On June 12. 2017, the United States Supreme Court decided
Microsoft Corp. v. Baker, 582 U.S. ___. The Court phrased
the question before it as follows:
Do federal courts of appeals have jurisdiction under §1291
and Article III of the Constitution to review an order denying
class certification (or, as here, an order striking class
allegations) after the named plaintiffs have voluntarily dismissed
their claims with prejudice?
Spoiler alert: the Court (8-0) answered "No."
The Court viewed the Respondents' arguments as an attempt to
revivify the "death knell" doctrine, which the Court
rejected decades ago in Coopers & Lybrand v.
Livesay, 437 U. S. 463 (1978). Justice Ginsburg, writing
for the five-justice majority in Microsoft, briefly
summarized that judicially-created doctrine as follows: Courts of
Appeals reviewed a refusal to certify a class when the refusal
effectively terminated the litigation because the named plaintiff
would not pursue his low-value
