                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


SETH BAKER; MATTHEW DANZIG;               No. 12-35946
JAMES JARRETT; NATHAN MARLOW;
MARK RISK, individually and on               D.C. No.
behalf of all others similarly            2:11-cv-00722-
situated,                                      RSM
                 Plaintiffs-Appellants,

                  v.                        OPINION

MICROSOFT CORPORATION, a
Washington Corporation,
              Defendant-Appellee.


      Appeal from the United States District Court
         for the Western District of Washington
      Ricardo S. Martinez, District Judge, Presiding

                  Argued and Submitted
           April 7, 2014—Seattle, Washington

                  Filed March 18, 2015

 Before: Michael Daly Hawkins, Johnnie B. Rawlinson,
          and Carlos T. Bea, Circuit Judges.

              Opinion by Judge Rawlinson;
               Concurrence by Judge Bea
2                 BAKER V. MICROSOFT CORP.

                           SUMMARY*


                        Class Certification

   The panel reversed the district court’s stipulated dismissal
and order striking class allegations in a diversity action
brought by a putative class of owners of Microsoft
Corporation’s Xbox 360 video game console.

    The putative class alleged a design defect in the Xbox
console that gouged game discs. In striking the class
allegations, the district court concluded that comity required
deferral to an earlier class certification denial from another
district court decision involving a similar putative class.

    The panel held that there was jurisdiction under 28 U.S.C.
§ 1291 to hear the appeal because the district court’s
dismissal of the action with prejudice was a sufficiently
adverse, and appealable, final decision, even though the
dismissal was the product of a stipulation. The panel also
held that the decision in Wolin v. Jaguar Land Rover N. Am.,
LLC, 617 F.3d 1168, 1173 (9th Cir. 2010) (rejecting the
notion that individual manifestations of a defect precluded
resolution of the claims on a class-wide basis), was
controlling, and the district court’s decision striking the class
action allegations from the complaint contravened Wolin and
was an abuse of discretion. The panel remanded for further
proceedings.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               BAKER V. MICROSOFT CORP.                    3

    Judge Bea concurred in the result, but not the reasoning,
of the majority opinion. Judge Bea would hold that under the
principles of comity a federal district court faced with an
earlier denial of class certification in an earlier common
dispute heard in a different district court should adopt a
rebuttable presumption of correctness; and Judge Bea would
conclude that presumption was rebutted in this case.


                        COUNSEL

Benjamin Gould (argued), Mark A. Griffin, and Amy C.
Williams-Derry, Keller Rohrback LLP, Seattle, Washington;
Paul L. Stritmatter, Stritmatter Kessler Whelan Coluccio,
Hoquiam, Washington; Brad J. Moore, Stritmatter Kessler
Whelan Coluccio, Seattle, Washington; Robert L. Esensten,
Wasserman, Comden, Casselman & Esensten, LLP, Tarzana,
California; Darren T. Kaplan, Darren Kaplan Law Firm, P.C.,
New York, New York; Gregory E. Keller, Chitwood Harley
Harnes LLP, Atlanta, Georgia; and Jeffrey M. Ostrow,
Kopelowitz Ostrow Ferguson Weiselberg Keechl, Fort
Lauderdale, Florida, for Plaintiffs-Appellants.

Stephen M. Rummage (argued), Frederick B. Burnside, and
John Goldmark, Davis Wright Tremaine LLP, Seattle,
Washington, for Defendant-Appellee.
4                BAKER V. MICROSOFT CORP.

                          OPINION

RAWLINSON, Circuit Judge:

    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,
2009 WL 10219350 (W.D. Wash. Oct. 5, 2009) (Scratched
Disc Litigation)). We have jurisdiction pursuant to 28 U.S.C.
§ 1291 and reverse the order striking the class action
allegations because the district court misapplied the law as
established in Wolin v. Jaguar Land Rover N. Am., LLC,
617 F.3d 1168, 1173 (9th Cir. 2010), constituting an abuse of
discretion.

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.                               5

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 heavily on the reasoning from
another district court decision, Gable v. LandRover N. Am.,
Inc., No. CV07-0376, 2008 WL 4441960 (C.D. Cal. Sept. 29,
2008), rev’d, Wolin, 617 F.3d at 1176. See Scratched Disc
Litig., 2009 WL 10219350, at *6. The putative class action
plaintiffs in Gable alleged that the Land Rover LR3 had a
defect in its alignment that caused uneven, premature tire
wear. See Gable, 2008 WL 4441960, at *1.1 In opposing
class certification, defendant Land Rover argued that because
the alleged defect did not manifest in every vehicle, an
individual inquiry would be required to ascertain whether any
given class member experienced the defect. See id. at *3.
Land Rover also asserted that because tires have a limited
useful life, an individual inquiry would be required to
determine whether any given tire wear resulted from a defect
and not another cause, such as individual driving habits. See


  1
    In particular, the plaintiffs contended that the front of each of the
vehicle’s rear tires was farther out from the center line than the back of
each tire, a condition the district court described as “duck-footed.” Gable,
2008 WL 4441960, at *1.
6               BAKER V. MICROSOFT CORP.

id. The district court agreed with Land Rover, and denied
class certification because the plaintiffs failed to demonstrate
that the purported defect manifested in a majority of vehicles.
See id. at *4–*5. The district court did not address Land
Rover’s causation argument.

