JOANNE WOLFF, individually and on behalf of a Class of Similarly Situated Individuals v. AETNA LIFE INSURANCE COMPANY; THE RAWLINGS COMPANY Aetna Life Insurance Company

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________________
No. 22-8056
_______________________
JOANNE WOLFF,
individually and on behalf of a Class of Similarly Situated
Individuals
v.
AETNA LIFE INSURANCE COMPANY;
THE RAWLINGS COMPANY
Aetna Life Insurance Company,
Petitioner
_______________________
On Petition for Permission to Appeal from the
United States District Court
for the Middle District of Pennsylvania
District Court No. 4-19-cv-01596
Chief District Judge: The Honorable Matthew W. Brann
__________________________
Argued June 28, 2023

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Before: JORDAN, SHWARTZ, and SMITH,
Circuit Judges
(Filed: August 9, 2023)
John P. Elliott
Kyle M. Elliott
Stewart J. Greenleaf, Jr.
Mark J. Schwemler [ARGUED]
Elliott Greenleaf
925 Harvest Drive
Suite 300
Blue Bell, PA 19422
Counsel for Petitioner Aetna Life Insurance Co
Charles Kannebecker [ARGUED]
104 W High Street
Milford, PA 18337
Counsel for Respondent Joanne Wolff, individually
and on behalf Of a Class of Similarly Situated
Individuals
__________________________
OPINION OF THE COURT
__________________________
SMITH, Circuit Judge.

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Federal Rule of Civil Procedure 23(f) (“Rule 23(f)” or
“23(f)”) authorizes interlocutory review of orders “granting or
denying class-action certification.” Fed. R. Civ. P. 23(f). To
seek interlocutory review under Rule 23(f), a party must file a
23(f) petition within fourteen days of such an order. Id. Here,
Aetna Life Insurance Company (“Aetna”) filed a 23(f) petition
months after the District Court certified a class, but fourteen
days after the District Court revised its class certification order
by rewording the class definition. This case requires us,
therefore, to clarify when modifications to a prior class
certification order entitle litigants to a new fourteen-day period
to file a 23(f) petition.
We hold that a modified class certification order
triggers a new 23(f) petition period only when the modified
order materially alters the original order granting (or denying)
class certification. And because the District Court’s revision
did not effect such a material change, we will deny Aetna’s
23(f) petition as untimely.
I. B ACKGROUND
We begin with a look at the text of Rule 23(f). We then
outline the factual and procedural background of the
underlying dispute before addressing Aetna’s 23(f) petition.
A. Rule 23(f)
A class action is a form of aggregate litigation in which
one or more plaintiffs litigate claims on behalf of a larger
group, known as a class. It has been described as “an ingenious
procedural innovation that enables persons who have suffered

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a wrongful injury, but are too numerous for joinder of their
claims[,] . . . to obtain relief as a group.” Eubank v. Pella
Corp., 753 F.3d 718, 719 (7th Cir. 2014). Rule 23 of the
Federal Rules of Civil Procedure establishes the modern class
action mechanism and provides fundamental procedural
guidance to govern its utilization. See Fed. R. Civ. P. 23.
Subparts (a) and (b) of Rule 23 task district courts with
determining whether a particular claim is amenable to class
resolution and lays out the criteria for when a class should be
certified. See Fed. R. Civ. P 23(a)–(b). Traditionally, parties
could not seek interlocutory review of a district court’s class
certification order. See, e.g., Coopers & Lybrand v. Livesay,
437 U.S. 463, 477 (1978). Instead, to appeal an order granting
or denying class certification, parties had to wait for a final
order.
As class actions grew in significance, lawyers and
courts soon realized that while not technically a final order,
“the class-action ‘certification decision [was] often decisive as
a practical matter.’” In re Nat’l Football League Players
Concussion Inj. Litig., 775 F.3d 570, 577 (3d Cir. 2014)
(quoting Fed. R. Civ. P. 23, advisory committee’s note to 1998
amendment). Indeed, we have previously recognized that
“certifying [a] class may place unwarranted or hydraulic
pressure to settle on defendants.” Newton v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 259 F.3d 154, 165 (3d Cir. 2001).
In response, litigants attempted creative end runs that
might enable them to seek immediate review of class

