'Vista Capable' lawyers push to revive class action

As expected, lawyers for the plaintiffs in the long-running " Vista Capable " lawsuit against Microsoft have asked a federal judge to reinstate the case's class-action status.

In a motion filed with U.S. Judge Marsha Pechman on Thursday, attorneys asked her to certify a smaller class of plaintiffs than the group she rejected a week ago . Then, Pechman said that the plaintiffs had not provided sufficient evidence that all consumers who purchased PCs labeled "Vista Capable" in the months leading to the release of Windows Vista had been harmed. Her decision was a blow to the plaintiffs, who could still sue Microsoft individually, but were barred from collectively arguing their case for all Vista Capable buyers.

Thursday's move was no surprise. Last week, lawyers representing the plaintiffs said they would continue the case . "We anticipate further motion practice in the trial court, followed by -- if unsuccessful -- an appeal to the Ninth Circuit," said Jeffrey Tilden, a partner in the Seattle law firm Gordon Tilden Thomas & Cordell LLP, at the time.

They followed through on their "further motion practice" promise on Thursday as they sought to narrow the class. Rather than include everyone who bought a Vista Capable PC, the lawyers asked Pechman to consider only those who purchased PCs during Microsoft's Express Upgrade program, and people who bought Vista Capable machines that wouldn't run the new operating system's Aero graphical user interface.

"Plaintiffs believe that the analysis as to these narrowed classes, and specifically to the proposed proof of proximate cause, is materially different from the analysis that pertained to the larger class and is consistent with the Court's prior rulings on class certification issues," the lawyers said in a motion to push back the trial date from its April schedule.

Microsoft will try to block the new request for class-action status. "We believe the Court was right when it decertified the class," said company spokesman David Bowermaster on Friday. "We will oppose plaintiffs' renewed request to certify a class and their motion to delay the trial."

The Express Upgrade mentioned by the lawyers was a program Microsoft launched in October 2006 that promised buyers of Windows XP machines free or heavily-discounted upgrades to Windows Vista when that new operating system was released. Consumers who purchased PCs between Oct. 26, 2006, and March 15, 2007 were eligible.

Microsoft has planned a similar program for Windows 7 , according to reports, and will offer people who people who buy Vista-powered computers after July 1 free or discounted upgrades to the new OS.

"Plaintiffs maintain that purchasers in Microsoft's Express Upgrade Guarantee program who requested a Vista upgrade can establish proximate cause (indeed, actual classwide reliance) by virtue of their affirmative participation in Microsoft's program and request for the Vista upgrade," the lawyers argued in their motion to Pechman.

They also claimed that the group composed of consumers who bought machines able to run only the entry-level Vista Home Basic had a common claim. "Plaintiffs maintain that purchasers of Vista Capable PCs that lacked support for the Windows Display Driver Model (WDDM), which plaintiffs contend is an essential element for Vista, have a pure omission claim against Microsoft," they said in the motion.

The new Vista driver display standard has played a prominent part in the Vista Capable case. Internal Microsoft e-mails released by the court have detailed arguments within the company before it decided to ditch WDDM as a requirement for Vista Capable PCs. According to those insider e-mails, Microsoft seemed to relent because of pressure from Intel Corp. , which during 2006 was still selling large numbers of graphics chipsets that could not handle WDDM drivers.

Previously, the plaintiffs had argued that consumers were given the short end of the stick because many PCs sold as "Vista Capable" lacked WDDM support, and so were able to run only Home Basic, which they argued was not really Vista because it omitted many of the operating system's flashy features, including the Aero interface.

The move to narrow the class to those who bought low-end PCs in the months before Vista's launch also seemed to play to comments Judge Pechman made last week when she decertified the class. "Microsoft's internal communications raise a serious question about whether customers were likely to be deceived by the Windows Vista Capable campaign," she said then, and pointed out an insider e-mail from Jim Allchin , the former Microsoft executive who oversaw Vista's development and delivery. When another Microsoft executive decided to relax the eligibility rules for Vista Capable so that PCs unable to run WDDM drivers would qualify, Allchin went ballistic.

"I believe we are going to be misleading customers with the Capable program," Allchin said in e-mail from early 2006. "OEMs will say a machine is Capable, and customers will believe it will run all the core Vista features. The fact that Aero won't be there EVER for many of these machines is misleading to customers."

The plaintiffs' lawyers are asking Pechman to postpone the trial, which is currently set to start April 13, as long as necessary to rule on their motion to certify the new class, and to notify eligible consumers.

This story, "'Vista Capable' lawyers push to revive class action" was originally published by Computerworld.

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