Microsoft loses bid to toss Vista suit

A lawsuit alleging Microsoft's "Windows Vista Capable" program was deceptive marketing will continue after a judge denied the company's attempts to have it dismissed Tuesday.

U.S. District Court Judge Marsha Pechman ruled from the bench in favor of the plaintiff, Dianne Kelley, on two out of four issues raised by Microsoft. She withheld judgment on the other two.

Kelley, a Camano Island woman who bought a computer with a Windows Vista Capable sticker in November 2006, sued Microsoft in March after discovering that the machine was capable of running only the most basic version of Microsoft's new operating system.

Her computer did not have the hardware required to run features of premium versions, such as the flashy Aero user interface.

The Vista Capable logo program was an effort Microsoft began in 2006 to avoid a dip in PC demand ahead of the release of Vista in January by assuring purchasers of new PCs that their machines would be able to run the new operating system.

Microsoft had sought to have Kelley's case dismissed on the grounds that she did not have proper standing to bring the case.

Pechman said that issue will be determined when the parties argue over certification of the case as a class action, meaning it could expand to include anyone who bought a Vista Capable PC under similar circumstances.

Company argument

Microsoft also argued that Kelley did not show that the sticker constituted a written warranty under the Magnuson-Moss Warranty Act.

The judge said she would consider arguments on this point and issue a written ruling in the next two weeks.

No "causal link"

Microsoft also argued that Kelley did not show a "causal link" between the allegedly deceptive Vista Capable campaign and any damage she suffered — a requirement for a claim under the Consumer Protection Act.

The judge ruled that the plaintiffs "have pled enough" on this point in case filings so far to allow the case to go forward. She also sided with the plaintiff in allowing the claim of unjust enrichment to go forward.

The case is still a long way from a resolution. A jury trial is currently scheduled to begin Oct. 27, 2008.

Benjamin J. Romano: 206-464-2149 or bromano@seattletimes.com