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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