Petition for Writ of Certiorari — Lance Laber, Petitioner v. Milberg LLP, et al.

No. _________

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------LANCE LABER,

Petitioner,

v.

MILBERG LLP, et al.,

Respondents.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

-----------------------------------------------------------------PETITION FOR WRIT OF CERTIORARI

-----------------------------------------------------------------R. JAMES GEORGE, JR.

GARY L. LEWIS

GEORGE, BROTHERS,

KINCAID & HORTON LLP

114 West 7th Street,

Suite 1100

Austin, Texas 78701

(512) 495-1400

LAWRENCE A. KASTEN

Counsel of Record

ROBERT H. MCKIRGAN

DANIEL A. ARELLANO

LEWIS ROCA ROTHGERBER

CHRISTIE LLP

201 East Washington Street,

Suite 1200

Phoenix, Arizona 85004

(602) 262-5311

lkasten@lrrc.com

GUY M. HOHMANN

RYAN T. SHELTON

HOHMANN, BROPHY,

SHELTON & WEISS, PLLC

210 Barton Springs Road,

Suite 250

Austin, Texas 78704

(512) 596-3622

Counsel for Petitioner

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Whether this Court’s decision in United Airlines,

Inc. v. McDonald, 432 U.S. 385 (1977), which allowed

unnamed putative class members to intervene for the

purpose of appealing the denial of class certification

following dismissal of the named plaintiff ’s individual

claims, remains good law following this Court’s decision

in Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017).

ii

PARTIES TO THE PROCEEDINGS

The sole petitioner here (intervenor-appellant below) is Lance Laber. The claims of the original named

plaintiffs, Philip Bobbitt and John J. Sampson, were

voluntarily dismissed with prejudice.

Milberg LLP, Melvin I. Weiss, Michael C. Spencer,

Janine L. Pollack, Lee A. Weiss, Brian C. Kerr, Uitz &

Associates, Ronald A. Uitz, the Lustigman Firm, Sheldon S. Lustigman, Andrew B. Lustigman, Gabroy Rollman & Bosse, P.C., John Gabroy, and Ronald Lehman

were named as defendants below. These individuals

and entities are also respondents here.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .....................................

i

PARTIES TO THE PROCEEDINGS .....................

ii

PETITION FOR A WRIT OF CERTIORARI .........

1

OPINIONS BELOW ...............................................

1

JURISDICTION .....................................................

1

STATUTE INVOLVED ...........................................

1

STATEMENT OF THE CASE ................................

2

REASONS FOR GRANTING THE WRIT .............

3

I. The Circuits Are Split On Whether An Unnamed Class Member May Intervene To

Appeal From The Denial Of Class Certification................................................................

4

II. United Airlines Is A Bedrock Of This Court’s

Class Action Jurisprudence .........................

9

III.

Requiring Early Intervention To Preserve

Appellate Rights Would Result In Unduly

Protracted Proceedings ................................ 14

CONCLUSION .......................................................

17

APPENDIX

United States Court of Appeals for the Ninth

Circuit, Order, February 1, 2018...................... App. 1

United States Supreme Court, Office of the

Clerk, Letter, June 19, 2017............................. App. 3

United States Court of Appeals for the Ninth

Circuit, Opinion, September 10, 2015 ............. App. 5

iv

TABLE OF CONTENTS – Continued

Page

United States District Court for the District of

Arizona, Order, April 16, 2013 ....................... App. 18

United States Court of Appeals for the Ninth

Circuit, Order, November 8, 2012 .................. App. 20

United States District Court for the District of

Arizona, Order, September 18, 2012.............. App. 21

United States Court of Appeals for the Ninth

Circuit, Order Denying Petition for Review,

March 22, 2018 ............................................... App. 51

v

TABLE OF AUTHORITIES

Page

CASES

Alaska v. Suburban Propane Gas Corp., 123 F.3d

1317 (9th Cir. 1997) .................................................11

Bobbitt v. Milberg LLP, 801 F.3d 1066 (9th Cir.

2015) ..........................................................................2

Champ v. Siegel Trading Co., 55 F.3d 269 (7th

Cir. 1995) .................................................................11

Cohen v. Beneficial Industrial Loan Corp., 337

U.S. 541 (1949) .............................................. 9, 12, 13

Coopers & Lybrand v. Livesay, 437 U.S. 463

(1978) ............................................................... passim

Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326

(1980) ..................................................... 10, 11, 12, 13

In re Brewer, 863 F.3d 861 (D.C. Cir. 2017)...... 5, 6, 7, 8

Love v. Wal-Mart Stores, Inc., 865 F.3d 1322

(11th Cir. 2017).................................................... 8, 13

Microsoft Corp. v. Baker, 137 S. Ct. 1702

(2017) ............................................................... passim

Milberg LLP v. Laber, 137 S. Ct. 2262 (2017) ..............3

Mohawk Industries, Inc. v. Carpenter, 558 U.S.

