we'll hear argument first this morning case fifteen four fifty seven microsoft corporation versus baker mr fisher mr chief justice i may have please the court yours afterlives say the rules committee considered what options should be available to who find themselves in precisely the situation the plaintiffs here claim to have found themselves having class certification denied in a case where they claim the individual claims make it impractical to litigate ahead on univision y's basis and the system that this claim will spring breath and that there was some kind of reservation of rights such that this claim let's bring back and i'm wondering why you think that where do you get that from i mean was this something that the  parties just a general understanding in this case that they were dismissing it but that it would spring back if they won the appeal no there is no such understanding justice kagan and there's two places to look and i can answer your question why we get to the premise that we l off our brief with the first is that the stipulation and judgment itself which are in the back of the petition appendix from pages thirty four eight to thirty nine today and in thirty nine and a that's the order of judgment and it's in it simply says that the  district court grants the motion to dismiss with prejudice and so what the plaintiffs say is because of language in the stipulation and here i can only imagine the language in point four on pet app thirty six a where they say after the court has entered final order in judgment plaintiffs intend to appeal the order denying class certification because of that piece of the stipulation it's the plaintiffs who take the position and i'm going to read to you sorry one more page here on page forty five of the re brief they say that most explicitly i think the respondents say respondents did not abandon their rights of all their voluntary dismissal was and they say unequivocal that the dismissal was predicated on reserving the right to challenge the court rulings and to revive their claims should they prevail on appeal so i think you have two problems here justice kagan the first is the actual order doesn't exactly so what they claim it says but it seems to be the presumption that they are adopting and  circuit seem to have adopted just read into that assumption and if that were true it does seem to me like you have an awfully good argument that it would not be final then under twelve ninety one and i guess i was just asking why it was that you were brief essentially you know for two thirds of the brief or more bought into that assumption whether there was something that i didn't say or some general understanding that the parties had that that  assumption was the right one to make you know the parties had no such understanding all you have is what's in the paper we start our brief with that argument because that seems to be what the ninth circuit accepted and so we started by accepting the premise of the ninth circuit but  we're arguing in the alternative justice ginsburg so what we're saying is that if they did somehow manage to reserve a right to revive their claims but they've really done is dismissed without prejudice and there's no fatalities will they be either talking about their original claims which example because they do have particular injury you know the spreading of the cost of their attorneys fees the incentive payments they were they might receive receive well let me let me be clear mr chief justice two things about that the first is their defense to our move us argument is predicated on the assumption that their claims bring back to life on remained that they can themselves can spring them back to life and so if that is the case we agree they're not moot but then we go back to earth analogy argument but just to be precise about  their argument in defense of moodiness they do not prepare around any cost breading or attorney's fees spreading argument like the one that was made in roper they do not make that argument the only argument they make is an argument that they would have a right to an incentive award if they if they prevailed and there's two problems with that mr chief justice the first is that only prevailing plaintiffs according to the lower courts get an incentive award and by definition if they're in the movement's argument they will have dismissed their claims and not prevailed and even then the idea of an incentive award which this court has never endorsed of course but that it does exist in the lower courts is based on the notion that plaintiffs shoulder the burden of litigation and here you're talking about plaintiffs who filed a complaint and now would be out of the case and which will no be no burden whatsoever so i don't think there can be an argument that they would get an incentive award even if this case were somehow allowed to proceed would do you think that that should be something the lower courts did not address that question and and that question seems at least in part dependent on facts that that that you would think the lower courts might have some better view and then we would that suggest a remained on that question well justice kagan if the court held that the plaintiff's claims cannot be revived and so therefore the only question is whether there's a movement problem we think the law is clear enough and the reason reasons i just described it so clear they wouldn't be entitled to an incentive award based on individual claims they brought in immediately dismissed that you could hold that the case is flat out moot if there were any doubt about that it was no discovery here there was no discovery because what we had is motion practice that was based on the earlier case where there were sixteen months of discovery in the earlier case remember this the lawyers came in with new plaintiffs in this case and the parties stipulated to because of the sixteenth month month record that was developed the first time around we could just go straight to motions practice about where the classroom occasion was mr fisher you can argue in this in the alternative what do you think is the critical factor for you is it that they dismiss their claim voluntarily is it that they dismiss their claim voluntarily with