Green v. Occidental Petroleum Corp. - 541 F.2d 1335 (9th Cir. 1976)

Rule:

In the Ninth Circuit, class certification is not normally appealable as a final order under 28 U.S.C.S. § 1291. 28 U.S.C.S. § 1292(b), on the other hand, provides a method for appellate review of non-final orders in civil actions. However, 28 U.S.C.S. § 1292(b) requires that the district judge be of the opinion that the criteria for 28 U.S.C.S. § 1292(b) appeal are met, and vests the Court of Appeals with discretion to permit the appeal. Concurrence of both the district court and the appellate court is necessary, and the appellate court is without power to assume unilaterally an appeal under § 1292(b). Nor is mandamus to direct the district judge to exercise his discretion to certify the question an appropriate remedy.

Facts:

Plaintiffs filed several lawsuits, which were transferred to the district court below, against defendant Occidental Petroleum ("Occidental") and other defendants alleging violations of the federal securities laws due to allegedly misleading financial statements and other reports. The district judge certified the case as a class action under FED. R. CIV. P. 23(b)(1) and (b)(3), and defendants seek to appeal therefrom. Defendants also seek a writ of mandamus. 

Issue:

Could Occidental appeal under 28 U.S.C. § 1291?

Answer:

No.

Conclusion:

The appellate court held that appeal of class certification under 28 U.S.C.S. §1292(b) was incorrect because there was no concurrence between the courts regarding propriety of appeal. Class certification under Fed. R. Civ. P. 23(b)(1) was improper since plaintiffs' action for damages did not show a risk of inconsistent or varying adjudications. Class certification under Fed. R. Civ. P. 23(b)(3) was not subject to attack through writ of mandamus because the lower court correctly decided requirements under the rule were met.