Intel fails to get Spectre, Meltdown chip flaw class-action super-suit tossed out

Cheesed-off customers have 'alleged enough facts at this stage' to allow legal battle to continue, says judge


Intel will have to defend itself against claims that the semiconductor goliath knew its microprocessors were defective and failed to tell customers.

On Wednesday, Judge Michael Simon, of the US District Court of Oregon, partially denied the tech giant's motion to dismiss a class-action lawsuit arising from the 2018 public disclosure of Meltdown and Spectre, the family of data-leaking chip microarchitecture design blunders.

The Register broke the Meltdown story on January 2, 2018, as Intel and those who confidentially reported the security vulnerabilities were preparing to disclose them. The following day, Google's Project Zero published details of Meltdown and its cousin Spectre, revealing that efforts to make CPU cores faster using speculative execution have opened them up to side-channel attacks that can read memory that should be out of reach and leak confidential information.

To defend against Meltdown and Spectre, Intel and other affected vendors have had to add software and hardware mitigations that for some workloads make patched processors mildly to significantly slower.

The disclosure of related flaws has continued since that time, as researchers develop variations on the initial attacks and find other parts of chips that similarly expose privileged data. It is a problem that still is not entirely solved.

Intel, as the largest x86 microprocessor maker, has been the most affected by the findings: its chips were vulnerable to both Meltdown (along with Arm Cortex-A75 and IBM POWER) and Spectre, whereas rivals like AMD were affected only by Spectre. Thus Intel is the focus of much litigation: the biz faced 32 lawsuits only a month after the vulnerabilities were publicly acknowledged.

Those lawsuits have been consolidated into a multi-district proceeding known as "Intel Corp. CPU Marketing, Sales Practices and Products Liability Litigation" (3:18-md-02828-SI). And since 2018, Intel has been trying to get them to go away.

Twice before the judge had dismissed the plaintiffs' complaint while allowing the plaintiffs to amend and refile their allegations. This third time, the judge only partially granted Intel's motion to toss the case.

Judge Simon dismissed claims based on purchases up through August 2017 because Intel was unaware of the microarchitecture vulnerabilities up to that point. But he allowed seven claims, from September 2017 onward, to proceed, finding the plaintiffs' contention that Intel delayed disclosure of the flaws to maximize holiday season sales plausible enough to allow the case to move forward.

"Based on plaintiffs' allegations, it is not clear that Intel had a countervailing business interest other than profit for delaying disclosure for as long as it did (through the holiday season), for downplaying the negative effects of the mitigation, for suppressing the effects of the mitigation, and for continuing to embargo further security exploits that affect only Intel processors," the judge wrote in his order [PDF]. 

"For the seven plaintiffs who purchased computers after September 1, 2017, they have alleged enough facts at this stage of the proceedings to survive Intel's motion to dismiss on the grounds of failure to state a claim."

The case isn't yet destined for trial as there are more procedural steps along that road. The likely off-ramp for Intel, in the absence of further procedural defenses, would be a settlement – a trial runs the risk of a significant damage award.

"We are pleased with the Court's decision, which found that the claims we allege show Intel 'took advantage of consumers' lack of knowledge such that the resulting unfairness was glaringly noticeable, flagrant, complete, and unmitigated,' said Christopher Seeger, an attorney with Seeger Weiss LLP, who is lead counsel for the plaintiffs, in an emailed statement.

"We look forward to advancing this litigation on behalf of consumers and businesses that were left with slower and less secure computers due to the defects found in Intel's processors."

Intel declined to comment. ®

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