In Re National Football League Players Concussion Injury Litigation

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 14-8103

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IN RE: NATIONAL FOOTBALL

LEAGUE PLAYERS

CONCUSSION INJURY LITIGATION

Objecting Class Members: Sean

Morey; Alan Faneca; Ben Hamilton;

Robert Royal; Roderick Cartwright; Jeff

Rohrer; Sean Considine,

Petitioners

________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-14-cv-00029)

District Judge: Honorable Anita B. Brody

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Argued September 10, 2014

Before: AMBRO, SMITH, and JORDAN,

Circuit Judges

(Opinion Filed: December 24, 2014)

Michele D. Hangley

William T. Hangley

Hangley, Aronchick, Seagl, Pudlin & Schiller

One Logan Square

18th & Cherry Streets, 27th Floor

Philadelphia, PA 19103

Steven F. Molo [ARGUED]

Thomas J. Wiegand, Esquire

Martin Totaro,

MoloLamken

540 Madison Avenue

New York, NY 10022

Eric R. Nitz

Martin Totaro

MoloLamken

600 New Hampshire Avenue, N.W.

The Watergate

Washington, DC 20037

Linda S. Mullenix

2305 Barton Creek Boulevard, Unit 2

Austin, TX 78735

Counsel for Petitioners

Bruce A. Birenboim [ARGUED]

Brad S. Karp

Theodore V. Wells, Jr., Esquire

2

Paul, Weiss, Rifkind, Wharton & Garrison

1285 Avenue of the Americas

New York, NY 10019

Beth A. Wilkinson

Paul, Weiss, Rifkind, Wharton & Garrison

2001 K Street, N.W., Suite 600

Washington, DC 20006

Dana B. Klinges

Duane Morris

30 South 17th Street, United Plaza

Philadelphia, PA 19103

David R. Buchanan, Esquire

Diogenes P. Kekatos, Esquire

Christopher A. Seeger, Esquire

Seeger Weiss

77 Water Street, 26th Floor

New York, NY 10005

Samuel Issacharoff [ARGUED]

New York University Law School, Room 411J

40 Washington Square South

New York, NY 10012

David D. Langfitt

Gene Locks

Locks Law Firm

601 Walnut Street

The Curtis Center, Suite 720 East

3

Philadelphia, PA 19106

Arnold Levin

Levin, Fishbein, Sedran & Berman

510 Walnut Street, Suite 500

Philadelphia, PA 19106

Steven M. Marks

Mitrani, Rynor, Adamsky & Toland

1200 Weston Road, Penthouse

Weston, FL 33326

Dianne M. Nast

NastLaw

1101 Market Street, Suite 2801

Philadelphia, PA 19107

Stephen F. Rosenthal

Podhurst Orseck

25 West Flager Street, Suite 800

Miami, FL 33130

Sol H. Weiss

Anapol Schwartz

1710 Spruce Street

Philadelphia, PA 19103

Counsel for Respondents

Alan B. Morrison

George Washington University

2000 H Street, N.W.

4

Washington, DC 20052

Scott L. Nelson

Allison M. Zieve

Public Citizen Litigation Group

1600 20th Street, N.W.

Washington, DC 20009

Amicus Counsel for Petitioners

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OPINION OF THE COURT

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SMITH, Circuit Judge.

Thousands of retired professional football players filed

suit against the National Football League and various other

defendants alleging primarily that the defendants failed to

take reasonable actions to protect players from the risks

associated with concussive and sub-concussive head injuries.

The cases were consolidated before the U.S. District Court for

the Eastern District of Pennsylvania. On July 7, 2014, the

District Court issued an order that “preliminarily approved” a

proposed class-action settlement agreement and

“conditionally certified for settlement purposes only” the

settlement class and subclasses. Petitioners, seven retired

professional football players who object to the proposed

settlement agreement and class certification, filed a Federal

Rule of Civil Procedure 23(f) petition for permission to

appeal the District Court’s July 7, 2014 order.

5

At issue in this request for interlocutory review is the

nature of this Court’s jurisdiction under Rule 23(f). Because

the District Court’s order was not an “order granting or

denying class-action certification” under the plain text of the

rule, we have dismissed the petition.1

I.

Plaintiffs are retired professional football players who

played in a member club of the National Football League

(“NFL”) and are not seeking active employment as players

with any member club. Beginning in July 2011, retired

professional football players began filing lawsuits alleging

that Defendants NFL and NFL Properties, LLC (collectively

“NFL Defendants”) failed to take reasonable actions to

protect players from the chronic risks posed by concussive

and sub-concussive head injuries.2 In January 2012, after

more than 5,000 retired professional football players brought

1

On September 11, 2014, we entered the following Order:

“The foregoing Petition of Objecting Class Members pursuant

to Federal Rule of Civil Procedure 23(f) for Leave to Appeal

from the District Court’s Order granting Settlement Class

Certification is denied. The Court will issue an Opinion in

this matter at a later time.” This Opinion provides the

rationale for our Order.

2

Various plaintiffs also brought suit against a helmet

manufacturer, Riddell, Inc., and several of its affiliated

entities (collectively “Riddell Defendants”). The Riddell

Defendants are not parties to the class-action settlement at

issue in this pending Rule 23(f) petition.

6

suit, the Judicial Panel on Multidistrict Litigation

consolidated and transferred all pending cases to the U.S.

District Court for the Eastern District of Pennsylvania for

inclusion in coordinated or consolidated pretrial proceedings.

Plaintiffs and the NFL Defendants (collectively “the

parties”) negotiated the terms of a settlement during a court-

ordered mediation in the summer of 2013.3 Plaintiffs filed

their class-action complaint on January 6, 2014 and sought an

order: (1) granting preliminary approval of the proposed

class-action settlement agreement; (2) conditionally certifying

a settlement class and subclasses; (3) appointing co-lead

counsel, class counsel, and subclass counsel; (4) approving

the dissemination of class notice; (5) scheduling a fairness

hearing; and (6) staying claims as to the NFL Defendants and

enjoining proposed settlement class members from pursuing

related lawsuits. In re Nat’l Football League Players’

Concussion Injury Litig., No. 2:12-md-02323-AB, Dkt. 5634

(E.D. Pa. Jan. 6, 2014).

On January 14, 2014, the District Court denied the

parties’ motion without prejudice. The District Court’s initial

denial was based on its primary concern that “not all Retired

NFL Football Players who ultimately receive a Qualifying

Diagnosis or their related claimants will be paid.” In re Nat’l

Football League Players’ Concussion Injury Litig., 961 F.

3

On July 8, 2013, the District Court directed the parties to

mediation before a retired district judge. On August 29,

2013, the parties signed a term sheet incorporating the

principal terms of a settlement.

7

Supp. 2d 708, 715 (E.D. Pa. 2014). The District Court

reasoned that the proposed $670,000,000 monetary fund may

be inadequate to cover the likely amount of the awards to the

class members. Id. at 715–16.

The parties renegotiated the proposed class-action

settlement and, on June 25, 2014, filed another motion for

preliminary approval and conditional certification of a revised

settlement agreement. The revised settlement agreement

“guaranteed payment of all valid claims” but put in place

“additional measures designed to prevent fraudulent claims.”

In re Nat’l Football League Players’ Concussion Injury

Litig., No. 2:12-md-02323-AB, Dkt. 6073-5 at 23–24 (E.D.

Pa. June 25, 2014).4 The parties also proposed that a

“nationwide Settlement Class” be “conditionally certified, for

4

The revised settlement created several avenues for

compensation: (a) a Baseline Assessment Program Fund of up

to $75,000,000 to offer retired NFL Football Players one

baseline neuropsychological and neurological examination to

identify any neurological defects, id. at 18–21; (b) an

uncapped Monetary Awards Fund to provide payment of cash

Monetary Awards and Derivative Claimant Awards to Retired

NFL Football Players diagnosed with a Qualifying Diagnosis

and their Representative and Derivative Claimants, id. at 21–

27; and (c) a $10,000,000 Education Fund to support

education about cognitive impairment, safety, and injury

prevention with regard to football players, id. at 27.

8

settlement purposes only” and include three types of

claimants and two subclasses.5 Id. Dkt. 6073-1 at 4, 5.

5

The three types of claimants include:

(1) “All living NFL Football Players who, prior

to the date of the Preliminary Approval and

Class Certification Order, retired, formally or

informally, from playing professional football

with the NFL or any Member Club, including

American Football League, World League of

American Football, NFL Europe League and

NFL Europa League players, or were formerly

on any roster, including preseason, regular

season, or postseason of any such Member Club

or league and who no longer are under contract

to a Member Club and are not seeking active

employment as players with any Member Club,

whether signed to a roster or signed to any

practice squad, developmental squad, or taxi

squad of a Member Club (‘Retired NFL

Football Players’);”

(2) “Authorized representatives, ordered by a

court or other official of competent jurisdiction

under applicable state law, of deceased or

legally incapacitated or incompetent Retired

NFL Football Players (‘Representative

Claimants’); and”

(3) “Spouses, parents, children who are

dependents or any other person who properly

9

under applicable state law assert the right to sue

independently or derivatively by reason of their

relationship with a Retired NFL Football Player

or deceased Retired NFL Football Player

(‘Derivative Claimants’).”

Id. at 4.

The two subclasses of the Settlement Class consist of

the following:

(1) “Retired NFL Football Players who were

not diagnosed with a Qualifying Diagnosis prior

to the date of the Preliminary Approval and

Class Certification Order and their

Representative Claimants and Derivative

Claimants; and,”

(2) “Retired NFL Football Players who were

diagnosed with a Qualifying Diagnosis prior to

the date of the Preliminary Approval and Class

Certification Order and their Representative

Claimants and Derivative Claimants, and the

Representative Claimants of deceased Retired

NFL Football Players who were diagnosed with

a Qualifying Diagnosis prior to death or who

died prior to the date of the Preliminary

Approval and Class Certification Order and

who received a post-mortem diagnosis of

Chronic Traumatic Encephalopathy.”

