Attorney Andrew Sokolowski said he discovered the Surface does not have the 32 gigabytes of storage Microsoft advertises because the operating system and pre-installed apps take up almost half of the tablet's memory.
Although Microsoft has acknowledged the tablet's limited free storage capacity in both the 32 gigabyte and 64 gigabyte versions, and lists the free-space capacity on its website, Sokolowski has filed a lawsuit with the Superior Court in Los Angeles seeking class-action status.
Sokolowski isn't seeking damages but wants Microsoft to stop what the lawsuit terms a misrepresentation of the Surface's features and offer refunds to buyers of the tablet, his lawyer said.
"Mr. Sokolowski's lawsuit is about protecting consumers as we head into the holiday shopping season," Rhett Francisco, an attorney representing Sokolowski, told the Los Angeles Times. "Microsoft is misrepresenting the storage capacity and capabilities of the Surface tablet, and consumers should know about it."
Francisco acknowledged Microsoft admits the Surface has less than the advertised free space but said, "If you go through the Microsoft site, you're not going to find it."
"You have to know about these issues and know about this lawsuit in order to find information," he said.
Microsoft said it believes the lawsuit is without merit.
"Customers understand the operating system and pre-installed applications reside on the device's internal storage thereby reducing the total free space," a Microsoft spokeswoman told the Times.