    In Scratched Disc Litigation, Judge Coughenour reasoned
that, like the Land Rover owners in Gable, most Xbox owners
have not experienced the purported defect. See Scratched
Disc Litig., 2009 WL 10219350, at *7. Judge Coughenour
focused on the fact that the defect asserted by the Xbox
plaintiffs “actually manifest[ed] in fewer than one percent” of
the total number of consoles purchased. Id. at *6. The vast
number of satisfied purchasers who experienced no defect
before replacing the rapidly obsolescing game systems were
determined to have received the benefit of the bargain. See
id. Because not all purchasers sustained damages under this
rationale, Judge Coughenour ruled that the need to consider
damages on an individual basis “preclude[d] the certification”
of the class of Xbox owners. Id.

    Judge Coughenour rejected the Xbox plaintiffs’ attempt
to distinguish Gable on the basis that the design defect
existed in every Xbox console and could only stem from one
cause, whereas in Gable “only a fraction of the proposed
class members had actually experienced the defect and
because misalignment could have many different causes.” Id.
Judge Coughenour observed that the Xbox plaintiffs and the
Gable plaintiffs both asserted a defect involving a common
design flaw. The circumstance that prevented class
certification in both cases was the lack of uniform
manifestation of the acknowledged design flaw. See id.
                BAKER V. MICROSOFT CORP.                      7

    Although the district court in Gable refrained from
engaging in an exhaustive causation analysis, Judge
Coughenour nevertheless cited Gable for the notion that
individual issues of causation predominate because differing
causes may have produced the same defect. See id.
According to Judge Coughenour, “[E]ven if one link of [the
causation] chain is a design defect, the other links are unique
to each plaintiff and require individual attention. . . .” Id.
The required individual attention to issues of law and fact
ruled out class certification. See id.

   B. WOLIN DECISION

    Ten months after dismissal of Scratched Disc Litigation,
we reversed the Gable decision upon which Judge
Coughenour had so heavily relied in denying class
certification. See Wolin, 617 F.3d at 1170, 1176. We
concluded that the district court in Gable “erred when it
concluded, without discussion, that certification is
inappropriate because [plaintiffs] did not prove that the defect
manifested in a majority of the class’s vehicles. . . .” Id. at
1173. Indeed, in the past, “we have held that proof of the
manifestation of a defect is not a prerequisite to class
certification.” Id. (citing Blackie v. Barrack, 524 F.2d 891,
901 (9th Cir. 1975)). We observed that rather than
challenging the predominance of common legal and factual
issues, Land Rover was actually arguing the merits of the
case. See id. We concluded that while “individual factors
may affect premature tire wear, they do not affect whether the
vehicles were sold with an alignment defect.” Id.

       [W]e reject[ed] Land Rover’s suggestion that
       automobile defect cases can categorically
       never be certified as a class. Gable and Wolin
8               BAKER V. MICROSOFT CORP.

       assert[ed] that the defect exists in the
       alignment geometry, not in the tires, that Land
       Rover failed to reveal material facts in
       violation of consumer protection laws, and
       that Land Rover was unjustly enriched when
       it sold a defective vehicle. All of these
       allegations are susceptible to proof by
       generalized evidence.

Id.

     Land Rover also asserted that the claims of plaintiffs
Gable and Wolin were not typical because the wear on their
tires was not attributable to misalignment. See id. at 1175.
We were not persuaded to this view because Land Rover
failed to identify any defenses that were unique to Gable and
Wolin. See id. We decided that regardless of when the
premature tire wear was experienced, the fact remained that
all class members at some point experienced the same injury
due to the same defect. The timing of the defect affected the
amount of damages, not the appropriateness of class
certification. See id. In sum, we held that the requirement of
typicality “can be satisfied despite different factual
circumstances surrounding the manifestation of the defect.”
Id. (citation omitted). We concluded that Gable, Wolin, and
the other class members could have a viable claim against
Land Rover regardless of how the defect manifested in the
individual vehicles. See id. We ruled that the asserted
alignment defect, the asserted violation of warranty, and the
asserted unjust enrichment due to the lessened value of the
vehicles were “issues common to all class members . . .” Id.
at 1176.
                   BAKER V. MICROSOFT CORP.                               9

    The district court in this case determined that our ruling
in Wolin did not undermine the causation analysis articulated
in Scratched Disc Litigation, and that comity required
deferral to the earlier certification order. See Baker, 851 F.
Supp.2d at 1279–81 (striking the class action allegations from
the complaint). The district court noted that no Ninth Circuit
or Supreme Court precedent articulated the mechanism by
which comity was to operate; thus it adopted the suggestion
of the American Law Institute (ALI) that a prior denial of
class certification on the same subject matter by a different
district court judge be given a rebuttable presumption of
correctness. See id. at 1278. The district court then
determined that the presumption had not been rebutted, and
deferred to Judge Coughenour’s prior decision. See id. at
1280.

   Plaintiffs initially petitioned for an interlocutory appeal,
which was denied. The parties subsequently stipulated to
dismiss the case with prejudice, and the district court
approved the stipulation. Plaintiffs timely appealed.2




  2
    Courts have grappled with the balance between preventing repeated
frivolous efforts to certify a class and preserving due process rights. See,
e.g., In re Bridgestone/Firestone, Inc., Tires Products Liab. Litig.,
333 F.3d 763, 768–69 (7th Cir. 2003) (binding putative class members
whether or not named). Despite the Supreme Court’s recognition of
“policy concerns relating to use of the class action device,” the Court
rejected the Seventh Circuit’s approach and decided that “principles of
stare decisis and comity among courts” would have to “mitigate the
sometimes substantial costs of similar litigation brought by different
plaintiffs.” Smith v. Bayer Corp., 131 S.Ct. 2368, 2381 (2011). The
district court’s application of the ALI proposal may be viewed as an effort
to reconcile these values and follow the Supreme Court’s guidance in
Smith.
10                 BAKER V. MICROSOFT CORP.