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certification orders.1 For example, the so called “death knell”
doctrine posited that the stakes in class certification were so
high that a district court’s decision to grant or deny class
certification effectively concluded the action and so constituted
a final order. Though some lower courts accepted the death
knell doctrine, the Supreme Court rejected it in Coopers &
Lybrand. 437 U.S. 474–77. Another pre-23(f) tactic that
litigants employed was to seek immediate review of class
certification orders through the collateral order doctrine. But
the Supreme Court rejected this approach as well. Coopers &
Lybrand, 437 U.S. at 469. Resort to 28 U.S.C. § 1292 and
actions for mandamus were yet two other means by which
parties sought interlocutory review of class certification
rulings, but these avenues, too, proved unsuccessful. See, e.g.,
Gardner v. Westinghouse Broad. Co., 437 U.S. 478, 480–81
(1978) (rejecting a party’s attempt to use 28 U.S.C.
§ 1292(a)(1) to obtain interlocutory review of a class
certification order); Will v. United States, 389 U.S. 90, 95
(1967) (cautioning courts that mandamus is an “extraordinary
remedy” appropriate in “only exceptional circumstances
amounting to a judicial ‘usurpation of power’”).
In 1998, the Advisory Committee on Civil Rules
responded to concerns about the non-appealability of class
certification orders by adopting Rule 23(f), which permits
1 For a historical account of how litigants tried to obtain
interlocutory review of orders granting or denying class
certification before Rule 23(f) was enacted, see R OBERT H.
K LONOFF , CLASS ACTIONS AND OTHER MULTI-PARTY
L ITIGATION : CASES AND MATERIALS 697–701 (4th ed. 2017).

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interlocutory appellate review of a district court’s order
“granting or denying class-action certification.” Fed. R. Civ. P.
23(f). While Rule 23(f) allows parties to seek immediate
appeal of class certification orders, “the courts of appeals have
very broad discretion in deciding whether to grant permission
to pursue a Rule 23(f) appeal.” Gutierrez v. Johnson &
Johnson, 523 F.3d 187, 192 (3d Cir. 2008); see also In re Nat’l
Football League, 775 F.3d at 578 (“Rule 23(f) is premised on
the notion that a court of appeals’ grant of a petition for
interlocutory review is discretionary.”). On this point, the
Advisory Committee’s Note accompanying Rule 23(f) states
that in deciding whether to grant a 23(f) petition, a “court of
appeals is given unfettered discretion . . . akin to the discretion
exercised by the Supreme Court in acting on a petition for
certiorari.” Fed. R. Civ. P. 23, advisory committee’s note to
1998 amendment; see also id. (“Permission to appeal may be
granted or denied on the basis of any consideration that the
court of appeals finds persuasive.”).
But this broad discretion extends only to petitions for
interlocutory review that fall within Rule 23(f)’s text. And the
drafters of Rule 23(f) chose to impose a strict time limit for
seeking immediate review of a district court’s order granting
or denying class certification by requiring that a party petition
for review “within 14 days after the order is entered.”2 Fed. R.
Civ. P. 23(f). This Court has previously recognized that 23(f)’s
2 Initially, Rule 23(f) established a ten-day time limit for
petitions. Rule 23(f) was amended in 2009 to increase the time
limit to fourteen days. Fed. R. Civ. P. 23, advisory committee’s
note to 2009 amendment.

