Seth Baker v. Microsoft Corporation

Order; Opinion by Judge RAWLINSON; Concurrence by Judge BEA.

ORDER

The slip opinion dated March 18, 2015 [ 785 F.3d 315 ] is hereby amended as follows:

Page 11 [ 785 F.3d 315 ] — insert the following footnote at the end of the first paragraph:

With this amendment, Judges Rawlinson and Bea voted, and Judge Hawkins recommended, to deny the Petition for En Banc Rehearing.

The full court has been advised of the Petition for En Banc Rehearing, and no judge of the court has requested a vote.

Microsoft Corporation’s Petition for En Banc Rehearing, filed on April 1, 2015, is DENIED. No farther petitions for rehearing or rehearing en banc will be accepted.

OPINION

Plaintiffs, a putative class of owners of Microsoft Corporation’s (Microsoft) Xbox 360® video game console (Xbox), appeal from the stipulated dismissal with prejudice of their lawsuit and from the order striking their class allegations. In striking the class allegations, the district court deferred to an earlier class certification denial order involving a similar putative class. See Baker v. Microsoft Corp., 851 F.Supp.2d 1274, 1276 (W.D.Wash.2012) (citing In re Microsoft Xbox 360 Scratched Disc Litig., No. C07-1121,…

concurring in the result:

This case presents an important question of first impression in the federal courts of appeal: What principles should guide a federal district court’s application of comity to a fellow district court’s earlier denial of class certification, when addressing a later motion for class certification by a similar class of plaintiffs? The parties asked this question of Judge Martinez in the district court, who answered (“[i]n the absence of any specific guidance” from our court) by adopting the American Legal Institute’s (“ALI”) suggestion that the earlier denial of class certification be accorded a rebuttable presumption of correctness. Baker v. Microsoft Corp., 851 F.Supp.2d 1274, 1278 (W.D.Wash.2012). We should be aware that litigants in other cases have added to the chorus of voices requesting guidance, reinforcing just how important this question is to effective adjudication of class action litigation. See, e.g., Ott v. Mortgage Investors Corp. of Ohio, 65 F.Supp.3d 1046, 1064-65 (D.Or.2014) (citing Baker, 851 F.Supp.2d at 1278 ).

I believe our court owes it to district courts to give them the guidance which Judge Martinez found, quite correctly, was…

I. BACKGROUND

This case involves an alleged design defect in the Xbox console that gouges game discs. See Baker, 851 F. Supp.2d at 1275. Plaintiffs specifically alleged that the Xbox optical disc drive is unable to withstand even the smallest of vibrations, and that during normal game playing conditions discs spin out of control and crash into internal console components, resulting in scratched discs that are rendered permanently unplayable. Microsoft countered that the overwhelming majority of Xboxes do not manifest the alleged defect—only 0.4% of Xbox owners have reported disc

BAKER V. MICROSOFT CORP.

scratching—and that the cause of any disc scratching is consumer misuse, not a product defect.

A. SCRATCHED DISC LITIGATION

In 2007, other Xbox owners sued Microsoft, alleging claims similar to those asserted in this case. These cases were consolidated before United States District Judge John Coughenour. See Scratched Disc Litig., 2009 WL 10219350, at *1–*2. Judge Coughenour denied class certification on the basis that individual issues of fact and law predominated over common issues of fact and law. See id. at *5–*6.

Judge Coughenour relied…