Note on Motion Calendar by undul848

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									                      ATTACHMENT
Attachment - Page 5
 1                                                        The Honorable John C. Coughenour
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 7                          UNITED STATES DISTRICT COURT
 8                         WESTERN DISTRICT OF WASHINGTON
                                     AT SEATTLE
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     IN RE MICROSOFT XBOX 360                 )    Master Cause No. 07-cv-1121-JCC
10   SCRATCHED DISC LITIGATION                )
                                              )
11   THIS DOCUMENT RELATES TO:                )    PLAINTIFFS’ MOTION FOR
12   ALL ACTIONS                              )    CLASS CERTIFICATION AND
                                              )    FOR APPLICATION OF
13                                            )    WASHINGTON LAW
                                              )
14                                            )    Note on Motion Calendar:
                                              )    April 22, 2009
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                                              )
16                                            )    ORAL ARGUMENT REQUESTED
                                              )
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                                                                      LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR       KELLER ROHRBACK          L.L.P.
     APPLICATION OF WASHINGTON LAW                             1201 THIRD AVENUE, SUITE 3200
                                                              SEATTLE, W ASHINGTON 98101-3052
     (Master Cause No. 07-cv-1121-JCC)                           TELEPHONE: (206) 623-1900
                                                                 FACSIMILE: (206) 623-3384

     Attachment - Page 6
 1                                                        Table of Contents
 2   I.     INTRODUCTION ............................................................................................................ 1
 3   II.    STATEMENT OF FACTS ............................................................................................... 2
 4
            A.        Plaintiffs Seek to Certify a Nationwide Class and Subclass................................. 2
 5
            B.        The Xbox 360 Was Launched in November 2005 with an Express
 6                    Warranty. .............................................................................................................. 2

 7          C.        Optical Disc Drives (ODDs) are Common in Consumer Products....................... 4
 8          D.        The Xbox 360 Was Defectively Designed Under Microsoft’s
                      Defective Specifications. ...................................................................................... 5
 9

10          E.        Microsoft Discovered Prior to Launch that the ODD Scratches
                      Game Discs. .......................................................................................................... 7
11
            F.        Microsoft Rejected Three Possible Solutions to its Design Defect. ..................... 8
12
            G.        Microsoft Has Received Thousands of Reports of Scratched Discs..................... 9
13
            H.        The Xbox 360 Manual and Sticker Do Not Adequately Warn of the
14                    Product Defect. ................................................................................................... 10
15          I.        Microsoft Has Turned the Xbox Defective Design into a Profit
16                    Generator............................................................................................................. 11

17   III.   ARGUMENT.................................................................................................................. 12

18          A.        This Action is Ideally Suited for Class Action Treatment.................................. 12

19          B.        Plaintiffs Satisfy the Requirements of Rule 23(a). ............................................. 13
20                    1.         The Class Is So Numerous That Joinder Is Impracticable...................... 14
21                    2.         There are Common Questions of Law and Fact for the
                                 Classes..................................................................................................... 14
22

23                    3.         The Class Representatives’ Claims Are Typical of the
                                 Classes..................................................................................................... 16
24
                      4.         Plaintiffs Will Fairly and Adequately Protect the Interests
25                               of the Class.............................................................................................. 17
26          C.        Plaintiffs’ Claims Should Be Certified Pursuant to Rule 23(b)(3). .................... 19

                                                                                                              LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                                           KELLER ROHRBACK                 L.L.P.
     APPLICATION OF WASHINGTON LAW                                                                   1201 THIRD AVENUE, SUITE 3200
                                                                                                    SEATTLE, W ASHINGTON 98101-3052
     (Master Cause No. 07-cv-1121-JCC) Page - i                                                        TELEPHONE: (206) 623-1900
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     Attachment - Page 7
 1                    1.         Common Issues Predominate.................................................................. 19
 2                    2.         Class Adjudication is a Superior Method of Resolving
                                 These Claims........................................................................................... 23
 3
            D.        Choice of Law Issues Do Not Prevent Certification........................................... 25
 4

 5                    1.         Washington Law Applies to Plaintiffs’ Tort Claims. ............................. 26

 6                               a.        Application of Washington Law is Constitutional...................... 26

 7                               b.        Choice of Law Analysis Supports the Application
                                           of Washington Law..................................................................... 28
 8
                                           (i)        Where the Injury Occurred ............................................. 29
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                                           (ii)       Where the Conduct Causing the Injury
10
                                                      Occurred.......................................................................... 30
11
                                           (iii)      The Residence or Domicile of the Parties....................... 31
12
                                           (iv)       Where the Parties’ Relationship Is Centered .................. 32
13
                      2.         Application of Restatement Section 148 Does Not Alter
14                               This Analysis. ......................................................................................... 33
15                               a.        The Choice of Law Provision Does Not Change
                                           This Analysis. ............................................................................. 34
16

17                               a.        The Court Need Not Reach the Second Prong............................ 35

18   III.   CONCLUSION............................................................................................................... 36

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                                                                                                           LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                                        KELLER ROHRBACK                 L.L.P.
     APPLICATION OF WASHINGTON LAW                                                                1201 THIRD AVENUE, SUITE 3200
                                                                                                 SEATTLE, W ASHINGTON 98101-3052
     (Master Cause No. 07-cv-1121-JCC) Page - ii                                                     TELEPHONE: (206) 623-1900
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     Attachment - Page 8
 1                                                            Table of Authorities
 2   Federal Cases
 3   Ali v. Ashcroft, 346 F.3d 873 (9th Cir. 2003) ............................................................................. 13
 4
     Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981)......................................................................... 26
 5
     Ballard v. Equifax Check Servs., 186 F.R.D. 589 (E.D. Cal. 1999) ........................................... 24
 6
     Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975)................................................................. 17, 23
 7
     Brewer v. Dodson Aviation, 447 F. Supp. 2d 1166 (W.D. Wash. 2006) ........................ 31, 32, 36
 8
     Califano v. Yamasaki, 442 U.S. 682 (1979). .............................................................................. 13
 9
     Castano v. Am. Tobacco Co., 84 F.3d 734 (5th Cir. 1996)......................................................... 25
10

11   Chamberlan v. Ford Motor Co., 402 F.3d 952 (9th Cir. 2005) ............................................ 13, 15

12   Chin v. Chrysler Corp., 182 F.R.D. 448 (D.N.J. 1998) .............................................................. 25

13   Connor v. Automated Accounts, Inc., 202 F.R.D. 265 (E.D. Wash. 2001)................................. 23

14   Dal Ponte v. Am. Mortg. Exp. Corp., No. 04-2152, 2006 WL 2403982 (D.N.J.
        Aug. 17, 2006) ...................................................................................................................... 26
15
     Dukes v. Wal-Mart, Inc., 509 F.3d 1168 (9th Cir. 2007).......................................... 14, 15, 16, 24
16
     Epstein v. MCA, Inc., 50 F.3d 644 (9th Cir. 1995) ..................................................................... 25
17

18   Fields v. Legacy Health Sys., 413 F.3d 943 (9th Cir. 2005)....................................................... 28

19   Gable v. Land Rover North America, Inc., No. 07-0376, 2008 WL 4441960 (C.D.
        Cal. Sept. 29, 2008)............................................................................................................... 22
20
     Grove v. Principal Mut. Life Ins. Co., 14 F. Supp. 2d 1101 (S.D. Iowa 1998) .......................... 26
21
     Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) .................................................. passim
22
     Hanson v. Ticket Track, Inc., 213 F.R.D. 412 (W.D. Wash. 2003)............................................ 16
23
     In re Ford Motor Co. Ignition Switch Prods. Liability Litig., 174 F.R.D. 332
24
         (D.N.J. 1997)......................................................................................................................... 25
25
     In re Gen. Motors Corp. Dex-Cool Prods. Liability Litig., 241 F.R.D. 305 (S.D.
26       Ill. 2007)................................................................................................................................ 25


                                                                                                                    LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                                                 KELLER ROHRBACK                 L.L.P.
     APPLICATION OF WASHINGTON LAW                                                                        1201 THIRD AVENUE, SUITE 3200
                                                                                                         SEATTLE, W ASHINGTON 98101-3052
     (Master Cause No. 07-cv-1121-JCC) Page - iii                                                            TELEPHONE: (206) 623-1900
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     Attachment - Page 9
 1   Kelley, et al. v. Microsoft Corp., 251 F.R.D. 544 (W.D. Wash. 2008)................................ passim
 2   Kelley, et al. v. Microsoft Corp., No. 08-80030 (9th Cir. Apr. 21, 2008) .................................. 26
 3   Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507 (9th Cir. 1978) ..................................... 18
 4   Local Joint Executive Bd. of Culinary/Bartender Trust Fund v. Las Vegas Sands,
 5      Inc., 244 F.3d 1152 (9th Cir. 2001) ................................................................................ 19, 24

 6   Lowdermilk v. U.S. Bank Nat’l Ass’n, 479 F.3d 994 (9th Cir. 2007) ......................................... 14

 7   Lozano v. AT&T Wireless Servs., Inc., 504 F.3d 718 (9th Cir. 2007) ........................................ 16

 8   Mortimore v. FDIC, 197 F.R.D. 432 (W.D. Wash. 2000).............................................. 15, 16, 17
 9   Patton v. Cox, 276 F.3d 493 (9th Cir. 2002)............................................................................... 28
10   Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) ........................................................ 26, 27
11
     Roshandel v. Chertoff, 554 F. Supp. 2d 1194 (W.D. Wash. 2008)............................................. 13
12
     Smith v. Univ. of Wash. Law Sch., 2 F. Supp. 2d 1324 (W.D. Wash. 1998) ........................ 15, 17
13
     Staton v. Boeing, 327 F.3d 938 (9th Cir. 2003) .......................................................................... 14
14
     Valentino v. Carter-Wallace, Inc., 97 F.3d 1227 (9th Cir. 1996)............................................... 19
15
     Windham v. Am. Brands, Inc., 565 F.2d 59 (4th Cir. 1977) ....................................................... 23
16
     State Cases
17
     Burnside v. Simpson Paper Co., 123 Wn.2d 93, 864 P.2d 937 (1994)....................................... 28
18

19   Haberman v. Wash. Pub. Power Supply Sys., 109 Wn.2d 107, 744 P.2d 1032
        (1987).................................................................................................................................... 34
20
     Indoor Billboard/Wash., Inc. v. Integra Telecom of Wash., Inc., 162 Wn.2d 59,
21      170 P.3d 10 (2007).......................................................................................................... 21, 33
22   Johnson v. Spider Staging Corp., 87 Wn.2d 577, 555 P.2d 997 (1976).............................. passim
23   McKee v. AT&T Corp., 164 Wn.2d 372, 191 P.3d 845 (2008)................................................... 35
24   Pickett v. Holland Am. Line-Westours, Inc., 101 Wn. App. 901, 6 P.3d 63 (2000) ............. 22, 28
25
     Schnall v. AT&T Wireless Servs., Inc., 139 Wn. App. 280, 161 P.3d 395 (2007)............... passim
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                                                                                                                   LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                                                KELLER ROHRBACK                 L.L.P.
     APPLICATION OF WASHINGTON LAW                                                                        1201 THIRD AVENUE, SUITE 3200
                                                                                                         SEATTLE, W ASHINGTON 98101-3052
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     Attachment - Page 10
 1   Tex. Enters., Inc. v. Brockway Standard, Inc., 110 Wn. App. 197, 39 P.3d 362
        (2002).................................................................................................................................... 15
 2
     Zenaida-Garcia v. Recovery Sys. Tech., Inc., 128 Wn. App. 256, 115 P.3d 1017
 3      (2005)............................................................................................................................. passim
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     Federal Statutes
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     15 U.S.C. § 2310(d)(1) ................................................................................................................. 1
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     State Statutes
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     RCW 19.86 ............................................................................................................................. 1, 21
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     RCW 7.72 ............................................................................................................................... 1, 21
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     RCW 7.72.030 ............................................................................................................................ 20
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11   Federal Rules

12   Fed. R. Civ. P. 23(a) ............................................................................................................ passim

13   Fed. R. Civ. P. 23(b) ....................................................................................................... 13, 19, 23

14   Fed. R. Civ. P. 23(f).................................................................................................................... 26

15   Fed. R. Civ. P. 23(g) ................................................................................................................... 18
16   Other Authorities
17   7AA Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice
18     and Procedure § 1778 (3d ed. 2005) ..................................................................................... 20

19   Restatement (Second) of Conflict of Laws § 145(2) ................................................ 29, 30, 31, 34

20   Restatement (Second) of Conflict of Laws § 148................................................................. 33, 34

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                                                                                                                   LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                                                KELLER ROHRBACK                 L.L.P.
     APPLICATION OF WASHINGTON LAW                                                                        1201 THIRD AVENUE, SUITE 3200
                                                                                                         SEATTLE, W ASHINGTON 98101-3052
     (Master Cause No. 07-cv-1121-JCC) Page - v                                                             TELEPHONE: (206) 623-1900
                                                                                                            FACSIMILE: (206) 623-3384

     Attachment - Page 11
 1                                                I.    INTRODUCTION
 2              Plaintiffs are purchasers and users of Defendant Microsoft Corporation’s (“Microsoft’s”)
 3   Xbox 360 video game console, which retails between $299 and $479. Xbox 360 games are sold
 4
     separately from the Xbox 360 console and retail for approximately $59.99. The Xbox 360 plays
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     game discs in an Optical Disc Drive (“ODD”) similar to those found in home DVD players and
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     in desktop and notebook personal computers. The Xbox 360 is defectively designed because
 7

 8   when an Xbox 360 is tilted or swiveled – even slightly – while a game disc is in the ODD, ODD

 9   components can contact the game disc, creating a distinctive circular “gouge” on the underside

10   of the disc, rendering it permanently unplayable.
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                Microsoft discovered this scratch-inducing design defect prior to launching the Xbox
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     360, but refused and continues to refuse to remedy the problem. Tens of thousands of Xbox 360
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     owners have registered complaints with Microsoft that scratches inflicted by the defective design
14
                                                                                      1
15   of the Xbox 360 console have made their game discs unplayable.