prejudice is that the case is not what's your best or human could what's your best critical fact that the fines the outcome in this case i think the easiest way to decide the case just a sort of my or is to say when they dismissed their claims of prejudice their claims were gone forever and that would get insistent there is no i mean i  personally don't like absolutes and so i haven't been able to imagine a situation in which a cases dismissed with prejudice but where there may be some issues that should survive  and i don't actually haven't done research on this so i may be answering asking a question that's already been answered by our case law but let's assume an attorney sanction something of that nature  answer it in two steps the first is you can start with the court's deacon's case which we cited the beginning of our mootness section of our brief which i think says quite clearly that when plaintiffs voluntarily abandon their claims they cannot be revived and so then the only question is whether is an exception to that and i think that there may be an exception for situations where plaintiffs dismissed their claims after a ruling from the trial court that decimates their claims on the merits and so as the court put it in the old thomson case in the eighteen hundreds that the market be interpreted so narrowly that the cases doesn't make much sense would that work isn't that actually what the hypothetical you just said just a kennedy is quite close to the thomson case itself which was an antitrust case in the court issued a ruling a pre testify on by and large that is well if it truly decimated your case then perhaps at least according to some of the lower courts you could take an appeal from a voluntary dismissal but the garden variety evidentially ruling would not allow that tactic and that's the evans case which goes all the way back to shortly after the founding where the government itself was a trial and it just took judge precluded one of the government's witnesses from testifying the government then dismissed try to take an appeal to this court and this court  dismissed the appeal and what you're creating with that is not just it's not just a small loophole what you're creating is an enormous gap because any interlock atory own or could be characterized by the party that loses as something that's critical to the case so any interlock atory order could then could then be appealed with justice alito i think you could take an absolutely firm position to preclude that possibility but i think if you were to approach the case like justice sort of my or doesn't say can we at least leave open for another day the possibility of a pretrial ruling that truly decimated the merits allowing an appeal i think you could say that to what if i could add a definition of a ruling what is decimate the merits what does that mean i think that effectively already lost on the merits it is impossible to go forward because of a ruling that goes to the substance of your claims and i would just hasten to add that whatever the rule might be and whether it's absolute or whether there is an exception this is the easiest the defendant doesn't i mean i can imagine such a case but if he didn't i guess the trial court would say defendant moved for summary time and then if you just refused to i don't know what would happen i guess the plaintiff could go judge might bring the parties in for a conference and say is there anything left of this case should we go ahead and of course that's going to get worked out in the ordinary course of business will be the defendant who moves for the summary judgment and then it will be entered in his favor and then the plaintiff of course will have an appeal that's right and that's that that's what i would think that was the normal system absolutely and that's what's so different in this case is that the plaintiffs even now don't claim there's anything wrong with the judgment against them bailing out some of the judgment against them there's a lot left of their case th the individual claims not the class claims right well there are no class claims mr right so what's left of their case are the individual claims well they've given up their individual client i know but yes but that's not any appeal when you have an issue a claim left and you lose you appeal now the only thing that's different about this case of course is that the their lawsuit was entered voluntarily and i think the critical point you argue whatever they're appealing it isn't that they shouldn't have lost sight but it's not as if there's nothing left of the case what's left of the case is their individual claims well there claims have been given away remembered mr chief justice and i maybe if i don't miss what you're asking me but either they have revived they've reserve the right to revive their claims in which case i would agree their individual claims are still alive but we don't have a final judgment and i'm more they've given them away their planes are alive prior to the voluntary dismiss that's right because that's right but when they asked for that voluntarily dismiss that voluntary dismissal the district judge gave them exactly what they wanted on appeal they're not claiming anything wrong with that dismissal they're not claiming so there's no adversity in the way justin bieber when you explain to me just how does it work in an ordinary case a class action is special in this respect i bring a class action the defendant i say has told the biggest law anyone has ever told and it violates nineteen statues unfortunately my client is damaged only to the extent of ten cents but i'd like to bring a class action right now it's going to be worth it and the judge says no you can't all right at that point what is the plaintiff's supposed to do he think the judge's ruling is wrong he doesn't want to pursue a claim that's only going to be worth ten cents because of that he's most likely to get no more than two cents for the lawyer himself  o what is supposed to happen well that's exactly the problem the rules committee considered just as prior when they held is that in that situation the plaintiffs can go to a court of appeals and ask for discretionary appeal and say they can argue just exactly as you did