In Re National Football League Players Concussion Injury Litigation ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 14-8103
________________
IN RE: NATIONAL FOOTBALL
LEAGUE PLAYERS
CONCUSSION INJURY LITIGATION
Objecting Class Members: Sean
Morey; Alan Faneca; Ben Hamilton;
Robert Royal; Roderick Cartwright; Jeff
Rohrer; Sean Considine,
Petitioners
________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-14-cv-00029)
District Judge: Honorable Anita B. Brody
________________
Argued September 10, 2014
Before: AMBRO, SMITH, and JORDAN,
Circuit Judges
(Opinion Filed: December 24, 2014)
Michele D. Hangley
William T. Hangley
Hangley, Aronchick, Seagl, Pudlin & Schiller
One Logan Square
18th & Cherry Streets, 27th Floor
Philadelphia, PA 19103
Steven F. Molo [ARGUED]
Thomas J. Wiegand, Esquire
Martin Totaro,
MoloLamken
540 Madison Avenue
New York, NY 10022
Eric R. Nitz
Martin Totaro
MoloLamken
600 New Hampshire Avenue, N.W.
The Watergate
Washington, DC 20037
Linda S. Mullenix
2305 Barton Creek Boulevard, Unit 2
Austin, TX 78735
Counsel for Petitioners
Bruce A. Birenboim [ARGUED]
Brad S. Karp
Theodore V. Wells, Jr., Esquire
2
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019
Beth A. Wilkinson
Paul, Weiss, Rifkind, Wharton & Garrison
2001 K Street, N.W., Suite 600
Washington, DC 20006
Dana B. Klinges
Duane Morris
30 South 17th Street, United Plaza
Philadelphia, PA 19103
David R. Buchanan, Esquire
Diogenes P. Kekatos, Esquire
Christopher A. Seeger, Esquire
Seeger Weiss
77 Water Street, 26th Floor
New York, NY 10005
Samuel Issacharoff [ARGUED]
New York University Law School, Room 411J
40 Washington Square South
New York, NY 10012
David D. Langfitt
Gene Locks
Locks Law Firm
601 Walnut Street
The Curtis Center, Suite 720 East
3
Philadelphia, PA 19106
Arnold Levin
Levin, Fishbein, Sedran & Berman
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Steven M. Marks
Mitrani, Rynor, Adamsky & Toland
1200 Weston Road, Penthouse
Weston, FL 33326
Dianne M. Nast
NastLaw
1101 Market Street, Suite 2801
Philadelphia, PA 19107
Stephen F. Rosenthal
Podhurst Orseck
25 West Flager Street, Suite 800
Miami, FL 33130
Sol H. Weiss
Anapol Schwartz
1710 Spruce Street
Philadelphia, PA 19103
Counsel for Respondents
Alan B. Morrison
George Washington University
2000 H Street, N.W.
4
Washington, DC 20052
Scott L. Nelson
Allison M. Zieve
Public Citizen Litigation Group
1600 20th Street, N.W.
Washington, DC 20009
Amicus Counsel for Petitioners
________________
OPINION OF THE COURT
________________
SMITH, Circuit Judge.
Thousands of retired professional football players filed
suit against the National Football League and various other
defendants alleging primarily that the defendants failed to
take reasonable actions to protect players from the risks
associated with concussive and sub-concussive head injuries.
The cases were consolidated before the U.S. District Court for
the Eastern District of Pennsylvania. On July 7, 2014, the
District Court issued an order that “preliminarily approved” a
proposed class-action settlement agreement and
“conditionally certified for settlement purposes only” the
settlement class and subclasses. Petitioners, seven retired
professional football players who object to the proposed
settlement agreement and class certification, filed a Federal
Rule of Civil Procedure 23(f) petition for permission to
appeal the District Court’s July 7, 2014 order.
5
At issue in this request for interlocutory review is the
nature of this Court’s jurisdiction under Rule 23(f). Because
the District Court’s order was not an “order granting or
denying class-action certification” under the plain text of the
rule, we have dismissed the petition.1
I.
Plaintiffs are retired professional football players who
played in a member club of the National Football League
(“NFL”) and are not seeking active employment as players
with any member club. Beginning in July 2011, retired
professional football players began filing lawsuits alleging
that Defendants NFL and NFL Properties, LLC (collectively
“NFL Defendants”) failed to take reasonable actions to
protect players from the chronic risks posed by concussive
and sub-concussive head injuries.2 In January 2012, after
more than 5,000 retired professional football players brought
1
On September 11, 2014, we entered the following Order:
“The foregoing Petition of Objecting Class Members pursuant
to Federal Rule of Civil Procedure 23(f) for Leave to Appeal
from the District Court’s Order granting Settlement Class
Certification is denied. The Court will issue an Opinion in
this matter at a later time.” This Opinion provides the
rationale for our Order.
2
Various plaintiffs also brought suit against a helmet
manufacturer, Riddell, Inc., and several of its affiliated
entities (collectively “Riddell Defendants”). The Riddell
Defendants are not parties to the class-action settlement at
issue in this pending Rule 23(f) petition.
6
suit, the Judicial Panel on Multidistrict Litigation
consolidated and transferred all pending cases to the U.S.
District Court for the Eastern District of Pennsylvania for
inclusion in coordinated or consolidated pretrial proceedings.
Plaintiffs and the NFL Defendants (collectively “the
parties”) negotiated the terms of a settlement during a court-
ordered mediation in the summer of 2013.3 Plaintiffs filed
their class-action complaint on January 6, 2014 and sought an
order: (1) granting preliminary approval of the proposed
class-action settlement agreement; (2) conditionally certifying
a settlement class and subclasses; (3) appointing co-lead
counsel, class counsel, and subclass counsel; (4) approving
the dissemination of class notice; (5) scheduling a fairness
hearing; and (6) staying claims as to the NFL Defendants and
enjoining proposed settlement class members from pursuing
related lawsuits. In re Nat’l Football League Players’
Concussion Injury Litig., No. 2:12-md-02323-AB, Dkt. 5634
(E.D. Pa. Jan. 6, 2014).
On January 14, 2014, the District Court denied the
parties’ motion without prejudice. The District Court’s initial
denial was based on its primary concern that “not all Retired
NFL Football Players who ultimately receive a Qualifying
Diagnosis or their related claimants will be paid.” In re Nat’l
Football League Players’ Concussion Injury Litig., 961 F.
3
On July 8, 2013, the District Court directed the parties to
mediation before a retired district judge. On August 29,
2013, the parties signed a term sheet incorporating the
principal terms of a settlement.
7
Supp. 2d 708, 715 (E.D. Pa. 2014). The District Court
reasoned that the proposed $670,000,000 monetary fund may
be inadequate to cover the likely amount of the awards to the
class members. Id. at 715–16.
The parties renegotiated the proposed class-action
settlement and, on June 25, 2014, filed another motion for
preliminary approval and conditional certification of a revised
settlement agreement. The revised settlement agreement
“guaranteed payment of all valid claims” but put in place
“additional measures designed to prevent fraudulent claims.”
In re Nat’l Football League Players’ Concussion Injury
Litig., No. 2:12-md-02323-AB, Dkt. 6073-5 at 23–24 (E.D.
Pa. June 25, 2014).4 The parties also proposed that a
“nationwide Settlement Class” be “conditionally certified, for
4
The revised settlement created several avenues for
compensation: (a) a Baseline Assessment Program Fund of up
to $75,000,000 to offer retired NFL Football Players one
baseline neuropsychological and neurological examination to
identify any neurological defects, id. at 18–21; (b) an
uncapped Monetary Awards Fund to provide payment of cash
Monetary Awards and Derivative Claimant Awards to Retired
NFL Football Players diagnosed with a Qualifying Diagnosis
and their Representative and Derivative Claimants, id. at 21–
27; and (c) a $10,000,000 Education Fund to support
education about cognitive impairment, safety, and injury
prevention with regard to football players, id. at 27.
8
settlement purposes only” and include three types of
claimants and two subclasses.5 Id. Dkt. 6073-1 at 4, 5.
5
The three types of claimants include:
(1) “All living NFL Football Players who, prior
to the date of the Preliminary Approval and
Class Certification Order, retired, formally or
informally, from playing professional football
with the NFL or any Member Club, including
American Football League, World League of
American Football, NFL Europe League and
NFL Europa League players, or were formerly
on any roster, including preseason, regular
season, or postseason of any such Member Club
or league and who no longer are under contract
to a Member Club and are not seeking active
employment as players with any Member Club,
whether signed to a roster or signed to any
practice squad, developmental squad, or taxi
squad of a Member Club (‘Retired NFL
Football Players’);”
(2) “Authorized representatives, ordered by a
court or other official of competent jurisdiction
under applicable state law, of deceased or
legally incapacitated or incompetent Retired
NFL Football Players (‘Representative
Claimants’); and”
(3) “Spouses, parents, children who are
dependents or any other person who properly
9
under applicable state law assert the right to sue
independently or derivatively by reason of their
relationship with a Retired NFL Football Player
or deceased Retired NFL Football Player
(‘Derivative Claimants’).”
Id. at 4.
The two subclasses of the Settlement Class consist of
the following:
(1) “Retired NFL Football Players who were
not diagnosed with a Qualifying Diagnosis prior
to the date of the Preliminary Approval and
Class Certification Order and their
Representative Claimants and Derivative
Claimants; and,”
(2) “Retired NFL Football Players who were
diagnosed with a Qualifying Diagnosis prior to
the date of the Preliminary Approval and Class
Certification Order and their Representative
Claimants and Derivative Claimants, and the
Representative Claimants of deceased Retired
NFL Football Players who were diagnosed with
a Qualifying Diagnosis prior to death or who
died prior to the date of the Preliminary
Approval and Class Certification Order and
who received a post-mortem diagnosis of
Chronic Traumatic Encephalopathy.”