16              Plaintiffs assert claims for violation of the Washington Consumer Protection Act (RCW

17   19.86) (“CPA”), breach of express warranty, violation of the Washington Product Liability Act
18   (RCW 7.72) (“WPLA”), and violation of the Magnuson-Moss Warranty Act (15 U.S.C.
19
     § 2310(d)(1)). Plaintiffs seek to certify these claims on behalf of two nationwide classes: a
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     “Console Owners Class” and a “Damaged Disc Subclass.”
21
                The proposed class structure is manageable and practicable because all class members are
22

23   members of the first class and only a single additional issue of fact – whether a disc has been

24   irreparably damaged by the Xbox 360 – is raised by the subclass. All other issues of fact and law

25   1
         Indeed, a significant percentage of these owners claim that their Xbox 360s were not moved at all when their game
26       discs received the distinctive deep circular gouge, a claim which although upsetting, is not relevant to this motion
         insofar as Microsoft should have designed the Xbox 360 to prevent the deep circular gouging of game discs
         whether or not the console was moved during normal use.
                                                                                                  LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                                   KELLER ROHRBACK          L.L.P.
     APPLICATION OF WASHINGTON LAW                                                         1201 THIRD AVENUE, SUITE 3200
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     Attachment - Page 12
 1   remain the same for both classes. Given the relatively small amount of damages sustained by
 2   each individual class member, not only is a class action superior to any other method of
 3
     adjudicating these claims, it is pragmatically the only method for Plaintiffs to seek redress.
 4
                                           II.    STATEMENT OF FACTS
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     A.         Plaintiffs Seek to Certify a Nationwide Class and Subclass.
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                Plaintiffs seek certification of a nationwide class and subclass. The first class, the
 7

 8   “Console Owners Class,” is comprised of “all persons residing in the United States who, within

 9   four years preceding the filing of Plaintiffs’ complaint on July 18, 2007, purchased or were given

10   an Xbox 360 console.” This Class seeks damages for breach of warranty under Washington law
11   and the Magnuson-Moss Act for the defectively designed Xbox 360, and for violation of the
12
     Washington CPA. Plaintiffs and proposed class representatives Jose Caraballo, Justin Hanson,
13
                                                                                                                        2
     Robert Ling, Christine Moskowitz, Luis Torres, and David Wood are members of this Class.
14
                The “Damaged Disc Subclass” is a Subclass within the Console Owners Class, comprised
15

16   of “all members of the Console Owners Class who purchased or were given Xbox 360 game

17   discs that were subsequently scratched by an Xbox 360 console and rendered unusable.” The
18   Damaged Disc Subclass seeks damages based on product defect claims and violations of the
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     CPA and WPLA for the replacement costs of damaged discs. Plaintiffs and proposed class
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     representatives Caraballo, Hanson, Ling, Moskowitz, Torres, and Wood are members of the
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     Damaged Disc Subclass. See Pltfs’ Decs.
22

23   B.         The Xbox 360 Was Launched in November 2005 with an Express Warranty.

24              The Xbox 360 is Microsoft’s second generation video game console. It was launched in

25   November 2005 and was originally available in two configurations: the “Xbox 360 Premium”

26   2
         See Declarations of Plaintiffs Caraballo, Hanson, Ling, Moskowitz, Torres, and Wood (collectively, “Pltfs’
         Decs.”), filed herewith.
                                                                                               LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                              KELLER ROHRBACK            L.L.P.
     APPLICATION OF WASHINGTON LAW                                                     1201 THIRD AVENUE, SUITE 3200
                                                                                      SEATTLE, W ASHINGTON 98101-3052
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     Attachment - Page 13
 1   package retailing at $399, and the “Xbox 360 Core” retailing at $299. The “Xbox 360 Elite”
 2   package was launched in April 2007 and retailed at $479. As of May 14, 2008, Microsoft
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     reported U.S. sales of 10 million Xbox 360 consoles. Declaration of Amy Williams-Derry
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     (“Derry Dec.”) Ex 1.
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             Microsoft provides a uniform, one-year Express Warranty on Xbox 360 consoles
 6
                                          3
 7   purchased in the United States. See Derry Dec. Ex. 3; see also Am. Compl. (Dkt. 45) Ex. B.

 8   The warranty provides that the Xbox 360 console “will substantially conform with the printed

 9                                   4
     user instruction materials,” Derry Dec. Ex. 3 at 5 § A, and that:
10
             If you acquired the Xbox Product in the United States, the laws of the State of
11           Washington, U.S.A., will apply to this Limited Warranty. The laws of your state
             of residence will apply to any tort claims and/or any claims under any consumer
12           protection statutes.
13   Id. at 8 § H (emphasis added).
14
             The Xbox 360 console uses hardware and technology similar to a personal computer.
15
     Every version of the Xbox 360 console includes a built-in ODD which is used to play game
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     discs, music CDs, and DVD movies. Declaration of Michael D. Sidman, Ph.D. (“Sidman Dec.”)
17
     ¶ 4. Games for the Xbox 360 console are purchased separately and published by Microsoft and
18

19   third-party game publishers with a Microsoft license.

20           Microsoft specified that the ODD for the Xbox 360 console would be capable of
21   operating in either a horizontal or vertical position. Id. ¶ 11. Indeed, this optional orientation
22
     and display was one of the key design features from an early stage of the console’s development.
23
     Derry Dec. Ex. 5.
24

25   3
       Originally the Xbox 360 had only a 90 day warranty, but in December 2006, Microsoft retroactively expanded the
       warranty to one year. See Derry Dec. Ex. 2.
26   4
       Nothing in the printed user instruction materials advises users that the Xbox 360 ODD is defectively designed, and
       the word “scratch” appears nowhere in the document. See Derry Dec. Ex. 4.
                                                                                             LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                            KELLER ROHRBACK            L.L.P.
     APPLICATION OF WASHINGTON LAW                                                   1201 THIRD AVENUE, SUITE 3200
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     Attachment - Page 14
 1           In either position, Xbox 360 ODDs are specified by Microsoft to spin game discs at
 2   “12x,” which translates to a rotational speed of 7,500 rpm – a very high speed that is unique in
 3                                                                   5
     the home video game industry. Sidman Dec. ¶¶ 32-33. Microsoft failed during the ODD
 4
     specification phase to account for both the high rate of disc rotational speed and the foreseeable
 5
     movement of the console. Id. ¶¶ 19-26. This failure, combined with other mistakes Microsoft
 6

 7   made in specifying the ODD, resulted in the design defect causing injury to Plaintiffs and the

 8   proposed Classes.

 9   C.      Optical Disc Drives (ODDs) are Common in Consumer Products.
10           As explained by Dr. Sidman, ODDs are extremely common and have been in regular use
11
     by consumers since the introduction of the first compact disc players in the early 1980s. Sidman
12
     Dec. ¶¶ 4, 26. Because CD and DVD media supported by ODDs are robust, ODDs are found in
13
     numerous consumer products where they are routinely subjected to high levels of movement, tilt,
14

15   swivel, and vibration. Id. For example, ODDs are found in automobile CD and DVD players,
                                                                                                                        6
16   notebook computers, portable DVD players, and digital video camera/recorders (“camcorders”).

17   Sony introduced a portable CD player called the “Discman” in 1984, which was designed to play
18
     CDs while users walked, ran, or exercised. Portable CD players of this type are still sold and
19
     commonly used today.
20
             Although these consumer-operated CDs and DVDs are routinely subjected to tilting and
21
     movement while operating, none of the media played in these consumer products have
22

23   experienced widespread disc-scratching problems. Indeed (with the conspicuous exception of

24   5
       Xbox 360’s primary competitors in the game industry – the Sony PlayStation 3 and Nintendo’s Wii – spin game
25     discs at a maximum speed of 4,000 and 3,500 rpm, respectively.
     6
       Because digital camcorders are constantly being reoriented to a vertical orientation as the camcorder is moved
26     from the carrying position to the eye level of the user, camcorders represent an excellent example of how ODDs
       can be easily designed to operate flawlessly when vertically reoriented while in use. See discussion of Sony
       Corporation’s U.S. Patent No. 7,283,730 for an Optical Disc Camcorder, Sidman Dec. ¶ 35.
                                                                                           LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                           KELLER ROHRBACK           L.L.P.
     APPLICATION OF WASHINGTON LAW                                                  1201 THIRD AVENUE, SUITE 3200
                                                                                   SEATTLE, W ASHINGTON 98101-3052
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     Attachment - Page 15
 1   Microsoft), industry engineers have long anticipated this problem and have learned to provide
 2   simple, inexpensive and obvious measures to protect optical discs in consumer applications
 3
     while the ODD is in use and the disc is spinning. Id. ¶ 27. As a result, there is a reasonable
 4
     consumer expectation that consumer products with ODDs will not cause media discs to be
 5
     scratched even when the products are tilted, vibrated, or slightly rotated in the course of every
 6

 7   day use.

 8   D.     The Xbox 360 Was Defectively Designed Under Microsoft’s Defective Specifications.

 9          ODDs are manufactured with three primary designs for disc loading: tray-loading, top-

10   loading, or slot-loading. Tray-loading ODDs utilize a slide-out tray design to load discs, and
11
     reflect older technology, with magnetic force used to assist in holding the disc on the spindle.
12
     Top-loading ODDs offer greater protection for a spinning disc because the design clamps a disc
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     directly into the ODD. Slot-loading ODDs use an internal motor to assist in disc insertion and
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     removal and are most commonly seen in ODDs that are expected to experience movement and
15

16   vibration such as in automobile CD and DVD players.

17          The Xbox 360 employs a tray-loading ODD design. Sidman Dec. ¶ 31. This reflects an
18   unusual choice for a product designed to be oriented vertically, and which rotates game discs at
19
     12x. Id. ¶¶ 31-33. Both the Sony PlayStation 3 and Nintendo Wii, which can also be oriented
20
     vertically, utilize slot-loading ODDs. Id. ¶¶ 42, 44.
21
            Once a disc is loaded into the Xbox 360’s tray-loading ODD, the disc is lifted slightly off
22

23   the tray to allow it to freely revolve around a spindle. The disc is held in place solely by

24   magnetic force, which when designed properly, should prevent the disc from becoming unstable

25   while revolving on the spindle. Id. ¶ 31. A laser diode light is focused on the spinning disc and
26   is reflected back to the optical pickup unit (“OPU”). To read the information embedded in a

                                                                                  LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                  KELLER ROHRBACK           L.L.P.
     APPLICATION OF WASHINGTON LAW                                         1201 THIRD AVENUE, SUITE 3200
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     Attachment - Page 16
 1   game disc, the OPU must be positioned over the disc’s data track to detect the light being
 2   reflected off the microscopic pits and flat surfaces (“lands”) as they rotate past. Deep scratches,
 3
     gouges, or concentric scratches on the disc’s surface that lie parallel to the data track can obstruct
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     the laser beam, precluding playback of the data to the optical detector. Id. ¶¶ 5-9.
 5
                Because the Xbox 360’s ODD rotates Xbox 360 game discs at 7,500 rpm, significant
 6
                                                                           7
 7   gyroscopic forces are exerted on a disc while spinning. Compared to the gyroscopic forces at

 8   work on a disc rotating at 3,500 or 4,000 rpm, see supra note 5, the greater gyroscopic forces

