Certification Denials and Appellate Jurisdiction

Yesterday the Supreme Court granted certiorari in the Microsoft Xbox case to decide whether federal courts of appeals have jurisdiction to review orders denying class certification after named plaintiffs voluntarily dismiss their individual claims with prejudice.  When plaintiffs lose their motion for class certification, and fail to obtain interlocutory review under Fed. R. Civ. P. 23(f), they normally are required to take the named plaintiffs’ individual claims to judgment before they can appeal the order denying class certification.  After losing their bid for interlocutory review, Plaintiffs in Microsoft circumvented the normal process by dismissing plaintiffs’ individual claims, effectively making what had been a non-appealable interlocutory order appealable as part of the final judgment in the case.  This tactic not only distorts traditional concepts of appellate jurisdiction, but also undermines appellate courts’ discretion in deciding whether to grant interlocutory review of class certification decisions under Rule 23(f) – after all, whether the denial of class certification is the “death knell” of the litigation is one of the factors courts consider in deciding whether to grant discretionary review.  Yesterday’s grant of certiorari is yet another indication that SCOTUS continues to take a keen interest in class action procedure and will continue to have an active hand in shaping the law in this area.