The Fifth Circuit recently addressed the scope of appellate jurisdiction under the Class Action Fairness Act (CAFA). CAFA allows federal courts of appeals to hear, on a discretionary basis, appeals from “an order of a district court granting or denying a motion to remand a class action.” 28 U.S.C. § 1453(c)(1). The Fifth Circuit has held, contrary to some other circuits (such as the Seventh Circuit), that on such an appeal it can only consider whether federal jurisdiction exists under CAFA, not any other basis for the district court’s order. The Fifth Circuit recently maintained the same position notwithstanding a recent Supreme Court decision reaching a different outcome under an analogous statute.

In Stewart v. Entergy Corporation, No. 22-30177, — F.4th –, 2022 WL 1711659 (5th Cir. May 27, 2022), the defendant argued that in a CAFA appeal, the court of appeals could consider an additional ground for federal jurisdiction (bankruptcy jurisdiction), relying on BP P.L.C. v. Mayor of Baltimore, 141 S. Ct. 1532 (2021). In BP P.L.C., the Supreme Court addressed 28 U.S.C. § 1447(d), which permits appellate review of a remand “order” if the removal was under Section 1442 (applicable to suits against federal officers or agencies) or Section 1443 (applicable to certain federal civil rights claims). The Supreme Court held that under the plain text of Section 1447(d), the entire “order” is appealable, not merely the part of it that addresses Section 1442 or 1443. The Court has reached the same result under Section 1292(b), which allows interlocutory appeals from an “order” certified by the district court as involving a “controlling question of law” on which there is a “substantial ground for difference of opinion.” Under that statute, the Court previously held that the entire order is appealable, not merely the question(s) identified.

In Stewart, the Fifth Circuit concluded that B.P. P.L.C. had not “unequivocally overruled our precedent or established a law inconsistent with it,” and thus the panel was bound by prior circuit precedent limiting CAFA appeals to CAFA issues. The Fifth Circuit also reasoned that CAFA’s requirement that petitions for permission to appeal be filed within 10 days, and that appeals be decided within 60 days of permission to appeal being granted, would make it difficult, as a practical matter, to decide appeals involving multiple issues. The Fifth Circuit also noted that appeals are discretionary under CAFA, unlike under the statute construed by the Supreme Court in B.P. P.L.C.

I have doubts about whether Stewart will hold up if reviewed en banc or if this issue reaches the Supreme Court. Distinguishing CAFA from other statutes that allow appeals from an “order” is difficult. Although not addressed in Stewart, Section 1453(c)(1) allows appeals from remand orders in a “class action”; it does not exclude bases other than CAFA for jurisdiction in a class action. Given that CAFA appeals are discretionary, a court of appeals might have discretion to limit the issues to be addressed in an order granting leave to appeal, as the Supreme Court does sometimes when granting certiorari. It may not be easy for defendants to obtain interlocutory appellate review of issues unrelated to CAFA jurisdiction in a class action, but it seems a stretch to conclude that CAFA makes that impossible.

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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.