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Law School Case Brief

Asher v. Baxter Int'l, Inc. - 505 F.3d 736 (7th Cir. 2007)


The United States Court of Appeals for the Seventh Circuit has held that the 10 days under Fed. R. Civ. P. 23(f) cannot be extended by making another motion for class certification. A timely motion for reconsideration of an original order granting or denying class certification extends the period for appeal, but an untimely or successive motion does not. Other circuits have come to the same conclusion. The time limit would not be worth anything if it restarted with each new motion. Then the rule might as well say "at any time" instead of "within ten days." A short limit would be turned into an indefinite one. Rule 23(f) sets a brief limit because the appeal is interlocutory; if the disposition is not reversed swiftly, the case should proceed in the district court. Arguments pro and con about class certification then can be made on appeal from the final decision. There is no reason to drag out the prospect of interlocutory review when a new window of appellate review will open once a final decision has been reached.


Six security lawsuits were filed by various investors against defendants, a corporation and were consolidated in the United States District Court for the Northern District of Illinois, Eastern Division. The district court denied summarily dismissal under the safe harbor created by the Private Securities Litigation Reform Act of 1995, 15 U.S.C.S. § 78u-5(c), for forecasts and other forward-looking statements. Three years after defendants' motion for summary judgment was denied, no investor had yet been designated as a lead plaintiff in the consolidated suit. Investor Asher sought lead plaintiff status and moved for class certification after the district court, in 2005 and 2006, rejected several similar motions. Asher filed an interlocutory appeal after the district court denied its motion for class certification. 


In a case involving six consolidated securities actions and the safe harbor provision of the Private Securities Litigation Reform Act of 1995, where the district court denied class certification, was an interlocutory appeal timely filed under Fed. R. Civ. 23(f)?




The United States Court of Appeals dismissed the interlocutory appeal for being untimely filed. To be timely under Fed. R. Civ. P. 23(f), an interlocutory appeal had to be filed within 10 days after the district court first entered an order denying class certification. That occurred in 2005. The time for taking an interlocutory appeal could have been postponed, had the district court merely denied the prior movants' requests for lead plaintiff status and delayed ruling on a class certification motion; however, that had not happened in the case. Although 28 U.S.C.S. § 1292(b) provided a possible alternative avenue for interlocutory review, that avenue was closed because appellant did not timely seek certification to file an interlocutory appeal under § 1292(b). The Court explained that more than three years earlier, it held that the complaint in these six consolidated securities actions could not be summarily dismissed under the safe harbor provision for forecasts and other forward-looking statements. At that time, the Court expected that discovery sufficient to make a prompt decision about the safe harbor would follow its opinion, because the safe harbor is supposed to be applied at an early stage. What happened instead was extended wrangling about who should be the "lead plaintiff" under the 1995 Act, and thus which law firm would control the plaintiffs' side of the litigation.

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