Complex Litigation: Rule 23(f) Appeals

Abstract

Commentary and analysis of issues relating to the interlocutory appeal of class certification orders under Fed. R. Civ. 23(f). This article discusses the various procedural means for appealing class certification orders prior to the enactment of Rule 23(f) in 1997, including 28 U.S.C. 1292(b) judicial certification and mandamus under 28 U.S.C. 1651. The impetus for enacting a rule permitting interlocutory appeal was advanced by Judge Richard Posner’s decision in In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293 (7th Cir. 1995), criticizing the routine recourse to mandamus motions to reverse judicial rulings on class certification. The article traces the legislative history of Rule 23(f) through the Advisory Committee on Civil Rules, reviewing the arguments presented for and against codification of an interlocutory appeal rule. Finally, the article surveys emerging case law and standards that lower federal courts are developing in implementing Rule 23(f), concluding that anticipated “parade of horribles” as a consequence of the new rule has not really developed.