2021 Colorado Code
Title 13 - Courts and Court Procedure
Article 20 - Actions
Part 9 - Class Actions
§ 13-20-901. Class Actions - Appellate Review

1. A court of appeals may, in its discretion, permit an interlocutory appeal of a district court's order that grants or denies class action certification under court rule so long as application is made to the court of appeals within fourteen days after entry of the district court's order.
2. An appeal that is allowed under subsection (1) of this section shall not stay proceedings in the district court unless the district court or the court of appeals so orders. If a stay is ordered, all discovery and other proceedings shall be stayed during the pendency of an appeal taken pursuant to this section unless the court ordering the stay finds upon the motion of any party that specific discovery is necessary to preserve evidence or to prevent undue prejudice to such party.

History. Source: L. 2003: Entire part added, p. 845, § 1, effective July 1. L. 2014: (1) amended,(HB 14-1347), ch. 208, p. 768, § 2, effective July 1.

This section is substantially similar to Fed. R. Civ. P. 23(f) and cases applying the federal rule are instructive. The five-factor test outlined in Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266 (11th Cir. 2000), is the most inclusive and helpful in determining how the court should exercise its discretion. Clark v. Farmers Ins. Exch., 117 P.3d 26 (Colo. App. 2004).

The five-factor test includes: (1) The “death knell” factor -- is the trial court's ruling dispositive of the litigation because either it effectively prevents the plaintiff from continuing to pursue the matter in that the stakes are too low or it places the defendant in such a position that it would experience irresistible pressure to settle; (2) the substantial weakness factor -- has the appellant shown that the trial court's class certification decision likely constitutes an abuse of discretion; (3) will allowing the appeal permit resolution of an unsettled legal issue important to the particular litigation as well as important in itself; (4) the nature and status of the litigation before the trial court, including the status of discovery, the pendency of relevant motions, and the length of time the matter already has been pending; (5) the likelihood that future events could make immediate appellate review more or less appropriate as well as whether the court views its class certification decision as conditional or subject to revision. Clark v. Farmers Ins. Exch., 117 P.3d 26 (Colo. App. 2004).

Test applied in Clark v. Farmers Ins. Exch., 117 P.3d 26 (Colo. App. 2004).

“[U]nder court rule” in subsection (1) applies not just to C.R.C.P. 23 but also to court rules that prescribe the method of computing the time limit to appeal the grant or denial of class certification. Garcia v. Medved Chevrolet, Inc., 240 P.3d 371 (Colo. App. 2009), aff'd, 263 P.3d 92 (Colo. 2011).

Plaintiff does not waive right to appeal by requesting and obtaining a certification of final judgment pursuant to C.R.C.P. 54(b) if plaintiff chooses not to file an interlocutory appeal of an order denying class certification pursuant to this section. It was the legislature's intent in enacting this section to add to existing appellate remedies rather than create an exclusive remedy. Devora v. Strodtman, 2012 COA 87 , 282 P.3d 528.