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12. Is the appellate court likely to grant the petition for leave to appeal?
The management company sought leave to immediately appeal the order, arguing that the district court erred in certifying the class over its objection. However, the management company did not include in the record any evidentiary support regarding its argument that the class certification should be overturned.
Recipients of fax advertisements sued a management company in federal court under the federal Telephone Consumer Protection Act (TCPA). The recipients alleged that the company sent unsolicited junk fax ads in violation of the TCPA. They moved to be certified as a class, demanding as relief an injunction, punitive damages, and reasonable attorneys' fees. The management company opposed the certification because the potential damages from a class action suit were so great in relation to the management company's assets that it would be forced to settle even though it had a strong case on the merits. Over the management company's objection, the district court certified a class action, defining the class as the recipients of the unsolicited junk faxes sent by the management company.
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An interlocutory appeal is discretionary and may be available when:
(i) the trial judge certifies that the interlocutory order involves a controlling question of law, as to which there is substantial ground for difference of opinion, and immediate appeal from the order may materially advance the ultimate termination of the litigation; AND
(ii) the court of appeals agrees to allow the appeal. 28 U.S.C. § 1292(b).
D is correct. The appellate court is not likely to grant the petition for leave to appeal because it has discretion as to whether it will review a class certification and the management company's only argument regarding its inability to pay potential damages lacks any evidentiary support. As a result, the court is unlikely to grant the petition. Moreover, the primary relief sought by the class was not damages, but an injunction.
A is incorrect. Some appellate courts are inclined to grant a petition for leave to appeal from a class certification to protect a defendant from being forced to settle (even if it has a strong case on the merits). However, here, the appellate court is unlikely to hear the appeal from the management company absent any evidentiary support, especially given that the primary relief sought is an injunction.
B is incorrect. Although the general proposition concerning the motivation to grant a petition for leave to appeal from a class certification was created to allow appellate courts to review class certification decisions that otherwise might forever escape appellate scrutiny, that is unlikely to be sufficient for the appellate court to elect to grant this type of petition. More evidence is necessary to indicate that the management company is at risk for an unfair settlement, especially in light of the injunction as the primary relief sought.
C is incorrect. This answer reaches the correct answer with incorrect legal reasoning. While the appellate court is unlikely to grant leave to appeal, it is not because there must be a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. That is the standard for granting interlocutory appeals, and although that scenario could give rise to the appellate court granting leave to appeal, it is not required.