Denial of Class Certification: Will the Court Endorse a Voluntary Dismissal Tactic to Manufacture Appellate Jurisdiction?

This article analyzes the Supreme Court appeal in Microsoft Corp. v. Baker, No. 15-457, argued on March 21, 2017. In this appeal from the Ninth Circuit, the Court will decide whether a class action plaintiffs may obtain appellate review of a district court’s order denying the plaintiffs’ motion for class certification, by voluntarily dismissing the plaintiffs’ individual claims and stipulating that the plaintiffs will not pursue those claims if the appellate court reverses. The Ninth Circuit held that the plaintiffs’ voluntary dismissal with prejudice was “a sufficiently adverse – and appealable – final decision under 28 U.S.C. § 1291.” See 797 F.3d 607 (9th Cir. 2015). The court reversed the lower court’s order striking the class allegations, holding that the district court abused its discretion when it struck the class allegations. The Ninth Circuit reasoned that the plaintiffs’ stipulation for a voluntary dismissal with prejudice did not destroy the adversity necessary to support an appeal. Thus, a reversal of the lower court’s decision revived the named plaintiffs’ individual claims and therefore a voluntary dismissal was only a conditional abandonment of the claims. The Ninth Circuit remanded the litigation to the district court for further proceedings. However, the appellate court did not offer views concerning whether the district court should grant certification. Microsoft petitioned for rehearing en banc, contending that the Ninth Circuit’s rule permitting plaintiffs to create appellate jurisdiction by voluntarily dismissing their claims conflicted with the law in all other circuits but one. The Ninth Circuit denied the petition for rehearing en banc, which led to the Supreme Court’s grant of certiorari in 2016. Microsoft’s appeal is significant because the Court’s ruling will broadly effect class action procedure, potentially affording plaintiffs repeated opportunities to obtain review of adverse class certification decisions. Prior to the Ninth Circuit taking jurisdiction in the plaintiffs’ appeal, class plaintiffs generally were cabined by Rule 23(f) as the primary means for seeking appellate review of class certification orders. The Ninth Circuit’s grant of appellate jurisdiction provides a precedent for class plaintiffs throughout the federal system to gain appellate review after being denied such review pursuant to Rule 23(f). The underlying facts in this litigation starkly suggest how plaintiffs might exploit the voluntary dismissal tactic to achieve multiple bites at the appellate review apple. Throughout a decade of costly litigation, appellate panels twice declined to review the district courts’ class certification denials by the ordinary Rule 23(f) route. Undeterred, the plaintiffs finally accomplished appellate review by recourse to the voluntary dismissal tactic, and then successfully convinced yet another appellate panel to undo the district courts’ class certification orders. The Court is tasked with evaluating whether the voluntary dismissal tactic constitutes an end-run around Rule 23(f) and the Section 1291 final judgment rule, and whether plaintiffs may “manufacture” finality to create appellate review when it otherwise would not exist. The plaintiffs insist that their voluntary dismissal with prejudice constitutes a final judgment on the merits within the ambit of Section 1291, and the inquiry should simply end there. They argue that there was nothing illegitimate in their action, and that finality was not “manufactured.”