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Microsoft wants to freeze the Vista incapable lawsuit
Hang on, wait till everyone forgets
By Egan Orion: Monday, 10 March 2008, 4:23 PM
EVER SLIPPERY, Microsoft asked that the "Vista Capable" lawsuit against it
be stayed while it appeals the judge's approval of class action standing for
the case.
The lawsuit, filed almost a year ago, claims that Microsoft misled punters
in late 2006 by letting PC makers stick "Vista Capable" labels on lower
power machines sold with Windows XP that were later found capable of running
only the Home Basic version of Windows Vista rather than the full version
that includes most of Vista's new features including the Aero eye-candy
graphical interface.
It claims that PC buyers paid more for those machines than they would have
parted with had they known that they wouldn't be able to support Windows
Vista when that was released a few months later in early 2007.
Never mind that those PC consumers who bought "Vista Capable" machines are
likely better off sticking with Windows XP instead of "upgrading" to Vista,
seeing as how Vista has turned out to be even more of a pig on qualudes than
all prior versions of Windows. The Vole probably won't be arguing that, but
even if it did, that wouldn't let it off the hook for having misled
customers who expected that "Vista Capable" actually meant "Vista Ready"
when they coughed up the readies.
US District Judge Marsha Pechman granted the lawsuit class action status two
weeks ago. Microsoft filed a petition to appeal that ruling with the Ninth
Circuit Court of Appeals on Friday, a day after it filed a motion before
Judge Pechman to stay the lawsuit pending its appeal.
If the case is stayed, that would put off any further discovery by the
plaintiffs until the appeal is decided, which could take up to three months
or more. The delay would postpone additional revelations of potentially
embarrassing emails and other documents by Microsoft and PC manufacturers,
hardware suppliers such as Intel, and wholesalers and retailers.
Release of internal company emails last month disclosed that high level
Microsoft executives anticipated the problems caused by the "Vista Capable"
labels on PCs sold with Windows XP. Microsoft's OEM partners warned the
company that the labels would confuse consumers, and even Microsoft's own
executives got burned by buying PCs incapable of running the full version of
Windows Vista.
In its motion to stay, Microsoft wrote: "Continued proceedings here would
cost Microsoft a substantial sum of money for discovery and divert key
personnel from full-time tasks...; would intrude on sensitive pricing
decisions and strategies by OEMs, wholesalers, and retailers; and would
jeopardize Microsoft's goodwill with class members -- all with respect to
claims that might not proceed on a class basis at all."
Microsoft argued that, if its appeal is successful, any time and money it
spends on additional discovery will have been wasted and any further
negative publicity will have been raised unnecessarily. It also claimed that
continuing discovery while its appeal is pending might needlessly impair
certain business partner relationships.
"Plaintiffs' discovery almost surely will involve intrusion into the most
sensitive pricing decisions of the OEMs, wholesalers, and retailers who sell
the PCs at issue and set their prices," Microsoft wrote. "Continued
discovery thus will disrupt Microsoft's relationships with its business
partners, a disruption that will be unnecessary if the Ninth Circuit
reverses."
The motion also raised the issue that continuing the lawsuit pending the
appeal will require the plaintiffs to advertise nationally for class members
to join the litigation, and that the class action search could damage
Microsoft's reputation with its customers unfairly. "The result will be
nationwide publicity that impugns the ['Vista Capable'] program," it said.
With typical Microsoft chutzpah, the appeal to the Ninth Circuit challenges
Judge Pechman's basing her approval of class action standing on Washington
state law because Microsoft is headquartered there. It also questions her
approval of the plaintiff's theory that PC buyers might have paid more for
the so-called " Vista Capable" PCs than they would have without those
allegedly misleading labels.
Like many defendants, the Vole is seeking delay in the hope that the passage
of time might work in its favour, as "Vista Capable" PC buyers get over
having been taken in, witnesses change jobs, memories fade, documents get
lost, and so on.
