Supreme Court Limits Review Of Certification Denials

One of the difficulties of class action litigation that continues to vex employers is the frequent inability to obtain meaningful review of certification decisions. Because, the reasoning goes, certification orders are interlocutory in nature, there is no right of immediate review. While since 1998 there has been the potential for review of orders granting or denying certification of Rule 23 class actions under Rule 23(f), the decision whether to review is purely discretionary, akin to a petition for writ of certiorari. That discretion has been exercised in such a way that review of even highly questionable decisions is frequently unavailable and cases can continue to proceed and to increase cost and risk even while a petition for review is pending. These problems are even worse in so-called "conditional certification" decisions under the Fair Labor Standards Act (FLSA), where no review is available at all.

Ironically, while this problem is one primarily facing employers, attempts to find new ways to obtain interlocutory appellate review have come mainly from the plaintiffs' bar. One method, when faced with the decision not to certify a case (or a decertification order) is for the plaintiffs to dismiss their own claims without prejudice to create a "final appealable order" and then to seek review at that time. We blogged about one such effort, which ultimately proved unsuccessful, in the case of Camesi v. University of Pittsburgh Medical Center, 729 F.3d 239 (3d Cir. 2013), and FLSA case. The Fourth Circuit reached a similar decision in Rhodes v. E.I. du Pont de Nemours & Co., 636 F.3d 88 (4th Cir. 2011), while the Ninth and Second Circuits had allowed such tactics.

On June 12, 2017, the Supreme Court resolved this split in the circuits in the case of Microsoft Corp. v. Baker, Case No. 15-457 (June 12, 2017). It held 8:0 (although on different grounds) that in cases where plaintiffs dismissed their own claims to obtain a final appealable order to review a prior unfavorable certification order, the court of appeal had no jurisdiction to review the decision at all. While a purely procedural case, this decision highlights the difficulties of all parties seeking appellate review of certification decisions they disagree with and may add support for current legislative proposals to make Rule 23(f) review more widely available.

While not an employment case, the facts of Baker, and the Court's approach, are both interesting. The Baker case was a...