Duane Morris Takeaway: This week’s episode features Duane Morris partner Jerry Maatman, special counsel Tyler Zmick, and associate Christian Palacios with their discussion of significant appellate rulings in class actions.
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Episode Transcript
Jerry Maatman: Thank you for being here again, loyal listeners, for the next episode of the Duane Morris Class Action Weekly Wire. I’m Jerry Maatman, a partner at Duane Morris, and joining me today are my colleagues, Tyler and Christian. Thanks so much for being on the podcast.
Tyler Zmick: Thank you for having me, Jerry.
Christian Palacios: Glad to be here, Jerry.
Jerry: Today, we wanted to discuss trends and important rulings in the area of appeals in class action litigation. Parties have limited options when it comes to seeking direct or interlocutory appellate review of class certification decisions and other class-like rulings. What are the typical ways in which parties can move for interlocutory appeal in this space?
Tyler: So, the primary mechanism is Rule 23(f) of the Federal Rules of Civil Procedure, and 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. Parties can also seek interlocutory appellate review under Federal Statute 28 U.S.C. § 1292(b), and Section 1292(b) appeals are especially helpful in complex cases to correct early errors, questions of law that, if put off until after final judgment, might otherwise require parties to re-do years of extensive litigation.
Jerry: What’s the primary practical difference between these two options?
Christian: So, unlike interlocutory appeals under 28 U.S.C. §1292(b), Rule 23(f) doesn’t require the 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 “involve[s] a controlling question of law as to which there is substantial ground for difference of opinion” and where “an immediate appeal from the order may materially advance the ultimate termination of the litigation.”
Jerry: At the end of the day, what sort of analytics underlie the success and failure of these types of petitions, typically, at the Court of Appeals level?
Tyler: So that’s a great question, and the data shows that appellate courts deny approximately 75% of Rule 23(f) petitions to appeal class certification decisions, and most of those denials come by way of summary orders that do not provide any reasoning. That said, in approximately 10% of cases, the appellate court issues an opinion explaining its reasons for either granting or denying the Rule 23(f) petition. And while reasoned decisions are somewhat rare in this space, appellate courts nonetheless issued several noteworthy decisions in 2025 regarding Rule 23(f) appeals and Section 1292(b) appeals.
Jerry: Chapter 3 of the Duane Morris Class Action Review summarizes and analyzes those key appellate rulings. Do you have some examples of some significant rulings where petitions for appeal were granted over the last 12 months?
Christian: Definitely. In Konya, et al. v. Lockheed Martin Corp., the plaintiffs, four retirees, filed a class action against the defendant, alleging that the company violated the Employee Retirement Income Security Act, or ERISA, when it transferred responsibility for their pensions to a private annuity provider, named Athene Annuity & Life Assurance Company of New York, through a pension risk transfer. The plaintiffs claimed that Athene was a riskier and less secure choice than traditional providers and that the defendant prioritized cost savings over the plaintiffs’ financial security in retirement. The defendant then moved to dismiss for lack of standing, under the U.S. Supreme Court’s decision, Thole, et al. v. U.S. Bank, 140 S.Ct. 1615 (2020), arguing that because the plaintiffs had not yet lost any benefits, they were not able to bring lost benefits claims. The court rejected this argument, finding that the retirees had alleged enough potential harm to proceed. That same day, a district court in Washington, D.C., ruled the opposite way in a nearly identical case involving Athene. Faced with these conflicting rulings and mounting litigation nationwide, the defendant filed a motion for an interlocutory appeal. The court granted the motion, finding that the question of standing was a purely legal issue that could potentially resolve or significantly simplify the case. Noting the conflicting court decisions and the broader implications for similar lawsuits, the court granted defendant’s motion for an interlocutory appeal and stayed the case while the Fourth Circuit considers the matter.
Jerry: That’s a very interesting outcome, especially in-so-far as the rationale of the Court of Appeals was, elucidated to give the reader of the opinion a sense of what motivated the Court of Appeals to grant the petition. So, we’ll see what happens and how the Fourth Circuit rules. Any other key rulings in the appeal space to share with our listeners?
Tyler: Yes, I think one noteworthy decision came from the Northern District of California in 2025 in a case called Mullins v. International Brotherhood of Teamsters, and the District Court in that case granted a request by the defendants to certify an interlocutory appeal under Section 1292(b). And the issue in that case was whether the Federal Railway Labor Act, or RLA, gives individual employees the right to pursue grievances independently, even when their union decides not to do so. Previously, the district court had ruled in favor of the plaintiffs and held that individual employees can pursue grievances even when the union does not do so. The defendants argued that this ruling was appropriate for interlocutory appeal because it involved a controlling legal question on which there was substantial disagreement among courts, and that resolving it now could advance the case. And the district court agreed, noting that other courts, including other federal appellate courts, have issued conflicted opinions on whether the RLA provides individual grievance rights. Therefore, because the issue was a purely legal issue and central to the one remaining claim, the District Court determined that it met the standard for interlocutory appeal under Section 1292(b). Therefore, the District Court granted the motion and certified the appeal, which the Ninth Circuit actually later accepted, and that appeal is still pending before the appellate court.
Jerry: Well, those are two great examples, and one would anticipate that we’ll see, during the next 12 months, a continued pattern by courts of appeals in terms of this kind of patchwork quilt of data analytics in terms of acceptance or denial or reasons why an appeal might be ripe to be decided by a court of appeals.
Well, thanks so much for all this great analysis, Christian and Tyler, and thank you for being here today as our guests on the Class Action Weekly Wire. Listeners, thanks so much for tuning in.
Tyler: Thank you for having me, Jerry, and thank you, listeners.
Christian: Thanks, everyone. Happy to be a part of the podcast.
