Not a Lexis Advance subscriber? Try it out for free.

Kelley v. Microsoft Corp.

United States District Court for the Western District of Washington

February 18, 2009, Decided

Case No. C07-0475 MJP



This matter comes before the Court on Defendant's motions for class decertification and summary judgment. (Dkt. Nos. 252, 253.) The Court has considered the motions, the responses (Dkt. Nos. 266, 267), the replies (Dkt. Nos. 287, 292), and all other pertinent documents in the record. In addition, the Court has considered  [*2] the parties' presentations at oral argument on January 22, 2009. For the reasons set forth below, the Court GRANTS Defendant's motion to decertify Plaintiffs' class and DENIES Defendant's motion for summary judgment.


Plaintiffs challenge various aspects of Microsoft's marketing of its Windows Vista ("Vista") operating system. (Dkt. No. 139, Third Amended Compl. [hereinafter "Compl."] P 1.2.) In early 2006, nearly a year before releasing Vista, Microsoft authorized original equipment manufacturers ("OEMs") to place a sticker on personal computers ("PCs") indicating they were "Windows Vista Capable" ("WVC" or "Vista Capable") PCs. (Compl. P 4.3.) At the time, the computers manufactured by OEMs were sold with Windows XP, Vista's predecessor. Plaintiffs allege that a large number of PCs labeled WVC can only operate "Windows Home Basic" ("Basic"), which lacks certain core features of Vista. Plaintiffs further challenge Microsoft's "Express Upgrade Guarantee Program," which allowed customers purchasing WVC PCs to upgrade from Windows XP to Vista for little to no cost. (Compl. P 4.5.) Plaintiffs complain that some customers participating in Express Upgrade were only able to transition  [*3] to Basic.

Microsoft released four versions of Vista: Basic, Premium, Business, and Ultimate. Plaintiffs purchased computers that had "Vista Capable" labels, but did not have "Premium Ready" labels. Vista Capable PCs that did not have the "Premium Ready" designation could generally only run Basic. Plaintiffs allege that Basic cannot fairly be called "The Real Vista." (Compl. P 4.4.) Plaintiffs complain that Basic lacks the Aero graphics interface Microsoft used to promote Vista. (Dkt. No. 267 at 1.) Other technical distinctions between Basic and Premium include a file backup system, the media center, DVD-making capability, and tablet-PC capability. (See Dkt No. 253 at 7-8.) Defendant responds that Basic provides customers with a number of benefits over XP and is a part of the Vista line. (Id. at 7-8; Dkt. No. 292 at 5.) Moreover, Defendant points to its own marketing materials and argue that the distinctions between levels of Vista were made clear throughout the Vista Capable campaign. (Dkt. No. 253 at 9-10; Tindall Decl., Exs. B, C, D.)

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

2009 U.S. Dist. LEXIS 16163 *; 2009 WL 413509

DIANNE KELLEY, et al., Plaintiffs, v. MICROSOFT CORPORATION, a Washington corporation, Defendant.

Subsequent History: Partial summary judgment denied by Kelley v. Microsoft Corp., 2009 U.S. Dist. LEXIS 21742 (W.D. Wash., Mar. 18, 2009)


causation, Plaintiffs', class-wide, summary judgment, predominate, inflation, decertification, isolate, unjust enrichment, campaign, deceptive, unfair, class treatment, certification, consumers, deceived, sales, artificially, customers, courts, label, deceptive act, documents, motions