 9   exerted on an Xbox game disc make it even more likely that any movement of an Xbox 360
10
     console while a game disc is playing will cause the game disc to become uncoupled from the
11
     spindle. Because these greater gyroscopic forces are combined with both a weak magnetic force
12
     for holding the disc in place, and a tray-loaded design that can be oriented vertically, uncoupling
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     of a disc during normal console use was a predictable result. See id. ¶ 31.
14

15              When a game disc becomes uncoupled (or “unchucked”) in the Xbox 360 ODD, it

16   wobbles within the ODD and can come into contact with internal ODD components. Id. ¶ 33.
17   Microsoft has determined through its own internal testing that contact with the lens or printed
18
     circuit board of the OPU of the ODD by an unchucked or gyroscopically deformed game discs is
19
     what causes the deep circular gouges in the underside of the game discs. Id. ¶ 12. In addition,
20
     due to the high level of gyroscopic force exerted on an Xbox 360 game disc while it spins at
21

22   7,500 rpm, movement of the console can cause the game disc to “deflect” or warp sufficiently to

23   come into contact with the OPU even if the disc is not unchucked, which will also cause the deep

24

25
     7
26       According to tests by Dr. Sidman, the Sony PlayStation 3, which also uses a magnetic disc holder to hold the game
         disc in place, exerts an axial holding force on the disc that is nearly twice as strong as that of the Xbox 360. Id. ¶
         42.
                                                                                                  LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                                 KELLER ROHRBACK            L.L.P.
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     Attachment - Page 17
 1   circular gouges in the underside of the game discs. Id. ¶ 34. This is the type of scratch
 2   experienced by Plaintiffs and the members of the proposed Damaged Disc Subclass.
 3
     E.      Microsoft Discovered Prior to Launch that the ODD Scratches Game Discs.
 4
             Prior to its November 2005 sales launch of the Xbox 360, Microsoft was aware that when
 5
     the Xbox 360 is reoriented, the game disc inside the Xbox 360 can become scratched and
 6
     permanently damaged. Deposition of Hiroo Umeno (“Umeno Dep.”) 312:23-313:4 (Derry Dec.
 7

 8   Ex. 6) (“This is . . . information that we as a team, optical disc drive team, knew about. When

 9   we first discovered the problem in September or October, when we got a first report of disc

10                                                                        8
     movement, we knew this is what’s causing the problem.”). Shortly after the launch, Microsoft
11
     dispatched a team of engineers to retail stores across the country to investigate complaints by
12                                                                                                             9
     store employees that the Xbox 360 was routinely scratching discs during demonstrations.
13
     During these investigations, Microsoft determined that “if you tilt the [console] to the left or
14

15   forward . . . you’ll cause a scratch.” Derry Dec. Ex. 10. Microsoft determined that when

16   consoles were tilted, game discs become “unchucked” and collide with the OPU, causing deep

17   circular gouges in the playing discs. Umeno Dep. 312:12-19 (“[G]yroscopic precession force is
18
     what causes the disc to unchuck, which is what we’ve . . . known. In order for the force to act on
19
     the disc, the assembly, the console and the disc drive, which is inside the console, has to move
20
     relative to the rotation of the disc.”). Like a gyroscope that is disturbed from its axis, a revolving
21
     game disc will wobble and potentially come in contact with the OPU. Id. at 312:2-5. Based on
22

23   8
       Microsoft designated Hiroo Umeno, Jose Garcia, and Douglas Park as its Fed. R. Civ. P. 30(b)(6) representatives.
24     Umeno is a Microsoft program manager involved in specification development for computer software,
       coordination development and testing efforts, interfacing with other teams relating to Microsoft’s product
25     development, and interfacing with business team product feature developments. Umeno Dep. 7:18-23. Garcia is
       the senior director of repair and refurbishment programs for the Xbox 360. Garcia Dep. 24:13-14 (Derry Dec. Ex.
       7). Park is the senior group manager responsible for Xbox’s escalations group, its on-line support group, and the
26
       customer service department’s interactions with Microsoft’s business group. Park Dep. 12:6-9 (Derry Dec. Ex. 8).
     9
       See Park Dep. 82:20-83:9; Umeno Dep. 208:21-209:3; Derry Dec. Ex. 9.
                                                                                            LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                           KELLER ROHRBACK            L.L.P.
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     Attachment - Page 18
 1   his review of Microsoft’s documents, Plaintiffs’ expert agrees that disc unchucking as well as
 2   disc deflection occurs because the clamping force of the disc holder is insufficient to keep the
 3
     game disc in place when it is spinning at a rate of approximately 7,500 rpm in a tray-loading
 4
     ODD mounted in a vertical position. Sidman Dec. ¶¶ 33-34, 36.
 5
     F.         Microsoft Rejected Three Possible Solutions to its Design Defect.
 6
                After the Xbox 360 was launched, Microsoft considered and rejected three possible
 7

 8   solutions to the console’s defective design. Microsoft rejected a first solution, which would have

 9   increased the magnetic force of the disc holder, because it would allegedly interfere with the

10   mechanism that opened and closed the disc tray (another consequence of Microsoft’s decision to
11
     use the tray-loading ODD design). Umeno Dep. 230:6-11; Sidman Dec. ¶ 56.
12
                Microsoft rejected a second solution, which would have required slowing down game
13
     disc rotation speed to 8x, because it allegedly would increase the time it took for a game to load,
14
     and thus interfere with the game experience. Umeno Dep. 236:15-237:4; Sidman Dec. ¶ 52.
15

16   Microsoft rejected a third solution, installing “bumpers” (small soft patches routinely used in

17   other consumer ODDs), because it was allegedly too expensive (at as little as 50¢ per machine)
18   and impractical due to concerns about adhering the bumpers. Park Dep. 145:24-146:4; Umeno
19
     Dep. 228:13-230:5; see also Park Dep. Ex. 6 (Aug. 25, 2006 email from Park noting that with an
20
     aggregate price tag of “$35M to $75M” to install proposed bumpers, Microsoft’s bottom line
21
                                                                 10
     wins out over the consumer) (Derry Dec. Ex. 11).
22

23              As Plaintiffs’ expert opines, the systemic hardware design flaws in the Xbox 360’s ODD

24   make a completely effective solution unlikely without a wholly redesigned ODD. Sidman Dec. ¶

25   50. Solving the problem will require replacing existing ODDs with new, factory-tested ODDs
26   10
          Dr. Sidman opines that there are innumerable commercial adhesives designed to maintain adhesion under forces
          well in excess of those in an Xbox 360 ODD. Sidman Dec. ¶¶ 58-59.
                                                                                             LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                            KELLER ROHRBACK            L.L.P.
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     Attachment - Page 19
                                                                                                11
 1   whose design makes scratched game discs significantly less likely. Id. ¶ 51.                    The damages to
 2   the Owner Class will be measured by calculating the anticipated cost of effectuating these repairs
 3
     on a mass scale.
 4
     G.          Microsoft Has Received Thousands of Reports of Scratched Discs.
 5
                 As of April 30, 2008, Microsoft Manager Douglas Park estimates that Microsoft’s
 6
     customer service department has received approximately 55,000 complaints from consumers
 7

 8   regarding disc scratches. Park Dep. 93:7-21. On July 23, 2008, Microsoft finally released a

 9   support article to its customers identifying error messages relating to fatally scratched discs.
10   Derry Dec. ¶ 13. The Article describes the problem: “[w]hen you try to load a disc in your Xbox
11
     360 console, you receive the following error message: This disc is unreadable. It may be the
12
     wrong region for this console.” The article goes on, stating:
13
                 Note Scratches that follow the curve of the disc are very damaging and prevent a
14               disc from being read. If you see that your disc has even one of these types of
15               scratches, the disc is damaged, and you will no longer be able to play it. If this is
                 the case, see step 4.
16               …
17               [Step] 4. If the disc is damaged, do one of the following:
18               • If you think that the disc was already damaged when you bought it, try to
                 exchange it.
19               • If you have a damaged Microsoft Xbox 360 game disc and would like to order a
20               new one, please visit the following Web site:
                 http://www.xbox.com/en-
21               US/support/systemuse/xbox360/gameplay/discreplacement-program.htm
22               • If the game is a non-Microsoft Xbox 360 game disc and was damaged because
                 of misuse of some type, such as not storing the disc properly in its case, the only
23               thing you can do is buy a new one.
24

25
     11
26        Third-parties have stepped into the vacuum Microsoft created and begun selling “DVD Scratch Stopper Pads” for
          the Xbox 360. See Derry Dec. Ex. 12. This is merely an ad hoc solution that attempts to compensate for
          Microsoft’s inherently flawed ODD design.
                                                                                             LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                             KELLER ROHRBACK           L.L.P.
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     Attachment - Page 20
 1               • If you feel that the disc was damaged by the Xbox 360 console in some way,
                 please contact Xbox Customer Support. To do this, please visit the following
 2               Microsoft Web site:
 3               http://www.xbox.com/support/contact

 4   Id.

 5               The Article does not indicate that the ODD in the Xbox 360 console is defectively

 6   designed or that the ODD is the cause of the disc damage. Indeed, the Article is deliberately
 7
     written so as to preemptively discount the possibility that the Xbox 360 console is the source of
 8
     disc damage, stating, “[i]f you feel that the disc was damaged by the Xbox 360 console in some
 9
     way.” Id. (emphasis added). There is only one way the Xbox 360 console can damage a game
10
     disc through normal use – where the disc comes into contact with the OPU after the game disc
11

12   has become unchucked or deflected due to Microsoft’s defective ODD design.

13   H.          The Xbox 360 Manual and Sticker Do Not Adequately Warn of the Product Defect.
14               The most recent version of the manual accompanying U.S. sales of the Xbox 360 console
15   (the “Manual”) contains the following “warning” buried in the middle of the document, on page
16
     11, in what appears to be 8-point font, without any bold or italics apart from the heading:
17
                 IMPORTANT
18               To avoid jamming the disc drive and damaging
                 discs or the console:
19
                 • Remove discs before moving the console or
                 tilting it between the horizontal and
20               vertical positions.

21   Derry Dec. Ex. 4. This is the only warning arguably related to disc scratching in the Manual.
                                                                                                                          12


22
                 At some point following launch of the Xbox 360 (Microsoft’s Rule 30(b)(6) witnesses
23
     were unable to identify the date), Microsoft began adhering a sticker to the front of the ODD tray
24
     advising users in English, French and Spanish, “[d]o not move console with disc in tray.” Park
25
     12
26         Microsoft’s employees make clear in an internal e-mail that this warning is patently insufficient, in part because
          they know that few of their customers will read the Manual. Derry Dec. Ex. 14; Park Dep. Ex. 7. Plaintiffs’ expert
          agrees. Sidman Dec. ¶ 47.
                                                                                                LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                                KELLER ROHRBACK           L.L.P.
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                                                                                           FACSIMILE: (206) 623-3384

     Attachment - Page 21
 1   Dep. 154:18-24; 219:13-220:4; Umeno Dep. 158:24-160:5. However, even this belated warning
 2   failed to reduce the number of complaints Microsoft received from customers regarding
 3
     scratched discs. Park Dep. 220:5-13. See also Sidman Dec. ¶ 47 (discussing sticker).
 4
                 Because even moderate, unintentional tilting or swiveling of the Xbox 360 console may
 5
     cause disc scratching if the console is in the vertical position, warning consumers not to move
 6
                                                                                                                 13
 7   the console has had little impact in overcoming the defective design of the ODD drive.

 8   Further, because the “warning” sticker must be removed in order to load a disc into the Xbox 360

 9   ODD the first time it is operated, consumers likely forget the warning shortly after removing it, if
10
     they ever read it at all. Given the seriousness of the damage that may result from movement of
11
     the Xbox 360 and the unlikelihood that consumers would expect such a catastrophic result from
12
     normal use of any other ODD device, Microsoft’s decision not to adhere a permanent warning to
13
     the Xbox 360 is patently insufficient. Microsoft’s indifference to either fixing or warning of this
14

15   defect has caused its customers millions of dollars in damage. Of course, Microsoft would not

16   need any warning on the Xbox 360 if it had properly designed the ODD in the first place.
17   I.          Microsoft Has Turned the Xbox Defective Design into a Profit Generator.
18               In response to the avalanche of customer complaints that the Xbox 360 destroys game
19
     discs, Microsoft adopted a policy of replacing ODDs whenever a customer complains forcefully
20
     enough that their Xbox 360 has scratched a disc. However, if a console is outside warranty, the
21
     consumer must pay Microsoft roughly $100 to replace one defective ODD for another defective
22

23   ODD. Garcia Dep. 159:10-160:17; 168:19-170:9; Garcia Dep. Ex. 14 (Derry Dec. Ex. 15)

24

25   13
          There are several cabled peripherals such as game controllers that plug directly into the front of the Xbox 360
26        console. Pulling cables connected to the Xbox 360 console during vigorous game play, such that the console is
          unintentionally moved, or reaching around the back of the console to access the power source, are the most likely
          causes of the console tilting or swiveling that will cause the disc to unchuck and scratch.
                                                                                                LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                               KELLER ROHRBACK            L.L.P.
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     Attachment - Page 22
 1               As Microsoft admits, because all of the Xbox 360 ODDs are defectively designed, a
 2   replacement ODD is just as likely to scratch game discs as the prior ODD. When asked why
 3
     Microsoft would attempt to assuage an unhappy customer by replacing an ODD with a new
 4
     ODD of the same defective design, Microsoft’s corporate representative testified, “although we
 5
     know…the console must have been moved, we still want to give the customer an option or an
 6

 7   opportunity to keep playing the [Xbox 360] and enjoying the system.” Park Dep. 105:20-25.

