Ninth Circuit Promulgates Standards for Implementing New Federal Rule Permitting

Interlocutory Appeal from a Class Certification Order

On March 31, 2005, a panel of the Ninth Circuit Court of Appeals (consisting of Judges Leavy, McKeown, and Berzon) filed a "By the Court" opinion in Chamberlan v. Ford Motor Co., No. 04-80074, denying Ford’s petition for permission to appeal an order certifying a class action under newly promulgated Federal Rule of Civil Procedure 23(f). The opinion is the Circuit’s first to identify the criteria it will consider in deciding whether to grant a petition for permission to appeal a class certification order.

Rule 23(f) gives a court of appeals the right to entertain, "in its discretion," an interlocutory appeal from an order "granting or denying class certification…." The Rule’s text is silent as to how the courts should exercise their discretion, but the Rule’s Advisory Committee Note suggests that appellate review may be appropriate when the order (1) creates a "death knell" situation for either party