The Ninth Circuit will get extra requests to attraction class-certification choices beneath Rule 23(f) than some other courtroom. How do these requests fare? We have a look under, drawing from this invaluable nationwide research by Professor Bryan Lammon.
Background
Federal Rule of Civil Process 23(f) offers a method to instantly attraction orders granting or denying class certification. These interlocutory orders ordinarily could be appealable solely after ultimate judgment. However Rule 23(f) was added in 1998 as a result of the class-certification determination is usually a make-or-break second. If the category is licensed, the defendant feels overwhelming stress to settle; if not, the plaintiff would possibly drop the case. By permitting attraction earlier than these pressures kick in, Rule 23(f) creates an opportunity to appropriate errors in these high-stakes choices and to develop the legislation.
A Rule 23(f) attraction, nevertheless, isn’t automated. A celebration should file a petition for permission to attraction, and the courtroom of appeals has discretion over whether or not to grant it. To make that call, the Ninth Circuit appears for: (1) a “death-knell scenario” coupled with a “questionable” determination, (2) “an unsettled and basic concern” of class-action legislation vital to the litigation and prone to evade end-of-case evaluation, or (3) manifest error. Chamberlan v. Ford Motor Co., 402 F.3d 952, 959 (ninth Cir. 2005).
Within the Ninth Circuit, Rule 23(f) petitions go to the motions panel, which rotates month-to-month. Simply two judges resolve the petitions (until they name in a 3rd decide, for instance if the primary two disagree). The motions panel sometimes points solely a quick order with out reasoning; if the petition is granted, the case then goes to a deserves panel for full briefing, argument, and determination.
A have a look at the Ninth Circuit’s Rule 23(f) docket
Regardless of their excessive stakes for the events, Rule 23(f) petitions get little fanfare sitting on the motions panel’s docket. We’d wish to shed some mild on that docket. Our information under come from Prof. Lammon’s evaluation of all Rule 23(f) petitions filed from 2013 by way of 2017, plus our personal analysis on Ninth Circuit petitions filed from 2018 by way of 2021.
Quantity: The Ninth Circuit will get a ton of Rule 23(f) petitions. The Ninth Circuit decides way more Rule 23(f) petitions than some other circuit—unsurprising given its dimension. In Prof. Lammon’s 2013-2017 information, the Ninth Circuit received over 50 petitions a 12 months, whereas the subsequent closest courts (the Second and Seventh Circuits) every received fewer than 20 yearly. And the Ninth Circuit’s tempo hasn’t dropped: from 2018 to 2021, the courtroom noticed a mean of about 60 petitions per 12 months.
Rule 23(f) outcomes: It’s powerful to hunt Rule 23(f) attraction within the Ninth Circuit, particularly as a defendant. The Ninth Circuit is likely one of the stingiest courts within the nation on the subject of permission to attraction beneath Rule 23(f). Prof. Lammon discovered the Ninth Circuit granted solely 18% of Rule 23(f) petitions from 2013 to 2017—decrease than some other circuit however one (the D.C. Circuit, which determined solely 7 petitions in that interval). We discovered the Ninth Circuit had a equally low grant charge from 2018 to 2021, about 20%. And that charge was solely 10% for petitions filed final 12 months (2021). Prof. Lammon discovered a statistically important hole between the Ninth Circuit and probably the most beneficiant Rule 23(f) courtroom (the Fifth Circuit, with a grant charge of fifty%).
It’s particularly powerful to be a defendant submitting a Rule 23(f) petition within the Ninth Circuit. On the floor of Prof. Lammon’s information, Ninth Circuit plaintiffs and defendants seemingly had comparable success—19% and 17% of petitions granted, respectively. What’s noteworthy about that parity, nevertheless, is that nationally defendants in search of Rule 23(f) evaluation do higher than plaintiffs. So whereas the Ninth Circuit’s 19% grant charge for plaintiffs was in keeping with the nationwide plaintiffs’ common of 21%, the Ninth Circuit defendants’ charge (17%) was fairly a bit under the nationwide defendants’ common of 27%. And even the surface-level parity in Prof. Lammon’s information has disappeared lately—we discovered from 2018 to 2021 that Ninth Circuit plaintiffs had a whopping 29% grant charge, whereas defendants sat at a measly 13%. (That current disparity, although, was greatest in 2018-2019 and lessened in 2020-2021.) As Prof. Lammon explains, these figures include caveats, and he discovered little statistically important proof of courts treating plaintiffs and defendants otherwise. However to the extent there’s a distinction within the Ninth Circuit, it seems to disfavor defendants.
Deserves outcomes: Within the Ninth Circuit, reversal of class-certification choices is comparatively uncommon. As soon as Rule 23(f) attraction is granted, courts of appeals nationwide reverse the district courtroom roughly half the time (54% for 2013-2017 petitions). However the Ninth Circuit reverses much less typically: 37% for 2013-2017 petitions, and 44% for 2018-2021 petitions. These reversal charges, Prof. Lammon discovered, don’t differ considerably relying on which social gathering is interesting. The Ninth Circuit’s low 23(f) grant charge, mixed with its low reversal charge, signifies that only some fortunate petitioners obtain their final aim—reversal of a category certification grant or denial.
Timing: The Ninth Circuit typically decides Rule 23(f) petitions in 3 months. We discovered the Ninth Circuit decides Rule 23(f) petitions in about 85 days on common—in keeping with the nationwide common based on Prof. Lammon’s information. However there’s plenty of variation behind that common. Many petitions had been determined extra rapidly—over 30% of the petitions we noticed had been determined inside 60 days, and over 60% inside 90 days—however some took for much longer, with 17% taking longer than 120 days.
The timing is roughly comparable whether or not the petition is granted or not. Grants took barely longer—90 days on common, in comparison with 83 days for denied petitions—however it’s unclear whether or not that’s a significant distinction.
Amicus participation: Petition-stage amici are uncommon.Amici weighed in on Rule 23(f) petitions in solely 4% of the Ninth Circuit circumstances we checked out. That’s not stunning, because the deadlines for these petitions are so tight, there’s not a lot time for amici to become involved (14 days to file the petition and 10 days to file the response).
When amici did take part on the Rule 23(f) stage within the circumstances we noticed, the petition was granted 4 instances as typically. But it surely’s unimaginable to attract agency conclusions from that. Not solely is our information set small, however we will’t inform which of these petitions would have been granted even with out amicus participation. In spite of everything, if a petition was robust sufficient to seize amici’s consideration, it might need been robust sufficient by itself to seize the courtroom’s consideration as effectively. Then again, the presence of an amicus temporary does sign to the courtroom that the difficulty offered by petitioner is of curiosity to different events.
The underside line
Rule 23(f) petitions are a worthwhile instrument for disenchanted litigants to get appellate evaluation and for courts to develop class-action legislation. And they’re common within the Ninth Circuit, which has extra Rule 23(f) exercise than some other courtroom. However the Ninth Circuit makes use of its Rule 23(f) energy comparatively sparingly, granting evaluation much less typically and—even when it does grant evaluation—affirming the district courtroom extra typically.
This weblog was first printed on Left Coast Appeals.