 8   Jose Garcia, the Microsoft head of Repair and Refurbishment, likewise testified that the

 9   replacement was, “[j]ust to give the customer a new optical drive so that…from a customer’s
10   perspective, they’re getting a new device, and that improves customer satisfaction.” Garcia Dep.
11
     158:18-22. As of May 1, 2008, Microsoft had replaced roughly 7,200 ODDs based on customer
12
                                                                                                            14
     complaints. Garcia Dep. Ex. 14 (Derry Dec. Ex. 15); Garcia Dep. 147:25-148:11.
13
                 In a second attempt to profit from its own defective design at its customers’ expense,
14

15   Microsoft adopted the “Xbox 360 Disc Replacement Program.” The Disc Replacement Program

16   provides that when a customer complains that the Xbox 360 console has destroyed a Microsoft-
17   published game disc, the game disc will be replaced for a $20 fee notwithstanding that there is
18
     only an incremental cost, if any, to Microsoft for simply copying a DVD game disc. Microsoft
19
     does not offer the Disc Replacement Program for games published by third parties. This $20 fee
20
     is an easily quantifiable element of damages for members of the Damaged Disc Subclass.
21

22                                                III.    ARGUMENT

23   A.          This Action is Ideally Suited for Class Action Treatment.

24               The party seeking class certification bears the burden of demonstrating that he or she

25   meets all four requirements of Fed. R. Civ. P. 23(a) and at least one of the requirements of Rule
26   14
          Plaintiffs may later seek leave to certify an additional “ODD Replacement Subclass” for customers who paid
          Microsoft to replace their ODD, if a class representative willing to represent that subclass can be identified.
                                                                                                 LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                                 KELLER ROHRBACK           L.L.P.
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                                                                                            FACSIMILE: (206) 623-3384

     Attachment - Page 23
 1   23(b). Roshandel v. Chertoff, 554 F. Supp. 2d 1194, 1203 (W.D. Wash. 2008). As a product
 2   defect case, this action is ideally suited for class action treatment. In Chamberlan v. Ford Motor
 3
     Co., 402 F.3d 952, 956-57 (9th Cir. 2005), the Ninth Circuit found that a district court properly
 4
     granted class certification based upon the following common factual and legal questions: (a)
 5
     whether the design of the product was defective; (b) whether the defendant was aware of the
 6

 7   defect; (c) whether the defendant had a duty to disclose; (d) whether the defendant failed to

 8   disclose; (e) whether the facts that were not disclosed were material; and (f) whether the failure

 9   to disclose violated state consumer protection laws. Here, comparable common questions
10   predominate.
11
                 Further, because all members of the class are parties to the same express warranty by
12
     Microsoft, a further set of comparable common questions predominate: (a) whether the failure to
13
     repair Xbox 360 consoles known to be defective was a breach of that warranty; (b) whether the
14

15   warranty’s one year limitations period is applicable when Microsoft knew of an existing defect

16   during the warranty period; (c) whether the limitations set forth in the warranty are enforceable;

17   and (d) whether Microsoft’s attempts to set forth different governing law for different types of
18                                  15
     claims are enforceable.             This case is ideal for class action treatment.
19
     B.          Plaintiffs Satisfy the Requirements of Rule 23(a).
20
                 “[C]ertification of a nationwide class is ‘committed in the first instance to the discretion
21
     of the district court.’” Ali v. Ashcroft, 346 F.3d 873, 888 (9th Cir. 2003), rev'd on other grounds,
22

23   421 F.3d 795 (9th Cir. 2005), quoting Califano v. Yamasaki, 442 U.S. 682, 702-03 (1979). The

24   four prerequisites of Rule 23(a) are: (1) the class is so numerous that joinder of all members is

25   impracticable, (2) there are questions of law or fact common to the class, (3) the named
26   15
          As discussed in Section D infra, contractual choice of law provisions do not dictate the choice of law for tort
          claims or consumer protection act claims, and Washington law should apply.
                                                                                                  LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                                 KELLER ROHRBACK            L.L.P.
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     Attachment - Page 24
 1   plaintiffs’ claims or defenses are typical of the claims or defenses of the class, and (4) the named
 2   plaintiffs will fairly and adequately protect the interests of the class. The classes for which
 3
     Plaintiffs seek certification fully satisfy these requirements.
 4
            1.      The Class Is So Numerous That Joinder Is Impracticable.
 5
            Rule 23(a)(1) provides that a class action may be maintained only if “the class is so
 6
     numerous that joinder of all members is impracticable.” Dukes v. Wal-Mart, Inc., 509 F.3d 1168,
 7

 8   1176 (9th Cir. 2007); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). While

 9   courts have never defined a minimum number of putative class members needed for certification,

10   classes numbering in the hundreds or thousands routinely satisfy the requirement. Lowdermilk v.
11
     U.S. Bank Nat’l Ass’n, 479 F.3d 994, 997 (9th Cir. 2007).
12
            The Console Owners Class includes the owners of the roughly ten million Xbox 360
13
     consoles sold in the U.S. The Damaged Disc Subclass includes (but is not limited to) consumers
14
     who contacted Microsoft to report that the Xbox 360 console damaged their discs. Microsoft has
15

16   received at least 55,000 such complaints. Park Dep. 93:7-21. The proposed classes easily satisfy

17   the numerosity requirement.
18          2.      There are Common Questions of Law and Fact for the Classes.
19
            Rule 23(a)(2) requires that there be “questions of law or fact common to the class.”
20
     Commonality under Rule 23(a)(2) is liberally and permissively construed. Dukes, 509 F.3d at
21
     1177 (quoting Hanlon, 150 F.3d at 1019). “All questions of fact and law need not be common to
22
     satisfy the rule. The existence of shared legal issues with divergent factual predicates is
23

24   sufficient, as is a common core of salient facts coupled with disparate legal remedies within the

25   class.” Staton v. Boeing, 327 F.3d 938, 953 (9th Cir. 2003) (quoting Hanlon, 150 F.3d at 1019).
26

                                                                                  LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                  KELLER ROHRBACK           L.L.P.
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     Attachment - Page 25
 1   Indeed, the commonality requirement is satisfied if the claims of the prospective class share even
 2   one central question of fact or law. Dukes, 509 F.3d at 1177; Hanlon, 150 F.3d at 1019-20.
 3
                 Commonality exists when there are underlying facts or legal theories common throughout
 4
     the class, even if the common facts support different legal theories or common legal theories rest
 5
     on different facts. Hanlon, 150 F.3d at 1019-20; Mortimore v. FDIC, 197 F.R.D. 432, 436 (W.D.
 6

 7   Wash. 2000). A defendant’s actions need not affect each class member in the same manner, and

 8   individual differences in damages will not defeat class treatment. Smith v. Univ. of Wash. Law

 9   Sch., 2 F. Supp. 2d 1324, 1342 (W.D. Wash. 1998) (Zilly, J.).
10               In Hanlon and Chamberlan, the Ninth Circuit found commonality in product defect cases
11
     where questions of defectiveness, adequacy of warnings, and consumer protection violations
12
     predominated. See Chamberlan, 402 F.3d at 962, Hanlon, 150 F.3d at 1023. Similarly, here,
13
     Plaintiffs allege the following common legal issues: that the Xbox 360 console was defectively
14

15   designed due to Microsoft’s defective ODD specifications; that Microsoft failed to adequately

16   warn consumers of the defect; that Microsoft knew about its defective product and withheld that

17   information from consumers; that Microsoft violated the CPA, and that the Console Owner Class
18
     is entitled to repair damages under Microsoft’s express warranty. For the Damaged Disc
19
     Subclass, Plaintiffs allege one additional common factual and legal issue: that the class
20
     members’ discs have been scratched and rendered unplayable by the Xbox 360 console, in
21
     violation of the Washington CPA and the WPLA. These issues are more than sufficient to
22
                                                           16
23   satisfy the requirements of Rule 23(a)(2).

24
     16
25         Insofar as Washington law requires privity between buyers and remote sellers in order to assert claims based on
          implied warranties of merchantability and fitness for a particular purpose, see, e.g., Tex. Enters., Inc. v. Brockway
26        Standard, Inc., 110 Wn. App. 197, 39 P.3d 362 (2002), rev’d on other grounds, 149 Wn. 2d 204, 66 P.3d 625
          (2003), Plaintiffs are not seeking to certify a class on the cause of action for breach of implied warranties set forth
          in the Amended Consolidated Complaint.
                                                                                                    LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                                   KELLER ROHRBACK            L.L.P.
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     Attachment - Page 26
 1            There are also numerous common questions of fact at the heart of each class members’
 2   claims, all of which focus squarely on Microsoft’s product specification, design and conduct.
 3
     These include whether the ODD design for the Xbox 360 is defective, whether Microsoft’s
 4
     purported warnings to the class of potential disc damage from movement of the console were
 5
     sufficient, and whether the defect in the ODD design for the Xbox 360 can be economically
 6

 7   remediated. Because Microsoft acted in the same manner on each of these issues with respect to

 8   every member of the class, a determination of these factual issues will resolve all class claims.

 9            3.     The Class Representatives’ Claims Are Typical of the Classes.
10            Rule 23(a)(3) is satisfied where “the claims or defenses of the representative parties are
11
     typical of the claims or defenses of the class.” As with commonality, typicality is liberally
12
     construed. Hanlon, 150 F.3d at 1020. Typicality’s purpose is to assure that the named
13
     representatives’ interests align with those of the class. Mortimore, 197 F.R.D. at 437. Instead of
14
     requiring absolute or substantial uniformity of claims, typicality requires only that named
15

16   plaintiffs demonstrate that their factual circumstances or underlying legal theories are reasonably

17   aligned or coextensive with the class members’ interests. Dukes, 509 F.3d at 1184; Hanlon, 150
18   F.3d at 1020. Applying these standards, courts generally find the typicality requirement to be
19
     satisfied if the claims arise from the same or similar injury, the action is based on conduct that is
20
     not unique to the named plaintiffs, and other class members have been injured by the same or
21
     similar course of conduct. Hanson v. Ticket Track, Inc., 213 F.R.D. 412, 415 (W.D. Wash.
22

23   2003).

24            Under Rule 23(a)(3), it is not necessary that all class members suffer the same injury as

25   the class representative. Lozano v. AT&T Wireless Servs., Inc., 504 F.3d 718, 734 (9th Cir.
26   2007). As the Ninth Circuit has noted, “[t]he amount of damages is invariably an individual

                                                                                   LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                   KELLER ROHRBACK           L.L.P.
     APPLICATION OF WASHINGTON LAW                                          1201 THIRD AVENUE, SUITE 3200
                                                                           SEATTLE, W ASHINGTON 98101-3052
     (Master Cause No. 07-cv-1121-JCC) Page - 16                             TELEPHONE: (206) 623-1900
                                                                             FACSIMILE: (206) 623-3384

     Attachment - Page 27
 1   question and does not defeat class action treatment.” Blackie v. Barrack, 524 F.2d 891, 905 (9th
 2   Cir. 1975).
                      17
                           Typicality can be shown even where factual variations exist between the claims of
 3
     the named representative and the other class members. Smith, 2 F. Supp. 2d at 1342.
 4
                 Here, both the Plaintiffs’ claims and the putative class members’ claims arise from the
 5
     same conduct: Microsoft’s design, manufacture and distribution of defective Xbox 360 consoles
 6

 7   in violation of the CPA. The Console Owners Class is comprised of all owners of Xbox 360

 8   consoles. Each Xbox 360 console has a comparable defect, all subject to the same Microsoft

 9   warranty for repair. See Hanlon, 150 F.3d at 1022-23 (common issues relate to warranty claims
10
     in product defect case). All of the class members’ warranty claims are governed by Washington
11
     law. Derry Dec. Ex. 3 at 8 § H (“the laws of the State of Washington, U.S.A., will apply to this
12
     Limited Warranty”). Typicality is satisfied for this class.
13
                 Likewise, the Damaged Disc Subclass is comprised of owners of Xbox 360 consoles
14

15   whose discs have been irreparably scratched by contact with the OPU. Each member of the Disc