II. DISCUSSION

      A. JURISDICTION

    Microsoft contends that we lack jurisdiction to consider
this appeal because the voluntary dismissal with prejudice did
not create appellate jurisdiction. Because jurisdiction is a
threshold issue, we resolve this matter before addressing the
merits. See Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th
Cir. 2011).

    Microsoft takes the position that a voluntary dismissal
with prejudice does not sufficiently affect the merits of the
substantive claims to constitute an appealable final
judgment.3 However, we rejected a similar argument in
Berger, where as in this case, the parties stipulated to
dismissal of the case with prejudice following denial of a
class certification motion. 741 F.3d at 1064. Like Microsoft,
the defendant in Berger challenged our jurisdiction over an
appeal resulting from stipulated dismissal of a putative class
action. See id. at 1065. We disagreed, ruling that “in the
absence of a settlement, a stipulation that leads to a dismissal
with prejudice does not destroy the adversity in that judgment
necessary to support an appeal. . . .” Id. at 1064. We
distinguished a stipulated dismissal without a settlement from
a stipulated dismissal with a settlement. The former retains
sufficient adversity to sustain an appeal. The latter does not.
See id. at 1065.


  3
     Microsoft also contends that because the Plaintiffs unsuccessfully
moved for interlocutory appeal under Rule 23(f), they must litigate the
merits of their claims to final judgment to obtain appellate review.
However, Microsoft has not presented a principled basis for this proposed
distinction between the present case and Berger.
                BAKER V. MICROSOFT CORP.                    11

    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.

   B. STRIKING OF CLASS ACTION ALLEGATIONS FROM
      THE COMPLAINT

    Judge Martinez struck the Xbox Plaintiffs’ class action
allegations from the complaint based largely on Judge
Coughenour’s finding in Scratched Disc Litigation that
individual issues of causation predominated in that earlier
Xbox defect case. See Baker, 851 F. Supp.2d at 1276–77.
Judge Martinez determined that, although Wolin reversed the
holding in Gable that Judge Coughenour relied on, Wolin did
not undermine the causation analysis set forth in Scratched
Disc Litigation. See id. at 1279–80. We do not agree.

    Judge Martinez cited Judge Coughenour’s description of
the causation analysis in Gable for the notion that individual
issues of causation predominated in this case. He observed
that Judge Coughenour found persuasive the analysis in
Gable discussing alternative causes of tire defect
manifestation, and that Judge Coughenour followed that
reasoning in determining that individual issues of causation
predominated in Scratched Disc Litigation. See id. at 1279.
Judge Martinez’s order applied this same causation analysis
to reach his conclusion that “[t]he discs at issue in this case
are analogous to the tires at issue in Gable/Wolin because, as
Judge Coughenour recognized, both products may be
damaged for any number of reasons . . .” Id. This discussion
12              BAKER V. MICROSOFT CORP.

reveals that Judge Martinez relied heavily on Gable for its
causation analysis.

     Judge Martinez determined that “nothing in Wolin
undermines Judge Coughenour’s causation analysis . . .” Id.
at 1280. However, our reading of Wolin leads to a different
conclusion. In Wolin, we expressly and specifically rejected
the notion that individual manifestations of the defect
precluded resolution of the claims on a class-wide basis. We
held that “[a]lthough individual factors may affect premature
tire wear, they do not affect whether the vehicles were sold
with an alignment defect.” 617 F.3d at 1173. We were not
persuaded by Land Rover’s efforts to distinguish the
representative plaintiffs’ claims from those of other
prospective class members. We noted that all prospective
class members alleged the same injury from a defective
alignment in their vehicles. All prospective class members
sought recovery pursuant to the same legal theories, and Land
Rover failed to identify any defenses that were unique to the
representative plaintiffs. See id. at 1175. In Wolin, we
clarified that the individual manifestations of the defect were
relevant “to the extent of [plaintiffs’] damages and not
whether [Gable and Wolin] possess the same interest and
suffered the same injury as the class members. . . .” Id.
(citation, alteration, and internal quotation marks omitted).
We concluded in Wolin:

       Whether the alignment geometry was
       defective, whether Land Rover violated its
       Limited Warranty for defects within the
       vehicle, and whether Land Rover was unjustly
       enriched because consumers’ vehicles are
       worth less due to the defect are issues
                BAKER V. MICROSOFT CORP.                     13

       common to all class members and can be
       litigated together. . . .

Id. at 1176.

    Similarly in 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. See id. at 1172–74,
1176.

   Among the common questions identified under the
warranty claims are:

       i. The existence of any express warranties
          made by Microsoft concerning the Xbox
          360;

       ii. The application of any such express
           warranties to the claims asserted in this
           action;

       iii. Whether Microsoft has breached any of its
            express warranties, as alleged herein;

       iv. The existence of any implied warranties
           made by Microsoft concerning the Xbox
           360;
14              BAKER V. MICROSOFT CORP.

       v. The application of any such implied
          warranties to the claims asserted in this
          action;

       vi. Whether Microsoft has breached any of its
           implied warranties, as alleged herein; . . .

     Microsoft contends that plaintiffs’ express warranty claim
is not amenable to class treatment because individual proof of
causation is necessary to determine if there was a breach of
its express warranty. According to Microsoft, like the Tire
Warranty at issue in Wolin, a determination of whether the
allegedly defective Xbox disc system caused a given disc to
scratch requires proof specific to that class member.
However, this analogy is inapt because plaintiffs’ position is
that the design defect itself breaches the express warranty.

