Delta Air Lines dials up Microsoft's legal nemesis over CrowdStrike losses

Delta Air Lines lost hundreds of millions of dollars due to the CrowdStrike outage earlier this month – and it has hired a high-powered law firm to claw some of those lost funds back, potentially from the Falcon maker and Microsoft itself.

CNBC broke the news yesterday that Delta had hired famed lawyer David Boies to look into what the airline could do to recoup as much as an estimated $500 million in operational losses due to the July 19 CrowdStrike outage. Millions of Windows machines around the world were knocked offline due to what we now know was a bad Channel File update, with Microsoft sharing some of the billions of dollars in blame for the incident with CrowdStrike.

For those who don't recognize Boies's name, you'll likely be aware of his work – and so will Microsoft. Boies was appointed as special trial counsel for the Department of Justice's 1998 antitrust fight against the Windows maker, and has represented Microsoft opponents in other cases as well.

Microsoft was found guilty on most charges related to tying Internet Explorer to Windows to push out rival browser makers in 2000 before settling on appeals with the DoJ the following year.

Boies has also represented high-profile tech sector clients including Theranos, where he also sat on the board until the US government's investigations of the business began. Additional cases Boies was involved with include representing plaintiffs in a 2009 California case that overturned the state's ban on same-sex marriage, representing US presidential candidate Al Gore in his failed case against George Bush after the 2000 election, and working for victims of Jeffrey Epstein. 

The Register has received confirmation from our sources that Delta has hired Boies's firm, Boies Schiller Flexner, to look into their recovery options – which potentially includes Microsoft and Crowdstrike. Boies himself may not be directly involved in the case, we're told.

Delta declined to comment, and Microsoft hasn't responded to questions either, while CrowdStrike only told us it was "aware of the reporting, but have no knowledge of a lawsuit and have no further comment."

Delta will need all the help it can get

There doesn't appear to have been a lawsuit filed against CrowdStrike and Microsoft by Delta, but it makes sense that the company would hire such a high-profile lawyer in the matter. If CrowdStrike's terms and conditions end up holding legal water, there's not much Delta can do to claw back its losses.

• CrowdStrike Windows patchpocalypse could take weeks to fix, IT admins fear
• How a cheap barcode scanner helped fix CrowdStrike'd Windows PCs in a flash
• CrowdStrike meets Murphy's Law: Anything that can go wrong will
• EU gave CrowdStrike the keys to the Windows kernel, claims Microsoft

CrowdStrike's Ts&Cs limit its liability only to refunding customer money paid for services rendered, and excludes any obligation to refund customers for losses due to interrupted service or other problems. Speaking to Business Insider, lawyer Elizabeth Burgin Waller said shortly after the outage that some large companies (airlines like Delta, for instance) may have negotiated additional coverage from CrowdStrike, but those contracts typically aren't public. Absent of Delta making its CrowdStrike agreement public, it's unknown if Delta has better terms to support its claims.

Delta is likely trying anything it can do right now to get government regulators off its case, and shifting blame onto CrowdStrike and Microsoft is likely first on its list of strategies. The US Department of Transportation opened an investigation into the airline last week following its cancellation of nearly 7,000 flights and a growing list of reimbursement requests from nearly 200,000 passengers.

Delta, said Secretary of Transportation Pete Buttigieg, took way longer than other affected airlines to recover.

"Most of those airlines recovered and got back to normal within a couple of days. Delta, on the other hand, still not back to normal," Buttigieg said on Wednesday, July 24.

Delta reported the next morning that it had returned to normal operations. ®