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NOV. 1, 2017 – In recognition of a U.S. Supreme Court victory for our client Microsoft Corp., Davis Wright Tremaine has been named to the National Law Journal’s 2017 “Appellate Hot List.”

Davis Wright Tremaine partners Stephen Rummage and Fred Burnside, and former partner (now Stanford professor) Jeffrey Fisher, won an 8-0 decision in Microsoft v. Baker, reversing an appeals court ruling that created an uneven playing field in class action cases. Rummage and Burnside handled defense of this action, including a predecessor lawsuit, for ten years, during which time federal district judges twice denied class certification.

Denial of class certification can typically be appealed only after a final judgment has been entered on the merits of the individual claims. But in this case, the plaintiffs, who alleged defects in the Xbox console, voluntarily dismissed their complaint with prejudice for the express purpose of creating a final judgment so they could immediately seek review of the class certification denial. The 9th Circuit held it had jurisdiction to hear the appeal.

Microsoft successfully petitioned for cert, and in their unanimous June decision, the Supreme Court justices found in the company’s favor, ruling that the 9th Circuit did not have jurisdiction over the appeal.

Said Rummage in an interview with the National Law Journal: “[Our] team exposed the practical effect of the 9th Circuit’s assertion of jurisdiction: It unfairly allowed plaintiffs an avenue to review class certification decisions that was unavailable to defendants.”

In a blog post, Microsoft’s Corporate Vice President & Deputy General Counsel, Litigation, David Howard, wrote that the case “has important ramifications about judicial balance.” He added: “This case was about following procedural rules that Congress established and that work for everyone. No party should be able to do an end-run around these rules and have rights that the other party doesn’t get.”

About Davis Wright Tremaine
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