Duane Morris Class Action Review - 2023 - Report - Page 63
The Ninth Circuit subsequently heard the appeal and reversed the denial of certification.
Reversing the Ninth Circuit, the U.S. Supreme Court held that the final-judgment rule
codified in § 1291 requires that finality “be given a practical rather than a technical
construction.” Id. at 1712. Permitting the plaintiffs’ dismissal device would subvert the
final-judgment rule and Congress’s balanced solution for determining when non-final
orders may be immediately appealed. The Supreme Court believed the dismissal device
invites protracted litigation and piecemeal appeals, undercuts Rule 23(f)’s discretionary
regime, and is one-sided in that it allows the plaintiffs, but never the defendants, to force
immediate appeal of an adverse ruling.
In January 2022, the Sixth Circuit held that the plaintiffs who requested that the district
court sua sponte enter summary judgment in favor of the defendants to create an
appealable final order under § 1291 did not run afoul of the Supreme Court’s holding
in Baker. In Ohio Public Employees Retirement System, et al. v. Federal Home Loan
Mortgage Corp., 2022 U.S. App. LEXIS 488 (6th Cir. Jan. 6, 2022), the plaintiffs were
denied class certification and the Sixth Circuit denied their Rule 23(f) petition for
interlocutory appeal. After the Rule 23(f) denial, the putative class plaintiffs asked the
district court to sua sponte enter summary judgment for the defendants, reserving the
right to appeal the adverse class certification decision. After the defendants indicated
their intent to delay summary judgment proceedings for 18 months and failed to proffer
a discovery request for over a year, the district court complied with the plaintiffs’
request. On appeal, the defendants argued that the district court’s sua sponte summary
judgment grant amounted to “manufactured finality” prohibited by Baker. Citing a
1980 per curium opinion, the Sixth Circuit held that a dismissal solicited by appellants is
nonetheless final even if “‘solicitation of the formal dismissal was designed only to
expedite review of an order which had in effect dismissed appellants’ complaint.’” Id. at
*5-6 (citation omitted). The Sixth Circuit could find no cases in any circuit “that have held
that [Baker] prohibits a district court from sua sponte entering summary judgment in
similar factual circumstances.”
In In Re Roundup Product Liability Litigation, 2022 WL 16646693 (9th Cir. Nov. 3,
2022), the plaintiffs in the underlying multidistrict litigation (MDL) claimed that the
defendant’s weed-killer product causes cancer. In February 2017, the district court had
granted the MDL plaintiffs’ lead counsel’s motion to establish a common benefit fund in
an order requiring the defendant to hold back a certain percentage of claimants’
settlements or judgments. The February 2017 order did not determine the percentage of
each claimant’s recovery that would be held back. The appellants – lead counsel in the
MDL – later requested that the district court order that any time an individual (regardless
of whether they are MDL plaintiffs) recovers from the defendant based on the weedkiller product causing cancer, 8.25% of the recovery be held back and placed into a
fund to compensate lawyers who have litigated against the defendant. In June 2021, the
district court set 8% as the hold-back amount, but limited the common benefit fund
contribution requirement to plaintiffs in the MDL. Lead counsel appealed, arguing that
the district court erred in concluding that it did not have the authority to require common
benefit fund contributions from claimants outside the MDL. The appellants asserted that
the Ninth Circuit had jurisdiction under § 1291 or the collateral order doctrine, but the
Ninth Circuit disagreed.
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Duane Morris Class Action Review – 2023
