In Brown v. Cinemark USA, Inc., ___ F.3d ___ (9th Cir. Dec. 7, 2017), the Ninth Circuit held that the plaintiffs could pursue their appeal from the district court's order denying class certification, even though they had settled their individual claims, because the settlement was not a "sham tactic" to create an appealable judgment.
In so holding, the panel distinguished Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017) (discussed in this blog post):
Unlike the plaintiffs in Baker, Brown and De La Rosa continued litigating their remaining individual claims after the district court denied class certification. Some of these individual claims resolved in favor of Defendants and some resulted in settlement. No facts suggest that Brown and De La Rosa engaged in sham tactics to achieve an appealable final judgment. The resolution of the present case was not a unilateral dismissal of claims, but a mutual settlement for consideration reached by both parties which expressly preserved certain claims for appeal. This case is unlike Baker, where the plaintiffs openly intended to sidestep Rule 23(f) when they voluntarily dismissed their claims.
Slip op. at 5 (emphasis added). For these reasons, the panel denied the defendants' motion to dismiss the appeal.
In a separate, unpublished opinion, the panel reversed the order denying class certification, apparently because the district court had ruled "on the basis of the pleadings," without the benefit of evidentiary submissions that would allow a full "Rule 23 analysis."
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