W.D.N.C. Denies Certification for Appeal of Interlocutory Class-Action Determinations

Rule 23(f) provides an avenue for appealing a class-certification decision, and, on occasion, 28 U.S.C. § 1292(b) provides an alternative path for interlocutory appeal. SeeStott v. Martin, 783 F. Supp. 970, 973 (E.D.N.C. 1992). In Long v. CPI Security Systems, Inc., No. 3:12–cv–396, 2013 WL 3761078 (W.D.N.C. July 13, 2013), though, Judge Conrad observed that section 1292(b) “should be used sparingly,” and he refused to certify for appeal various determinations made in the course of a Fair Labor Standards Act class action. Noting the conditionality of a preliminary decision concerning collective action status, Judge Conrad sided with other courts, which have found that “the issue of conditional certification is not a controlling question of law.” The Court mounted a spirited defense of the final-judgment rule in this context, noting that “interlocutory appeal creates the potential for a Rorschach-like inkblot of a case history with appellate review of the conditional question occurring at the same time, or after, the inferior court addresses the ultimate question of certification.”