Id. at 5 (footnote omitted).

10

On July 2, 2014, seven retired NFL football players

(collectively “Objectors”) filed an objection to the June 25,

2014 revised class-action settlement agreement. Objectors

argued that the revised settlement agreement could not be

certified under Rule 23 because it bargained away, without

adequate representation, the rights of three distinct groups of

former players: (1) those suffering from, or displaying

symptoms consistent with, chronic traumatic encephalopathy

who did not die before preliminary approval; (2) those who

have suffered or are at risk of suffering a stroke or non-

football traumatic brain injury; and (3) those who played in

NFL Europe. Additional defects raised by Objectors include

that: the proposed notice was false and misleading; the claims

process was so onerous and confusing that it raised due

process and fairness concerns; the settlement agreement was

not the product of arm’s length negotiation; and that class

counsel conducted no discovery by which to evaluate the

strength of the claims and defenses.

On July 7, 2014, the District Court issued an order and

memorandum in which the “proposed Class Action

Settlement Agreement [was] preliminarily approved” and

“[t]he Settlement Class and Subclasses [were] conditionally

certified for settlement purposes only.” In re Nat’l Football

League Players’ Concussion Injury Litig., 301 F.R.D. 191,

197, 204 (E.D. Pa. 2014). In the District Court’s supporting

Because we do not address the merits of

Objectors’ arguments, we decline to discuss whether

the three types of claimants and subclasses satisfy the

applicable Rule 23(a) and (b) requirements.

11

memorandum, it explained that Rule 23(e)(2) requires court

approval of the settlement of a class action. A “Preliminary

Approval of the Proposed Settlement” was set forth by the

District Court as:

“typically proceed[ing] in two stages. At the first

stage, the parties submit the proposed settlement

to the court, which must make a preliminary

fairness evaluation. If the proposed settlement is

preliminarily acceptable, the court then directs

that notice be provided to all class members who

would be bound by the proposed settlement in

order to afford them an opportunity to be heard

on, object to, and opt out of the settlement. See

Fed. R. Civ. P. 23(c)(3), (e)(1), (e)(5). At the

second stage, after class members are notified of

the settlement, the court holds a formal fairness

hearing where class members may object to the

settlement. See Fed. R. Civ. P. 23(e)(1)(B). If

the court concludes that the settlement is ‘fair,

reasonable and adequate,’ the settlement is given

final approval. Fed. R. Civ. P. 23(e)(2). At this

time, Plaintiffs request that I grant preliminary

approval.”

Id. at 197. After conducting a preliminary review of the

settlement agreement, the District Court proceeded to analyze

the parties’ request for “conditional certification” of the

proposed class.

12

The District Court premised its analysis of

“Conditional Certification of the Settlement Class and

Subclasses” with the following standard of review:

“A court must determine whether the proposed

Settlement Class and Subclasses satisfy the

requirements of Federal Rule of Civil Procedure

23. See Sullivan v. DB Invs., Inc., 667 F.3d 273,

296 (3d Cir. 2011) (en banc). At the preliminary

approval stage, a court may conditionally certify

the class for purposes of providing notice,

leaving the final certification decision for the

subsequent fairness hearing. See Manual for

Complex Litigation (Fourth) § 21.632 (2004).”

Id. at 199–200.

For the purposes of effecting the proposed Rule 23(e)

settlement process, the District Court appointed co-lead class

counsel, class counsel, and subclass counsel, approved the

dissemination of class notice, and scheduled a fairness

hearing for November 19, 2014. Id. at 204–07. The District

Court also stayed any matters as they related to the NFL

Defendants and enjoined proposed class members from

pursuing any related lawsuits. Id. at 203–204, 207. On July

21, 2014, Objectors filed this petition for leave to appeal from

the District Court’s July 7, 2014 order.

II.

The District Court had jurisdiction under 28 U.S.C. §§

1331 and 1332 and is administering the coordinated or

13

consolidated pretrial proceedings under 28 U.S.C. § 1407. A

“party asserting jurisdiction bears the burden of showing that

at all stages of the litigation the case is properly before the

federal court.” Samuel-Bassett v. KIA Motors Am., Inc., 357

F.3d 392, 396 (3d Cir. 2004). Whether we have jurisdiction

under 28 U.S.C. § 1292(e) and Federal Rule of Civil

Procedure 23(f) to review “an order granting or denying

class-action certification” is the issue before us. A “‘federal

court always has jurisdiction to determine its own

jurisdiction.’” White-Squire v. U.S. Postal Serv., 592 F.3d

453, 456 (3d Cir. 2010) (quoting United States v. Ruiz, 536

U.S. 622, 628 (2002)). “We generally exercise plenary

review over jurisdictional questions.” Mala v. Crown Bay

Marina, Inc., 704 F.3d 239, 247 (3d Cir. 2013). “If we

determine that we do not have jurisdiction over this appeal,

our only function remaining will be that of announcing the

fact and dismissing the case.” In re Fosamax (Alendronate

Sodium) Products Liab. Litig. (No. II), 751 F.3d 150, 155 (3d

Cir. 2014) (alternations, citations, and internal quotation

marks omitted).

III.

Objectors raise various substantive challenges to the

merits of the District Court’s July 7, 2014 order. Before we

can consider the merits of any appeal, it is first necessary to

determine whether we have appellate jurisdiction. A federal

appellate court generally has jurisdiction over appeals only

from the entry of a final judgment by a district court, subject

to certain limited exceptions. See 28 U.S.C. § 1291;

Cunningham v. Hamilton Cnty., 527 U.S. 198, 200 (1999).

Such is the limited nature of federal jurisdiction that “we have

14

an independent duty to satisfy ourselves of our appellate

jurisdiction regardless of the parties’ positions.” In re

Fosamax (Alendronate Sodium) Prods. Liab. Litig. (No. II),

751 F.3d 150, 155 (3d Cir. 2014) (quoting Papotto v.

Hartford Life & Accident Ins. Co., 731 F.3d 265, 269 (3d Cir.

2013)) (internal quotation marks omitted). As aptly explained

by Chief Justice Warren:

“It is axiomatic, as a matter of history as well as

doctrine, that the existence of appellate

jurisdiction in a specific federal court over a

given type of case is dependent upon authority

expressly conferred by statute. And since the

jurisdictional statutes prevailing at any given

time are so much a product of the whole history

of both growth and limitation of federal-court

jurisdiction since the First Judiciary Act, 1 Stat.

73, they have always been interpreted in the light

of that history and of the axiom that clear

statutory mandate must exist to found

jurisdiction.”

Carroll v. United States, 354 U.S. 394, 399 (1957).

There are various exceptions to the general principle

that appellate jurisdiction is limited to final orders. See, e.g.,

28 U.S.C. § 1292(a) (granting appellate jurisdiction over

certain types of interlocutory orders); 28 U.S.C. § 1292(b)

(allowing a district judge to certify an order involving a

“controlling question of law as to which there is substantial

ground for difference of opinion” and where “immediate

appeal from the order may materially advance the ultimate

15

termination of the litigation”); Fed. R. Civ. P. 54(b)

(permitting a district court to certify “a final judgment as to

one or more, but fewer than all, claims or parties” for

appellate review); Cohen v. Beneficial Indus. Loan Corp., 337

U.S. 541, 546 (1949) (permitting immediate appeal of an

otherwise non-final collateral order under certain

circumstances).

The very narrowness of appellate jurisdiction is

designed to discourage piecemeal litigation. Camesi v. Univ.

of Pittsburgh Med. Ctr., 729 F.3d 239, 244 (3d Cir. 2013).

Limited appellate jurisdiction prevents parties from

employing tactics to “obtain review of discovery orders,

evidentiary rulings, or any of the myriad decisions a district

court makes before it reaches the merits of an action.” Id. at

245–46.

A.

Rule 23(f) provides in relevant part: “A court of

appeals may permit an appeal from an order granting or

denying class-action certification under this rule if a petition

for permission to appeal is filed with the circuit clerk within

14 days after the order is entered.” Fed. R. Civ. P. 23(f).

Before the enactment of Rule 23(f), it was well settled that a

“class certification decision, per se, is not an appealable final

order under 28 U.S.C. § 1291.” Sullivan v. Pacific Indem.

Co., 566 F.2d 444, 445 (3d Cir. 1977). Appellate courts were

generally reluctant to grant interlocutory review of class

certification orders. Courts that did grant such review used

various devices, such as a writ of mandamus under the All

Writs Act, 28 U.S.C. § 1651(a), see In re Rhone-Poulenc

16

Rorer, Inc., 51 F.3d 1293 (7th Cir. 1995), or exercised

jurisdiction after a district court certified the non-final,

interlocutory order for appellate review pursuant to 28 U.S.C.

§ 1292(b), see Castano v. American Tobacco Co., 84 F.3d

734 (5th Cir. 1996).

Yet courts were confronted by the reality that an

extraordinary writ is just that, extraordinary. See In re Sch.

Asbestos Litig., 977 F.2d 764, 772 (3d Cir. 1992), as amended

(Oct. 8, 1992) (“As the adjective ‘extraordinary’ implies

however, courts of appeals must be chary in exercising that

power: ‘[M]andamus must not be used as a mere substitute

for appeal.’ (quoting Roche v. Evaporated Milk Ass’n, 319

U.S. 21, 26 (1943))). Accordingly, even courts granting writs

of mandamus did so “with an uneasiness that their actions

stretched the writ’s traditionally restrictive parameters.”

Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259

F.3d 154, 163 (3d Cir. 2001), as amended (Oct. 16, 2001).

And as to § 1292(b) interlocutory appeals, these were rare

because a district court must first certify an order for

appellate review under limited parameters. 28 U.S.C.

§ 1292(b). Specifically, a district court would need to

conclude that the “order involves a controlling question of

law as to which there is substantial ground for difference of

opinion” and “that an immediate appeal from the order may

materially advance the ultimate termination of the litigation.”

Id.

It was not until the Seventh Circuit’s decision in In re

Rhone-Poulenc Rorer, Inc. to exercise mandamus that the

Advisory Committee on Civil Rules began to seriously

explore reforms to appellate review and federal jurisdiction

17

over class-action certification decisions. See Robert H.

Klonoff, The Decline of Class Actions, 90 Wash. U. L. Rev.

729, 739 (2013). In promulgating Rule 23(f), the Advisory

Committee exercised its authority under 28 U.S.C. § 1292(e)

and sought to “[e]xpan[d] . . . opportunities to appeal.” Fed.

R. Civ. P. 23(f) advisory committee’s notes (1998

amendments).6 The decision whether to allow appeal from an

6

When considering the meaning of the federal rules, “it is the

Rule itself, not the Advisory Committee’s description of it

that governs.” Wal–Mart Stores, Inc. v. Dukes, 131 S. Ct.

2541, 2559 (2011). However, the Advisory Committee’s

notes on the federal rules are “of weight” in interpreting the

meaning of the rules. Torres v. Oakland Scavenger Co., 487

U.S. 312, 316 (1988) (explaining that the Advisory

Committee’s notes on Rule 3 “although not determinative,”

were “of weight” in the Court’s “construction of the rule”);

Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444

(1946) (“The fact that this Court promulgated the rules as

formulated and recommended by the Advisory Committee

does not foreclose consideration of their validity, meaning or

consistency. But in ascertaining their meaning the

construction given to them by the Committee is of weight.”).

In Newton v. Merrill Lynch, Pierce, Fenner & Smith,

Inc., 259 F.3d 154, 163 (3d Cir. 2001), Judge Scirica

grounded his analysis of when we may grant a Rule 23(f)

appeal on the Advisory Committee’s notes. Judge Scirica

stated: “The Committee Note is always a good starting point.”

Id. Similarly, Justice Scalia cited extensively to the Advisory

Committee’s notes in Wal–Mart Stores, Inc. v. Dukes, 131 S.

Ct. at 2558–59, when discussing whether a Rule 23(b)(2)

18

order granting or denying certification, however, was left to

the “sole discretion of the court of appeals.” Id.

Subdivision (f) was added to Rule 23 in 1998 to

provide a form of interlocutory review over class-action

certification decisions. The reason for adding subdivision (f)

was that the class-action “certification decision is often

decisive as a practical matter.” Id. The Judicial Conference’s

Committee on Rules of Practice and Procedure (“Standing

Committee”) explained:

“Denial of certification can toll the death knell in

actions that seek to vindicate large numbers of

individual claims. Alternatively, certification can

exert enormous pressure to settle. Because of the

difficulties and uncertainties that attend some

certification decisions—those that do not fall

within the boundaries of well-established

practice—the need for immediate appellate

review may be greater than the need for appellate

review of many routine civil judgments.”

1997 Report at 18–19.7 The Advisory Committee’s notes to

the 1998 Amendments to Rule 23(f) provide:

class permitted individualized claims for damages. We

consider the Advisory Committee’s summary of the

provisions of Rule 23(f) illuminating for purposes of our

analysis, giving it such “weight” as is appropriate.

7

See Report of the Judicial Conference Committee on Rules

of Practice and Procedure to the Chief Justice of the United

19

“Appeal from an order granting or denying class

certification is permitted in the sole discretion of

the court of appeals. No other type of Rule 23

order is covered by this provision. The court of

appeals is given unfettered discretion whether to

permit the appeal, akin to the discretion exercised

by the Supreme Court in acting on a petition for

certiorari.”

Fed. R. Civ. P. 23(f) advisory committee’s notes (1998

amendments) (emphasis added).8

States and Members of the Judicial Conference of the United

States 18 (September 1997) (hereinafter “1997 Report”),

http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Re

ports/ST9-1997.pdf (last visited Nov. 18, 2014).

The Rules Enabling Act of 1934, 28 U.S.C. § 2071–

2077, authorizes the Supreme Court to promulgate rules of

procedure. The Supreme Court has delegated the oversight of

the rulemaking process to the Judicial Conference,

specifically the Standing Committee. The Standing

Committee has five advisory rules committees, including the

Advisory Committee on Civil Rules. See How the

Rulemaking Process Works,

http://www.uscourts.gov/RulesAndPolicies/rules/about-

rulemaking/how-rulemaking-process-works.aspx (last visited

Nov. 18, 2014).

8

As a comparison to the writ of certiorari, 28 U.S.C. § 1254,

the Supreme Court separates the question of what the court

20

In light of this drafting history, parsing the text of Rule

23(f) is fundamental to understanding the nature of the

interlocutory review contemplated by this provision. To

begin, Rule 23(f) is premised on the notion that a court of

appeals’ grant of a petition for interlocutory review is

discretionary. The rule states that a “court of appeals may

permit an appeal.” Fed. R. Civ. P. 23(f) (emphasis added).

References in the Advisory Committee’s notes that appeals

are in the “sole discretion of the court of appeals” and that the

court of appeals is given “unfettered discretion whether to

permit the appeal” support this reading. Fed. R. Civ. P. 23(f)

advisory committee’s notes (1998 amendments).

In Newton v. Merrill Lynch, Pierce, Fenner & Smith,

Inc., we recognized the discretionary nature of our review:

Rule 23(f) “provide[s] for interlocutory appeal by permission

of the court of appeals” and “permits the appellate courts to

develop a coherent body of jurisprudence in this area.” 259

F.3d at 162. There are five flexible principles from the

Advisory Committee’s note that may guide our exercise of

discretionary jurisdiction.9 Id. at 164–65. The Advisory

“may review” from what the Court “actually will choose to

review,” which is a power that is “sparingly exercis[ed].” See

Camreta v. Greene, 131 S. Ct. 2020, 2033 (2011) (emphasis

added) (quoting Forsyth v. Hammond, 166 U.S. 506, 514

(1897)) (exempting “one special category of cases from [the

Court’s] usual rule against considering prevailing parties’

petitions”).

9

Those principles are: “(1) when denial of certification

effectively terminates the litigation because the value of each

21

Committee’s taxonomy is not exclusive, however, and is not

intended to “circumscribe our discretion; there may also be

other valid reasons for the exercise of interlocutory review.”

Id. at 165. Accordingly, Newton makes clear that the

beginning text of Rule 23(f), which provides that “[a] court of

appeals may in its discretion permit an appeal,” Fed. R. Civ.

P. 23(f) (emphasis added), was itself a delegation of authority

to the courts of appeals to determine when to grant a Rule

23(f) motion and to develop a jurisprudence to guide such

determinations.

What Newton and its progeny do not discuss, and what

this Court has yet to address, is the type of order this Court

may review. The plain text of Rule 23(f) provides the courts

of appeals with discretion to permit an appeal from a specific

type of order—that is, “from an order of a district court

granting or denying class-action certification.” Fed. R. Civ.

P. 23(f) (emphasis added). The Advisory Committee’s notes

to the 1998 Amendments to Rule 23(f) explain: “No other

plaintiff’s claim is outweighed by the costs of stand-alone

litigation; (2) when class certification places inordinate or

hydraulic pressure on defendants to settle, avoiding the risk,

however small, of potentially ruinous liability; . . . (3) when

an appeal implicates novel or unsettled questions of law; in

this situation, early resolution through interlocutory appeal

may facilitate the orderly development of the law,” id. at 164;

(4) when the district court’s “ruling on class certification is

likely erroneous,” id. (citation and internal quotation marks

omitted); or (5) when review would “facilitate development

of the law on class certification,” id. at 165.

22

type of Rule 23 order is covered by this provision.” Fed. R.

Civ. P. 23(f) advisory committee’s notes (1998 amendments).

There is only one subdivision within Rule 23 governing class-

action certification orders: Rule 23(c).10 In this way, the text

of Rule 23(f) inextricably ties the type of order appealable to

Rule 23(c).11

10

Rule 23(c)(1) governs a class-action certification order and

has three relevant clauses:

“(A) Time to Issue. At an early practicable time after a

person sues or is sued as a class representative, the court

must determine by order whether to certify the action as a

class action.

(B) Defining the Class. Appointing Class Counsel. An

order that certifies a class action must define the class and

the class claims, issues, or defenses, and must appoint

class counsel under Rule 23(g).

(C) Altering or Amending the Order. An order that grants

or denies class certification may be altered or amended

before final judgment.”

Fed. R. Civ. P. 23(c).

11

As explained in detail below, it is entirely possible for a

district court to be presented with an uncertified settlement-

only class that would present both class-action certification

issues under Rule 23(a), (b), and (c) and settlement approval

issues under Rule 23(e). Rule 23(e), which governs class-

action settlements, voluntary dismissals, or compromises, see

infra note 15, “was designed to function as an additional

23

When Rule 23(f) was enacted in 1998, Rule 23(c)

permitted a district court to “conditionally certify” a proposed

class. In 2003, concerned that district courts were

conditionally certifying putative class actions without

undertaking a thorough analysis of the Rule 23(a) and (b)

certification requirements, the Supreme Court and Congress

deleted the portion of Rule 23(c)(1) that provided that class

certification “may be conditional.” Fed. R. Civ. P. 23(c)

advisory committee’s notes (2003 amendments).12 The

Advisory Committee’s notes directed that “[a] court that is

not satisfied that the requirements of Rule 23 have been met

should refuse certification until they have been met.” Id.

