Lawsuit could prevent 'Windows 7 Capable' mistakes, say plaintiffs

'Vista Capable' class-action case should continue while Microsoft appeals ruling, lawyers argue

In a filing late yesterday, lawyers for the plaintiffs in the "Vista Capable" lawsuit argued that the case should continue even as Microsoft Corp. appeals the earlier decision to grant the case class-action status.

Among their arguments: Pushing on with the lawsuit would help consumers because Microsoft may be in the midst of similar internal discussions about a future "Windows 7 Capable" program.

Microsoft's request to put the case on hold while its appeal works its way through the Ninth Circuit Court, said the lawyers, was nothing more than a maneuver to prevent the disclosure of more internal e-mails.

"We do not believe that Microsoft's motion to stay, as a practical matter, has much to do with its view of whether it can overturn this court's rulings on class certification or choice of law," the filing said. "Instead, Microsoft's effort to halt these proceedings is driven by the realization that continued discovery and trial preparation will require it to produce even more documents. ... Microsoft is trying to avoid such further revelations to the public (i.e., class members) despite its public pronouncement that the whole story still needs to be told."

Late last month, internal messages and documents that Microsoft was forced to produce were made public and showed how high-level executives bickered over the prelaunch positioning of Windows Vista and struggled with the operating system. The e-mails also revealed postmortems from important partners like Dell Inc., which criticized the Vista Capable program, a marketing campaign Microsoft used to boost PC sales in the last months of 2006 before Vista was released.

The lawsuit, which debuted almost a year ago, contends that Microsoft knew that some PCs with the Vista Capable logo would not be able to run any version of the operating system except for Vista Home Basic, the entry-level edition that lacks many of Vista's advertised features, including the graphical Aero interface. A month ago, U.S. District Court Judge Marsha Pechman granted the case class-action status, which then opened it to consumers nationwide.

A week and a half ago, Microsoft asked the judge to suspend the case as it appealed the class-action decision. Yesterday, the plaintiffs' lawyers countered Microsoft's argument that continuing the discovery process -- taking depositions, for example, and requesting documentation from resellers -- would needlessly disrupt the company's business with its partners if the appeal was granted.

"We already have served subpoenas on OEMs and retailers, and have spoken with many of their representatives," the plaintiffs' filing read. "Not a single one has expressed a concern that responding to the subpoenas will 'disrupt' their business relationship with Microsoft."

The lawyers also spelled out a new round of document demands that they have presented Microsoft. Among the internal communications that they asked for were any related to Microsoft's decision to certify Intel Corp.'s 915 chip set as meeting the Vista Capable requirements.

Already unsealed messages from early 2006 showed that Microsoft changed its mind on the hardware requirements for the Vista Capable logo to include the older Intel chip set. In those messages, one Microsoft manager said the move was caving into Intel, while another claimed the decision was made to help Intel meet its quarterly financial goals.

The plaintiffs also asked for all the documents and preparation materials that Microsoft Chairman Bill Gates used to get ready for a television appearance the day before Vista launched in late January 2007.

In an argument made near the end of the 18-page filing, the plaintiffs' lawyers also said that postponing the class-action case would harm consumers because it was likely Microsoft was now planning the rollout for Windows 7, the follow-on to Vista.

"Applying the same timeline from the Vista Capable program, we gather that Microsoft employees now are having the same 'spirited' debate about unveiling a 'Windows 7 Capable' program to maintain demand for Vista-based PCs prior to the Windows 7 launch," the filing said. "We believe this case will help the decision-makers within Microsoft 'do the right thing' for potential Vista/7 consumers, rather than allowing its preoccupation with profits to take precedence over the wisdom and counsel of its own employees, as well as OEM and retail partners."

Microsoft declined to comment on the plaintiffs' filing, and instead referred to its stay request of March 7.

Copyright © 2008 IDG Communications, Inc.

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