Miers & Microsoft

Reposted from www.slingshot.org:

Miers & Microsoft
October 4, 2005 – 1:27 am
We don’t know much about Harriet Miers; her qualifications list is short. But one item that is invariably included is her representation of Microsoft. So what exactly did she do for the software behemoth? She protected them from class action lawsuits over their faulty products. The Senate Judiciary Committee missed the boat on Roberts, failing to dig into his views on corporate liability. It remains to be seen if they repeat their mistakes with Miers, but her Microsoft work should clearly figure heavily in any examination of her record.

She was in frequent communication both with Microsoft and with Gates personally. Greg Palast reports in the January 21, 2001 Observer: “‘Harriet was always flying to Seattle (home of Microsoft), says Lawrence Littwin, the Texas Lottery director Miers fired in 1997. That’s no surprise, as her law firm represented Gates at the time.” Miriam Rozen in the March 24, 2003 Texas Lawyer: “U.S. District Judge Ed Kinkeade of Dallas, whose appointment to the federal bench became official last month, says Miers low-key approach can startle even those, such as himself, who have known her for a long time. He recalls reaching her on the phone a few years back and having her say, Ed, can you give me just a minute? I’ve got Mr. Gates on the line. I’m doing a little work for Microsoft.

Microsoft was sued for distributing faulty compression software for MS DOS 6.0, then charging for an update. As laid out in Microsoft Corp. v. Manning, et al., No. 06-95-00058-CV (Texarkana), 11/13/95, Microsoft sold MS-DOS 6.0 to consumers with disk compression software that it had purchased from a third party without adequate testing. The software proved to have serious bugs, and destroyed data on occasion. Microsoft released an update, MS-DOS 6.2, for $ 9.95. They were sued, and lawyers were able to get a lower court judge to certify as a class all people who’d purchased MS DOS 6.0; the argument was that Microsoft sold defective software and should have issued the update without charge. People bought disk compression, but didn’t get it. The class was certified at the trial level and certification was affirmed on appeal.

Harriet Miers got the class decertified. Walt Borges in the October 21, 1996 Texas Lawyer details Miers’ success, which resulted in plaintiffs asking that their case be dismissed as moot after the trial judge withdrew class certification. The appellate court ruled that “if appellees prove that an individual defect exists in all original MS-DOS 6.0 software, it is not necessary for the purchasers to actually suffer a loss of data as a result of a defect for them to suffer damage. They have received less than they bargained for when they acquired the product.” The trial court, though, revisited the issue and withdrew certification based on a Miers brief that argued the earlier decision was flawed because he lower courts upheld certification without determining whether the novel theory of the case was proper for a class action suit. Microsoft believed that only people who actually lost data had a right to sue; that those merely with faulty software hadn’t been injured. Rather than lose an appellate court decision on the issue, the plaintiffs withdrew their suit.

Miers Joined by Texans for Lawsuit Reform. The TLR argument: the published opinion of the Texarkana Court of Appeals threatens to eviscerate the protections provided by [Rule 42] by allowing trial courts to conduct only a superficial, inadequate inquiry into the suitability of a case for class action treatment before certifying a class.

Does Miers personally favor such stringent limitations on class certification? Does she agree with the argument advanced by TLR? Does she think it’s acceptable for Microsoft to sell software that needed a critical stability update?

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