Chicago products liability partner Bill Essig was quoted in a January 24, 2014, article in Bloomberg BNA’s Class Action Litigation Report about a recent Seventh Circuit opinion clarifying standards for successive Rule 23(f) interlocutory appeals of class certification orders.
In Driver v. Apple Illinois LLC, the appellate court denied the appellant’s second petition for a review of the court’s initial decision on a Rule 23(f) appeal upholding the first class certification order in a Fair Labor Standards Act and Illinois Minimum Wage Act case. In the opinion, Judge Posner reminded litigants that they cannot seek leave for a second or subsequent interlocutory appeal of a class certification order under Rule 23(f) unless the trial court’s new certification order “materially” alters the previous order granting or denying class certification.
As Bill noted in the article, “Driver reinforces that litigants are likely to only get one shot at an interlocutory appeal of a class certification order under Rule 23(f), and that additional bites at the apple are highly unlikely to be favored unless the appellate court finds a “material alteration” of the prior order.”
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