STRATEGIES FOR SEEKING DISCRETIONARY

APPELLATE REVIEW

FDCC Winter Meeting Hotel Del Coronado

Coronado, California February 29 – March 4, 2016

Presented by:

Wystan M. Ackerman Robinson & Cole LLP

(Hartford, CT)

Anthony J. Zarillo, Jr. Riker Danzig Scherer Hyland & Perretti LLP

(Morristown, NJ)

Charles T. Frazier, Jr. Alexander Dubose Jefferson & Townsend LLP

(Dallas, TX)

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Table of Contents

Table of Contents ....................................................................................... ii Wystan M. Ackerman ................................................................................. v

Anthony J. Zarillo, Jr. .................................................................................. v

Charles T. Frazier, Jr. ................................................................................ vi I. Introduction ..................................................................................... 1

II. Avenues for Seeking Discretionary Appellate Review .................... 1

A. Section 1292(b) Certification ................................................ 1

1. Requirements ............................................................ 1

2. Purpose ..................................................................... 2

3. Standards for appealing under section 1292(b) ......... 3

4. Scope of appeal under section 1292(b) ..................... 4

5. Procedure for appealing under section 1292(b) ........ 5

a. Obtain a certification from the district court. ............................................................... 5

b. File a petition for permission in court of appeals within 10 days. .................................. 5

c. Required contents and form of petition for permission to appeal under section 1292(b). .......................................................... 5

B. Rule 54(b) Certification ........................................................ 6

1. Requirements ............................................................ 6

2. Purpose ..................................................................... 7

3. Standards for appealing under Rule 54(b)................. 8

4. Scope of Rule 54(b) appeal ....................................... 9

5. Procedure for appealing under Rule 54(b) .............. 10

C. Appeals of Injunctions Under Section 1292(a)(1) ............... 10

1. Requirements .......................................................... 10

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2. Standards for appealing under section 1292(a)(1) ................................................................ 11

3. Scope of appealing under section 1292(a)(1) .......... 12

4. Procedure for appealing under section 1292(a)(1) ................................................................ 12

D. Class Action Appeals Under Rule 23(f) .............................. 13

1. Rule 23(f) requirements and purpose. ..................... 13

2. Standards for appealing a Rule 23(f) order ............. 14

3. Procedure for appealing a Rule 23(f) order ............. 15

E. Class Action Appeals Under the Class Action Fairness Act ....................................................................... 16

1. Requirements, purpose, and procedure of CAFA appeals ......................................................... 16

2. Standards for appealing under CAFA ...................... 17

3. Procedure for appealing under CAFA ..................... 18

F. Certification of State Law Questions to State Courts ......... 20

1. Origin and purpose .................................................. 20

2. The States (legislatures and courts) fill the breach ..................................................................... 22

3. Practical considerations........................................... 24

a. Possibility of delay ........................................ 24

b. Timing of certification request ....................... 25

c. Other considerations ..................................... 25

G. Appeals under the Collateral Order Doctrine ..................... 26

1. Requirements .......................................................... 26

a. The order must conclusively determine the disputed question. ................................... 27

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b. The order must resolve important questions separate from the merits............... 27

c. The order must be effectively unreviewable on appeal from the final judgment. ...................................................... 27

2. Categories of orders reviewable under the collateral order doctrine ........................................... 28

3. Categories of orders not reviewable under the collateral order doctrine ........................................... 29

4. Procedure for appealing under the collateral order doctrine .......................................................... 30

III. Factors to Consider in Determining Whether to Seek Discretionary Review .................................................................... 31

1. Whether this will be the first appellate decision on this issue ............................................................ 30

2. Whether the particular facts of the case create a risk of making bad law where that risk may be different where the same legal issue is presented on different facts ..................................... 30

3. Whether the timing and jurisdiction are favorable .................................................................. 30

4. Effect of delay .......................................................... 30

5. Cost ......................................................................... 31

6. Whether the team should be expanded ................... 31

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Wystan M. Ackerman

Wystan Ackerman is a partner of Robinson & Cole LLP in Hartford, Connecticut, where he chairs the firm’s Class Action Team. He has a national practice focusing on defending insurers and other companies in class actions and litigating insurance coverage issues. Wystan regularly serves as national counsel for insurance companies in class actions, complex coverage litigation, and appeals. He writes the blog Insurance Class Actions Insider at www.insuranceclassactions.com, which was selected by Lexis Nexis as a top insurance blog.

In 2012-2013, Wystan successfully represented The Standard Fire Insurance Company (a Travelers affiliate) in the United States Supreme Court in Standard Fire Ins. Co. v. Knowles, 133 S. Ct. 1345 (2013), in which the Court held that the named plaintiff in a putative class action may not evade federal jurisdiction under the Class Action Fairness Act by stipulating that he would not seek more than $5 million on behalf of the putative class. This was the Court’s first decision under the Class Action Fairness Act.

Wystan received his B.A., summa cum laude, from Bowdoin College, and his J.D. from Columbia Law School. He is admitted to practice in Connecticut, Massachusetts, New York, the U.S. Supreme Court, the U.S. Courts of Appeals for the First, Second, Third, Fourth, Fifth, Eighth, and Eleventh Circuits, and various federal district courts. He serves as Chair of the Appellate Section of the FDCC.

Anthony J. Zarillo, Jr.

In 2015, Tony Zarillo returned as a partner in the law firm of Riker, Danzig, Scherer, Hyland & Perretti LLP, where he began his career as an associate and later partner. Riker Danzig maintains offices in New Jersey (Morristown and Trenton) and New York City. Tony is a member of Riker Danzig’s Insurance and Reinsurance and Litigation departments. He practices in both the Morristown and New York City offices.

Representation of clients in insurance industry matters has been a large part of Tony’s practice over two decades and includes both insurance coverage counseling and litigation. He has extensive experience representing clients in connection with both first and third-party coverage disputes. Tony also handles bad faith and unfair claims practices litigation involving policyholders, primary and excess insurance carriers. His insurance industry experience includes the representation of insurance companies, and other clients in matters involving insurance brokers, agents and other insurance intermediaries and regulatory agencies.

Tony’s litigation experience extends to all manners of complex commercial and business disputes, including contract, warranty, and errors

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and omissions lawsuits. His litigation practice also includes the defense of personal injury lawsuits.

Tony also represents clients and receives court appointments as counsel, guardian and administrator in various probate and estate matters. Tony’s role as counselor has extended to service as general counsel to a New Jersey county municipal utilities authority.

Tony earned his law degree from Georgetown University, where he served as Assistant Business Editor of the Georgetown International Environmental Law Review. He received his B.A., magna cum laude, from Boston College.

Tony is admitted to practice in New Jersey, the District of Columbia, New York, the United States District Courts for the District of New Jersey, the District of Columbia, and the Eastern and Southern Districts of New York and before the United States Courts of Appeals for the Second and Third Circuits.

Tony is a member of the American, New Jersey State, New York State, and Morris County bar associations. He is also a member of the Federation of Defense and Corporate Counsel and the Defense Research Institute.

Charles T. Frazier, Jr.

Charlie Frazier is a partner in Alexander Dubose Jefferson & Townsend, LLP, the largest appellate law firm in Texas, with offices in Austin, Dallas, and Houston. Charlie has been board certified in civil appellate law by the Texas Board of Legal Specialization since 1994. For over 27 years, his appellate and litigation-support practice has covered many areas of civil law, including substantial experience in complex commercial and contractual disputes, insurance-coverage and bad-faith disputes, and professional-liability claims.

In 1999, Charlie successfully argued before the Supreme Court of the United States on behalf of ten psychiatrists who were sued by a former patient under RICO, claiming that a pattern of racketeering activity existed to keep him under hospitalization. Rotella v. Wood, 528 U.S. 549 (2000). The Court rejected the patient’s argument that accrual of a civil RICO claim is postponed until the pattern was or should have been discovered, thereby holding that the patient’s claim was time-barred.

Charlie received his B.A., magna cum laude, from Baylor University and his J.D. from the Baylor School of Law, where he was published in the Baylor Law Review, of which he also was a member of the editorial board. In between college and law school, Charlie received the M.A. in

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International Relations from the University of Kent, in Canterbury, England, on a Rotary International Scholarship. He has been listed since 2009 in Best Lawyers in America in Appellate Law. Charlie is a member of the Appellate Section of the FDCC, and currently holds, and has held, several leadership positions in the Appellate Advocacy Committee of the DRI.

Strategies for Seeking Discretionary Appellate Review

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I. Introduction

This paper will provide an overview of the most favored avenues for seeking an appeal in civil cases before a traditional final judgment in suits filed in federal court, explaining when and how to utilize them. It also will address factors impacting the decision whether or not to seek discretionary review. It is our goal that by understanding the avenues available for seeking discretionary review and their differences, counsel and their clients can ensure that the appropriate method is being pursued with the goal of obtaining a favorable result.

Generally, in federal court, an appeal lies only after a final judgment has been entered. However, there are several ways for seeking discretionary appellate review of an order before entry of a final judgment. To be appealable, an order must (i) be final with the meaning of 28 U.S.C. § 1291, (ii) fall within the specific class of interlocutory orders made appealable by statute or rule, or (iii) fall within some jurisprudential exception to finality. See generally 15A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE §§ 3911-3913.1

II. Avenues for Seeking Discretionary Appellate Review

A. Section 1292(b) Certification

1. Requirements

An appeal from an interlocutory order not otherwise appealable may be pursued under 28 U.S.C. 1292(b) if:

1. the district court states in writing that –

a. such order involves a controlling question of law as to which there is substantial ground for difference of opinion, and

b. an immediate appeal from the order may materially advance the ultimate termination of the litigation; and

2. the court of appeals permits an appeal from the order.

