## Facts

- The SEC filed an enforcement action alleging that Occidental Petroleum Corp. and its CEO engaged in a multi-year scheme violating Exchange Act § 10(b) and Rule 10b-5 through misleading financial reporting that overstated profits.
- Following publicity from the SEC action, numerous shareholder suits were filed alleging that misleading financial statements and reports artificially inflated Occidental’s stock price.
- Twenty-two shareholder actions from multiple districts were transferred and consolidated in the Central District of California.
- The district court certified a purchaser class under Fed. R. Civ. P. 23(b)(1) and 23(b)(3) seeking damages based on purchases at allegedly inflated prices.
- Defendants sought (1) an appeal as of right under 28 U.S.C. § 1291 and (2) mandamus to decertify the class and/or compel certification for interlocutory appeal under 28 U.S.C. § 1292(b).

## Issues

1. Whether a class-certification order is a “final decision” appealable as of right under 28 U.S.C. § 1291.
2. Whether mandamus may be used to review a district court’s refusal to certify an interlocutory appeal under 28 U.S.C. § 1292(b).
3. Whether mandamus lies to review a Rule 23(b)(3) class-certification decision.
4. Whether certifying a securities-fraud damages class under Rule 23(b)(1) is permissible where separate actions do not create the risks described in Rule 23(b)(1)(A) or (B).

## Decision

- The appeal under § 1291 was dismissed for lack of jurisdiction because the class-certification order was interlocutory and not final.
- Mandamus was denied to challenge the district court’s refusal to certify an interlocutory appeal under § 1292(b).
- Mandamus was denied as a vehicle to review the Rule 23(b)(3) certification determination.
- Mandamus was granted in part, directing the district court to vacate the Rule 23(b)(1) certification and remanding for further proceedings.

## Legal Principles

- A class-certification order generally is not a final decision appealable under 28 U.S.C. § 1291.
- Mandamus is an extraordinary remedy and is not a substitute for ordinary appellate review of interlocutory rulings.
- Mandamus is not an appropriate means to review a district court’s discretionary refusal to certify an order for interlocutory appeal under 28 U.S.C. § 1292(b).
- Mandamus generally does not lie to obtain routine appellate review of Rule 23(b)(3) class-certification decisions.
- Rule 23(b)(1) certification is improper in a securities-fraud damages action premised on purchases at an inflated market price where separate suits do not create incompatible standards of conduct for the defendant (Rule 23(b)(1)(A)) and do not, as a practical matter, dispose of or substantially impair absent class members’ interests (Rule 23(b)(1)(B)).

## Conclusion

The Ninth Circuit held that the defendants could not immediately appeal the class-certification order under § 1291 and could not use mandamus to force § 1292(b) certification or to obtain review of the Rule 23(b)(3) certification, but it granted mandamus to vacate the Rule 23(b)(1) certification because a damages-based securities fraud purchaser class did not fit Rule 23(b)(1)’s limited criteria.


Green v. Occidental Petroleum Corp., 541 F.2d 1335 (9th Cir. 1976)