Torrent v. Yakult U.S.A., Inc., 092818 FED9, 16-56338

Docket Nº:16-56338
Party Name:NICOLAS TORRENT, on Behalf of Himself and All Others Similarly Situated, Plaintiff-Appellant, v. YAKULT U.S.A., INC., Defendant-Appellee.
Judge Panel:Before: NGUYEN and FRIEDLAND, Circuit Judges, and BLOCK, District Judge. FRIEDLAND, Circuit Judge, dissenting
Case Date:September 28, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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NICOLAS TORRENT, on Behalf of Himself and All Others Similarly Situated, Plaintiff-Appellant,

v.

YAKULT U.S.A., INC., Defendant-Appellee.

No. 16-56338

United States Court of Appeals, Ninth Circuit

September 28, 2018

NOT FOR PUBLICATION

Argued and Submitted December 7, 2017

Appeal from the United States District Court for the Central District of California No. 8:15-cv-00124-CJC-JCG Cormac J. Carney, District Judge, Presiding

Before: NGUYEN and FRIEDLAND, Circuit Judges, and BLOCK, [**] District Judge.

MEMORANDUM [*]

Nicolas Torrent ("Torrent") brought a putative class action against Yakult U.S.A., Inc. ("Yakult"), claiming false advertising under California state law based on Yakult's alleged misrepresentations regarding its probiotic yogurt beverage. The district court denied Torrent's motions for class certification and reconsideration and, later, granted his motion to voluntarily dismiss the operative complaint with prejudice. Torrent appealed, seeking review of the district court's orders denying certification and reconsideration. Yakult moves to dismiss the appeal. We assume the parties' familiarity with the facts and procedural history.

Yakult argues that we lack appellate jurisdiction in light of Microsoft Corp. v. Baker, 137 S.Ct. 1702, 1712 (2017), which held that appellate courts lack jurisdiction to review orders denying class certification after the named plaintiffs have voluntarily dismissed their individual claims with prejudice. We agree, finding no meaningful distinction between the voluntary dismissal here and the tactic rejected in Baker. Accordingly, Yakult's motion is granted.1

We note that dismissal of the appeal does not necessarily end the litigation. When Torrent sought to voluntarily dismiss the case, the law of this circuit was that a plaintiff could secure an appealable order by that means. See Berger v. Home Depot USA, Inc., 741 F.3d 1061, 1066 (9th Cir. 2014); Concha v. London, 62 F.3d 1493, 1509 (9th Cir. 1995). Baker was pending in the Supreme Court at that time, but had not yet been decided.

Under appropriate circumstances, a district court may grant relief from a...

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