Law

There are also two recent, and pending, petitions for certiorari of note raising class action-related issues.  One of them, Wal-Mart Stores, Inc. v. Phipps, No. 15-597 (U.S., filed Nov. 6, 2015), is a spin-off of the employment-related litigation that produced Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011).  Having lost Dukes, plaintiffs have tried to regroup by filing separate, smaller class actions.  Given how long the Dukes litigation was pending, the statute of limitations becomes a serious problem for these newer, still quite large class actions.  Hence the issue of “stacking” the tolling effect of successive class actions under American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), is a major issue.  We’ve been aware of stacking attempts for some time, but the courts had largelly gotten it right – until now.  The Phipps petition is from the first court of appeals decision ever to allow stacking as a general rule.  Hence, the question presented is:

The second pending cert. petition of note is in Microsoft Corp. v. Baker, No. 15-497 (U.S., filed Oct. 9, 2015).  Baker involves a trick that class action plaintiffs often employ when they’ve lost the class certification battle and can’t get an immediate appeal by permission under Fed. R. Civ. P. 23(f).  Not wanting to litigate individual claims of relatively little value and often questionable merit, these plaintiffs are wont to dismiss their individual claims with prejudice to create what they claim is a situation where they can appeal as of right.

 

Wait a minute.  Does a plaintiff who voluntarily dismissed all claims with prejudice have anything left – any “case or controversy” − to appeal?  The Ninth Circuit said “yes,” becoming the second court of appeal to so hold, versus five circuits that since 1980 have rejected jurisdiction when this gambit is tried.  There being a circuit split of long standing, Microsoft has sought Supreme Court review.  The question presented is:

We’ll let you know what happens.