Certification of a class action under Federal Rule of Civil Procedure 23, or of a collective action under the Fair Labor Standards Act or Age Discrimination in Employment Act, often determines the outcome of the case as a practical matter, making appeals of such decisions especially important. Many practitioners may not be familiar with special rules allowing for interlocutory appeals as to class certification or collective action status. Rule 23(f) gives the federal courts of appeals discretion to provide interlocutory review of class certification decisions, while 28 U.S.C. §1292(b) allows for review of decisions on collective action status. This article will offer guidance in navigating the procedural provisions governing such appeals.
Appealing Certification Orders Under Rule 23
Rule 23(f) gives courts of appeals discretion to allow interlocutory appeals from district court orders granting or denying class certification.1 The Supreme Court allowed this departure from the general prohibition on interlocutory appeals because certification is often outcome-determinative, and an early appellate decision on certification may speed the litigation toward an earlier resolution by settlement or other means.2
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