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time limit “is strict and mandatory,” Gutierrez, 523 F.3d at
192, and the Supreme Court has characterized the time limit as
“purposefully unforgiving,” Nutraceutical Corp. v. Lambert,
139 S. Ct. 710, 716 (2019). If a petition is untimely, appellate
courts cannot consider it.
B. Factual Background
Joanne Wolff was covered by a long-term disability
plan provided by her employer, Bank of America, and
administered by Aetna. In 2015, Wolff was seriously injured
in a car accident. Because of her injuries, Wolff received
disability benefits from Aetna pursuant to her disability plan.
In 2017, Wolff received a personal injury settlement
payment from the party responsible for the 2015 accident.
After Wolff received her settlement, Aetna sought to collect
some of the settlement funds to recoup the disability benefits it
had paid to Wolff following the car accident. But Wolff
maintained that, under the terms of her plan, Aetna was not
entitled to recoup disability payments from the third-party
settlement paid to her for her personal injuries. Nevertheless,
in 2018, Wolff did repay a portion of the disability payouts that
Aetna demanded.
C. Procedural Background
Wolff filed a putative class action against Aetna in
2019. Wolff alleged that, according to the terms of her
disability plan, Aetna had no right to recoup Aetna’s disability
plan payments from Wolff’s personal injury settlement. Wolff
further alleged that Aetna’s disability plans utilized standard

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form language without meaningful variation both within and
between employers—i.e., the plan language on the recoupment
of personal injury payments was similar regardless of whether
the disability plan member was employed by Bank of America
or a different employer. So if it were impermissible for Aetna
to recoup disability payments from Wolff’s personal injury
settlement, the same would be true for any other person who
enrolled in Aetna’s standard form disability plan through his or
her employer. Accordingly, Wolff sought to certify a
nationwide class composed of all employees who had enrolled
in an Aetna standard form disability plan—beyond just Bank
of America employees—who were allegedly coerced into
repaying a portion of their disability payments from their
personal injury recoveries.
Aetna opposed class certification. It argued that the
language in its disability plans varied from plan to plan.
Therefore, Wolff could not demonstrate the cohesiveness
required for class certification because whether Aetna could
recoup disability payments from personal injury recoveries
hinged on individualized questions that were incapable of
classwide resolution. Specifically, Aetna argued that the
District Court should deny class certification because Wolff’s
proposed class did not meet Rule 23(b)(3)’s requirement that
“questions of law or fact common to class members
predominate over any questions affecting only individual
members.” Fed. R. Civ. P. 23(b)(3).
The District Court was not persuaded that varying plan
language precluded class certification, and on May 25, 2022,
granted Wolff’s motion for class certification (the May 25

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order certifying the class will be referred to as the “Class
Certification Order”). In granting class certification, the
District Court determined that while “there are some
differences in the language used in each plan[] . . . the specific
language that . . . would permit Aetna to seek reimbursement
from personal injury recoveries is absent from each plan.”
Wolff v. Aetna Life Ins. Co., No. 4:19-CV-01596, 2022 WL
1672128, at *8 (M.D. Pa. May 25, 2022). The District Court
certified a class defined as follows:
All persons who were injured and received long-
term disability benefits from the defendants as a
result of an injury causing event and as against
whom defendant sought or recovered
reimbursement of long-term disability benefits it
had paid to insured from the insureds’ tort
recoveries and who suffered harm and damages
which include, by way of exemplification and
not in limitation, the loss of use of money, the
loss of interest on money, the loss of possession
of their funds, the loss of enjoyment of their
funds, their losses in having to free their funds
from defendants’ encumbrances and payment of
money from their tort recoveries to the defendant
as a result of defendants’ wrongful
reimbursement demands and actions based on a
violation of the policy. 23(f) Pet. Ex. C, Dist. Ct.
May 25 Class Cert. Order pp. 1–2 (“Class Cert.
Order”).

