Deciding to Decide: Class Action Certification and Interlocutory Review by the United States Court of Appeals Under Rule 23(F)

Posted: 4 Apr 2001

See all articles by Michael Solimine

Michael Solimine

University of Cincinnati - College of Law

Christine Oliver Hines

Graydon, Head & Ritchey, LLP


As the twentieth century comes to a close, class actions are hot. Whether reading academic journals or leafing through the lay press, one cannot avoid seeing some reference to a threatened or actual filing of a proposed class action lawsuit. The United States Supreme Court has begun to pay increasing attention to the class action device, and Congress has recently enacted, or is considering, several pieces of legislation that would regulate class actions.

The class action is an increasingly popular and necessary tool in today's legal system, helping to address the claims of mass tort victims and to abrogate the injustices of civil rights violations. The class action, however, is not without its critics, and calls for changes in its structure abound.

At present, Rule 23 requires the trial court to certify, or approve of, the class before a case can proceed as a class action. The rule contains various provisions that instruct the court on which factors to consider in its determination. The court's decision, which is made as early as possible in the litigation, can control the parties' litigation strategy for the balance of the case, as a practical matter. As a result, the certification orders of the trial court often are targeted for appeal by the parties adversely affected by them. Waiting until the end of the litigation, however, before contesting the court's decision on class certification, is often not a viable option. Unhappy litigants may want to pursue an immediate interlocutory appeal of the class certification decision.

Until recently, parties seeking interlocutory relief have had few options. Due to the restraints of the final judgment rule, which permits appeal only at the end of the litigation, courts have not been very receptive to attempts to appeal interlocutory orders. Moreover, the exceptions to the final judgment rule that do exist have stringent requirements that restrict their application to a limited set of circumstances. Thus, it has been extremely difficult for litigants to gain an immediate appeal of a class certification order. In response to these constraints, the Advisory Committee on the Federal Rules of Civil Procedure promulgated an amendment to Rule 23 that would provide litigants an additional means by which to seek an interlocutory appeal.

This provision has the potential to open broad new avenues of interlocutory review of class certification decisions in the federal courts. To date, Rule 23(f) has received little scholarly attention. Indeed, the burgeoning literature on class actions has devoted relatively little discussion to the role of appellate courts in general and, in particular, to interlocutory review. This Article aims to fill in some of the gap by addressing the appellate courts' new power to grant a discretionary appeal of class certification decisions. Under the new rule, appellate judges now must decide how to decide whether to hear such appeals. This Article focuses on how Rule 23(f) came to be, and how United States Courts of Appeals should exercise the discretion granted to them in the rule.

Suggested Citation

Solimine, Michael and Hines, Christine Oliver, Deciding to Decide: Class Action Certification and Interlocutory Review by the United States Court of Appeals Under Rule 23(F). William & Mary Law Review, Vol. 41, Pp. 1531-1600, 2000. Available at SSRN:

Michael Solimine (Contact Author)

University of Cincinnati - College of Law ( email )

P.O. Box 210040
Cincinnati, OH 45221-0040
United States
513-556-0102 (Phone)
513-556-1236 (Fax)

Christine Oliver Hines

Graydon, Head & Ritchey, LLP

1900 Fifth Third Center
511 Walnut Street
Cincinnati, OH 45202-3157
United States
513-621-6464 (Phone)
513-651-3836 (Fax)

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