FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SETH BAKER; MATTHEW DANZIG;

JAMES JARRETT; NATHAN MARLOW;

MARK RISK, individually and on

behalf of all others similarly

situated,

Plaintiffs-Appellants,

v.

MICROSOFT CORPORATION, a

Washington Corporation,

Defendant-Appellee.

No. 12-35946

D.C. No.

2:11-cv-00722-

RSM

ORDER AND

AMENDED

OPINION

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

Amended July 20, 2015

Before: Michael Daly Hawkins, Johnnie B. Rawlinson,

and Carlos T. Bea, Circuit Judges.

Order;

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.

ORDER

The slip opinion dated March 18, 2015 is herebyamended

as follows:

Page 11 - insert the following footnote at the end of the

first paragraph:

Our decision in Huey v. Teledyne, Inc.,

608 F.2d 1234 (9th Cir. 1979), is not to the

contrary. There, putative class plaintiff

Huey’s motion for class certification was

denied in the district court. Id. at 1236. 

Subsequently, Huey’s individual action was

called for trial, but Hueymade no appearance;

accordingly, the district court dismissed

Huey’s action for want of prosecution. Id. 

Huey attempted to appeal the denial of class

certification, but this court explained that it

lacked jurisdiction over the appeal. We

explained that the strong policy of giving trial

judges the ability “to achieve the orderly and

expeditious disposition of cases” meant that

plaintiffs who had failed to prosecute their

claims lost the ability to appeal the denial of

class certification. Id. at 1239 (quoting

Sullivan v. Pacific Indem. Co., 566 F.2d 444,

445–46 (3rd Cir. 1977)).

However, Huey does not control here. Unlike

that proceeding, Baker did not fail to appear

before the district court after the class action

allegations were struck. In fact, Baker

stipulated to dismiss his individual claim,
BAKER V. MICROSOFT CORP. 5

giving up a valuable right in the process. Our

cases recognize that a stipulated dismissal of

an individual claim is an adverse and

appealable final judgment, Berger, 741 F.3d

at 1065, as does a leading treatise. See 7B

Charles Allan Wright, Arthur R. Miller, &

Mary Kay Kane, Federal Practice &

Procedure § 1802 (3d ed. 2005).

With this amendment, Judges Rawlinson and Bea voted,

and Judge Hawkins recommended, to deny the Petition for En

Banc Rehearing.

The full court has been advised of the Petition for En

Banc Rehearing, and no judge of the court has requested a

vote.

Microsoft Corporation’s Petition for En Banc Rehearing,

filed on April 1, 2015, is DENIED. No further petitions for

rehearing or rehearing en banc will be accepted.

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.
6 BAKER V. MICROSOFT CORP.

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

overwhelmingmajorityof Xboxes do not manifest the alleged

defect—only 0.4% of Xbox owners have reported disc

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.
BAKER V. MICROSOFT CORP. 7

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 *1.1In opposing

class certification, defendant Land Rover argued that because

the alleged defect did not manifest in every vehicle, an

individual inquirywould 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

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 “actuallymanifest[ed] in fewer than one percent” of

the total number of consoles purchased. Id. at *6. The vast

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.
8 BAKER V. MICROSOFT CORP.

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.

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.
BAKER V. MICROSOFT CORP. 9

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

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.
10 BAKER V. MICROSOFT CORP.

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.

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
BAKER V. MICROSOFT CORP. 11

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

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

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.
12 BAKER V. MICROSOFT CORP.

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.

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.

4

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.

4 Our decision in Huey v. Teledyne, Inc., 608 F.2d 1234 (9th Cir. 1979),

is not to the contrary. There, putative class plaintiff Huey’s motion for

class certification was denied in the district court. Id. at 1236. 

Subsequently, Huey’s individual action was called for trial, but Huey

made no appearance; accordingly, the district court dismissed Huey’s

action for want of prosecution. Id. Huey attempted to appeal the denial

of class certification, but this court explained that it lacked jurisdiction
BAKER V. MICROSOFT CORP. 13

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. 

over the appeal. We explained that the strong policy of giving trial judges

the ability “to achieve the orderly and expeditious disposition of cases”

meant that plaintiffs who had failed to prosecute their claims lost the

ability to appeal the denial of class certification. Id. at 1239 (quoting

Sullivan v. Pacific Indem. Co., 566 F.2d 444, 445–46 (3rd Cir. 1977)).

However, Huey does not control here. Unlike that proceeding, Baker

did not fail to appear before the district court after the class action

allegations were struck. In fact, Baker stipulated to dismiss his individual

claim, giving up a valuable right in the process. Our cases recognize that

a stipulated dismissal of an individual claim is an adverse and appealable

final judgment, Berger, 741 F.3d at 1065, as does a leading treatise. See

7B Charles Allan Wright, Arthur R. Miller, & Mary Kay Kane, Federal

Practice & Procedure § 1802 (3d ed. 2005).
14 BAKER V. MICROSOFT CORP.

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

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
BAKER V. MICROSOFT CORP. 15

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

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 ofits

express warranties, as alleged herein;
16 BAKER V. MICROSOFT CORP.

iv. The existence of any implied warranties

made by Microsoft concerning the Xbox

360;

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 warrantyclaim

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
BAKER V. MICROSOFT CORP. 17

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

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 “duckfooted” 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 meritsbased 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.
18 BAKER V. MICROSOFT CORP.

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. 

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 warrantylaw 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
BAKER V. MICROSOFT CORP. 19

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

the district court misread Wolin, it did not account for the

change in applicable law that made deference to Judge

Coughenour’s opinion erroneous.5

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.

5 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.
20 BAKER V. MICROSOFT CORP.

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

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.
BAKER V. MICROSOFT CORP. 21

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

Martinez erred in basing his ruling on the tire defect cases.

Maj. Op. at 19 n. 5 (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.

 

1

See infra footnote 5 and accompanying text.
22 BAKER V. MICROSOFT CORP.

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

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

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).
BAKER V. MICROSOFT CORP. 23

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.3Judge

Martinez, the district court judge here, heard Microsoft’s

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

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.
24 BAKER V. MICROSOFT CORP.

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

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

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)).

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. 25

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.

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 anygovernment 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
26 BAKER V. MICROSOFT CORP.

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

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

Isuggest 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

 

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 ofthe risk of inconsistent decisions—is better

served by so doing.

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. 27

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?

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
28 BAKER V. MICROSOFT CORP.

plaintiffs8until 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.

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

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).
BAKER V. MICROSOFT CORP. 29

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

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 appeal9and had the decision vacated; the

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
30 BAKER V. MICROSOFT CORP.

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

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

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.

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.
BAKER V. MICROSOFT CORP. 31

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

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.

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.
32 BAKER V. MICROSOFT CORP.

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).

Since the district court’s choice to apply principles of

comity is discretionary, an abuse of discretion standard of

review should be applied. Moreover, Isee 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).
BAKER V. MICROSOFT CORP. 33

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. 

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 XBox 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
34 BAKER V. MICROSOFT CORP.

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 14–15.

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.

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.