Judge could cripple 'Vista Capable' lawsuit next week

Computerworld - U.S. District Court Judge Marsha Pechman may issue a critical ruling in the two-year Vista Capable lawsuit as early as next week, a lawyer for the plaintiffs confirmed today after trying to persuade her to restore class-action status to the case.

After listening to arguments yesterday from both parties, Pechman indicated that her ruling could come early next week on the motion by plaintiffs that she reinstate the lawsuit's class-action status, Jeff Thomas, a partner in the Seattle law firm Gordon Tilden Thomas & Cordell LLP, said in an e-mail to Computerworld.

That motion had been prompted by Pechman's decision in mid-February to strip the case of its class-action status because the plaintiffs had failed to prove that Microsoft Corp.'s 2006 marketing campaign drove up PC prices.

Her ruling gave Microsoft a big win in the lawsuit by narrowing the pool of potential plaintiffs from thousands to the six that had been involved thus far. That, in turn, dramatically slashed Microsoft's financial exposure -- which had been estimated at $8.5 billion -- if it lost the case.

A week later, plaintiffs' lawyers asked Pechman to grant class-action status to a smaller group than before: consumers who had 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. Before Pechman dumped the case's class-action aspect, the group had consisted of anyone who bought a PC labeled with the "Vista Capable" sticker.

But even if she rules against the plaintiffs' request to restore class-action status, it's unlikely the case will end.

Previously, plaintiffs' lawyers said they would take the matter to the Ninth Circuit Court of Appeals if necessary. "We anticipate further motion practice in the trial court, followed by -- if unsuccessful -- an appeal to the Ninth Circuit," Jeffrey Tilden, who is also with Gordon Tilden Thomas & Cordell, said at the time.

Today, Thomas confirmed that they would appeal Pechman's upcoming ruling if it goes against their clients.

The lawsuit is best known as the source for hundreds of insider e-mails that have been made public by the court, including numerous messages that showed how Microsoft relaxed the requirements of Vista Capable to accommodate Intel Corp., the difficulties even high-level company executives had running Vista after its January 2007 launch, and arguments over ditching "Vista" from the name of the lowest-level edition, Home Basic, over worries that users would complain.

Although a trial is still set to begin April 13, it's not likely to start on time. If Pechman grants the plaintiffs' motion next week, the case will be delayed until attorneys can notify eligible consumers, while a rejection of the motion will, as Thomas pointed out today, lead to an appeal.

Todd Bishop of the Puget Sound Business Journal first reported on yesterday's hearing in the TechFlash blog last night.

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