WLF Urges Supreme Court to Reinforce Limits on Manufactured Appeals in the Wayward Ninth Circuit

“The Ninth Circuit’s evasion of Baker invites procedural gamesmanship, allowing plaintiffs to manufacture jurisdiction through voluntary dismissals with prejudice.”
—Cory Andrews, WLF General Counsel & Vice President of Litigation

Click here for WLF’s brief.

WASHINGTON, DC—Washington Legal Foundation (WLF) today urged the U.S. Supreme Court to grant certiorari and reverse the U.S Court of Appeals for the Ninth Circuit’s decision permitting appellate review of an interlocutory ruling after the plaintiffs voluntarily dismissed all their claims with prejudice. WLF contends that the ruling conflicts with Microsoft Corp. v. Baker by undermining the final-judgment rule and encouraging plaintiffs’ bar tactics to secure immediate appeals from adverse orders. WLF also asks the Court to decide whether the appeal is also barred by Article III.

The case stems from Trendsettah’s lawsuit against Swisher International alleging antitrust violations over flavored cigar products, which resulted in a jury verdict in favor of Trendsettah. After the district court granted Swisher’s Rule 60 motion for relief from judgment due to Trendsettah’s fraud on the court, Trendsettah voluntarily dismissed its claims with prejudice under Fed. R. Civ. P. 41(a)(2). Agreeing that Trendsettah’s dismissal created a “final” appealable order, the Ninth Circuit accepted jurisdiction and reinstated a portion of the jury’s verdict, prompting Swisher’s certiorari petition.

In its amicus brief, WLF argues the Ninth Circuit’s decision distorts Baker’s prohibition on manufactured finality, ignoring Article III’s case-or-controversy requirement since no live dispute remains after dismissal with prejudice. This approach erodes judicial efficiency, burdens defendants with piecemeal appeals, and invites forum-shopping. WLF urges review to clarify that inferior courts cannot subvert Supreme Court precedent.