The Kentucky Supreme Court did a major overhaul of Kentucky Civil Rule 23 governing class action litigation effective January 1, 2011. The new Kentucky Rule largely tracks its federal counterpart, FRCP 23. One of the new provisions in the Kentucky rule is CR 23.06, which provides for an interlocutory appeal of an order granting or denying class certification. It also governs the effect of an interlocutory appeal on existing court proceedings.
The language of CR 23.06 is substantially similar to the language of FRCP 23(f), but there are several important differences. First, Rule 23.06 provides that an order granting or denying class action certification is appealable within 10 days after the order is entered, while FRCP 23(f) provides 14 days within which to appeal a grant or denial of class certification. Second, Rule 23.06 provides for an interlocutory appeal as a matter of right, while FRCP 23(f) provides the federal appellate court discretion whether to accept the appeal on an interlocutory basis. Both the state and federal Rules provide that an interlocutory appeal does not stay the proceedings in the trial court unless the trial court or the appellate court so orders. Finally, Rule 23.06 states that an appeal “shall be expedited in the appellate courts,” while FRCP 23(f) is silent on the issue.
The foregoing post includes commentary reprinted from the forthcoming 2011 supplement to Rules of Civil Procedure Annotated, 6th ed. (Vols. 6 & 7, Kentucky Practice Series), by David V. Kramer and Todd V. McMurtry, with permission of the authors and publisher. Copyright (c) 2011 Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-litigation-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail.
David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.
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