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Media Alerts - In Re: National Football League Players Concussion Injury Litigation - Third Circuit
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December 29, 2014
  In Re: National Football League Players Concussion Injury Litigation - Third Circuit
Headline: Third Circuit

Area of Law: Complex Litigation, Class Actions

Issues Presented: Whether the Third Circuit has jurisdiction under Federal Rule of Civil Procedure 23(f) over the district court's conditional grant of class action certification?

Brief Summary: The Third Circuit denied a petition by objectors who sought for a reversal of the district court's conditional class action certification. The Court declined to use its discretionary power to hear the case and concluded that it did not have jurisdiction under Rule 23.

Extended Summary: As part of the Multidistrict Litigation (MDL) on concussion, the district court conditionally grated certification of the settlement class. Objectors sought reversal of this conditional grant. The Third Circuit first had to determine whether it had jurisdiction to hear the interlocutory appeal. It ultimately decided that it did not. The Third Circuit did not reach the merits of the objectors' arguments.

As an interlocutory appeal, the Third Circuit had to determine if this appeal was in accord with an exception to the general rule that the court of appeals only has jurisdiction to hear appeals from final orders. Rule 23(f) allows parties to petition the court for a permission of appeal from an order granting or denying class-action certification under Rule 23. The grant of the petition is discretionary for the court of appeals.

In an issue of first impression, the Third Circuit had to determine what type of order the Court may review, including conditional certification. The Court held that the only type of Rule 23 order that the circuit courts have broad discretion over in granting interlocutory review is an order for class-action certification used pursuant to 23(c)(1). However, it is under Rule 23(e) that courts are allowed to conditionally certify the settlement class. The Third Circuit held that any such order that conditionally, or as the Third Circuit prefers to refer to it, "preliminarily" address class certification under Rule 23(e) does not fall under Rule 23(f)'s broad grant of discretionary jurisdiction.

The Third Circuit then found that the district court's order which is the basis for this appeal was not issued pursuant to Rule 23(c)(1). Rather, the district court used its power under Rule 23(e). The Court found that in fact the district court did not certify the class. Instead, it reserved that analysis for after a "fairness hearing," The objectors made various arguments that the Court did not find meritorious.

Judge Ambro dissented. He would have instead denied the petition for review because granting it would result in inefficient piecemeal litigation that would interfere with the formal fairness hearing on the settlement.

To read the full opinion, please visit

Panel (if known): Ambro, Smith and Jordan, Circuit Judges

Argument Date: September 10, 2014

Date of Issued Opinion: December 24, 2014

Docket Number: No. 14-8103

Decided: Petition denied.

Case Alert Author: Antoinette Snodgrass

Counsel: Michele D. Hangley, William T. Hangley, Steven F. Molo, Thomas J. Wiegand, Eric R. Nitz, Linda S. Mullenix, Counsel for Petitioners; Bruce A. Birenboim, Brad S. Karp, Theodore V. Wells, Jr., Beth A. Wilkinson, Dana B. Klinges, David R. Buchanan, Diogenes P. Kekatos, Chistopher A. Seeger, Samuel Issacharoff, David D. Langfitt, Gene Locks, Arnold Levin, Steven M. Marks, Dianne M. Nast, Stephen F. Rosenthal, Sol H. Weiss, Anapol Schwartz, Counsel for Respondents; Alan B. Morrison, Scott L. Nelson, Allison M. Zieve, Amicus Counsel for Petitioners

Author of Opinion: Judge Smith

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 12/29/2014 04:20 PM     3rd Circuit  

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