Class or collective actions form an increasingly important of
international practice. In the pursuit and evolution of that
practice, as we have posted before, tribunals elsewhere follow the
development of U.S. class action law and practice.
George McReynolds, et al. v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., No. 11-3639
(7th Cir. 2012), presents a careful analysis of two
recurring issues: first, whether the time limits for an
interlocutory appeal of a class action order is statutory or
jurisdiction on the one hand or something closer to discretionary
on the other; and, second, what effect the Supreme Court's
decision in Wal-Mart Stores v. Dukes, 131 S. Ct. 2541 (2011), might
have had on cases of huge numbers of potential class members.
On the first of the issues, Rule 23(f) requires that leave to
appeal be sought from the court of appeals within 14 days of the
entry of the order granting or denying certification. The Seventh
Circuit observed that, recently, the Supreme Court "has been
moving toward a definition of the subject-matter jurisdiction of
the federal courts that includes all case that these courts are
'conpetent', in the sense of legally empowered, to
decide". This "implies", said the Court of Appeals,
"that deadlines for appealing are not jurisdictional, since
they regulate the movement upward through the judicial hierarchy of
litigation that by definition is within federal jurisdiction".
Surveying other Supreme Court holdings with emanations in the other
direction, the Court of Appeals concludes:
What we take away from this formula is that if the Court has
traditionally treated a particular statutory deadline as
jurisdictional it will go on doing so, [citations omitted], even
though doing so doesn't comport with the new
With that clear standard in mind, the Court of Appeals ruled
that Rule 23(f)'s timing is not jurisdictional. It is one of
the very few statutory deadlines that grant discretion to the Court
of Appeals, and the Court was unwilling to follow divergent
emanations from the Tenth Circuit (Carpenter v. Boeing
Co., 456 F.3d 1183 (10th Cir. 2006)).
On the second issue, the Court of Appeals was unwilling to read
Wal-Mart as requiring denial of class certification merely
because a company is so large, and its employee base so disparate
or dispersed, that decisions were not made from the very top
echelons of a company but were delegated to intermediate managers.
Said the Court of Appeals, there exist subsidiary issues that might
well be suitable for class-wide determination.