Swint v. Chambers County Comm’n, 514 U.S. 35, 46 (1995).

1 The authors wish to thank Dana Livingston, partner in the Austin office of Alexander Dubose Jefferson & Townsend, LLP, for her permission to use as a source for this paper her article: Federal Interlocutory Appeals and Mandamus, University of Texas Conference on State and Federal Appeals (2013).

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The text of section 1292(b) provides:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such 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, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

28 U.S.C. § 1292(b).

Often the district court’s order will not sua sponte contain the certification necessary for seeking appellate review under §1292(b). In that instance, the appropriate procedure is to move the district court to amend its order to include the required certification. If certification is granted, the ten-day period to petition for appellate review runs from the date of the amended order. See FED. R. APP. P. 5(a)(3).

Certification under § 1292(b) applies only in civil actions, In re Grand Jury Proceedings, 832 F.2d 554, 557 (11th Cir. 1987), and only to “district judge[s],” Shapiro v. Comm’r, 632 F.2d 170, 170 (2d Cir. 1980) (holding section 1292(b) does not apply to an order by the United States Tax Court). Although section 1292(b) does not apply to bankruptcy judges, it does apply to district judges sitting in bankruptcy. Conn. Nat’l Bank v. German, 503 U.S. 249, 252-55 (1992). Some Circuits have also granted permission to appeal under section 1292(b) from orders certified by Magistrate Judges (typically this would occur where the parties consent to exercise of full jurisdiction by the magistrate judge under 28 U.S.C. § 636(c)(1)); otherwise, a magistrate judge’s decision is reviewable as of right by the district judge).

2. Purpose

While acknowledging that piecemeal appeals are undesirable, federal judges (who sought the enactment of section 1292(b)) understood that there are occasions in which

as a practical matter orderly administration is frustrated by the necessity of a waste of precious judicial time while the case grinds through to a final judgment as the sole medium through

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which to test the correctness of some isolated identifiable point of fact, of law, or substance or procedure, upon which in a realistic way the whole case or defense will turn.

Hadjipateras v. Pacifica, S.A., 290 F.2d 697, 702-03 (5th Cir. 1961).

Critically, pursuing a discretionary appeal under section 1292(b) is not required to avoid waiving the right to raise a particular issue in an appeal after entry of a final judgment. See Caterpillar, Inc. v. Lewis, 519 U.S. 61, 74 (1996).

3. Standards for appealing under section 1292(b)

District Court. Certification by the district court is discretionary. A district court’s decision to refuse certification is not reviewable by appeal, but may be reviewable—very rarely—by mandamus. See, e.g., United States v. 687.30 Acres of Land, 451 F.2d 667, 670 (8th Cir. 1971) (no jurisdiction to review); In re McClelland Eng’rs, Inc., 742 F.2d 837, 839 (5th Cir. 1984) (holding on petition for writ of mandamus that district court abused its discretion in refusing to certify under section 1292(b) orders denying forum non conveniens motions).

Court of Appeals. The court of appeals’ decision whether to accept a certified order also is discretionary. See Coopers & Librand v. Livesay, 437 U.S. 463, 475 (1978) (court of appeals has discretion to deny petition for permission for non-merits-related reasons, such as docket congestion). It’s discretion to accept an appeal under section 1292(b) has been compared “to the Supreme Court’s discretion in controlling its certiorari jurisdiction.” 16 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3929, at 141 (1977) (citing S. Rep. No. 2434, 85th Cong., 2d Sess. (1958)). Of course, without the district court’s certification under section 1292(b) in the first instance, the court of appeals lacks jurisdiction under the statute.

Although the standards district courts must consider in certifying an order for immediate appeal under section 1292(b) do not bind or apply to the courts of appeals when exercising its discretion whether or not to grant permission, the courts of appeals will consider whether those standards were met in the district court in reaching its decision. Therefore, for example, the party petitioning for permission to appeal should focus on the requirements for certification and set out in detail how they were met.

It is also important to highlight, where possible, why the issue or issues presented are of importance to the development of the law more broadly, to pending or anticipated cases other than the case in which certification was granted, and/or why the case is sufficiently large and important to warrant review. To that end, the petitioner should seek the

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participation of amici, and highlight national trends, debate among scholars, and the Restatement, to persuade the court of appeals that there is a “substantial ground for difference of opinion” on the controlling question of law, and that the question is significant enough to merit review.

Courts of appeals have held that the “substantial ground for difference of opinion” requirement is satisfied if “fertile ground for disagreement exists,” Harris v. Luckey, 918 F.2d 888, 892 (11th Cir. 1990), which includes where “the issues are difficult and of first impression,” Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 25 (2d Cir. 1990). A question is considered “controlling” if, for example, a reversal would end the case, even though an affirmance would not. See id.at 24 (“it is clear that a question of law is ‘controlling’ if reversal of the district court’s order would terminate the action”). The “materially advance” criterion has been found to be satisfied where “resolution of a controlling legal question would serve to avoid a trial or otherwise substantially shorten the litigation,” such as where the appeal “may well substantially reduce the amount of litigation necessary on remand.” McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1259, 1264 (11th Cir. 2004).

4. Scope of appeal under section 1292(b)

Review of an order certified under section 1292(b) is not limited to the particular question identified by the district court, but may extend to “any issue fairly included within the certified order.” Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 205 (1996). “[I]t is the order that is appealable, and not the controlling question identified by the district court.” Id.; see also Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1455 (6th Cir.) (“[E]ven those issues not properly certified are subject to our discretionary power of review if otherwise necessary to the disposition of the case.”), cert. denied, 488 U.S. 880 (1988). Accordingly, a court of appeals may decide all questions of law necessary to properly decide the appeal of the order, and not merely the issue or question certified.

The following illustrates this rule:

In its June 28, 2000, certification order, the district court identified the controlling question as whether Reserve had a sufficient proprietary interest in the mooring facility to sustain a claim for economic damages. . . . [W]e may review the issue of whether Reserve suffered physical damage as well as whether Reserve possessed a sufficient proprietary interest.

Reserve Mooring, Inc. v. Am. Commercial Barge Line, LLC, 251 F.3d 1069, 1070 n.4 (5th Cir. 2001).

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This result is supported by the fact that the language of section 1292(b) confers jurisdiction over an “order” involving a controlling question of law. So while a court of appeals cannot consider matters ruled on in other orders, Yamaha, 516 U.S. at 205, it may consider any question reasonably bound up with or material to the certified order. Of course, the court may choose not to consider the other matters. “[E]ven if we determine that we have the power to consider a question that is material to the certified order, we must nonetheless decide whether to exercise our discretion to consider those issues.” Kemp v. CTL Distrib., Inc., 440 F. App’x 240, 243 (5th Cir. 2011) (unpublished) (citing Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393, 399 (5th Cir. 2010) (en banc)).

5. Procedure for appealing under section 1292(b)

The procedure for appealing under section 1292(b) is much different than pursuing an appeal from a traditional final judgment and other appeals permitted by statute or rule: the vehicle, timing, and instruments are different.

a. Obtain a certification from the district court.

• District court certification can be obtained at any time

• If the 10-day period for petitioning for permission lapses, in some Circuits the 10-day period may be restarted by trial-court certification

• Agreement of the parties is not required

b. File a petition for permission in court of appeals within 10 days.

c. Required contents and form of petition for permission to appeal under section 1292(b).

• The facts necessary to understand the question presented;

• The question itself;

• The relief being sought;

• The reasons why the appeal should be allowed and is authorized by statute or rule; and

• Attach a copy of:

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o The order, decree, or judgment complained of and any related opinion or memorandum, and

o Any order stating the district court’s permission to appeal or finding that the necessary conditions are met.

FED. R. APP. P. 5(b)(1). No fee is required unless the court grants permission to appeal.

B. Rule 54(b) Certification

1. Requirements

Federal Rule of Civil Procedure 54(b) permits a district court that is dealing with multiple claims or parties to direct entry of final judgment as to fewer than all claims or parties if the court makes an express determination that there is no just reason for delay. See Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1 (1980). Thus, under Rule 54(b) “a decision that fails to adjudicate all rights and liabilities, while not technically final, can be certified as final.” Burge v. Parish of St. Tammany, 187 F.3d 452, 467 (5th Cir. 1999). The rule provides:

Judgment on Multiple Claims or Involving Multiple Parties. When an action presents more than one claim for relief—whether as a claim, counterclaim, cross-claim, or third-party claim—or when multiple pares are involved, the court may direct the entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.

FED. R. CIV. P. 54(b). Therefore, to be appealable, an order under this rule “must state that the district court (1) expressly determines that there is no just reason for delay and (2) expressly directs an entry of judgment.” Hamel-Schwulst v. County Place Mortg. Ltd., 406 F. App.x 906, 913 (5th Cir. 2010) (unpublished). These two requirements are “an essential prerequisite to an appeal,” and “[a]ny appeal from a decision adjudicating a portion of a case that is not accompanied by a Rule 54(b) certificate must be dismissed for want of jurisdiction.” Boudeloche v. Tnemec Co., 693 F.2d 546, 547 (5th Cir. 1982) (per curiam).

