A Rule 23(f) Appeal Due to an Inadequate Explanation
In National ATM Council, Inc. v. Visa, Inc., the D.C. Circuit offered a rare explanation for granting a petition to appeal a class-certification grant under Federal Rule of Civil Procedure 23(f). The reasons given were particularly interesting.
The district court certified a class of ATM customers who alleged that Visa and Mastercard’s rules limiting ATM fees violate the antitrust laws. The D.C. Circuit then granted Visa and Mastercard’s Rule 23(f) petition to appeal that class-certification decision. In explaining that grant, the court of appeals noted that the certification order did “not pose an important and unsettled, class action-related legal question that [the D.C. Circuit] must resolve.” Nor did the order “show manifest error by ignoring binding, on-point precedent.”
Instead, the district court’s order was “at least ‘questionable’ insofar as its statements of law were not entirely clear, its citations were not current, and its record analysis was notably terse.” That is, the district court’s explanation was inadequate. The D.C. Circuit noted that the district court had “quoted older, nonbinding district court decisions, and failed to cite the Supreme Court’s most recent case analyzing when common issues predominate over individualized ones under the pertinent class action provision.” And the district court’s statements on proving damages (and related “citations to decades-old, nonbinding cases”) were “arguably . . . in tension with [the D.C. Circuit’s] recent guidance that Rule 23 ‘commands’ the court to take a ‘hard look at the soundness of statistical models that purport to show predominance.’” (Citing In re Rail Freight Rule Surcharge Antitrust Litigation.)
The D.C. Circuit also noted that class certification might be the “death knell” (though technically you might call it a “reverse death knell”) of the case. The monetary stakes of the case—particularly the prospect of treble damages under the Clayton Act—might force Visa and Mastercard to settle rather than litigate the case to an appealable judgment.
The D.C. Circuit concluded that, taken together, “[t]he questionable accuracy of unclear language in the district court’s opinion combine[d] with the ‘death knell’ settlement pressure” warranted a Rule 23(f) appeal. It’s worth nothing, though, that death-knell pressures (or at least claims of those pressures) exist in many damages class actions. So it looks like the district court’s inadequate explanation was the driving reason for allowing the appeal.
The court of appeals went on to affirm the grant of class certification.
National ATM Council, Inc. v. Visa, Inc., 2023 WL 4743013 (D.C. Cir. July 25, 2023), available at the D.C. Circuit and Westlaw
Final Decisions PLLC is an appellate boutique and consultancy that focuses on federal appellate jurisdiction. We partner with lawyers facing appellate-jurisdiction issues, working as consultants or co-counsel to achieve positive outcomes on appeal. Contact us to learn how we can work together.
Learn More ContactRelated Posts
Robert H. Klonoff has posted a draft of his new article Federal Rule of Civil Procedure 23(f): Reflections After a Quarter Century. The article includes new empirical data on appeals (and attempts to appeal) under Federal Rule of Civil Procedure 23(f) and updates my study from a few years ago. It also includes an analysis […]
Continue reading....
The Fourth Circuit split on whether it could review the denial of a motion to dismiss alongside a Rule 23(f) class-certification appeal.
Continue reading....
In Cheapside Minerals, Ltd. v. Devon Energy Production Co., the Fifth Circuit held that a remand under the Class Action Fairness Act’s local-controversy rule was an appealable final decision under 28 U.S.C. § 1291. That meant the appellant did not need to resort to a discretionary appeal under 28 U.S.C. § 1453(c).
Continue reading....
In Harris v. Medical Transportation Management, Inc., the D.C. Circuit reviewed (and reversed) a grant of class certification. But it refused to use pendent appellate jurisdiction to review certification of a collective action under the Fair Labor Standards Act. The court explained that class actions and collective actions “are fundamentally different creatures.” The court of […]
Continue reading....
The Class Action Fairness Act (often referred to as “CAFA”) permits the removal of certain class actions brought in state court. CAFA includes a special appellate provision—28 U.S.C. § 1453(c)(1)—which gives the courts of appeals discretion to review a district court order “granting or denying a motion to remand a class action to the State court […]
Continue reading....Recent Posts
I’m thrilled to announce the creation of Final Decisions PLLC, an appellate boutique and consultancy focused on appellate jurisdiction. Through it, I hope to partner with lawyers facing complex appellate-jurisdiction issues. Almost six years ago, I started the Final Decisions blog as a way to keep on top of developments in the world of appellate […]
Continue reading....
In New Albany Main Street Properties v. Watco Companies, LLC, the Sixth Circuit held that it could not review a decision granting leave to amend as part of a qualified-immunity appeal. The leave-to-amend decision was not itself immediately appealable. Nor could it tag along with the denial of immunity (which technically involved qualified immunity under […]
Continue reading....
In Ashley v. Clay County, the Fifth Circuit held that a municipal defendant could appeal a district court’s refusal to resolve an immunity defense despite the district court’s ordering arbitration.
Continue reading....
Courts sometimes suggest that would-be appellants must establish appellate standing by showing that the appealed decision injured the would-be appellant. When the appealing party cannot show this injury, these courts think that they have lost Article III jurisdiction. But as a recent opinion from the D.C. Circuit’s Judge Pillard explained, that’s not quite right. Judge […]
Continue reading....
In Silverthorne Seismic, L.L.C. v. Sterling Seismic Services, Ltd., a majority of the Fifth Circuit held that a motions panel had erred in permitting a certified appeal under 28 U.S.C. § 1292(b). The district court had certified for an immediate appeal a decision on how the plaintiffs could prove reasonable-royalty damages in a trade-secret case. The […]
Continue reading....