Microsoft Wins Another CPA Claim in Washington
Right around Christmas I gave you a boxed set of decisions involving Apple as a defendant. Today I thought I would even the score a bit and report on a short decision by U.S. District Judge Marsha J. Pechman regarding claims against Microsoft.
In Alvarado v. Microsoft Corp., 2010 WL 715455 (W.D. Wash. Feb. 22, 2010), the plaintiff had brought a putative class action under Washington's Consumer Protection Act, as well as a common law claim of unjust enrichment and a request for declaratory judgment. Plaintiff complained that customers who buy new computers and only want to run Windows XP must first buy a computer with Vista or Windows 7 and then "downgrade" their computer to XP.
Plaintiff alleged that she bought a Lenovo laptop that included a license to use the Vista Business Operating System.
Judge Pechman analyzed the CPA claim first, holding that plaintiff failed to plead that she was a direct purchaser, thus running afoul of the CPA's direct purchaser requirement. Washington's intermediate appellate court had rendered a decision in a pharmacy case that patients who buy medicines from a pharmacy are indirect purchasers who do not have claims against the maufacturers. See Id. at *2 (citations omitted).
She also held that plaintiff failed to identify an unfair or deceptive act or practice. Unfairness, under Washington law, requires a legislative declaration that certain acts are per se unfair. There were no such declarations here. Second, there was nothing deceptive about Microsoft's conduct of selling new computers with the most advanced operating systems. Because the plaintiff had been given multiple opportunities to plead a CPA claim, the court dismissed this count with prejudice.
The court dismissed the unjust enrichment count without prejudice. The court rejected Microsoft's argument that an indirect purchaser cannot assert an unjust enrichment claim. Id. at *5. She did note, however, that plaintiff never pled that she had to pay for a downgrade; in fact, from the complaint it seemed that she received both XP and Vista for the price of one. Accordingly, there was no unjust enrichment. And since there was no unjust enrichment and no violation of the CPA, there could be no declaratory judgment.