Id. at 5 (footnote omitted).
10
On July 2, 2014, seven retired NFL football players
(collectively “Objectors”) filed an objection to the June 25,
2014 revised class-action settlement agreement. Objectors
argued that the revised settlement agreement could not be
certified under Rule 23 because it bargained away, without
adequate representation, the rights of three distinct groups of
former players: (1) those suffering from, or displaying
symptoms consistent with, chronic traumatic encephalopathy
who did not die before preliminary approval; (2) those who
have suffered or are at risk of suffering a stroke or non-
football traumatic brain injury; and (3) those who played in
NFL Europe. Additional defects raised by Objectors include
that: the proposed notice was false and misleading; the claims
process was so onerous and confusing that it raised due
process and fairness concerns; the settlement agreement was
not the product of arm’s length negotiation; and that class
counsel conducted no discovery by which to evaluate the
strength of the claims and defenses.
On July 7, 2014, the District Court issued an order and
memorandum in which the “proposed Class Action
Settlement Agreement [was] preliminarily approved” and
“[t]he Settlement Class and Subclasses [were] conditionally
certified for settlement purposes only.” In re Nat’l Football
League Players’ Concussion Injury Litig., 301 F.R.D. 191,
197, 204 (E.D. Pa. 2014). In the District Court’s supporting
Because we do not address the merits of
Objectors’ arguments, we decline to discuss whether
the three types of claimants and subclasses satisfy the
applicable Rule 23(a) and (b) requirements.
11
memorandum, it explained that Rule 23(e)(2) requires court
approval of the settlement of a class action. A “Preliminary
Approval of the Proposed Settlement” was set forth by the
District Court as:
“typically proceed[ing] in two stages. At the first
stage, the parties submit the proposed settlement
to the court, which must make a preliminary
fairness evaluation. If the proposed settlement is
preliminarily acceptable, the court then directs
that notice be provided to all class members who
would be bound by the proposed settlement in
order to afford them an opportunity to be heard
on, object to, and opt out of the settlement. See
Fed. R. Civ. P. 23(c)(3), (e)(1), (e)(5). At the
second stage, after class members are notified of
the settlement, the court holds a formal fairness
hearing where class members may object to the
settlement. See Fed. R. Civ. P. 23(e)(1)(B). If
the court concludes that the settlement is ‘fair,
reasonable and adequate,’ the settlement is given
final approval. Fed. R. Civ. P. 23(e)(2). At this
time, Plaintiffs request that I grant preliminary
approval.”
Id. at 197. After conducting a preliminary review of the
settlement agreement, the District Court proceeded to analyze
the parties’ request for “conditional certification” of the
proposed class.
12
The District Court premised its analysis of
“Conditional Certification of the Settlement Class and
Subclasses” with the following standard of review:
“A court must determine whether the proposed
Settlement Class and Subclasses satisfy the
requirements of Federal Rule of Civil Procedure
23. See Sullivan v. DB Invs., Inc., 667 F.3d 273,
296 (3d Cir. 2011) (en banc). At the preliminary
approval stage, a court may conditionally certify
the class for purposes of providing notice,
leaving the final certification decision for the
subsequent fairness hearing. See Manual for
Complex Litigation (Fourth) § 21.632 (2004).”
Id. at 199–200.
For the purposes of effecting the proposed Rule 23(e)
settlement process, the District Court appointed co-lead class
counsel, class counsel, and subclass counsel, approved the
dissemination of class notice, and scheduled a fairness
hearing for November 19, 2014. Id. at 204–07. The District
Court also stayed any matters as they related to the NFL
Defendants and enjoined proposed class members from
pursuing any related lawsuits. Id. at 203–204, 207. On July
21, 2014, Objectors filed this petition for leave to appeal from
the District Court’s July 7, 2014 order.
II.
The District Court had jurisdiction under 28 U.S.C. §§
1331 and 1332 and is administering the coordinated or
13
consolidated pretrial proceedings under 28 U.S.C. § 1407. A
“party asserting jurisdiction bears the burden of showing that
at all stages of the litigation the case is properly before the
federal court.” Samuel-Bassett v. KIA Motors Am., Inc., 357
F.3d 392, 396 (3d Cir. 2004). Whether we have jurisdiction
under 28 U.S.C. § 1292(e) and Federal Rule of Civil
Procedure 23(f) to review “an order granting or denying
class-action certification” is the issue before us. A “‘federal
court always has jurisdiction to determine its own
jurisdiction.’” White-Squire v. U.S. Postal Serv., 592 F.3d
453, 456 (3d Cir. 2010) (quoting United States v. Ruiz, 536
U.S. 622, 628 (2002)). “We generally exercise plenary
review over jurisdictional questions.” Mala v. Crown Bay
Marina, Inc., 704 F.3d 239, 247 (3d Cir. 2013). “If we
determine that we do not have jurisdiction over this appeal,
our only function remaining will be that of announcing the
fact and dismissing the case.” In re Fosamax (Alendronate
Sodium) Products Liab. Litig. (No. II), 751 F.3d 150, 155 (3d
Cir. 2014) (alternations, citations, and internal quotation
marks omitted).
III.
Objectors raise various substantive challenges to the
merits of the District Court’s July 7, 2014 order. Before we
can consider the merits of any appeal, it is first necessary to
determine whether we have appellate jurisdiction. A federal
appellate court generally has jurisdiction over appeals only
from the entry of a final judgment by a district court, subject
to certain limited exceptions. See 28 U.S.C. § 1291;
Cunningham v. Hamilton Cnty., 527 U.S. 198, 200 (1999).
Such is the limited nature of federal jurisdiction that “we have
14
an independent duty to satisfy ourselves of our appellate
jurisdiction regardless of the parties’ positions.” In re
Fosamax (Alendronate Sodium) Prods. Liab. Litig. (No. II),
751 F.3d 150, 155 (3d Cir. 2014) (quoting Papotto v.
Hartford Life & Accident Ins. Co., 731 F.3d 265, 269 (3d Cir.
2013)) (internal quotation marks omitted). As aptly explained
by Chief Justice Warren:
“It is axiomatic, as a matter of history as well as
doctrine, that the existence of appellate
jurisdiction in a specific federal court over a
given type of case is dependent upon authority
expressly conferred by statute. And since the
jurisdictional statutes prevailing at any given
time are so much a product of the whole history
of both growth and limitation of federal-court
jurisdiction since the First Judiciary Act, 1 Stat.
73, they have always been interpreted in the light
of that history and of the axiom that clear
statutory mandate must exist to found
jurisdiction.”
Carroll v. United States, 354 U.S. 394, 399 (1957).
There are various exceptions to the general principle
that appellate jurisdiction is limited to final orders. See, e.g.,
28 U.S.C. § 1292(a) (granting appellate jurisdiction over
certain types of interlocutory orders); 28 U.S.C. § 1292(b)
(allowing a district judge to certify an order involving a
“controlling question of law as to which there is substantial
ground for difference of opinion” and where “immediate
appeal from the order may materially advance the ultimate
15
termination of the litigation”); Fed. R. Civ. P. 54(b)
(permitting a district court to certify “a final judgment as to
one or more, but fewer than all, claims or parties” for
appellate review); Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541, 546 (1949) (permitting immediate appeal of an
otherwise non-final collateral order under certain
circumstances).
The very narrowness of appellate jurisdiction is
designed to discourage piecemeal litigation. Camesi v. Univ.
of Pittsburgh Med. Ctr., 729 F.3d 239, 244 (3d Cir. 2013).
Limited appellate jurisdiction prevents parties from
employing tactics to “obtain review of discovery orders,
evidentiary rulings, or any of the myriad decisions a district
court makes before it reaches the merits of an action.” Id. at
245–46.
A.
Rule 23(f) provides in relevant part: “A court of
appeals may permit an appeal from an order granting or
denying class-action certification under this rule if a petition
for permission to appeal is filed with the circuit clerk within
14 days after the order is entered.” Fed. R. Civ. P. 23(f).
Before the enactment of Rule 23(f), it was well settled that a
“class certification decision, per se, is not an appealable final
order under 28 U.S.C. § 1291.” Sullivan v. Pacific Indem.
Co., 566 F.2d 444, 445 (3d Cir. 1977). Appellate courts were
generally reluctant to grant interlocutory review of class
certification orders. Courts that did grant such review used
various devices, such as a writ of mandamus under the All
Writs Act, 28 U.S.C. § 1651(a), see In re Rhone-Poulenc
16
Rorer, Inc., 51 F.3d 1293 (7th Cir. 1995), or exercised
jurisdiction after a district court certified the non-final,
interlocutory order for appellate review pursuant to 28 U.S.C.
§ 1292(b), see Castano v. American Tobacco Co., 84 F.3d
734 (5th Cir. 1996).
Yet courts were confronted by the reality that an
extraordinary writ is just that, extraordinary. See In re Sch.
Asbestos Litig., 977 F.2d 764, 772 (3d Cir. 1992), as amended
(Oct. 8, 1992) (“As the adjective ‘extraordinary’ implies
however, courts of appeals must be chary in exercising that
power: ‘[M]andamus must not be used as a mere substitute
for appeal.’ (quoting Roche v. Evaporated Milk Ass’n, 319
U.S. 21, 26 (1943))). Accordingly, even courts granting writs
of mandamus did so “with an uneasiness that their actions
stretched the writ’s traditionally restrictive parameters.”
Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259
F.3d 154, 163 (3d Cir. 2001), as amended (Oct. 16, 2001).
And as to § 1292(b) interlocutory appeals, these were rare
because a district court must first certify an order for
appellate review under limited parameters. 28 U.S.C.
§ 1292(b). Specifically, a district court would need to
conclude that the “order involves a controlling question of
law as to which there is substantial ground for difference of
opinion” and “that an immediate appeal from the order may
materially advance the ultimate termination of the litigation.”
Id.It was not until the Seventh Circuit’s decision in In re
Rhone-Poulenc Rorer, Inc. to exercise mandamus that the
Advisory Committee on Civil Rules began to seriously
explore reforms to appellate review and federal jurisdiction
17
over class-action certification decisions. See Robert H.
Klonoff, The Decline of Class Actions, 90 Wash. U. L. Rev.
729, 739 (2013). In promulgating Rule 23(f), the Advisory
Committee exercised its authority under 28 U.S.C. § 1292(e)
and sought to “[e]xpan[d] . . . opportunities to appeal.” Fed.
R. Civ. P. 23(f) advisory committee’s notes (1998
amendments).6 The decision whether to allow appeal from an
6
When considering the meaning of the federal rules, “it is the
Rule itself, not the Advisory Committee’s description of it
that governs.” Wal–Mart Stores, Inc. v. Dukes, 131 S. Ct.
2541, 2559 (2011). However, the Advisory Committee’s
notes on the federal rules are “of weight” in interpreting the
meaning of the rules. Torres v. Oakland Scavenger Co., 487
U.S. 312, 316 (1988) (explaining that the Advisory
Committee’s notes on Rule 3 “although not determinative,”
were “of weight” in the Court’s “construction of the rule”);
Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444
(1946) (“The fact that this Court promulgated the rules as
formulated and recommended by the Advisory Committee
does not foreclose consideration of their validity, meaning or
consistency. But in ascertaining their meaning the
construction given to them by the Committee is of weight.”).
In Newton v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 259 F.3d 154, 163 (3d Cir. 2001), Judge Scirica
grounded his analysis of when we may grant a Rule 23(f)
appeal on the Advisory Committee’s notes. Judge Scirica
stated: “The Committee Note is always a good starting point.”
Id. Similarly, Justice Scalia cited extensively to the Advisory
Committee’s notes in Wal–Mart Stores, Inc. v. Dukes, 131 S.
Ct. at 2558–59, when discussing whether a Rule 23(b)(2)
18
order granting or denying certification, however, was left to
the “sole discretion of the court of appeals.” Id.Subdivision (f) was added to Rule 23 in 1998 to
provide a form of interlocutory review over class-action
certification decisions. The reason for adding subdivision (f)
was that the class-action “certification decision is often
decisive as a practical matter.” Id. The Judicial Conference’s
Committee on Rules of Practice and Procedure (“Standing
Committee”) explained:
“Denial of certification can toll the death knell in
actions that seek to vindicate large numbers of
individual claims. Alternatively, certification can
exert enormous pressure to settle. Because of the
difficulties and uncertainties that attend some
certification decisions—those that do not fall
within the boundaries of well-established
practice—the need for immediate appellate
review may be greater than the need for appellate
review of many routine civil judgments.”
1997 Report at 18–19.7 The Advisory Committee’s notes to
the 1998 Amendments to Rule 23(f) provide:
class permitted individualized claims for damages. We
consider the Advisory Committee’s summary of the
provisions of Rule 23(f) illuminating for purposes of our
analysis, giving it such “weight” as is appropriate.
7
See Report of the Judicial Conference Committee on Rules
of Practice and Procedure to the Chief Justice of the United
19
“Appeal from an order granting or denying class
certification is permitted in the sole discretion of
the court of appeals. No other type of Rule 23
order is covered by this provision. The court of
appeals is given unfettered discretion whether to
permit the appeal, akin to the discretion exercised
by the Supreme Court in acting on a petition for
certiorari.”
Fed. R. Civ. P. 23(f) advisory committee’s notes (1998
amendments) (emphasis added).8
States and Members of the Judicial Conference of the United
States 18 (September 1997) (hereinafter “1997 Report”),
http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Re
ports/ST9-1997.pdf (last visited Nov. 18, 2014).
The Rules Enabling Act of 1934, 28 U.S.C. § 2071–
2077, authorizes the Supreme Court to promulgate rules of
procedure. The Supreme Court has delegated the oversight of
the rulemaking process to the Judicial Conference,
specifically the Standing Committee. The Standing
Committee has five advisory rules committees, including the
Advisory Committee on Civil Rules. See How the
Rulemaking Process Works,
http://www.uscourts.gov/RulesAndPolicies/rules/about-
rulemaking/how-rulemaking-process-works.aspx (last visited
Nov. 18, 2014).
8
As a comparison to the writ of certiorari, 28 U.S.C. § 1254,
the Supreme Court separates the question of what the court
20
In light of this drafting history, parsing the text of Rule
23(f) is fundamental to understanding the nature of the
interlocutory review contemplated by this provision. To
begin, Rule 23(f) is premised on the notion that a court of
appeals’ grant of a petition for interlocutory review is
discretionary. The rule states that a “court of appeals may
permit an appeal.” Fed. R. Civ. P. 23(f) (emphasis added).
References in the Advisory Committee’s notes that appeals
are in the “sole discretion of the court of appeals” and that the
court of appeals is given “unfettered discretion whether to
permit the appeal” support this reading. Fed. R. Civ. P. 23(f)
advisory committee’s notes (1998 amendments).
In Newton v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., we recognized the discretionary nature of our review:
Rule 23(f) “provide[s] for interlocutory appeal by permission
of the court of appeals” and “permits the appellate courts to
develop a coherent body of jurisprudence in this area.” 259
F.3d at 162. There are five flexible principles from the
Advisory Committee’s note that may guide our exercise of
discretionary jurisdiction.9 Id. at 164–65. The Advisory
“may review” from what the Court “actually will choose to
review,” which is a power that is “sparingly exercis[ed].” See
Camreta v. Greene, 131 S. Ct. 2020, 2033 (2011) (emphasis
added) (quoting Forsyth v. Hammond, 166 U.S. 506, 514
(1897)) (exempting “one special category of cases from [the
Court’s] usual rule against considering prevailing parties’
petitions”).
9
Those principles are: “(1) when denial of certification
effectively terminates the litigation because the value of each
21
Committee’s taxonomy is not exclusive, however, and is not
intended to “circumscribe our discretion; there may also be
other valid reasons for the exercise of interlocutory review.”
Id. at 165. Accordingly, Newton makes clear that the
beginning text of Rule 23(f), which provides that “[a] court of
appeals may in its discretion permit an appeal,” Fed. R. Civ.
P. 23(f) (emphasis added), was itself a delegation of authority
to the courts of appeals to determine when to grant a Rule
23(f) motion and to develop a jurisprudence to guide such
determinations.
What Newton and its progeny do not discuss, and what
this Court has yet to address, is the type of order this Court
may review. The plain text of Rule 23(f) provides the courts
of appeals with discretion to permit an appeal from a specific
type of order—that is, “from an order of a district court
granting or denying class-action certification.” Fed. R. Civ.
P. 23(f) (emphasis added). The Advisory Committee’s notes
to the 1998 Amendments to Rule 23(f) explain: “No other
plaintiff’s claim is outweighed by the costs of stand-alone
litigation; (2) when class certification places inordinate or
hydraulic pressure on defendants to settle, avoiding the risk,
however small, of potentially ruinous liability; . . . (3) when
an appeal implicates novel or unsettled questions of law; in
this situation, early resolution through interlocutory appeal
may facilitate the orderly development of the law,” id. at 164;
(4) when the district court’s “ruling on class certification is
likely erroneous,” id. (citation and internal quotation marks
omitted); or (5) when review would “facilitate development
of the law on class certification,” id. at 165.
22
type of Rule 23 order is covered by this provision.” Fed. R.
Civ. P. 23(f) advisory committee’s notes (1998 amendments).
There is only one subdivision within Rule 23 governing class-
action certification orders: Rule 23(c).10 In this way, the text
of Rule 23(f) inextricably ties the type of order appealable to
Rule 23(c).11
10
Rule 23(c)(1) governs a class-action certification order and
has three relevant clauses:
“(A) Time to Issue. At an early practicable time after a
person sues or is sued as a class representative, the court
must determine by order whether to certify the action as a
class action.
(B) Defining the Class. Appointing Class Counsel. An
order that certifies a class action must define the class and
the class claims, issues, or defenses, and must appoint
class counsel under Rule 23(g).
(C) Altering or Amending the Order. An order that grants
or denies class certification may be altered or amended
before final judgment.”
Fed. R. Civ. P. 23(c).
11
As explained in detail below, it is entirely possible for a
district court to be presented with an uncertified settlement-
only class that would present both class-action certification
issues under Rule 23(a), (b), and (c) and settlement approval
issues under Rule 23(e). Rule 23(e), which governs class-
action settlements, voluntary dismissals, or compromises, see
infra note 15, “was designed to function as an additional
23
When Rule 23(f) was enacted in 1998, Rule 23(c)
permitted a district court to “conditionally certify” a proposed
class. In 2003, concerned that district courts were
conditionally certifying putative class actions without
undertaking a thorough analysis of the Rule 23(a) and (b)
certification requirements, the Supreme Court and Congress
deleted the portion of Rule 23(c)(1) that provided that class
certification “may be conditional.” Fed. R. Civ. P. 23(c)
advisory committee’s notes (2003 amendments).12 The
Advisory Committee’s notes directed that “[a] court that is
not satisfied that the requirements of Rule 23 have been met
should refuse certification until they have been met.” Id.
