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Originally published Friday, November 21, 2008 at 12:00 AM

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Microsoft wants judge to boot "Vista Capable" class-action lawsuit

The company disputes PC buyers' claims that Microsoft's "Vista Capable" software marketing program deceived them.

Seattle Times technology reporter

Vista Capable calendar

MICROSOFT is seeking to boot from court the class-action lawsuit challenging its Windows Vista Capable marketing program, meant to buoy PC demand ahead of the operating system's Jan. 30, 2007, broad launch. Here are some key dates and background, as well as important issues awaiting ruling by federal Judge Marsha Pechman.

April 1, 2006: PCs marked "Vista Capable" begin arriving on store shelves.

Jan. 30, 2007: Broad launch of Windows Vista.

March 29, 2007: Vista Capable suit filed in U.S. District Court in Seattle.

May 5, 2007: Microsoft moves to dismiss suit, subsequently rejected.

Feb. 22, 2008: Suit certified as class-action.

Nov. 20, 2008: Microsoft moves to dismiss suit, decertify class.

April 13, 2009: Jury trial scheduled.

Pending rulings

Ballmer: Plaintiffs are fighting to depose Microsoft CEO Steve Ballmer.

Class notification: Plaintiffs want to use Windows Update, Microsoft's tool for distributing updates and patches of its software, to notify potential members of the class.

Partial summary judgment: Plaintiffs have asked the judge to rule that Microsoft's decision to remove a specific graphics driver requirement from the Vista Capable program was unfair or deceptive, violating a part of the Washington Consumer Protection Act.

Microsoft sought to bring a quick end Thursday to the lawsuit that has produced a steady flow of sometimes embarrassing internal e-mails about Windows Vista, a product whose reputation in the marketplace was already tarnished before it launched nearly two years ago.

The company asked a federal judge in Seattle to dismiss the remaining claims in the class-action suit brought by PC buyers challenging its "Vista Capable" marketing program as deceptive, and to decertify the class.

Microsoft argued that the plaintiffs have not offered evidence that addresses the legal issues in question and their opportunity to do so has largely passed. The deadline for additional discovery in the case was Nov. 14.

But there has been no shortage of evidence entered into the public record.

Hundreds of pages of e-mails unsealed since the case was filed more than a year and a half ago detail intense internal disagreements over minimum technical requirements for the Vista Capable marketing program; Microsoft's sometimes-tense relationship with PC makers and hardware suppliers; and, a board member's negative initial reaction to Vista's debut, plagued by compatibility problems.

All of this disclosure has garnered headlines, "[b]ut those exchanges make no difference on this motion," Microsoft's lawyers wrote in the court filing. "Every company has the right to a robust internal debate over what products and features it should offer and at what price points; the law should encourage that debate."

The lawsuit's focus on Microsoft's internal process around the Vista Capable marketing program — which was designed to maintain demand for PCs in late 2006 and early 2007 before the operating system was released — does not address the relatively narrow legal theories on which the case hinges, Microsoft argued.

In February, U.S. District Court Judge Marsha Pechman limited the scope of the case to whether Windows Vista Home Basic can fairly be called "Windows Vista," and whether the Vista Capable marketing campaign inflated demand for PCs marked with a Vista Capable log, increasing prices.

Plaintiffs have argued that consumers who bought PCs marked Vista Capable were deceived because they were able to upgrade only to the Basic edition of the operating system.

That version could not run the translucent "Aero" user interface — one of the Vista features Microsoft touted.

In its filing Thursday, Microsoft noted that Basic, like all editions of Vista, had improvements to security, "such as Windows Security Center, User Account Control, and Parental Controls."

The company also noted improvements in stability, reliability, and efficiency over predecessor Windows XP — although e-mail disclosed in this case and numerous reports from Vista's first year on the market suggest otherwise.

Vista caused headaches mostly due to incompatible device drivers and software, problems that have since been addressed.

Microsoft stated that out of a total 83 features, the Vista's Premium edition had 17 that Basic did not, including Aero, improved file backup, Media Center and a DVD maker.

"Windows Vista Home Basic falls well within the Windows Vista family as technical matter, which should settle the issue," Microsoft's lawyers wrote.

Microsoft introduced a "Premium Ready" logo to identify PCs that could be upgraded to the Premium edition.

Citing marketing materials from Microsoft, retailers and PC makers, Microsoft's lawyers wrote, "the industry made clear that non-Premium Ready PCs would not run Windows Aero; no one hid that fact. And Plaintiffs have not identified any consumer message during the program suggesting that a non-Premium ready PC would run Windows Aero."

The company pointed out that the internal debate over the marketing program occurred well in advance of its public unveiling May 18, 2006.

On the question of whether the Vista Capable program increased prices, Microsoft pointed to the plaintiffs' own expert witness, an economist, who "cannot quantify any increase in demand or PC prices."

"He did not perform any pricing studies of PCs. He did not observe whether prices of PCs changed once Microsoft implemented the program," the lawyers wrote.

For these reasons, Microsoft is asking the judge to dismiss the case, which is scheduled for trial April 13.

Jeff Thomas of Seattle-based Gordon Tilden Thomas & Cordell, representing the plaintiffs, said via e-mail: "We believe that the motions are without merit and look forward to their resolution so that we may proceed to trial."

Benjamin J. Romano: 206-464-2149 or

Copyright © 2008 The Seattle Times Company

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