Microsoft moves to quash 'Vista Capable' case

Microsoft asked a federal judge Thursday to end the class-action lawsuit that has been the source of a treasure trove of embarrassing insider e-mails that have showed the company bent to pressure from Intel Corp. and infuriated long-time partner Hewlett-Packard Co.

In a pair of motions filed with U.S. District Court Judge Marsha Pechman, Microsoft's lawyers asked her to decertify the class and rule on a summary judgment to dismiss the charges.

If Pechman rules for Microsoft on the decertification motion, the case could conceivably continue, although it would no longer be a class-action with a large pool of plaintiffs; instead, each plaintiff would have to sue Microsoft separately. A ruling for the company on the summary judgment would effectively end the case.

Unlike recent filings by the plaintiffs, which have been packed with quotations from internal Microsoft e-mails that covered everything from managers badmouthing Intel to others who worried how Vista would be compared to Apple Inc.'s Mac OS X, Microsoft's motions were densely worded and full of case citations.

According to Microsoft, the plaintiffs have not demonstrated that the lowest-priced version of Windows Vista was not the "real" Vista, or showed that users paid more for PCs prior to the new operating system's launch because of the Vista Capable campaign. That means the plaintiffs have not met the legal standards set by Pechman, and so have no case, the attorneys argued.

"The evidence refutes Plaintiffs' claims that Windows Vista Home Basic cannot 'fairly' be called Windows Vista," Microsoft said in the motion for summary judgment. "Windows Vista Home Basic has nearly all of the same computer code as the rest of the Windows Vista family, and ... Microsoft never publicly defined Windows Vista in a way that would exclude Windows Vista Home Basic."

Vista Home Basic, the lowest-priced and least-capable version of the operating system, is a key to the Vista Capable lawsuit; the plaintiffs have argued that they bought PCs before Vista's January 2007 launch and expected them to be able to run more than just Home Basic. That edition lacks several advanced features found in some or all of the other versions, notably the Aero graphical user interface.

Elsewhere in the motion, Microsoft claimed that Vista Home Basic shared 93% of the code found in Vista Home Premium, the next-most-expensive version and also the most popular of the consumer editions.

The lawyers also hammered at the price inflation reasoning promoted by the plaintiffs. "Plaintiffs have no evidence that the Windows Vista Capable program ('WVC program') caused an artificial increase in the demand for or prices of Windows Vista Capable PCs ('WVC PCs') that were not Premium Ready," the motion continued.

Last February, when Pechman granted the case class-action status, she blocked the plaintiffs from arguing that Microsoft deceived consumers because that would have required an individual determination for each member of the class action. Instead, she allowed them to pursue a "price inflation" line of reasoning, which would argue that PC buyers paid more than they would have otherwise, after Microsoft's marketing boosted demand and increased the prices of systems that could run Vista Home Basic.

In the motion to decertify the class, Microsoft's lawyers said that the plaintiffs had not met the bar Pechman set when she allowed them to explore the price inflation line. "With discovery closed, Microsoft asks the Court to decertify the class because Plaintiffs have done nothing and propose to do nothing to further develop their price inflation theory," Microsoft said.

Discovery, the legal procedure where the each party is allowed to request documents from other, closed a week ago in the case. "The Plaintiffs have no viable method of establishing class-wide causation," the motion continued.

Over several pages, Microsoft argued that the economist the plaintiffs brought in as an expert witness, Keith Leffler, of the University of Washington, had been unable to come up with