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When a district court denies a motion for certification of a class action pursuant to rule 23 of the Federal Rules of Civil Procedure,' the representative plaintiff frequently seeks immediate appellate review of the adverse class determination. Such review is essential when denial of class certification results in a "negative incentive" situation,2 where the costs of litigating the individual claim outweigh the potential individual recovery. If the class is certified, the representative plaintiff can expect the class members to share litigation costs, rendering the suit economically feasible. The Supreme Court has ruled, however, that the grant or denial of a motion for class certification under rule 23 is not a "final" decision s subject to appellate review as a matter of right.' The Court also has held that the grant or denial of a motion for class certification is not appealable as an interlocutory injunctive order.5 These decisions foreclose immediate, nondiscretionary appellate review of the certification issue. The representative plaintiff is left with five options, none of which is wholly satisfactory. He may first, apply for interlocutory review pursuant to section 1292(b) of title 28 of the United States

Rule 41(b) Dismissal as a Route to Appellate Review of an Adverse Class Determination