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When a district court properly enters a Rule 54(b) judgment, appellate jurisdiction is under section 1291. See Brown v. Columbia Sussex Corp., 664 F. 3d 182, 187 (7th Cir. 2011). Unlike under section 1292(b), the court of appeals does not have discretion with respect to whether or not to permit an appeal under Rule 54(b). If a Rule 54(b) judgment is properly entered, appellate jurisdiction is mandatory.

2. Purpose

As one court has stated, “[t]he purpose of Rule 54(b) is to avoid the possible injustice of a delay in entering judgment on a distinctly separate claim or as to fewer than all of the parties until the final adjudication of the entire case by making an immediate appeal available.” Okla. Tpk. Auth. v. Bruner, 259 F.3d 1236, 1241 (10th Cir. 2001). It strikes a balance between the policy against piecemeal appeals while avoiding the injustice of delaying judgment on a distinctly separate claim until the entire case was completed. See Sears, Roebuck & Co. v. Mackey, 351 U.S. 427 432 (1956); see also Briscoe Co., Inc. v. Morrison–Knudsen Co., Inc., 776 F.2d 1414, 1416 (9th Cir.1985) (A Rule 54(b) judgment “must be reserved for the unusual case in which the costs and risks of multiplying the number of proceedings and of overcrowding the appellate docket are outbalanced by pressing needs of the litigants” in obtaining an early final judgment for some claims.”).

A Rule 54(b) order effects a severance of part of a case for resolution by immediate appeal. However, a Rule 54(b) order is not a traditional severance under Rule 21, which “creates two separate actions or suits where previously there was but one.” Gaffney v. Riverboat Servs. of Ind., Inc., 451 F.3d 424, (7th Cir. 2008). The severed claim becomes a separate suit, the final adjudication of which is appealable. In that scenario, the time for appeal of the severed case runs from the entry of the judgment in that case, even if the severance is later held erroneous. Gomez v. Dep’t of the Air Force, 869 F.2d 852, 859 (5th Cir. 1989).

In contrast, Rule 54(b) does not create two separate actions, but permits expedited appellate review of a finally-decided, discrete single suit, even though other claims therein remain unresolved.” Id. at 859 n.16. However, once the district court enters a judgment under Rule 54(b), the aggrieved party must appeal that judgment or forfeit its right to complain about the claims or defenses disposed of in the Rule 54(b) judgment on a later appeal from a subsequent final judgment disposing of all remaining claims and parties. Patel v. Haro, 470 F. App’x 240, 243 (5th Cir. 2012) (unpublished).

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3. Standards for appealing under Rule 54(b)

Final judgment. Even when a district court certifies an order as final under Rule 54(b), the court of appeals will review that determination de novo and independently evaluate whether the court’s ruling was suitable for entry of as a final judgment under Rule 54(b). See Acumen Re Mgmt. Corp. v. Gen. Sec. Nat’l Ins. Co., 769 F.3d 135, 141-42 & n.14 (2d Cir. 2014). For example, the court of appeals will dismiss an appeal from a Rule 54(b) judgment that disposes of some but not all elements of damages for a particular claim that the Rule 54(b) judgment purports to adjudicate. Generally, the judgment is final if it is “an ultimate disposition of an individual claim entered in the course of a multiple claims action.” Mackey, 351 U.S. at 436.

Multiple claims. The requirement that the order disposes of one or more claims or parties is jurisdictional, is reviewed de novo, and may be raised sua sponte by the court of appeals even when no party is challenging it. Eldredge v. Martin Marietta Corp., 207 F.3d 737, 740 (5th Cir. 2000). Although there is no hard-and-fast rule, the Supreme Court has recognized that “a complaint asserting only one legal right, even if seeking multiple remedies for the alleged violation of that right, states a single claim for relief.” Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 743 n.4 (1976).

Note: there is not a consensus among the circuit courts on this requirement of a Rule 54(b) order. Local P–171, Amalgamated Meat Cutters v. Thompson Farms Co., 642 F.2d 1065, 1070 (7th Cir.1981) (“courts have been completely unable to settle on a single test for determining when claims are ‘separate’”).

The line between deciding one of several claims and deciding only part of a single claim is sometimes very obscure. Difficulties even occur in a case that clearly involves multiple claims because the rule requires that the entirety of at least one of those claims be decided with finality. There is no generally accepted test that is used to determine whether more than one claim for relief is before the court.

10 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2657 (3d ed.).

• Some courts concentrate on the facts underlying the putatively separate claims. E.g., Jack Walters & Sons Corp. v. Morton Bldg., Inc., 737 F.2d 698, 702 (7th Cir. 1984) (“if the facts underlying different claims are different, the claims are separate for Rule 54(b) purposes”); Purdy Mobile Homes, Inc. v. Champion Home Builders Co., 594 F.2d 1313, 1316 (9th Cir. 1979)

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(fact that one claim required proof of facts different from those required to prove another claim rendered it “separate”); Gas-A-Car, Inc. v. Am. Petrofina, Inc., 484 F.2d 1102, 1105 (10th Cir. 1973).

• Some courts focus on the possibility of separate recoveries under arguably separate claims. E.g., Tolson v. United States, 732 F.2d 998, 1001 (D.C.Cir.1984).

One point of agreement appears to be that “a claimant who presents a number of alternative legal theories, but whose recovery is limited to only one of them, has only a single claim of relief for purposes of Rule 54(b).” Page v. Preisser, 585 F.2d 336, 339 (8th Cir.1978). See Samaad v. City of Dallas, 940 F.2d 925, 931 (5th Cir. 1991) (noting agreement), abrogated on other grounds by Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S. 702, 728 (2010).

No just reason for delay. This requirement is reviewed for abuse of discretion. Alpine Glass, Inc. v. Country Mut. Ins. Co., 792 F.3d 1017, 1020 (8th Cir. 2015); EJS Props., LLC v. City of Toledo, 689 F.3d 535, 537 (6th Cir. 2012); Purdy Mobile Homes, Inc. v. Champion Home Builders Co., 594 F.2d 1313, 1317 (9th Cir.1979). The Ninth Circuit holds this requirement is jurisdictional and construes it strictly. Frank Briscoe Co., 776 F.2d at 1416 (9th Cir.1985). In contrast, the Fifth Circuit holds it is not jurisdictional, and will not sua sponte review it for abuse of discretion if not challenged. Eldredge, 207 F.3d at 740 n.2. The Fifth Circuit also does not require the order to state the magic words “no just reason for delay.” It is sufficient if the order reflects the court’s “unmistakable intent to enter a partial final judgment under Rule 54(b).” Briargrove Shopping Ctr. Joint Venture v. Pilgrim Enters., Inc., 170 F.3d 536, 538-41 (5th Cir. 1999). The Fifth Circuit also does not require the court to state the reasons for finding there is no just reason to delay entry of judgment. Rothenberg v. Sec. Mgmt. Co., 617 F.2d 1149, 1150 (5th Cir. 1980). However, the Second Circuit does. See Cullen v. Margiotta, 811 F.2d 698, 711 (2d Cir. 1987) (requiring a reasoned, if brief, explanation).

4. Scope of Rule 54(b) appeal

The scope of a Rule 54(b) appeal is limited to the order certified under the rule for immediate appeal. Liberty Mut. Ins. Co. v. Gunderson, 387 F. App’x 480, 484 (5th Cir. 2010) (unpublished). Nevertheless, rulings not included within the Rule 54(b) order can be appealed at the same time if a party obtains certification under 28 U.S.C. § 1292 from those orders (and if the court of appeals grants permission to appeal from those certified orders under section 1292(b)). See, e.g., United States v. Cinemark, Inc., 634 F.3d 808, 810, 813 (5th Cir. 2011).

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5. Procedure for appealing under Rule 54(b)

• Request certification. Usually, a party must request the district court to certify; in some instances, the district court sua sponte certifies.

• File notice of appeal. Upon certification of a final judgment under Rule 54(b), the party appealing that order proceeds under the normal appellate procedure under Rules 3 and 4 of the Federal Rules of Appellate Procedure by filing a notice of appeal in the district court within the specified time period in Rule 4 (normally 30 days after the Rule 54(b) order is entered). See Tolan v. Cotton, 713 F.3d 299, 303 (5th Cir. 2013) (“[A] Rule 54(b) judgment is a final decision capable of immediate appellate review pursuant to 28 U.S.C. § 1291.”).

• Seek stay of enforcement. The prevailing party on the certified claim has the right to execute unless the losing party obtains a stay of enforcement under Rule 62(h):

• Stay with Multiple Claims or Parties. A court may stay the enforcement of a final judgment entered under rule 54(b0 until it enters a later judgment or judgments, and may prescribe terms necessary to secure the benefit of the stayed judgment for the party in whose favor it was entered.

FED. R. CIV. P. 62(h). If a party desires a stay, its counsel should file the motions required under Rule 62, including moving for approval of a supersedeas bond. See id. Even when a stay of execution is obtained, the losing party may nevertheless be required to deposit the amount of the judgment in the court’s registry. See Curtiss-Wright, 446 U.S. at 13 n.13.

• Seek stay of proceedings in district court. If the appealing party also wishes to stay proceedings in the district court pending disposition of the Rule 54(b) appeal, that party should follow the procedures in Rule 8 of the Federal Rules of Appellate Procedure. FED. R. APP. P. 8.

