When a defendant receives an adverse decision on a motion for class certification, whether the court of appeals grants permission to appeal under Rule 23(f) of the Federal Rules of Civil Procedure (or a state-court equivalent, if available) can be a crucial turning point in the case. If the court of appeals will not hear an interlocutory appeal on class certification, the only way to obtain review of that decision is to take the case through trial, to a final judgment. But few class actions are tried. Due to the high stakes and large costs involved, when a class is certified, the case often settles. While the petition for permission to appeal under Rule 23(f) is thus a crucial step, it must be put together under a short timeframe (14 days from the trial court’s order), which may make it difficult for the defendant to select and retain appellate counsel new to the case. And the petition must be concise – 5,200 words (approximately 20 pages).

The short timeframe and limited space for these petitions sometimes results in defendants filing petitions that are focused heavily or even entirely on why they believe the trial court got it wrong. But the court of appeals will also be focused on other factors, such as whether there are significant questions of law involved (as opposed to merely application of established law to the facts of your case), why the issues presented matter for other cases or the development of the law, and why the appeal cannot wait until after a final judgment.

In many instances, a court of appeals’ decision on whether to grant permission to appeal will be only a one-line order without explanation. In In re Marietta Memorial Hospital, 2018 U.S. App. LEXIS 460 (6th Cir. Jan. 8, 2018), however, the Sixth Circuit wrote a short opinion on this, likely to provide parties filing Rule 23(f) petitions with additional guidance. The court began by setting forth the key factors it considers in deciding whether to hear these appeals:

We may, in our discretion, permit an appeal from an order granting class certification. Fed. R. Civ. P. 23(f). This “unfettered” discretion is akin to the discretion of the Supreme Court in considering whether to grant certiorari; thus, we may consider any relevant factor we find persuasive. See Fed. R. Civ. P. 23, advisory committee’s note (1998 amendment); In re Delta Air Lines, 310 F.3d 953, 959 (6th Cir. 2002) (per curiam). Typically, however, we consider (1) whether the petitioner is likely to succeed on appeal under a deferential abuse-of-discretion standard; (2) whether the cost of continuing the litigation for either the plaintiff or the defendant presents such a barrier that subsequent review is hampered; (3) whether the case presents a novel or unsettled question of law; and (4) the procedural posture of the case before the district court. In re Delta Air Lines, 310 F.3d at 960.

In explaining why it declined to grant review, the Sixth Circuit noted that the defendant “has not identified any novel legal question raised by the petition,” and that the defendant’s “mere ‘general assertion[s]’ that certification is dispositive of the litigation” were insufficient. The Sixth Circuit advised that, in order to demonstrate that the costs of litigation would likely preclude review after a final judgment, “the defendant should provide insight into the potential expenses and liabilities.” The Sixth Circuit also noted that the defendant failed to address whether the district court might reexamine the class certification decision, and noted that both parties had filed dispositive motions, which weighed against interlocutory review.

The short opinion in Marietta Memorial Hospital provides a useful reminder for defendants about what should be addressed in a Rule 23(f) petition. It is also important to keep in mind that in most circuits these petitions are decided quickly by a motions panel, which will not delve deeply into the case. A defendant will often be best served by highlighting, where possible, the importance of the issues presented and explaining persuasively why the case is unlikely to reach a final judgment.

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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.