Class or collective actions form an increasingly important of international practice. In the pursuit and evolution of that practice, as we have posted before, tribunals elsewhere follow the development of U.S. class action law and practice.
George McReynolds, et al. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 11-3639 (7th Cir. 2012), presents a careful analysis of two recurring issues: first, whether the time limits for an interlocutory appeal of a class action order is statutory or jurisdiction on the one hand or something closer to discretionary on the other; and, second, what effect the Supreme Court’s decision in Wal-Mart Stores v. Dukes, 131 S. Ct. 2541 (2011), might have had on cases of huge numbers of potential class members.
On the first of the issues, Rule 23(f) requires that leave to appeal be sought from the court of appeals within 14 days of the entry of the order granting or denying certification. The Seventh Circuit observed that, recently, the Supreme Court “has been moving toward a definition of the subject-matter jurisdiction of the federal courts that includes all case that these courts are ‘conpetent’, in the sense of legally empowered, to decide”. This “implies”, said the Court of Appeals, “that deadlines for appealing are not jurisdictional, since they regulate the movement upward through the judicial hierarchy of litigation that by definition is within federal jurisdiction”. Surveying other Supreme Court holdings with emanations in the other direction, the Court of Appeals concludes:
What we take away from this formula is that if the Court has traditionally treated a particular statutory deadline as jurisdictional it will go on doing so, [citations omitted], even though doing so doesn’t comport with the new ‘competence’ standard”.
With that clear standard in mind, the Court of Appeals ruled that Rule 23(f)’s timing is not jurisdictional. It is one of the very few statutory deadlines that grant discretion to the Court of Appeals, and the Court was unwilling to follow divergent emanations from the Tenth Circuit (Carpenter v. Boeing Co., 456 F.3d 1183 (10th Cir. 2006)).
On the second issue, the Court of Appeals was unwilling to read Wal-Mart as requiring denial of class certification merely because a company is so large, and its employee base so disparate or dispersed, that decisions were not made from the very top echelons of a company but were delegated to intermediate managers. Said the Court of Appeals, there exist subsidiary issues that might well be suitable for class-wide determination.