16   Subclass, which includes all of the class representatives, were commonly injured by the
17   console’s defective design and its lack of tolerance for any movement, swiveling, or tilting in
18
     normally anticipated consumer use.
19
                 4.         Plaintiffs Will Fairly and Adequately Protect the Interests of the Class.
20
                 Rule 23(a)(4) requires a showing that “the representative parties will fairly and
21
     adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). This requirement is
22

23   grounded in constitutional due process concerns. “[A]bsent class members must be afforded

24   adequate representation before entry of a judgment which binds them.” Hanlon, 150 F.3d at

25
     17
26        See also Mortimore, 197 F.R.D. at 436 (Coughenour, J.) (“The ‘overwhelming weight of authority’ holds that the
          need for individual damages calculations does not diminish the appropriateness of class action certification where
          common questions as to liability predominate”) (internal citation omitted).
                                                                                                LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                                KELLER ROHRBACK           L.L.P.
     APPLICATION OF WASHINGTON LAW                                                       1201 THIRD AVENUE, SUITE 3200
                                                                                        SEATTLE, W ASHINGTON 98101-3052
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                                                                                           FACSIMILE: (206) 623-3384

     Attachment - Page 28
 1   1020. The court must resolve two questions: “(1) do the named plaintiffs and their counsel have
 2   any conflicts of interest with other class members and (2) will the named plaintiffs and their
 3
     counsel prosecute the action vigorously on behalf of the class?” Id. (citing Lerwill v. Inflight
 4
     Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978)). Both of these elements are met here.
 5
                Plaintiffs bring the same claims for similar remedies under the same legal theories as the
 6

 7   other members of the class. There are no actual or potential conflicts of interest between the

 8   Plaintiffs and the class members. Plaintiffs and the putative class members have been injured in

 9   the same manner by Microsoft and seek identical forms of relief. The representative Plaintiffs
10   understand and are prepared to fulfill their duties to the Classes. See Pltfs. Decs. Accordingly,
11
     the interests of the representative Plaintiffs and the Class members in recovering their damages
12
     are well aligned.
13
                Plaintiffs have also retained adequate counsel. Under Rule 23(g), a court certifying a
14

15   class must appoint class counsel. Fed. R. Civ. P. 23(g)(1). Rule 23(g)(1)(A) provides that the

16   court “must consider: (i) the work counsel has done in identifying or investigating potential

17   claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation,
18
     and claims of the type asserted in the action; (iii) counsel’s knowledge of the applicable law; and
19
     (iv) the resources counsel will commit to representing the class.”
20
                Plaintiffs have retained highly capable counsel with extensive experience in prosecuting
21
     class actions on behalf of consumers throughout the United States. Plaintiffs’ counsel are
22
                                                                                                         18
23   capable of, and committed to, prosecuting this action vigorously on behalf of the Class.                  The

24   Court previously appointed counsel as Interim Class Counsel in this matter. See Dkt. 27 (Oct. 9,
25
     18
26        The resumes of Stritmatter Kessler Whelan Coluccio; The Kopelowitz Ostrow Firm, P.A.; Chitwood Harley
          Harnes LLP; Kabateck Brown Kellner LLP; Keller Rohrback LLP; Krause Kalfayan Benink & Slavens, LLP; and
          Wasserman, Comden & Casselman are attached to the Derry Dec. as Exs. 16 – 22.
                                                                                        LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                        KELLER ROHRBACK           L.L.P.
     APPLICATION OF WASHINGTON LAW                                               1201 THIRD AVENUE, SUITE 3200
                                                                                SEATTLE, W ASHINGTON 98101-3052
     (Master Cause No. 07-cv-1121-JCC) Page - 18                                   TELEPHONE: (206) 623-1900
                                                                                   FACSIMILE: (206) 623-3384

     Attachment - Page 29
               19
 1   2007).         Plaintiffs’ counsel has already demonstrated their competency by collaborating in
 2   drafting the consolidated complaint and pursuing extensive document discovery. Plaintiffs’
 3
     counsel have taken the depositions of several Microsoft witnesses, and are collaborating
 4
     efficiently in prosecuting this action. These firms have devoted considerable attorney resources
 5
     to this case, will continue to devote all necessary resources to prosecuting this matter, and
 6

 7   possess the resources necessary to adequately represent the proposed Classes.

 8   C.          Plaintiffs’ Claims Should Be Certified Pursuant to Rule 23(b)(3).

 9               After all four prerequisites of Rule 23(a) are satisfied, a court must determine whether to
10   certify the class under one of the three subsections of Rule 23(b). Plaintiffs seek certification
11
     under Rule 23(b)(3), which permits certification where “the court finds that the questions of law
12
     or fact common to the members of the class predominate over any questions affecting only
13
     individual members, and that a class action is superior to other available methods for the fair and
14

15   efficient adjudication of the controversy.” Both criteria are met here.

16               1.       Common Issues Predominate.

17               The focus of the “predominance” inquiry is on the relationship between – as well as the
18   relative importance of – common and individual issues. Local Joint Executive Bd. of
19
     Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1162 (9th Cir. 2001).
20
     When common questions present a significant aspect of the case and they can be resolved for all
21
     members of the class in a single adjudication, handling the dispute on a representative rather than
22

23   on an individual basis is preferred. Hanlon, 150 F.3d at 1022. “Implicit in the…predominance

24   test is the notion that the adjudication of common issues will help achieve judicial economy.”

25   Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996).
26   19
          An additional firm, Lee & Amtzis, P.L., was admitted pro hac vice to represent Plaintiffs on Nov. 7, 2007 (Dkt.
          34), and also seeks appointment as Class Counsel. See Derry Dec. Ex. 23 (Lee & Amtzis, P.L. firm resume).
                                                                                               LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                               KELLER ROHRBACK           L.L.P.
     APPLICATION OF WASHINGTON LAW                                                      1201 THIRD AVENUE, SUITE 3200
                                                                                       SEATTLE, W ASHINGTON 98101-3052
     (Master Cause No. 07-cv-1121-JCC) Page - 19                                          TELEPHONE: (206) 623-1900
                                                                                          FACSIMILE: (206) 623-3384

     Attachment - Page 30
 1               Predominance of common issues does not mean, however, that there can be no individual
 2   issues. Hanlon, 150 F.3d at 1022-23. Nor does it mean that common questions alone must
 3
     completely dispose of the litigation. 7AA Charles Alan Wright, Arthur R. Miller & Mary Kay
 4
     Kane, Federal Practice and Procedure § 1778 at 123-24 (3d ed. 2005)
 5
                 Here, common questions of law and fact predominate over any individual issues. There
 6

 7   are well-defined issues: whether the design and manufacture of the Xbox 360 was reasonably

 8   safe for its intended use and whether or not adequate warnings were given to consumers. The

 9   design and manufacture of all Xbox 360s is defective in the same way. To the extent Microsoft
10                                                                                                        20
     claims that it provided notice of the defect, these notices were uniformly provided.
11
                 Further, “[i]n determining whether a product was not reasonably safe under this section,
12
     the trier of fact shall consider whether the product was unsafe to an extent beyond that which
13
     would be contemplated by the ordinary consumer.” RCW 7.72.030(3) (emphasis added). Thus,
14

15   the issue of whether the product was defective is based on the ordinary person standard, a

16   standard that does not require any individual adjudication.
17               With respect to the Console Owners Class, the common issues are: (a) whether the Xbox
18
     360 console is defectively designed; (b) whether the Xbox 360’s defective design constitutes a
19
     breach of Microsoft’s express warranty; and (c) whether the class is entitled to damages for the
20
     cost of repairing the Xbox 360 console. Again, all of these issues constitute common issues of
21

22   fact and law that predominate over any individual issues. See Hanlon, 150 F.3d at 1022-23.

23               With respect to the Damaged Disc Subclass, Microsoft specifically concedes that the

24   Xbox 360 can scratch discs. See Sidman Dec. ¶ 12 & exhibits cited therein. Microsoft’s liability
25   20
          At an unidentified date after launching the Xbox 360, Microsoft placed a removable sticker advising users not to
26        move the console “with disc in tray.” For purposes of this motion only, and because we believe that Microsoft’s
          sticker will be determined to be inadequate as a matter of law, we will concede that all Xbox 360s sold in the
          United States had such a sticker although this was demonstrably not the case.
                                                                                               LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                               KELLER ROHRBACK           L.L.P.
     APPLICATION OF WASHINGTON LAW                                                      1201 THIRD AVENUE, SUITE 3200
                                                                                       SEATTLE, W ASHINGTON 98101-3052
     (Master Cause No. 07-cv-1121-JCC) Page - 20                                          TELEPHONE: (206) 623-1900
                                                                                          FACSIMILE: (206) 623-3384

     Attachment - Page 31
 1   will be based upon the WPLA, RCW 7.72. The pertinent issues here will be: (a) was the Xbox
 2   360 not reasonably safe as designed; or (b) was the Xbox 360 not reasonably safe due to
 3
     inadequate warnings; and (c) did defendant’s negligence proximately cause Plaintiffs’ and the
 4
     class members’ damages.
 5
            The issue of the Xbox 360’s design is a one-time analysis that is not dependent on
 6

 7   individual issues. Rather, this Court will examine Microsoft’s uniform warnings – to the extent

 8   any were given – to determine whether they were adequate in light of the console’s defective

 9   design. Finally, the legal question of whether Microsoft’s negligence proximately caused
10   Plaintiffs’ and the class members’ damages can be answered without inquiry into each individual
11
     class member’s activities. Indeed, Plaintiffs’ expert will opine that the deep circular gouge
12
     caused by the defective design (resulting from the wobbling of the game disc) is a signature
13
     damage incurred by all members of the Damaged Disc Subclass. All of these issues constitute
14

15   common issues of fact and law that predominate over any individual issues.

16          Microsoft’s liability to the Damaged Disc Subclass will also be based upon the

17   Washington CPA, RCW 19.86. To prevail on a CPA claim, the plaintiff must show (1) an unfair
18
     or deceptive act or practice, (2) that occurs in trade or commerce, (3) a public interest, (4) injury
19
     to the plaintiff in his or her business or property, and (5) a causal link between the unfair or
20
     deceptive act and the injury suffered. Indoor Billboard/Wash., Inc. v. Integra Telecom of Wash.,
21
     Inc., 162 Wn.2d 59, 74, 170 P.3d 10 (2007). A plaintiff must satisfy all five elements to prevail.
22

23   Id. Here, whether Microsoft’s sale of the defectively designed Xbox 360 constituted an unfair or

24   deceptive act or practice, whether such sales occurred in trade or commerce, whether the sale of
25   Xbox 360s impacts the public interest, and whether the class was damaged by buying an
26
     inherently and deceptively defective product are all inquiries free from any individual issues.

                                                                                   LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                   KELLER ROHRBACK           L.L.P.
     APPLICATION OF WASHINGTON LAW                                          1201 THIRD AVENUE, SUITE 3200
                                                                           SEATTLE, W ASHINGTON 98101-3052
     (Master Cause No. 07-cv-1121-JCC) Page - 21                             TELEPHONE: (206) 623-1900
                                                                             FACSIMILE: (206) 623-3384

     Attachment - Page 32
 1   The issue to be decided is whether the Console Owners Class – simply as buyers of the defective
 2   Xbox 360 – received what they bargained for.
 3
                 Likewise, questions of injury to property of the Damaged Disc Subclass and causation are
 4
     common questions that predominate over individual issues where, as here, there is a common set
 5
     of operative facts that will establish liability and “computing individual damages will be virtually
 6

 7   a mechanical task.” Pickett v. Holland Am. Line-Westours, Inc., 101 Wn. App. 901, 920-21, 6

 8   P.3d 63 (2000), rev’d on other grounds, 145 Wn. 2d 178, 35 P.3d 351.

 9               Plaintiffs anticipate Microsoft will challenge predominance based on individual inquiries
10   to determine the console movement involved in scratching game discs. However, Plaintiffs
11
     anticipate that it will also be undisputed that the Xbox 360 console creates a concentric gouge in
12
     game discs when it is tilted between the vertical and horizontal positions, or swiveled along the
13
     central axis when the console is in a vertical position. Accordingly, because Plaintiffs’ expert
14

15   will opine that these rotations are within the normal expected use of the product, and that such

16   rotations cause the complained-of circular gouge in the game discs, the precise manner in which

17   the injury occurs is a “red herring” issue for purposes of this class action. Sidman Dec. ¶ 18.
18
     The only relevant issue for the Damaged Disc Subclass is whether their game discs manifest the
19
     circular gouge which (as Plaintiffs’ expert opines) can only be caused by the Xbox 360 console’s
20
                            21
     defective design.
21

