Don’t miss Microsoft’s in-house counsel Tim Fielden’s post on two important new Ninth Circuit decisions that permitted class action plaintiffs to dismiss their cases voluntarily and then appeal adverse class certification orders without first taking their individual cases to trial and securing a final judgment. You can find Fielden’s post here. If other circuits were to follow these decisions, it would give plaintiffs, but not defendants, an automatic right to appeal immediately, even if the circuit court of appeals denies permission to appeal under Fed. R. Civ. P. 23(f)—the prescribed method for seeking immediate appeal of class certification orders.
Microsoft is asking the Ninth Circuit to rehear the appeal in its case en banc because the panel’s ruling that the court has appellate jurisdiction despite the voluntary dismissal conflicts with the U.S. Supreme Court’s ruling in Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978), decisions in the Third, Fourth, Eighth, and Tenth Circuits, and an earlier Ninth Circuit decision, Huey v. Teledyne, Inc., 608 F.2d 1234 (9th Cir. 1979).
The cases are Baker v. Microsoft Corp., 2015 WL 1219506 (9th Cir. Mar. 18, 2015), and Berger v. Home Depot USA, Inc., 741 F.3d 1061 (9th Cir. 2014). Chuck Casper, Pat Ryan, and Jennifer Canfield of Montgomery McCracken are co-counsel for Microsoft.