On June 12, 2017, the Supreme Court issued its decision in Microsoft Corp. v. Baker. Baker resolves a Circuit split concerning whether a plaintiff, after losing a class certification battle, can effectively manufacture appellate jurisdiction without going to summary judgment or trial by voluntarily dismissing her case and seeking review of the adverse class certification ruling. Continuing the Supreme Court’s recent trend of ruling in favor of defendants in class actions, the Court rejected the Ninth Circuit’s approach in Baker and held that a plaintiff may not obtain appellate review of a class certification denial in these circumstances. According to the Court, stipulating to a voluntary dismissal with prejudice is not a “final decision” triggering appellate jurisdiction under 28 U.S.C. § 1291, and a plaintiff should not be afforded an end-run around the limited nature of appellate review of interlocutory class certification orders allowed under Federal Rule of Civil Procedure 23(f).
Decisions granting or denying class certification are often pivotal in class actions. Certifying a class significantly ratchets up the defendant’s potential exposure. By the same token, denying class certification can be an effective end to the litigation, because named plaintiffs (and their counsel) often do not have the financial incentive or wherewithal to litigate an individual claim to final judgment. Considering how important class certification decisions can be, it is no surprise that aggrieved litigants often seek appellate review of those decisions.
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