Cynthia L. Webb, writing for the Washington Post, suggests that Microsoft may be somewhat less litigation-proof in the future than it has been. Basing its traditional defense on the claim of sole and continued ownership of the software it manufactures while selling only licenses for customer use, Microsoft has successfully staved off actions brought against it for security breaches that have left consumers the victims of identity theft.

A law suit, recently filed by a California woman seeking to take advantage of a new state law that calls on businesses to assume greater responsibility for the security of their products, has the potential to become a viable class-action suit if other plaintiffs choose to join it. Marcy Hamilton's case against Microsoft claims that the company failed to warn its customers adequately and promptly when vulnerabilities were discovered. The law, Hamilton's suit contends, requires businesses to inform customers when there is reason to believe that their personal information has been compromised by exposure to hackers or other unauthorized individuals.

The suit contends further that "Microsoft is aware that many consumers are not aware of the number, scope and seriousness of security breaches that have occurred" [or may occur], as reported by Bloomberg. Webb also notes a Reuters report that cites what may lie at the heart of the case, observing that the suit "claims that Microsoft's security warnings are too complex to be understood by the general public and serve instead to tip off 'fast-moving' hackers on how to exploit flaws in its operating system."

Microsoft, hoping to dodge the suit -- especially its class-action aspect -- has made the claim that hackers are really the culprits in this instance. Sean Sundwall, a Microsoft spokesman, said, "This complaint misses the point. The problems caused by viruses and other security attacks are the result of criminal acts by the people who write viruses. Microsoft has made security a top priority and is committed to developing the most secure software possible."

Given Microsoft's deep pockets, lawyer Eugene Crew, whose firm Townsend, Townsend and Crew LLP brought a successful class action suit against the company, class certification is the key to moving forward with the litigation. "If Microsoft can prevent the class from being certified, that will kill the case in the crib. An individual proceeding on his own could not afford to proceed with the case just to recover the damages that he alone suffered," Crew said, as reported by IDG News Service. [...read more...]

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