Microsoft Corp. v. Baker (15-457)

argument 15-457

Microsoft Corp. v. Baker

Supreme Court of the United States 1h 0m 6 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the central dispute over voluntary dismissal and class certification in Microsoft Corp. v. Baker?

John G. Roberts 0:00

You'll hear argument first this morning, Case 15-457, Microsoft Corporation v. Baker. Mr.

Jeffrey S. Fisher 0:06

Fisher. Mr. Chief Justice, and may it please the Court. Years after Livesay, the Rules Committee considered what options should be available to plaintiffs who find themselves in precisely the situation the plaintiffs here claim to have found themselves. Having class certification denied in a case where they claim the individual claims make it impractical to litigate ahead on an individualized basis. And the system that the Rules Committee adopted and that this Court endorsed in Rule 23F was a system of discretionary review. The plaintiffs' theory here, the voluntary dismissal tactic they wished to use, would upend that carefully considered rule. Mr. Fisher, please. And it would also contravene statutory and case law upon which it is based.

Anthony M. Kennedy 0:52

May I ask, a lot of your briefing in this case operates on the premise that there really was – that this claim will spring back, that there was some kind of reservation

Unknown 1:04

Anthony M. Kennedy 1:04

rights such that this claim would spring back. And I'm wondering why you think that. Where do you get that from? I mean, was this something that the parties, just a general understanding in this case, that they were dismissing it but that it would spring back if they won the appeal? No, there's

Jeffrey S. Fisher 1:23

no such understanding, Justice Kagan, and there's two places to look. And I can answer your question why we get to the premise that we lead off our brief with. The first is the stipulation and judgment itself, which are in the back of the petition appendix from pages 34A to 39A. And in 39A, that's the order of judgment. And it simply says that the district court grants the motion to dismiss with prejudice. And so what the plaintiffs say is because of language in the stipulation, and here I can only imagine the language in point four on Pet App 36A, where they say, after the court has entered a final order in judgment, plaintiffs intend to appeal the order denying class certification. Because of that piece of the stipulation, it's the plaintiffs who take the position, and now I'm going to read to you, sorry, one more page here, on page 45 of the red brief.

Jeffrey S. Fisher 2:14

They say it most explicitly, I think. The respondents say, respondents did not abandon their rights. Their voluntary dismissal was And they say unequivocal that the dismissal was predicated on reserving the right to challenge the court's rulings and to revive their claims should they prevail on appeal. So I think you have two problems here, Justice Kagan. The first is the actual order doesn't exactly say what they claim it says. But it seems to be the presumption that they are adopting and that the Ninth Circuit seemed to have adopted.

Anthony M. Kennedy 2:44

I guess I read your brief as having largely bought into that assumption. And if that were true, it does seem to me like you have an awfully good argument that it would not be final then under 1291. And I guess I was just asking why it was that your brief essentially, you know, for two-thirds of the brief or more, bought into that assumption, whether there was something that I didn't see or some general understanding that the parties had that suggested that that assumption was the right one to make.

Jeffrey S. Fisher 3:15

No, the parties had no such understanding. All you have is what's in the paper. We start our brief with that argument because that seems to be what the Ninth Circuit accepted. And so we started by accepting the premise of the Ninth Circuit. But

Ruth Bader Ginsburg 3:26

make no mistake. You are not embracing that argument.

Jeffrey S. Fisher 3:30

No, we are arguing in the alternative, Justice Ginsburg. So what we're saying is that if they did somehow manage to reserve a right to revive their claims, what they've really done is dismissed without prejudice, and there's no finality. Well, they say

John G. Roberts 3:42

they're talking about their original claims, which included the class allegation. And they argue not only... page 45, but also at page 49, that if the class certification ruling is overturned, they then will have Article III standing, for example, because they do have particular injury, you know, the spreading of the cost of their attorney's fees, the incentive payments they might receive.