United States Court of Appeals For the Seventh Circuit
Civil Procedure – class actions; appeal
The modification of an order certifying a class is appealable.
“We think, borrowing the language of the Gary case, that an order materially altering a previous order granting or denying class certification is within the scope of Rule 23(f) even if it doesn’t alter the previous order to the extent of changing a grant into a denial or a denial into a grant. This is best seen by imagining that rather than altering a class that the court had already certified the district judge had at the outset certified a narrower class than proposed by the plaintiff. That order would have been appealable by either party, or so at least the cases assume, see Kartman v. State Farm Mutual Automobile Ins. Co., 634 F.3d 883, 888 (7th Cir. 2011); Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894, 896-97 (7th Cir. 1999); Hohider v. United Parcel Service, Inc., 574 F.3d 169, 174-75 (3d Cir. 2009); Lozano v. AT & T Wireless Services, Inc., 504 F.3d 718, 721 (9th Cir. 2007); Gunnells v. Healthplan Services, Inc., 348 F.3d 417, 423 (4th Cir. 2003); Parker v. Time Warner Entertainment Co., L.P., 331 F.3d 13, 17-18 (2d Cir. 2003), albeit without discussion of the issue—yet the assumption seems obviously correct. We don’t see why it should make a difference that the order modifying the class requested by the plaintiff came later. The difference is between one order and two orders that accomplish the same thing.”
Petition and Cross-Petition for Leave to Appeal from the United States District Court for the Northern District of Illinois, Gottschall, J., Posner, J.