When the Rules Committee amended Rule 23 in 1998 to allow for interlocutory appeals, it made them discretionary. The result, as I’ve written before, is that class action litigators have had to make these appeals attractive to appellate courts in much the same way that appellate litigators must prepare certiorari petitions

But, as it turns out, there is one way for plaintiffs at least to ensure that an appellate court hears a denial of certification.

In Berger v. Home Depot USA, Inc., No. 11-55592, 2014 U.S. App. LEXIS 2059 (9th Cir. Feb. 3, 2014), the plaintiff had filed a class action against Home Depot, alleging that it automatically imposed a surcharge on tool rentals for an optional damage waiver. The district court denied certification, leaving only the individual case. Rather than prosecute or settle the named plaintiff’s individual claims, his counsel stipulated to the dismissal of the claim, and then appealed the dismissal. The tactic worked. As the Ninth Circuit held:

Home Depot challenges our jurisdiction, relying on our published order in Seidman v. City of Beverly Hills, 785 F.2d 1447 (9th Cir. 1986). In Seidman, we concluded that we had no jurisdiction to hear an appeal from a stipulated dismissal of a putative class action after the lead plaintiff settled his individual claims against the defendant. However, Seidman does not control here. As Seidman correctly noted, a final judgment must be adverse to a party in order to be appealable. While a stipulated dismissal pursuant to a settlement does not have the adversity required for appellate jurisdiction, absent a settlement, a stipulation alone does not destroy that adversity. …

Here, there is no allegation that the parties have entered into a settlement. After receiving the district court’s denial of class certification, Berger voluntarily stipulated to the dismissal of his complaint with prejudice so as to reach a final judgment. We conclude that this stipulated dismissal is sufficiently adverse to his interests to allow him to appeal.

(Internal citations omitted, emphasis added.)

The tactic is still a risky one: as the Ninth Circuit pointed out, by focusing on the denial of certification, the plaintiff may waive any review of the merits of the claim, which could cause problems if there are other viable named plaintiffs who could represent a similar class. However, given the importance of certification to most class claims, that risk is likely to be minimal.

Incidentally, the Ninth Circuit affirmed the denial of certification because there were too many individualized issues to justify class treatment. Which just goes to show: plaintiffs may now stand a better chance of getting an appeal heard, but they still have to bring the goods once they do.