22   21
           A recent case in the Central District of California wherein the court denied class certification illustrates why
23        individual issues do not predominate here. In Gable v. Land Rover North America, Inc., No. 07-0376, 2008 WL
          4441960 (C.D. Cal. Sept. 29, 2008), plaintiff alleged that Land Rover’s LR3 model had a manufacturing defect
24        that misaligned the tires, causing them to wear out too quickly as well as creating “an extremely rough ride” and
          “excessive noise.” Id. at *1. The proposed class was “all current and former owners and lessees of 2004, 2005,
25        and 2006 LR3s purchased or leased in the state of Michigan.” Id. (alteration omitted). The district court denied
          class certification on the ground that only a fraction of the proposed class’s members had actually experienced the
26        defect and because misalignment could have many different causes. Id. at *3-4. Here, in contrast, the design
          defect appears in every Xbox 360 console sold and the injury linked to the defect – the distinctive deep circular
          gouges in game discs – can plausibly come from only one cause: the defective Xbox 360 ODD design.
                                                                                                 LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                                KELLER ROHRBACK            L.L.P.
     APPLICATION OF WASHINGTON LAW                                                        1201 THIRD AVENUE, SUITE 3200
                                                                                         SEATTLE, W ASHINGTON 98101-3052
     (Master Cause No. 07-cv-1121-JCC) Page - 22                                           TELEPHONE: (206) 623-1900
                                                                                           FACSIMILE: (206) 623-3384

     Attachment - Page 33
 1             Because the Xbox 360 causes distinctive damage to game discs, the Damaged Disc
 2   Subclass can be easily ascertained and individual issues of liability, causation and damage do not
 3
     predominate. Individual questions of damages are no barrier to class certification if “computing
 4
     individual damages will be virtually a mechanical task,” Blackie, 524 F.2d at 905, or if damages
 5
     are “capable of mathematical or formula calculation.” Windham v. Am. Brands, Inc., 565 F.2d
 6

 7   59, 68 (4th Cir. 1977). The court in Connor v. Automated Accounts, Inc., 202 F.R.D. 265, 271

 8   (E.D. Wash. 2001), held that “conducting a ministerial review of [defendant’s] records…do[es]

 9   not overwhelm the common central legal question.” Here, determination of damages for each
10   plaintiff involves the ministerial task of calculating how many discs were damaged and
11
     multiplying by a replacement cost. Plaintiffs’ claims thus satisfy the predominance requirement.
12
               2.     Class Adjudication is a Superior Method of Resolving These Claims.
13
               Rule 23(b)(3) also requires that class resolution must be “superior to other available
14
     methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). The
15

16   superiority inquiry involves determining whether the objectives of the class-action procedure

17   will be achieved in the particular case and comparing alternative mechanisms of dispute
18   resolution. Hanlon, 150 F.3d at 1022. Superiority is demonstrated where “class litigation of
19
     common issues will reduce litigation costs and promote greater efficiency.” Connor, 202 F.R.D.
20
     at 271.
21
               Rule 23(b)(3) identifies four factors pertinent to the superiority inquiry: (1) the interest of
22

23   members of the class in individually controlling the prosecution or defense of separate actions;

24   (2) the extent and nature of any litigation concerning the controversy already commenced by or

25   against members of the class; (3) the desirability or undesirability of concentrating the litigation
26

                                                                                     LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                     KELLER ROHRBACK           L.L.P.
     APPLICATION OF WASHINGTON LAW                                            1201 THIRD AVENUE, SUITE 3200
                                                                             SEATTLE, W ASHINGTON 98101-3052
     (Master Cause No. 07-cv-1121-JCC) Page - 23                                TELEPHONE: (206) 623-1900
                                                                                FACSIMILE: (206) 623-3384

     Attachment - Page 34
 1   of the claims in the particular forum; and (4) the difficulties likely to be encountered in the
 2   management of a class action.
 3
            Here, class certification will promote judicial efficiency because common claims and
 4
     issues will be tried once with a binding effect on all parties. Importantly, putative class members
 5
     have no interest in, nor can they afford, individually prosecuting their claims against Microsoft.
 6

 7   Indeed, to the best of counsel’s knowledge and awareness, not a single individual action has been

 8   instituted against Microsoft arising from the facts underlying this action. The unequal economic

 9   power of class members compared to Microsoft further weighs against raising these issues
10   through individual suits. See Culinary/Bartender Trust Fund, 244 F.3d at 1163.
11
            As to manageability, any such problems must be factual, unavoidable obstacles to the
12
     litigation before they can be considered obstacles to class certification. See Ballard v. Equifax
13
     Check Servs., 186 F.R.D. 589, 600 (E.D. Cal. 1999). There do not appear to be any such
14

15   problems here, nor are any such problems likely to arise given the predominance of common

16   legal and factual issues. Moreover, any case-management problems that may arise upon

17   certification of the class must be compared to the alternatives, i.e., potentially thousands of
18
     actions by individual class members. See Culinary/Bartender Trust Fund, 244 F.3d at 1163.
19
            If class members were required to proceed with separate actions, this litigation would be
20
     unwieldy and unmanageable. Viewed from this perspective, class treatment of Plaintiffs’ claims
21
     is the most efficient and equitable method for resolving the parties’ disputes. Dukes, 509 F.3d at
22

23   1193 (no abuse of discretion to conclude that litigating claims in a single lawsuit is superior to

24   “clogging the federal courts with innumerable individual suits litigating the same issues
25   repeatedly”). Indeed, this consolidated action is itself the result of five separate suits,
26
     demonstrating the need for coordinated and efficient litigation of these claims.

                                                                                    LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                   KELLER ROHRBACK            L.L.P.
     APPLICATION OF WASHINGTON LAW                                           1201 THIRD AVENUE, SUITE 3200
                                                                            SEATTLE, W ASHINGTON 98101-3052
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                                                                              FACSIMILE: (206) 623-3384

     Attachment - Page 35
 1               Because individual litigation of each claim would be highly inefficient and impracticable
 2   and because of the commonality of all claims, a class action is the superior means for
 3
     adjudicating this action. See Epstein v. MCA, Inc., 50 F.3d 644, 668 (9th Cir. 1995) (reversing
 4
     denial of class certification; class action was superior to other methods because otherwise
 5
     thousands of identical complaints would have to be filed), rev’d on other grounds, 516 U.S. 367
 6

 7   (1996). The class-action device is superior to and more manageable than any other procedure

 8   available for treating the factual and legal issues raised by Plaintiffs’ claims.

 9   D.          Choice of Law Issues Do Not Prevent Certification.
10               Variations in state law can affect the Court’s analysis of predominance and superiority
11
     under Fed. R. Civ. P. 23. See Castano v. Am. Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996).
12
     Although some courts in putative nationwide consumer class actions have determined that the
13
                                                                                                             22
     law of the state where each plaintiff resides and purchased the product should apply, other
14

15   federal courts have determined that choice of law issues do not raise individual issues that will

16   predominate if either the law of a single state may be applied to all class members’ claims or if

17   there is no conflict of law between the forum state and other states. See, e.g., Kelley, et al. v.
18   Microsoft Corp., 251 F.R.D. 544 (W.D. Wash. 2008) (Pechman, J.) (certifying nationwide class
19
     in case against Microsoft after finding that Washington CPA applied to all class member
20

21

22

23

24   22
           See, e.g., In re Gen. Motors Corp. Dex-Cool Prods. Liability Litig., 241 F.R.D. 305, 316-19 (S.D. Ill. 2007)
25        (determining that law of state where each plaintiff resides should apply to claims for breach of warranty); Chin v.
          Chrysler Corp., 182 F.R.D. 448, 457 (D.N.J. 1998) (deciding that law of each plaintiff’s home state should apply
26        to claims for fraud and breach of warranty); In re Ford Motor Co. Ignition Switch Prods. Liability Litig., 174
          F.R.D. 332, 347-48 (D.N.J. 1997) (holding that law of each plaintiff’s home state should apply to claims for fraud,
          breach of warranty, and other consumer-protection violations).
                                                                                                LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                                KELLER ROHRBACK            L.L.P.
     APPLICATION OF WASHINGTON LAW                                                       1201 THIRD AVENUE, SUITE 3200
                                                                                        SEATTLE, W ASHINGTON 98101-3052
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                                                                                           FACSIMILE: (206) 623-3384

     Attachment - Page 36
               23
 1   claims).       Here, a class may be certified because Washington law will apply to all class member
 2   claims.
 3
               1.       Washington Law Applies to Plaintiffs’ Tort Claims.
 4
               To determine whether Washington law applies to this class action, the Court must engage
 5
     in a two-part inquiry. The Court must first look to whether the application of Washington law is
 6
     constitutional, and if so, whether its application is appropriate under Washington’s choice of law
 7

 8   rules. Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985); Kelley, 251 F.R.D. at 549. Both of

 9   these elements are met, and the Court should apply Washington law to Plaintiffs’ claims.
10                      a.      Application of Washington Law is Constitutional.
11
               A forum state’s substantive law may be constitutionally applied in a class action if the
12
     forum state has “a ‘significant contact or significant aggregation of contacts’ to the claims
13
     asserted by each member of the plaintiff class,” such that the choice of the forum state’s law is
14
     neither arbitrary nor fundamentally unfair. Shutts, 472 U.S. at 821-22 (quoting Allstate Ins. Co.
15

16   v. Hague, 449 U.S. 302, 313 (1981)). The Constitution places only “modest restrictions” on the

17   application of forum law; it need only be “casually or slightly” related to the action. Id. at 818-
18   19.
19
               At least one court in this district has already found that Washington law may properly be
20                                                                                                    24
     applied to nationwide class actions against Microsoft. Kelley, 251 F.R.D. at 553.                     In Kelley,
21
     Judge Pechman specifically addressed whether Washington’s Consumer Protection Act (“CPA”)
22

23   23
         See also Dal Ponte v. Am. Mortg. Exp. Corp., No. 04-2152, 2006 WL 2403982 (D.N.J. Aug. 17, 2006) (certifying
24      nationwide class after finding that New Jersey consumer fraud statute applied in claims brought against New
        Jersey mortgage lender); Grove v. Principal Mut. Life Ins. Co., 14 F. Supp. 2d 1101 (S.D. Iowa 1998) (holding
25      that Iowa law applied to class action claims for fraud, negligence and breach of contract brought by Florida
        residents against Iowa insurer).
     24
26       Microsoft petitioned the Ninth Circuit for permission to appeal this ruling under Fed. R. Civ. P. 23(f). The
        petition was denied. See Slip Op., Kelley, et al. v. Microsoft Corp., No. 08-80030 (9th Cir. Apr. 21, 2008), Derry
        Dec. Ex. 24.
                                                                                              LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                             KELLER ROHRBACK            L.L.P.
     APPLICATION OF WASHINGTON LAW                                                    1201 THIRD AVENUE, SUITE 3200
                                                                                     SEATTLE, W ASHINGTON 98101-3052
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                                                                                        FACSIMILE: (206) 623-3384

     Attachment - Page 37
 1   could constitutionally be applied to a nationwide class of plaintiffs. 251 F.R.D. at 550. Judge
 2   Pechman recognized that Microsoft’s contacts with Washington were more than “casually or
 3
     slightly related to the action” because Microsoft had created its allegedly deceptive and unfair
 4
     marketing scheme in Washington; Microsoft was incorporated, did business, and was
 5
     headquartered in Washington; one of the named plaintiffs was a Washington resident; and the
 6

 7   contracts required litigation under Washington law. Id.

 8          Identical factors apply here, and this Court should also apply Washington law in this

 9   action. Microsoft is still headquartered in Redmond, and is still incorporated under the laws of
10   this state. Am. Compl. ¶ 3.7. In addition, one of the named plaintiffs, Justin Hanson, is a
11
     Washington resident. Id. ¶ 3.1.
12
            The Xbox 360 was designed and developed in Washington, and many, if not all, of the
13
     repair policies and procedures relating to the Xbox 360 were formulated in Washington. Umeno
14

15   Dep. 20:5-20; Garcia Dep. 33:6-18; 71:19-22; Park Dep. 238:20-22. The Xbox warranty terms

16   were developed in Washington. Park Dep. 238:20-22. The customer service policies were

17   formulated and developed in Washington. Park Dep. 60:21-61:5. All of the testing protocols
18
     and requirements for the Xbox 360 that Microsoft implemented were developed in Washington.
19
     Umeno Dep. 17:14-19:19; 39:12-15. Even the portion of Xbox 360 testing that occurred outside
20
     of Washington followed protocols laid out by Microsoft employees in Redmond. Id. at 22:22-
21
     23:1. Just as in Kelley, here Microsoft’s contacts with Washington are more than “casually or
22

23   slightly related to the litigation.” See Shutts, 472 U.S. at 819.

