On Tuesday, March 21, the Supreme Court heard oral argument in Microsoft, Inc. v. Baker. (This blog has previously covered Baker here and here.) Baker addresses whether a plaintiff can render a denial of class certification – which is not otherwise a final appealable order under 28 U.S.C. § 1291 – appealable by voluntarily dismissing her individual claims.
According to Ronald Mann at SCOTUSBlog, the Justices were “deeply skeptical” of this strategy and appeared sympathetic to Microsoft’s argument that a party cannot ask a court to enter a judgment against her and then appeal from that judgment. At one point, Mann reports, Justice Kagan asked: “Why did people think this was the governing law?” Likewise, Justice Roberts commented that if “you told the district court to enter a judgment against you . . . you can’t argue that it shouldn’t have done that.” The Court also appeared sympathetic to Microsoft’s argument that the voluntary dismissal strategy effectively gutted Federal Rule of Civil Procedure 23(f), which grants federal appellate courts discretion to allow interlocutory appeals of class certification rulings. At one point, Justice Ginsburg stated that Rule “23(f) is out the window” if plaintiffs are allowed to appeal a class certification ruling after voluntarily dismissing their individual claims. Ultimately, Mann concluded, “[t]his is one of those arguments in which the [J]ustices leave little doubt about the ultimate outcome,” and he predicts a “prompt and all-but-unanimous reversal of the 9th Circuit.”
The transcript is available here. We will report on the opinion once it issues.