In January, the U.S. Supreme Court granted cert. in Microsoft Corp. v. Baker, No. 15-457. The case is now fully briefed and awaiting oral argument.
In Baker v. Microsoft Corp., 797 F.3d 607 (9th Cir. 2015), the district court granted the defendant's motion to strike the class allegations, and the plaintiffs filed a Rule 23(f) petition, which was denied. Thereafter, the parties stipulated to dismiss the action with prejudice, and the plaintiffs filed an ordinary appeal from the ensuing judgment. The Ninth Circuit rejected the defendant's argument that the judgment was not appealable:
As this case did not involve a settlement, Berger establishes that “[w]e have jurisdiction under 28 U.S.C. § 1291 because a dismissal of an action with prejudice, even when such dismissal is the product of a stipulation, is a sufficiently adverse—and thus appealable—final decision.”
Id. at 512 (quoting Berger v. Home Depot USA, 741 F.3d 1061 (9th Cir. 2014)) (discussed in this blog post).
On the merits, the Court reversed the order striking the class allegations, holding that individualized issues of causation did not preclude class certification in a product defect action for breach of express and implied warranty. Id. at 612-15.
[I]n this case, although individual factors may affect the timing and extent of the disc scratching, they do not affect whether the Xboxes were sold with a defective disc system. Plaintiffs contend that (1) whether the Xbox is defectively designed and (2) whether such design defect breaches an express or an implied warranty are both issues capable of common proof. We agree that, as in Wolin, these issues are susceptible to proof by generalized evidence and do not require proof of individual causation.
Similarly, proof that the allegedly defective disc system caused individual damages is not necessary to determine whether the existence of the alleged design defect breaches Microsoft's express warranty. Rather, plaintiffs' breach of express warranty claim presents a common factual question—is there a defect?—and a common mixed question of law and fact—does that defect breach the express warranty? We conclude, as we did in Wolin, that the district court erred in finding that individual issues of causation predominate over these common questions.
Id. at 613 (citing Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1172-74, 1176 (9th Cir. 2010)) (see this blog post).
In its cert. petition, Microsoft challenged only the appealability ruling. When the Supreme Court granted cert., it framed the issue as follows:
Whether a federal court of appeals has jurisdiction under both Article III and 28 U. S. C. §1291 to review an order denying class certification after the named plaintiffs voluntarily dismiss their individual claims with prejudice.
The SCOTUSblog case page, with links to all the briefs, is here. Nine amicus curiae briefs have been filed, including briefs by Public Justice and Public Citizen, as well as a number of defense-side organizations.