Civil Procedure — class actions — appeal

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United States Court of Appeals For the Seventh Circuit

Civil

Civil Procedure — class actions — appeal

A refusal to decertify a class is not appealable.

“There was a material alteration in the present case as well—the change in the class definition. But as we said that’s not what the defendant wants to challenge. He’s concerned with several orders issued by the district court since his first Rule 23(f) petition was filed and denied more than three years ago, such as an order allowing the plaintiffs to use ‘representative evidence’—in effect, allowing damages to be extrapolated from a sample of the class members, rather than requiring that they be calculated for all 15,000 of them individually. The words ‘granting’ and ‘denying’ class certification can be stretched only so far. They can’t embrace every order the judge issues that a party doesn’t like. The interim orders in this case may for all we know have undermined the reasons for certifying a class in the first place, and the defendant can always move the magistrate judge to decertify the class on the basis of new developments, as indeed he did; the judge’s denial of that motion was the precipitant of the defendant’s petition for permission to appeal. Driver v. AppleIllinois, LLC, 2013 WL 5818899, at *12–13 (N.D. Ill. Oct. 29, 2013). Should the judge continue to refuse, her refusals won’t be appealable under Rule 23(f). A refusal to decertify a class is neither an order granting nor an order denying certification; it is merely a denial of reconsideration of a previous ruling. Gary v. Sheahan, 188 F.3d 891, 892 (7th Cir. 1999); In re DC Water & Sewer Authority, supra, 561 F.3d at 496–97.”

Petition Denied.

13-8029 Driver v. AppleIllinois, LLC

Petition for Permission to Appeal from the United States District Court for the Northern District of Illinois, Brown, Mag. J., Posner, J.