Microsoft: If Vista buyers knew so much, why would they sue?

In all the confusion that arose in 2006 over whether lesser-grade editions of Windows Vista was "real Vista" and whether existing PCs were ready or capable of running it, consumers probably downloaded a lot of information about different ways they could get their hands on the new product. In a motion filed last week by Microsoft in the "Vista Capable" suit in US District Court in Seattle, and first reported on by our friend Todd Bishop at Seattle's TechFlash, the company argues that the wealth of such information that former plaintiffs unearthed during their purchasing research should have been enough to tell them that Vista Home Basic wasn't the same as Vista Home Premium.

For that reason, the company claims, prospective plaintiffs can't exactly say they were harmed in the same way, so they don't deserve to be re-enlisted as class action plaintiffs. The judge in that case threw out the class action distinction last month.

Essentially, the argument goes like this: If these former plaintiffs know enough about the differences between Vista SKUs to file the suit, then they can't exactly say they've been damaged because they've proven they do have access to this information. And if they don't know enough about the differences, then they can't argue they've been harmed the same way because they don't understand the harm itself...so they lose either way.

"Simply having a subjective desire to obtain Vista and then obtaining Windows Vista Home Basic through the Express Upgrade program could not establish that an individual was deceived or suffered injury," writes Microsoft's attorneys. "Someone who read publicly available information and expected to receive Windows Vista Home Basic, and who had no desire to pay more for a PC to support Windows Aero or other premium features, could not claim that she suffered any harm as a result of an allegedly deceptive act. The trier of fact would face these questions for each member of the proposed Express Upgrade class."

Microsoft then cites case law which came to the conclusion that "Without determining what each member heard, saw, or knew, it is impossible to assign liability."

But Microsoft does apparently know what some prospective/former plaintiffs saw and knew, having cited a Computerworld article in one petitioner's possession as an example. That article stated that HP was offering its customers free upgrades from Windows XP Home Edition to Windows Vista Home Basic, or from XP Media Center Edition 2005 to Vista Home Premium (which contains the latest Media Center). Anyone who understood the distinctions between the XP SKUs should understand the corresponding differences between the Vista SKUs.

But just in case anyone wanted to argue that Vista Home Basic left many users without functionality and capabilities that Microsoft had long promised, the company's argument is that customers who don't understand what those capabilities are, can't argue that they're being harmed by using PCs that don't have them. If they're missing such features as, say, Windows Display Driver Model (WDDM, which enables Vista to run the Aero front end), and they wouldn't have known it unless someone else told them, then what does it matter?

"In sum, a trier of fact could not decide on a class basis whether PC buyers may have been satisfied with their purchase decision because, like Ms. [Diane] Kelley [the original plaintiff], they bought PCs that would perform well at a lower price running Windows XP," argues Microsoft. "For those who never upgraded to Windows Vista (and never intended to do so), the absence of WDDM support amounted to a hypothetical shortcoming that could not affect them at all in real life. And those who (unlike Ms. Kelley) chose to upgrade to Windows Vista Home Basic may have been entirely satisfied with their upgrade. The trier of fact would have to hear individual testimony to decide if anyone suffered injury, making the WDDM claim unsuitable for class treatment."
Judge Marsha Pechman has not yet ruled on Microsoft's motion.

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