Rule 23(c)(1) was also altered to “require that the

determination whether to certify a class” be made “at an early

practicable time,” rather than “as soon as practicable.” Id.

(internal quotation marks omitted). This change was made

because district courts may need time “to gather information

necessary to make the certification decision.” Id. The other

notable change within Rule 23(c)(1) was with relation to the

requirement, not a superseding direction, for the ‘class action’

to which Rule 23(e) refers.” Amchem, 521 U.S. at 621

(emphasis added).

12

The process to amend or enact a new federal rule of civil

procedure is extensive and subject to multiple levels of

review by: the Advisory Committee on Civil Rules, the

Judicial Conference’s Committee on Rules of Practice and

Procedure, public commenters, the Judicial Conference of the

United States, the Supreme Court, and Congress. Amchem,

521 U.S. at 620 (citing 28 U.S.C. §§ 2073, 2074).

24

“provision that permits alteration or amendment of an order

granting or denying class certification.” Id. The 2003

Amendments changed the “cut-off point” to alter a class-

action certification order “at final judgment rather than ‘the

decision on the merits’” in order to avoid “the possible

ambiguity in referring to ‘the decision on the merits.’” Id.

This ambiguity stemmed from the reality that after

determining liability and in analyzing a remedy, there may be

“the need to amend the class definition or subdivide the

class.” Id.

Under the present structure of Rule 23(c), we made

clear in Hohider v. United Parcel Service, Inc. that a district

court was no longer permitted to issue a “conditional

certification.” 574 F.3d 169, 202 (3d Cir. 2009).13 In

Hohider, we analyzed a litigation class seeking certification

over “pattern-or-practice claims of discrimination under Title

VII of the Civil Rights Act of 1964.” Id. at 173–74. After

13

We exercised jurisdiction in Hohider pursuant to 28 U.S.C.

§ 1292(e) and Rule 23(f). 574 F.3d at 175. In that case, the

district court issued an order granting in part and denying in

part the plaintiff’s motion for certification. Hohider v. United

Parcel Serv., Inc., 243 F.R.D. 147, 245 (W.D. Pa. 2007) rev’d

and remanded, 574 F.3d 169 (3d Cir. 2009). Unlike here, the

order in Hohider actually certified a class (albeit not the

entire proposed class). Accordingly, that order was

unquestionably issued pursuant to Rule 23(c)(1). Id.;

Hohider, 574 F.3d at 174–75. Because of that, we proceeded

to review the class certification order for abuse of discretion.

Hohider, 574 F.3d at 175.

25

analyzing the merits-based claims that could be subject to

certification, the trial court “determined plaintiffs’ claims for

compensatory and punitive damages could not be certified for

classwide treatment under Rule 23(b)(2).” Id. at 175. The

trial court, however, “withheld judgment on plaintiffs’ back-

pay claims” reasoning that there could be “a protocol for

identifying those monetary damages.” Id. We rejected such

an approach. We held that the trial court’s “conditional

certification of plaintiffs’ request for back pay was improper”

because “[a] trial court must ‘make a definitive determination

that the requirements of Rule 23 have been met before

certifying a class.’” Id. at 202 (quoting In re Hydrogen

Peroxide Antitrust Litig., 552 F.3d 305, 320 (3d Cir. 2008)).

Our ruling was based on the “2003 amendments to Rule 23

[that] ‘eliminated the language that had appeared in

Rule 23(c)(1) providing that a class certification ‘may be

conditional.’” Id. (quoting In re Hydrogen Peroxide, 552

F.3d at 319).14

14

The Second Circuit has taken a different approach with

regard to a district court’s use of the “conditional

certification” terminology. In Denney v. Deutsche Bank AG,

the Court held that district courts were still permitted to issue

a conditional certification of a class for settlement purposes

only. 443 F.3d 253, 269–70 (2d Cir. 2006). The Denney

Court reasoned that the real purpose of amending Rule 23(c)

was not to eliminate “conditional certification” but, instead,

“to ensure that courts understood their obligations when

certifying a class.” Id. at 270. The Court concluded that in

light of this intent,

26

“conditional certification survives the 2003

amendment to Rule 23(c)(1). Before

certification is proper for any purpose—

settlement, litigation, or otherwise—a court

must ensure that the requirements of Rule 23(a)

and (b) have been met. These requirements

should not be watered down by virtue of the

fact that the settlement is fair or equitable. But

if the requirements of Rule 23(a) and (b) are

met, certification may be granted, conditionally

or unconditionally.”

Id. (citation omitted) (footnote omitted).

Our opinion in Hohider did not reference Denney. The

cases are factually distinguishable in that Hohider dealt with a

litigation class involving some classes that had been certified

and thus could be subject to interlocutory review under Rule

23(f). Although we were not presented in Hohider with the

same jurisdictional question we consider here, we see no

reason to question its logic as applied to a settlement class. In

our view, there is no support for conditional certification

where the Advisory Committee wrote that the “provision that

a class certification ‘may be conditional’ is deleted” and that

“[a] court that is not satisfied that the requirements of Rule 23

have been met should refuse certification until they have been

met.” The 2003 Amendments to Rule 23(c) indicate that a

district court must make a definitive certification

determination. This determination is not necessarily final,

given the availability for revisions to a class certification

order up to the time the district court issues a final judgment.

27

In short, Rule 23(f) provides the court of appeals broad

discretion in granting interlocutory review, but only as to one

type of Rule 23 order: a class-action certification order issued

pursuant to Rule 23(c)(1).

B.

The issue of class certification pursuant to Rule

23(c)(1) may also be relevant to the treatment of class-action

settlements under Rule 23(e), which provides the procedures

applicable to proposed settlements, voluntary dismissals, or

compromises.15 The approval of a class-action settlement is

See Fed R. Civ. P. 23(c)(1)(C). Yet, a district court calling its

certification order “conditional” or “tentative” simply cannot

be making a firm determination that the class satisfies the

requirements of Rule 23(a) and (b). Given this interplay, we

cannot agree with the Second Circuit’s interpretation of the

2003 Amendments to Rule 23(c) and reject the premise that

“conditional certification” is an order subject to review under

Rule 23(f).

15

Rule 23(e) of the Federal Rules of Civil Procedure provides

in full:

“Settlement, Voluntary Dismissal, or

Compromise. The claims, issues, or defenses of

a certified class may be settled, voluntarily

dismissed, or compromised only with the court’s

approval. The following procedures apply to a

proposed settlement, voluntary dismissal, or

compromise:

28

governed by Rule 23(e)(2), which specifically requires that a

(1) The court must direct notice in a

reasonable manner to all class

members who would be bound by

the proposal.

(2) If the proposal would bind class

members, the court may approve it

only after a hearing and on finding

that it is fair, reasonable, and

adequate.

(3) The parties seeking approval must

file a statement identifying any

agreement made in connection with

the proposal.

(4) If the class action was previously

certified under Rule 23(b)(3), the

court may refuse to approve a

settlement unless it affords a new

opportunity to request exclusion to

individual class members who had

an earlier opportunity to request

exclusion but did not do so.

(5) Any class member may object to

the proposal if it requires court

approval under this subdivision (e);

the objection may be withdrawn

only with the court’s approval.”

Fed. R. Civ. P. 23(e).

29

district court approve a settlement agreement only “after a

hearing and on finding that it is fair, reasonable, and

adequate.” Fed. R. Civ. P. 23(e)(2). Thus, when a district

court is presented with a class settlement agreement, the court

must first determine that “the requirements for class

certification under Rule 23(a) and (b) are met, and must

separately ‘determine that the settlement is fair to the class

under [Rule] 23(e).’” Sullivan, 667 F.3d at 319 (quoting In re

Ins. Brokerage Antitrust Litig., 579 F.3d 241, 257 (3d Cir.

2009)). The intent of these procedures is to provide

transparency for class members and authority to the district

court to act as a fiduciary for putative class members by

“guarding the claims and rights of absent class members.”

See Ehrheart v. Verizon Wireless, 609 F.3d 590, 593 (3d Cir.

2010).

What renders these seemingly straight-forward

directives less than clear is the procedural posture presented

when a class-action settlement is reached before the district

court has issued a certification order under Rule 23(c). The

Advisory Committee’s notes to the 2003 Amendments do

contemplate that “the decisions on certification and

settlement” may “proceed simultaneously.” Fed. R. Civ. P.

23(e) advisory committee’s notes (2003 amendments).

Further, even where class certification has already occurred, a

district court’s review of a settlement “may provide an

occasion to review the cogency of the initial class definition.”

Id.

The exact process a district court should follow when

presented with a “settlement class” is not prescribed by Rule

23(e). A settlement class “offers defendants the opportunity

30

to engage in settlement negotiations without conceding any of

the arguments they may have against class certification.

Often . . . the parties never intend to litigate the claims; rather,

from the time plaintiffs file the complaint, the goal on both

sides is to reach a nationwide settlement.” In re Cmty. Bank

of N. Va., 418 F.3d 277, 299 (3d Cir. 2005). Further, a

district court’s management of a settlement class is different

from a litigation class in that the court is acting as fiduciary

“to protect unnamed members of the class.” Ehrheart, 609

F.3d at 593; Sullivan, 667 F.3d at 296. These differences

aside, “the ‘settlement only’ class has become a stock

device.” Amchem, 521 U.S. at 618.