100 (2009) ................................................................13

U.S. Parole Comm’n v. Geraghty, 445 U.S. 388

(1980) ..................................................... 10, 11, 12, 13

United Airlines, Inc. v. McDonald, 432 U.S. 385

(1977) ............................................................... passim

vi

TABLE OF AUTHORITIES – Continued

Page

STATUTES

28 U.S.C. § 1254(1) ........................................................1

28 U.S.C. § 1291 .......................................... 1, 4, 5, 8, 12

RULES

Fed. R. Civ. P. 23(f )............................................ 2, 5, 6, 7

Fed. R. Civ. P. 24 ...................................................... 9, 14

Fed. R. Civ. P. 41(a)(1)(A)(ii) .........................................8

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Lance Laber respectfully petitions for a

writ of certiorari to review the judgment of the U.S.

Court of Appeals for the Ninth Circuit in No. 13-15812.

------------------------------------------------------------------

OPINIONS BELOW

The Ninth Circuit’s order dismissing petitioner

Laber’s appeal from the denial of class certification

(App. 1–2) is unpublished. The Ninth Circuit’s order

denying Laber’s petition for panel rehearing and rehearing en banc (App. 51) is also unpublished. The

opinion of the United States District Court for the District of Arizona denying class certification (App. 21–50)

is reported at 285 F.R.D. 424.

------------------------------------------------------------------

JURISDICTION

The Ninth Circuit issued its order dismissing petitioner’s appeal on February 1, 2018. App. 1–2. The

Ninth Circuit issued its order denying petitioner’s petition for panel rehearing and rehearing en banc on

March 22, 2018. App. 51. This Court has jurisdiction

under 28 U.S.C. § 1254(1).

------------------------------------------------------------------

STATUTE INVOLVED

28 U.S.C. § 1291 provides, in relevant part: “The

courts of appeals (other than the United States Court

2

of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district

courts of the United States. . . .”

------------------------------------------------------------------

STATEMENT OF THE CASE

This case presents an important jurisdictional issue for class action appeals and the appellate rights of

intervenors, resulting in a circuit split.

The factual and procedural background is straightforward. Philip Bobbitt and John Sampson brought a

putative class action against Milberg in the District of

Arizona for malpractice. Bobbitt v. Milberg LLP, 801

F.3d 1066, 1068 (9th Cir. 2015) (vacated). The district

court denied certification on suspect grounds, and Bobbitt and Sampson voluntarily dismissed their claims

with prejudice. They have repeatedly disclaimed any

right to pursue their individual claims (on remand or

otherwise) or to appeal the resulting judgment.

Bobbitt and Sampson petitioned for review under Rule 23(f ), but the Ninth Circuit denied the petition. App. 20. When Bobbitt and Sampson decided not

to pursue their individual claims or appeal further,

Lance Laber, an unnamed class member not previously

involved in the action, timely filed a motion asking to

intervene in the district court for the purpose of appealing the district court’s denial of class certification,

as expressly permitted by United Airlines. App. 18–19.

The district court granted the motion, and Laber filed

a timely appeal. Id.

3

The panel held that it had jurisdiction over Laber’s

appeal and found the district court had committed

legal error in refusing to certify a class. App. 5–17.

Milberg filed a petition for certiorari to this Court,

arguing, among other things, that the Court should

either hear this case along with Baker or hold the

certiorari petition pending resolution of Baker. Pet. in

No. 15-734 (U.S. 2015). The Court declined to hear

this case, but held the petition and, after deciding

Baker, granted certiorari, vacated the panel’s judgment, and remanded for further consideration in light

of Baker. App. 3–4; Milberg LLP v. Laber, 137 S. Ct.

2262, 2263 (2017).

