Class Action Certification Appeal Not Mooted by Settlement by Class Representative of his Personal Claims

In Narouz v. Charter Communications, LLC, 591 F.3d 1261 (9th Cir. 2010), a panel, Judge Smith, writing for himself and a New York District Judge, held that an appeal of the District Court’s refusal to approve a class action settlement was not mooted by the class representative’s release of his personal claims, reasoning that the class representative did not release the claims of the proposed class members and retained a personal financial interest arising from his rights to represent the class. Judge Rymer dissented in part, reasoning that the language of the settlement agreements constituted a waiver of the class representative’s right to appeal. Judge Rymer stated: “The agreement contains a comprehensive release and does not reserve the right to appeal a class certification claim.” This issue remains an open question for the Supreme Court. See United States Parole Commission v. Geraghty, 445 U.S. 388, 404 n.10 (1980); Deposit Guaranty Nat’l Bank, Jackson Miss. v. Roper, 445 U.S. 326, 334 n.6 (1980).