Rule 23(f) and Amended Class Certification Orders

Rule 23(f) authorizes interlocutory review of orders granting or denying class-action certification, so long as a petition is filed within 14 days of such an order. But what if, instead of filing a 23(f) petition, a party files a motion for reconsideration, and the court modifies its certification order? Does the 14-day clock start anew? According to the Third Circuit: sometimes.

In Wolff v. Aetna Life Insurance Co., the district court granted certification, and three months later, the defendant filed a motion to reconsider. The district court granted the motion in part, and denied it in part, solely revising the class definition to address a potential fail-safe issue. Fourteen days later, the defendant filed a 23(f) petition.

Adopting the standard employed by other courts of appeals, the Third Circuit held that the 23(f) time limit begins anew ” only when the revision materially changes the original order granting or denying class certification.”  And the district court’s modification of the class definition here, it held, was not material. So the 23(f) petition was untimely.

At the same time, though the relevant factor for the timeliness inquiry was materiality, the court also noted that it “would also be hesitant to use [its] discretion to grant a 23(f) petition when the basis for the petition is shrouded in what are, to us, incomprehensible tactical maneuvers,” pointing out that the district court had simply adopted the class definition that the defendant-petitioner had sought in its motion for reconsideration.

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