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Monday, June 12, 2017

SCOTUS Symposium: Class certification, death knells, and finality

The Court at long last* decided Microsoft Corp. v. Baker. The Court was unanimous that plaintiffs, having been denied class certification, cannot seek review of that denial by voluntarily dismissing their individual claims.

[*] The Court granted cert. in in early 2016, before Justice Scalia died. It was held to this and argument delayed following Scalia's death, although argued in March, before the 8-person Court.

In Coopers & Lybrand v. Livesay in 1978, the Court held that denial of certification was not a final order for § 1291 purposes (it was "inherently interlocutory") and not reviewable under the Collateral Order Doctrine. The Court rejected the "death knell" doctrine, under which review would be allowed where the denial of cert was the death knell for litigation, because it would be financially untenable for plaintiffs to pursue small-value individual claims. Twenty years later, the Court responded with FRCP 23(f), which allowed for immediate review of cert orders (grants or denials), if the court of appeals agreed in its discretion to hear the issue. Plaintiffs  developed an additional strategy in the lower courts--voluntarily dismiss their individual claims to create a final judgment, appeal that final judgment while getting review of the cert order, then reinstate the individual claims if the court of appeals reversed on the cert decision.

Justice Ginsburg, writing for Justices Kennedy, Breyer, Sotomayor, and Kagan, held that there was no final decision to appeal. The decision was entirely purposivist--tied to the way this strategy would undermine the efficiency purposes of the Final Judgment Rule, the "careful calibration" reflected by FRCP 23(f), and the one-sidedness of a mechanism that allows plaintiffs but not defendants to seek review. Justice Thomas, joined by the Chief and Justice Alito, concurred in the judgment. In their view, the voluntary dismissal did produce a final judgment, because the claims in the case were gone. But it is not a final judgment that can be appealed under Article III, because any adversity was destroyed by the voluntariness of the dismissal. And the disputed issue of class certification is not a case or controversy that can support Article III adverseness, but only a means of taking advantage of a procedural mechanism.

It seems to me that both parts of the Court get this wrong. The majority did not respond to the real strategy at work here--creating a final judgment in the order dismissing the individual, which should be final, then raising the class cert as an interlocutory order merged into that final judgment and subject to review as part of review of the final judgment. The majority was right that the cert order was not final, but that was not what the order that the plaintiffs were trying to appeal. On the other hand, if the concurrence was right about Article III, what does that do to conditional pleas, which seem analogous to what the plaintiffs did here: Concede the merits, subject to being able to raise an underlying interlocutory issue on appeal. If adverseness is gone as to one, why not the other? I suppose the answer might be that a constitutional right is at stake in conditional appeals. But some conditional appeals are keyed to, for example, evidentiary rulings that do not implicate constitutional concerns.

A better solution might have been that there is a final judgment in the dismissal order, but that there are prudential limits on a court reviewing a voluntary dismissal, just as there are prudential limits on a court taking appeals from the winners below. The majority's concern for the interaction with FRCP 23(f) and the policies of finality fit better with a prudential analysis might properly have led the Court to the same result, but in a way that fits better than using purpose to define finality. At the same time, if Article III does not categorically bar winners' appeals, it should not categorically bar appeals from voluntary dismissals.

Posted by Howard Wasserman on June 12, 2017 at 12:46 PM in 2018 End of Term, Civil Procedure, Howard Wasserman | Permalink


Yes. I saw that. Then again, the opinion concurring-in-judgment also cited Lewis, without citing Roper: “Article III denies federal courts the power to decide questions that cannot affect the rights of litigants in the case before them, and confines them to resolving real and substantial controversies admitting of specific relief through a decree of a conclusive character.” Lewis was the case that the Court suggested undermined the viability of Roper in Genesis Healthcare Corp. v. Symczyk,. 133 S. Ct. 1523, 1532 n.5 (2013).

I guess it's all tea leaves without knowing what Kennedy would say in these cases.

Posted by: Adam Zimmerman | Jun 13, 2017 12:31:52 AM

What struck me was the multiple (2 or 3) citations to Campbell-Ewald, a case in which the Chief and Alito (along with Scalia) dissented to argue that an offer of judgment providing complete relief moots the case. The majority (which included Kennedy) rejected the proposition, although in a weird way.

Posted by: Howard Wasserman | Jun 12, 2017 6:46:18 PM


I agree with this and your point about conditional pleas. What do you make of the fact that Thomas, Alito, and Roberts don't cite Roper, Geraghty, or on the other hand, Genesis Healthcare Corp. v. Symczyk?

For those unfamiliar with this, in the second half of it's brief, Microsoft argued that class representatives lack standing to assert their claims after they were voluntarily dismissed. Even though Microsoft said otherwise, I think this position departs from the Court's longstanding approach to class actions. Long ago, in two cases decided on the same day, Roper and Geraghty, the Supreme Court said that class representatives retain "a ‘personal stake’ in obtaining class certification sufficient to assure that Art. III values are not undermined.” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 404 (1980); Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326 (1980). In those cases, the Court reasoned that if defendants could moot class representative claims in this way, the practice could undermine the whole purpose of the class action--"a convenient and economical means for disposing of similar lawsuits, and the facilitation of the spreading of litigation costs among numerous litigants with similar claims." Geraghty, 445 U.S. at 402-03 (1980). However, a recent, non-class action case, Genesis Healthcare Corp. v. Symczyk, the Court questioned in a footnote the viability of Roper. 133 S. Ct. 1523, 1532 n.5 (2013). Defendants have relied on that language to argue that plaintiffs lack Article III standing in other cases, most notably Campbell-Ewald and Spokeo.

As Howard explains above, Thomas' concurring opinion, along with Chief Justice Roberts and Justice Alito would have found the lead plaintiff lacked standing. And while Kennedy did not join that opinion, the case was notably argued without Gorsuch and took almost a full term to hear arguments in the case. Thus, a reason the court put off hearing the case could have been that there were enough votes to lead the court to split 4-4 on this question.

I wonder what that means with a nine-member court and a conservative majority. It's seems entirely possible that, should the Court could reach this question again, it may adopt Thomas' position that class representatives lack Article III standing to pursue class claims after their own cases become moot or are dismissed.

Maybe I shouldn't worry about the silence on this question. Perhaps the fact that the concurring opinion doesn't address it means they think Baker is just distinguishable from Roper and Geraghty. But should the court go so far as to reverse cases like Roper and Geragthy, I think it would be a big deal for more than just damage class actions, but those seeking injunctive relief.

All my best.


Posted by: Adam Zimmerman | Jun 12, 2017 5:36:01 PM

Are you going to write something on Sessions v. Morales-Santana? Does not the (non)-remedy in that case raise some puzzling issues?

Posted by: Jr | Jun 12, 2017 12:54:50 PM

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