C. Appeals of Injunctions Under Section 1292(a)(1)

1. Requirements

Section 1292(a)(1) provides that, with specific exceptions, the courts of appeals have jurisdiction of appeals from:

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(1) Interlocutory orders of the district courts . . . granting, continuing, modifying, refusing or dissolving an injunction or refusing to dissolve or modify an injunction, except where direct review may be had in the Supreme Court.

28 U.S.C. 1292(a)(1). Injunction orders are immediately appealable as a matter of right. See Wheeler v. Talbot, 770 F.3d 550, 552 (7th Cir. 2014).

2. Standards for appealing under section 1292(a)(1)

Determining whether an order falls within section 1292(a)(1). Section 1292(a)(1) applies to both preliminary and permanent injunctions. To establish appellate jurisdiction over an order expressly falling under section 1292(a)(1), the appellant is not required to make any additional showing, such as immediate irreparable harm. Atwood Turnkey Drilling, Inc. v. Petroleo Brasiliero, S.A., 875 F.2d 1174, 1176 (5th Cir. 1989).

Generally, an order that merely enforces or interprets an earlier injunction is not appealable under section 1292(a)(1). See, e.g., Ingram Towing Co. v. Adnac Inc., 59 F.3d 513, 516 (5th Cir. 1995). But if an order clarifying a prior injunction has the effect of expanding the scope of that injunction, the clarification order is appealable under section 1292(a)(1). See United States v. Liberty Mut. Ins. Co. v. Gunderson, 305 F. App’x 170, 174-75 (5th Cir. 2008) (unpublished).

Courts look to the provisions of the order to determine whether it specifically grants or refuses an injunction. EEOC v. Kerrville Bus. Co., 925 F.2d 129, 132 (5th Cir. 1991). However, the Supreme Court has provided a two-part test to determine whether an order that does not expressly grant or refuse an injunction nevertheless has the “practical effect” of granting or refusing an injunction:

(1) the order has the potential to have serious, perhaps irreparable consequences; and

(2) the order can only be effectively challenged by immediate appeal.

Carson v. Am. Brands, Inc., 450 U.S. 79, 87-88 (1981). When the district court’s order does not specifically deny injunctive relief, the Court requires “some additional, substantial indication—whether from the language of the order, or the grounds on which it rests, or the circumstances in which it was entered—that the district court was acting specifically to deny injunctive relief.” Id. at 83-84.

Temporary Restraining Orders. Temporary Restraining Orders are not typically appealable under section 1292(a)(1). Serv. Emps. Int’l Union v. Nat’l Union of Healthcare Workers, 598 F.3d 1061, 1067 (9th Cir. 2010).

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But the fact an order is labeled a TRO is not dispositive—courts look to the “essence of the order”; an order possessing the qualities of a preliminary injunction is a reviewable interlocutory order. Id. (citing Bennett v. Medtronic, Inc., 285 F.3d 801, 804 (9th Cir. 2002)). For example, an order labeled a TRO that is entered after full notice, hearing, and participation by all parties may be appealable under section 1292(a)(1) as a preliminary injunction. Knoles v. Wells Fargo Bank, N.A., No. 12-40369, 2013 WL 617010, at *1-2 (5th Cir. Feb. 19, 2013) (unpublished). And orders that have a duration exceeding the ordinary duration for TROs are likely reviewable under section 1292(a)(1). Bennett, 285 F.3d at 804; see also Phillips v. Charles Schreiner Bank, 894 F.2d 127, 130 n.5 (5th Cir. 1990) (an ex parte order that purports to be of an indefinite duration is a preliminary injunction rather than a TRO).

However, a district court has the discretion to certify a controlling question of law presented in a TRO under 28 U.S.C. § 1292(b). See, e.g., Cuban Am. Bar Ass'n, Inc. v. Christopher, 43 F.3d 1412, 1422 (11th Cir. 1995); Harris v. Johnson, 376 F.3d 414, 415 n.1 (5th Cir. 2004).

3. Scope of appealing under section 1292(a)(1)

An order appealable under section 1292(a)(1) might be reviewable beyond the propriety of injunctive relief. See, e.g., Magnolia Marine Transp. Co. v. Laplace Towing Corp., 964 F.2d 1571, 1580 (5th Cir. 1992) (court reviews the entire order granting or denying injunctive relief, and “may decide the merits so long as concerned only with the order from which the appeal is taken.”) (quotations omitted); Marathon Oil Co. v. United States, 807 F.2d 759, 764 (9th Cir.1986) (same). Courts generally may review all matters that “establish the immediate basis for granting injunctive relief.” C. WRIGHT, ET AL., FEDERAL PRACTICE & PROCEDURE § 3921 (1977). But the Fifth Circuit notes that this discretion should be exercised “only in rare and unique circumstances.” Gros v. City of Grand Prairie, 209 F.3d 431, 436 (5th Cir. 2000).

4. Procedure for appealing under section 1292(a)(1)

An appeal from a section 1292(a)(1) injunction order is appealed in the same manner as regular appeals under Rules 3 and 4 of the Federal Rules of Appellate Procedure—the party seeking to challenge the order must file a notice of appeal in the district court within the time period provided in Rule 4. Counsel should check the local rules of the Circuit to which the appeal will be decided to learn whether the appeal is given calendaring priority. See, e.g., 5TH CIR. R. 47.7; 9TH CIR. R. 34-3. Where an injunction is causing substantial harm to the interests of the enjoined party seeking review, a motion to expedite the appeal may be appropriate.

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D. Class Action Appeals Under Rule 23(f)

1. Rule 23(f) requirements and purpose.

Rule 23(f) of the Federal Rules of Civil Procedure provides:

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. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.

FED. R. CIV. P. 23(f).

Subsection (f) was added to Rule 23 in the 1998 amendments. The advisory committee notes explain that:

An order denying certification may confront the plaintiff with a situation in which the only sure path to appellate review is by proceeding to final judgment on the merits of an individual claim that, standing alone, is far smaller than the costs of litigation. An order granting certification, on the other hand, may force a defendant to settle rather than incur the costs of defending a class action and run the risk of potentially ruinous liability. These concerns can be met can be met at low cost by establishing in the court of appeals a discretionary power to grant interlocutory review in cases that show appeal-worthy certification issues.

FED. R. CIV. P. 23(f) adv. cmte. notes (1998). In addition, the Judicial Conference of the United States wanted the circuit courts to have the opportunity to develop a solid body of law on the standards for class certification and create greater uniformity on those standards. Brian Anderson & Patrick McLain, A Progress Report on Rule 23(f): Five Years of Immediate Class Certification Appeals, 11 ANDREWS CLASS ACTION LITIG. REP. 21 (Apr. 14, 2004).

It is important to note that Rule 23(f) applies only to a decision “granting or denying class-action certification . . . .” Other types of orders involving Rule 23 are not appealable under Rule 23(f). See, e.g., In re NFL Players Concussion Injury Litig., 775 F.3d 570, 588 (3d Cir. 2014) (order preliminarily approving a proposed class for settlement purposes, reserving the certification decision for a later date, was not appealable). Some courts of appeals have reviewed orders granting a motion to strike class action allegations under Rule 23(f) as equivalent to a denial of class certification.

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2. Standards for appealing a Rule 23(f) order

The Advisory Committee Notes explain that in Rule 23(f) “[t]he 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,” and “[p]ermission to appeal may be granted or denied on the basis of any consideration that the court of appeals finds persuasive. Permission is most likely to be granted when the certification decision turns on a novel or unsettled question of law, or when, as a practical matter, the decision on certification is likely dispositive of the litigation.” FED. R. CIV. P. 23(f) adv. cmte. notes (1998).

Most federal circuits have adopted their own criteria for granting or denying review under Rule 23(f). The D.C. Circuit, for example, has identified three reasons for granting review: “(1) when a ‘questionable’ class certification decision creates a ‘death-knell situation’ for either party; (2) when the certification decision presents ‘an unsettled and fundamental issue of law relating to class actions . . . that is likely to evade end-of-the-case review’; and (3) when the certification decision is manifestly erroneous.” In re District of Columbia, 792 F.3d 96, 98 (D.C. Cir. 2015) (quoting In re Veneman, 309 F.3d 789, 794 (D.C. Cir. 2002). The court has noted that the “manifest error” standard is a difficult one to satisfy. Id.; see also Chamberlain v. Ford Motor Co., 402 F.3d 952, 959 (9th Cir. 2005) (noting that Ninth Circuit’s factors for granting review under Rule 23(f) are very similar to those of the D.C. Circuit).

The Sixth Circuit has noted that “Rule 23(f) appeals will be the exception, not the norm,” and looked to the following factors: (1) whether the certification decision is a “death-knell” for the litigation; (2) whether the case raises a novel or unsettled question; (3) the petitioner’s likelihood of success on the merits; and (4) the posture of the case in the district court, including whether certification is likely to be reexamined. In re Delta Air Lines, 310 F.3d 953, 960 (6th Cir. 2002). The Fourth and Eleventh Circuits have adopted similar criteria. See Lienhart v. Dryvit Sys., 255 F.3d 138, 144 (4th Cir. 2001) (adopting similar set of factors); Prado-Steiman v. Bush, 221 F.3d 1266, 1274-76 (11th Cir. 2000) (adopting similar set of factors).