that our claim isn't worth it on an individual basis and for that reason you should grant us a right to unlock a tory appeal if that right however is i'm sorry if that request is denied by the court of appeals then the plaintiffs are in the exact position of the plaintiffs in live say we're going where importantly it rejected it because of the proper balance between trial courts and courts of appeals so even if the plaintiffs say we have a death knell situation and even if it really is there are very real costs on the judicial system that it would be imposed by a right to automatic appeal of the classification motion of course sometimes a peek under the rug of the merits of the case itself to see whether it's worth their time as the night circuit may well have done here also as i was just saying the plaintiffs can argue that otherwise it's the death knell of their case and so there's actually two things that are important here one is yes plaintiffs are better off in class actions than an ordinary cases for that reason and on the other hand the cost to the judicial system of allowing an automatic right to appeal to be manufactured the way they would here are higher in the class action realm and that's partly because of rule twenty three c which says that denials of class certification or grants for that matter are inherently tentative and even district judge because district judges can reconsider them so a plaintiff faced with a genuine death knell situation this court held in live say should go forward if they believe in their case they should go forward the district judge might reconsider his view the plaintiff might want to repackage the way they're making their arguments whether it's the sort of occasion of the class or the particular claims they're bringing if that fails they should go ahead maybe motions practice was in the case but if they believe in their case the court held in live say the plaintiffs have a remedy to go forward and then take an appeal at that point but as a practical matter that's not going to happen this i mean just their individual claim that it's worth is just as runner's case ten cents and you say well you can go forward with the whole litigation that's premised on class allegations and something is involving an enormous amount of discovery like this case i mean you know their point is that you win because the practical reality is they're not going to go forward well mr chief justice first of all maybe the ten cent hypothetical is rather in the extreme but  multiple instances of plaintiffs going ahead in cases after they've been denied class certification and so there's a couple of reasons why they might do that take this case as an example the state laws under which their prime to prevail on the merits have fish shifting provisions and so the court is quite familiar with scenarios where plaintiffs go ahead with low dollar cases or indeed no dollar cases with a prospect of fee shifting ahead and you know that should not be taken lightly that's something the plaintiffs can use to their advantage also the key is whether the plan is believe in their case i think if the plaintiffs believe in their case i think there's every reason to go ahead the difficulty is if the plaintiffs don't so much believe in their case every incentive is to to have litigation go the way this has which is ten years of fighting about class certification with not a single motion yet on the merits and that's the difficulty of a situation like this to the judicial system not just to the cost of appellate courts are being forced to weigh in on potentially very difficult and complex classification issues that would otherwise wash out of the case but also defendants being forced to undergo a tactic that it does not have when the converse is the case in other words where there's a grant of classification defendants have no way to manufacture an automatic right to appeal and that was another of appeal with any effort when this appeal the case is now before you to get it to the same panel like we had three different panels feedly for the well just to be precise actually there are two different cases so there was a first case with classification was denied and then rule twenty three f was denied and then any case went away right and then you had the second case which is the one we have here and then it went up to rule twenty three f to the ninth circuit a motions panel looked at that and denied review and i think the way the ninth circuit procedures work is that motions panels are simply different than case of the merits panels microsoft did ask upon the filing of the appeal that is before you right now the for the ninth circuit to dismiss the case for lack of jurisdiction at the outset but what the ninth circuit did is scooted over to a regular panel and that's how we got to where we are today but the do this odd that the panel that decided the case finally decided the case apparently thought that this there was a proper ground for this to go forward as class as a class action right now known just as what they said the class the class allegations were improperly just yes right so not let me  things one is to be precise about what the ninth circuit panel held all they held was that the district judge abused his discretion by misreading a ninth circuit case concerning whether or not class certification was appropriate the ninth circuit did not consider whether class certification was actually appropriate or even whether the causation argument that is at the center of microsoft's objection to class sort of occasion was correct well let me a new state more precisely that the final decision of the ninth circuit was that there had been by the district court regarding right class action certification that's correct and i think it goes to the nature and actually the benefit of rule twenty three f it's discretionary review system which is just to use this court as an example it might be nicer if you're already claim thinking though that the error would be harmless in any event or some other ground so the ninth circuit may well have thought that ultimately even though the district judge might have misread one of its cases ultimately classifications going to be denied anyway ultimately the