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After the District Court certified the class, Aetna took
no action to challenge the Class Certification Order within
Rule 23(f)’s fourteen-day period. Three weeks later, on June
15, 2022, Wolff filed a proposed class notice.3 Aetna filed
objections to Wolff’s proposed notice on June 23, 2022. Aetna
objected to, inter alia, the class definition as being “fail-safe”
in nature.4 To remedy any fail-safe concerns, Aetna proposed
minor modifications to the class definition. Wolff responded to
Aetna’s objections on July 26, 2022, and agreed to adopt most
of Aetna’s revised definition. Even so, the District Court had
3 Under Rule 23, a district court overseeing a class action
seeking damages must provide absentee “class members the
best notice that is practicable under the circumstances.” Fed.
R. Civ. P. 23(c)(2)(B). Among other items, the notice must
inform class members of “the nature of the action,” the class
definition, and that absentee class members may be bound by
a judgment in the action if they do not opt out of the class. Id.
4 A fail-safe class is “one that is defined so that whether a
person qualifies as a member depends on whether the person
has a valid claim.” Byrd v. Aaron’s Inc., 784 F.3d 154, 167 (3d
Cir. 2015), as amended (Apr. 28, 2015) (quoting Messner v.
Northshore Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir.
2012)). While we have never expressly held that fail-safe
classes are impermissible, other circuits, such as the Seventh
Circuit, have held that fail-safe classes are improper because
they enable one-way intervention. Messner, 669 F.3d at 825
(“[A fail-safe] class definition is improper because a class
member either wins or, by virtue of losing, is defined out of the
class and is therefore not bound by the judgment.”).

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yet to make any modifications to its May 25 order certifying
the class.
On August 17, 2022, nearly three months after the
District Court certified a class, Aetna filed a motion to
reconsider the Class Certification Order. Aetna’s primary
argument was that the District Court failed to perform a
rigorous analysis before certifying the class.5 According to
Aetna, the District Court improperly “deferred” until after
certification “several fact and legal questions underlying []
Rule 23[’s] requirements,” including whether Aetna’s
disability plans across employers contained enough language
in common to warrant class treatment. Case No. 4:19-cv-
01596-MWB, ECF No. 134, Brief in Support of Mot. for
Reconsideration p. 1. Aetna justified its 84-day delay in
challenging the Class Certification Order by pointing to this
Court’s decision in Allen v. Ollie’s Bargain Outlet, 37 F.4th
890 (3d Cir. 2022), filed on June 24, 2022. The opinion in that
case, Aetna argued, provided intervening and novel authority
to guide district courts in the Third Circuit in their analysis of
the requirements for Rule 23 class certification. Aetna also
raised fail-safe arguments similar to those it had raised in the
June 15 objections to Wolff’s proposed class notice.
5 As we discuss below, prior to certifying a class, a district
court must perform a “‘rigorous analysis’” to ensure that the
“‘prerequisites’ of Rule 23 are met.” In re Hydrogen Peroxide
Antitrust Litig., 552 F.3d 305, 309 (3d Cir. 2008), as amended
(Jan. 16, 2009) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457
U.S. 147, 161 (1982)).

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On November 22, 2022, the District Court filed an order
granting in part and denying in part Aetna’s motion for
reconsideration. 23(f) Pet. Ex. A, Dist. Ct. Nov. 22
Reconsideration Order (the “Reconsideration Order”). As to
Aetna’s argument that the District Court failed to rigorously
analyze potential variations in disability plan language, the
District Court rejected Aetna’s assertion that Ollie’s Bargain
“broke [] new ground” that required the District Court to alter
its precertification inquiry. Wolff v. Aetna Life Ins. Co., No.
4:19-CV-01596, 2022 WL 17156911, at *4 (M.D. Pa. Nov. 22,
2022). Instead, the District Court reaffirmed its prior analysis,
noting that “nothing in the relevant plans leads the Court to
conclude that variations in the plan language prevents
certification.” Id. The District Court did, however, reword the
class definition to address a potential fail-safe issue. Id. at 6.
The District Court revised the class definition to read as
follows:
All persons who, between August 8, 2013 and
November 30, 2017, were members of a long-
term disability benefits plan insured and
administered by Defendant Aetna Life Insurance
Company, were insured under a long-term
disability policy that did not identify personal
injury recoveries as “Other Income Benefits,”
were injured and received long-term disability
benefits from Aetna Life Insurance Company as
a result of an injury causing event, and as against
whom Aetna Life Insurance Company sought or
recovered reimbursement of such long-term
disability benefits from funds received from the

