Appealability of Class Certification Orders: The "Mandamus Appeal" and a Proposal to Amend Rule 23

I. INTRODUCTION The class action suit is invention in equity . . . mothered by the practical necessity of providing a procedural device so that mere numbers would not disable large groups of individuals, united in interest, from enforcing their equitable rights nor grant them immunity from their equitable wrongs.1 The class action provides a means by which a large group of persons can sue or be sued without the necessity of joining each and every class member.2 Since the 1966 Amendments to the Federal Rules of Civil Procedure, which created the modern Rule 23 class action, class actions have been the subject of much praise3 and much criticism.4 Whatever the relative merits of Rule 23 class actions, the mechanism has become a viable tool for adjudicating claims, particularly in this era of increasing mass tort actions.5 The decision whether to certify a class action, resting with the sound discretion of the district court judge and made early in the litigation,6 is of paramount importance to the parties to a cause of action. For the named plaintiff, who typically has a very small claim and is using the class mechanism as a means of bringing suit,7 denial of class certification can be disastrous. As a practical matter, without the possibility of class recovery, it would often be economically infeasible for the plaintiff to bring an individual action.8 The defendant, should the court certify the class, finds himself in a similar predicament. The class action brings high risks because of the sheer number of plaintiffs that may be involved. A hefty legal bill will result simply from the defendant's decision to litigate. As a result, there will be incredible pressure to settle.9 The potential hardship that a class certification order can create is exacerbated when the propriety of that order is questionable. If the judge errs and denies certification, the plaintiff may wrongly lose his day in court. Similarly, an erroneous certification of a class would force a defendant to litigate the entire action before an to correct the error would be available. In light of this potential hardship, the incentive to immediately a class certification order is great. The final judgment rule, however, embodied in 28 U.S.C. sec 1291,10 only allows appeals from the final judgments of the district courts. The Supreme Court has held that the decision whether to certify a class does not fit into the category of final judgments.11 Thus, an injured party could be forced to endure the hardship of having to litigate the entire matter before an becomes available. This Comment addresses the interlocutory appealability of class certification orders, and proposes an amendment to Rule 23 which would provide for a discretionary interlocutory of the order to a federal circuit court of appeals in an effort to accommodate the potential hardship caused by the final judgment rule, while still respecting the sound policies behind the rule. Part II discusses the requirements of Rule 23 class certification, the final judgment rule, and the immediate appealability of class certification orders. Part III addresses circuit use of the mandamus appeal to vacate class certification orders. Finally, in Part IV, this Comment proposes an amendment to Rule 23 which would provide limited interlocutory review of class certification orders, relying primarily on the discretion of the court of appeals. II. CLASS CERTIFICATION AND APPEALABILITY The decision whether to certify a class, as mentioned above, can have an important effect on the parties and the litigation. In such instances, the party negatively affected by the judge's order may want to seek immediate redress. This Part discusses the process of class certification through Federal Rule of Civil Procedure 23 and the appealability of class certification orders. Subpart A specifically spells out the structure of Rule 23, while subpart B discusses the final judgment rule and its effect on the appealability of class certification orders. …