plaintiffs are going to lose on the merits anyway it's not worth their time and so what this plaintiff tactic is about doing again is foisting on the courts of appeals appeals that often they've actually directly turned down and requiring them to extend significant resources at all that i understand all that but what i'm getting at if this if a twenty three f appeal had been presented to the panel that decided the case that is now before us can you say that they would have refused t hear the appeal i might be able to say that i will actually tell you that just by happens how with one of the judges who was on the twenty one of the judges who was on the motion panel that denied the twenty three out petition was on the merits panel that decided the case in front of you today so that that one judge we know at least voted to reject the twenty three off appeal but was forced into taking this one how would that be consistent with their reasoning power and decided cases before us because remember go back to the idea why we have review in the first place justice alito it's because courts of appeals even if they're confronted with a situation where the district court might have made an error in an initial ruling on class certification there's a few things that may cause a court of appeals nevertheless to deny twenty three f appeal the first is the ninth circuit may say what self this case is just in its infancy we'd like some evidence to be entered in some motions practice to take place maybe the plaintiffs will reformulate their claims maybe the district judge will reconsider for himself his past certification motion maybe the district court proceedings would just take care of this the ninth circuit may also have thought look the claims here on the merits look remarkably weak and so why should we expend our resources answering difficult classification issues against the backdrop of a case that it's going to die out anyways on the are any a number of other reasons in fact the rules committee knows go so far as to say just simply docket congestion can be a reason for the court of appeals to say look this looks like a run of the mill appeal we have other other more important items in front of us so the important point here though is that the plaintiff system would completely up in that regime the rules committee thought very hard about rule twenty three f and as i said in the committee nos consider the exact problem the playing a super pounding to you here and said the best we can do  that there should be no automatic immediate appeal from denials of classification and so even in that circumstance the court was quite firm and i think for some very good reasons if there are any other questions about thank you mr chief justice and may please the court if a district court commits prejudicial non harmless error our core position is that a plaintiff can bet her whole case on its reversal and so i'd like to begin where justi began and explain why as a procedural matter the parties have been living litigating this case as if the claims would spring back to life and then i'd like to explain why i think that's permitted so in this case we followed the twenty year old ninth circuit procedure in seeking a conditional dismissal with prejudice and i think i need to put some meat on the bones here so we kind of understand the procedure this date and it's not unusual to the ninth circuit this dates back to one thousand nine hundred five in a case called contra that interpreted rule forty one and i want to quote from that case here's what the ninth circuit said quote a voluntary dismissal with prejudice permits the appellate court to review the action that caused him to dismiss his case in remember if the plan of prevails on appeal and the district court ruling is reversed then the claim is remanded to the district court for further proceedings so it's not a surprise that most of my friend mr fisher is brief characterization justice ginsburg i'm going to answer it directly but what i was saying a moment ago was just to explain that procedurally what we attempted to do was conditionally dismissed so that everything would spring back to life now i would like to answer your question  there is there is this one case that suggested that that is what happened i mean is this a procedure that c used in the ninth circuit what is it used for why did people think that this was the governing law so yes it's not one case if you look at pages i think three to four of our appellate brief in the ninth circuit we cite many cases where this happened in the ninth circuit and in fact i i see the look of surprise on your face but this is the procedure in many circuits do that  reservation it is and i mean it's part of what i know that's a reservation the case law that says you can't just express a future if we're being technical this is you have to make a conditional dismissal we dismiss under the condition that we are you know that we're going to understand just brahman explain why it is a conditional dismissal and i definitely went back to your question justice ginsburg about why i think this is permitted in the class action context so here's why justice brier there's long there's a long line of cases from the ninth circuit about a conditional dismissal you have to make clear that there's no settlement that's a requirement the ninth circuit we did that on paragraph six it's on page thirty six of the petition appendix and then you have to make clear that after final judgment you intend to appeal a prior adverse order we did that in paragraph four this is petition appendix thirty six a and so you don't have to take my word for it if you look at our appellate brief in the ninth circuit pages three to four where we explain what we were doing that the ninth circuit accepted and we cite a number of cases where this is used we followed the procedure in the ninth circuit for doing a conditional militarised evenings maybe now it's time for you to answer just as g and i i would i would love to so the reason why i think this is permitted and in in the class action context is because there's two things you need to do in in order to have your claims bring back to life one  have to condition your dismissal but that is to avoid a