Lawyers may appeal latest 'Vista Capable' ruling

Case not over, say plaintiffs' attorneys, who plan to fight class-action decision

Lawyers for the consumers suing Microsoft Corp. over its "Vista Capable" marketing campaign said they may appeal a judge's ruling that stripped the lawsuit of its class-action status yesterday.

"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, when asked whether his team would proceed with the case.

The U.S. Court of Appeals for the Ninth Circuit serves California, Oregon, Washington and six other states, and would hear any appeal from the Seattle-based federal court where the lawsuit was filed.

Tilden, as well as Jeffrey Thomas, another partner, declined to get more specific about their plans for the lawsuit. Their firm brought the original lawsuit against Microsoft on behalf of Dianne Kelley, a Washington state resident who bought a PC marked "Vista Capable" in November 2006, two months before the operating system was released to retail.

Microsoft rolled out the Vista Capable marketing program in April 2006 to ensure that PCs equipped with the older Windows XP continued to sell as Vista's release date neared. Computers that bore a Vista Capable sticker could later be upgraded to the new operating system, Microsoft promised.

Kelley claimed that Microsoft pulled a fast one with Vista Capable, however, because the company let computer makers slap the sticker on PCs that later could run only Vista Home Basic, the least-expensive edition. Her lawyers argued that because Home Basic lacked many of the features Microsoft had trumpeted for Vista, including the Aero graphical user interface, it was not a "real" version of the operating system.

On Wednesday, U.S. District Court Judge Marsha Pechman yanked the lawsuit's class-action status, saying that the plaintiffs had failed to show that the Vista Capable campaign had made them pay more for their computers than they would have otherwise.

Although Pechman's decision doesn't end the case, it requires that each plaintiff sue Microsoft separately, and makes it impossible for others to join the lawsuit without hiring their own attorneys. There are currently six plaintiffs, including Kelley.

Microsoft, understandably, applauded Pechman's ruling. "We're pleased that the court granted our motion to decertify the class, leaving only the claims of six individuals," said Microsoft spokesman David Bowermaster in an e-mail late yesterday.

Tilden and Thomas, however, were less enthusiastic. "Judge Pechman is an incredibly strong trial judge," said Tilden in an e-mail. "[But] we respectfully disagree with her here."

If Tilden, Thomas and the other lawyers involved with the case do appeal Pechman's ruling, it wouldn't be the first time an issue in the case has gone to the Ninth Circuit. Last March, Microsoft appealed Pechman's decision to designate the case as a class-action. In late April, the appellate court rejected the company's request to overturn Pechman's ruling.

The lawsuit is best known as the source for hundreds of insider e-mails that have been made public by the court. Among the disclosures were ones that showed Microsoft relaxed the requirements of Vista Capable to accommodate Intel Corp., a decision that then enraged Hewlett-Packard Co., another major partner.

Those e-mails also revealed the sometimes-fierce arguments within Microsoft over the program, including a recommendation by an internal marketing group that Home Basic be stripped of the name "Vista" because of concerns over what it called "user product expectations."

Copyright © 2009 IDG Communications, Inc.

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