a thorny threshold question. Should we be exercising our appellate jurisdiction over this case in the first place? Class certification is, after all, not a final decision of the sort we typically review on appeal from the district court. See 28 U.S.C. § 1291. Certain interlocutory decisions do qualify for immediate appellate review. See id. § 1292. But in the case of class certification, that review is discretionary, not automatic. See Fed. R. Civ. P. 23(f) & advisory committee's note; see also 28 U.S.C. § 1292(e) (creating jurisdiction over interlocutory appeals in those circumstances in which the Supreme Court has prescribed rules providing for such review).

Discretionary does not mean arbitrary. Choosing whether to exercise jurisdiction over an interlocutory appeal from a certification decision turns on more than what we had for breakfast. According to our case law, three situations warrant immediate review. The first of these arises when the decision to certify is "questionable" and is accompanied by a "death-knell"--i.e., it places "substantial pressure on the defendant to settle independent of the merits of the plaintiffs' claims." In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98, 102, 105 (D.C. Cir. 2002). The second situation occurs when the certification decision "presents an unsettled and fundamental issue of law relating to class actions, important both to the specific litigation and generally, that is likely to evade end-of-the-case review." Id. at 105. Thirdly and finally, we will grant interlocutory review of a certification decision that is "manifestly erroneous." Id. Absent "special circumstances," these three categories constitute the sole bases for interlocutory review. Id. at 106.

The categories are mutually reinforcing, not exclusive. A certification decision may warrant immediate review under multiple theories. See, e.g., Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675 (7th Cir. 2001). And, where a single ground for interlocutory appeal might otherwise be shaky, the confluence of multiple rationales may fortify our decision--the sort of "special circumstances" contemplated by our case law. Cf. In re Veneman, 309 F.3d 789, 795 (D.C. Cir. 2002) (holding out the possibility that a fundamental issue of first impression unlikely to evade end-of-case review may nevertheless qualify for interlocutory review as a special circumstance). We have such a hybrid rationale here. Even if the amount involved does not sound a death knell for the defendants, it is still astronomical. Recent decisions of the Supreme Court have unsettled the law relating to class actions, and the latest pronouncement on the role of expert evidence was unavailable to the district court at the time of its decision. Collectively, these factors--the death knell, the questionability of class certification, and new developments in the jurisprudence--convince us that this is a case fit for immediate review.

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