    The most that can be said of the holding in Wolin that
would be of assistance to Microsoft is our recognition that
“early tire wear cases may be particularly problematic for
plaintiffs seeking class certification . . .” Id. at 1173
(emphasis added). Nevertheless, in that case, we “reject[ed]
Land Rover’s suggestion that automobile defect cases can
categorically never be certified as a class.” Id. In Wolin,
plaintiffs alleged the existence of a design defect, Land
Rover’s failure to reveal material facts and Land Rover’s
unjust enrichment due to the sale of defective vehicles. See
id. We held that these allegations were “susceptible to proof
by generalized evidence. Although individual factors may
affect premature tire wear, they [did] not affect whether the
vehicles were sold with an alignment defect.” Id.

   Similarly, proof that the allegedly defective disc system
caused individual damages is not necessary to determine
                BAKER V. MICROSOFT CORP.                     15

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. See id.

    Microsoft attempts to further distinguish Wolin by
arguing that, unlike the vehicles in Wolin, with their “duck-
footed” tires that inevitably caused uneven, premature tire
wear, the defect here may never manifest. Microsoft
contends that it proved in the Scratched Disc Litigation that
the alleged defect does not manifest in the vast majority of
Xboxes. However, we debunked this argument in Wolin by
referencing the rule from Blackie, 524 F.2d at 901, that
“proof of the manifestation of a defect is not a prerequisite to
class certification. . . .” Id.

    What Microsoft is really arguing is that plaintiffs cannot
prevail on the merits. See id. However, Microsoft’s merits-
based contention has no place in the determination of whether
an action may proceed on a class-wide basis. When the
district court relied on Gable to conduct this merits-based
analysis, see Baker, 851 F. Supp.2d at 1279–80, it erred,
thereby abusing its discretion.

   Microsoft next argues that, “unlike the Wolin plaintiffs—
who alleged the alignment defect made their luxury vehicles
‘worth less,’ . . . —Plaintiffs neither claimed the alleged
defect made Xbox 360 consoles worth less nor offered
common evidence of damage or loss to the proposed class.”
This argument misconstrues the allegations of the complaint.
16               BAKER V. MICROSOFT CORP.

Like the plaintiffs in Wolin, plaintiffs in this case alleged that
a design defect diminished the value of the Xbox.

    In a footnote, Microsoft also suggests that individual
issues of state warranty law predominate for implied warranty
claims. However, Microsoft has not identified any material
differences in the applicable state implied warranty laws that
would require an individualized inquiry regarding the
commonly asserted defect. Indeed, Microsoft noted in its
appellate brief the similarity among the implied warranty
statutes in Washington, California, Illinois, New York and
Michigan.

    Finally, Microsoft seeks to characterize plaintiffs’ class
action allegations as proceeding on the theory that Wolin
created a per se rule requiring class certification of defect
claims. Microsoft’s contention is premature and misses the
mark. As an initial matter, in Wolin we did not adopt a per se
rule requiring class certification of defect claims. Indeed, the
converse is true. Rather than adopting a per se rule, we
simply rejected Land Rover’s suggestion that we should
categorically decline to certify classes in automobile defect
cases. See Wolin, 617 F.3d at 1173. Moreover, plaintiffs in
this case never moved for class certification. Instead, the
district court erroneously ruled that defect allegations are not
amenable to resolution on a class-wide basis and struck the
class allegations from the complaint. See Baker, 851 F.
Supp.2d at 1280–81. Microsoft makes several arguments to
this court attempting to distinguish Wolin and to show that
certification of this class would violate Federal Rule of Civil
Procedure 23. However, our ruling that the district court’s
application of comity was misplaced means that these
arguments are better addressed if and when plaintiffs move
for class certification. It suffices for now to hold that because
                   BAKER V. MICROSOFT CORP.                            17

the district court misread Wolin, it did not account for the
change in applicable law that made deference to Judge
Coughenour’s opinion erroneous.4

    We express no opinion on whether the specific common
issues identified in this case are amenable to adjudication by
way of a class action, or whether plaintiffs should prevail on
a motion for class certification if such a motion is filed. We
hold only that the district court committed an error of law and
abused its discretion when it struck the class action
allegations from the complaint in contravention of applicable
Ninth Circuit precedent.

III.     CONCLUSION

    We conclude that we have jurisdiction over this appeal
despite the parties’ stipulation to dismiss the case following
the district court’s ruling striking the class action allegations.
We hold that our decision in Wolin is controlling, and the
district court’s decision striking the class action allegations



  4
    Although no circuit has adopted the ALI rule since its publication in
2010 (nor did the Supreme Court endorse it in Smith), the district court
misapplied the rule by relying on the wrong legal standard. The district
court gave a presumption of correctness to Judge Coughenour’s prior
ruling, but improperly determined that a change in law (our decision in
Wolin) did not rebut the presumption. In other words, assuming arguendo
the validity of the ALI rule, the district court’s misreading of the prior
ruling rendered application of the presumption of comity an abuse of
discretion. See United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir.
2009) (en banc) (abuse of discretion to identify wrong legal standard); see
also Barapind v. Reno, 225 F.3d 1100, 1109 (9th Cir. 2000) (decision to
dismiss under comity doctrine reviewed for abuse of discretion). Given
that we can decide this case on a narrower and more well established
ground, there is no reason to adopt the ALI rule here.
18               BAKER V. MICROSOFT CORP.

from the complaint contravened Wolin and was an abuse of
discretion.

