Court to Microsoft: Vista Capable’ Appeal Denied

Microsoft took another hit on the legal front Monday when the 9th U.S. Circuit Court of Appeals refused to let the software behemoth appeal a ruling by the judge in the so-called “Vista Capable” lawsuit that had granted the plaintiffs class action status.

In a brief, one-paragraph order, the appeals court denied Microsoft’s request to appeal Judge Marsha Pechman’s February 2008 ruling expanding the case into a class action.

The denial effectively lifts a stay that Judge Pechman granted to Microsoft in early April while the request for appeal was still pending.

Judge Pechman’s stay halted discovery in the case, a welcome respite for Microsoft, which had been roundly embarrassed when Pechman unsealed 158 pages of previously sealed evidence, mostly executives’ e-mails, in late February.

Whether the denial of Microsoft’s request to appeal and the lifting of the stay will put the case back on schedule isn’t clear. The case was originally scheduled for October, however, the discovery process – halted by the stay – will now likely restart.

A deceptive campaign?

The case revolves around claims that Microsoft’s so-called “Windows Vista Capable” marketing campaign, promulgated to help keep the bottom from falling out from under the PC market during the 2006 holiday season, was deceptive. Allegations by the plaintiffs argue that Microsoft’s “Vista Capable” sticker on the boxes deliberately mislead consumers to believe that new PCs that they bought prior to Vista’s consumer delivery on January 30, 2007, could be upgraded to run higher-end editions of Vista that feature the Aero Glass user interface and other graphics intensive features of the operating system.

Instead, the plaintiffs say, Vista Capable only meant that those PCs could run the very lowest-end edition of Vista, which doesn’t support those graphical capabilities. The suit was originally filed a year ago and the plaintiffs later requested the suit be expanded into a class action. The judge agreed and Microsoft requested an appeal. Now that request has been denied so the case will move forward as a class action.

Microsoft’s response to the ruling was pro forma.

“The Ninth Circuit’s decision not to accept our request for interim review is not a ruling on the merits of our case,” Microsoft spokesperson Jack Evans said in a statement. “We look forward to presenting all of the facts on what the district court itself said is a novel claim.”

Representatives for the plaintiffs were not immediately available for comment.

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