A Modest Proposal to Disturb the Sound of Appellate Silence: Why the Eighth Circuit Should Articulate a Rule 23(f) Standard for Appeals of Class Certification Decisions

February 13, 2015

More often than not, in class actions, the district court’s decision on class certification is the pivotal moment—the “crucial inflection point” in the case. The denial of class certification often spells the end of the litigation because it is no longer economically feasible to continue an individual suit; the grant of class certification can have the same effect for the defendant, by creating extraordinary settlement pressure on a defendant. As a result, “the fight over class certification is often the whole ballgame,” where the economics of litigation force the loser to retreat from the field of play, and the class certification decision itself becomes effectively unreviewable.

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Stephen P. Safranski

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Co-Chair, Antitrust and Trade Regulation Group

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