The First and Seventh Circuits have adopted a somewhat similar standard focusing on: (1) whether denial of class status effectively ends the case; (2) whether grant of class status means that the defendant “likely will feel irresistible pressure to settle; or (3) whether the appeal will lead to clarification of a fundamental issue of law.” Blair v. Equifax Check Servs., Inc., 181 F.3d 832, 834-35 (7th Cir. 1999). The First Circuit has limited the third category to “those instances in which an appeal will permit the resolution of an unsettled legal issue that is important to the particular litigation as well as important in itself and likely to escape effective review if

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left hanging until the end of the case.” Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 294 (1st Cir. 2000).

The Second Circuit has adopted a somewhat different standard under which “[p]etitioners seeking leave to appeal pursuant to Rule 23(f) must demonstrate either (1) that the certification order will effectively terminate the litigation and there has been a substantial showing that the district court's decision is questionable, or (2) that the certification order implicates a legal question about which there is a compelling need for immediate resolution.” Hevesi v. Citigroup Inc., 366 F.3d 70, 76 (2d Cir. 2004) (quoting In re Sumitomo Copper Litig., 262 F.3d 134, 139 (2d Cir. 2001)).

The Fifth Circuit has looked to the factors set forth in the Advisory Committee Notes, focusing on: (1) whether certification turns on a novel or unsettled question of law; and (2) whether the decision may force a settlement. Regents of the Univ. of Cal. v. Credit Suisse First Boston, 482 F.3d 372, 379 (5th Cir. 2007).

3. Procedure for appealing a Rule 23(f) order

The procedure for taking an appeal under Rule 23(f) is set forth in Rule 5 of the Federal Rules of Appellate Procedure.

• File a petition for permission to appeal. Within 14 days after the order granting or denying class certification, the party seeking permission to appeal files a petition for permission to appeal with the clerk of the court of appeals for the appropriate circuit. See FED. R. APP. P. 5(a)(1), (2).

o The petition must include the (1) relevant facts, (2) the question or questions on which review is sought, (3) the relief sought, (4) the reasons why the appeal should be allowed, and (5) a copy of the order being complained of and any related opinion or memorandum. FED. R. APP. P. 5(b).

o Typically, a strong petition will focus primarily on why the question presented is sufficiently important and has broader implications than the case at bar, such that the court of appeals should exercise its discretion to grant review. A strong petition typically will not focus merely on why the district court’s ruling was incorrect, although that usually will be part of the petition.

o The petition is limited to 20 pages in 14-point font. See FED. R. APP. P. 5(c), 32(c)(2).

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• Opposition to petition. The opposing party may file an answer in opposition to the petition, or a cross-petition, within 10 days after the petition is served. FED. R. APP. P. 5(b)(2). Rule 5 does not provide for the filing of a reply brief in support of the petition, although most circuits seem to allow them on a motion for leave.

• Pay filing fee. If the court of appeals grants permission to appeal, the appellant must pay the filing fee for an appeal. A notice of appeal is not filed. See FED. R. APP. P. 5(d). This type of appeal typically proceeds on the same track as an ordinary federal appeal from a final judgment, unless the court of appeals orders an expedited briefing schedule. Unlike in a Class Action Fairness Act appeal, the court of appeals is not required to rule on the appeal within any particular timeframe.

E. Class Action Appeals Under the Class Action Fairness Act

1. Requirements, purpose, and procedure of CAFA appeals

While defendants usually cannot appeal federal district court orders remanding cases to state courts, the Class Action Fairness Act (“CAFA”) changed that for putative class actions. CAFA gives the federal courts of appeals discretion to hear appeals of orders granting or denying motions to remand. See 28 U.S.C. § 1453(c)(1). These appeals, which are expedited as required by CAFA, differ in some ways from other types of federal interlocutory appeals, such as an appeal from an order certified under 28 U.S.C. § 1292(b) or from a class certification order appealable under Federal Rule of Civil Procedure 23(f).

CAFA provides that

a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand a class action to the State Court from which it was removed if application is made to the court of appeals not more than 10 days after entry of the order.

28 U.S.C. § 1453(c)(1).

The procedure for seeking an appeal under CAFA is set forth in Rule 5 of the Federal Rules of Appellate Procedure, and is the same as discussed above with respect to Rule 23(f) appeals. A key difference with respect to CAFA appeals is that the court of appeals, if it grants permission to appeal, is required to hear the case on an expedited basis, as explained further below.

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2. Standards for appealing under CAFA

Some circuits have adopted a set of factors to guide their decision making on whether or not to grant discretionary review under CAFA.

The First Circuit has the most comprehensive set of factors, which the Ninth and Tenth Circuits later adopted. These factors are:

(1) “whether the petition presents “an important CAFA-related question”;

(2) “whether the question presented is unsettled”;

(3) “whether the question, at first glance, appears to be either incorrectly decided or at least fairly debatable”;

(4) “whether the question is consequential to the resolution of the particular case”;

(5) “whether the question is likely to evade effective review if left for consideration only after final judgment,” described as “[a] particularly important factor”;

(6) “the likelihood of recurrence of the question presented;

(7) “whether the district court order “is sufficiently final to position the case for intelligent review”; and

(8) “a balance of relevant harms . . . weighing the probable harm to the applicant should an immediate appeal be refused against the probable harm to the other parties should an immediate appeal be entertained.”

College of Dental Surgs. of P.R. v. Conn. Gen. Life Ins. Co., 585 F.3d 33, 38–39 (1st Cir. 2009). See also Coleman v. Estes Express Lines, Inc., 627 F.3d 1096, 1100 (9th Cir. 2010) (adopting First Circuit factors); BP Am., Inc. v. Oklahoma, 613 F.3d 1029, 1034–35 (10th Cir. 2010) (same).

Although this is a lengthy set of factors, in practice it appears that the most important factors are whether the question or questions presented are important and recurring. See also Estate of Pew v. Cardarelli, 527 F.3d 25, 29 (2d Cir. 2008) (writing that a court’s “exercise of discretion will be guided by consideration of the importance and novelty of the issues raised by the case”). Most cases in which courts of appeals grant review involve a question that likely would affect multiple cases, not just the case before the court. In some cases, the federal district courts have disagreed on the question. In some instances, however, a court of appeals has granted review under CAFA on an issue unique to a particular case that seems

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unlikely to arise in other cases. This happens more often when a court of appeals reverses the district court.

The Fifth and Sixth Circuits also have expressly explained that the pressure that the 60-day expedited decision requirement imposes on the court of appeals is one reason why it will deny review. Alvarez v. Midland Credit Mgmt., Inc., 585 F.3d 890, 894 (5th Cir. 2009) (“[I]n granting us interlocutory discretionary review, Congress placed very short time limits on our determination of such appeals. Therefore, in exercising our discretion to hear such appeals we must weigh the time taken from earlier-filed appeals to tend to the CAFA appeal against the benefit of hearing such an appeal at this juncture.”); In re Am. Gen. Fin., Inc., 2010 U.S. App. Lexis 27012, at *1 (6th Cir. June 23, 2010) (“Pursuant to § 1453(c)(2), if the court grants the petition, a decision must be rendered within sixty days. Upon consideration of the petition, and in light of the requirement for expedited consideration, we conclude that the issues raised in the petition are not of sufficient magnitude to warrant such extraordinary review of the remand order.”).

Therefore, a petitioner might consider offering in the petition to agree to an extension of time, although the respondent would also need to for the 60-day period to be extended (as explained further below).

3. Procedure for appealing under CAFA

Expedited review. If a court of appeals grants a petition, the case typically will move very quickly because of CAFA’s expedited-review requirement. CAFA specifies that “[i]f the court of appeals accepts an appeal . . . the court shall complete all action on such appeal, including rendering judgment, not later than 60 days after the date on which such appeal was filed, unless an extension is granted . . . .” 28 U.S.C. § 1453(c)(2).

The legislative history does not provide any insight into why Congress chose to impose this requirement of expediting the appellate process. The Senate report explains only that “[t]he purpose of this provision is to develop a body of appellate law interpreting the legislation without unduly delaying the litigation of class actions,” and “[t]he Committee believes it is important to create a similar body of clear and consistent guidance for district courts that will be interpreting this legislation and would particularly encourage appellate courts to review cases that raise jurisdictional issues likely to arise in future cases.” S. Rep. No. 109-14, at 43.

Several circuits have held that this 60-day period to decide the appeal does not begin until the court of appeals grants a petition for permission to appeal. See Lewis v. Verizon Communs., Inc., 627 F.3d 395,

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396 (9th Cir. 2010); Evans v. Walter Indus., Inc., 449 F.3d 1159, 1162 (11th Cir. 2006); Patterson v. Dean Morris, L.L.P., 444 F.3d 365, 368 (5th Cir. 2006). The rationale for this interpretation is that the “date on which such appeal was filed” is the date when permission to appeal is granted because the order granting permission to appeal serves as the date of the notice of appeal under Federal Rule of Appellate Procedure 5(d)(2). In practice, if the 60-day period began when a party filed the petition, it would require a court of appeals to decide whether to grant review, then receive briefing on the merits, hear oral argument if it plans to do so, and issue an opinion, all within 50 days after the response to the petition is filed. That would impose a breakneck pace, and no court of appeals has interpreted CAFA as requiring a court to move that fast.

Notwithstanding that the 60-day period begins when a court of appeals grants a petition, CAFA appeals still move at a much faster pace than usual for courts of appeals. When a court of appeals grants review, the panel members may need to delay issuing opinions in other cases they are working on or otherwise disrupt their regular schedules to issue the opinion in the CAFA case within the 60-day period. This may drive the tendency of some circuits to grant review under CAFA quite sparingly.

