Lawyers for the consumers suing Microsoft over its "Vista Capable" marketing campaign said they may appeal a judge's ruling that stripped the lawsuit of its class-action status Wednesday.
"We anticipate further motion practice in the trial court, followed by -- if unsuccessful -- an appeal to the Ninth Circuit," said Jeffrey Tilden, a partner in the Seattle law firm Gordon Tilden Thomas & Cordell LLP, when asked whether his team would proceed with the case.
[ Related: Microsoft wins motion, loses one in Vista Capable case. ]
The U.S. Court of Appeals for the Ninth Circuit serves California, Oregon, Washington, and six other states, and it would hear any appeal from the Seattle-based federal court where the lawsuit was filed.
Tilden, as well as Jeffrey Thomas, another partner, declined to get more specific about their plans for the lawsuit. Their firm brought the original lawsuit against Microsoft on behalf of Dianne Kelley, a Washington state resident who bought a PC marked "Vista Capable" in November 2006, two months before the operating system was released to retail.
Microsoft rolled out the Vista Capable marketing program in April 2006 to ensure that PCs equipped with the older Windows XP continued to sell as Vista's release date neared. Computers that bore a Vista Capable sticker could later be upgraded to the new operating system, Microsoft promised.
Kelley claimed that Microsoft pulled a fast one with Vista Capable, however, because the company let computer makers slap the sticker on PCs that later could run only Vista Home Basic, the least-expensive edition. Her lawyers argued that because Home Basic lacked many of the features Microsoft had trumpeted for Vista, including the Aero graphical user interface, it was not a "real" version of the operating system.
On Wednesday, U.S. District Court Judge Marsha Pechman yanked the lawsuit's class-action status, saying that the plaintiffs had failed to show that the Vista Capable campaign had made them pay more for their computers than they would have otherwise.
Although Pechman's decision doesn't end the case, it requires that each plaintiff sue Microsoft separately, and makes it impossible for others to join the lawsuit without hiring their own attorneys. There are currently six plaintiffs, including Kelley.
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