On February 1, 2018, the Ninth Circuit held—consistent with the Supreme Court’s recent ruling in Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017)—that federal law does not permit an appeal of claims where the plaintiffs stipulate to dismissal with prejudice in order to obtain “final judgment.”

Following the district court’s denial of class certification, the plaintiffs in Bobbitt v. Milberg LLP, No. 13-15812, stipulated to dismiss their claims with prejudice solely so they could appeal the denial of class certification.  In light of the Supreme Court’s decision in Microsoft, the Ninth Circuit ruled that it lacked jurisdiction over the case because it was not a final judgment under 28 U.S.C. § 1291.

The court distinguished its very recent decision in Brown v. Cinemark USA, Inc., 876 F.3d 1199 (9th Cir. 2017)—where it allowed plaintiffs to pursue an appeal of the denial of class certification following a stipulated dismissal—because the plaintiffs there had litigated their claims to summary judgment and entered into a settlement that expressly reserved the right to appeal.  In other words, the plaintiffs’ case in Brown did not implicate the same concerns of gamesmanship to reach an appeal as they did in Microsoft.  The Ninth Circuit’s Bobbitt decision offers guidance on the procedure for parties to appeal a denial of class certification where some claims are still at issue.

To view the court’s opinion in Bobbitt, click here.  To view the court’s opinion in Brown, click here.