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In addition to being on the warpath about cy pres class action settlements, we try to keep an eye on various other issues related to the much-abused Fed. R. Civ. P. 23.  First, we’re pleased as punch to let you know that all the really awful things that the Federal Judicial Conference’s Rule 23 Subcommittee was contemplating doing (rejecting/watering down ascertainability, recognizing issue classes, writing cy pres into Rule 23, and eliminating offers of judgment) have all been dropped.  You can read about it here.  Only comparatively minor settlement-related issues (opt-outs, notice, objectors, approval) remain on the Subcommittee’s agenda.

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 largely 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:

Whether the Sixth Circuit erred in concluding, in conflict with the decisions of seven other Circuits, that statutory limitations periods applicable to the claims of absent and unknown persons can be extended indefinitely by filing successive (or “stacked”) class actions.

More information, including links to all filed documents, is available on SCOTUSBlog, here.  Full disclosure – Bexis and his firm are filing an amicus brief for the Product Liability Advisory Council (“PLAC”)  in the Phipps matter.

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:

Whether a federal court of appeals has jurisdiction to review an order denying class certification after the named plaintiffs voluntarily dismiss their claims with prejudice.

As before, more information, including links to all filed documents, is available on SCOTUSBlog, here.

We’ll let you know what happens.