EVER SLIPPERY, Microsoft asked that the "Vista Capable" lawsuit against it be stayed while it appeals the judge's approval of class action standing for the case.

The lawsuit, filed almost a year ago, claims that Microsoft misled punters in late 2006 by letting PC makers stick "Vista Capable" labels on lower power machines sold with Windows XP that were later found capable of running only the Home Basic version of Windows Vista rather than the full version that includes most of Vista's new features including the Aero eye-candy graphical interface.

It claims that PC buyers paid more for those machines than they would have parted with had they known that they wouldn't be able to support Windows Vista when that was released a few months later in early 2007.

Never mind that those PC consumers who bought "Vista Capable" machines are likely better off sticking with Windows XP instead of "upgrading" to Vista, seeing as how Vista has turned out to be even more of a pig on qualudes than all prior versions of Windows. The Vole probably won't be arguing that, but even if it did, that wouldn't let it off the hook for having misled customers who expected that "Vista Capable" actually meant "Vista Ready" when they coughed up the readies.

US District Judge Marsha Pechman granted the lawsuit class action status two weeks ago. Microsoft filed a petition to appeal that ruling with the Ninth Circuit Court of Appeals on Friday, a day after it filed a motion before Judge Pechman to stay the lawsuit pending its appeal.

If the case is stayed, that would put off any further discovery by the plaintiffs until the appeal is decided, which could take up to three months or more. The delay would postpone additional revelations of potentially embarrassing emails and other documents by Microsoft and PC manufacturers, hardware suppliers such as Intel, and wholesalers and retailers.

Release of internal company emails last month disclosed that high level Microsoft executives anticipated the problems caused by the "Vista Capable" labels on PCs sold with Windows XP. Microsoft's OEM partners warned the company that the labels would confuse consumers, and even Microsoft's own executives got burned by buying PCs incapable of running the full version of Windows Vista.

In its motion to stay, Microsoft wrote: "Continued proceedings here would cost Microsoft a substantial sum of money for discovery and divert key personnel from full-time tasks...; would intrude on sensitive pricing decisions and strategies by OEMs, wholesalers, and retailers; and would jeopardize Microsoft's goodwill with class members -- all with respect to claims that might not proceed on a class basis at all."

Microsoft argued that, if its appeal is successful, any time and money it spends on additional discovery will have been wasted and any further negative publicity will have been raised unnecessarily. It also claimed that continuing discovery while its appeal is pending might needlessly impair certain business partner relationships.

"Plaintiffs' discovery almost surely will involve intrusion into the most sensitive pricing decisions of the OEMs, wholesalers, and retailers who sell the PCs at issue and set their prices," Microsoft wrote. "Continued discovery thus will disrupt Microsoft's relationships with its business partners, a disruption that will be unnecessary if the Ninth Circuit reverses."

The motion also raised the issue that continuing the lawsuit pending the appeal will require the plaintiffs to advertise nationally for class members to join the litigation, and that the class action search could damage Microsoft's reputation with its customers unfairly. "The result will be nationwide publicity that impugns the ['Vista Capable'] program," it said.

With typical Microsoft chutzpah, the appeal to the Ninth Circuit challenges Judge Pechman's basing her approval of class action standing on Washington state law because Microsoft is headquartered there. It also questions her approval of the plaintiff's theory that PC buyers might have paid more for the so-called " Vista Capable" PCs than they would have without those allegedly misleading labels.

Like many defendants, the Vole is seeking delay in the hope that the passage of time might work in its favour, as "Vista Capable" PC buyers get over having been taken in, witnesses change jobs, memories fade, documents get lost, and so on.

We'll see in due time whether Judge Pechman is fully confident in her rulings and believes the plaintiffs' case deserves to move forward timely, or decides that the potential harm to Microsoft should her rulings be reversed on appeal outweighs the plaintiffs' rights. µ

L'Inq
Computerworld