A court of appeals can grant itself an extension of 10 days “for good cause shown.” See 28 U.S.C. § 1453(c)(3)(B). Courts have frequently taken advantage of that provision. With the consent of all parties a court may grant itself a longer extension. See id. § 1453(c)(3)(A).

Simultaneous rulings on merits and permission to appeal. The practitioner should keep in mind that a court of appeals might rule summarily on the merits of the jurisdictional issue at the same time it decides whether to grant permission to appeal. The Seventh Circuit has quite regularly used this procedure, and other circuits have occasionally done so. See, e.g., Keeling v. Esurance Ins. Co., 660 F.3d 273, 275 (7th Cir. 2011); ABM Sec. Servs. v. Davis, 646 F.3d 475, 476 (7th Cir. 2011); Blomberg v. Serv. Corp. Int’l, 639 F.3d 761, 763 (7th Cir. 2011); Back Doctors Ltd. v. Metro. Prop. & Cas. Ins. Co., 637 F.3d 827, 829 (7th Cir. 2011); Estate of Pew v. Cardarelli, 527 F.3d 25, 29 (2d Cir. 2008).

Briefing schedule. If the court of appeals orders further briefing on the merits, the briefing schedule will proceed much faster than the rules provide for in an ordinary appeal, because the 60-day time clock will run from the date that the court grants the petition. A typical schedule might require the appellant to file a merits brief within seven or 10 days of a court granting review, the appellee to file its brief 14 days thereafter, and the appellant to file a reply brief seven days later. This will allow the court of appeals to have approximately 30 days to issue an opinion after briefing is completed. Oral argument is relatively rare in these appeals except when the parties agree to extend time for the court to issue a decision. If there is

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no such extension, and the court decides to hear oral argument, the court typically schedules the argument very soon after the merits briefing concludes.

Timing of ruling on permission to appeal. Although uncommon, a court of appeals can order briefing on the merits and oral argument before deciding whether or not to grant the petition for permission to appeal. Deferring the decision on whether to grant review until after full briefing and oral argument enables a court of appeals to delay the start of the 60-day clock. An appeal that follows this procedure permits a more normal overall schedule. Courts of appeals have rarely done this, however, perhaps because they view it as inconsistent with Congress’s intent behind the 60-day requirement.

F. Certification of State Law Questions to State Courts

1. Origin and purpose

The process by which federal courts certify questions of state law to state courts arguably originates from a number of events separated by more than a century. First, the United States Constitution set forth the federal judicial power to include “cases . . . between citizens of different states. . . .” U.S. CONST. art. III, § 2. Then Congress, in the Judiciary Act of 1789, established “diversity jurisdiction”, which is currently codified at 28 U.S.C. § 1332. Thus, since the earliest days of their existence, federal courts were empowered to hear matters involving state law.

However, due to the United State Supreme Court’s decision in Swift v. Tyson, 41 U.S. 1 (1842), for almost a century federal courts could disregard the decisional case law of the states as it pertains to issues like “the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law”, id. at 18, and were “free to exercise an independent judgment as to what the common law of the state is – or should be. . . .” Erie R.R. Co. v. Tompkins, 304 U.S. 64, 71 (1938) (Justice Brandeis summarizing the Swift doctrine).

The Swift doctrine was often criticized, and the Erie decision discusses those criticisms, and describes its “mischievous results”, including extreme acts of forum shopping. Erie, 304 U.S. at 72-78. Under Swift, however, federal courts were not required to make predictions of state law where that law was not subject to a statute and the case law was unclear or unsettled. Federal courts were free to exercise their own judgment as to what the common law should be. Erie, 304 U.S. at 71.

When in 1938, in its famous Erie decision, the Supreme Court overruled Swift and its perceived endorsement of the development of “federal common law,” the Court was also requiring that federal judges from

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time to time decide issues of state law based, not on a clear decision from the state’s highest court, but rather on the federal court’s prediction on how that state’s highest court would rule. In Erie, it was asserted that the state-law issue in question (whether a railroad owed a duty to a person injured while walking along a railroad right of way) had been specifically decided by Pennsylvania’s highest court. The Supreme Court ruled that, in diversity matters, state law is to be applied and that law was to be determined by reference to a decision by that state’s highest court or to a state statute. Erie, 304 U.S. at 78-80.

While Erie theoretically disposed of the problems described and attributed to the Swift doctrine, it gave rise to new questions and issues (and some would say problems). See Rebecca A. Cochran, Federal Court Certification of Questions of State Law to State Courts: A Theoretical and Empirical Study, J. LEGIS. 157, 162-64 (2003) (hereafter “Cochran”). If the state-law issue at hand involved a state statute, or its construction by state courts, a federal court, even under Swift, would address the issue by reference to the state statute and, if necessary, court interpretation. If the state law issue at hand had been addressed by the state’s highest court then, under Erie, a federal court was obligated to apply the decision of that highest court.

However, an inevitable next question arose for federal courts. How to apply state common law in instances where the particular issue of state law was unsettled; i.e. had not been specifically addressed by that state’s highest court or there was little or conflicting case law on the subject emanating from that state’s lower courts?

As described by Professor Cochran:

In the early years after Erie, federal court judges inevitably faced unsettled state law issues and were forced to develop methods for prediction. Although no single, definitive answer appears to explain why state legislatures and courts moved toward the certification process, the struggle federal courts initially experienced in reaching a settled method for prediction may have worried state legislators and state judges, while simultaneously frustrating federal judges. The Erie Court itself simply instructed federal courts to use the state's substantive law as "declared by its legislature in a statute or by its highest court in a decision.”

But, when the highest state court had not issued a decision on point, Erie offered no advice. . . .

Cochran at 163 (footnote omitted).

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Professor Cochran goes on to describe a post-Erie world in which “the gap between state law in federal and state courts grew wider as federal courts mechanically adhered to state lower court decisions, no matter how old or poorly reasoned.” Id. at 163 and n.27-28. Ironically, fear grew at the time “that federal courts’ fierce loyalty to lower state court decisions, in the absence of a ruling from the highest state court,” could revive forum shopping as litigants chose a federal court over a state court where a state judge might be more inclined not to follow a non-binding decision of a fellow state judge. Id. at 163 & n.28-29.

Moreover, the United States Supreme Court severely limited a federal court’s use of the abstention doctrine in cases “merely because they involve state law or because the law is uncertain or difficult to determine.” Meredith v. City of Winter Haven, 320 U.S. 228, 236 (1943). See, e.g., Cochran at 164-65 (for a fuller description of the possible impact of Meredith on the development of a certification process).

2. The States (legislatures and courts) fill the breach

As early as 1945, the Florida legislature provided an avenue to have its Supreme Court accept certified questions of state law from the United States Supreme Court and federal courts of appeal. See FLA. STAT. CH. 25.031. Interestingly, and according to Professor Cochran, the Florida Supreme Court did not institute a rule to accept certification of state law issues until 1960. Cochran at 165-66.

Moreover, the first question certified only came about after a United States Supreme Court case “suggested” that an issue be certified to the Florida Supreme Court, “recognized” that no court rule existed to do so but questioned whether the lack of such a rule actually mattered. This interesting procedural quandary is captured in a footnote in Clay v. Sun Insurance Office Limited, 363 U.S. 207, 212 n.3 (1960):

The statute provides that the Supreme Court of Florida may devise rules to govern such certifications; it appears that to date such rules have not been promulgated. See Kurland, Toward a Co-operative Judicial Federalism, 24 F.R.D. 481, 489. It is not to be assumed, however, that such rules are a jurisdictional requirement for the entertainment by the Florida Supreme Court of a certificate under [section] 25.031.

Cochran at 165. It is unclear why there was a delay or reluctance on the part of the Florida Supreme Court to implement appropriate court rules for certification.

The United States Supreme Court, however, has not hesitated, and has certified questions of state law and encouraged the process to lower

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federal courts. Id. at 166 n.45-47. Similarly, each of the federal circuit courts allows for the discretionary certification of state law questions where that state’s statutory law or court rules allow or provide for such a process.

Uniform Acts. Further, there have been two uniform acts drafted, first in 1967, and second in 1995, entitled the “Uniform Certification of Questions of Law [Act] [Rule]” (the “Uniform Act”). The “Prefatory Note” of the 1995 Draft of the Uniform Act describes the history and need for the Uniform Act and stated that, as of 1995, every federal circuit court had utilized the certification procedure. Uniform Act at 1-3.

The Uniform Act proposes the broadest certification process, allowing both federal and state appellate courts to certify questions of state law to the highest court of that state. Id. at 2. Professor Cochran in 2003 noted, however, that “[i]n practice, the range of courts permitted to certify varies greatly from jurisdiction to jurisdiction.” Cochran at 167.

Variance among the States. A recent paper presented in March 2015 details the certification rules and requirements—with respect to insurance-coverage issues—in the various federal circuit courts, some federal district courts and the fifty state courts. See Various Authors, Detour Ahead: Federal Court Certification of Questions of Insurance Coverage Law to State Supreme Courts, ABA INSURANCE COVERAGE LITIGATION COMMITTEE CLE SEMINAR, March 4-7, 2015 (“Detour Ahead”).