waiver argument and then secondly you have to show prejudicial error and let me explain why that applies here so what our theory is that what we have are individual  lawyer certainly would and it goes to the core of that while you have to argue i don't i don't you would not have to but let me tell you why plaintiff's lawyers would and because it points up why this is not an end run around rule twenty three so there's nothing in the balance struck by rule twenty three off that suggests that we submit any intent to either penalize or prevent plaintiffs from obtaining a final judgment by betting their case and if you look at the advisory committee notes we cite this in our brief there was a circuit split at the time as to whether or not this procedure was appropriate the advisory committee was aware of that they cited the second circuit case from one nine hundred ninety that permitted this so microsoft's position in essence is that rule twent congress to make it one of the interlocutory orders that is immediately appealable like a preliminary injunction certainly but then the the plaintiff would have been risking nothing in other words to go so far as to say you have an appeal of right in live say cecil lives say told the eighth circuit that even if his are certification was denied he was going to continue litigating his individual claim page sixteen of the joint appendix in live say she's alive say continued litigat his individual claim even after it was decertified and as a result that case continued and it was actually settled for one point three million dollars even after the lives lost in this court that's the critical difference between an interlocutory mechanism n the following way even though twenty three f exists a plaintiff could choose after a class allegation is stricken to litigate their individual claims to final judgment and then appeal there's nothing in rule twenty three  individual action no no no i perhaps in this communicated what i'm saying is if you have a class that is not certified and you think that's wrong if you eventually litigate the case on the on the merits judgement when it's all over you can bring up everything right and are our principle our theory of this case is that any final judgment means that the case is over and there's nothing left for the district court to do this is a final judgment it may be manufactured but a manufactured final judgment doesn't mean that the case isn't final it doesn't undermine could i take you back sorry just to this sort of non reservation reservation point that you said there were two things that you did that fit with the ninth circuit's procedure you said it was unsettled and you said that you were going to appeal is that right we said we're going to appeal a prior adverse order right so where did those requirements come from you know if i looked at what cases what i find that that's what you have to do in order to prejudice it in order to dismiss something with prejudice in such a way that it springs back to life if you win the appeal so the  cases you find on pages two to three or three or four of our ninth circuit brief conscious the leading case there's other ninth circuit case i think almost that is one of them it cites a first circuit case called john's i think about the problem is it is a problem for t says an expression of intense is not a reservation of a right to appeal so you are in a dilemma if you say i condition my dismissal upon my later appealing  into the case which happens to be our case rather than the ninth circuit's called library which says then the judgment isn't final but if you don't reserve something you're in the box you're in right now and the case is over and so you think of this thing called intent which is perhaps an unknown creature before you thought of it i don't know what and then you say aha we're not really conditionally dismissing so we're not out for that reason but we are reserv an intent and therefore we've got to say that it's final and you can appeal the issue the rules committee having worried about yours and similar problems says here's what we'll do for you we'll give you that if in appeal why should i not think about the case just that way so i think even if you do think about the case that way we're right justice prior and here's why you certainly need to dismiss with conditional prejudice if you think that did not happen here then i think the case comes to you on those terms of ninth circuit thought that but if you dismiss what condition of prejudice what you said is that this runs square up against lives a that's where i disagree with you and the reason i disagree with you is live say was a true interlocutory appeal it was an ongoing case and that is not a formalistic distinction with with no practical significance that's the whole enchilada in my view and here is why in an ongoing case we we know that justice stevens and the court in live say didn't think that people didn't have the right to continue because if they did why would the various circuits have developed these unbelievably complicated and difficult test where they were doing evidentiary hearings in the district court and then reviewing it on appeal the interlocutory posture the core problem with the death knell doctrine was that it was unworkable of course  undermined the final judgment rule but if you have a true final judgment whether it's manufactured or not and this goes back to your question justice ginsburg i feel like i haven't really you know vigorously advocated my position on this i really believe that rule twenty three f says nothing on this question because it was changing things it was giving people options but they were interlocutory options they were options where the presumption was not the case would be stayed the presumption was not that if you lost you couldn't continue litigating your interview to a claim and the response of my friend mr fisher in the briefs is oh well that argument is too cute by half because in reality in the death knell settings people weren't doing that count so what is the circuit split on this arm which issue on this very issue of these conditional appeals i'll call them without consent because in the criminal area i'm aware that  government and the