   REVERSED and REMANDED                           for    further
proceedings consistent with this opinion.



BEA, Circuit Judge, 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, 2014 WL 6851964 at *13 (D. Or. Dec. 3, 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 absent. Moreover, I respectfully disagree with the
majority opinion’s assertion that this case can be decided on
the “narrower and more well established ground” that Judge
                    BAKER V. MICROSOFT CORP.                     19

Martinez erred in basing his ruling on the tire defect cases.
Maj. Op. at 17 n. 4 (citing Gable v. Land Rover North
America, Inc., 2008 WL 4441960 (C.D. Cal. Sept. 29, 2008),
rev’d sub nom Wolin v. Jaguar Land Rover North Am., LLC,
617 F.3d 1168 (9th Cir. 2010)). That simply was not the
basis for Judge Martinez’s ruling. Rather, Judge Martinez
based his ruling on the only ground urged by Microsoft: that
he should defer, for reasons of comity, to Judge
Coughenour’s denial of class certification in an earlier,
similar class action.1 For that reason, I do not concur in the
majority opinion. Instead, I would hold that a federal district
court faced with an earlier denial of class certification in an
earlier common dispute heard in a different district court
should adopt the rebuttable presumption of correctness
suggested by the ALI and adopted by Judge Martinez. But
because I conclude that presumption was rebutted in this case,
I concur in the result reached by the majority.

I. Background

    First, a brief history of this action may be helpful to bring
focus. In Gable,2 the district court denied certification of a
class of Land Rover owners who alleged a defect in the wheel
alignment of their vehicles that caused uneven, premature tire
wear. The district court judge believed that the individual
issue whether or not the defect actually had manifested itself
by causing damage to the tire predominated over the common
issue whether the car had defective wheel alignment. Gable


 1
     See infra footnote 4 and accompanying text.
 2
   Gable v. Land Rover North America, Inc., 2008 WL 4441960 (C.D.
Cal. Sept. 29, 2008), rev’d sub nom Wolin v. Jaguar Land Rover North
Am., LLC, 617 F.3d 1168 (9th Cir. 2010).
20                BAKER V. MICROSOFT CORP.

v. Land Rover North America, Inc., 2008 WL 4441960, *5
(C.D. Cal. Sept. 29, 2008).

    A year later, District Judge Coughenour in In re Microsoft
Xbox 360 Scratched Disc Litigation, 2009 WL 10219350
(W.D. Wash. Oct. 5, 2009), was presented with a putative
class of X-Box owners who, similar to plaintiffs here, alleged
their X-Box devices had scratched their video game discs.
He relied on the causation analysis of Gable to deny
certification of the class. He reasoned that much as each
Land Rover owner in Gable had to show that the alignment
defect had manifested itself by causing tire damage in his car,
so too each video game system owner in Microsoft Xbox 360
Scratched Disc Litigation had to show that the scratching
defect of his game console had manifested itself by damaging
a disc. The manifested effect of the product defect would
tend to be different as to each plaintiff’s tire or disc. Notably,
Judge Coughenour ruled against the plaintiffs’ attempts to
distinguish Gable, saying that the two cases presented
identical questions of predominance of individual issues over
common class issues. Microsoft Scratched Disc Litigation at
*7. That scratched disc case was settled later that year.

    In 2010, the Ninth Circuit reversed Gable’s determination
of the predominance question. We held the common question
whether a defect existed in the wheel alignment predominated
over the individual question of the manifestation of the
defective wheel alignment through uneven tire wear.3 Judge
Martinez, the district court judge here, heard Microsoft’s


 3
    The Ninth Circuit reversed under a different name. Wolin v. Jaguar
Land Rover North Am., LLC, 617 F.3d 1168 (9th Cir. 2010). Thus, Wolin
refers unambiguously to the Ninth Circuit ruling, while Gable refers
unambiguously to the district court ruling.
                   BAKER V. MICROSOFT CORP.                            21

motion to strike class claims in 2012, and was faced with an
unusual conundrum.

    The Supreme Court had recently held that federal district
courts are expected “to apply principles of comity to each
other’s class certification decisions when addressing a
common dispute.” Smith v. Bayer, 131 S.Ct. 2368, 2382
(2011). But no Ninth Circuit or Supreme Court precedent
existed to interpret how principles of comity should be
applied. Judge Martinez thus adopted the suggestion of the
American Legal Institute (“ALI”) that an earlier class
certification decision of a different district court should be
afforded a rebuttable presumption of preclusive effect.
Applying this presumption, he held that the presumption of
preclusive effect as to Judge Coughenour’s ruling in
Microsoft Xbox 360 Scratched Disc Litigation had not been
rebutted, and granted the motion to strike. Judge Martinez
did not opine on the issues raised by the motion to strike de
novo, and the defendants did not base their motion to strike
on any grounds beyond comity.4

    Was Judge Martinez’s application of comity correct? As
I have noted, this is a question of first impression in this
circuit, and a difficult one. And it puts the wrong question in


 4
   See ER 45 (making the comity argument as to the motion to strike, then
arguing that “In the Alternative, the Court Should Deny Certification of
Plaintiffs’ Proposed Classes.”). Certification raises issues and procedures
quite different from a motion to strike, and defendants were unambiguous
in relying on the comity argument alone for their motion to strike.
Plaintiffs replied that “comity does not apply” because Wolin was an
intervening change in law; as the ALI explains, the comity presumption
of correctness is rebutted “when the basis for an earlier denial. . . is no
longer present.” Dkt. 23 at 17 (citing Am. Law. Inst., Principles of the
Law of Aggregate Litigation § 2.11 cmt. c. (2010)).
22                 BAKER V. MICROSOFT CORP.

