Plaintiffs Aim to Salvage Class Action Against Milberg After SCOTUS Ruling

Gregory P. Joseph.

Plaintiffs lawyers are asking an appeals court to reinstate certification of their class-action legal malpractice lawsuit against Milberg LLP and its lawyers, insisting that a U.S. Supreme Court decision earlier this year didn't derail their case.

In a Nov. 9 filing, attorney Lawrence Kasten wrote that the facts of his case don't parallel that of Microsoft v. Baker, a June 12 decision in which the Supreme Court blocked a controversial procedural tool used by plaintiffs to appeal class certification orders by voluntarily dismissing their own case. Appealing class certification is critical to both sides because those decisions often make or break a case.

Kasten represents Lance Laber, a purported class member in the Milberg case, who appealed an Arizona judge's 2012 decision not to certify the class. In 2015, the U.S. Court of Appeals for the Ninth Circuit vacated that order, and Milberg petitioned the Supreme Court to take up the case. On June 19, the Supreme Court granted the petition, then vacated the Ninth Circuit's order for further consideration in light of Microsoft.