24          Further, Washington state courts have routinely held that Washington law may be applied
25   to nationwide class actions involving Washington companies. In Schnall v. AT&T Wireless
26
     Servs., Inc., 139 Wn. App. 280, 294, 161 P.3d 395 (2007), plaintiffs brought a nationwide class

                                                                                 LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                  KELLER ROHRBACK          L.L.P.
     APPLICATION OF WASHINGTON LAW                                        1201 THIRD AVENUE, SUITE 3200
                                                                         SEATTLE, W ASHINGTON 98101-3052
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                                                                           FACSIMILE: (206) 623-3384

     Attachment - Page 38
 1   action against AT&T alleging violations under Washington’s CPA for misrepresenting a user
 2   fee. The court found that the CPA applied to all class members because the injury-causing
 3
     conduct occurred in Washington. Id. AT&T argued that the court should apply the law of each
 4
     state where a consumer made a purchase and was deceived. The Court of Appeals rejected this
 5
     argument, finding that the most significant relationships were in Washington based on AT&T’s
 6

 7   Washington activities and because “most importantly, as a Washington business, AT&T is
                                                         25
 8   subject to Washington law.” Id. at 293-94.

 9              Microsoft’s contacts with Washington are as great, if not greater, than those of other
10
     companies whose conduct has been held subject to Washington law. Unlike AT&T, Microsoft is
11
     both headquartered and incorporated in Washington, and Microsoft has affirmatively selected
12
     Washington law in the Xbox 360 warranty to govern Plaintiffs’ breach of warranty claims.
13
     Derry Dec. Ex. 3, § H. Washington has significant contacts with the parties and claims in this
14

15   action such that its substantive laws may and should be applied.

16                       b.       Choice of Law Analysis Supports the Application of Washington Law.
17              “Federal courts sitting in diversity must apply ‘the forum state’s choice of law rules to
18   determine the controlling substantive law.’” Fields v. Legacy Health Sys., 413 F.3d 943, 950
19
     (9th Cir. 2005) (quoting Patton v. Cox, 276 F.3d 493, 495 (9th Cir. 2002)). As this diversity suit
20
     was brought in the Western District of Washington, Washington’s choice of law rules apply.
21
                Under Washington law, Microsoft has the burden of demonstrating an actual conflict
22

23   between Washington and other applicable state laws. Burnside v. Simpson Paper Co., 123

24   Wn.2d 93, 103-04, 864 P.2d 937 (1994). If Microsoft cannot show an actual conflict,

25
     25
26        See also Pickett, 101 Wn. App. at 910 (holding Washington CPA applied to class claims for nationwide action
          brought under Washington CPA against Washington company marketing uniform contract with a choice of law
          clause selecting Washington law).
                                                                                             LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                             KELLER ROHRBACK           L.L.P.
     APPLICATION OF WASHINGTON LAW                                                    1201 THIRD AVENUE, SUITE 3200
                                                                                     SEATTLE, W ASHINGTON 98101-3052
     (Master Cause No. 07-cv-1121-JCC) Page - 28                                        TELEPHONE: (206) 623-1900
                                                                                        FACSIMILE: (206) 623-3384

     Attachment - Page 39
 1   Washington law applies. Assuming it can demonstrate a conflict, Washington has adopted the
 2   “most significant relationship” test for determining choice of law outcomes. See, e.g., Johnson v.
 3
     Spider Staging Corp., 87 Wn.2d 577, 555 P.2d 997 (1976). “Under this approach, the rights and
 4
     liabilities of the parties are determined by the local law of the state which, with respect to that
 5
     issue, has the most significant relationship to the occurrence and the parties.” Zenaida-Garcia v.
 6

 7   Recovery Sys. Tech., Inc., 128 Wn. App. 256, 260, 115 P.3d 1017 (2005).

 8          Washington applies a two-step analysis to determine which state’s law should apply to a

 9   specific issue. First, the court evaluates the contacts with each potentially interested state. Id.
10   Then, only if the states’ contacts are evenly balanced, will the court engage in the second step,
11
     which is an “evaluation of the interests and public policies of the concerned states, to determine
12
     which state has a greater interest in determination of the particular issue.” Id. at 260-61.
13
            In evaluating the competing states’ contacts under the first prong, Washington courts
14

15   consider: (1) where the injury occurred; (2) where the conduct causing the injury occurred; (3)

16   the domicile, residence, nationality, place of incorporation and place of business of the parties;

17   and (4) where the relationship, if any, between the parties is centered. Id. at 260; Schnall, 139
18
     Wn. App. at 293; Restatement (Second) of Conflict of Laws (“Restatement”) § 145(2) (1971).
19
     The court should not engage in merely counting contacts, but instead should focus on the most
20
     significant and where those contacts are found. Johnson, 87 Wn.2d at 581. Here, these factors
21
     weigh steeply in favor of applying the Washington CPA and the WPLA to Plaintiffs’ claims.
22

23                          (i)     Where the Injury Occurred

24          One factor to consider in determining which state’s law should apply is where the injury

25   occurs. However, several courts have recognized that the state where the injury occurs is not
26   entitled to substantial weight in a class action context or a consumer protection case. Kelley, 251

                                                                                   LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                   KELLER ROHRBACK           L.L.P.
     APPLICATION OF WASHINGTON LAW                                          1201 THIRD AVENUE, SUITE 3200
                                                                           SEATTLE, W ASHINGTON 98101-3052
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                                                                              FACSIMILE: (206) 623-3384

     Attachment - Page 40
 1   F.R.D. at 552; Schnall, 139 Wn. App. 402-03. In Kelley, the Court, relying on Restatement §
 2   145 cmt. e, recognized that:
 3
            The place of injury is of lower importance in a case of deceptive trade practices or
 4          misrepresentation. The Restatement suggests that “when the place of injury can be
            said to be fortuitous . . . as in the case of fraud and misrepresentation ... there may
 5          be little reason in logic or persuasiveness to say that one state rather than another
            is the place of injury . . . .” In such a case, the state in which the fraudulent
 6          conduct arises has a stronger relationship to the action. Where the defendant’s
 7          conduct causes harm in two or more states, the “place where the defendant’s
            conduct occurred will usually be given particular weight in determining the state
 8          of the applicable law.” Here, the Defendant’s allegedly unfair or deceptive
            acts caused injury throughout the country. The location of the harm suffered
 9          is fortuitous.
10   251 F.R.D. at 552 (emphasis added) (internal citations omitted). Likewise, in Schnall, the court
11
     found that the CPA applied to all members of the nationwide class because the injury-causing
12
     conduct occurred in Washington. 139 Wn. App. at 294. In so finding, the court rejected
13
     AT&T’s argument that the laws of the plaintiffs’ home states should apply because they were
14
     more numerous and because that is where the plaintiffs’ injuries occurred. Id. at 293-94.
15

16          The proposed class includes plaintiffs nationwide, and the named Plaintiffs reside in

17   Washington, California, and Pennsylvania, rendering the location where the injury occurred of
18   less import than the other choice of law factors. See Kelley, 251 F.R.D. at 552; Restatement §
19
     145, cmt. e. Furthermore, the Xbox 360 was distributed nationwide, and Microsoft’s policies
20
     were applied evenly to consumers throughout the United States. Park Dep. 26:9-19; 34:14-35:3;
21
     51:13-52:16; 203:24-204:1. All plaintiffs suffer the same injury, regardless of their residence.
22

23   The place of injury is fortuitous. Washington should apply its own laws to Plaintiffs’ claims.

24                          (ii)    Where the Conduct Causing the Injury Occurred

25          “In a products liability action, the ‘place where the conduct causing the injury occurred’
26   is the place where the defendant designed, manufactured, or was otherwise involved with the

                                                                                  LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                  KELLER ROHRBACK           L.L.P.
     APPLICATION OF WASHINGTON LAW                                         1201 THIRD AVENUE, SUITE 3200
                                                                          SEATTLE, W ASHINGTON 98101-3052
     (Master Cause No. 07-cv-1121-JCC) Page - 30                             TELEPHONE: (206) 623-1900
                                                                             FACSIMILE: (206) 623-3384

     Attachment - Page 41
 1   product in question.” Brewer v. Dodson Aviation, 447 F. Supp. 2d 1166, 1179 (W.D. Wash.
 2   2006) (Zilly, J.). As the Court noted in Zenaida-Garcia, “the defendant is a Washington
 3
     corporation engaged in designing and manufacturing trommels in Washington; the cause of
 4
     action is negligent and unsafe design of the trommel. Thus, the conduct causing the injury, and
 5
     the place where the relationship is centered, is Washington.” 128 Wn. App. at 263.
 6

 7          In a CPA case, the state where the conduct causing the injury occurred is the state where

 8   the defendant developed the allegedly deceptive representations. Kelley, 251 F.R.D. at 552.

 9   Moreover, where the place of injury is fortuitous (as it is here), the court should give greater
10   weight to the location of the source of the injury. Id., at 553; Restatement § 145, cmt. e.
11
            Microsoft’s design team was located in Washington, Microsoft developed the Xbox 360
12
     in Washington, and Microsoft produced the unfair and deceptive customer service and repair
13
     protocols for the Xbox 360 in Washington. Umeno Dep. 20:5-20; Garcia Dep. 33:6-18; 71:19-
14

15   22; Park Dep. 238:20-22. Microsoft was aware that the Xbox 360 had the potential to scratch

16   discs prior to launching the Xbox 360. Despite this, Microsoft did not adequately warn

17   consumers that there was a design defect inherent in the Xbox 360 that caused its ODD to
18
     scratch discs. Thus, the conduct causing the injury occurred in Washington. This factor favors
19
     application of Washington law.
20
                            (iii)   The Residence or Domicile of the Parties
21
            The third factor that the Court should analyze is the residence, place of incorporation, and
22

23   place of business of the parties. Johnson, 87 Wn.2d at 581. Microsoft is incorporated and

24   headquartered in Washington. Am. Compl. ¶ 3.7; Kelley, 251 F.R.D. at 550. In fact, as the

25   Kelley court noted, “Washington has a unique and substantial relationship with [Microsoft], one
26   of Washington’s largest corporate citizens.” Id. at 553. Plaintiff and proposed class

                                                                                  LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                  KELLER ROHRBACK           L.L.P.
     APPLICATION OF WASHINGTON LAW                                         1201 THIRD AVENUE, SUITE 3200
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                                                                             FACSIMILE: (206) 623-3384

     Attachment - Page 42
 1   representative Hanson also resides in Washington. Am. Compl. (Dkt. 45) ¶ 3.1. The proposed
 2   class will undoubtedly include thousands of additional residents of Washington. The fact that
 3
     Microsoft, one of Washington’s largest businesses, and one of the named plaintiffs, are
 4
     domiciled in Washington indicates that Washington has the most significant contacts with this
 5
                                                                                       26
     litigation. Kelley, 251 F.R.D. at 552; Schnall, 139 Wn. App. at 294.
 6

 7                                (iv)     Where the Parties’ Relationship Is Centered

 8              The court must also look at where the relationship, if any, between the parties is centered.

 9   Johnson, 87 Wn.2d at 580-81. In a product liability action, “the place where the relationship is
10   centered is the same as the place where the conduct causing the injury occurred.” Brewer, 447 F.
11
     Supp. 2d at 1179-80 (citing Zenaida-Garcia, 128 Wn. App. at 263). Plaintiffs’ claims under the
12
     CPA are likewise centered in Washington, if anywhere. See Kelley, 251 F.R.D. at 552; see also
13
     Schnall, 139 Wn. App. at 294.
14

15              Here, Microsoft developed the Xbox 360 in Washington, and Microsoft’s customer

16   service policies relating to the Xbox 360, scratched discs, and the disc replacement program are

17   all based in Washington. Park Dep. 60:21-61:5. These policies and programs were deceptive
18   and unfair because they failed to inform Microsoft’s consumers that the Xbox 360 could
19
     potentially damage consumers’ game discs during normal, expected use, despite the fact that
20
     Microsoft was aware during the development of the Xbox 360 console that this was both
21
     foreseeable and likely. Thus, Washington is the state where the parties’ relationship is centered.
22

23

24

25   26
          Indeed, the Washington Attorney General Consumer Protection Division has been forced to intervene against
26        Microsoft on numerous occasions on behalf of Xbox 360 game disc owners throughout the United States whose
          discs have been rendered unplayable by the Xbox 360 defective design which has scratched their discs. See Derry
          Dec. Ex. 25 (attaching complaints and related correspondence).
                                                                                              LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                             KELLER ROHRBACK            L.L.P.
     APPLICATION OF WASHINGTON LAW                                                     1201 THIRD AVENUE, SUITE 3200
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                                                                                        FACSIMILE: (206) 623-3384

     Attachment - Page 43
 1          2.      Application of Restatement Section 148 Does Not Alter This Analysis.
 2          Microsoft may argue, as it did in Kelley, that the Court should ignore the factors set out in
 3   Section 145 of the Restatement, and instead focus solely on the factors set out in § 148 to
 4
     determine which state’s law should govern Plaintiffs’ consumer protection claim. See 251
 5
     F.R.D. at 551. Section 148, which applies to claims of fraud and misrepresentation, directs the
 6
     court to consider several factors in addition to those laid out in § 145, including:
 7

