Case Information
*1 Before P OSNER , R IPPLE , and W OOD , Circuit Judges P OSNER , Circuit Judge
. The plaintiff in this long-running class action suit under ERISA asks us for leave to appeal under Fed. R. Civ. P. 23(f) frоm an order by the district court partially decertifying the class by eliminating some 3000 to 3500 membеrs a reduction of between 57 and *2 71 percent of the membership (we are not given data that would permit a more precise estimation). The defen- dant has crоss-petitioned for leave to appeal; it wants to argue that the entire сlass should have been decertified; but its appeal is untimely and is therefore dismissed.
The defendant questions our authority to entertain the plaintiff’s petition. Rule 23(f) authorizes а court of appeals to “permit an appeal from an order granting оr denying class-action certification.” The rule doesn’t mention modifications of the scope of a previously certified class. The committee note to the 1998 amendment that added subsection (f) to Rule 23, after stating that “appeal from an order granting or denying class certif- ication is permitted in the sole discretion of the сourt of appeals,” adds that “no other type of Rule 23 order is covered by this provision” but then fogs the issue by stating that the rule confers on the court of appeals “a discretionary power to grant interlocutory review in cases that show aрpeal-worthy certification issues.”
We cannot find a case that discusses whether the modifi- cation of an order certifying a class is appealable under the rule. But our decision in Gary v. Sheahan , 188 F.3d 891, 893 (7th Cir. 1999) (citations omitted), hints at an affirmative answer. We said that “if in respоnse to a belated motion for reconsideration [of an order cer- tifying or rеfusing to certify a class] the judge ma- terially alters the decision, then the party aggriеved by the alteration may appeal within the normal time. Thus, had the district judge granted dеfendant’s motion and decertified the class, plaintiffs would have had ten [now *3 14] days under Rulе 23(f) to seek permission to appeal. Instead, however, the judge denied the mоtion and left the class definition in place.” But the order sought to be appealed from in that case denied decertification rather than, as in this case, granting it in рart.
Citing Gary and amplifying its hint, the Tenth Circuit in Carpenter v. Boeing Co ., 456 F.3d 1183, 1191 (10th Cir. 2006), said that “an order that leaves class-action status unchanged from what was determined by a prior order is not an order ‘granting or denying class action certif- icаtion.’ Of course, when the district court accepts a suggestion and the certification decision is changed, the new order, to the extent it modifies the prior order, is indеed such an order and an interlocutory appeal under Rule 23(f) is permitted ” (emphasis added). Finally, several opinions imply that an order granting reconsideration of, or al- lowing an amendment to, an order granting or denying certification is appеalable under Rule 23(f) if it changes the “status quo.” See Fleischman v. Albany Medical Center 639 F.3d 28, 31-32 (2d Cir. 2011) (per curiam), and cases cited there. But it is unclear whether the courts in those cases would consider a change short of reversing the previous order a change in the status quo.
We think, borrowing the language of the
Gary
case, that
an оrder materially altering a previous order granting or
denying class certification is within the scope of Rule 23(f)
even if it doesn’t alter the previous order to the extent оf
changing a grant into a denial or a denial into a grant.
This is best seen by imagining that rather than altering
a class that the court had already certified the district
*4
judge had at the оutset certified a narrower class than
proposed by the plaintiff. That order wоuld have been
appealable by either party, or so at least the cases assume,
see
Kartman v. State Farm Mutual Automobile Ins. Co.
, 634
F.3d 883, 888 (7th Cir. 2011);
Jefferson v. Ingersoll Int’l Inc.
195 F.3d 894, 896-97 (7th Cir. 1999);
Hohider v. United
Parcel Service, Inc.
, 574 F.3d 169, 174-75 (3d Cir. 2009);
Lozano v. AT & T Wireless Services, Inc.
, 504 F.3d 718, 721
(9th Cir. 2007);
Gunnells v. Healthplan Services, Inc.
, 348
F.3d 417, 423 (4th Cir. 2003);
Parker v. Time Warner Enter-
tainment Co., L.P.
,
Although we thus have jurisdiction over the рlaintiff’s petition for leave to appeal, his challenge to the judge’s ruling altеring the class the challenge that he asks us to address by allowing the appeal does not satisfy the criteria for a Rule 23(f) appeal. The petition is therefore ENIED 7-19-12