In 2016, three plaintiffs filed a class-action lawsuit against Hilton Hotels Retirement Plan, alleging that Hilton failed to pay vested retirement benefits. The first time that the plaintiffs moved for class certification, the district court denied the motion solely on the basis that it wanted first to rule on a different pending motion. The plaintiffs later filed a new motion for class certification, which the district court denied because it was concerned that the class definition was impermissibly “fail-safe”—that is, that it was defined to include only those individuals who would prevail on the merits. At the same time, the court invited the plaintiffs to revise the class definition and file a new motion. When the plaintiffs did so, the court stated that it was then “definitively” denying class certification on the ground that the class definition remained fail-safe.
Fourteen days later, the plaintiffs filed a petition under Federal Rule of Civil Procedure 23(f) asking the D.C. Circuit to review the denial of class certification. The D.C. Circuit granted the petition and reversed. The court of appeals first addressed, and rejected, Hilton’s argument that the petition was untimely under Rule 23(f), which provides a 14-day window after a court’s decision on a class-certification motion within which to file a petition to appeal. The D.C. Circuit held that the petition following the final order denying class certification was timely, because that order changed the status quo by definitively closing the door on certification. On the merits, the D.C. Circuit held that the district court abused its discretion by denying the motion for class certification without first considering whether the proposed class complied with the requirements of Rule 23 and whether any fail-safe issue could be resolved by revising the class definition.
Hilton petitioned the Supreme Court to review the D.C. Circuit’s rulings on timeliness and on the fail-safe issue. Public Citizen serves as co-counsel for the plaintiffs in the Supreme Court. Opposing Hilton’s petition, the brief in opposition explains that the timeliness issue does not merit review because the D.C. Circuit applied the same test as the other courts of appeals and correctly concluded that the final order denying certification was appealable under Rule 23(f). The brief also explains that the fail-safe issue does not merit review either: The D.C. Circuit held that faithfully applying the Federal Rules and, if necessary, revising the class definition should eliminate fail-safe classes without the need to resort to a blanket prohibition that has no basis in the text of the Rule 23; there is no conflict among the courts of appeals with respect to that holding, and the holding is manifestly sensible.