Thirty-five million Windows 95 users nationwide are being sought as co-plaintiffs in a Seattle lawsuit alleging that consumers of Microsoft’s most recent computer operating system didn’t get their money’s worth.
King County Superior Court Judge Joan DuBuque finished hearing arguments last week over whether she should confer class-action status on the case. But attorneys said they didn’t expect the judge to rule for days, if not weeks.
The case pits the world’s most powerful software company against a team of attorneys from the firm of Steve Berman, a Seattle lawyer who has established a national reputation for pursuing class-action suits against corporations.
Aware that it could raise the stakes astronomically if the suit receives class-action status, Microsoft lawyers are resisting vigorously.
An attorney unrelated to the case who has extensive experience in class-action cases said such status “raises what lawyers call the in terrorem effect - to instill terror.”
In court last week, Microsoft attorney Charles Casper contended there are millions of satisfied Windows 95 users. If the case was certified as a class-action suit, he said, an absurd result could ensue: Awarding money “to lots and lots and lots of people who have used the product just fine.”
Currently, the only named plaintiff is a New York City man named Anthony Lefco who filed the suit in September 1995, about two weeks after Windows 95 was released amidst much media hoopla.
His lawyers said Lefco bought the software after Microsoft unleashed an unprecedented marketing campaign, advertising the product as having been widely tested, highly compatible with existing hardware devices and other software applications, and easy to install.
Instead, Lefco ran into trouble. “Windows 95 displayed a screen indicating the plaintiff’s graphic display interface (GDI) had been corrupted and instructing (him) to reinstall Windows 95,” the suit asserts.
Things turned from bad to worse, and ultimately, “because his personal computer was unusable and contained information necessary for his business and personal affairs,” Lefco had to buy new components to rebuild his computer, the suit alleges.
George Sampson, one of Lefco’s lawyers, told DuBuque that Microsoft didn’t deliver on its promise.
Microsoft’s advertising campaign sought to maximize the product’s reach by emphasizing that it was designed for the average person using the average computer, Sampson recounted. The company touted the product as requiring no special knowledge, claiming “even children could add new software and hardware to the family computer,” he said.
The reality proved far different, he contended. Sampson said that, as a class, consumers “did not get the benefit of the bargain they hoped for.”
Casper, the Microsoft lawyer, countered that Lefco’s experience was hardly representative of Windows 95 users. It’s not as if “35 million Win95 users are clamoring for justice,” Casper said. Rather, he characterized Lefco as a “single disgruntled licensee” whose troubles were not typical.
Casper asserted that Lefco has acknowledged that he failed to follow screen instructions, that he admitted turning his computer on and off more than 100 times, and that his motherboard and monitor were failing at the time he tried to install Windows 95. Casper asserted that the only reason Lefco filed suit was because his brother is an attorney “who expects to see money out of the case.”
Casper called Windows 95 “undeniably one of the most successful software products” in history and noted that it had received numerous awards for excellence from industry magazines.
He urged DuBuque to give careful consideration to recent court decisions that have been conservative about certifying lawsuits as class-action cases because such status tends to magnify and strengthen unworthy claims.
Casper disputed there was any “commonality” present among Windows 95 users who experienced problems, which is one of the conditions to qualify for class-action status. Rather, he said, there have been a number of individual issues, such as the condition of the hardware components and peripheral devices, the function and proper connection of cables, the presence of computer viruses and the disregard of warning or error messages, among others.
Still, Sampson told DuBuque that at trial, the plaintiffs will produce expert testimony and internal Microsoft documents showing that the software giant knew before it put the product to market that it would require extensive technical support.
Much of the court file is sealed because Microsoft has alleged trade secrets would be revealed if papers were made public. And on two occasions last week, DuBuque cleared the courtroom when Microsoft lawyers said proprietary information was about to be disclosed.
Among other things, the lawsuit seeks unspecified monetary damages, attorney’s fees, a declaration that Microsoft’s conduct was unlawful and a court order requiring Microsoft to publish notice of the types of problems that Windows 95 users may experience.
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