Rule 23(c)(1) was also altered to “require that the
determination whether to certify a class” be made “at an early
practicable time,” rather than “as soon as practicable.” Id.
(internal quotation marks omitted). This change was made
because district courts may need time “to gather information
necessary to make the certification decision.” Id. The other
notable change within Rule 23(c)(1) was with relation to the
requirement, not a superseding direction, for the ‘class action’
to which Rule 23(e) refers.” Amchem, 521 U.S. at 621
(emphasis added).
12
The process to amend or enact a new federal rule of civil
procedure is extensive and subject to multiple levels of
review by: the Advisory Committee on Civil Rules, the
Judicial Conference’s Committee on Rules of Practice and
Procedure, public commenters, the Judicial Conference of the
United States, the Supreme Court, and Congress. Amchem,
521 U.S. at 620 (citing 28 U.S.C. §§ 2073, 2074).
24
“provision that permits alteration or amendment of an order
granting or denying class certification.” Id. The 2003
Amendments changed the “cut-off point” to alter a class-
action certification order “at final judgment rather than ‘the
decision on the merits’” in order to avoid “the possible
ambiguity in referring to ‘the decision on the merits.’” Id.This ambiguity stemmed from the reality that after
determining liability and in analyzing a remedy, there may be
“the need to amend the class definition or subdivide the
class.” Id.Under the present structure of Rule 23(c), we made
clear in Hohider v. United Parcel Service, Inc. that a district
court was no longer permitted to issue a “conditional
certification.” 574 F.3d 169, 202 (3d Cir. 2009).13 In
Hohider, we analyzed a litigation class seeking certification
over “pattern-or-practice claims of discrimination under Title
VII of the Civil Rights Act of 1964.” Id. at 173–74. After
13
We exercised jurisdiction in Hohider pursuant to 28 U.S.C.
§ 1292(e) and Rule 23(f). 574 F.3d at 175. In that case, the
district court issued an order granting in part and denying in
part the plaintiff’s motion for certification. Hohider v. United
Parcel Serv., Inc., 243 F.R.D. 147, 245 (W.D. Pa. 2007) rev’d
and remanded, 574 F.3d 169 (3d Cir. 2009). Unlike here, the
order in Hohider actually certified a class (albeit not the
entire proposed class). Accordingly, that order was
unquestionably issued pursuant to Rule 23(c)(1). Id.;
Hohider, 574 F.3d at 174–75. Because of that, we proceeded
to review the class certification order for abuse of discretion.
Hohider, 574 F.3d at 175.
25
analyzing the merits-based claims that could be subject to
certification, the trial court “determined plaintiffs’ claims for
compensatory and punitive damages could not be certified for
classwide treatment under Rule 23(b)(2).” Id. at 175. The
trial court, however, “withheld judgment on plaintiffs’ back-
pay claims” reasoning that there could be “a protocol for
identifying those monetary damages.” Id. We rejected such
an approach. We held that the trial court’s “conditional
certification of plaintiffs’ request for back pay was improper”
because “[a] trial court must ‘make a definitive determination
that the requirements of Rule 23 have been met before
certifying a class.’” Id. at 202 (quoting In re Hydrogen
Peroxide Antitrust Litig., 552 F.3d 305, 320 (3d Cir. 2008)).
Our ruling was based on the “2003 amendments to Rule 23
[that] ‘eliminated the language that had appeared in
Rule 23(c)(1) providing that a class certification ‘may be
conditional.’” Id. (quoting In re Hydrogen Peroxide, 552
F.3d at 319).14
14
The Second Circuit has taken a different approach with
regard to a district court’s use of the “conditional
certification” terminology. In Denney v. Deutsche Bank AG,
the Court held that district courts were still permitted to issue
a conditional certification of a class for settlement purposes
only. 443 F.3d 253, 269–70 (2d Cir. 2006). The Denney
Court reasoned that the real purpose of amending Rule 23(c)
was not to eliminate “conditional certification” but, instead,
“to ensure that courts understood their obligations when
certifying a class.” Id. at 270. The Court concluded that in
light of this intent,
26
“conditional certification survives the 2003
amendment to Rule 23(c)(1). Before
certification is proper for any purpose—
settlement, litigation, or otherwise—a court
must ensure that the requirements of Rule 23(a)
and (b) have been met. These requirements
should not be watered down by virtue of the
fact that the settlement is fair or equitable. But
if the requirements of Rule 23(a) and (b) are
met, certification may be granted, conditionally
or unconditionally.”
Id. (citation omitted) (footnote omitted).
Our opinion in Hohider did not reference Denney. The
cases are factually distinguishable in that Hohider dealt with a
litigation class involving some classes that had been certified
and thus could be subject to interlocutory review under Rule
23(f). Although we were not presented in Hohider with the
same jurisdictional question we consider here, we see no
reason to question its logic as applied to a settlement class. In
our view, there is no support for conditional certification
where the Advisory Committee wrote that the “provision that
a class certification ‘may be conditional’ is deleted” and that
“[a] court that is not satisfied that the requirements of Rule 23
have been met should refuse certification until they have been
met.” The 2003 Amendments to Rule 23(c) indicate that a
district court must make a definitive certification
determination. This determination is not necessarily final,
given the availability for revisions to a class certification
order up to the time the district court issues a final judgment.
27
In short, Rule 23(f) provides the court of appeals broad
discretion in granting interlocutory review, but only as to one
type of Rule 23 order: a class-action certification order issued
pursuant to Rule 23(c)(1).
B.
The issue of class certification pursuant to Rule
23(c)(1) may also be relevant to the treatment of class-action
settlements under Rule 23(e), which provides the procedures
applicable to proposed settlements, voluntary dismissals, or
compromises.15 The approval of a class-action settlement is
See Fed R. Civ. P. 23(c)(1)(C). Yet, a district court calling its
certification order “conditional” or “tentative” simply cannot
be making a firm determination that the class satisfies the
requirements of Rule 23(a) and (b). Given this interplay, we
cannot agree with the Second Circuit’s interpretation of the
2003 Amendments to Rule 23(c) and reject the premise that
“conditional certification” is an order subject to review under
Rule 23(f).
15
Rule 23(e) of the Federal Rules of Civil Procedure provides
in full:
“Settlement, Voluntary Dismissal, or
Compromise. The claims, issues, or defenses of
a certified class may be settled, voluntarily
dismissed, or compromised only with the court’s
approval. The following procedures apply to a
proposed settlement, voluntary dismissal, or
compromise:
28
governed by Rule 23(e)(2), which specifically requires that a
(1) The court must direct notice in a
reasonable manner to all class
members who would be bound by
the proposal.
(2) If the proposal would bind class
members, the court may approve it
only after a hearing and on finding
that it is fair, reasonable, and
adequate.
(3) The parties seeking approval must
file a statement identifying any
agreement made in connection with
the proposal.
(4) If the class action was previously
certified under Rule 23(b)(3), the
court may refuse to approve a
settlement unless it affords a new
opportunity to request exclusion to
individual class members who had
an earlier opportunity to request
exclusion but did not do so.
(5) Any class member may object to
the proposal if it requires court
approval under this subdivision (e);
the objection may be withdrawn
only with the court’s approval.”
Fed. R. Civ. P. 23(e).
29
district court approve a settlement agreement only “after a
hearing and on finding that it is fair, reasonable, and
adequate.” Fed. R. Civ. P. 23(e)(2). Thus, when a district
court is presented with a class settlement agreement, the court
must first determine that “the requirements for class
certification under Rule 23(a) and (b) are met, and must
separately ‘determine that the settlement is fair to the class
under [Rule] 23(e).’” Sullivan, 667 F.3d at 319 (quoting In re
Ins. Brokerage Antitrust Litig., 579 F.3d 241, 257 (3d Cir.
2009)). The intent of these procedures is to provide
transparency for class members and authority to the district
court to act as a fiduciary for putative class members by
“guarding the claims and rights of absent class members.”
See Ehrheart v. Verizon Wireless, 609 F.3d 590, 593 (3d Cir.
2010).
What renders these seemingly straight-forward
directives less than clear is the procedural posture presented
when a class-action settlement is reached before the district
court has issued a certification order under Rule 23(c). The
Advisory Committee’s notes to the 2003 Amendments do
contemplate that “the decisions on certification and
settlement” may “proceed simultaneously.” Fed. R. Civ. P.
23(e) advisory committee’s notes (2003 amendments).
Further, even where class certification has already occurred, a
district court’s review of a settlement “may provide an
occasion to review the cogency of the initial class definition.”
Id.The exact process a district court should follow when
presented with a “settlement class” is not prescribed by Rule
23(e). A settlement class “offers defendants the opportunity
30
to engage in settlement negotiations without conceding any of
the arguments they may have against class certification.
Often . . . the parties never intend to litigate the claims; rather,
from the time plaintiffs file the complaint, the goal on both
sides is to reach a nationwide settlement.” In re Cmty. Bank
of N. Va., 418 F.3d 277, 299 (3d Cir. 2005). Further, a
district court’s management of a settlement class is different
from a litigation class in that the court is acting as fiduciary
“to protect unnamed members of the class.” Ehrheart, 609
F.3d at 593; Sullivan, 667 F.3d at 296. These differences
aside, “the ‘settlement only’ class has become a stock
device.” Amchem, 521 U.S. at 618.
