Microsoft v. Baker

Without the class action, many consumers would have no practical remedy for damages suffered no matter how good a claim they may have. For instance, when a consumer believes he is sold a faulty Xbox 360 that damages his $30 videogame disc, it makes no sense for him to pay the $400 filing fee to go to federal court—let alone hire a lawyer. As a result, without the class action, many consumers would not bother going to court, and giant companies that mass-produce products would be left with potentially millions in undeserved profits.

Once a class action lawsuit is filed, the Federal Rules of Civil Procedure require the court to grant or deny class certification of the potential class. Last month, the Supreme Court heard oral arguments for Microsoft v. Baker. In January 2016, the Court granted certiorari to review the Ninth Circuit’s decision. The issue in the case is “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 claims…” Baker v. Microsoft, 797 F.3d 607 (9 th  Cir. 2015).

The district court denied the plaintiffs’ motion for class certification. Baker v. Microsoft Corp., 851 F. Supp. 2d 1274. 1280 (W.D. Wash. 2012). The plaintiffs then sought discretionary interlocutory review (review of a court’s ruling before the trial itself has concluded), and the Court of Appeals for the Ninth Circuit denied review. The plaintiffs then voluntarily dismissed their case in order to have a final decision and seek nondiscretionary immediate review from the appeals court.

At the appeals court, the plaintiffs filed an appeal from the district court’s final decision and asked the appeals court for review of class certification. Baker v. Microsoft, 797 F.3d 607 (9th  Cir. 2015). Microsoft argued that allowing such an appeal is effectively an end-run around of the Federal Rules of Civil Procedure (which provides for only discretionary review of orders granting or denying class certification). Thus, Microsoft argued that appeals courts should not have to review class certification through the manufacture of a final decision via voluntary dismissal by the plaintiffs.

Simply put, the Supreme Court will decide this term whether plaintiffs should have a means to review of class certification by right or whether review of denial of class certification should be left to the discretion of the appeals court.

I believe plaintiffs should have a means to review of class certification by right, and I hope the Supreme Court sees it the same way. First, and most importantly, unlike other rulings that parties seek interlocutory appeal from, a denial of class certification is a death sentence to a class action lawsuit. The plaintiffs would never individually hire attorneys to sue Microsoft over a $30 videogame disc, and as a consequence Microsoft may potentially get away with millions in undeserved profits. Furthermore, there is no concern of having a slippery slope or unlimited litigation. After the plaintiffs dismiss their case, their only option is to appeal—and they will only be able to appeal once as a right. Given that denial of class certification all but guarantees that injured plaintiffs will never see justice, the Supreme Court should provide plaintiffs a right to seek review from a denial of class certification after voluntarily dismissing their case since the harm to the plaintiffs tremendously outweigh the harm to the defendant.


Suggested citation: Adam Mohamed, Microsoft v. BakerCornell J.L. & Pub. Pol’y, The Issue Spotter, (Apr. 28, 2017),

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