On January 15, the United States Supreme Court granted a writ of certiorari in the matter of Baker v. Microsoft Corp. on the issue of 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.

Rule 23(f) allows a plaintiff or a defendant to file a petition for interlocutory review of the decision to either grant or deny class certification.  If interlocutory review of a decision not to allow class certification is denied, however, a plaintiff is normally required to litigate his or her individual claims through judgment before then appealing the order denying class certification.

As applied to Baker, now before the Supreme Court, after losing their motion for interlocutory review of the denial of class certification before the Ninth Circuit, the plaintiffs dismissed their individual claims, thereby making what had been a non-appealable interlocutory order appealable as part of the final judgment in the case.  Although permitted by the Ninth Circuit, the tactic has been rejected by the Third and Tenth circuits.

The Supreme Court’s decision to grant certiorari indicates that it may have a skeptical view of the tactic, and it signals that the Supreme Court will remain active in class action jurisprudence.