defendant can agree to reserve an appeal on the search issue for example yes but if there's no agreement and you plead guilty you ways there seems to be a separate procedure that you're describing what's the circuits soft i mean answer that honestly three things the first is there's actually a series of circuit splits there's a circuit split on whether this can be done in the multi claim context where the second circuit and the federal circuit say you can and they said they have brain breaks the same theory and they say if you have a core claim that you really care it's your primary claim and it's dismissed twenty six summary judgment but your peripheral persists every circuit would say you could dismiss that without prejudice forever and take your appeal but the second circuit in the federal circuit say you can dismiss the peripheral claim with conditional prejudice well that's a different question but you mean you've spoken a lot about ninth circuit precedent but what is your best support in any case from this court for the proposition that a voluntary conditional dismissal with prejudice is a final decision and for proctor and gamble your honor and in procter and gamble you have a discovery order saying that the united states had to turn over a grand jury transcript if you read the briefing if you look at the oral argument the parties conceded it don't question is the government that was a collateral order that the government felt strongly that they shouldn't have to obey the court did not order them under rule thirty seven to turn it over or were going to terminate the case the government justice alito went to the court and said when you decide what sanction you want because it was likely as procter and gamble pointed out that they just would have imposed an evidentiary sanction or an adverse inference sanction the government said please don't do that please impose a terminating sanction so we can appeal what would otherwise be an interlocutory rule well it's one thing when a party who suffered a very serious adverse ruling on an interlocutory order says ok we give up go ahead and enter judgment for the other side that's one it's quite another thing possibly when the party that has suffered this ruling moves for a voluntary dismissal and the order cannot be final unless it defeats every thing that you asked for so any possibility that you would get attorney's fees or in some of a ward or anything else of that if you are keeping that still on the table if that is still on the table then the order is a final well i would say and the only basis for rejecting it everything that you might possibly get was your request if you read the order that way was your requests that it be that it be rejected with prejudice but that's precisely what happened in procter and gamble and that's precisely the argument procter and gamble made the united states justice  me what's wrong with that as a matter of first principles well what's wrong with our position or with rejecting our with what i just said i think what's wrong with that is it runs square up against what the long standing definition of finale has always been this court has never held justice alito that a you technical final judgment for practical considerations is not final in fact this court has repeatedly said and i quote a final judgment always is the final decision and that's true because that the point of the final judgment your the reversal that you're looking for does not go to the merits of the judgment that you voluntarily agreed to have entered against you that's what raises the article three questions nothing that you're arguing on appeal is going to change the fact that you lose so i was answering a finale question and i'd like to i'd like to explain it and then pivot back to that what i'm saying is a matter of whether this satisfies rule twelve ninety one the fact that things could spring back to life if we win on appeal is irrelevant because any judgment could spring back to life if you went on appeal appellate reversal is not relevant to the question if analogy now you've asked a slightly different question i would submit mr chief justice which is a case involving literally a settlement doesn't undermine jurisdiction it presents a marriage question of waiver let me read you it's not it's not simply the fact that you consented is that the arguments you're making do not go they're not a reason why you should win because you've already had a judgment entered against you it's one thing it's like a normal appeal if you get a judgement in her against you and you have arguments why it shouldn't be what you told the district court in your judgment against you so you can argue that it shouldn't have done that so i guess is a few things going voluntarily dismisses a complaint may not appeal that they own no no so there's a long line of cases that say a voluntary non suit which is a dismissal without prejudice can appeal and what the court meant there was have lost on the merits of the discovery ruling if you read it in context both parties agree you can look at the briefing you can look at the oral argument both sides concede that the discovery ruling saying you have to turn over the grand jury transcript did not touch on the claim at all it did not make it so the government couldn't win it didn't impair the claim so back to your question mr chief justice the three levels of analysis  actually think those are easy questions for us there's nothing left for the district court to do the fact that it could have something to do if there's an appeal has never made a judgment non final on adverse to this we didn't consent to this we  for a voluntary dismissal but we did it with a condition it's exactly the same as proctor and gamble when the court analyzed the waiver question they said well you may have consented to the dismissal but you did it so you could appear all the prior adverse ruling and at oral argument there's an exchange between a fortis who represented proctor and gamble and justice frankfurter where it's clear that that was a waiver case and what justice frankfurter said was well they may have consented to having the case dismissed is there anything terrible that would happen if the president leaves this open and looking