Earlier this month, the Sixth Circuit issued a two-page decision in In re Marietta Mem. Hosp., No. 17-0312, 2018 U.S. App. LEXIS 460 (6th Cir. Jan. 8, 2018) without much fanfare. The Court denied defendants' petition to appeal the district court's certification of a class action in a Fair Labor Standards Act case. Despite the seemingly innocuous nature of the decision, the Court provides rare insight into what factors it considers when evaluating whether to permit an appeal from a class certification decision under Fed. R. Civ. P. 23(f). Specifically, the Court explained that it "[t]ypcially" considers four factors:
"(1) whether the petitioner is likely to succeed on appeal under a deferential abuse-of-discretion standard;
(2) whether the cost of continuing the litigation for either the plaintiff or the defendant presents such a barrier that subsequent review is hampered;
(3) whether the case presents a novel or unsettled question of law; and
(4) the procedural posture of the case before the district court."
For parties seeking review of a class certification decision under Rule 23, In re Marietta Mem. Hosp. provides the organizational and substantive framework necessary to garner the Court's attention. Since Rule 23(f) requires a petition for permission to appeal be filed within 14 days of entry of the class certification order, the Court's decision is a helpful tool for parties to evaluate whether to file a petition, as well as focus and streamline arguments when time is of the essence.