Section 21.632 of the Federal Judicial Center’s
Manual for Complex Litigation (Fourth) explains that the
“[r]eview of a proposed class action settlement generally
involves two hearings.”16 Manual for Complex Litigation
16
Although the Manual for Complex Litigation “offer[s]
helpful suggestions to judges,” Atkins v. Virginia, 536 U.S.
304, 327 (2001), it “does not have the force of law and can
not undermine Supreme Court precedent or the decisions of
this court.” In re Pharmacy Benefit Managers Antitrust
Litig., 582 F.3d 432, 442 (3d Cir. 2009); see also Manual for
Complex Litigation, Introduction (explaining that the Manual
“should not be cited as[] authoritative legal or administrative
policy,” the Federal Judicial Center has “no authority to
prescribe practices for federal judges,” and “[t]he Manual’s
recommendations and suggestions are merely that”).
We address the recommendation of the Manual for
Complex Litigation principally because it was the primary
31
authority relied upon by the District Court in issuing its
July 7, 2014 order. For that reason, the Manual is instructive
only to the extent it informs the kind of order the District
Court purported to issue. But our analysis regarding the
meaning of the Rules themselves is in no way dependent on
the Manual for Complex Litigation. See supra Section A.
Moreover, and in accordance with widespread
experience, reference by appellate courts to the Manual for
Complex Litigation when it is explicitly relied upon by a
district court is commonplace. For example, the Supreme
Court in Gulf Oil Co. v. Bernard ruled that the district court
had abused its discretion in issuing an order imposing a ban
on all communications concerning a class action between
parties or their counsel and any actual or potential class
member who was not a formal party. 452 U.S. 89, 91 (1981).
The district court’s order was based largely on a “Sample
Pretrial Order” contained in the Manual for Complex
Litigation. Id. at 93–94, 93 n.4, 94 n.5. Analyzing the
applicable text of Rule 23(d) governing “Orders in Conduct
of Class Actions,” the Court held that “an order limiting
communications between parties and potential class members
should be based on a clear record and specific findings that
reflect a weighing of the need for the limitation and the
potential interference with the rights of the parties.” Id. at
101. The Supreme Court explicitly rejected the district
court’s adoption “in toto [of] the order suggested by the
Manual for Complex Litigation—on the apparent assumption
that no particularized weighing of the circumstances of the
case was necessary.” Id. at 102–03.
32
This Court has also, and repeatedly, engaged in close
analysis of the Manual for Complex Litigation when it was
the underpinning for a decision this Court was reviewing.
See, e.g., In re Pharmacy Benefit Managers Antitrust Litig.,
582 F.3d 432, 441 (3d Cir. 2009) (vacating the order of a
district court that cited portions of the Manual for Complex
Litigation, analyzing the portions of the order, and concluding
that the Manual references “clearly do[] not have the force of
law and can not undermine [binding authority]”); United
States v. Wecht, 484 F.3d 194, 231 n.41 (3d Cir. 2007), as
amended (July 2, 2007) (criticizing a district judge for
expressly relying on the Manual for Complex Litigation in a
criminal trial and noting that it applies, by its own terms, to
civil litigation). The Manual for Complex Litigation has also
been cited where it provided useful guidance in interpreting
an issue pertaining to class actions. For example, in Marcus
v. BMW of North America, LLC, we referenced general
principles and ideas from the Manual for Complex Litigation
for the proposition that the “ascertainability” standard
applicable to a Rule 23(b)(3) class promotes the “best notice
practicable” under Rule 23(c)(2). 687 F.3d 583, 593 (3d Cir.
2012) (citing Manual for Complex Litigation, § 21.222 (4th
ed. 2004)). And in In re Orthopedic Bone Screw Prods. Liab.
Litig., 246 F.3d 315 (3d Cir. 2001), we cited the Manual for
Complex Litigation as authority regarding the equitable
powers of the court in settlement administration.
In short, our analysis of the District Court’s July 7,
2014 order, the order’s explicit reference to the Manual for
Complex Litigation, and our explanation that the Manual does
not adequately address how an order issued pursuant to Rule
33
§ 21.632 (4th ed. 2004) (hereinafter “Manual for Complex
Litigation”). In the first hearing, or “preliminary fairness
review,” “counsel submit the proposed terms of settlement
and the judge makes a preliminary fairness evaluation.” Id.
In the context of a “preliminary fairness review” of an
uncertified settlement class, § 21.632 provides that “the
certification hearing and preliminary fairness evaluation can
usually be combined.” Id. When combining a certification
and preliminary fairness hearing:
“The judge should make a preliminary
determination that the proposed class satisfies the
criteria set out in Rule 23(a) and at least one of
the subsections of Rule 23(b). See section 21.22.
If there is a need for subclasses, the judge must
define them and appoint counsel to represent
them. The judge must make a preliminary
determination on the fairness, reasonableness,
and adequacy of the settlement terms and must
direct the preparation of notice of the
certification, proposed settlement, and date of the
final fairness hearing.”
Id. (emphasis added).
This case management technique for uncertified
settlement classes makes sense, particularly from a notice
perspective. Rule 23(e)(1) requires the district court to
23(e) relates to Rule 23(c) is analytically consistent with
Bernard and entirely unremarkable.
34
“direct notice in a reasonable manner to all class members
who would be bound by the proposal.” Fed. R. Civ. P.
23(e)(1). The principal purpose of this provision is “to ensure
that absentee class members, for whom a settlement will have
preclusive effect, have an opportunity to review the materials
relevant to the proposed settlement and to be heard or
otherwise take steps to protect their rights before the court
approves or rejects the settlement.” 2 McLaughlin on Class
Actions § 6:17 (10th ed. 2013). This notice can be sent to
putative class members before the district court issues a
certification order or, “[i]n cases in which a litigation class
has already been certified . . . the notice of settlement may
also be sent to . . . opt-outs to give them an opportunity to
rejoin the class.” Id.
The preliminary analysis of a proposed class is
therefore a tool for settlement used by the parties to fairly and
efficiently resolve litigation. In the context of a Rule 23(b)(3)
opt-out class, this affords defendants the opportunity to
determine whether there will be sufficient participation in the
class before certifying the class and dispersing any settlement
fund. This also allows the parties to forgo a trial on the
merits, which often leaves more money for the resolution of
claims.
Arguably, the Manual for Complex Litigation does not
reconcile a “preliminary determination” under Rule 23(e) of
class certification with the elimination of conditional
certification under Rule 23(c). Although the Federal Judicial
Center’s current version of the Manual for Complex
Litigation was published in 2004, it is unclear whether the
drafters had the opportunity to address the nuances between
35
subdivisions (c) and (f) of Rule 23 following the 2003
Amendments.17 Despite that, many district court judges rely,
and rightfully so, on the Manual for Complex Litigation in
managing class actions.
In light of the interplay between subdivision (c), (e),
and (f) of Rule 23, we emphasize that a district court should
be fastidious in its choice of language when making a
“preliminary determination” as recommended by § 21.632.18
17
The dissent quotes our use of the word ‘unclear’ in this
sentence and writes: “What all this [Section 21.632 of the
Manual] has to do with Rule 23(f) ‘is unclear.’” The dissent
rests on this language in its continued attempt to characterize
this opinion as relying on the Manual for Complex Litigation
to interpret the meaning of Rules 23(c) and (f), and how those
Rules relate to Rule 23(e). To repeat, the Manual is not
binding authority. In fact, the Manual is particularly
unhelpful regarding the scope of Rule 23(f) interlocutory
review given that it was published in 2004 and the relevant
amendments to Rule 23(c) took effect December 1, 2003.
18
The dissent characterizes this paragraph and various other
parts of our reasoning as dicta. Broadly stated, dictum is
defined “as ‘a statement in a judicial opinion that could have
been deleted without seriously impairing the analytical
foundations of the holding—that, being peripheral, may not
have received the full and careful consideration of the court
that uttered it.’” In re McDonald, 205 F.3d 606, 612 (3d Cir.
2000) (quoting Sarnoff v. Am. Home Prods. Corp., 798 F.2d
1075, 1084 (7th Cir. 1986)). Being clear about how district
courts can best navigate our holding, to avoid confusion, is
36
To be clear: “conditional certification” should not be a
preferred term of art in this Circuit. District courts should not
couch a ruling as providing “conditional certification” when
they actually intend to issue a certification order at a later
date. Instead, district courts should more appropriately note
that they are conducting a “preliminary determination”
regarding class certification for a settlement class in order to
provide notice to absent class members and that they are
reserving the certification decision for a later date.
Conditional certification rulings are not contemplated under
Rule 23(c)(1) and district courts always have the ability to
not something we regard as peripheral discussion. We
consider it prudent to address the recommendation of the
Manual for Complex Litigation in light of our holding
regarding what type of Rule 23 order is subject to review
under Rule 23(f).
Nor is the application of our holding to the facts in this
case mere dicta. See Seminole Tribe of Fl. v. Florida, 517
U.S. 44, 66 (1996) (explaining that the “well-established
rationale” of a decision is not dicta). The central basis for our
holding is that the review permitted by Rule 23(f) is bound to
and limited by the decision of whether to grant or deny class
certification, as permitted by Rule 23(c). Applying this
principle to the District Court’s order is a necessary predicate
to reaching our conclusion. See Galli v. N.J. Meadowlands
Comm’n, 490 F.3d 265, 274 (3d Cir. 2007) (explaining that
reasoning in excess of what is necessary to reach a conclusion
is dicta).
37
amend and alter an order before final judgment under
Rule 23(c)(1)(C). See Hohider, 574 F.3d at 202; In re
Hydrogen Peroxide Antitrust Litig., 552 F.3d at 320. Courts
wishing to actually make a class-action certification decision
at a preliminary fairness hearing should do so by issuing an
order pursuant to Rule 23(c)(1) and without reference to the
order being “conditional.”
