Rule 23(f) of the Federal Rules of Civil Procedure allows a party to petition for permission to appeal a class certification decision within 14 days after entry of an order denying or granting class certification. In Eastman v. First Data Corp., 2013 U.S. App. LEXIS 24106 (Dec. 4, 2013), the Third Circuit strictly enforced this rule and refused to consider the merits of a petition for permission to appeal that was filed three days late. The ruling serves as a stark reminder that the 14-day filing deadline for such petitions is mandatory. The losing party on the class certification motion must meet the strict deadline if it is to take advantage of Rule 23(f)’s procedure for obtaining discretionary interlocutory appellate review.
The plaintiffs in Eastman sought to represent a class of nearly 25,000 small businesses that allegedly had been defrauded by First Data, a manufacturer of point-of-sale credit card processing terminals. They contended that they had been charged exorbitant leasing fees and that First Data had concealed material sales information. On July 31, 2013, the U.S. District Court for the District of New Jersey denied the plaintiffs’ motion for class certification because it found that the plaintiffs could not prove through common evidence whether each class member had been charged usurious interest, whether the defendant had failed to disclose material information to all class members, and whether the lease prices were unconscionable.
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