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person’s personal injury recovery.
Reconsideration Order pp. 1–2.
On December 6, 2022, fourteen days after the District
Court’s Reconsideration Order and 195 days after the Class
Certification Order, Aetna filed the 23(f) petition now before
us. In its petition and opening brief, Aetna asserted that we
should grant the petition because “the district court disregarded
this Court’s recent precedent in Allen v. Ollie’s Bargain” by
certifying a class without performing “Rule 23’s required
‘rigorous analysis.’” 23(f) Pet. p. 1. In response, Wolff asserted
that we should deny Aetna’s petition because it is “patently
untimely.” 23(f) Opposition p. 1. Wolff asserted that the
District Court’s “November 22 [Reconsideration Order] did
not change the status quo of class certification.” Id. at 2. She
therefore contended that Aetna was required to file a 23(f)
petition within fourteen days of May 25, 2022, which it failed
to do. In its reply, Aetna argued for the first time that its 23(f)
petition was timely because “the district court materially
altered its analysis to comply with [Ollie’s Bargain] in a
manner that materially altered the composition of the class.”
Reply p. 1. Aetna therefore asserted that “[t]he fourteen-day
period for seeking appeal under [23(f)] [] began to run from
November 22, 2022.” Id.
II. J URISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction under 28 U.S.C.
§ 1331. This Court has broad discretion to grant or deny timely

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petitions for interlocutory review under Rule 23(f) and 28
U.S.C. § 1292(e). Gutierrez, 523 F.3d at 191–92.6
III. A NALYSIS
A. Aetna’s 23(f) petition is untimely unless the
Reconsideration Order materially altered the
May 25 Class Certification Order.
At the outset, we must determine when a revised class
certification order triggers a new time period during which a
party may file a 23(f) petition. Here, Aetna filed its 23(f)
petition fourteen days after the Reconsideration Order, but 195
days after the District Court originally certified the class. Thus,
if the date of the Class Certification Order starts the fourteen-
day clock, Aetna’s petition is untimely. But if the date of the
Reconsideration Order is the proper reference point, then
Aetna’s petition is timely.7
6 While “Rule 23(f)’s time limitation . . . is properly classified
as a nonjurisdictional claim-processing rule,” Lambert, 139 S.
Ct. at 714, we cannot grant untimely 23(f) petitions. Id. at 714,
716 (rejecting the notions that the nonjurisdictional nature of
Rule 23(f)’s time limit, or an appellate court’s broad discretion
in adjudicating 23(f) petitions, allows an appellate court to
grant an untimely 23(f) petition).
7 This is not a situation in which Aetna’s motion for
reconsideration delayed the running of Rule 23(f)’s limitation
period. We previously have recognized that when a party files

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In Gutierrez, we asserted that a revised class
certification order “will not revive” 23(f)’s time limit if the
revision “does not change the status quo.” 523 F.3d at 193.
Subsequent cases from our sister circuits have equated this
status quo language with a materiality requirement. For
example, in Driver v. AppleIllinois, LLC, the Seventh Circuit
noted that it had held, “and other courts of appeals have
implied,” that a revised class certification order triggers a new
23(f) time period only when the revision “materially altered a
previous order granting or denying class certification.” 739
F.3d 1073, 1076 (7th Cir. 2014) (cleaned up) (citing, among
other cases, Gutierrez, 523 F.3d at 193).8
Today we make clear what we suggested in Gutierrez:
a revision to a class certification order establishes a new
a motion to reconsider a district court’s class certification order
before Rule 23(f)’s time period has elapsed, the fourteen-day
clock starts afresh when “the district court rules on the motion
to reconsider.” Gutierrez, 523 F.3d at 193. Because Aetna
moved for reconsideration well beyond Rule 23(f)’s fourteen-
day window, that rule plainly is not implicated here.
8 See also In re Advanced Rehab & Med., P.C., No. 20-0506,
2021 WL 3533492, at *1 (6th Cir. Apr. 27, 2021) (“[T]he
circuit courts to have considered the issue generally agree that
orders materially altering a prior order granting or denying
certification fall within Rule 23(f).”); Walker v. Life Ins. Co. of
the Sw., 953 F.3d 624, 635 (9th Cir. 2020); In re Wholesale
Grocery Prod. Antitrust Litig., 849 F.3d 761, 765 (8th Cir.
2017); Carpenter v. Boeing Co., 456 F.3d 1183, 1191 (10th
Cir. 2006).