 8          a) the place, or places, where the plaintiff acted in reliance upon the defendant’s
            representations,
 9          b) the place where the plaintiff received the representations,
10          c) the place where the defendant made the representations,
11          d) the domicil[e], residence, nationality, place of incorporation and place of
            business of the parties,
12
            e) the place where a tangible thing which is the subject of the transaction between
13          the parties was situated at the time, and
            f) the place where the plaintiff is to render performance under a contract which he
14
            has been induced to enter by the false representations of the defendant.
15   Id. at 552; Restatement § 148(2). However, as Microsoft itself recognized in Kelley, “the
16   outcome is the same” under both §§ 145 and 148 of the Restatement. 251 F.R.D. at 551.
17
            Because the Washington CPA does not require Plaintiffs to prove reliance, see Indoor
18
     Billboard, 162 Wn.2d at 80-83, the first factor of §148 is of little import. Further, while
19
     Plaintiffs received and relied on Microsoft’s alleged misrepresentations in Washington,
20

21   California, and Pennsylvania (or, upon certification of the class, nationwide), see Am. Compl. ¶¶

22   3.1-3.6, the location of these events is merely fortuitous. Kelley, 251 F.R.D. at 553 (“As it must,

23   the Court gives greater weight to the fact that the allegedly deceptive and unfair acts originated
24
     in Washington given that the location of the injury is fortuitous.”). Microsoft originated its
25
     deceptive scheme in Washington. See supra at 27, 31 (citing to Park, Garcia, and Umeno Deps.).
26
     The Defendant and one of the Plaintiffs reside here. Am. Compl. ¶¶ 3.1, 3.7.
                                                                                   LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                  KELLER ROHRBACK            L.L.P.
     APPLICATION OF WASHINGTON LAW                                          1201 THIRD AVENUE, SUITE 3200
                                                                           SEATTLE, W ASHINGTON 98101-3052
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                                                                             FACSIMILE: (206) 623-3384

     Attachment - Page 44
 1               Just as the Kelley court found the location of the tangible goods that were the subject of
 2   the litigation to be “irrelevant,” so to is the location of the Plaintiffs’ Xbox 360s and scratched
 3
     game discs irrelevant. Microsoft’s policies and procedures with respect to the Xbox 360, its
 4
     warranty, and the disc replacement program are uniform nationwide. See supra at 30 (citing to
 5
     Park Dep.). The final factor, too, weighs in favor of applying Washington law because the only
 6

 7   contract claim at issue is Plaintiffs’ breach of warranty claim, which is governed by Washington

 8   law. See Derry Dec. Ex. 3 at 8 § H.

 9               For these reasons, under the factors of Restatement §§ 148 and 145, the result is the
10   same; Washington has the most significant contacts to this action and to Plaintiffs’ claims.
11
                          a.       The Choice of Law Provision Does Not Change This Analysis.
12
                 Microsoft will invariably point to the terms of the Xbox 360’s limited warranty to argue
13
     that the laws of the plaintiffs’ home states should govern each plaintiff’s individual tort claims.
14
     The limited warranty asserts that the laws of a consumer’s state of residence will apply.
15

16   Derry Dec. Ex. 3 at 8 § H.

17               However, contractual choice of law provisions “do not dictate the choice of law for tort
18   claims.” Schnall, 139 Wn. App. at 294 (citing Haberman v. Wash. Pub. Power Supply Sys., 109
19                                                       27
     Wn.2d 107, 159, 744 P.2d 1032 (1987)).                   The same is true for statutory causes of action such as
20
     Plaintiffs’ CPA and WPLA claims. See id. at 293. In Schnall, the court analyzed Washington’s
21
     contacts with the action, and applied the Washington CPA to a nationwide class action against
22

23   AT&T, despite a choice of law clause in the customer contract calling for the law of the

24   plaintiff’s forum state to apply. Id. Likewise, here, given Washington’s significant contacts with

25
     27
26         The parties agree that Washington law applies to Plaintiffs’ breach of warranty claims. Compare Am. Compl.
          (Dkt. 45) ¶ 8.7, with Microsoft’s Answer (Dkt. 39) at Aff. Def. No. 8. (Microsoft has not yet answered Plaintiffs’
          Amended Complaint, filed on March 27, 2008).
                                                                                                LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                                KELLER ROHRBACK           L.L.P.
     APPLICATION OF WASHINGTON LAW                                                       1201 THIRD AVENUE, SUITE 3200
                                                                                        SEATTLE, W ASHINGTON 98101-3052
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                                                                                           FACSIMILE: (206) 623-3384

     Attachment - Page 45
 1   this action, Plaintiffs’ tort and statutory causes of action are not bound by the choice of law
 2   provision in the Xbox 360’s limited warranty.
 3
                    b.      The Court Need Not Reach the Second Prong.
 4
            Here, because the contacts tip sharply in Washington’s favor, the Court need not reach
 5
     the second prong. See Kelley, 251 F.R.D. at 553; Johnson, 87 Wn.2d at 582. However, if the
 6
     Court determines that the contacts between Washington and some other state are “evenly
 7

 8   balanced,” the Court should then conduct an “evaluation of the interests and public policies of

 9   the concerned states, to determine which state has the greater interest in determination of the

10   particular issue.” Zenaida-Garcia, 128 Wn. App at 260-61.
11
            In Kelley, the court found that Washington had the most significant contacts, eliminating
12
     the need to conduct this secondary inquiry. 251 F.R.D. at 553. Despite this, the court analyzed
13
     the interests of Washington vis-à-vis other interested states, finding that Washington has a
14
     “paramount interest” in applying its law to this action:
15

16          The CPA targets all unfair trade practices either originating from Washington
            businesses or harming Washington citizens. Application of the CPA to Plaintiffs’
17          claims “effectuates the broad purpose of CPA and its deterrent purpose, especially
            as applied to one of Washington’s most important corporate citizens.
18
     Id.; see also McKee v. AT&T Corp., 164 Wn.2d 372, 385-86, 191 P.3d 845 (2008) (recognizing
19

20   the strong Washington public policy supporting the use of class action claims to pursue actions

21   for small-dollar damage claims under the Washington CPA). The same rationale applies here.

22   The Court should apply the Washington CPA to Plaintiffs’ claims.
23
            The Court should also apply the WPLA to Plaintiffs’ claims. Several Washington courts
24
     have applied Washington law to product liability cases involving Washington businesses and out
25
     of state residents. E.g., Zenaida-Garcia, 128 Wn. App. at 266; Johnson, 87 Wn.2d at 584.
26
     Zenaida-Garcia involved a suit over an allegedly defective piece of machinery that was
                                                                                  LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                  KELLER ROHRBACK           L.L.P.
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                                                                             FACSIMILE: (206) 623-3384

     Attachment - Page 46
 1   manufactured in Washington, but caused an accident in Oregon. 128 Wn. App. at 258. After
 2   weighing the respective interests of the two states, the court found that Washington “has strong
 3
     policy interests in deterring the design, manufacture and sale of unsafe products within its
 4
     borders,” and applied the WPLA. Id. at 266. In Johnson, a case decided prior to the adoption of
 5
     the WPLA, the court found that Washington law applied to product liability claims brought by a
 6

 7   Kansas resident against a Washington manufacturer arising from a fatal accident that occurred in

 8   Kansas. 87 Wn.2d at 578-79.

 9          Finally, in Brewer, Judge Zilly found that Washington law did not apply to a product
10   liability claim brought by a Washington resident against several out of state corporations. 447 F.
11
     Supp. 2d at 1181-86. Instead, the Court found that the interests of the states where the defendant
12
     corporations were located and had designed and manufactured the allegedly defective products
13
     outweighed those of Washington. Id.
14

15          For all of these reasons, even if Washington’s contacts were evenly balanced with some

16   other state, which they are not, Washington’s interest in this litigation, involving one of its most

17   important corporate citizens, outweighs the interests of any other state.
18
                                          IV.   CONCLUSION
19
            For the foregoing reasons, Plaintiffs respectfully request that the Court grant Plaintiffs’
20
     Motion. A proposed order is attached.
21
            RESPECTFULLY SUBMITTED this 21st day of November, 2008.
22

23                                                 KELLER ROHRBACK L.L.P.

24                                                 By: s/ Amy Williams-Derry
                                                      Mark A. Griffin, WSBA # 16296
25                                                    Amy Williams-Derry, WSBA #28711
                                                      Shane P. Cramer, WSBA # 35099
26                                                 1201 Third Avenue, Suite 3200
                                                   Seattle, Washington 98101
                                                                                  LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR                  KELLER ROHRBACK           L.L.P.
     APPLICATION OF WASHINGTON LAW                                         1201 THIRD AVENUE, SUITE 3200
                                                                          SEATTLE, W ASHINGTON 98101-3052
     (Master Cause No. 07-cv-1121-JCC) Page - 36                             TELEPHONE: (206) 623-1900
                                                                             FACSIMILE: (206) 623-3384

     Attachment - Page 47
 1                                         Telephone: (206) 623-1900
                                           Facsimile: (206) 623-3384
 2                                         awilliams-derry@kellerrohrback.com
                                           mgriffin@kellerrohrback.com
 3
                                           scramer@kellerrohrback.com
 4
                                           Interim Class Counsel
 5
                                           STRITMATTER KESSLER WHELAN
 6                                         COLUCCIO
 7                                         Paul L. Stritmatter, WSBA # 4532
                                           Kevin Coluccio, WSBA # 16245
 8                                         200 Second Avenue West
                                           Seattle, Washington 98119
 9                                         Telephone: (206) 448-1777
                                           Facsimile: (206) 728-2131
10

11                                         Plaintiffs’ Liaison Counsel

12                                         CHITWOOD HARLEY HARNES LLP
                                           Gregory E. Keller, WSBA #13040
13                                         Darren T. Kaplan
                                           2300 Promenade II
14                                         1230 Peachtree Street, N.E.
15                                         Atlanta, Georgia 30309
                                           Telephone: (404) 873-3900
16                                         Facsimile: (404) 876-4476

17                                         THE KOPELOWITZ OSTROW FIRM, P.A.
                                           Jeffrey M. Ostrow
18
                                           David Ferguson
19                                         200 SW 1st Avenue, 12th Floor
                                           Ft Lauderdale, Florida 33301
20                                         Telephone: (954) 525-4100
                                           Facsimile: (954) 525-4300
21
                                           Co-Lead Plaintiffs’ Counsel
22

23                                         KABATECK BROWN KELLNER LLP
                                           Brian S. Kabateck
24                                         Richard L. Kellner
                                           644 South Figueroa Street
25                                         Los Angeles, California 90017
                                           Telephone: (213) 217-5000
26
                                           Facsimile: (213) 217-5010

                                                                         LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR        KELLER ROHRBACK            L.L.P.
     APPLICATION OF WASHINGTON LAW                               1201 THIRD AVENUE, SUITE 3200
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     (Master Cause No. 07-cv-1121-JCC) Page - 37                   TELEPHONE: (206) 623-1900
                                                                   FACSIMILE: (206) 623-3384

     Attachment - Page 48
 1
                                           KRAUSE KALFAYAN BENINK & SLAVENS,
 2                                         LLP
                                           James C. Krause
 3
                                           Eric J. Benink
 4                                         625 Broadway, Suite 635
                                           San Diego, California 92101
 5                                         Telephone: (619) 232-0331
                                           Facsimile: (619) 232-4019
 6

 7                                         WASSERMAN, COMDEN & CASSELMAN, LLP
                                           Melissa M. Harnett
 8                                         5567 Reseda Boulevard, Suite 330
                                           Tarzana, California 91357
 9                                         Telephone: (818) 705 - 6800
                                           Facsimile: (818) 996 - 8266
10

11                                         Interim Class Counsel

12                                         LEE & AMTZIS, P.L.
                                           Eric Lee
13                                         5550 Glades Road, Suite 401
                                           Boca Raton, FL 33431
14                                         Tel: (561) 981-9988
15                                         Fax: (561) 981-9980

16                                         Plaintiffs’ Counsel

17

18

19

20

21

22

23

24

25

26

                                                                         LAW OFFICES OF

     PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND FOR          KELLER ROHRBACK          L.L.P.
     APPLICATION OF WASHINGTON LAW                                1201 THIRD AVENUE, SUITE 3200
                                                                 SEATTLE, W ASHINGTON 98101-3052
     (Master Cause No. 07-cv-1121-JCC) Page - 38                   TELEPHONE: (206) 623-1900
                                                                   FACSIMILE: (206) 623-3384

     Attachment - Page 49

								
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