C.
We hold that an interlocutory appeal pursuant to Rule
23(f) permits the court of appeals to review only an “order
granting or denying class-action certification” issued pursuant
to Rule 23(c)(1). An order issued under some other
subdivision of Rule 23, such as a case management order
issued pursuant to Rule 23(e) that “preliminarily” or
“conditionally” addresses class certification but reserves the
class certification determination for a later time, does not
qualify as an “order granting or denying class-action
certification” that is subject to interlocutory review under
Rule 23(f).19 Such is the case before us. We conclude that
the District Court’s July 7, 2014 order that “conditionally
certified” the proposed settlement class and subclasses was
not issued pursuant to Rule 23(c)(1). Instead, the District
Court properly exercised its authority under Rule 23(e) and
19
As always, the substance of a ruling is what matters, not its
label. An order that is for practical purposes a Rule 23(c)(1)
class certification will not avoid appellate review simply
because it is called something else.
38
was managing a class-action settlement agreement as
requested by the parties.
The structure and text of the District Court’s order and
memorandum support this conclusion. Two aspects of the
District Court’s order are telling. First, the District Court
ordered that the “proposed Class Action Settlement
Agreement is preliminarily approved” and that the
“Settlement Class and Subclasses are conditionally certified
for settlement purposes only.” In re Nat’l Football League
Players’ Concussion Injury Litig., 301 F.R.D. at 204
(emphasis added). The order specifically couched review of
the settlement agreement as “preliminary” and the class was
only “conditionally certified for settlement purposes.”
Second, the District Court scheduled a fairness hearing
for November 19, 2014 to “consider comments on and
objections to the proposed Settlement Agreement and to
consider whether: (a) to approve the Settlement Agreement as
fair, reasonable, and adequate, pursuant to Rule 23 of the
Federal Rules of Civil Procedure, (b) to certify the Settlement
Class and Subclasses, and (c) to enter the Final Order and
Judgment as provided in Article XX of the Settlement
Agreement.” Id. at 206–07 (emphasis added). This language
clearly reveals that the District Court regarded its July 7, 2014
order as having not yet reached a Rule 23(c)(1) determination
on class certification.
The notice template attached to the District Court’s
order also made patent that the settlement itself was only
“proposed” and identified the “proposed class
representatives” and their lawyers. Id. at 208, Ex. 1. Had the
39
District Court actually certified the class, the class
representatives would not have been described as “proposed,”
see Fed. R. Civ. P. 23(a)(4); rather, class counsel would have
been appointed outright, see Fed. R. Civ. P. 23(c)(1)(B),
23(g).
Yet ultimately it is the content of the District Court’s
memorandum that is most telling. The District Court began
its discussion of “Conditional Certification of the Settlement
Class and Subclasses” with the following standard of review:
“A court must determine whether the proposed
Settlement Class and Subclasses satisfy the
requirements of Federal Rule of Civil Procedure
23. See Sullivan v. DB Invs., Inc., 667 F.3d 273,
296 (3d Cir. 2011) (en banc). At the preliminary
approval stage, a court may conditionally certify
the class for purposes of providing notice,
leaving the final certification decision for the
subsequent fairness hearing. See Manual for
Complex Litigation (Fourth) § 21.632 (2004).”
In re Nat’l Football League Players’ Concussion Injury
Litig., 301 F.R.D. at 199–200.
The District Court premised its Rule 23(a) and (b)
analysis on the analytical approach suggested by § 21.632 of
the Manual for Complex Litigation.20 The District Court also
20
The District Court cited to our en banc decision in Sullivan
for the proposition that “before approving a settlement
agreement, ‘a district court first must determine that the
40
made clear that its preliminary approval was “for purposes of
providing notice.” Id. The District Court expressly provided
in its memorandum that the proposed settlement class and
subclasses “preliminarily satisf[ied]” the requirements of
Rule 23(a) and (b). Id. at 202. The thoroughness and
precision of the District Judge’s memorandum indicates that
had she actually wished to certify the proposed class and
subclasses, she would have done so and referenced Rule
23(c)(1). We read the District Court’s order and
memorandum as having expertly addressed the management
of a settlement class and no more.
requirements for class certification under Rule 23(a) and (b)
are met.’” 667 F.3d at 296 (quoting In re Pet Foods Prods.
Liab. Litig., 629 F.3d 333, 341 (3d Cir. 2010)). Sullivan does
not address what a district court must do in conducting a
“preliminary fairness hearing” where the district court
reserves its certification ruling for a later date. Further, the
rule from Sullivan is based on the Supreme Court’s decision
in Amchem, a case that did not address the procedural posture
we face here. Amchem held only that for a settlement-only
class “a district court need not inquire whether the case, if
tried, would present intractable management problems,” but
that the “other specifications of [Rule 23(b)(3)] . . . demand
undiluted, even heightened, attention in the settlement
context.” 521 U.S. at 620 (citation omitted). Further,
Amchem was written at a time when conditional certification
was expressly authorized by Rule 23(c); it could not,
therefore, have addressed the procedural posture presented in
this case.
41
Accordingly, the District Court’s July 7, 2014 order
reserved the determination of certification and fairness until
after the November 19, 2014 hearing. The District Court’s
accompanying July 7, 2014 memorandum conducted only a
basic and necessarily contingent analysis—in short, a
“preliminary” analysis—of Rule 23(a) and (b) to determine
whether the proposed approach to settlement and for
providing notice to the putative class members were effective
case management tools.
The District Court did not certify the class. Instead, it
reserved the “rigorous analysis” prescribed by Hydrogen
Peroxide until after the November 19, 2014 fairness hearing,
at which a full record could be developed. We clarify for the
first time for district courts in this Circuit that the Manual for
Complex Litigation’s use of the phrase “conditional
certification” should be avoided. Rather than use the word
“conditional,” courts in a similar procedural posture should
make clear that they are making a “preliminary
determination” on class-action certification for the purpose of
issuing notice of settlement, and that they are reserving the
issuance of a certification order until after a fairness hearing.
The certification order ultimately issued must necessarily be
entered before the district court approves the class settlement,
Sullivan, 667 F.3d at 296, but need not occur before providing
notice under Rule 23(e)(1). Permitting a district court to
manage a settlement class in this manner provides the
flexibility needed to protect absent class members’ interests
and efficiently evaluate the issues of class certification and
approval of a settlement agreement.
42
Objectors disagree with this interpretation of the
District Court’s order and contend that five basic points
govern the analysis of our jurisdiction under Rule 23(f).
None of these points are persuasive.
First, Objectors argue that the District Court need not
issue a “final” class-action certification order for the court of
appeals to have jurisdiction. This focus on a “final” order,
however, misses the point. Rule 23(c)(1)(C) provides that an
“order that grants or denies class certification may be altered
or amended before final judgment.” Thus, all certification
orders issued under Rule 23(c)(1) are as a practical matter
“conditional” so far as they are subject to change before the
district court enters final judgment. This means that a district
court cannot grant “certification on the condition” that a Rule
23(a) or (b) certification requirement is later met. Hohider,
574 F.3d at 202. The District Court premised its analysis on
providing notice to absent class members before issuing an
order on certification or approving the settlement agreement.
Rather than limit Rule 23(f) appeals to “final” orders, our
holding today is simply that a district court must issue an
order pursuant to Rule 23(c)(1) before we have jurisdiction to
conduct interlocutory review pursuant to Rule 23(f).
Objectors’ second point is that Rule 23(f) is intended
to afford an opportunity for prompt correction of a district
court’s error to spare the parties significant litigation or
settlement costs. Here the District Court has yet to commit
any error that we could correct. In fact, the very purpose of
the July 7, 2014 order was to provide putative class members
with notice so that they could meaningfully participate in the
fairness hearing. Reviewing the July 7, 2010 order now
43
would “greatly undermine the policy against piecemeal
litigation.” Camesi, 729 F.3d at 246.
Regarding the issues of litigation and settlement costs,
Objectors erroneously focus on the typical pressures facing a
litigation class rather than a settlement class. In a traditional
litigation class, after a class-action certification order, the
result could “sound the ‘death knell’ of the litigation on the
part of the plaintiffs” or place “hydraulic pressure on
defendants to settle.” Newton, 259 F.3d at 162, 164 (citation
and internal quotation marks omitted). Because the District
Court reserved issuing its class certification order until after
the fairness hearing, we are left with dead silence rather than
a death knell. Moreover, there can be no application of
hydraulic pressure where there has been no application of
force at all. Here, NFL Defendants elected to negotiate a
settlement agreement. The District Court’s “preliminary
determination” regarding class certification did not so
pressure NFL Defendants that they were forced to settle the
pending lawsuits.
Third, Objectors cite to the “unfettered discretion”
granted to courts of appeals in permitting a Rule 23(f)
interlocutory appeal. As noted above, this cherry-picked
phrase from the Advisory Committee’s notes to the 1998
Amendments fails to distinguish between the different textual
components of Rule 23(f). Although the word “may” gives
the courts of appeals unfettered discretion, that discretion is
only applicable to appeals “from an order granting or denying
class-action certification.” Fed. R. Civ. P. 23(f).
44
We grant that there is some ambiguity in the 1998
Amendments regarding the type of order that may be subject
to interlocutory review under Rule 23(f). The Advisory
Committee’s notes to the 1998 Amendments to Rule 23(f)
provide:
“The district court, having worked through the
certification decision, often will be able to
provide cogent advice on the factors that bear on
the decision whether to permit appeal. This
advice can be particularly valuable if the
certification decision is tentative. Even to a firm
certification decision, a statement of reasons
bearing on the probably [sic] benefits and costs
of immediate appeal can help focus the court of
appeals decision, and may persuade the
disappointed party that an attempt to appeal
would be fruitless.”
