While the Microsoft case is a clear victory for corporate defendants, there is some language in the opinion that may be useful in another important fight in a different venue. H.R. 985, the anti-class action bill passed earlier this year by the House, would permit an interlocutory appeal from every class certification order. The high court’s opinion strongly endorsed a contrary perspective – it highlighted the wisdom of Rule 23(f)’s “careful calibration” of the question as well as the preference for determining such issues through rulemaking rather than legislation. Senate Judiciary Committee, are you listening?
The recent appellate decision affirming class certification, Ruiz Torres v. Mercer Canyons Inc., No. 15-35615 (9th Cir. Aug. 31, 2016), written by Judge Milan Smith, skillfully addresses the issues of informational injury, non-injured class members, class definition, and aggregate damages while scrupulously declining defendant's invitation to engage the underlying merits.
For 18 months, we have been tracking the work of the Advisory Committee on Civil Rules, and specifically its Rule 23 subcommittee, which has been evaluating a range of proposals to amend the federal class action rule. That work was recently completed and the Committee will soon set a schedule for public comment on a series of draft amendments.
The good news is that the Rule 23 proposals are modest and are not likely to trigger significant opposition like the firestorm that accompanied the discovery rule changes.