How Do Rule 23(F) Petitions Fare In The Ninth Circuit?

• Published date: 01 July 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Civil Law
• Law Firm: Morrison & Foerster LLP
• Author: Mr Joseph Palmore and Michael F. Qian

The Ninth Circuit gets more requests to appeal class-certification decisions under Rule 23(f) than any other court. How do those requests fare? We take a look below, drawing from this invaluable nationwide study by Professor Bryan Lammon.

Background

Federal Rule of Civil Procedure 23(f) provides a way to immediately appeal orders granting or denying class certification. These interlocutory orders ordinarily would be appealable only after final judgment. But Rule 23(f) was added in 1998 because the class-certification decision is often a make-or-break moment. If the class is certified, the defendant feels overwhelming pressure to settle; if not, the plaintiff might drop the case. By allowing appeal before those pressures kick in, Rule 23(f) creates a chance to correct errors in these high-stakes decisions and to develop the law.

A Rule 23(f) appeal, however, is not automatic. A party must file a petition for permission to appeal, and the court of appeals has discretion over whether to grant it. To make that decision, the Ninth Circuit looks for: (1) a "death-knell situation" coupled with a "questionable" decision, (2) "an unsettled and fundamental issue" of class-action law important to the litigation and likely to evade end-of-case review, or (3) manifest error. Chamberlan v. Ford Motor Co., 402 F.3d 952, 959 (9th Cir. 2005).

In the Ninth Circuit, Rule 23(f) petitions go to the motions panel, which rotates monthly. Just two judges decide the petitions (unless they call in a third judge, for example if the first two disagree). The motions panel typically issues only a brief order without reasoning; if the petition is granted, the case then goes to a merits panel for full briefing, argument, and decision.

A look at the Ninth Circuit's Rule 23(f) docket

Despite their high stakes for the parties, Rule 23(f) petitions get little fanfare sitting on the motions panel's docket. We'd like to shed some light on that docket. Our data below come from Prof. Lammon's analysis of all Rule 23(f) petitions filed from 2013 through 2017, plus our own research on Ninth Circuit petitions filed from 2018 through 2021.

Volume: The Ninth Circuit gets a ton of Rule 23(f) petitions. The Ninth Circuit decides far more Rule 23(f) petitions than any other circuit'unsurprising given its size. In Prof. Lammon's 2013-2017 data, the Ninth Circuit got over 50 petitions a year, while the next closest courts (the Second and Seventh Circuits) each got fewer than 20 annually. And the Ninth...