Article by E. Travis Ramey
Development of Rule 23 and the federal class action quickly revealed the need for interlocutory appellate review of class certification decisions. Those decisions often sounded the “death knell” of the lawsuit due to settlement pressure or lack of incentive to continue, which meant that class certification issues only rarely reached the appellate courts. As a result, the law surrounding class certification developed slowly. After parties and courts had attempted, and failed, to address those problems through other means, the United States Supreme Court exercised its power under 28 U.S.C. § 1292(e) and promulgated Rule 23(f), which allows for permissive interlocutory review of class certification decisions.
This Article, for the first time, examines the justifications for Rule 23(f) and applies them to another, somewhat lesser-known, complex litigation procedure used in federal wage-and-hour, wage-discrimination, and age-discrimination cases—the collective action. First, the Article argues that the same reasons that justified an exception to the final judgment rule for class certification decisions apply equally to justify an exception for decisions allowing litigation to proceed as a collective action. Second, the Article argues that such an exception would do no damage, or at least no further damage, to the final judgment rule. Lastly, it suggests reform through promulgation of a Rule 23(f) analog that applies to collective actions.
About the Author
E. Travis Ramey, Clinical Assistant Professor of Law and Director of the Appellate Advocacy Clinic at the University of Alabama School of Law.
Citation
100 Tul. L. Rev. 225