A recent decision by the D.C. Circuit has a thorough and interesting discussion of the criteria that the court applies in deciding whether or not to grant interlocutory review of a decision granting or denying class certification, under Fed. R. Civ. P. 23(f).  The rule itself does not contain any such criteria, but some circuits have developed such criteria.  The D.C. Circuit’s recent decision, which cites to decisions of several other circuits on this issue, will be of particular interest to class action practitioners, particularly those who handle Rule 23(f) appeals. 

In re Rail Freight Fuel Surcharge Antitrust Litigation, No. 12-7085, 2013 U.S. App. LEXIS 16500 (D.C. Cir. Aug. 9, 2013) is a putative antitrust class action, alleging that the four major freight railroads engaged in a price-fixing conspiracy with respect to fuel surcharges.  A central issue on the motion for class certification involved the damages model of the plaintiff’s expert, presenting issues quite similar to Comcast v. Behrend.  Unsurprisingly, the D.C. Circuit vacated the order granting class certification and remanded for reconsideration in light of Comcast.  What I found most interesting, however, was the extended discussion of the court’s criteria for deciding whether to grant interlocutory review.  Here are some key points the court made: 

  • The first scenario in which the court will grant review is “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.’”  Id. at *11.  The court explained that this does not mean that the case has to be a “bet the company” one, or even close.  Rather, “[t]he death knell marks not the defendant’s demise, but the litigation’s.  . . .  A party need not risk destitution to qualify for immediate review; it is enough that certification ‘generate[s] unwarranted pressure to settle nonmeritorious or marginal claims.”  Id. at *16.  I wonder, however, how a court of appeals, in deciding whether to grant review (typically a decision made based on a short petition and response), can really have enough information evaluate whether the claims on their merits are meritorious or not.  In some cases it’s easy to recognize that the claims are relatively meritless, but others are not so easy.  In addition to the “death-knell” scenario, the D.C. Circuit requires that the district court decision be “questionable,” which it found was the case here in light of Comcast.  The court found this case to be close to satisfying the “death-knell” criterion but not completely. 
  • The second circumstance in which the court will grant review is “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-case review.”  Id. at *11.  The court did not specifically discuss this criterion, however, in the context of the Rail Freight here. 
  • The third circumstance in which the court will grant review is where the district court’s decision is “manifestly erroneous.”  There was no suggestion that the district court’s decision here met that criterion. 
  • Finally, the D.C. Circuit will also grant review where there are “special circumstances” warranting review, a catch-all discretionary category.  This case had such a “special circumstance” in light of the intervening Supreme Court decision in Comcast.  This circumstance, along with the fact that the death-knell category was close to being satisfied, persuaded the court to grant review.  Id. at *22.
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Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career at Skadden.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and I was fortunate to have the opportunity to work on some prominent class actions arising from the 2004 hurricanes in Florida and later Hurricane Katrina, including cases involving the applicability of the flood exclusion, statutes known as valued policy laws, and various other issues.  My interest and experience in class actions gradually led me to focus on that area.

In Connecticut courts I’ve defended various kinds of class actions that go beyond insurance, including cases involving products liability, securities, financial services and consumer contracts.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at my desk or flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation (for more on those, see the Seminars/Programs page of this blog), I often can be found playing or reading with my young daughter, helping my wife with her real estate and mortgage businesses, reading a book about history or politics, or watching the Boston Red Sox (I managed to find bleacher seats for Game 2 of the 2004 World Series when Curt Schilling pitched with the bloody sock).  When the weather is good I also love to take the ferry to Block Island, Rhode Island and ride a bike or walk the trails there. If you go, I highly recommend the Clay Head Trail.