We'll see in due time whether Judge Pechman is fully confident in her
rulings and believes the plaintiffs' case deserves to move forward timely,
or decides that the potential harm to Microsoft should her rulings be
reversed on appeal outweighs the plaintiffs' rights. µ
Hang on, wait till everyone forgets
By Egan Orion: Monday, 10 March 2008, 4:23 PM
EVER SLIPPERY, Microsoft asked that the "Vista Capable" lawsuit against it
be stayed while it appeals the judge's approval of class action standing for
the case.
The lawsuit, filed almost a year ago, claims that Microsoft misled punters
in late 2006 by letting PC makers stick "Vista Capable" labels on lower
power machines sold with Windows XP that were later found capable of running
only the Home Basic version of Windows Vista rather than the full version
that includes most of Vista's new features including the Aero eye-candy
graphical interface.
It claims that PC buyers paid more for those machines than they would have
parted with had they known that they wouldn't be able to support Windows
Vista when that was released a few months later in early 2007.
Never mind that those PC consumers who bought "Vista Capable" machines are
likely better off sticking with Windows XP instead of "upgrading" to Vista,
seeing as how Vista has turned out to be even more of a pig on qualudes than
all prior versions of Windows. The Vole probably won't be arguing that, but
even if it did, that wouldn't let it off the hook for having misled
customers who expected that "Vista Capable" actually meant "Vista Ready"
when they coughed up the readies.
US District Judge Marsha Pechman granted the lawsuit class action status two
weeks ago. Microsoft filed a petition to appeal that ruling with the Ninth
Circuit Court of Appeals on Friday, a day after it filed a motion before
Judge Pechman to stay the lawsuit pending its appeal.
If the case is stayed, that would put off any further discovery by the
plaintiffs until the appeal is decided, which could take up to three months
or more. The delay would postpone additional revelations of potentially
embarrassing emails and other documents by Microsoft and PC manufacturers,
hardware suppliers such as Intel, and wholesalers and retailers.
Release of internal company emails last month disclosed that high level
Microsoft executives anticipated the problems caused by the "Vista Capable"
labels on PCs sold with Windows XP. Microsoft's OEM partners warned the
company that the labels would confuse consumers, and even Microsoft's own
executives got burned by buying PCs incapable of running the full version of
Windows Vista.
In its motion to stay, Microsoft wrote: "Continued proceedings here would
cost Microsoft a substantial sum of money for discovery and divert key
personnel from full-time tasks...; would intrude on sensitive pricing
decisions and strategies by OEMs, wholesalers, and retailers; and would
jeopardize Microsoft's goodwill with class members -- all with respect to
claims that might not proceed on a class basis at all."
Microsoft argued that, if its appeal is successful, any time and money it
spends on additional discovery will have been wasted and any further
negative publicity will have been raised unnecessarily. It also claimed that
continuing discovery while its appeal is pending might needlessly impair
certain business partner relationships.
"Plaintiffs' discovery almost surely will involve intrusion into the most
sensitive pricing decisions of the OEMs, wholesalers, and retailers who sell
the PCs at issue and set their prices," Microsoft wrote. "Continued
discovery thus will disrupt Microsoft's relationships with its business
partners, a disruption that will be unnecessary if the Ninth Circuit
reverses."
The motion also raised the issue that continuing the lawsuit pending the
appeal will require the plaintiffs to advertise nationally for class members
to join the litigation, and that the class action search could damage
Microsoft's reputation with its customers unfairly. "The result will be
nationwide publicity that impugns the ['Vista Capable'] program," it said.
With typical Microsoft chutzpah, the appeal to the Ninth Circuit challenges
Judge Pechman's basing her approval of class action standing on Washington
state law because Microsoft is headquartered there. It also questions her
approval of the plaintiff's theory that PC buyers might have paid more for
the so-called " Vista Capable" PCs than they would have without those
allegedly misleading labels.
Like many defendants, the Vole is seeking delay in the hope that the passage
of time might work in its favour, as "Vista Capable" PC buyers get over
having been taken in, witnesses change jobs, memories fade, documents get
lost, and so on.
We'll see in due time whether Judge Pechman is fully confident in her
rulings and believes the plaintiffs' case deserves to move forward timely,
or decides that the potential harm to Microsoft should her rulings be
reversed on appeal outweighs the plaintiffs' rights. µ
