Klonoff on Rule 23(f) Class-Certification Appeals

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 of Sixth Circuit opinions on Rule 23(f) motions (the Sixth Circuit is one of the few courts that regularly explains Rule 23(f) decisions) and a discussion of how cases that reached appellate courts through Rule 23(f) provided guidance on class-action procedure.

I read an earlier draft of this article and can highly recommend it. The draft is available on SSRN, and the abstract is below.

Federal Rule of Civil Procedure 23(f) was adopted in 1998 to permit interlocutory review of decisions granting or denying class certification. Prior to the Rule’s adoption, there were few viable avenues for interlocutory appellate review. Defendants complained that, without an immediate appellate avenue, a district court’s decision to certify a class put enormous pressure on defendants to settle; accordingly, the defense bar strongly urged the adoption of Rule 23(f). The plaintiffs’ bar, by contrast, opposed the adoption of Rule 23(f), fearing that interlocutory review would primarily favor defendants, even though the proposed rule also allowed interlocutory review of decisions denying class certification.

Early statistical studies (including one conducted by the author) showed that defendants were indeed the primary beneficiaries of Rule 23(f), both in the percentage of Rule 23(f) petitions granted and in the decisions on the merits. And the author, in a 2013 law review article, argued that appellate courts had issued numerous rulings making it substantially more difficult for plaintiffs to obtain class certification. But more recent studies (including one conducted for this article) show that the landscape has changed. Rule 23(f) has been applied in a much more evenhanded fashion, with some studies even suggesting that plaintiffs are more likely than defendants to have a favorable outcome (considering both grant rates and decisions on the merits). Moreover, the Sixth Circuit, which routinely issues opinions explaining denials of Rule 23(f) review, has demonstrated that it is equally rigorous in reviewing petitions filed by plaintiffs and defendants. This article offers several possible reasons for the appellate courts’ shift from a pro-defendant approach to a more evenhanded approach.

Rule 23(f) has generated a substantial body of law, thereby providing guidance to district courts on a host of issues. These decisions include not only circuit court decisions but decisions by the Supreme Court (reviewing circuit court decisions issued pursuant to Rule 23(f)). This article discusses the five most frequently cited Supreme Court decisions, and the 12 most frequently cited federal court of appeals cases. Not surprisingly, the most heavily cited court of appeals cases tend to be older cases (from the early 2000s). As the discussion shows, these decisions provide guidance to district courts on a wide variety of topics, including all of the requirements of class certification. The article also discusses a handful of additional, more recent cases that, while not as heavily cited, are nonetheless important to the development of class action jurisprudence. On balance Rule 23(f) has been a beneficial amendment for the bench and the bar by providing essential guidance on the contours of Rule 23.

Robert H. Klonoff, Federal Rule of Civil Procedure 23(f): Reflections After a Quarter Century (forthcoming 2024), available at SSRN