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A Manhattan judge has certified a class action suit against Microsoft Corp. on behalf of consumers who charge they were harmed by the software maker’s anti-competitive conduct. Supreme Court Justice Karla Moskowitz ruled the plaintiffs in Cox v. Microsoft, 105193/00, had adequately shown that a class action would be the best way to provide redress to individual consumers. “Clearly, the difficulty and expense of proving the dollar amount of damages an individual consumer suffered, versus the comparatively small amount that any one consumer would expect to recover, indicates that the class action is a superior method to adjudicate this controversy,” she wrote in a July 29 decision that was recently released. The New York suit is one of several filed in courts nationwide in the wake of the U.S. Department of Justice’s 1998 antitrust suit against Microsoft and the 2000 ruling against the company in federal court in Washington, D.C. That ruling was later largely overturned, though an appellate court upheld the finding that Microsoft acted illegally to maintain a monopoly in personal computer operating system software. Among targeted practices was Microsoft’s requirement that computer manufacturers agree to pay a licensing fee to Microsoft for each computer shipped, regardless of the operating system. The practice discouraged manufacturers from installing any operating systems besides Microsoft’s. Consumer plaintiffs have claimed such practices harmed them by denying them choice and inflating prices. Microsoft has already settled several state consumer class action suits. In 2003, a class of California consumers received $1.1 billion in vouchers for Microsoft products. The New York suit had faced an obstacle, however, in that the state’s antitrust law, the Donnelly Act, did not authorize suits for punitive damages. The Appellate Division, First Department, ruled that the treble damages sought in the Microsoft class action amounted to punitive damages. The plaintiffs proceeded with the suit for single damages under a New York law barring deceptive business practices. Microsoft fought certification on these grounds, arguing that the plaintiffs could not show Microsoft deceived each member of the class. But Justice Moskowitz said the plaintiffs needed to show causation, not reliance. “In this case, plaintiffs sufficiently allege that Microsoft’s acts were consumer-oriented, deceptive and that the plaintiffs suffered injury as a result of the deceptive act,” she wrote. The plaintiffs are represented by J. Douglas Richards of Milberg Weiss Bershad & Schulman, Daniel Hume of Kirby McInerney & Squire and David Stellings of Lieff Cabraser Heimann & Bernstein. Microsoft is represented by David Tulchin of Sullivan & Cromwell.

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