Section 21.632 of the Federal Judicial Center’s

Manual for Complex Litigation (Fourth) explains that the

“[r]eview of a proposed class action settlement generally

involves two hearings.”16 Manual for Complex Litigation

16

Although the Manual for Complex Litigation “offer[s]

helpful suggestions to judges,” Atkins v. Virginia, 536 U.S.

304, 327 (2001), it “does not have the force of law and can

not undermine Supreme Court precedent or the decisions of

this court.” In re Pharmacy Benefit Managers Antitrust

Litig., 582 F.3d 432, 442 (3d Cir. 2009); see also Manual for

Complex Litigation, Introduction (explaining that the Manual

“should not be cited as[] authoritative legal or administrative

policy,” the Federal Judicial Center has “no authority to

prescribe practices for federal judges,” and “[t]he Manual’s

recommendations and suggestions are merely that”).

We address the recommendation of the Manual for

Complex Litigation principally because it was the primary

31

authority relied upon by the District Court in issuing its

July 7, 2014 order. For that reason, the Manual is instructive

only to the extent it informs the kind of order the District

Court purported to issue. But our analysis regarding the

meaning of the Rules themselves is in no way dependent on

the Manual for Complex Litigation. See supra Section A.

Moreover, and in accordance with widespread

experience, reference by appellate courts to the Manual for

Complex Litigation when it is explicitly relied upon by a

district court is commonplace. For example, the Supreme

Court in Gulf Oil Co. v. Bernard ruled that the district court

had abused its discretion in issuing an order imposing a ban

on all communications concerning a class action between

parties or their counsel and any actual or potential class

member who was not a formal party. 452 U.S. 89, 91 (1981).

The district court’s order was based largely on a “Sample

Pretrial Order” contained in the Manual for Complex

Litigation. Id. at 93–94, 93 n.4, 94 n.5. Analyzing the

applicable text of Rule 23(d) governing “Orders in Conduct

of Class Actions,” the Court held that “an order limiting

communications between parties and potential class members

should be based on a clear record and specific findings that

reflect a weighing of the need for the limitation and the

potential interference with the rights of the parties.” Id. at

101. The Supreme Court explicitly rejected the district

court’s adoption “in toto [of] the order suggested by the

Manual for Complex Litigation—on the apparent assumption

that no particularized weighing of the circumstances of the

case was necessary.” Id. at 102–03.

32

This Court has also, and repeatedly, engaged in close

analysis of the Manual for Complex Litigation when it was

the underpinning for a decision this Court was reviewing.

See, e.g., In re Pharmacy Benefit Managers Antitrust Litig.,

582 F.3d 432, 441 (3d Cir. 2009) (vacating the order of a

district court that cited portions of the Manual for Complex

Litigation, analyzing the portions of the order, and concluding

that the Manual references “clearly do[] not have the force of

law and can not undermine [binding authority]”); United

States v. Wecht, 484 F.3d 194, 231 n.41 (3d Cir. 2007), as

amended (July 2, 2007) (criticizing a district judge for

expressly relying on the Manual for Complex Litigation in a

criminal trial and noting that it applies, by its own terms, to

civil litigation). The Manual for Complex Litigation has also

been cited where it provided useful guidance in interpreting

an issue pertaining to class actions. For example, in Marcus

v. BMW of North America, LLC, we referenced general

principles and ideas from the Manual for Complex Litigation

for the proposition that the “ascertainability” standard

applicable to a Rule 23(b)(3) class promotes the “best notice

practicable” under Rule 23(c)(2). 687 F.3d 583, 593 (3d Cir.

2012) (citing Manual for Complex Litigation, § 21.222 (4th

ed. 2004)). And in In re Orthopedic Bone Screw Prods. Liab.

Litig., 246 F.3d 315 (3d Cir. 2001), we cited the Manual for

Complex Litigation as authority regarding the equitable

powers of the court in settlement administration.

In short, our analysis of the District Court’s July 7,

2014 order, the order’s explicit reference to the Manual for

Complex Litigation, and our explanation that the Manual does

not adequately address how an order issued pursuant to Rule

33

§ 21.632 (4th ed. 2004) (hereinafter “Manual for Complex

Litigation”). In the first hearing, or “preliminary fairness

review,” “counsel submit the proposed terms of settlement

and the judge makes a preliminary fairness evaluation.” Id.

In the context of a “preliminary fairness review” of an

uncertified settlement class, § 21.632 provides that “the

certification hearing and preliminary fairness evaluation can

usually be combined.” Id. When combining a certification

and preliminary fairness hearing:

“The judge should make a preliminary

determination that the proposed class satisfies the

criteria set out in Rule 23(a) and at least one of

the subsections of Rule 23(b). See section 21.22.

If there is a need for subclasses, the judge must

define them and appoint counsel to represent

them. The judge must make a preliminary

determination on the fairness, reasonableness,

and adequacy of the settlement terms and must

direct the preparation of notice of the

certification, proposed settlement, and date of the

final fairness hearing.”

Id. (emphasis added).

This case management technique for uncertified

settlement classes makes sense, particularly from a notice

perspective. Rule 23(e)(1) requires the district court to

23(e) relates to Rule 23(c) is analytically consistent with

Bernard and entirely unremarkable.

34

“direct notice in a reasonable manner to all class members

who would be bound by the proposal.” Fed. R. Civ. P.

23(e)(1). The principal purpose of this provision is “to ensure

that absentee class members, for whom a settlement will have

preclusive effect, have an opportunity to review the materials

relevant to the proposed settlement and to be heard or

otherwise take steps to protect their rights before the court

approves or rejects the settlement.” 2 McLaughlin on Class

Actions § 6:17 (10th ed. 2013). This notice can be sent to

putative class members before the district court issues a

certification order or, “[i]n cases in which a litigation class

has already been certified . . . the notice of settlement may

also be sent to . . . opt-outs to give them an opportunity to

rejoin the class.” Id.

The preliminary analysis of a proposed class is

therefore a tool for settlement used by the parties to fairly and

efficiently resolve litigation. In the context of a Rule 23(b)(3)

opt-out class, this affords defendants the opportunity to

determine whether there will be sufficient participation in the

class before certifying the class and dispersing any settlement

fund. This also allows the parties to forgo a trial on the

merits, which often leaves more money for the resolution of

claims.

Arguably, the Manual for Complex Litigation does not

reconcile a “preliminary determination” under Rule 23(e) of

class certification with the elimination of conditional

certification under Rule 23(c). Although the Federal Judicial

Center’s current version of the Manual for Complex

Litigation was published in 2004, it is unclear whether the

drafters had the opportunity to address the nuances between

35

subdivisions (c) and (f) of Rule 23 following the 2003

Amendments.17 Despite that, many district court judges rely,

and rightfully so, on the Manual for Complex Litigation in

managing class actions.

In light of the interplay between subdivision (c), (e),

and (f) of Rule 23, we emphasize that a district court should

be fastidious in its choice of language when making a

“preliminary determination” as recommended by § 21.632.18

17

The dissent quotes our use of the word ‘unclear’ in this

sentence and writes: “What all this [Section 21.632 of the

Manual] has to do with Rule 23(f) ‘is unclear.’” The dissent

rests on this language in its continued attempt to characterize

this opinion as relying on the Manual for Complex Litigation

to interpret the meaning of Rules 23(c) and (f), and how those

Rules relate to Rule 23(e). To repeat, the Manual is not

binding authority. In fact, the Manual is particularly

unhelpful regarding the scope of Rule 23(f) interlocutory

review given that it was published in 2004 and the relevant

amendments to Rule 23(c) took effect December 1, 2003.

18

The dissent characterizes this paragraph and various other

parts of our reasoning as dicta. Broadly stated, dictum is

defined “as ‘a statement in a judicial opinion that could have

been deleted without seriously impairing the analytical

foundations of the holding—that, being peripheral, may not

have received the full and careful consideration of the court

that uttered it.’” In re McDonald, 205 F.3d 606, 612 (3d Cir.

2000) (quoting Sarnoff v. Am. Home Prods. Corp., 798 F.2d

1075, 1084 (7th Cir. 1986)). Being clear about how district

courts can best navigate our holding, to avoid confusion, is

36

To be clear: “conditional certification” should not be a

preferred term of art in this Circuit. District courts should not

couch a ruling as providing “conditional certification” when

they actually intend to issue a certification order at a later

date. Instead, district courts should more appropriately note

that they are conducting a “preliminary determination”

regarding class certification for a settlement class in order to

provide notice to absent class members and that they are

reserving the certification decision for a later date.

Conditional certification rulings are not contemplated under

Rule 23(c)(1) and district courts always have the ability to

not something we regard as peripheral discussion. We

consider it prudent to address the recommendation of the

Manual for Complex Litigation in light of our holding

regarding what type of Rule 23 order is subject to review

under Rule 23(f).

Nor is the application of our holding to the facts in this

case mere dicta. See Seminole Tribe of Fl. v. Florida, 517

U.S. 44, 66 (1996) (explaining that the “well-established

rationale” of a decision is not dicta). The central basis for our

holding is that the review permitted by Rule 23(f) is bound to

and limited by the decision of whether to grant or deny class

certification, as permitted by Rule 23(c). Applying this

principle to the District Court’s order is a necessary predicate

to reaching our conclusion. See Galli v. N.J. Meadowlands

Comm’n, 490 F.3d 265, 274 (3d Cir. 2007) (explaining that

reasoning in excess of what is necessary to reach a conclusion

is dicta).

