"Cutting Class"

Attorney H. Scott Leviant, author of the new blog The Complex Litigator, had a Forum piece in Tuesday's Daily Journal called "Cutting Class" (subscription). It primarily addresses A.B. 1905, which died in committee last month. That bill would have allowed defendants to immediately appeal orders granting class certification. As Scott ably points out, such a rule would create an automatic interruption of pretty much every class action case, while every order granting class certification is appealed. The interruption would probably last two years or more, depending on the docket of the particular appellate district where the appeal is filed.

There is a good reason why orders denying class certification are immediately appealable while orders granting certification are not. Orders denying certification of an entire class are considered final and not subject to reconsideration or later amendment. Orders granting certification, by contrast, are constantly subject to challenge through repeated motions for decertification both before and after trial. Defendants take advantage of this right — a right that plaintiffs who lose class certification do not enjoy — all the time. The proponents of A.B. 1905, who claimed to want parity in the system, could have drafted a bill that would make orders denying certification subject to reconsideration and amendment by the trial courts instead of immediately appealable. That, of course, does not comport with their broader goal, which is (in Scott's words) "the immediate cessation of litigation in the trial court upon the issuance of an order granting or denying certification" and the "plac[ing of] class actions in the deep freeze of appellate activity until the cost of litigation broke the plaintiff."

Congratulations to Scott on his second published Daily Journal article.