title: Miers & Microsoft
date: 2005-10-04 12:29:57
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 repr
esentation of Microsoft. So what exactly did she do for the software behemoth? She protected them from class action lawsuits ov
er 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 heavil
y 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 O
bserver: â€œâ€˜Harriet was always flying to Seattle (home of Microsoft), says Lawrence Littwin, the Texas Lottery direc
tor Miers fired in 1997. Thatâ€™s no surprise, as her law firm represented Gates at the time.â€ Miriam Rozen in the M
arch 24, 2003 Texas Lawyer: â€œU.S. District Judge Ed Kinkeade of Dallas, whose appointment to the federal bench became off
icial last month, says Miers low-key approach can startle even those, such as himself, who have known her for a long time. He r
ecalls 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 Mi
crosoft Corp. v. Manning, et al., No. 06-95-00058-CV (Texarkana), 11/13/95, Microsoft sold MS-DOS 6.0 to consumers with disk co
mpression 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 defe
ctive software and should have issued the update without charge. People bought disk compression, but didn't get it. The class w
as 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 result
ed in plaintiffs asking that their case be dismissed as moot after the trial judge withdrew class certification. The appellate
court ruled that â€œif appellees prove that an individual defect exists in all original MS-DOS 6.0 software, it is not nece
ssary for the purchasers to actually suffer a loss of data as a result of a defect for them to suffer damage. They have receive
d less than they bargained for when they acquired the product.â€ 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 peo
ple who actually lost data had a right to sue; that those merely with faulty software hadn't been injured. Rather than lose an
te 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 TL
R? Does she think it's acceptable for Microsoft to sell software that needed a critical stability update?