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Microsoft "Vista Capable" Lawsuit Returns

Plaintiffs try for narrower approach in second try

By Jon Hood
ConsumerAffairs.com

March 18, 2009

The original suit accused Microsoft of deception in allowing computer manufacturers to label machines as "Vista Capable." The plaintiffs claimed that this labeling led them to believe that machines could run either Vista Basic or Vista Premium, when in fact the computers were only compatible with the former.

Dismissing the case in February, the court ruled that the deceptive labeling wasn't necessarily what drove consumers to buy the machines, and that the plaintiffs had failed to show otherwise. The court noted that any number of factors, including holiday sales and additional mark-downs, could have influenced their decisions.

The plaintiffs originally sought to certify a class of all individuals who bought "Vista Capable" machines. In their latest motion, attorneys seek to instead proceed with two more narrowly-defined groups: consumers who bought their computers through Microsoft's "Express Upgrade Guarantee" program, which allows consumers who bought XP-equipped machines to upgrade when Vista becomes available; and those whose computers don't support advanced Vista graphics.

The plaintiffs' attorneys, led by Gordon Murray Tilden LLP, contend that the amended classes will remedy the legal problems presented by the previous group. Microsoft, in its response brief, insists that the new classes face the same causation issues and should thus not be certified.

Specifically, Microsoft claims that many of the Express Upgrade consumers knew which version of Vista they were getting, and that the court would have to question every potential class member to determine whether they had been deceived. Microsoft also contends that the graphic issue would only apply to consumers who upgraded — or planned to upgrade — from Windows XP to Vista. Again, the company says that the court would need to hold individual hearings to determine which consumers were planning to upgrade.

The suit has been pending for nearly two years now, undoubtedly causing a headache for the corporation. The judge's decision last month to decertify the class was a big victory for Microsoft, but regardless of the amended class's fate, the company won't be completely out of the woods. During the February hearing, the judge also denied Microsoft's motion for summary judgment, meaning that individual plaintiffs will be able to proceed with their claims. Given the expense and time demands of litigation, however, few individuals are likely to prosecute their own suits. The pending class motion is likely the last stand for most affected laptop owners.

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