[Infowarrior] - Microsoft loses 'Vista Capable' appeal

[Richard Forno]

Microsoft loses 'Vista Capable' appeal; more insider e-mails could emerge
Gregg Keizer
 
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April 21, 2008 (Computerworld) Microsoft Corp.'s attempt to reverse a lower
court's ruling in the ongoing "Vista Capable" lawsuit was denied by an
appeals court on Monday. The decision means the case can resume.

It also means that new insider e-mails subpoenaed from Microsoft and nearly
30 other companies could be made public.

In a brief order dated April 21, the Ninth Circuit Court of Appeals rejected
Microsoft's request to overturn a decision by U.S. District Court Judge
Marsha Pechman in February that granted class-action status to a lawsuit
that charges the company deceived consumers in 2006 with its Windows Vista
Capable marketing program.

The year-old case alleges that many of the PCs labeled with a "Vista
Capable" sticker in the months before Vista was released were able to run
only Home Basic, a version the plaintiffs say lacked some of the most
heavily promoted elements of the new operating system. Microsoft has
disputed the charges.

In papers filed last month, Microsoft petitioned the Ninth Circuit Court to
hear its challenge and asked Pechman to suspend the class-action case while
the appeal was heard by the higher court. The company argued that continuing
the lawsuit might mean new disclosures of insider e-mails, which could
"jeopardize Microsoft's goodwill" and "disrupt Microsoft's relationships
with its business partners."

Pechman agreed and suspended the lawsuit three weeks ago while the appeals
court reviewed her class-action decision.

The case has gained attention because of the 158 pages of Microsoft e-mails
the plaintiffs' attorneys acquired during discovery. Among other
revelations, the messages showed that top-level Microsoft executives
struggled with the new operating system on machines labeled "Vista Capable,"
and that partners such as Dell Inc. warned Microsoft that the campaign would
confuse consumers about which versions of Vista their new PCs would be able
to run.

Monday, Microsoft said it was eager to renew the case. "The Ninth Circuit's
decision not to accept our request for interim review is not a ruling on the
merits of our case," said spokesman Jack Evan. "We look forward to
presenting all of the facts on what the district court itself said is a
novel claim."

With the lawsuit moving forward again, it's possible more Microsoft
documents will see the light of day; last month, lawyers for the plaintiffs
served subpoenas on 29 companies and individuals in a hunt for more
information about the Vista Capable program.

Among the companies and people told to produce e-mails and other documents
were retailers like Best Buy and Wal-Mart, computer makers such as Dell and
Hewlett-Packard Co., chip maker Intel Corp., and Jim Allchin, the former
head of Windows development who resigned the day after Vista shipped in
January 2007. Several of those companies filed objections to the subpoenas,
calling the requests "harassing" and disruptive to their business.

"Plaintiffs are pleased that the Ninth Circuit has denied Microsoft's
petition for permission to appeal Judge Pechman's class certification
order," said Jeff Thomas, an attorney representing one of the original
plaintiffs. "We look forward to the setting of a new trial date and
proceeding with discovery."

When Pechman suspended the discovery process, she also vacated the case's
schedule, which called for a trial date in late October. It's unclear how
the two-week delay will affect the schedule.