Baker v. Microsoft Corporation Revisited: Microsoft Seeks To Stop Class Action Plaintiffs From Shortcutting The Appeals Process

We recently reported on a Ninth Circuit Court of Appeals opinion reversing a district court's decision to strike class action allegations in a putative class action against Microsoft.i In Baker v. Microsoft Corporation, the Ninth Circuit held that proof that individual class members were damaged by an alleged defect (here, a defect in Xbox 360 video game consoles that allegedly resulted in scratched game discs) was not necessary for a class action to be certified.ii You can read the full article here.

Microsoft has petitioned the Ninth Circuit for a rehearing en banc (which means that instead of a panel of three judges, at least 11 of the 29 judges currently sitting on the Ninth Circuit would rehear and decide the case). Microsoft's petition puts a spotlight on a strategy class action plaintiffs have employed to "end-run" the appeals process if class certification is denied. Instead of pursuing individual claims to a final judgment and then appealing the denial of class certification, plaintiffs voluntarily dismiss the entire case so that they can immediately appeal the order denying class...