Following supplemental briefing by the parties,

the Ninth Circuit issued an order dismissing the appeal. App. 1–2. Without addressing Laber’s arguments

with respect to United Airlines, the Ninth Circuit

concluded that this case arose in the same procedural

posture as Baker and dismissed the appeal for lack of

jurisdiction. Id. The Ninth Circuit then denied Laber’s

petition for rehearing and rehearing en banc. App. 51–

52. This petition follows.

------------------------------------------------------------------

REASONS FOR GRANTING THE WRIT

In United Airlines, this Court held that an unnamed class member could intervene for the purpose

of appeal following dismissal of the named class representatives’ class allegations and subsequent voluntary dismissal of their individual claim. The Court

4

concluded it was appropriate for the unnamed class

members to wait to intervene until after dismissal of

the named plaintiffs’ claims, as requiring intervention

sooner would have made the intervenors “superfluous

spectators.” Id. at 394 n.15. The Court has reaffirmed

the validity of the United Airlines procedure in several

leading cases on class action jurisdiction, and the procedure has been followed by the circuit courts of appeals.

This Court’s opinion in Microsoft Corp. v. Baker,

137 S. Ct. 1702 (2017), did not alter the viability of the

procedure endorsed in United Airlines. Baker simply

interpreted the word “final” in 28 U.S.C. § 1291, and

held that when a named plaintiff voluntarily dismisses

his individual claims purportedly “with prejudice,” but

also “reserve[s] the right to revive [his] claims should

the Court of Appeals reverse,” id. at 1707, that same

plaintiff cannot then claim finality and appeal. To

reach its conclusion, Baker relied heavily on principles

stated in Coopers & Lybrand v. Livesay, 437 U.S. 463

(1978), a case that expressly recognized the validity of

the procedure endorsed in United Airlines.

United Airlines remains good law. This Court

should grant the writ and confirm as much.

I.

The Circuits Are Split On Whether An Unnamed Class Member May Intervene To Appeal From The Denial Of Class Certification.

The Ninth Circuit dismissed this appeal after determining that it lacked jurisdiction under Baker. Yet

5

the D.C. Circuit has exercised appellate jurisdiction

under 28 U.S.C. § 1291 in remanding an appeal that

arose in the same procedural posture as this case: an

appeal from the denial of class certification by an intervenor who intervened precisely for that purpose.

See In re Brewer, 863 F.3d 861 (D.C. Cir. 2017).

The Brewer case is procedurally complicated and

requires some unpacking. Mr. Brewer was the named

plaintiff in a class action alleging race discrimination.

The district court denied certification, and Brewer

sought interlocutory review under Fed. R. Civ. P. 23(f ).

Before his petition could be considered by the court of

appeals, however, Brewer settled and voluntarily stipulated to dismissal with the defendant. 863 F.3d at

867. That same day, other previously absent class

members sought to intervene. Importantly, their request was to do two things: (1) pick up pursuit of

Brewer’s Rule 23(f ) petition, and (2) bring a United

Airlines appeal with respect to the order denying class

certification. Id. The district court did not resolve the

motion to intervene before expiration of the notice of

appeal deadline, leaving the putative intervenors in a

difficult position. Accordingly, they filed a notice of appeal, appealing both the effective denial of their motion

to intervene and from the order denying class certification. Id. The district court decided the notice of appeal stripped it of jurisdiction. Id.

The court of appeals determined that it had to decide two threshold jurisdiction questions. First was

whether Brewer’s stipulated dismissal blocked the motion to intervene. And second was the precise issue

6

here: “we must consider how the only named plaintiff ’s

stipulated dismissal of his individual claims affects

whether absent members of a putative class can appeal

the denial of class certification.” Id. at 868. On the first

question, the court held that intervention is permitted

after stipulated dismissal, and, on the second question,

citing United Airlines, the court found that “intervention for the purpose of appealing a denial of class certification is certainly available.” Id. at 868.

The court explicitly addressed Baker. 863 F.3d at

871. Importantly, the court did not even entertain the

idea that Baker would prohibit the intervenors from

challenging the class certification denial on appeal under United Airlines. The court only addressed whether

Baker prohibited intervention to pursue the Rule 23(f )

petition. Id. (explaining that the court did not need to

address the “statutory issue” in Baker because it was

considering only Rule 23(f ) petition). It found that

question easily resolved in favor of appellate jurisdiction. Id.

Notwithstanding its disclaimer about not reaching

Baker’s “statutory issue,” the court plainly, implicitly

recognized it also had jurisdiction to hear the intervenor’s appeal from the order denying class certification

under United Airlines. While complicated by the procedural complexity of the case, the key point is this: After

concluding it had jurisdiction to permit the intervenors

to pursue Brewer’s Rule 23(f ) petition, the D.C. Circuit

ultimately denied interlocutory Rule 23(f ) review. Id.

at 873–76.

