Whenever the Supreme Court grants certiorari in a case, that is broadcast broadly to the legal community and those who follow the Court know about it within hours.  But when courts of appeals grant permission to appeal an important issue under the Class Action Fairness Act or Fed. R. Civ. P. 23(f), often few people find out about it, other than the parties to the case, until a decision comes down.  These decisions can have very important implications.  With CAFA cases, given how quickly they move forward under CAFA’s 60-day timeframe for decisions to be issued, there is little time for timely amicus briefs to be filed.  So I thought it would be helpful to take a look at what cases are currently pending on which review has been granted.  Here is a summary of pending cases I found where review has been granted (without attempting to predict where a circuit might grant review and deciding the merits at the same time, which has happened several times in the Seventh Circuit):


South Carolina v. AU Optronics Corp., No. 11-254 (4th Cir.) and South Carolina v. LG Display Co., No. 11-255 (4th Cir.):  These cases involve whether a lawsuit filed by a state attorney general qualifies as a “mass action” under CAFA and issues regarding minimal diversity under CAFA where a state is a plaintiff.  See South Carolina v. AU Optronics Corp., 2011 U.S. Dist. LEXIS 104213 (D.S.C. Sept. 14, 2011); South Carolina v. LG Display Co., 2011 U.S. Dist. LEXIS 104216 (D.S.C. Sept. 14, 2011).  The Fourth Circuit has not formally acted on the petitions for permission to appeal but has ordered merits briefing, scheduled to be completed by the end of February, and indicated that it will set the cases for oral argument.  This procedure will delay triggering the 60-day clock under CAFA, which does not start running until permission to appeal is granted (although query whether this is really what Congress had in mind when it established the 60-day period).

Rolwing v. Nestle Holdings, Inc., Case No. 11-3445 (8th Cir.):  This case presents the question of whether a named plaintiff in a proposed class action can avoid federal jurisdiction under CAFA by executing a stipulation, on behalf of putative class members he is not yet authorized to represent, purporting to cap the  damages of these putative class members below $5 million.  This is a very important issue under CAFA that has never been decided by any court of appeals.  Review has been granted and according to the docket, the parties have consented to an extension of time under which the court will issue a decision by February 8, 2012.

Rule 23(f)

Churchill v. Cigna Corp., Case No. 11-3887 (3d Cir.):  This case involves a district court ruling granting class certification on a purported across-the-board practice by CIGNA of denying coverage for certain kinds of treatment for autism.  For a discussion of the district court opinion, see my prior blog post.  According to the docket, briefing in this case will be completed by April 2, 2012.

Rodriguez v. National City Bank, No. 1108079 (3d Cir.):  This is an appeal from an order denying certification of a proposed settlement class in an employment discrimination case.  See Rodriguez v. National City Bank, 2011 U.S. Dist. LEXIS 101367 (E.D. Pa. Sept. 8, 2011).  The Third Circuit has requested briefing on the merits but not formally acted on the petition for permission to appeal.

Dart v. Smentek, No. 11-3261 (7th Cir.):  The Seventh Circuit granted review under Rule 23(f) “to the extent that the court will permit an appeal on the sole issue that follows: when should a district court on deciding a motion for class certification defer, based on the principles of comity, to a sister court’s ruling on a motion for certification of a similar class. See Smith v. Bayer Corp., 131 S. Ct. 2368, 2382 (2011).”  An interesting issue.  Briefing is scheduled to be completed by March 6, 2012. 

McReynolds v. Merrill Lynch, Pierce, Fenner, & Smith, Inc., No. 11-3639 (7th Cir.):  This employment discrimination case involves whether Wal-Mart v. Dukes allows certification of an “issues” class to decide liability and injunctive and declaratory relief, where individual trials would then need to be conducted on backpay awards.  See McReynolds v. Merrill Lynch, Pierce, Fenner & Smith Inc., 2011 U.S. Dist. LEXIS 115431 (N.D. Ill. Sept. 19, 2011).  The case is on an expedited schedule, with briefing to be completed by January 5, 2012 and oral argument on January 13, 2012.

Rogers v. Epson America, Inc., No. 11-57016 (9th Cir.):  This is an appeal from a denial of class certification in a products liability case involving alleged misrepresentations in the sale of computer printers.  The issues focus on whether reliance, injury and causation can be presumed and whether a lack of standing on behalf of some class members bars certification.  The Ninth Circuit has granted review and briefing is to be completed by April 2012.