One question that Eleventh Circuit litigants often ask is how likely the court is to grant a Rule 23(f) petition for interlocutory review of a class certification decision. Litigants who have been on the wrong end of a class certification decision ask this question with particular urgency because an interlocutory appeal—before the trial on the merits—can often save a case. Defendants who have received adverse certification decisions face pressure to settle rather than facing the uncertain prospects of a suit on the merits and a subsequent appeal of the certification decision. For would-be lead plaintiffs, it is seldom worthwhile to incur the expense of an individual trial on the merits with only an uncertain hope of later class certification after an appeal.
To provide insight into this question, we recently conducted a survey of the grant rate for Rule 23(f) petitions before the Eleventh Circuit from 2011 through the present. Over this period, the court has granted 20% of Rule 23(f) petitions. This puts the court slightly below the national average (23%) for such grants, but suggests that the reputation for stinginess that it had gained in some circles based on its low grant rate in the early 2010s is no longer deserved.
A word of warning—these statistics refer to how many petitions were granted, but a Rule 23(f) grant just means that the Eleventh Circuit will hear the appeal—the appellant still has to convince a panel to reverse the certification decision.
| Eleventh Circuit – Grant Rate of Rule 23(f) Petitions | ||||||
| Year | Petitions | Grants | Denials | No merits disposition | Grants as % of decisions | Median days for decision |
| 2019 | 2 | 0 | 1 | 1 (pending) | 0% | 41 |
| 2018 | 17 | 3 | 13 | 1 (pending) | 13% | 61 |
| 2017 | 11 | 3 | 7 | 1 | 25% | 53 |
| 2016 | 6 | 2 | 1 | 3 | 66% | 73 |
| 2015 | 14 | 3 | 9 | 2 | 25% | 83 |
| 2014 | 7 | 2 | 4 | 1 | 33% | 47 |
| 2013 | 13 | 3 | 10 | 0 | 23% | 57 |
| 2012 | 11 | 1 | 9 | 1 | 10% | 65 |
| 2011 | 6 | 0 | 6 | 0 | 0% | 52 |
| Overall | 87 | 17 | 60 | 10 | 20% | 61 |
Petitions are categorized by the year they were filed rather than the year they were resolved. “No merits disposition” includes petitions that were dismissed by the parties or mooted by action of the parties or the lower court.
Posted by Nick Boyd.