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The first computer “bug” was, in fact, a real insect that was causing a computer to malfunction. It was unique; it was tangible; and it was easily removed. Nowadays, computer bugs are not only intangible software glitches or errors, but they also seem to be an inherent and pervasive part of computer programs and hardware. This phenomenon is exacerbated by the mass production of computer products around the world, the pressure to send high-tech products to market before they have been tested fully, the impracticality of testing computer products in every foreseeable use and configuration, the complex nature of computer programming and architecture, and the fact that more and more “hardware” is now really microcode or “software.” To be sure, many of these bugs are innocuous. But many of them also can be characterized as product “defects.” Consequently, this explosion of bugs or defects in computer technology has seen a similar explosion of computer class action cases. Indeed, consumer class actions involving computer products have continued to thrive in Texas despite the Texas Supreme Court’s recent hostility toward class actions. In Southwestern Refining Co. v. Bernal(2000), the Texas Supreme Court explained that while “the class action device is unquestioningly a valuable tool in protecting the rights of our citizens” — especially when the prospect of small recoveries on behalf of individual consumers would not otherwise be worth an attorney’s time — the class certification requirements set out in Texas Rule of Civil Procedure 42 must be analyzed rigorously. The Texas Supreme Court emphasized that trial courts no longer can take the “certify now and worry later” approach. This means that trial courts — in addition to making sure that the numerosity, commonality, typicality and adequacy of representation requirements are met — also must articulate a workable trial plan. This is especially true in Rule 42(b)(4) cases, where plaintiffs also must prove that the common questions of law or fact will predominate over any individual issues and that a class action is a superior means of adjudicating the dispute. This stringent standard articulated by the supreme court has not, however, completely prevented class certifications in Texas, especially in the area of computer technology. Two cases that illustrate why computer class actions appear to be more susceptible to class certification than other consumer cases are Schein Inc. v. Stromboe(2000) and Compaq Computer Corp. v. LaPray(2002). In Schein, the 3rd Court of Appeals in Austin affirmed class certification in a case in which sellers of office management software were sued for alleged defects, according to the opinion. The plaintiffs claimed that the alleged defects caused them to experience problems ranging from “slow processing” to data corruption, according to the opinion. In certifying the class under Rule 42(b)(4), the court decided that the common issues would predominate at trial. These issues included the nature of the alleged defects in the software and the extent of the seller’s alleged knowledge of the defects. With regard to the liability issues, the court said: “Once a jury answers the question of whether the software contains a programming defect as to one class member, it will be answered as to all. …” The court also reasoned that damages could be determined on a classwide basis, because if the program was defective, then “every class member has received less than the benefit of his or her bargain,” and the primary measure of damages sought was the disgorgement of amounts paid to the defendants. Similarly, in Compaq v. LaPray, the 9th Court of Appeals in Beaumont affirmed class certification in a case involving allegedly defective floppy disk controllers. What is particularly interesting about Compaqis that it seeks to declare a consumer class’s rights under the Compaq warranty (i.e., that the computer is allegedly defective and the buyer is entitled to have it repaired), thereby invoking Texas Rule of Civil Procedure 42(b)(2) and avoiding having to establish the “predominance” requirement of Rule 42(b)(4). Compaqalso found that certification of a class was proper even though not everyone in the class had experienced the data loss that theoretically can result from the alleged bug in the floppy disk controller. In reaching this conclusion, the court followed the 1995 holding in Microsoft Corp. v. Manningby the 6th Court of Appeals in Texarkana that purchasers of software — unlike consumers of tires or automobiles — are “damaged” under Texas law even if the defect does not manifest itself because the user is ostensibly forced to avoid using the product for fear that the defect suddenly will manifest itself. Given the tendency of courts to focus on the basic nature of the alleged defect in the context of a computer class action, it becomes imperative for plaintiffs’ lawyers and defense counsel to understand the technology at issue. Plaintiffs’ attorneys will want to argue that the existence of the defect is the only necessary inquiry. Defense counsel, on the other hand, will want to argue that the varied uses and configurations of the product will determine whether a defect exists, and, if so, whether the plaintiffs have been damaged. Defense counsel also will want to characterize the alleged defect as a mere “bug” or “operating restriction” that is purely theoretical or inconsequential. While plaintiffs’ attorneys should argue that computers are distinguishable from other products so that claims may be brought even if the defect has not manifested itself, defense counsel should argue that bugs in computers are now a fact of life and everyone expects programs to have bugs. To be sure, once the bugs are discovered and determined to be significant, the manufacturer should provide a patch so as to argue that the defect, if any, has been repaired. Similarly, the risks and costs associated with defending a complicated class action case might mitigate in favor of settling on a classwide basis and forever resolving the dispute. Attorneys who prosecute or defend computer class action cases in Texas should pay close attention to the ultimate resolution of the above cases. Depending on what the Texas Supreme Court does, computer class action cases in Texas might be difficult (or impossible) to certify — or they might remain one of the anomalies (or bugs) in consumer class action case law in Texas. David J. Levy is a partner in the litigation, international and intellectual property and technology departments at Fulbright & Jaworski ( www.fulbright.com) in Houston, where he focuses on commercial, technology and class action cases. His e-mail address is [email protected]. If you are interested in submitting an article to law.com, please click herefor our submission guidelines.

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