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fourteen-day time limit for a 23(f) petition only when the
revision materially changes the original order granting or
denying class certification.9 In assessing materiality, substance
is more important than form, and our focus is on a revision’s
“practical effect on the class.” Walker v. Life Ins. Co. of the
Sw., 953 F.3d 624, 636 (9th Cir. 2020). A material change
could arise, for example, when a district court changes the class
definition to account for a new theory of liability or decertifies
a broad segment of the class. On the other hand, if a district
court, in substance, “merely reaffirm[s] its prior ruling,” or
makes changes for clarity, then there is no material change.
McNamara v. Felderhof, 410 F.3d 277, 281 (5th Cir. 2005).
Rule 23(f)’s text demands such a standard. Rule 23(f)
permits interlocutory review only of “an order granting or
denying class-action certification.” Fed. R. Civ. P. 23(f). When
9 Our holding, of course, in no way alters Gutierrez’s
acknowledgement that when a party files a motion to
reconsider an order granting or denying class certification
before Rule 23(f)’s time period has elapsed, the clock is
restarted and “does not begin to run until the district court rules
on the motion to reconsider.” 523 F.3d at 193. But as we
implied in Gutierrez, and as we hold today, when a district
court materially revises an order granting or denying class
certification, the district court has promulgated a new order
granting or denying class certification. Thus, under Rule 23(f),
a party has fourteen days to petition for appellate review of that
new order, regardless of whether the revised class certification
order was issued in response to a motion for reconsideration
filed within Rule 23(f)’s fourteen-day appeals window.

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a district court materially alters a class certification order, the
district court has effectively entered a new order granting or
denying class certification. By its terms, then, Rule 23(f)
affords parties a new fourteen-day period to file a petition
challenging the new order. And if a party does seek 23(f)
review, it is this new order—not the original class certification
order—that we review. See Walker, 953 F.3d at 635. By
contrast, when a district court does not materially change its
previous class certification order, the original class
certification order remains the appropriate reference point for
determining whether a 23(f) petition is timely.
In determining whether there has been a material
change, we are also mindful of the Seventh Circuit’s
recognition in Driver of the importance of the materiality
requirement because it prevents parties from “fil[ing] Rule
23(f) petitions whenever there was the slightest change in the
class definition.” Driver, 739 F.3d at 1076. Rule 23 vests
district courts with oversight of class actions. If subtle
definitional changes were sufficient to trigger a new 23(f) time
limit, district courts would be required to manage class actions
with the ever-present potential for frequent appellate
intervention.
With this framework in mind, we turn next to
considering whether the Reconsideration Order constituted a
material change. This inquiry is determinative of the timeliness
of Aetna’s petition.
B. Aetna’s 23(f) Petition is untimely because the
Reconsideration Order did not materially
change the Class Certification Order.

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In comparing the language of the Reconsideration Order
to that of the Class Certification Order, it is readily apparent to
us that the revisions were limited to minor changes in the class
definition. The District Court’s accompanying memoranda
support that conclusion. The District Court’s Reconsideration
Order changed the class definition in three ways. First, the
District Court narrowed the class period by limiting it to claims
that arose between August 8, 2013, to November 30, 2017.
Second, while the original class definition referred to
individuals who “received long-term disability benefits from
the defendants,” Class Cert. Order pp. 1–2, the revised
definition clarified that it encompasses individuals who
enrolled in “disability benefit plan[s] insured and administered
by Defendant Aetna,” Reconsideration Order pp. 1–2. Finally,
the revised definition stated that only individuals covered by
disability plans that “did not identify personal injury
recoveries” as a potential source of recoupment for Aetna’s
disability payments would be members of the class, thereby
clarifying the theory of why those class members had been
harmed. Id.
While it is easy to imagine hypothetical changes to a
class definition that would effect a material change—after all,
the class definition is at the heart of a class action—the changes
to the class definition here were much more akin to minor
clarifications of the Class Certification Order than material
alterations. In Matz v. Household Int’l Tax Reduction Inv. Plan,
for example, the Seventh Circuit held that a district court
materially altered a previous class certification order because

