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In re Donna VIZCAINO John R. Waite Mark Stout Geoffrey Culbert Lesley Stuart Thomas Morgan Elizabeth Spokoiny and Larry Spokoiny and the class they represent, Plaintiffs-Petitioners v. UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, Microsoft Corporation and its pension and welfare benefits plans, Defendants-Real Parties in Interest Donna Vizcaino John R. Waite Mark Stout Geoffrey Culbert Lesley Stuart Thomas Morgan Elizabeth Spokoiny Larry Spokoiny v. Microsoft Corporation, and its health and benefits plans: Health Benefit Plan, Life Insurance Plan, Short-term and Long-term Disability Plans, and Savings (401K) Plan
ORDER AMENDING OPINION AND DENYING PETITION FOR REHEARING EN BANC
The opinion filed on May 12, 1999 [173 F.3d 713], is amended as follows: On slip opinion page 6081, line 17 [173 F.3d at 721], please insert the following text immediately following “F.3d at 1200”:
Blake v. City of Los Angeles, 595 F.2d 1367, 1385-86 (9th Cir.1979), on which Microsoft relies, is inapposite, first, because the court of appeals did not adjudicate the merits of the claims of the individual class members and, second, because the defendant had contested the class certification and taken a cross-appeal. Microsoft chose not to contest the class certification in the district court (as the district court found, “[t]he only question is whether the class should be certified for all issues in the case, or just a few of the issues.”). Had it done so and lost, it could have taken a contingent cross-appeal and, had it prevailed, the district court could have modified the class on remand.
The panel has voted to deny defendant/appellee/real party in interest’s petition for rehearing and to reject the suggestion for rehearing en banc.
The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed.R.App.P. 35.
The petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED.