Until 2017, in the Ninth Circuit, plaintiffs could voluntarily dismiss their claims in order to appeal lower court rulings. The plaintiffs in Henson v. Fidelity National Financial, Inc. did just that, entering into a negotiated stipulation of dismissal so they could appeal, in part, the denial of class certification.
During the pendency of the appeal, however, the U.S. Supreme Court held in Microsoft Corp. v. Baker that “[p]laintiffs in putative class actions cannot transform a tentative interlocutory order into a final judgment . . . simply by dismissing their claims with prejudice—subject, no less, to the right to ‘revive’ those claims if the denial of class certification is reversed on appeal.”
In so holding, the Supreme Court reversed the Ninth Circuit rule relied on by the Henson plaintiffs. Ultimately, the U.S. Court of Appeals for the Ninth Circuit found that the Henson plaintiffs should have been granted relief under Federal Rule of Civil Procedure 60(b)(6). ABA Section of Litigation leaders found the court’s analysis surprising and advise litigators to proceed with caution when relying on circuit precedent.
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