this case to assert, as the majority does, that Judge Martinez
misconstrued this court’s opinion in Wolin.5 After all, in the
typical comity case, where a US court is considering whether
to give effect to a foreign judgment, “the mere assertion of [a]
party that the [earlier] judgment was erroneous in law or in
fact” does not suffice to disrupt the presumption that the
foreign judgment be given legal effect. Asvesta v. Petroutsas,
580 F.3d 1000, 1011 (9th Cir. (2009)) (quoting Hilton v.
Guyot, 159 U.S. 113 (1895)). In those cases, a “special
reason why the comity of this nation” should not attach is
needed. Id. Perhaps such solicitousness makes less sense in
the federal district court context; since federal district court
judges are not sovereigns, their decisions might not require a
“special reason” to be ignored. But if that is the conclusion
we come to, we should say so.

    There is no governing precedent from the Supreme Court
or from our court discussing application of principles of
comity to orders of denials of class certification entered by
district courts in cases involving similar class claims. But the
notion of comity between federal district courts under federal
common law is not new to our circuit.




 5
    I agree that Judge Martinez misunderstood Wolin. See Part III, infra.
He did not see Wolin as a change in the law, despite Judge Coughenour’s
reliance on the decision Wolin overruled. But I do not agree that Judge
Martinez relied on Wolin, since nothing in his order suggests such
reliance. To the contrary, the order suggests he relied on Judge
Coughenour’s earlier ruling. Moreover, there is no authority the majority
can cite for the proposition that if Judge Martinez had understood Wolin
as a change in the law, he was obliged to refuse comity deference to Judge
Coughenour’s earlier ruling. Indeed, that is the very question the majority
should have answered in this case, and with which this concurrence deals.
                    BAKER V. MICROSOFT CORP.                              23

    Indeed, as Judge Martinez noted, comity between federal
district courts in this circuit has long encompassed decisions
by the courts designed to promote the smooth workings of the
federal judiciary and to avoid the embarrassment of
inconsistent results. Baker, 851 F.Supp.2d at 1278. For
instance, in Church of Scientology of California v. U.S. Dept.
of Army, 611 F.2d 738 (9th Cir. 1979), the Church of
Scientology filed a request pursuant to the Freedom of
Information Act for any government materials involving itself
or its founder, L. Ron Hubbard. The relevant agency (the
Department of the Army) refused to release a certain
document. Litigation involving this document proceeded in
the federal district courts of the Central District of California
and of the District of Columbia. The California district court
declined to compel the release of the document on the
grounds that the D.C. court was considering the same issue,
and the issue was better litigated in D.C. On appeal, the
Ninth Circuit held that since the district court in D.C. had
already issued its decision, which had been reversed by the
D.C. Circuit and remanded for future proceedings, the
interests of comity were best served by deferring to the D.C.
case, where proceedings were further advanced.6

    Since the recognition and application of comity to courts’
earlier decisions is a matter of federal common law, and no


  6
    The more common federal comity case occurs when a federal district
court declines jurisdiction over a case on the grounds that an action
relating to the same subject matter has already been commenced in
another district. The first-to-file rule is technically an abdication by the
district court; if subject matter jurisdiction exists, the second court is not
required by any constitutional principle to desist. It does so for the
unremarkable reason that the public interest—conservation of judicial
resources and minimization of the risk of inconsistent decisions—is better
served by so doing.
24                  BAKER V. MICROSOFT CORP.

Supreme Court precedent guides our inquiry, this court has
discretion to craft the rules of federal district court comity it
thinks should apply. Since Judge Martinez’s decision cannot
be affirmed or reversed, in my view, without explaining
whether his vision of comity was correct, I turn to that
question.

II. A Framework for Comity

    I suggest the following framework for district courts faced
with earlier class certification denials for the same or similar
plaintiff classes. First, a district court that is faced with the
earlier ruling of another district court denying class
certification for a similar putative class should adopt as a
rebuttable presumption that the litigation is not amenable to
class action treatment.7 Second, that presumption may be
rebutted by proof from the putative class representative that
shows a change in factual or legal circumstances since the
entry of the earlier order which change rebuts the
presumption. Alternatively, the presumption may be rebutted
by a showing that the earlier district court ruling was based
on clear error. Finally, this court should review a district
court’s decision on whether the rebuttable presumption
attaches or has been rebutted for abuse of discretion. How
does this approach play out; and, will it work?




 7
   Thus, I would have the district court presented with a motion to strike
class allegations, as in this case, give comity deference to an earlier ruling
on class certification as to similar class claims.
                   BAKER V. MICROSOFT CORP.                            25

      A. An Earlier Denial of Certification of a Similar Class
         Should Give Rise to a Rebuttable Presumption That
         the Litigation is Not Amenable To Class Treatment

    The basic posture of this case is not new: a defendant
faces a putative class of plaintiffs, but there is substantial
uncertainty as to whether the putative class will be able to
satisfy Federal Rule of Procedure 23’s requirements for class
treatment. As the Supreme Court has recognized, the
decision whether or not the class is certified is usually the
most important ruling in such a case; once a class is certified,
plaintiffs who brought claims of even dubious validity can
extract an “in terrorem” settlement from innocent defendants
who fear the massive losses they face upon an adverse jury
verdict. See, e.g., AT&T Mobility LLC v. Concepcion, 131
S.Ct. 1740, 1752 (2011) (“Faced with even a small chance of
a devastating loss, defendants will be pressured into settling
questionable claims.”).