37

amend and alter an order before final judgment under

Rule 23(c)(1)(C). See Hohider, 574 F.3d at 202; In re

Hydrogen Peroxide Antitrust Litig., 552 F.3d at 320. Courts

wishing to actually make a class-action certification decision

at a preliminary fairness hearing should do so by issuing an

order pursuant to Rule 23(c)(1) and without reference to the

order being “conditional.”

C.

We hold that an interlocutory appeal pursuant to Rule

23(f) permits the court of appeals to review only an “order

granting or denying class-action certification” issued pursuant

to Rule 23(c)(1). An order issued under some other

subdivision of Rule 23, such as a case management order

issued pursuant to Rule 23(e) that “preliminarily” or

“conditionally” addresses class certification but reserves the

class certification determination for a later time, does not

qualify as an “order granting or denying class-action

certification” that is subject to interlocutory review under

Rule 23(f).19 Such is the case before us. We conclude that

the District Court’s July 7, 2014 order that “conditionally

certified” the proposed settlement class and subclasses was

not issued pursuant to Rule 23(c)(1). Instead, the District

Court properly exercised its authority under Rule 23(e) and

19

As always, the substance of a ruling is what matters, not its

label. An order that is for practical purposes a Rule 23(c)(1)

class certification will not avoid appellate review simply

because it is called something else.

38

was managing a class-action settlement agreement as

requested by the parties.

The structure and text of the District Court’s order and

memorandum support this conclusion. Two aspects of the

District Court’s order are telling. First, the District Court

ordered that the “proposed Class Action Settlement

Agreement is preliminarily approved” and that the

“Settlement Class and Subclasses are conditionally certified

for settlement purposes only.” In re Nat’l Football League

Players’ Concussion Injury Litig., 301 F.R.D. at 204

(emphasis added). The order specifically couched review of

the settlement agreement as “preliminary” and the class was

only “conditionally certified for settlement purposes.”

Second, the District Court scheduled a fairness hearing

for November 19, 2014 to “consider comments on and

objections to the proposed Settlement Agreement and to

consider whether: (a) to approve the Settlement Agreement as

fair, reasonable, and adequate, pursuant to Rule 23 of the

Federal Rules of Civil Procedure, (b) to certify the Settlement

Class and Subclasses, and (c) to enter the Final Order and

Judgment as provided in Article XX of the Settlement

Agreement.” Id. at 206–07 (emphasis added). This language

clearly reveals that the District Court regarded its July 7, 2014

order as having not yet reached a Rule 23(c)(1) determination

on class certification.

The notice template attached to the District Court’s

order also made patent that the settlement itself was only

“proposed” and identified the “proposed class

representatives” and their lawyers. Id. at 208, Ex. 1. Had the

39

District Court actually certified the class, the class

representatives would not have been described as “proposed,”

see Fed. R. Civ. P. 23(a)(4); rather, class counsel would have

been appointed outright, see Fed. R. Civ. P. 23(c)(1)(B),

23(g).

Yet ultimately it is the content of the District Court’s

memorandum that is most telling. The District Court began

its discussion of “Conditional Certification of the Settlement

Class and Subclasses” with the following standard of review:

“A court must determine whether the proposed

Settlement Class and Subclasses satisfy the

requirements of Federal Rule of Civil Procedure

23. See Sullivan v. DB Invs., Inc., 667 F.3d 273,

296 (3d Cir. 2011) (en banc). At the preliminary

approval stage, a court may conditionally certify

the class for purposes of providing notice,

leaving the final certification decision for the

subsequent fairness hearing. See Manual for

Complex Litigation (Fourth) § 21.632 (2004).”

In re Nat’l Football League Players’ Concussion Injury

Litig., 301 F.R.D. at 199–200.

The District Court premised its Rule 23(a) and (b)

analysis on the analytical approach suggested by § 21.632 of

the Manual for Complex Litigation.20 The District Court also

20

The District Court cited to our en banc decision in Sullivan

for the proposition that “before approving a settlement

agreement, ‘a district court first must determine that the

40

made clear that its preliminary approval was “for purposes of

providing notice.” Id. The District Court expressly provided

in its memorandum that the proposed settlement class and

subclasses “preliminarily satisf[ied]” the requirements of

Rule 23(a) and (b). Id. at 202. The thoroughness and

precision of the District Judge’s memorandum indicates that

had she actually wished to certify the proposed class and

subclasses, she would have done so and referenced Rule

23(c)(1). We read the District Court’s order and

memorandum as having expertly addressed the management

of a settlement class and no more.

requirements for class certification under Rule 23(a) and (b)

are met.’” 667 F.3d at 296 (quoting In re Pet Foods Prods.

Liab. Litig., 629 F.3d 333, 341 (3d Cir. 2010)). Sullivan does

not address what a district court must do in conducting a

“preliminary fairness hearing” where the district court

reserves its certification ruling for a later date. Further, the

rule from Sullivan is based on the Supreme Court’s decision

in Amchem, a case that did not address the procedural posture

we face here. Amchem held only that for a settlement-only

class “a district court need not inquire whether the case, if

tried, would present intractable management problems,” but

that the “other specifications of [Rule 23(b)(3)] . . . demand

undiluted, even heightened, attention in the settlement

context.” 521 U.S. at 620 (citation omitted). Further,

Amchem was written at a time when conditional certification

was expressly authorized by Rule 23(c); it could not,

therefore, have addressed the procedural posture presented in

this case.

41

Accordingly, the District Court’s July 7, 2014 order

reserved the determination of certification and fairness until

after the November 19, 2014 hearing. The District Court’s

accompanying July 7, 2014 memorandum conducted only a

basic and necessarily contingent analysis—in short, a

“preliminary” analysis—of Rule 23(a) and (b) to determine

whether the proposed approach to settlement and for

providing notice to the putative class members were effective

case management tools.

The District Court did not certify the class. Instead, it

reserved the “rigorous analysis” prescribed by Hydrogen

Peroxide until after the November 19, 2014 fairness hearing,

at which a full record could be developed. We clarify for the

first time for district courts in this Circuit that the Manual for

Complex Litigation’s use of the phrase “conditional

certification” should be avoided. Rather than use the word

“conditional,” courts in a similar procedural posture should

make clear that they are making a “preliminary

determination” on class-action certification for the purpose of

issuing notice of settlement, and that they are reserving the

issuance of a certification order until after a fairness hearing.

The certification order ultimately issued must necessarily be

entered before the district court approves the class settlement,

Sullivan, 667 F.3d at 296, but need not occur before providing

notice under Rule 23(e)(1). Permitting a district court to

manage a settlement class in this manner provides the

flexibility needed to protect absent class members’ interests

and efficiently evaluate the issues of class certification and

approval of a settlement agreement.

42

Objectors disagree with this interpretation of the

District Court’s order and contend that five basic points

govern the analysis of our jurisdiction under Rule 23(f).

None of these points are persuasive.

First, Objectors argue that the District Court need not

issue a “final” class-action certification order for the court of

appeals to have jurisdiction. This focus on a “final” order,

however, misses the point. Rule 23(c)(1)(C) provides that an

“order that grants or denies class certification may be altered

or amended before final judgment.” Thus, all certification

orders issued under Rule 23(c)(1) are as a practical matter

“conditional” so far as they are subject to change before the

district court enters final judgment. This means that a district

court cannot grant “certification on the condition” that a Rule

23(a) or (b) certification requirement is later met. Hohider,

574 F.3d at 202. The District Court premised its analysis on

providing notice to absent class members before issuing an

order on certification or approving the settlement agreement.

Rather than limit Rule 23(f) appeals to “final” orders, our

holding today is simply that a district court must issue an

order pursuant to Rule 23(c)(1) before we have jurisdiction to

conduct interlocutory review pursuant to Rule 23(f).

Objectors’ second point is that Rule 23(f) is intended

to afford an opportunity for prompt correction of a district

court’s error to spare the parties significant litigation or

settlement costs. Here the District Court has yet to commit

any error that we could correct. In fact, the very purpose of

the July 7, 2014 order was to provide putative class members

with notice so that they could meaningfully participate in the

fairness hearing. Reviewing the July 7, 2010 order now

43

would “greatly undermine the policy against piecemeal

litigation.” Camesi, 729 F.3d at 246.

Regarding the issues of litigation and settlement costs,

Objectors erroneously focus on the typical pressures facing a

litigation class rather than a settlement class. In a traditional

litigation class, after a class-action certification order, the

result could “sound the ‘death knell’ of the litigation on the

part of the plaintiffs” or place “hydraulic pressure on

defendants to settle.” Newton, 259 F.3d at 162, 164 (citation

and internal quotation marks omitted). Because the District

Court reserved issuing its class certification order until after

the fairness hearing, we are left with dead silence rather than

a death knell. Moreover, there can be no application of

hydraulic pressure where there has been no application of

force at all. Here, NFL Defendants elected to negotiate a

settlement agreement. The District Court’s “preliminary

determination” regarding class certification did not so

pressure NFL Defendants that they were forced to settle the

pending lawsuits.

Third, Objectors cite to the “unfettered discretion”

granted to courts of appeals in permitting a Rule 23(f)

interlocutory appeal. As noted above, this cherry-picked

phrase from the Advisory Committee’s notes to the 1998

Amendments fails to distinguish between the different textual

components of Rule 23(f). Although the word “may” gives

the courts of appeals unfettered discretion, that discretion is

only applicable to appeals “from an order granting or denying

class-action certification.” Fed. R. Civ. P. 23(f).