7

Once it did so, the procedural posture in Brewer

was effectively the same as it is here: the district court

had denied class certification, the named plaintiff had

voluntarily dismissed his case without litigating it

to conclusion, the court of appeals had denied Rule

23(f ) review, and the only parties left to challenge the

allegedly erroneous denial of certification were the intervenors. The D.C. Circuit saw no jurisdictional impediment to remanding the case back to the district

court with instructions to allow intervenors to seek to

substitute a new class representative and re-file for

certification. Id. at 876.

The court found its power to do so derived from its

consolidation of the intervenor’s United Airlines appeal with the interlocutory Rule 23(f ) appeal. Id. Obviously, if the D.C. Circuit had believed that, under

Baker, it lacked jurisdiction to consider the intervenor’s

United Airlines appeal from the final judgment (which,

as here, resulted from the named plaintiff ’s voluntary

dismissal), then it would have been obligated to end

the case as soon as it rejected Rule 23(f ) relief. It did

not do so. Indeed, one of the very reasons the court

denied the Rule 23(f ) petition was its conclusion that

the intervenors had, in fact, appealed the denial of certification under United Airlines. Id. at 874 (intervenors

do not “face a death-knell situation if we decline [Rule

23(f )] review,” because “[t]hey have appealed class certification from final judgment, thereby demonstrating

their intent to continue the litigation regardless

whether we grant the Rule 23(f ) petition”).

8

Thus, although the procedural history is cleaner

here, Brewer is directly on point: Voluntary dismissal

by a named plaintiff does not preclude other class

members from stepping forward, within the appeal period, to pursue a United Airlines appeal of class denial.

See also Love v. Wal-Mart Stores, Inc., 865 F.3d 1322,

1326 (11th Cir. 2017) (Anderson, J., concurring) (recognizing, in a case decided after Baker, that “putative

class members who move to intervene and file a notice

of appeal within the thirty-day time to appeal from

the final judgment effected by a Federal Rule of Civil

Procedure 41(a)(1)(A)(ii) joint stipulation are not foreclosed from exercising their conditional right to intervene after final judgment for the purpose of appealing

the district court’s previous denial of class certification, as contemplated by the Supreme Court in United

Airlines”).

The result reached by the D.C. Circuit in Brewer

is thus directly in conflict with that reached by the

Ninth Circuit here. In both cases, an intervenor sought

appellate review of an order denying class certification

following dismissal by the named plaintiff of his individual claims. The D.C. Circuit correctly exercised appellate jurisdiction over that appeal by remanding to

the district court – an order it could not have entered

without jurisdiction under 28 U.S.C. § 1291. This Court

should endorse the D.C. Circuit’s approach.

9

II.

United Airlines Is A Bedrock Of This Court’s

Class Action Jurisprudence.

While the issue presented in United Airlines was

technically whether the motion to intervene was timely

for purposes of Rule 24, it has served as a foundational

case in a series of decisions in which this Court has

defined the contours of its appellate jurisdiction for

class certification denials.

The Term following United Airlines, the Court decided Livesay, 437 U.S. 463 (1978). There, the Court addressed whether a named class plaintiff could appeal

an interlocutory order denying class certification as a

matter of right under the collateral order doctrine of

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541

(1949). The Court held that orders denying class certification do not come within the “small class” of decisions excepted from the final judgment requirement in

Cohen, because such orders are not “effectively unreviewable on appeal from a final judgment.” Livesay,

437 U.S. at 468–69. This was in part due to the fact

that “an order denying class certification is subject to

effective review after final judgment at the behest of

the named plaintiff or intervening class members.” Id.

at 469 (emphasis added) (citing United Airlines, 432

U.S. 385). In other words, the option for absent class

members to appeal by intervening under United Airlines was a key reason why the Court in Livesay decided against permitting interlocutory appeals.

The Court next decided two important class action

appellate jurisdiction cases in 1980, both on the same

10

day: U.S. Parole Comm’n v. Geraghty, 445 U.S. 388

(1980), and Deposit Guar. Nat’l Bank v. Roper, 445 U.S.

326 (1980). In Geraghty, the Court held that a proposed

class representative retains Article III standing to

appeal the denial of class certification even after his

personal claim has become moot, as his interest in obtaining class certification constitutes a separate “personal stake” for purposes of Article III. 445 U.S. at 404.