Broad approach. Some states allow certification to come from a mix of all federal courts and all intermediate and highest appellate courts of the states (and in some cases, from “tribal, Canadian and Mexican courts.”) See Cochran at 167. For example, Arizona allows the United States Supreme Court, federal courts of appeal and district courts, as well as tribal courts to certify questions. ARIZ. REV. STAT. ANN. § 12-1861. California allows certification to come from the U.S. Supreme Court, federal courts of appeal, and the court of last resort of any state, territory or commonwealth. CAL. R. CT. 8.548. Finally, Delaware Supreme Court Rule 41 accepts certification from the U.S. Supreme Court, any lower federal court, the highest court of any state, Delaware courts, the United States Securities and Exchange Commission and any U.S. Bankruptcy court. See also “Detour Ahead.”

Restrictive approach. Other states are quite restrictive. For example, New Jersey’s certification process currently only allows for certified questions to come from the Third Circuit. N.J. COURT R. 2:12A. New Jersey was also a relative newcomer to the certification process, as its rule was not enacted until 1999. The rule in Illinois limits certification to questions from the U.S. Supreme Court and the Seventh Circuit. ILL. SUP. CT. R. 20. See also “Detour Ahead.”

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Middle ground. Still other states take a middle approach, allowing only federal courts to certify questions. For example, Florida allows certification from the U.S. Supreme Court and any federal court of appeals. FLA. STAT. ANN. § 25.031. Vermont will accept certified questions from any federal court. VT. R.A.P. Rule 14. Texas accepts a certified question from any federal appellate court, but not a district court. TEX. R. APP. P. 58.1. See also “Detour Ahead.”

Some states, including Missouri, still do not allow any certification of questions to the state supreme court. Grantham v. Missouri Dep’t of Corr., No. 72576, 1990 WL 602159, at *1 (Mo. July 13, 1990) (en banc); Washington v. Countrywide Home Loans, Inc., 747 F.3d 955, 958 n.2 (8th Cir. 2014).

3. Practical considerations

While it might not be thought of as a form of interlocutory appellate process, certification certainly allows for an appellate court’s review of legal issues without the necessity of a final judgment generally required under federal law. See Cochran at 161. Using Ohio as an example, certification is not an appeal since Ohio’s rule “requires that the certifying court, whether trial or appellate, has not resolved a legal issue that ‘is determinative of the case. . . .’” Id. at 170. Yet, certification could be viewed as an extreme form of interlocutory review as a “district court’s question may be accompanied by a ‘record’ that is simply a complaint and briefs on a motion to dismiss.” Id. at 171 (examining Ohio’s rule and process).

Overall, certification requests and their possibility for success are going to be framed by the rule and case law of the court from which a party is seeking to certify a question as well as the statute and/or rule and applicable case law of the highest court of the state to which one is seeking to certify the question. Moreover, the decision whether to invoke the certification process rests in the sound discretion of the federal judge or judges making the decision. See, e.g., L. Cohen & Co., Inc. v. Dun & Bradstreet, Inc., 629 F. Supp. 1419, 1423 (D. Conn. 1986).

At first glance, it is difficult to generalize across the board as to strategies for supporting or opposing certification requests. However, a number of issues appear to consistently be raised in such matters and considered by courts and, therefore, should be considered by litigants and lawyers.

a. Possibility of delay

It can be argued that in most cases certification of a state-law question will engender a longer delay in the litigation than allowing the decision to be made by a federal court in the normal course of litigation. See

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L. Cohen & Co., Inc., 629 F. Supp. at 1422; Acquaviva, The Certification of Unsettled Questions of State Law to State High Courts: The Third Circuit Experience, PENN STATE L. REV. 377, 386-87 (2010). A proponent of certification may be well served to concede the delay argument and emphasize that the issue to be certified is not “routine,” and point out the “exceptional circumstances” that “justify the time and expense inherent in the certification procedure.” L. Cohen & Co., Inc., 629 F. Supp. at 1424. Often the benefits of certification at the district court level include avoiding extensive litigation costs and judicial resources. An opponent of certification can argue, in addition to delay, that submission of such a routine matter is an unjustified burden on the state-court system. See Carolina Cas. Ins. Co. v. McGhan, 572 F. Supp.2d 1222, 1226 (D. Nev. 2008); L. Cohen & Co., Inc., 629 F. Supp. at 1422-24.

b. Timing of certification request

Closely related to the delay issue is the timing of the request. It appears to be the better practice to make the request for certification earlier rather than later, and certainly before a federal district court renders a decision on the issue. See Carolina Cas. Ins. Co., 572 F. Supp.2d at 1226 (requiring “particularly compelling reasons” when the party requesting certification already lost on the issue before the federal district court). It should be recognized, however, that federal court rules may impact the timing of a certification request, particularly at the appellate level. See, e.g., 3D CIR. L.A.R. 110.1 (2008) (motion for certification to be included in the moving party’s brief and separately e-filed and certification made by the court after the briefs are filed in the Third Circuit).

c. Other considerations

Significance and uncertainty of the issue. The significance of the state-law issue and whether it has truly been unanswered by the state court are two factors that should be addressed by both the proponent and opponent of certification.

Broad application and frequency of the issue. Closely related is whether the issue has broad application and the frequency with which the particular legal issue is likely to recur in future litigation. Broad application and high frequency are two further factors in favor of certification. See Carolina Cas. Ins. Co., 572 F. Supp.2d at 1226; L. Cohen & Co., Inc., 629 F. Supp. at 1423-24.

Availability of other sources. Even if the issue is currently unanswered, an opponent of certification can point to the “availability of resources—such as statutory and case law, regulations, legislative histories, and agency decisions—that would assist [the court] in resolving the issue. . . .” L. Cohen & Co., Inc., 629 F. Supp. at 1423. In addition, there

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may be case law in that federal jurisdiction addressing the state-law issue. These arguments in opposition to certification can be even more persuasive where the district court judge or circuit court judges sit in the state and/or are familiar with its laws and case law. L. Cohen & Co., Inc., 629 F. Supp. at 1424. Obviously, in other cases, where the federal court is seeking to ascertain and apply the law of a state outside its boundaries, the proponent for certification can have a stronger case.

Federalism and comity. Finally, there may be other factors involving federalism and comity that weigh against certification, as “‘judgment, restraint and discretion’” require that the procedure be limited to “only those unusual questions that are particularly suitable for resolution by” the state court. L. Cohen & Co., Inc., 629 F. Supp. at 1425. Parties to a certification process should be aware of the state rules and case law on accepting or declining certification, as it may provide the basis to support a party’s position.

For example, in Rufino v. United States, 514 N.Y.2d 310 (1987), the New York Court of Appeals declined to accept certification of two questions from the Second Circuit. The basis for the Court of Appeals’ decision was the pending appeal at the Appellate Division, First Department on the very questions at issue in the Second Circuit. The Court of Appeals declined certification in favor of allowing

the resolution of significant State law questions to secure the benefit afforded by [New York’s] normal process—the considered deliberation and writing of [New York’s] intermediate appellate court in a pending litigation.

Id. at 312.

G. Appeals under the Collateral Order Doctrine

A decision is ordinarily considered final and appealable under 28 U.S.C. § 1291 only if it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945). However, the Supreme Court has recognized “a narrow class of collateral orders which do not meet this definition of finality, but which are nevertheless immediately appealable under § 1291.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996). This “collateral order doctrine” is also called the Cohen collateral order doctrine, named after the seminal United State Supreme Court decision, Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949).

1. Requirements

The Supreme Court has established a three-part test for determining whether an order that does not finally resolve litigation is nevertheless

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appealable under 28 U.S.C. § 1291. Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009).

a. The order must conclusively determine the disputed question.

Orders that are made with “the expectation that they will be the final word on the subject addressed” meet this first prong of the test. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 n.14 (1983); see also Mohawk, 558 U.S. at 105.

b. The order must resolve important questions separate from the merits.

The Supreme Court has described this second prong as a “distillation of the principle that there should not be piecemeal review of ‘steps towards final judgment in which they will merge.’” Moses H. Cone, 460 U.S.at 12 n.13 (quoting Cohen, 337 U.S. at 546). Thus, this requirement requires the issues to be “sufficiently strong to overcome the usual benefits of deferring appeal until litigation concludes.” Mohawk, 558 U.S. at 107.

As one might expect, “the jurisprudence surrounding “the importance criterion is somewhat murky.” Kelly v. Ford Motor Co. (In re Ford Motor Co.), 110 F.3d 954, 959 (3d Cir. 1997). Some courts actually treat importance and separability as two separate factors. See, e.g., Acosta v. Tenneco Oil Co., 913 F.2d 205, 207-08 (5th Cir. 1990). Others treat them as part of one prong. Goodman v. Harris County, 443 F.3d 464, 469 (5th Cir. 2006). The Supreme Court has discussed importance as essentially overriding all elements of the doctrine. See Cohen, 337 U.S. at 546 (describing the doctrine as covering those orders “too important to be denied review”); see also Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 502 (Scalia, J., concurring) (“The importance of the right asserted has always been a significant part of our collateral order doctrine.”).

c. The order must be effectively unreviewable on appeal from the final judgment.

