On January 15, 2015, the United States Supreme Court agreed to address whether an appellate court has jurisdiction to review an order denying class certification after the plaintiff voluntarily dismissed his or her claims with prejudice.
Generally, an appellate court will immediately review class certification orders only when utilizing the discretion allowed under Federal Rule of Civil Procedure 23(f) when that order could be a “death knell” in a case or involves novel questions of law. Otherwise, an appeal of a class certification order would need to wait until the final judgment on the individual claims of the proposed class representatives.
In recent years, however, some plaintiffs have attempted to circumvent these general rules and seek immediate appellate review of orders denying class certification by dismissing their individual claims with prejudice. These plaintiffs contend that such voluntary dismissals are final orders allowing them an immediate avenue to the appellate court. Of course, this maneuver raises procedural, jurisdictional, and ethical issues—including (a) how does an individual that dismissed his or her claims with prejudice have standing to appeal the class certification order? (b) does the individual that dismissed his or her claims with prejudice somehow have those claims revived if the appellate court reverses the denial of class certification and remands to the district court?, and (c) what ethical implications arise when advising a client to abandon his or her possibly meritorious individual claims simply because those claims cannot be tried on a class-wide basis?
Appellate courts have been split on whether they have jurisdiction to review class-certification denials under these circumstances. The Ninth Circuit, in Baker v. Microsoft Corporation, determined that jurisdiction existed and proceeded to reverse the district court’s denial of class certification. The United States Supreme Court has now agreed to review the jurisdictional issue in Baker and resolve the split on this questionable practice.
The Supreme Court’s agreement to scrutinize Baker potentially signals an end to a plaintiff’s unilateral ability to manufacture finality of orders denying class certification for appellate review purposes. A reversal of Baker would be the proper result since one of the fundamental rules in class action law is that a proposed class representative without a claim cannot represent the putative but uncertified class.