     Thus, plaintiff’s counsel need not present meritorious
claims to achieve victory; they need obtain only a favorable
class certification ruling. In light of the minimal costs of
filing a class complaint, an obvious strategy suggests itself:
keep filing the class action complaint with different named
plaintiffs8 until some judge, somewhere, grants the motion to
certify. So long as such a decision is reached while the
plaintiffs who have not yet filed are numerous enough to
justify class treatment, the plaintiffs will have a certified class
that they can use to extract an in terrorem settlement.


  8
    Different named plaintiffs would be required because the original
named plaintiff, as party to the suit, would be precluded from relitigating
the matter. See Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (describing
basic principles of claim and issue preclusion).
26               BAKER V. MICROSOFT CORP.

    If in terrorem settlements are bad, duplicative lawsuits
employed to extract such a settlement are worse. It is no
surprise, then, that appellate courts have long been trying to
solve this problem. One solution was put forth by the
Seventh Circuit in In re Bridgestone/Firestone, Inc. Tires
Product Liability Litigation, 333 F.3d 763 (7th Cir. 2003).
There, the Seventh Circuit held that an earlier denial of class
certification would be binding on all putative members of the
class, whether or not named in the action, so long as they
were adequately represented by the named litigants and class
counsel. Thus, there would be an irrebuttable presumption
that an earlier denial of class certification had binding effect.

    However, the Supreme Court abrogated Bridgestone/
Firestone in Smith v. Bayer. Bayer, 131 S.Ct. at 2380–81.
There, the Court made clear that despite “policy concerns
relating to use of the class action device,” individuals not
present before the district court could not be bound by its
judgment, as the court simply lacked authority to bind them
because they were not parties to the litigation, nor did they fit
into any of the narrow exceptions to the party preclusion rule
announced in Taylor v. Sturgell, 553 U.S. 880 (2008). This
was not, the Supreme Court said, to deny the force of defense
counsel’s policy objection, but to state that “principles of
stare decisis and comity among courts” would have to
“mitigate the sometimes substantial costs of similar litigation
brought by different plaintiffs.” Bayer, 131 S.Ct. at 2380–81.

    Thus, two principles guide application of comity in this
context. First, a district court cannot treat an earlier denial of
certification of class status to a similar plaintiff class as
conclusive proof that the subject matter is not amenable to
class treatment. Bayer, 131 S.Ct. at 2380–81. Second, district
courts should adopt an approach to comity which resolves (or
                   BAKER V. MICROSOFT CORP.                            27

at least reduces) the policy concern of repeated certification
efforts by plaintiffs seeking an in terrorem settlement. AT&T
Mobility LLC, 131 S.Ct. at 1752 (2011). Taken together, these
principles recommend that district courts be given a way to
clear their dockets of questionable successive class
certification requests, while ensuring that putative class
members who have unearthed new evidence or new law in
favor of certification, or clear error in the earlier ruling, not
be foreclosed by the failed efforts of their predecessors.

    In light of the need to distinguish between legitimate and
illegitimate successive class certification request, a
presumption of correctness to earlier denials of certification
that can be rebutted by a showing of changed factual or legal
circumstances, or earlier clear error, makes sense. First, the
district court is justified as a matter of procedure in assuming
that the earlier denial of certification was correct; if it was
not, plaintiffs in the earlier action could have pursued an
interlocutory appeal9 and had the decision vacated; the
inference of correctness from its continued existence is
reasonable.10 Second, if the presumption of correctness is
rebuttable, this rule does not run afoul of the Supreme Court’s
teaching in Smith v. Bayer that unnamed members of a


   9
      An interlocutory appeal of this order is explicitly allowed under
Federal Rule of Civil Procedure 23(f), which allows circuit courts to
permit an immediate appeal from the denial of class certification “if a
petition for permission to appeal is filed with the circuit clerk within 14
days” of the denial.
  10
     Or, as in this case, plaintiffs could voluntarily dismiss their claims
with prejudice and appeal as of right. I concur with the opinion’s
jurisdictional and standing analysis based on Berger, so it is common
ground that plaintiffs have created proper appellate jurisdiction in this
manner.
28                  BAKER V. MICROSOFT CORP.

putative class cannot be bound by the denial of certification.
Plaintiffs are given an opportunity to challenge that earlier
denial of class certification by rebutting the presumption, and
the presumption will be rebutted in any case where there are
good grounds to reconsider the initial determination that the
subject matter of the case is not amenable to aggregate
treatment. Third, the policy concern about the cost of
defending against successive certification motions is reduced
by putting the onus on plaintiffs to explain why the earlier
ruling should not be given effect: so long as there is no new
evidence, change in the law, or clear error in the earlier
dismissal, defendants can rely on their first victory to stave
off in terrorem settlements.11 Fourth, as the district court
noted in this case, adoption of a rebuttable presumption has
scholarly support. See Baker v. Microsoft Corp., 851
F.Supp.2d 1274, 1278 (W.D. Wash. 2012) (citing ALI
Principles of the Law of Aggregate Litigation).12

    In particular, when there has been a change in the law
governing whether a matter is amenable to class
treatment—as there was in the Range Rover wheel alignment
case—that should be grounds for rebutting the presumption