In reaching its holding, the Court observed that it had

previously, in “two different contexts,” discussed the

importance of the appealability of class certification

denials. Id. at 399. First, the Court noted, this dynamic

had been important to Livesay’s rejection of class certification denials as immediately appealable collateral

orders. Id. at 399–400. Second, the Court observed:

[I]n United Airlines, Inc. v. McDonald, 432 U.S.

385, 393–95 (1977), the Court held that a

putative class member may intervene, for the

purpose of appealing the denial of a class certification motion, after the named plaintiffs’

claims have been satisfied and judgment entered in their favor. Underlying that decision

was the view that “refusal to certify was subject to appellate review after final judgment

at the behest of the named plaintiffs.”

Id. at 400 (emphasis added) (quoting United Airlines,

432 U.S. at 393).

And, in Roper, the Court held the ordinary rule,

that only a party aggrieved by a judgment may appeal

from that judgment, does not apply with respect to orders denying class certification. A class representative

11

may, the Court held, appeal the denial of certification

even if judgment has been entered in the class representative’s favor. The Court reasoned that class representatives have an interest in representing the rights

of absent class members, which is a separate interest

from their stake in their individual claims. 445 U.S. at

331. The Court found this interest to rest not just with

named class representatives, but also with “putative

class members as potential intervenors,” id. – an obvious reference back to the Court’s then very-recent decision in United Airlines. Indeed, elsewhere in its

opinion, the Roper Court characterized United Airlines

as holding “that a member of the putative class could

appeal the denial of class certification by intervention,

after entry of judgment in favor of the named plaintiff,

but before the statutory time for appeal had run.” Id.

at 330. And, as in Geraghty, the Court in Roper observed that the appealability of the denial of class certification was “an important ingredient” to Livesay. Id.

at 338.1

Geraghty, Roper and these other cases, accordingly, stand for two important principles that are crucial here. First, they reaffirm what Livesay itself had

1

Various circuit courts of appeals have recognized the validity

of United Airlines’s appellate procedure. See, e.g., Alaska v. Suburban Propane Gas Corp., 123 F.3d 1317, 1320 (9th Cir. 1997). The

Seventh Circuit, in observing that United Airlines means courts

of appeals have jurisdiction over appeals from denials of class certification by unnamed class representatives who intervene following settlement by named plaintiffs, aptly stated that “[o]n this we

can be brief.” Champ v. Siegel Trading Co., 55 F.3d 269, 274 (7th

Cir. 1995).

12

said – that the availability of appeals of class denials

by intervenors under United Airlines was a significant

underpinning of the Livesay Court’s decision not to extend Cohen collateral-order finality to class denials. To

kick out one of the legs on which Livesay rests (United

Airlines) would, given Baker’s reliance on Livesay, likewise remove crucial support for Baker itself. The more

sensible way to harmonize the Court’s line of cases is

to interpret Baker as leaving United Airlines undisturbed.

Second, although Geraghty and Roper are Article

III cases, not § 1291 cases, their standing analyses

depend heavily on – and relied heavily on – United

Airlines for the principle that absent class members

(or named class members whose claims are moot)

have a separate, independent interest in protecting

the class’s interest in appealing class certification denials. These cases have stood for nearly 40 years. Given

the choice between holding that Baker meant silently

to undermine all this law and to undermine the important independent rights of absent class members,

or holding that Baker simply means a judgment is not

“final” as to a named class member when he tries to

reserve for himself the right to appeal and later pursue

his claims, the Court should opt for the latter.

Milberg argued below that an appeal by the

named plaintiff and by an intervening class member

are functionally the same. That is hardly so for a number of reasons. First, and most significantly, United Airlines authorizes the latter. Second, United Airlines

putative intervenors have an entirely distinct interest

13

from named plaintiffs who elect to no longer pursue

their claims. That is the very point of Geraghty, Roper

and the other cases cited above, which recognize that

the right to seek review of a certification denial stands

on its own as a cognizable Article III interest. There is

not a single word in Baker on which to pin an intent by

the Court to overrule 40 years of precedent sub silentio

in a factually distinct context. Third, intervention is

different because it requires a suitable intervenor willing to take on the class’s cause within the short time

for appeal – no more than 30 days in a case not involving the government. E.g., Love, 865 F.3d at 1322.