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it “partially decertif[ied] the class by eliminating some 3000 to
3500 members—a reduction of between 57 and 71 percent of
the membership.” 687 F.3d 824, 825 (7th Cir. 2012). By
contrast here, the new definition will not have such a far-
reaching practical effect on the class.10
Nor did the District Court alter its analysis to conform
with what Aetna claimed were novel requirements imposed by
Ollie’s Bargain. There was no need to do so. Ollie’s Bargain
ushered in no changes to our standard for when a class should
be certified. We held in 2008 that a district court, before
certifying a class, must conduct a “rigorous” analysis and “find
that the evidence more likely than not establishes each fact
necessary to meet the requirements of Rule 23.” Hydrogen
Peroxide, 552 F.3d at 318–20. And as we noted there, this
requirement has a long lineage that traces back to the Supreme
Court’s 1982 opinion in Falcon. Id. at 309 (quoting Falcon,
457 U.S. at 161 (asserting that class certification is proper only
“if the trial court is satisfied, after a rigorous analysis, that
10 We are mindful, too, that it was Aetna—the party who filed
the 23(f) petition—that suggested the definitional change that
it now claims is the basis for a new 23(f) time limit. Wolff, 2022
WL 17156911, at *6 (“Wolff has agreed to largely adopt
Aetna’s proposed definition, with minor modifications. The
Court will [] amend the class definition in line with this
compromise.”). While materiality is the focus here in
determining whether Aetna’s petition is timely, we would also
be hesitant to use our discretion to grant a 23(f) petition when
the basis for the petition is shrouded in what are, to us,
incomprehensible tactical maneuvers.

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[Rule 23’s] prerequisites” are met)). Ollie’s Bargain did no
more than reaffirm that precedent by asserting that Rule 23
“requires a showing that each of [its] requirements has been
met by a preponderance of the evidence at the time of class
certification.” Ollie’s Bargain, 37 F.4th at 901 (quoting
Ferreras v. Am. Airlines, Inc., 946 F.3d 178, 184 (3d Cir.
2019)). And indeed, the District Court acknowledged as much
in explaining that Ollie’s Bargain did not demand any
alterations to the Class Certification Order because it “did not
introduce a change in the controlling law.” Wolff, 2022 WL
17156911, at *4 (internal quotation marks omitted).
To the extent that Aetna contends that Ollie’s Bargain
somehow changed the rigorous analysis that a district judge is
required to perform before ruling on a class certification
motion, Aetna is mistaken. We are at a loss to understand why,
if Aetna wanted to challenge the District Court’s alleged failure
to rigorously analyze whether plan language variation should
preclude class certification, Aetna failed to file a 23(f) petition
within fourteen days of the original Class Certification Order.
Nothing in Ollie’s Bargain excuses the untimeliness. Further,
because the District Court correctly observed that Ollie’s
Bargain did not necessitate a revised precertification analysis,
the fact that the decision was issued after the May 25 Class
Certification Order has no bearing on the question of
materiality.
In sum, the November 22, 2022, Reconsideration Order
made no material change to the Class Certification Order
entered on May 25, 2022. The changes to the class definition
were minor, and their practical effect on the class will be, at

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most, limited. Nor did the District Court alter its analysis to
conform with any intervening authority. Thus, the proper
reference point for assessing the timeliness of Aetna’s 23(f)
petition is May 25, 2022. And because Aetna did not file the
23(f) petition within fourteen days of May 25, its petition is
untimely and we will deny it.
IV. C ONCLUSION
For the foregoing reasons, Aetna’s petition to appeal
under Federal Rule of Civil Procedure 23(f) will be DENIED.

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