  11
      My suggestion balances the finality value of a definitive ruling in
defendants’ favor with the danger of an erroneous first denial of class
certification curtailing legitimate claims by allowing the second district
court to engage in clear-error review of the first court’s ruling.
  12
     Plaintiffs in this case allege that a rebuttable presumption serves to
unduly constrain district court discretion. But discretion does not mean
unbounded discretion, and the policy arguments against duplicative class
actions recognized by the Supreme Court in Smith v. Bayer require some
restrictions on the discretion of district courts to certify a class. 131 S.Ct.
at 2381. A rebuttable presumption, coupled with abuse-of-discretion
review by this court, thus preserves district court discretion without
allowing district courts to stray too far.
                BAKER V. MICROSOFT CORP.                     29

in favor of the earlier ruling which was based on abrogated
law and which denied class certification. This is because
there are pro-class action policy arguments that we should not
ignore. In particular, class actions are an important way of
resolving so-called “negative value claims”; that is, claims
that are legitimate, but cost too much to litigate individually.
Thus, denying class certification to claims that can be treated
in the aggregate is equivalent to denying those claims on the
merits. When the law has changed to recognize those claims
as amenable to aggregate treatment, applying that change to
give the new plaintiff an opportunity to represent the class
makes sense. Moreover, since the change in the law has
recognized a claim that would not otherwise have been
viable, this is not a “second bite at the apple” of the sort
animating claim preclusion principles. Instead, the change in
the law has presented a different apple.

   B. A Decision Which Applies Comity’s Presumption of
      Correct Denial of Certification Should Be Reviewed
      on an Abuse of Discretion Standard

     It is settled law that the decision to apply principles of
comity is discretionary, not mandatory. Bird v. Glacier Elec.
Coop., Inc., 255 F.3d 1136, 1140 (9th Cir. 2001). Therefore,
this court reviews a district court’s decision to grant comity
deference to a state or tribal court’s determination of an issue
for abuse of discretion. Stock West Corp. v. Taylor, 964 F.2d
912, 918 (9th Cir. 1992). This principle has been extended to
comity to federal court decisions; a district court’s decision
to dismiss an action under the federal comity doctrine’s “first
to file” rule is reviewed for an abuse of discretion. Barapind
v. Reno, 225 F.3d 1100, 1109 (9th Cir. 2000).
30              BAKER V. MICROSOFT CORP.

     Since the district court’s choice to apply principles of
comity is discretionary, an abuse of discretion standard of
review should be applied. Moreover, I see no justification for
a less stringent standard of review for a decision to give
preclusive effect to the substance of an order than to the
decision to defer to duplicative litigation as in the “first to
file” context. Thus, I suggest adoption for use here of the
familiar abuse of discretion standard: a district court abuses
its discretion when it identifies the wrong legal standard for
decision, or makes findings of fact (or applications of the
facts it has found) that are “illogical, implausible, or without
support in inferences that may be drawn from facts in the
record.” U.S. v. Hinkson, 585 F.3d 1247, 1251 (9th Cir.
2009) (en banc).

III.   This Case

    Applying the framework enunciated above, I conclude
that the rebuttable presumption that individual issues
predominated over class-wide issues was rebutted here.

    At the first step, Judge Martinez correctly applied
comity’s rebuttable presumption in favor of Judge
Coughenour’s earlier denial of class certification. At the
second step, however, the district court erred by finding that
Wolin was not a change in law that rebutted the presumption
in favor of the earlier denial of class certification. The
district court made this mistake because it misunderstood the
grounds of Judge Coughenour’s earlier denial of class
certification.

   Judge Martinez concluded that the presumption had not
been rebutted because the Gable/Wolin Land Rover litigation
was distinguishable from the scratched disc litigation.
                BAKER V. MICROSOFT CORP.                     31

However, the language he quoted from Judge Coughenour’s
earlier denial was language justifying Judge Coughenour’s
conclusion that Gable could not be distinguished from the X-
Box scratch case. In re Microsoft Xbox 360 Scratched Disc
Litigation, 2009 WL 10219350, at *7 (W.D. Wash. Oct. 5,
2009) (“Plaintiffs attempt to distinguish Gable, but fail . . .
The Gable court acknowledged that every Land Rover
suffered the same design flaw, but nonetheless refused to
certify the class, because the defect had not manifested in
every Land Rover. That is exactly the case here.”). Judge
Martinez committed two errors of law. First, he read Judge
Coughenour’s earlier denial of class certification as based on
a finding that the Gable/Wolin decision was distinguishable
from the scratched disc litigation; to the contrary, Judge
Coughenour had stated that the scratched disc and tire wear
actions were not distinguishable. Second, it was legal error
for him to defer to Judge Coughenour’s denial of class
certification in light of the change in law wrought by Gable’s
reversal in Wolin, as discussed fully in the majority opinion.
Maj. Op. at 12–13.

    Thus, Judge Martinez abused his discretion by granting
comity deference to an earlier denial of class certification
despite an intervening change in the law that should have
rebutted the presumption in favor of that denial. Notably,
Microsoft made no argument in the district court in support
of the motion to strike other than reliance on comity; its
arguments about the propriety of class treatment in this case
were only to justify the “alternative relief” of denial of
certification. Since the district court has not yet opined on
whether plaintiffs’ class should be certified, I agree that this
issue should remain open on remand, where defendants will
be free to renew their motion to deny certification.
32               BAKER V. MICROSOFT CORP.

IV.     Conclusion

     Our court should not misconstrue the district court rulings
it reviews, and it should give guidance to district courts who
face difficult questions of law. As the majority opinion does
not satisfy either of these duties, I concur in its result, but not
its reasoning.
