In In re National Football League Players Concussion Injury Litigation, -- F.3d --, 2014 WL 7331936 (3d. Cir. Dec. 24, 2014), the Third Circuit held that seven retired NFL players cannot challenge the settlement agreement reached between the parties at this time.  The Third Circuit found that the District Court’s order “conditionally” certifying the class in the context of its preliminary approval of the class settlement was not an order “granting or denying class action certification” that was appealable under Rule 23(f).

The players challenging the settlement agreement sought an interlocutory appeal under Rule 23(f) of the District Court’s preliminary certification of the settlement class, arguing that the certification was improper because the class did not adequately represent several groups of former players.  The District Court’s order stated that the “proposed Class Action Settlement Agreement is preliminarily approved” and “the Settlement Class and Subclasses are conditionally certified for settlement purposes only.”  At issue before the Third Circuit was the nature of the Court of Appeals’ jurisdiction over interlocutory review under Rule 23(f).

After reviewing the history, interpretation, and interplay between Rule 23(c), (e), and (f), the Court found that Rule 23(f) only allows the Court of Appeals jurisdiction over interlocutory appeals from “‘order[s] granting or denying class-action certification’ issued pursuant to Rule 23(c)(1).”  The Court found this because Rule 23(c) is the only subdivision of Rule 23 that governs class-action certification orders, which is what the language in Rule 23(f) addresses.  Any other orders under Rule 23, according to the Court, are not appealable until a District Court has officially certified a class.

The Third Circuit ruled that the order issued by the District Court in this case was not an order granting or denying class action certification under Rule 23(c)(1).  Instead, it held that the order was a case management order under Rule 23(e) that only preliminarily approved a class for settlement purposes, and deferred a class certification determination until a later time (after the fairness hearing).  The language of the order was sufficient for the Court to find that the District Court was merely exercising its authority to manage a class action settlement under Rule 23(e).  The preliminary approval of the class satisfactorily achieved the purpose of providing notice to potential class members so they could meaningfully participate in the settlement negotiations.

Consequently, the NFL players must await a ruling by the District Court under Rule 23(c) before they can challenge the class certification and settlement agreement.  Unfortunately, this means that those players that arguably are excluded from the settlement class will have to wait before having an opportunity to present their case.