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'Vista Capable' lawyers push to revive class action

Make good on last week's promise to continue case; Microsoft will fight

February 27, 2009 12:00 PM ET

Computerworld - As expected, lawyers for the plaintiffs in the long-running "Vista Capable" lawsuit against Microsoft Corp. 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.

Yesterday'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 buy Vista-powered computers after July 1 free or discounted upgrades to the new operating system.

"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.



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