Law360 Reports Microsoft Can't Unplug Xbox Suit at High Court, Gamers Say


A proposed class of disgruntled gamers saying Microsoft’s Xbox 360 game consoles are defective have told the U.S. Supreme Court that the company wrongly contends the Ninth Circuit didn’t have the jurisdiction to revive their claims, saying dropping their claims counts as an appealable final decision.

The gamers, led by named plaintiff Seth Baker, said in a May 16 brief that Microsoft Corp. is challenging the oldest appellate rule of all: that an appeal lies when a case is over. For decades, the settled rule as acknowledged by the Supreme Court has been that a final judgment is always a final decision and that it doesn’t make any difference why a judgment was entered to dismiss claims with prejudice, Baker said.

“The relevant question is not how a judgment became final but whether it is final,” Baker said.

The high court agreed in January to hear Microsoft's challenge of the Ninth Circuit’s revival of the 2011 putative class action. Microsoft said the appeals court does not have jurisdiction to consider the suit.

Microsoft, which argued the alleged defect was due to customer misuse rather than any inherent defects in the device, beat the proposed class certification in 2012 when U.S. District Judge Ricardo S. Martinez said the individual claims overshadowed the group’s claims as a whole.

The Ninth Circuit revived the gamers’ claims, finding that the judge did not properly apply its 2010 ruling in a similar tire-wear case.

The game console owners are represented by several firms including Darren T. Kaplan of Stueve Siegel Hanson LLP.

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