Microsoft Corporation v. Baker

Supreme Court To Review Ninth Circuit’s Voluntary Dismissal Rule for Class Certifications

Term: 2016 Term
Oral Argument Date: Mar 21, 2017
Vote: Awaiting Decision
Questions Presented: 

Whether a federal court of appeals has jurisdiction to review an order denying class certification after the named plaintiffs voluntarily dismiss their claims with prejudice.

U.S. Chamber's Position: 

In its brief, the U.S. Chamber urged the Supreme Court to review a Ninth Circuit decision that effectively allows class-action plaintiffs to take an immediate appeal of right from orders denying class certification by voluntarily dismissing their claims with prejudice and then appealing the resulting judgment.

The brief argues that the Ninth Circuit’s voluntary dismissal rule effectively revived the “death knell” doctrine rejected by the Supreme Court in Coopers & Lybrand v. Livesay and gives plaintiffs an unequal advantage in seeking immediate appellate review of class certification decisions. The brief also notes that the issue is of particular importance given the number of class action lawsuits that are brought in the Ninth Circuit.

The U.S. Chamber also filed a joint merit-stage amicus brief with the American Tort Reform Association and the Retail Litigation Center, Inc., which urges the U.S. Supreme Court to reject the Ninth Circuit’s voluntary dismissal rule. The brief argues that the voluntary dismissal rule cannot satisfy the requirements of either Article III or Section 1291, and that the rule cannot be saved by allowing plaintiffs to pursue appeal after a permanent dismissal of their claim.  Lastly, the brief explains that Ninth Circuit’s rule wastes judicial resources and distorts class action practice by suffering the same flaws as the “death knell” doctrine and by upsetting the balance struck by F.R.C.P. Rule 23(f). 

Mark W. Mosier and Michael M. Maya of Covington & Burling LLP served as counsel for the U.S. Chamber of Commerce on behalf of the U.S. Chamber Litigation Center.

Procedural History: 

Cert. petition filed 10/9/2015. U.S. Chamber amicus brief in support of certiorari filed 11/12/2015.

Cert. granted 1/15/2016, limited to this question: Whether a federal court of appeals has jurisdiction under both Article III and 28 U. S. C. §1291 to review an order denying class certification after the named plaintiffs voluntarily dismiss their individual claims with prejudice.

U.S. Chamber amicus brief on the merits filed 3/21/2016.

Oral argument date scheduled for 3/21/2017.