The United States Supreme Court recently heard oral argument in the case of Microsoft Corp. v. Baker, where the Court is set to determine whether a plaintiff can tactically circumvent Rule 23(f) of the Federal Rules of Civil Procedure.
Rule 23(f) provides for an interlocutory appeal of a district court’s denial of class certification. The rule, however, requires permission from the court of appeals. If the appellate court denies interlocutory review, then the plaintiff’s individual claims must still be adjudicated in the district court. In other words, no final appealable order is entered until after the adjudication of the individual claims.
As we previously reported, in Baker, after losing their motion for interlocutory review of the denial of class certification before the Ninth Circuit, the plaintiffs dismissed their individual claims in order to make a non-appealable interlocutory order appealable as part of the final judgment in the case. The Supreme Court is now reviewing whether plaintiffs may voluntarily dismiss their suit after class certification is denied as a procedural tactic to guarantee appellate review of an unfavorable class certification decision.
Based on the oral argument, the Supreme Court’s likely answer is “no.” Justice Ginsburg pointed out that “this device seems to be just a way to get around 23(f).” Under the plaintiffs’ strategy, Rule “23(f) is out the window,” Ginsburg commented. The respondents’ own counsel even characterized the tactic as a “manufactured final judgment.”
We will continue to monitor the case for a final decision.