When the Rules Committee amended Rule 23 in 1998 to allow
for interlocutory appeals, it made them discretionary. The result,
as I've written before, is that class action litigators have
had to make these appeals attractive to appellate courts in much the same way that appellate litigators
must prepare certiorari petitions.
But, as it turns out, there is one way for plaintiffs at
least to ensure that an appellate court hears a denial of
certification.
In Berger v. Home Depot USA, Inc., No.
11-55592, 2014 U.S. App. LEXIS 2059 (9th Cir. Feb. 3, 2014), the
plaintiff had filed a class action against Home Depot, alleging
that it automatically imposed a surcharge on tool rentals for an
optional damage waiver. The district court denied certification,
leaving only the individual case. Rather than prosecute or
settle the named plaintiff's individual claims, his counsel
stipulated to the dismissal of the claim, and then appealed the
dismissal. The tactic worked. As the
