Firm Seeks Dismissal of Class Action Against Microsoft ...Again

Second verse, same as the first.

Fall 2013

In May 2011, Jason Salmonson filed suit against Microsoft Corporation, alleging that Microsoft violated the Song-Beverly Credit Card Act, ยง1747.08 et seq. when it requested his personal identification information ("PII") during the course of an online transaction. Microsoft retained the Willenken Firm (headed by partners William Delgado and Eileen Ahern) as its California counsel to defend the action.


After removing the case to federal court, Microsoft filed a motion to dismiss under Rule 12(b)(6), arguing that the Act did not apply to online transactions; rather, the Act applied only to brick-and-mortar stores. In January 2012, U.S. District Judge Jacqueline Nguyen agreed with Microsoft that the Act did not apply and dismissed the matter. But, then, in February 2012, she discovered she had a conflict of interest which prohibited her from presiding over the matter in the first instance. She retracted her dismissal, and the matter was reassigned, ultimately landing on the docket of recent appointee, the Honorable Jesus Bernal. The case then sat in limbo while the
legal issue-whether the Act applied to online transactions-played out in the state courts.


At the same time Salmonson filed suit against Microsoft, Salmonson's counsel filed a similar lawsuit against Ticketmaster (whom the Willenken Firm also represents), eHarmony, and Apple.  These matters proceeded through the state court system and, ultimately, to the California Supreme Court where Apple v. Superior Court (Krescent) was designated as the lead case. Adopting many of the arguments Microsoft made in the Salmonson case, Apple argued that the Act had no application to online transactions.


In February 2013, the California Supreme Court issued its decision, holding that the Act does not apply to an online transaction where the product is downloaded, which is precisely the type of transaction alleged by Salmonson. Recognizing that the Apple decision effectively eliminated any possibility of moving forward with his lawsuit, Salmonson requested that the court dismiss his lawsuit. In May 2013,Judge Bernal dismissed the lawsuit against Microsoft with prejudice.