On January 15, 2014, in Driver v. AppleIllinois, LLC, the US Court of Appeals for the Seventh Circuit clarified that it would use a material alteration standard when determining whether to grant or deny a repeat petition for permission to file an appeal of an order granting or denying class certification under FRCP 23(f) (No. 13-8029, (Jan. 15, 2014)).

In the underlying case, the district court certified a class of waiters, bartenders and other tipped employees at restaurants owned by entities controlled by the defendant. The Seventh Circuit denied the defendant's first petition to appeal the class certification under FRCP 23(f), which authorizes interlocutory appeals only of orders "granting or denying class-action certification." The defendant attempted to renew his challenge to the initial grant of class certification by filing a second petition to appeal after the district court issued an order modifying the class definition in the first order. The Seventh Circuit denied this petition because he based it on the appeal of orders issued by the district court unrelated to the grant or denial of class certification, such as the district court's refusal to decertify the class. The Seventh Circuit found that the district court's refusal to decertify a class was not an order granting or denying certification but merely a denial of reconsideration of a previous ruling and therefore not appealable under FRCP 23(f).

More importantly, the Seventh Circuit clarified the standard it would use to grant or deny such repeat petitions. It held that to justify a second appeal from an order granting or denying class certification, the order appealed from must have materially altered a previous order granting or denying class certification. The court noted that modifications to the class definition can be considered a material alteration but slight changes would not be. Only when an order materially alters the certification can it be thought of as a grant or denial of certification to warrant the appeal. Other repeat petitions for interlocutory appeal not meeting this standard will not be granted.