Washington, DC-based litigator James Freije brings us an analysis of the Supreme Court’s latest class certification decision.

Resolving a current split amongst multiple federal circuits, the United States Supreme Court recently ruled in Microsoft Corp. v. Baker that federal courts of appeals lack jurisdiction to review orders denying class certification after plaintiffs voluntarily dismiss their claims with prejudice.  Justice Ginsburg wrote the majority opinion, joined by Justices Kennedy, Breyer, Sotomayor, and Kagan, overturning the United States Court of Appeals for the Ninth Circuit, citing a lack of jurisdiction under 28 U.S.C. § 1291 (“§ 1291”).  In a separate opinion concurring … Continue Reading

 As it turns out, Chicago poet and journalist Carl Sandburg is one of–if not the–first person to be credited with an old piece of advice for lawyers:

If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.

As well as sourcing Sandburg’s quote, in his article for the journal American Politics Research, Law, Fact, and the Threat of Reversal From Above, University of Alabama professor Joseph L. Smith uses the latest in computer content … Continue Reading

 When the Rules Committee amended Rule 23 in 1998 to allow for interlocutory appeals, it made them discretionary. The result, as I’ve written before, is that class action litigators have had to make these appeals attractive to appellate courts in much the same way that appellate litigators must prepare certiorari petitions

But, as it turns out, there is one way for plaintiffs at least to ensure that an appellate court hears a denial of certification.

In Berger v. Home Depot USA, Inc., No. 11-55592, 2014 U.S. App. LEXIS 2059 (9th Cir. Feb. 3, 2014), the plaintiff had … Continue Reading

Today’s case, Espenscheid v. DirectSat USA, LLC (7th Cir. 2012) is a little tricky, procedurally. Three plaintiffs filed an FLSA class action (and collective action) against DirectSat USA, LLC. The Northern District of Illinois originally certified a class, but then decertified it, at which point the plaintiffs each settled on an individual basis.

Now, here’s the tricky part. Having settled the case, they appealed the decertification.

But wait, you ask. How could they do that? They settled their claims!

The plaintiffs’ response: the settlement agreement reserved their right to appeal. Of course, they would still face a standing problem. Since Continue Reading