44

We grant that there is some ambiguity in the 1998

Amendments regarding the type of order that may be subject

to interlocutory review under Rule 23(f). The Advisory

Committee’s notes to the 1998 Amendments to Rule 23(f)

provide:

“The district court, having worked through the

certification decision, often will be able to

provide cogent advice on the factors that bear on

the decision whether to permit appeal. This

advice can be particularly valuable if the

certification decision is tentative. Even to a firm

certification decision, a statement of reasons

bearing on the probably [sic] benefits and costs

of immediate appeal can help focus the court of

appeals decision, and may persuade the

disappointed party that an attempt to appeal

would be fruitless.”

Fed. R. Civ. P. 23(f) advisory committee’s notes (1998

amendments) (emphasis added). References to a “tentative”

versus a “firm certification decision” may indicate to some

that “preliminary” or “conditional” certification decisions are

properly subject to interlocutory review.

Although the Advisory Committee did not revise or

cross reference these comments in the 2003 Amendments to

Rule 23(c), the text of Rule 23(f) did not require such a

revision. Rule 23(f) is tied by reference to “an order granting

or denying class-action certification.” Therefore, an order is

only reviewable under 23(f) once a district judge has actually

issued an order granting or denying class certification under

45

Rule 23(c)(1). As in the game itself, we do not have instant

replay over all aspects of the parties’ progression prior to that

point. Cf. Official Playing Rules of the National Football

League, R. 15, § 9, Art. 5 (2013 ed.) (no jurisdiction to

review an official’s determination as to what down it is).

Accordingly, any “unfettered discretion” held by the

courts of appeals would be applicable to only “an order

granting or denying class certification . . . . No other type of

Rule 23 order is covered by this provision.” Fed. R. Civ. P.

23(f) advisory committee’s notes (1998 amendments)

(emphasis added). Any question of what the Advisory

Committee might have meant when referencing “tentative” is

meaningless considering that “tentative” or “conditional”

class-action certification orders are no longer permitted under

Rule 23(c).

Objectors fourth point is that we should evaluate a

district court’s “ruling on class certification” that is “likely

erroneous.” See Newton, 259 F.3d at 164. This position

presumes that there is a ruling available to analyze, which

there is not. That ruling is destined to be issued now that the

District Court has conducted the November 19, 2014 fairness

hearing. The use of the phrase “likely” in Newton cannot be

read to imply that we should anticipate how a district court

might err based on a Rule 23(e) preliminary determination of

class certification. If such a reading of Newton were given

warrant, courts of appeals could meddle at will in the district

courts’ careful and thoughtful management in reviewing class

settlement agreements.

46

Objectors’ final point also relies on Newton and our

statement that our discretion to grant interlocutory review

may be based on any consideration we deem persuasive. See

id. at 165. This argument continues to misconstrue Newton as

an answer to the open question before us: precisely what

qualifies as an “order granting or denying class-action

certification”? See Fed. R. Civ. P. 23(f). Although we “may

permit an appeal” only from such an order, the discretion

inherent in the word “may” cannot undermine the fact that

Rule 23(f) pertains only to one type of order under Rule 23.

As a final matter, both parties cite to the Eighth

Circuit’s decision in Liles v. Del Campo, 350 F.3d 742 (8th

Cir. 2003), as supporting their respective positions. Objectors

argue that Liles stands for the proposition that an

interlocutory appeal of an order granting preliminary

proposed or “conditional” certification may be permitted

under Rule 23(f). This contention stretches the logic of Liles.

Liles did not address the scope of the court of appeals’

jurisdiction under Rule 23(f). The Eighth Circuit held the

following:

“We conclude that an interlocutory appeal would

be premature in this case. Several steps remain

before the district court finally approves class

certification and any settlement. To permit an

appeal at this stage would unnecessarily delay the

resolution of the litigation and further jeopardize

the limited assets available for resolving the

claims. Permission for an interlocutory appeal of

the conditional class certification should

therefore be denied.”

47

Id. at 746 (emphasis added).

Objectors quote the Liles Court’s statement that an

interlocutory appeal “would be premature in this case,” id.,

and argue that there may be some case presenting a

conditional certification question that would properly be

addressed under Rule 23(f). A reading of the full paragraph,

however, reveals that the Eighth Circuit was hesitant to

review a district court’s order that does not “approve[] class

certification and any settlement.” Id. As in this case, the

Liles litigation involved a “joint motion for preliminary

approval of a settlement agreement and for conditional class

certification” that resulted from settlement negotiations. Id.

at 744. The more sound reading of Liles is that there is

simply nothing for a court of appeals to review under Rule

23(f) before the district court issues a certification order under

Rule 23(c). Objectors’ interpretation of Liles is unpersuasive

and the facts of this case present precisely the same problem,

i.e., that there is nothing to review until the district court

issues its certification order following the fairness hearing.

In sum, the District Court’s order and memorandum

pursuant to Rule 23(e) that provided preliminary approval of

the proposed class “for settlement purposes only” and

explicitly reserved its certification order for a later date was

not a class-action certification order under Rule 23(c).

Accordingly, this Court lacks jurisdiction over Objectors’

petition.

IV.

48

Because the District Court has yet to issue “an order

granting or denying class-action certification,” we have

dismissed the Rule 23(f) petition for lack of jurisdiction by

our Order of September 11, 2014.

49

In re: NFL Players Concussion Injury Litigation

No. 14-8103

_________________________________________________

AMBRO, Circuit Judge, dissenting

Petitioners seek, under Federal Rule of Civil Procedure

23(f), our review of Judge Brody’s “conditional certification”

of a settlement class and subclasses as “preliminarily

satisfy[ing] the requirements of Rule 23.” In re Nat’l

Football League Players’ Concussion Injury Litig., 301

F.R.D. 191, 202 (E.D. Pa. 2014). My colleagues dismiss the

petition for lack of jurisdiction because they deem

“conditional” class-certification orders as no longer proper

under Rule 23(c), the only provision in Rule 23 directly

concerning class certifications. As I believe Rule 23(f)

authorized (and for sure nowhere limits—in word or intent)

our review of the order Judge Brody entered, I would deny

the petition for review because granting it would result in

inefficient (indeed, chaotic) piecemeal litigation that would

interfere with the formal fairness hearing on the settlement.

Though in either case petitioners lose, I dissent from my

colleagues’ means to that end.

Federal Rule of Civil Procedure 23(f), adopted in

1998, states that “[a] court of appeals may permit an appeal

from an order granting or denying class-action certification

under this rule if a petition for permission to appeal is filed

with the circuit clerk within 14 days after the order is

entered.” Per the Advisory Committee Note for this

provision, permission is “in the sole discretion of the court of

appeals,” which

is given unfettered discretion whether to permit

the appeal, akin to the discretion exercised by

the Supreme Court in acting on a petition for

certiorari.

* * *

The district court, having worked

through the certification decision, often will be

able to provide cogent advice on the factors that

bear on the decision whether to permit appeal.

This advice can be particularly valuable if the

certification decision is tentative.

Fed. R. Civ. P. 23(f) Advisory Committee’s Notes (1998

amendments) (emphases added).

Five years later, Federal Rule of Civil Procedure

23(c)(1) was modified to eliminate class certifications that

“may be conditional” on later proof that a proper class exists.

Thus a “court that is not satisfied that the requirements of

Rule 23 [in effect, sections (a) and (b)] have been met should

refuse certification until they have been met.” Fed. R. Civ. P.

23(c) Advisory Committee’s Notes (2003 amendments). No

change to section (f) occurred, nor was there any Advisory

Committee comment as to the effect of the (c)(1) change on

section (f). The blink response, both textual and logical, is

that appellate courts still have “unfettered discretion” to

review class-certification orders of any kind—whether

conditional (especially so where a court is not satisfied that

there exists what Rule 23 requires to certify a class) or not.

The Federal Rules of Civil Procedure have as thorough

a review process as any I know (or can imagine). In practice,

that process begins with the Advisory Committee on Civil

Rules, which is comprised of civil procedure experts from the

judiciary and academia and is advised by one or more

reporters assigned to it. The Advisory Committee reviews

2

suggestions for Rules changes and drafts proposed new Rules

and Rules amendments along with annotated notes of

explanation. When the Advisory Committee decides to

recommend an amendment, it seeks approval from the

Judicial Conference’s Committee on Rules of Practice and

Procedure (the “Standing Committee”) to publish a proposed

amendment for comment from the bench, bar and public. The

comment period lasts at least six months and includes public

hearings. The Advisory Committee reviews the comments

and hearing testimony, typically makes changes to the

proposed Rules (if substantial, an additional period for notice

and comment usually follows), and forwards those changes to

the Standing Committee along with any minority views of

Advisory Committee members. If the Standing Committee

approves the proposals of the Advisory Committee, it

forwards them to the Judicial Conference of the United States

(which includes at its head the Chief Justice of the United

States) along with the Advisory Committee’s report and the

Standing Committee’s own recommendations. If approved

by the Judicial Conference, and Congress does not act

otherwise, the Rules go into effect. See How the Rule Making

Process Works, Overview for the Bench, Bar and Public,

United States Courts, http://www.uscourts.gov/RulesAnd

Policies/rules/about-rulemaking/how-rulemaking-process-

works/overview-bench-bar-public.aspx (last visited Nov. 30,

2014). What all this means is that experts on civil procedure

review all content of the Federal Rules of Civil Procedure. It

is the opposite of “legislative history” drafted two weeks after

a floor amendment passes in Congress.

In reviewing any Civil Rules dispute, a court’s intent is

to follow the drafters’ intent. The latter is taken from a

Rule’s words and the accompanying Advisory Committee

Notes. As we know from reading the Rules and their Notes,

little is left to the imagination. In this case, the text of Rule

23(f) grants without restriction the authority to consider

3

appeals from orders granting or denying class certification,

and its Advisory Committee Note makes clear the grant is so

unconstrained that it is the equal of the discretion given the

Supreme Court to grant certiorari. If, for example, an order

certified a class without findings that Rule 23 requirements

are met (hence a conditional order), a court of appeals can

rule that this is improper and deny the appeal. This is what

our Court did in Hohider v. United Parcel Service, Inc., 574

F.3d 169, 202 (3d Cir. 2009).

