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November 20, 2008 4:24 PM

Microsoft seeks to bring Vista Capable class action suit to a swift end

Posted by Benjamin J. Romano

Microsoft this afternoon filed two motions seeking to boot the Windows Vista Capable class action lawsuit from court and decertify the class.

While the internal Microsoft e-mails revealed in the case have garnered headlines -- showing internal conflict over Vista marketing and hardware requirements, and the tricky balance Microsoft tried to strike among its PC industry partners -- the company's lawyers argue today that the plaintiffs' have failed to offer evidence that Microsoft violated the Consumer Protection Acts of Washington or other states.

Update, Friday morning: See this story from today's paper for more details.

The deadline for discovery in the case passed Nov. 14 and Microsoft is now arguing that the plaintiffs have provided all the evidence they're going to, but still haven't addressed important parts of the legal theory behind their claim against the company.

When U.S. District Court Judge Marsha Pechman certified the class in February, she put limits on the scope of the class and the legal theory on which plaintiffs could make their claim against Microsoft.

Microsoft, in its motion today, noted one of those limits was claims that depend on "a deception based theory of causation." Instead, Pechman allowed the plaintiffs to pursue a "price inflation" theory -- the idea that class members who bought a PC marked Vista Capable -- but could only upgrade to Windows Vista Home Basic -- were damaged by paying a higher price than they otherwise would have.

Microsoft's lawyers note:

"The Court identified two common issues: (1) 'whether [Windows] Vista Home Basic, in truth, can fairly be called "[Windows] Vista"' and (2) 'whether Microsoft's Windows Vista Capable marketing campaign inflated demand market-wide for "Windows Vista Capable PCs"' and thereby increased prices. ...

"The discovery cutoff has passed. Because it is clear that Plaintiffs cannot prove any element of their 'price inflation' theory, Microsoft moves for summary judgment."

Microsoft points out that Basic "has nearly all of the same computer code as the rest of the Windows Vista family," and it "never publicly defined Windows Vista in a way that would exclude" Basic.

More added, 4:45 p.m.:

Here are the motions for summary judgment (30-page PDF) and for class decertification (31-page PDF).

Microsoft argues that "Plaintiffs have no evidence that the Windows Vista Capable program caused an artificial increase in the demand for or prices of Windows Vista Capable PCs that were not 'Premium Ready.'"

Microsoft points to the work of an economist plaintiffs hired as an expert witness to develop a price inflation theory, who "cannot quantify any increase in demand or PC prices."

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