Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partner Jennifer Riley, senior associate Tyler Zmick, and associate George Schaller with their discussion of the notable appellate rulings shaping class action litigation in 2025.
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Episode Transcript
Jennifer Riley: Thank you for being here again for the next episode of our Friday weekly podcast, the Class Action Weekly Wire. I’m Jennifer Riley, partner at Duane Morris, and joining me today are Tyler Zmick and George Schaller. Thank you both so much for being on the podcast today.
Tyler Zmick: Thanks for having me, Jen.
George Schaller: Glad to be here, Jen.
Jennifer: So today, we wanted to discuss some trends and important rulings in the area of appeals in class action litigation. Parties have limited options when it comes to seeking interlocutory appellate review of a class certification decision. What are some typical ways in which parties can move for an interlocutory review?
Tyler: So, the main mechanism to get interlocutory appeal and review of a class certification order is Rule 23(f) of the Federal Rules of Civil Procedure. Under that rule, a party can ask the federal appellate court for permission to appeal within 14 days of the district court issuing an order that either grants or denies class certification. Another avenue is seeking interlocutory appellate review of a district court decision under a federal statute, 28 U.S.C. § 1292(b). Now, Section 1292(b) appeals are especially helpful in complex cases to correct early errors of law, that, if put off until after final judgment, might require the parties to redo years of extensive litigation.
Jennifer: George, can you explain to our listeners what are the primary differences between those two options? In particular, what is the benefit of Rule 23(f)?
George: Sure, Jen, so unlike interlocutory appeals under Section 1292(b), Rule 23(f) does not require a district court to certify an issue for appeal. Moreover, Rule 23(f) does not include the potentially limiting requirements of Section 1292(b) under which the district court can certify an issue for appeal only where an order involves a controlling question of law as to which there’s substantial ground for difference of opinion, and where an immediate appeal from the order may materially advance the ultimate termination of the litigation.
Jennifer: Thanks, George. So here’s a question that I get asked quite often – how likely is it that a Rule 23(f) petition will get granted by the appellate court?
Tyler: So, studies have actually been done on that very issue. And those studies show that appellate court orders or appellate courts deny approximately 75% of Rule 23(f) petitions to appeal class cert orders. And most of those denials come by way of summary orders that do not provide any reasoning. So basically, the court says ‘petition denied because I said so.’
Jennifer: Do you have any examples of some rulings granting petitions for appeal over the past year in particular?
George: Yes, so the plaintiffs in Richards, et al. v. Eli Lilly & Co. filed a collective action alleging that the defendant failed to promote older employees in violation of the Age Discrimination in Employment Act, or the ADEA. The court granted the plaintiff’s motion for conditional certification, and the defendant moved to certify an interlocutory appeal and stay the action. The court granted the defendant’s motion, and the court first analyzed whether the issue at hand was a pure question of law rather than a factual dispute. The court concluded that the question of the proper standard for collective action certification, whether it be the more lenient modest factual showing approach or the stricter preponderance of evidence standard, was a question of law suitable for appeal. The court assessed whether the resolution of the legal question would significantly impact the course of the litigation. The court also determined that clarifying the standard for certification would affect the size and scope of the collective action, thereby impacting settlement negotiations and potentially expediting or prolonging the litigation process. The court further considered whether there were substantial grounds for a difference of opinion on the legal issue. The court noted conflicting decisions in different circuits and within its own circuit, which indicated a genuine dispute over the appropriate standard for certification. Finally, the court concluded that resolving the certification issue would ultimately expedite the progression of the lawsuit. Accordingly, the court granted the defendant’s motion for an appeal, certifying the question of the proper standard for collective action certification of an ADEA claim.
Jennifer: Thanks, George, very interesting to get some of the court’s rationale in graining that petition, and we’ll see what the Court of Appeals decides in that case. Now that we are well into 2025, have there been any interesting rulings so far this year?
Tyler: Yes, there have been a few. One example of a notable ruling was issued by the Tenth Circuit Court of Appeals in March of this year, in the case named Quint v. Vail Resorts. The plaintiffs in that case filed a class action against their employer, Vail Resorts, in federal court in Colorado, alleging violations of state and federal labor laws. Now, around the same period of time, similar claims were being pursued in California state court by a different group of employees in a case called Hamilton v. Vail. The claims in the Hamilton case were ultimately settled, so the Vail defendant in the Colorado federal case asked the court for a stay to avoid overlapping litigation on the same claims. The district court agreed and paused the federal case until all appeals in the Hamilton case were resolved. Meanwhile, in California state court, the Colorado plaintiffs objected to the Hamilton settlement, and when the state trial court overruled those objections to the settlement, the plaintiffs appealed to the California Court of Appeals, and the California Appellate Court then ruled in favor of the Colorado plaintiffs, and then allowed them to intervene in the state court trial action and the court overturned the approval of the Hamilton settlement. The defendant then requested review from the California Supreme Court, but that court declined. As a result, the condition that triggered the end of the stay in the Colorado federal court case – which was final resolution of the Hamilton appeals – was met. And so back in federal court, the Colorado plaintiffs moved to lift the stay that had been in effect in that case, and the Tenth Circuit ultimately held that the stay had already expired on its own terms, and since there was no longer an active stay to lift, the Tenth Circuit found that the appeal was moot, because there was nothing left to resolve. So, the Tenth Circuit, therefore, dismissed the appeal.
Jennifer: Thanks so much for those examples. I anticipate that appeals will continue to be granted sparingly, and the courts will continue to provide little guidance to the parties on what will and won’t be successful in terms of arguments in these petitions. So, I think the parties will have to continue to develop some novel approaches and evolve their strategies in order to continue to obtain success in this area. Well, thanks so much for all of the great analysis, George and Tyler, and thank you for being here on the podcast with me today, listeners. Thank you so much for tuning in.
Tyler: Thanks for having me, Jen, and thank you, listeners.
George: Thanks, everyone. Have a great weekend.