That the order is effectively unreviewable on appeal is the core characteristic of the collateral order doctrine. See Mitchell v. Forsyth, 472 U.S. 511, 525 (1985); Pan Eastern Exploration Co. v. Hufo Oils, 798 F.2d 837, 840 (5th Cir.1986). A classic example of unreviewability is immunity from suit, “for the essence of . . . immunity is its possessor’s entitlement not to have to answer for his conduct in a civil damages action.” Mitchell, 472 U.S. at 525. Since that entitlement is immunity from suit, rather a mere defense to liability, “it is effectively lost if a case is erroneously permitted to go to trial.” Id. at 526. Accordingly, the denials of various forms of immunity have been held to be immediately-appealable collateral orders. E.g., P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144-45

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(1993) (Eleventh Amendment immunity); Mitchell, 472 U.S. at 527-30 (section 1983 qualified immunity); Nixon v. Fitzgerald, 457 U.S. 731, 742, (1982) (absolute executive immunity); Helstoski v. Meanor, 442 U.S. 500, 508 (1979) (Speech and Debate Clause immunity); Brown v. Tex. A & M Univ., 804 F.2d 327, 332 (5th Cir.1986) (Title VII qualified immunity).

But the unreviewable prong does not permit the immediate appeal of the denial of any motion that, if it had been granted, would obviate a trial—that would render nearly every motion denial “unreviewable.” Will v. Hallock, 546 U.S. 345, 350-52 (2006). Thus, the mere avoidance of trial is insufficient; the test is “avoidance of a trial that would imperil a substantial public interest.” Id. at 353.

2. Categories of orders reviewable under the collateral order doctrine

In determining whether an order meets the three-prong test of the collateral order doctrine, the Supreme Court emphasizes that courts are not to “engage in an ‘individualized jurisdictional inquiry.’” Mohawk, 588 U.S. at 107 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 473 (1978)). Rather, they are to focus on “‘the entire category to which a claim belongs.’” Id. (quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994)). The Fifth Circuit summarizes this approach as making the decisions—not on a case-by-case basis—but “on a type-of-order-by-type-of-order basis.” Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 173 (5th Cir. 2009); see also Comm’r Internal Revenue Serv. v. JT USA, LP, 630 F.3d 1167,1172 (9th Cir. 2011) (“We must be cautious in applying this doctrine, because once one order is identified as collateral, all orders of that type must be considered collaterally.”)

The following is a non-exhaustive list of examples—in addition to orders addressing immunity, discussed above—of categories of orders that have been reviewed under the collateral order doctrine:

Abstention-based stay, dismissal, and remand orders

Pullman abstention – Moses H. Cone, 460 U.S. at 9 & n.8.

Burford abstention – Quackenbush, 517 U.S. at 712 (abstention-based remand order).

Colorado River abstention – Moses H. Cone, 460 U.S. at 9 (abstention-based stay order); but see Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275 (1988) (order denying motion to stay or dismiss under Colorado River abstention is not appealable under doctrine).

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Discovery orders directed to third parties – Church of Scientology v. United States, 506 U.S. 9, 18 n.11 (1992); In re Grand Jury, 705 F.3d 133, 138 (3d Cir. 2012); United States v. Krane, 625 F.3d 568, 572-73 (9th Cir. 2010); see also Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 617-18 (7th Cir. 2010).

Rule 35 Order compelling psychiatric examination – Schlagenhauf v. Holder, 379 U.S. 104, 109-12 (1964).

Order denying motion to remand when included in appeal of order denying Eleventh Amendment Immunity – Tex. v. Real Parties in Interest, 259 F.3d 387, 391 (5th Cir. 2001).

Order denying motions to intervene – Edward v. City of Houston, 78 F.3d 983, 992 (5th Cir. 1996).

Order that plaintiff is not required to post security for payment of costs – Cohen, 337 U.S. at 546; see also Result Shipping Co. v. Ferruzzi Trading USA, Inc., 56 F.3d 394, 398-99 (2d Cir. 1995) (order refusing to require party to post security bond); In re United States ex rel. St. Paul A.M.E. Church Housing Corp., 541 F.2d 463, 463-64 (4th Cir. 1976) (order requiring bond).

Turnover order permitting receiver to take possession of and sell corporate assets of nonparties – Maiz v. Virani, 311 F.3d 334, 339 n.4 (5th Cir. 2002).

Order on motion to vacate attachment – Swift & Co. Packers v. Compania Colombiana Del Caribe, S.A., 339 U.S. 684, 688-89 (1950)

Order approving receiver’s plan of distribution in enforcement action brought by the SEC – SEC v. Wealth Mgmt. LLC, 628 F.3d 323, 330-31 (7th Cir. 2010).

Order enforcing an IRS summons – United States v. Jose, 519 U.S. 54, 57 (1996).

3. Categories of orders not reviewable under the collateral order doctrine

As a general rule, an order on an issue that can be characterized as a defense to liability is not appealable under the collateral order doctrine. See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (noting immunity from suit, rather immunity from liability, made order denying plea for governmental qualified immunity appealable under collateral order doctrine).

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The following is a non-exhaustive list of categories of orders that have been held not reviewable under the collateral order doctrine:

Order denying assertion of the Federal Tort Claims Act’s judgment bar – Will v. Hallock, 546 U.S. 345, 349 (2006).

Order on motion seeking to enforce forum-selection clause – Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 496 (1989).

Order on motion to dismiss on forum non conveniens – Van Cauwenberghe v. Biard, 486 U.S. 517, 527 (1988).

Order on motion to dismiss based on immunity from civil process – Van Cauwenberghe v. Biard, 486 U.S. 517, 526-27 (1988).

Order denying motion to stay or dismiss pending state-court action – Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275-76 (1988).

Order denying motion to enforce settlement agreement – Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 884 (1994).

Order denying intervention as of right, but granting permissive intervention – Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 375-76 (1987).

Order denying Rule 54(b) certification motion – McCall v. Deeds, 849 F.2d 1259, 1259 (9th Cir.1988); Makuc v. Am. Honda Motor Co., 692 F.2d 172, 173 (1st Cir.1982); Cruey v. Early, 396 F. App’x. 940, 941 (4th Cir. 2010) (per curiam) (unpublished); Brunswick Bowling & Billiards Corp. v. Mendes, Inc., No. 95–2209, 1995 U.S. App. LEXIS 35538, at *1 (6th Cir. Nov. 21, 1995) (unpublished order).

Order denying motion to disqualify counsel – Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 440 (1985).

Sanction orders against counsel – Cunningham v. Hamilton County, Ohio, 527 U.S. 198, 210 (1999).

Disclosure orders adverse to attorney-client privilege – Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 114 (2009).

4. Procedure for appealing under the collateral order doctrine

Appeals of orders under the doctrine are governed by the procedures for appeals as a matter of right under Rules 3 and 4 of the Federal Rules of Appellate Procedure. United States v. Bush, No. 93-3475, 1995 WL

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128304, at *1 (7th Cir. Mar. 23, 1995); So. Ute Indian Tribe v. Amoco Production Co., 2 F.3d 1023, 1028-29 (10th Cir. 1993); United States v. Moats, 961 F.2d 1198, 1203 (5th Cir. 1992).

III. Factors to Consider in Determining Whether to Seek Discretionary Review

As with the decision to appeal a final judgment on the merits, the aggrieved party must take into account several factors in weighing whether to seek interlocutory, discretionary review. Many of the considerations are obvious; others require strategic analysis of the ramifications for the case at issue and, more broadly, the effect of the resulting precedent on issues that will arise again for parties embroiled in nationwide litigation. Below are several key considerations, several of which were address in the section on certification to state supreme courts. Supra Part F.

1. Whether this will be the first appellate decision on this issue. First appellate decisions on emerging legal issues are critical, because they shape the future debate by framing the issue and legal analysis that courts will later follow. Sometimes it makes sense to wait for further development in the trial courts before there is appellate review. This factor requires communication between businesses within an industry as well as trade associations within that industry.

2. Whether the particular facts of the case create a risk of making bad law where that risk may be different where the same legal issue is presented on different facts. “Bad facts make bad law” is a well-known axiom that has proven more accurate than not. Some cases have such unfavorable facts that those facts may overshadow the importance of the issue. If the issue is one that is presented in multiple cases, it often makes sense to choose carefully the case in which you seek review.

3. Whether the timing and jurisdiction are favorable. Counsel and her client need to consider whether winds of change are occurring in the court to which the appeal will be taken (more important in state appeals in states where the judiciary is elected). Similarly, if the issue is, or will be, presented in multiple jurisdictions, is this jurisdiction the right one? If it is a jurisdiction that has the reputation for expanding liability, a client should avoid appealing novel issues seeking to contract liability in that court. Conversely, when a court is known for limiting liability, it may be the best venue for the first few test cases on a new or developing argument to accomplish that goal.

4. Effect of delay. Any interlocutory appeal will most likely delay disposition of the case on the merits. Of course, depending on the issue—particularly in section 1292 and Rule 54(b) appeals of certified questions and orders—may actually accelerate the disposition of the merits or foster

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settlement. But practical effects should be considered, of course, such as availability of witnesses and certain types of evidence, as well as the economic consequences to the client of a delay.

5. Cost. The cost of the interlocutory appeal must be realistically communicated by counsel to the client as part of the analysis of whether to seek review now, rather than after entry of final judgment on the merits. But as mentioned above, the appeal might actually reduce the final cost of litigating the suit by narrowing the issues that ultimately will be tried. And where the issue presented is one that affects multiple cases, the cost of litigating those cases often far exceeds the cost of an appeal.

6. Whether the team should be expanded. Because the appeal is interlocutory, client and counsel may not have considered adding additional attorneys to the team, including appellate counsel and counsel with particular expertise in the issue being appealed (who may be the same person). Knowledge of the appellate court will assist in evaluating the merits of seeking interlocutory review. And in those cases in which the proceedings in the trial court are not stayed during the interlocutory appeal, appellate counsel will enable trial counsel to devote their time and focus on trial-court proceedings, including discovery.