In Baker v. Microsoft Corp., 797 F.3d 607 (9th Cir. 2015), the district court granted the defendant's motion to strike the class allegations. The plaintiff sought discretionary review under Rule 23(f), but that petition was denied. Thereafter, to facilitate appellate review, the named plaintiff voluntarily dismissed the action with prejudice. The Ninth Circuit exercised appellate jurisdiction, observing that the dismissal was not the result of a settlement, and reversed the order striking the class allegations. (See this blog post for more on that decision.)
The U.S. Supreme Court granted the defendant's cert. petition on the appellate jurisdiction question only, and this month, reversed. The Court held that a judgment resulting from a voluntary dismissal does not qualify as a "final" decision within the meaning of 28 U.S.C. section 1291, settlement or no. Microsoft Corp. v. Baker, ___ U.S. ___ (Jun. 12, 2017).
The opinion (by Justice Ginsburg) includes an interesting discussion of the "death knell" doctrine as it exists under federal law. Slip op. at 2-4. Of course, California law on appealability of class-certification-related orders is quite different from federal law. See, e.g., In re Baycol Cases I & II, 51 Cal.4th 751 (2011).
The good news (for plaintiffs) is that the Ninth Circuit's substantive discussion of the class certification ruling has not been disturbed. As to those holdings, the opinion remains a citable precedent, albeit one that has been "vacated on other grounds."