Fed. R. Civ. P. 23(f) advisory committee’s notes (1998
amendments) (emphasis added). References to a “tentative”
versus a “firm certification decision” may indicate to some
that “preliminary” or “conditional” certification decisions are
properly subject to interlocutory review.
Although the Advisory Committee did not revise or
cross reference these comments in the 2003 Amendments to
Rule 23(c), the text of Rule 23(f) did not require such a
revision. Rule 23(f) is tied by reference to “an order granting
or denying class-action certification.” Therefore, an order is
only reviewable under 23(f) once a district judge has actually
issued an order granting or denying class certification under
45
Rule 23(c)(1). As in the game itself, we do not have instant
replay over all aspects of the parties’ progression prior to that
point. Cf. Official Playing Rules of the National Football
League, R. 15, § 9, Art. 5 (2013 ed.) (no jurisdiction to
review an official’s determination as to what down it is).
Accordingly, any “unfettered discretion” held by the
courts of appeals would be applicable to only “an order
granting or denying class certification . . . . No other type of
Rule 23 order is covered by this provision.” Fed. R. Civ. P.
23(f) advisory committee’s notes (1998 amendments)
(emphasis added). Any question of what the Advisory
Committee might have meant when referencing “tentative” is
meaningless considering that “tentative” or “conditional”
class-action certification orders are no longer permitted under
Rule 23(c).
Objectors fourth point is that we should evaluate a
district court’s “ruling on class certification” that is “likely
erroneous.” See Newton, 259 F.3d at 164. This position
presumes that there is a ruling available to analyze, which
there is not. That ruling is destined to be issued now that the
District Court has conducted the November 19, 2014 fairness
hearing. The use of the phrase “likely” in Newton cannot be
read to imply that we should anticipate how a district court
might err based on a Rule 23(e) preliminary determination of
class certification. If such a reading of Newton were given
warrant, courts of appeals could meddle at will in the district
courts’ careful and thoughtful management in reviewing class
settlement agreements.
46
Objectors’ final point also relies on Newton and our
statement that our discretion to grant interlocutory review
may be based on any consideration we deem persuasive. See
id. at 165. This argument continues to misconstrue Newton as
an answer to the open question before us: precisely what
qualifies as an “order granting or denying class-action
certification”? See Fed. R. Civ. P. 23(f). Although we “may
permit an appeal” only from such an order, the discretion
inherent in the word “may” cannot undermine the fact that
Rule 23(f) pertains only to one type of order under Rule 23.
As a final matter, both parties cite to the Eighth
Circuit’s decision in Liles v. Del Campo, 350 F.3d 742 (8th
Cir. 2003), as supporting their respective positions. Objectors
argue that Liles stands for the proposition that an
interlocutory appeal of an order granting preliminary
proposed or “conditional” certification may be permitted
under Rule 23(f). This contention stretches the logic of Liles.
Liles did not address the scope of the court of appeals’
jurisdiction under Rule 23(f). The Eighth Circuit held the
following:
“We conclude that an interlocutory appeal would
be premature in this case. Several steps remain
before the district court finally approves class
certification and any settlement. To permit an
appeal at this stage would unnecessarily delay the
resolution of the litigation and further jeopardize
the limited assets available for resolving the
claims. Permission for an interlocutory appeal of
the conditional class certification should
therefore be denied.”
47
Id. at 746 (emphasis added).
Objectors quote the Liles Court’s statement that an
interlocutory appeal “would be premature in this case,” id.,and argue that there may be some case presenting a
conditional certification question that would properly be
addressed under Rule 23(f). A reading of the full paragraph,
however, reveals that the Eighth Circuit was hesitant to
review a district court’s order that does not “approve[] class
certification and any settlement.” Id. As in this case, the
Liles litigation involved a “joint motion for preliminary
approval of a settlement agreement and for conditional class
certification” that resulted from settlement negotiations. Id.
at 744. The more sound reading of Liles is that there is
simply nothing for a court of appeals to review under Rule
23(f) before the district court issues a certification order under
Rule 23(c). Objectors’ interpretation of Liles is unpersuasive
and the facts of this case present precisely the same problem,
i.e., that there is nothing to review until the district court
issues its certification order following the fairness hearing.
In sum, the District Court’s order and memorandum
pursuant to Rule 23(e) that provided preliminary approval of
the proposed class “for settlement purposes only” and
explicitly reserved its certification order for a later date was
not a class-action certification order under Rule 23(c).
Accordingly, this Court lacks jurisdiction over Objectors’
petition.
IV.
48
Because the District Court has yet to issue “an order
granting or denying class-action certification,” we have
dismissed the Rule 23(f) petition for lack of jurisdiction by
our Order of September 11, 2014.
49
In re: NFL Players Concussion Injury Litigation
No. 14-8103
_________________________________________________
AMBRO, Circuit Judge, dissenting
Petitioners seek, under Federal Rule of Civil Procedure
23(f), our review of Judge Brody’s “conditional certification”
of a settlement class and subclasses as “preliminarily
satisfy[ing] the requirements of Rule 23.” In re Nat’l
Football League Players’ Concussion Injury Litig., 301
F.R.D. 191, 202 (E.D. Pa. 2014). My colleagues dismiss the
petition for lack of jurisdiction because they deem
“conditional” class-certification orders as no longer proper
under Rule 23(c), the only provision in Rule 23 directly
concerning class certifications. As I believe Rule 23(f)
authorized (and for sure nowhere limits—in word or intent)
our review of the order Judge Brody entered, I would deny
the petition for review because granting it would result in
inefficient (indeed, chaotic) piecemeal litigation that would
interfere with the formal fairness hearing on the settlement.
Though in either case petitioners lose, I dissent from my
colleagues’ means to that end.
Federal Rule of Civil Procedure 23(f), adopted in
1998, states that “[a] court of appeals may permit an appeal
from an order granting or denying class-action certification
under this rule if a petition for permission to appeal is filed
with the circuit clerk within 14 days after the order is
entered.” Per the Advisory Committee Note for this
provision, permission is “in the sole discretion of the court of
appeals,” which
is given unfettered discretion whether to permit
the appeal, akin to the discretion exercised by
the Supreme Court in acting on a petition for
certiorari.
* * *
The district court, having worked
through the certification decision, often will be
able to provide cogent advice on the factors that
bear on the decision whether to permit appeal.
This advice can be particularly valuable if the
certification decision is tentative.
Fed. R. Civ. P. 23(f) Advisory Committee’s Notes (1998
amendments) (emphases added).
Five years later, Federal Rule of Civil Procedure
23(c)(1) was modified to eliminate class certifications that
“may be conditional” on later proof that a proper class exists.
Thus a “court that is not satisfied that the requirements of
Rule 23 [in effect, sections (a) and (b)] have been met should
refuse certification until they have been met.” Fed. R. Civ. P.
23(c) Advisory Committee’s Notes (2003 amendments). No
change to section (f) occurred, nor was there any Advisory
Committee comment as to the effect of the (c)(1) change on
section (f). The blink response, both textual and logical, is
that appellate courts still have “unfettered discretion” to
review class-certification orders of any kind—whether
conditional (especially so where a court is not satisfied that
there exists what Rule 23 requires to certify a class) or not.
The Federal Rules of Civil Procedure have as thorough
a review process as any I know (or can imagine). In practice,
that process begins with the Advisory Committee on Civil
Rules, which is comprised of civil procedure experts from the
judiciary and academia and is advised by one or more
reporters assigned to it. The Advisory Committee reviews
2
suggestions for Rules changes and drafts proposed new Rules
and Rules amendments along with annotated notes of
explanation. When the Advisory Committee decides to
recommend an amendment, it seeks approval from the
Judicial Conference’s Committee on Rules of Practice and
Procedure (the “Standing Committee”) to publish a proposed
amendment for comment from the bench, bar and public. The
comment period lasts at least six months and includes public
hearings. The Advisory Committee reviews the comments
and hearing testimony, typically makes changes to the
proposed Rules (if substantial, an additional period for notice
and comment usually follows), and forwards those changes to
the Standing Committee along with any minority views of
Advisory Committee members. If the Standing Committee
approves the proposals of the Advisory Committee, it
forwards them to the Judicial Conference of the United States
(which includes at its head the Chief Justice of the United
States) along with the Advisory Committee’s report and the
Standing Committee’s own recommendations. If approved
by the Judicial Conference, and Congress does not act
otherwise, the Rules go into effect. See How the Rule Making
Process Works, Overview for the Bench, Bar and Public,
United States Courts, http://www.uscourts.gov/RulesAnd
Policies/rules/about-rulemaking/how-rulemaking-process-
works/overview-bench-bar-public.aspx (last visited Nov. 30,
2014). What all this means is that experts on civil procedure
review all content of the Federal Rules of Civil Procedure. It
is the opposite of “legislative history” drafted two weeks after
a floor amendment passes in Congress.
In reviewing any Civil Rules dispute, a court’s intent is
to follow the drafters’ intent. The latter is taken from a
Rule’s words and the accompanying Advisory Committee
Notes. As we know from reading the Rules and their Notes,
little is left to the imagination. In this case, the text of Rule
23(f) grants without restriction the authority to consider
3
appeals from orders granting or denying class certification,
and its Advisory Committee Note makes clear the grant is so
unconstrained that it is the equal of the discretion given the
Supreme Court to grant certiorari. If, for example, an order
certified a class without findings that Rule 23 requirements
are met (hence a conditional order), a court of appeals can
rule that this is improper and deny the appeal. This is what
our Court did in Hohider v. United Parcel Service, Inc., 574
F.3d 169, 202 (3d Cir. 2009).