to try to simplify for seizure we see if we take the other side we leave people in your position ask the court of appeals for permission under now sometimes the wrong we did on it well if they wrongly deny it here's what you do go litigate your case and lose or give up and then appeal that final judgment for them now there could be a few cases where that won't work either but they're likely to be so few and far between that the simplicity of that and people knowing what to do is better than having fourteen different cases in conflict in the different circuits and trying to figure out what we're trying to figure out now what's the answer to what the answer does is briars i think a number of terrible things happened the first one is you restrict the ability of parties to do this by a laterally which happens much more often than unilaterally we wended research and tried to see how often this procedure was used and it was interesting it is used several times a year for the past since rule twenty three had been passed but in many of those cases the parties agree and i'll tell you why because after class certification is denied the plaintiff to sides that she does want to continue she is willing to continue litigating any visual claims she'd prefer to take an appeal but you can't get one hundred twenty three after so she says ok i'm going to keep litigating and the defendants realize this plaintiff is going to keep litigating and you know what it doesn't make any sense as you said earlier to litigate a ten cent claim or as you said mr chief justice even a ten thousand dollars claim so let's agree that this claim can be dismissed with conditional prejudice and then will go up on the issue of class certification which is really what this case is about anyway under microsoft's rule it's not simple because it's a jurisdiction this is not been used by plaintiffs frequently and it won't because you have to show prejudicial error it doesn't matter your examples an extreme one of course you couldn't do that but in even more run of the mill examples an evidentiary ruling or discovery ruling you wouldn't get reversal but i really want to go back to your question justice brier because at the end of the day if there's not some serious practical downside i understand the allure of basically saying you shouldn't be able to manufacture finale there are very serious downsides  reasons to stick with the long settled definition of the term there's the bilateral issue that i mentioned there's also the reality of what will happen in class cases and here's what i mean under our rule if you lose the appeal if we lose the appeal the case is over if we win the appeal the stakes are better known if you reject our rule if you say that the circuits that have said this is impermissible particularly as a jurisdictional matter right here's what's going to happen you're going to have small dollar value individual claims that are abandoned without regard to merit this case is a perfect example you heard my friend mr fischer one of the judges that was on the twenty three effort to panel was also on the merits panel microsoft responded to our twenty three of petition by saying there's no death knell here this isn't a case where the plaintiffs are going to stop litigating this five plaintiffs firms that's probably why twenty three f was denied and so the upshot is that many small dollar claims will be abandoned now all large claims will be litigated but that's not good either because they'll be litigated without knowing the stakes and if some of them actually go to trial we're going to have piecemeal trials i would actually suggest that rejecting the rule in one circuit here is why the idea that an issue can come up multiple times on appeal whether it's certification or not that's an incident of a district court not deciding the deciding issue on fewer than all of the grounds that are possible that could happen after a trial that could happen at any point the when we talk about piecemeal appeals what we're worried about is is there an issue that would have been mooted or revisited later in the litigation i would submit that precisely that is what doesn't happen in the twenty three b three class context because one of the briefs can i find three splits that you didn't get serious about the second to the federal circuit we're in the brief can i go for the other two so i don't think that the splits are addressed in the brief i took your question to mean this principle of conditional dismissal you guys are splits i thought we didn't have occasion to brief it because we were kind of addressing the direct question before the court but i think if you look at if you look at good belly if you look at purdy if you look at the gary plastic of that sort of the line of second circuit cases you'll see the strong difference of opinion between the various courts also if you look i think it's footnote seven of our brief the one that refers to rule making it traces the history this is an issue this issue is not new for seven or eight years the rule makers debated as a policy matter which side of this debate was right and they couldn't come to agreement and there's six memos you're on there that are cited there that the reporter of the advisory committee wrote and it chronicles the circuit splits i know this is very exciting topic to me but it chronicles the circuit that's in a lot of detail and you can see the policy arguments on both sides so i suppose in conclusion if i could leave you with anything it would be this  this particular issue about conditional prejudice dismissals and its implications not just in the class setting but but writ large is very complicated and again you can look at the the debate and the transcripts of the rules committee it has significant implications and at the end of the day although it may feel counterintuitive our view is that the policy debate is the status quo is on our side and what i mean by that is we have a technical final judgment the the core of microsoft position is that practical considerations policy arguments i don't agree with them i'm on the other side people who think this is a good practice but if you believe that this isn't right for policy reasons just as this court has