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 was the issue before the U.S. Supreme Court on March 21, 2017, when the Court heard oral argument in Microsoft Corporation v. Baker, No. 15-457. If this controversial procedural mechanism is allowed, a named plaintiff would be able to simply agree voluntarily to dismiss his or her claims with prejudice, then appeal the unfavorable judgment against class certification.

The case was slated for oral argument last year, but ultimately was delayed after the death of Justice Antonin Scalia.

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Arguing on behalf of Microsoft, Jeffrey L. Fisher emphasized that the Federal Rule of Civil Procedure rules committee had considered what procedural options should be available to plaintiffs who found themselves in precisely the situation the plaintiffs in this case have found themselves and to allow them to use the voluntary dismissal tactic that they wish to use would “upend” the carefully considered rule. Fisher reiterated that when plaintiffs voluntarily dismissed their claims with prejudice, their claims are gone forever and cannot be revived. On the other hand, Fisher argued, if they could revive those claims somehow, then the decision was not really “final,” and therefore, does not qualify for appellate review. Further, he noted the very real costs on the judicial system that would be imposed by a right to an automatic appeal. Additionally, he argued that defendants would be forced to submit to a tactic that has no corresponding option — that is, when class certification is granted, there is no way to similarly manufacture an automatic right to appeal.

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Jeffrey Fisher closed his rebuttal argument by stating this case could have serious implications and urged the Court to rule for Microsoft and leave the status quo.