Despite this, my colleagues think the change in 2003
to subsection (c)(1) annuls the jurisdiction of an appellate
court even to consider an appeal from a conditional class-
certification order. Their logic at base is that a change in
2003 to circumscribe Rule 23(c)(1) must intend a change to
23(f) such that no longer can there be appeals literally “from
an order granting . . . class action certification,” but only from
an order “issued pursuant to Rule 23(c)(1). An order . . . that
‘preliminarily’ or ‘conditionally’ addresses class certification
but reserves the class certification determination for a later
time, does not qualify as an ‘order granting or denying class-
action certification’ that is subject to interlocutory review
under Rule 23(f).” Maj. Op. at 37-38. In layperson-speak,
the drafters somehow forgot to limit “order” in section (f) or
to change the Advisory Committee Note to that section. I
cannot go for this overstretch when the words of Rule 23(f)
are nowhere short of clear and the consequence is that a
federal appellate court gives back jurisdiction given it by our
Rules drafters and those who must approve that grant.
A textualist (one who seeks the meaning of a statute or
regulation by reviewing its actual words without resort to
extratextual sources) begins with the text of Rule 23(f), and
so does Judge Smith, a well-regarded textualist. Indeed, he
claims here to rely on “plain text.” Id. at 6, 22. That’s ironic,
as the Rule’s direct text gives appellate courts the discretion
4
to allow interlocutory appeals from class-certification orders.
But, says Judge Smith, the “type of order” has yet to be
addressed. Id. at 22 (emphasis in text). Only one
“subdivision within Rule 23 govern[s] class-action
certification orders: Rule 23(c).” Id. Though in 1998 it
allowed district courts to certify a class conditionally, that
authority, he believes, was taken away in 2003 when “a
district court was no longer permitted to issue a ‘conditional
certification.’” Id. at 25 (citing Hohider, 574 F.3d at 202).
What is interesting in citing our 2009 decision in
Hohider is that there our Court noted that it had “jurisdiction
over this interlocutory appeal [involving, among other things,
an improper conditional certification of a class] under . . .
Fed. R. Civ. P. 23(f).” 574 F.3d at 175, 202. Despite the
2003 amendment to Rule 23(c), in 2009 we had the appellate
authority to tell a district court that it may not certify a class
conditionally. My colleagues acknowledge this by their
statement that Hohider “held that the trial court’s ‘conditional
certification . . . was improper.’” Maj. Op. at 25-26
(emphases added) (quoting Hohider, 574 F.3d at 202).
The exercise of jurisdiction over a conditional
certification is what our Second Circuit colleagues did as well
in Denney v. Deutsche Bank AG, 443 F.3d 253, 269-70 (2d
Cir. 2006), though there the Court went further to hold that
“conditional certification survives the 2003 amendment to
Rule 23(c)(1),” id. at 270. The Eighth Circuit also did not
question its jurisdiction to review a conditional certification
order in Liles v. Del Campo, 350 F.3d 742 (8th Cir. 2003). (I
note that the Eighth Circuit’s opinion in Liles issued only the
day after the 2003 amendments to Rule 23(c) went into effect,
and the Court did not address directly its jurisdiction. That
said, the proposed changes to (c) were in circulation many
months before they were effective.)
5
So how, five years after Hohider, can our Court
pronounce that we have no jurisdiction? Here is my
colleagues’ take. Judge Brody’s order that, in her words,
“conditionally certified” the proposed settlement class and
subclasses was not issued pursuant to Rule 23(c)(1). Instead,
“[she] exercised [her] authority under Rule 23(e) [which
covers settlement procedures for class action settlements] and
was managing a class-action settlement agreement.” Maj.
Op. at 38. However, as “[t]he exact process a district court
should follow when presented with a ‘settlement class’ is not
prescribed by Rule 23(e),” id. at 30, the Manual for Complex
Litigation (4th ed. 2004) is consulted even though my
colleagues concede it
“does not have the force of law and can not
undermine . . . decisions of this court.” In re
Pharmacy Benefit Managers Antitrust Litig.,
582 F.3d 432, 442 (3d Cir. 2009); see also
Manual for Complex Litigation, Introduction
(explaining that the Manual “should not be
cited as[] authoritative legal or administrative
policy,” the Federal Judicial Center has “no
authority to prescribe practices for federal
judges,” and “[t]he Manual’s recommendations
and suggestions are merely that”).
Maj. Op. at 31 n.16.
Notwithstanding these statements to the contrary, id. at
31-33 n.16; id. at 35 n.17, my colleagues in effect move the
Manual above the Rule and its commentary. They do so as
follows. Section 21.632 of the Manual provides that “the
certification hearing and preliminary fairness evaluation can
usually be combined.” In doing so, “‘[t]he judge should
make a preliminary determination that the proposed class
satisfies the criteria set out in Rule 23(a) and at least one of
6
the subsections of Rule 23(b).’” Maj. Op. at 33-34 (quoting
Manual for Complex Litigation § 21.632 (emphasis added in
quote)). Calling this a “case management technique,” id. at
34, to ensure notice to absentee class members, “[t]he
preliminary analysis of a proposed class is therefore a tool for
settlement.” Id. (emphasis in text).
What all this has to do with Rule 23(f) “is unclear.”
Id. at 35. But there is an “interplay between subdivision (c),
(e), and (f) of Rule 23, [and my colleagues] emphasize that a
district court should be fastidious in its choice of language
when making a ‘preliminary determination’ as recommended
by § 21.632 [of the Manual].” Id. at 36 (emphasis added).
What’s the point? “To be clear: ‘conditional
certification’ should not be a preferred term of art in this
Circuit. District courts should not couch a ruling as
providing ‘conditional certification’ when they actually
intend to issue a certification order at a later date.” Id. at 37.
Our Court, though it does not have the jurisdiction to tell
Judge Brody that her “conditional certification” is not the
right call sign, nonetheless in several pages of dicta tells her
so.
My take on my colleagues’ reasoning is, to quote the
late Hollywood film producer Samuel Goldwyn, “Include me
out.” Here’s why. Our highly experienced and respected
District Court colleague knew exactly what she was doing.
Judge Brody “conditionally certified” a class and subclasses
“for settlement purposes only.” In re Nat’l Football League
Players’ Concussion Injury Litig., 301 F.R.D. at 204. She did
so after analyzing the requirements of Rule 23(a) and (b), id.
at 199-202, and found that the proposed settlement class and
subclasses “preliminarily satisf[ied]” those requirements, id.
at 202. This was not the type of premature and unanalyzed
approval of a litigation class that Rule 23(c) meant to bar
7
because conditional certifications of litigation classes give
inordinate leverage to plaintiffs’ class counsel to force a
settlement not called for under closer scrutiny. Rather, Judge
Brody, after satisfying herself that the relevant Rule 23(a) and
(b) requirements were met, provisionally certified a class
already set to settle once that settlement is found to be fair at
a later hearing. (Indeed, she gave “preliminary approval” of
the proposed settlement after making a “preliminary fairness
evaluation” of it. Id. at 197-99.) That certification was
needed to know to whom notice and the settlement should be
sent. The use of “conditional” in this context is thus not
verboten under subsection (c)(1). Indeed, conditional
certifications for settlement classes continue after 2003. See
Denney, 443 F.3d at 269-70; see also Ault v. Walt Disney
World Co., 692 F.3d 1212, 1215 (11th Cir. 2012) (noting the
use of conditional certification by the district court).
Even if we assume Judge Brody used “conditional”
incorrectly, “an error in the class certification decision that
does not implicate novel or unsettled legal questions may still
merit interlocutory review given the consequences likely to
ensue . . . . [W]e emphasize that the courts of appeals have
been afforded the authority to grant or deny [Rule 23(f)]
petitions ‘on the basis of any consideration that the court of
appeals finds persuasive.’” Newton v. Merrill Lynch, Pierce,
Fenner & Smith, 259 F.3d 154, 164-65 (3d Cir. 2001)
(quoting Fed. R. Civ. P. 23(f) Advisory Committee’s Notes
(1998 amendments)).
* * * * *
My colleagues and I can agree that appellate courts
should be reluctant to review class-certification orders on an
interlocutory basis. To me that is enough. To go so far
further by holding that we lack even the power to do so here
is a bridge too far (especially in the wake of Hohider and no
8
other Circuit after 2003 finding its jurisdiction lost for
interlocutory appeals of conditional class certifications).
There is no support for ceding jurisdiction in the words of
Rule 23(f), the Advisory Committee Note for that section, or
subsection (c)(1). To seek that support in the Manual for
Complex Litigation, which tells us it is not to be cited as
authority, “complexifies” what is simple: appellate courts
have “unfettered discretion” to consider any order that grants
or denies class-action certification. Those certification orders
were circumscribed in 2003 to ones that require more careful
attention to the well-understood requirements of Rule 23(a)
and (b). That occurred without any change to the
unconstrained review of certification orders given to appellate
courts only five years earlier. Hence Rule 23(c) does not
bleach out the simple and direct words of Rule 23(f).
If Rule 23(f) appellate jurisdiction is to be limited, it
must come from its drafters amid the well-conceived approval
process in place. In the meantime, not to follow the words of
Rules in place substitutes us as their drafters and makers of
policy. As that is too active a role for a court, I respectfully
dissent.
9