Recently, the United States Supreme Court heard argument in Microsoft Corp. v. Baker, a case that may significantly impact class-action defense and appellate jurisdiction. Plaintiff classes frequently want to immediately appeal orders denying class certification. But because these orders are interlocutory and not “final” under the relevant statute, plaintiff classes cannot appeal until their individual claims are resolved and a final judgment is entered, which could be expensive and time-consuming. Consequently, some plaintiff classes bypass this process by voluntarily dismissing their claims with prejudice after class certification is denied, effectively converting the interlocutory order into a final, appealable order. In Baker, the Supreme Court may decide whether this tactic is permissible.
Prior to 1978, appellate courts would allow plaintiff classes to immediately appeal orders denying class certification if they “end[ed] the lawsuit for all practical purposes.” This practice was known as the “death knell” doctrine. But in 1978, the Supreme Court in Coopers & Lybrand v. Livesay unanimously rejected the death-knell doctrine, and held that an order denying class certification is interlocutory and not appealable as of right. Continue Reading