Chance at Class Status Revived for Xbox Gamers

SEATTLE (CN) - A federal judge erred in refusing to certify a class of gamers who say Microsoft sells defective Xbox 360s that gouge discs, the 9th Circuit ruled Wednesday.

Seth Baker is the lead plaintiff in the case, which alleges that even the smallest of vibrations, something bound to happen in normal game-playing conditions, can send game discs spinning out of control, scratching them against internal console components and rendering them permanently unplayable.

Microsoft has countered that only 0.4 percent of Xbox owners report this issue, and that consumer misuse is a more likely culprit than design defect.

In denying Baker and his co-plaintiffs class certification, however, the trial court pointed to a similar lawsuit that failed years earlier.

The judge in that case had relied on reasoning from a case involving Land Rovers, but the 9th Circuit said Wednesday that he erred in citing the Land Rover case for "the notion that individual issues of causation predominate because differing causes have produced the same effect."

Though the 9th Circuit had reversed the Land Rover case in 2010, 10 months after the original scratched-disc case was dismissed, the judge presiding over Baker's lawsuit determined still deferred to the earlier certification order out of comity. The 2010 case is captioned Wolin v. Jaguar Land Rover North America LLC.

The 9th Circuit's reversal in favor of Baker on Wednesday says that the comity application was misplaced.

Citing Wolin, the court said that the issues of the case "are susceptible to proof by generalized evidence and do not require proof of individual causation."

"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?" according to the 32-page opinion.

The ruling slams the trial court for its erroneous ruling "that defect allegations are not amenable to resolution on a class-wide basis."

"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," Judge Johnnie Rawlinson wrote for the three-judge panel. "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."

Judge Carlos Bea concurred in the majority's result, but not in its reasoning.

He said that district court's primary error was its decision, at Microsoft's urging, to defer for reasons of comity to the court's denial of class certification in an earlier similar class action.

"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," Bea wrote.

He said that the circuit's majority opinion did not satisfy either of those duties.

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