Moreover, Milberg’s functional-equivalent argument ignores that even where one path to appeal is

blocked by lack of finality, this Court has had no trouble recognizing alternative procedural paths to finality,

so long as a party is willing to live with the consequences the alternative procedural path entails. For

example, just as the Court in Livesay was comforted by

the existence of an appeal-by-intervention under

United Airlines, the Court in Mohawk Industries, Inc.

v. Carpenter, 558 U.S. 100 (2009), recently was comforted in holding that orders compelling production of

arguably privileged information are not final under

Cohen in part precisely because of the existence of an

alternative “safety valve” means of obtaining an appeal to vindicate error (such as provoking contempt by

failing to produce the privileged information and then

appealing the contempt order). Id. at 110–11. There is,

accordingly, no anomaly in recognizing an appeal-byintervention under United Airlines while blocking

14

appeals under Baker by named representatives who

claim to be dismissing “with prejudice” but reserve a

right to reappear later.

Bobbitt and Sampson forever relinquished their

claims and denounced their right to appeal; Laber subjected himself to the possibility his request for intervention would be denied by the district court or that he

would face other obstacles; and the class’s viability

now depends on the emergence of a suitable class representative other than Bobbitt or Sampson. The path

forged by Laber is not, in any sense, a functional equivalent to the “we-pretend-to-dismiss-with-prejudicebut-do-not-really-mean-it” path pursued by Mr. Baker

and his co-plaintiffs.

III. Requiring Early Intervention To Preserve

Appellate Rights Would Result In Unduly

Protracted Proceedings.

The purpose of intervention is to preserve one’s

rights when the named parties to the action will not do

so. Fed. R. Civ. P. 24. The same is true in putative class

actions: until the class is certified, all unnamed members of the putative class must rely on the named

plaintiff to purse the rights of the class. If the named

plaintiff fails to do so – as is the case when he settles

and voluntarily dismisses his individual claims following the denial of class certification – unnamed class

members must be able to enter the appeal to preserve

their rights.

15

This Court recognized as much in United Airlines,

holding that intervention for the purpose of appealing

the denial of class certification was authorized once it

became clear “that the interests of the unnamed class

members would no longer be protected by the named

class representatives.” Id. at 394. The Court also endorsed the unnamed class member’s decision to wait to

intervene until after judgment had been entered in the

would-be class action – noting that earlier intervention

would force absent class members to enter the action

solely to preserve their appellate rights, creating unnecessary proceedings only to sit idly by in the litigation in case the named plaintiff ceased pursuing the

claims:

A rule requiring putative class members who

seek only to appeal from an order denying

class certification to move to intervene shortly

after entry of that order would serve no purpose. Intervention at that time would only

have made the respondent a superfluous spectator in the litigation for nearly three years,

for the denial of class certification was not appealable until after final judgment. Moreover,

such a rule would induce putative class members to file protective motions to intervene to

guard against the possibility that the named

representatives might not appeal from the adverse class determination. The result would

be the very multiplicity of activity which Rule

23 was designed to avoid.

Id. at 394 n.15 (internal quotation marks and citations

omitted).

16

And in Baker, this Court specifically sought to

avoid “protracted litigation and piecemeal appeals.”

137 S. Ct. at 1713. Yet disavowing the United Airlines

procedure would, apart from disrupting decades of this

Court’s precedent, create the very type of protracted

litigation the Court sought to avoid in Baker. As recognized in United Airlines, requiring unnamed putative

class members to intervene early in the case so as to

preserve their appellate rights would invite multiplicity of proceedings. And denying them the ability to appeal from the denial of class certification following

intervention for that purpose would disrupt the rightful reliance on the named plaintiff invited by United

Airlines.

The more efficient procedure is that used here. Intervenors should have the right to enter a case to appeal their class action rights in the event the named

plaintiff abandons his. There is no need to require that

they do this at the outset of the litigation.

------------------------------------------------------------------

17

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

R. JAMES GEORGE, JR.

GARY L. LEWIS

GEORGE, BROTHERS,

KINCAID & HORTON LLP

114 West 7th Street,

Suite 1100

Austin, Texas 78701

(512) 495-1400

LAWRENCE A. KASTEN

Counsel of Record

ROBERT H. MCKIRGAN

DANIEL A. ARELLANO

LEWIS ROCA ROTHGERBER

CHRISTIE LLP

201 East Washington Street,

Suite 1200

Phoenix, Arizona 85004

(602) 262-5311

lkasten@lrrc.com

GUY M. HOHMANN

RYAN T. SHELTON

HOHMANN, BROPHY,

SHELTON & WEISS, PLLC

210 Barton Springs Road,

Suite 250

Austin, Texas 78704

(512) 596-3622

Counsel for Petitioner