Despite this, my colleagues think the change in 2003

to subsection (c)(1) annuls the jurisdiction of an appellate

court even to consider an appeal from a conditional class-

certification order. Their logic at base is that a change in

2003 to circumscribe Rule 23(c)(1) must intend a change to

23(f) such that no longer can there be appeals literally “from

an order granting . . . class action certification,” but only from

an order “issued pursuant to Rule 23(c)(1). An order . . . that

‘preliminarily’ or ‘conditionally’ addresses class certification

but reserves the class certification determination for a later

time, does not qualify as an ‘order granting or denying class-

action certification’ that is subject to interlocutory review

under Rule 23(f).” Maj. Op. at 37-38. In layperson-speak,

the drafters somehow forgot to limit “order” in section (f) or

to change the Advisory Committee Note to that section. I

cannot go for this overstretch when the words of Rule 23(f)

are nowhere short of clear and the consequence is that a

federal appellate court gives back jurisdiction given it by our

Rules drafters and those who must approve that grant.

A textualist (one who seeks the meaning of a statute or

regulation by reviewing its actual words without resort to

extratextual sources) begins with the text of Rule 23(f), and

so does Judge Smith, a well-regarded textualist. Indeed, he

claims here to rely on “plain text.” Id. at 6, 22. That’s ironic,

as the Rule’s direct text gives appellate courts the discretion

4

to allow interlocutory appeals from class-certification orders.

But, says Judge Smith, the “type of order” has yet to be

addressed. Id. at 22 (emphasis in text). Only one

“subdivision within Rule 23 govern[s] class-action

certification orders: Rule 23(c).” Id. Though in 1998 it

allowed district courts to certify a class conditionally, that

authority, he believes, was taken away in 2003 when “a

district court was no longer permitted to issue a ‘conditional

certification.’” Id. at 25 (citing Hohider, 574 F.3d at 202).

What is interesting in citing our 2009 decision in

Hohider is that there our Court noted that it had “jurisdiction

over this interlocutory appeal [involving, among other things,

an improper conditional certification of a class] under . . .

Fed. R. Civ. P. 23(f).” 574 F.3d at 175, 202. Despite the

2003 amendment to Rule 23(c), in 2009 we had the appellate

authority to tell a district court that it may not certify a class

conditionally. My colleagues acknowledge this by their

statement that Hohider “held that the trial court’s ‘conditional

certification . . . was improper.’” Maj. Op. at 25-26

(emphases added) (quoting Hohider, 574 F.3d at 202).

The exercise of jurisdiction over a conditional

certification is what our Second Circuit colleagues did as well

in Denney v. Deutsche Bank AG, 443 F.3d 253, 269-70 (2d

Cir. 2006), though there the Court went further to hold that

“conditional certification survives the 2003 amendment to

Rule 23(c)(1),” id. at 270. The Eighth Circuit also did not

question its jurisdiction to review a conditional certification

order in Liles v. Del Campo, 350 F.3d 742 (8th Cir. 2003). (I

note that the Eighth Circuit’s opinion in Liles issued only the

day after the 2003 amendments to Rule 23(c) went into effect,

and the Court did not address directly its jurisdiction. That

said, the proposed changes to (c) were in circulation many

months before they were effective.)

5

So how, five years after Hohider, can our Court

pronounce that we have no jurisdiction? Here is my

colleagues’ take. Judge Brody’s order that, in her words,

“conditionally certified” the proposed settlement class and

subclasses was not issued pursuant to Rule 23(c)(1). Instead,

“[she] exercised [her] authority under Rule 23(e) [which

covers settlement procedures for class action settlements] and

was managing a class-action settlement agreement.” Maj.

Op. at 38. However, as “[t]he exact process a district court

should follow when presented with a ‘settlement class’ is not

prescribed by Rule 23(e),” id. at 30, the Manual for Complex

Litigation (4th ed. 2004) is consulted even though my

colleagues concede it

“does not have the force of law and can not

undermine . . . decisions of this court.” In re

Pharmacy Benefit Managers Antitrust Litig.,

582 F.3d 432, 442 (3d Cir. 2009); see also

Manual for Complex Litigation, Introduction

(explaining that the Manual “should not be

cited as[] authoritative legal or administrative

policy,” the Federal Judicial Center has “no

authority to prescribe practices for federal

judges,” and “[t]he Manual’s recommendations

and suggestions are merely that”).

Maj. Op. at 31 n.16.

Notwithstanding these statements to the contrary, id. at

31-33 n.16; id. at 35 n.17, my colleagues in effect move the

Manual above the Rule and its commentary. They do so as

follows. Section 21.632 of the Manual provides that “the

certification hearing and preliminary fairness evaluation can

usually be combined.” In doing so, “‘[t]he judge should

make a preliminary determination that the proposed class

satisfies the criteria set out in Rule 23(a) and at least one of

6

the subsections of Rule 23(b).’” Maj. Op. at 33-34 (quoting

Manual for Complex Litigation § 21.632 (emphasis added in

quote)). Calling this a “case management technique,” id. at

34, to ensure notice to absentee class members, “[t]he

preliminary analysis of a proposed class is therefore a tool for

settlement.” Id. (emphasis in text).

What all this has to do with Rule 23(f) “is unclear.”

Id. at 35. But there is an “interplay between subdivision (c),

(e), and (f) of Rule 23, [and my colleagues] emphasize that a

district court should be fastidious in its choice of language

when making a ‘preliminary determination’ as recommended

by § 21.632 [of the Manual].” Id. at 36 (emphasis added).

What’s the point? “To be clear: ‘conditional

certification’ should not be a preferred term of art in this

Circuit. District courts should not couch a ruling as

providing ‘conditional certification’ when they actually

intend to issue a certification order at a later date.” Id. at 37.

Our Court, though it does not have the jurisdiction to tell

Judge Brody that her “conditional certification” is not the

right call sign, nonetheless in several pages of dicta tells her

so.

My take on my colleagues’ reasoning is, to quote the

late Hollywood film producer Samuel Goldwyn, “Include me

out.” Here’s why. Our highly experienced and respected

District Court colleague knew exactly what she was doing.

Judge Brody “conditionally certified” a class and subclasses

“for settlement purposes only.” In re Nat’l Football League

Players’ Concussion Injury Litig., 301 F.R.D. at 204. She did

so after analyzing the requirements of Rule 23(a) and (b), id.

at 199-202, and found that the proposed settlement class and

subclasses “preliminarily satisf[ied]” those requirements, id.

at 202. This was not the type of premature and unanalyzed

approval of a litigation class that Rule 23(c) meant to bar

7

because conditional certifications of litigation classes give

inordinate leverage to plaintiffs’ class counsel to force a

settlement not called for under closer scrutiny. Rather, Judge

Brody, after satisfying herself that the relevant Rule 23(a) and

(b) requirements were met, provisionally certified a class

already set to settle once that settlement is found to be fair at

a later hearing. (Indeed, she gave “preliminary approval” of

the proposed settlement after making a “preliminary fairness

evaluation” of it. Id. at 197-99.) That certification was

needed to know to whom notice and the settlement should be

sent. The use of “conditional” in this context is thus not

verboten under subsection (c)(1). Indeed, conditional

certifications for settlement classes continue after 2003. See

Denney, 443 F.3d at 269-70; see also Ault v. Walt Disney

World Co., 692 F.3d 1212, 1215 (11th Cir. 2012) (noting the

use of conditional certification by the district court).

Even if we assume Judge Brody used “conditional”

incorrectly, “an error in the class certification decision that

does not implicate novel or unsettled legal questions may still

merit interlocutory review given the consequences likely to

ensue . . . . [W]e emphasize that the courts of appeals have

been afforded the authority to grant or deny [Rule 23(f)]

petitions ‘on the basis of any consideration that the court of

appeals finds persuasive.’” Newton v. Merrill Lynch, Pierce,

Fenner & Smith, 259 F.3d 154, 164-65 (3d Cir. 2001)

(quoting Fed. R. Civ. P. 23(f) Advisory Committee’s Notes

(1998 amendments)).

* * * * *

My colleagues and I can agree that appellate courts

should be reluctant to review class-certification orders on an

interlocutory basis. To me that is enough. To go so far

further by holding that we lack even the power to do so here

is a bridge too far (especially in the wake of Hohider and no

8

other Circuit after 2003 finding its jurisdiction lost for

interlocutory appeals of conditional class certifications).

There is no support for ceding jurisdiction in the words of

Rule 23(f), the Advisory Committee Note for that section, or

subsection (c)(1). To seek that support in the Manual for

Complex Litigation, which tells us it is not to be cited as

authority, “complexifies” what is simple: appellate courts

have “unfettered discretion” to consider any order that grants

or denies class-action certification. Those certification orders

were circumscribed in 2003 to ones that require more careful

attention to the well-understood requirements of Rule 23(a)

and (b). That occurred without any change to the

unconstrained review of certification orders given to appellate

courts only five years earlier. Hence Rule 23(c) does not

bleach out the simple and direct words of Rule 23(f).

If Rule 23(f) appellate jurisdiction is to be limited, it

must come from its drafters amid the well-conceived approval

process in place. In the meantime, not to follow the words of

Rules in place substitutes us as their drafters and makers of

policy. As that is too active a role for a court, I respectfully

dissent.

9