Judge kills class-action status in 'Vista Capable' suit... again

Computerworld - A federal judge late Friday refused to restore class-action status to the Vista Capable lawsuit, handing Microsoft Corp. its second major victory in the case in the last two months.

U.S. District Court Judge Marsha Pechman denied a motion by the plaintiffs to recertify a smaller group of consumers in the suit that has accused Microsoft of misleading PC buyers in 2006 and 2007 by letting computer makers slap the "Vista Capable" sticker on machines that could run only Home Basic.

Pechman's order was the second since Feb. 18 denying class-action status to the lawsuit, and it limits the plaintiffs' options to appealing her decision or moving forward with a trial of the half-dozen individual claims.

It was also the second time in as many months that Pechman's ruling went Microsoft's way. By rejecting class action status, Pechman again narrowed the pool of potential plaintiffs from thousands to the six now involved. That, in turn, would dramatically slash Microsoft's financial exposure -- which had been estimated to be as high as $8.5 billion -- if it eventually loses the case.

On Friday, she dismissed plaintiffs' arguments to grant class-action status to two new groups: people who had purchased PCs during Microsoft's Express Upgrade program and those who bought Vista Capable machines that wouldn't run the new operating system's Aero graphical user interface.

"Plaintiffs proposed Express Upgrade class suffers from the same flaws as its original deception-theory based Vista Capable class," Pechman wrote in her order, referring to the upgrade program Microsoft ran with its OEM partners from October 2006 to March 2007 to give PC buyers free or discounted copies of Vista. "As before, Plaintiffs underlying claim is that they were deceived by the Vista marketing campaign. Because evidence relating to each Plaintiff's consumer choice is not amenable to class-wide analysis, an Express Upgrade class is inappropriate."

She also rejected the plaintiffs' move to create a new class out of consumers who bought Windows XP systems that later would be able to run only the lowest-priced version of Vista, Home Basic. For much of the two-year-old case, lawyers for the plaintiffs have argued that because Home Basic lacked many of the flashy features Microsoft had promoted in Vista -- most important, the Aero interface -- it was not really Vista.

"[Plaintiffs' claims] all center on the claim that computers lacking WDDM compatibility cannot achieve full Vista Basic functionality," said Pechman. "This is only potentially deceptive in the contest of Microsoft's 'Vista Capable' label. Without the label there is nothing deceptive or unfair about selling non-WDDM compatible computers. Because the fulcrum of Plaintiffs' claim is the label and because the label is most accurately characterized as an affirmative representation, Plaintiffs case does not 'primarily' allege omissions."