expressed in the reverse situation when you have a non technical final judgment but you're thinking about using practical considerations to make it fin through the collateral or document cetera that that should be done through rulemaking we submit that this sort of change in the other direction should be done through making thank you thank you counsel mr fischer six minutes thank you i like to make four points first to address the twenty three f rule and the rule making that led to it like to couple of things first my friend says that the committee that adopted rule twenty three off was aware of the circuit split and some  having allowed this procedure they'd like to go forward with and that's a rather remarkable statement what you find if you look at that footnote where the cases cited as you find the committee's report saying that automatic appeals are not allowed in citing  say and there's a but see to the one stray case that had gone the other way and the reason why the committee thought it was in the teeth of life say was of course because lives say held that denials of classification are inherently interlock of rights of going forward on them if we prevail in the court of appeals because otherwise it's the death knell of our case the district judge would have said well that's just the same thing and of course the district judge would have been right and that's exactly what the rules committee that's just really that's not  right you deny twenty three m and there's a choice or no choice you have to you can go ahead with your individual claim they are betting their case right so appeal only if they represented him persuade a district court that otherwise their case was over so in practical terms it's precisely the same thing and that's what the rules committee thought i'll just read you one sentence from the committee notes they say an order denying certification may confront the pla with a situation in which the only sure path to appellate review is to by prevent proceeding to final judgment on the merits of that industry or sql aim and then taking an appeal so the rules committee considered this exact question and thought the only way to get an appeal for circuits permitting these conditions appeals well just sort of ironic there's two levels to that question you're asking me the first is on the exact question here as to classification decisions there's an old second circuit decision which has been called into many times and never had anything done with it and then the only other thing you have on my friend's side is the ninth circuit case that immediately preceded ours that brought this issue up to you so until the ninth circuit allowed this a couple of years ago nor court was allowing it in the classification realm and the important thing to understand about the other split which caused the bigger split up taking it outside the class action is all of those cases are predicated on the notion that the plaintiffs claim has been destroyed on the merits and that's where the ninth circuit made a wrong turn here even if you accept that as i think you are calling just a sort of more a more flexible rule this case cannot possibly satisfy it because with the ninth circuit missed is a denial of past certification has zero to do with the merits and this court has said that over and over and over again and so the phrase my friend to use that he would like to have is something that just doesn't exist a right to appeal reserving the right on a procedural claim that has nothing to do with the correctness of the judgment below the only counterpart that exists in the law to that is criminal rule eleven and there is no civil there's no civil counterpart and so when these are complicated questions as my friend says they are and perhaps in some ways i don't think on the facts of this case it is but there are difficult questions about appeal ability and the like what the court has said time and again and swinton mohawk most recently and going back further and am cam in the class action context is the rules committee is the place to resolve those questions and the rules committee carefully considered this question  and came up with a solution that we simply asked the court to be faithful to today so two other points if i have time first of all my friend talked a lot about ninth circuit procedure and once or case law but the only case law from this court that's relevant  that if you dismiss a case voluntarily it does not spring back to life that is of course unless there's a problem with the entry of judgment that you prove it like of the ordinary appeal but otherwise it does not spring back to life and that leaves him with procter and gamble and i think the court is exactly right that the government argued procter and gamble on the premises in the court accepted the premise that the earlier order in that case had caused the government to quote lose on the merits and the government did not reserve a right to revive its claims or anything like that because that was not the argument the government made and so as my friend scribes from archer and gamble he might have made an argument like that might have been procter and gamble's argument but that was not the argument that this court accepted and that the government may they're trying to make a very different argument than the court accepted in proctor and gamble if you have any doubt about that look at the per cases on which procter and gamble is days the thompson case on the one hand and what the court called the familiar rule that a plaintiff who cannot plaintiff cannot appeal after having voluntarily dismissed their claims on the other and what the court said is this case is like thompson this is like a case where your claim is decimated on the merits and so procter and gamble is not a problem and so let me leave you with one final thought which is i agree with my friend that this case could have serious implications we think if you rule f microsoft all you're doing is leaving the status quo in place from live say and rule twenty three f and the like but their argument would apply outside of class actions to any pretrial order on which the plaintiff would be willing to bet their case and that would be a very serious incursion on rule twelve