On May 3, 2011, the Second Circuit issued an important opinion in Fleischman, et al. v. Albany Medical Ctr., et al., No. 10-0846 (2d Cir. May 3, 2011), denying a petition for interlocutory appeal of a district court’s denial of a motion to amend a class certification order because the petition was untimely pursuant to Rule 23(f).
In Fleischman, two named plaintiffs sought to represent a class of approximately 2,300 registered nurses who worked in hospitals in the Albany metropolitan area at any time from June 20, 2002 until the present. The petitioners’ complaint alleged two violations: (1) the hospitals conspired to depress the compensation of registered nurses in violation of antitrust law; and (2) a conspiracy to exchange information in violation of antitrust law. On July 28, 2009, the district court granted the petitioners’ class certification motion in part. Subsequently, the respondents brought a motion for reconsideration to clarify whether the district court had also certified a class on the second count of the complaint. On September 17, 2008, the district court granted the motion and certified the class in part as to both counts.
After the completion of discovery, the petitioners moved to amend the class certification order, seeking certification of “the issues of impact and damages, but solely as to a narrower class of registered nurses. . . that include[d] only the core group of Staff Registered Nurses” in the Albany hospitals. On February 16, 2010, the district court denied the motion because the petitioners had not presented any new facts, but rather a new methodology for assessing facts that were readily available to them at the time of their initial motion. The district court held that a change in methodology “did not ‘constitute the requisite changed circumstances’ to merit amending the certification.”
The petitioners then filed a petition with the Second Circuit, pursuant to Rule 23(f), for leave to appeal the denial of their motion. The Second Circuit noted that, under Rule 23(f), an interlocutory appeal from an order granting or denying class certification may be permitted if the petition is filed within 14 days after the order is entered. The issue before the Second Circuit was whether the district court’s order denying the motion to amend the class certification order constituted “an order granting or denying class-action certification” under Rule 23(f). The Second Circuit held that the denial of a motion to amend the class was not “an order granting or denying class-action certification” for Rule 23(f) purposes.
Accordingly, the Second Circuit determined that that the petition was untimely because it was not filed within the 14-day period following the district court’s initial class certification order on July 28, 2008, especially where the motion to amend was filed more than 14 days after the original class certification order.
The Second Circuit highlighted that Rule 23(f)’s 14-day filing requirement was both “rigid and ‘inflexible’,” and that it was “expressly barred from extending the time to file a petition for permission to appeal.” The Second Circuit reasoned that if a denial of amendment to an order granting class certification could reset Rule 23(f)’s clock for appeal, then any litigant could simply avoid the deadline in the first place by filing a motion to amend or decertify the class after the initial court order. According to the Second Circuit, this, in essence, would provide an end-run around and “‘leave Rule 23(f)’s deadline toothless.’”
This ruling is important for employers because it imparts a valuable procedural rule when confronted with class actions. Following an order granting or denying certification, a party wishing to file an interlocutory appeal must act quickly and file it within the strict 14-day time limit.