It's a lame-duck suit. MS can only be held liable for breach of contract if the contract states that MS will provide guaranteed 24x7 uninterrupted service.
Yes, there is an implied level of service, but having the servers overloaded due to unanticipated demand for a short period of time, i.e. - a few days, doesn't mean MS didn't perform due diligence.
The phone company only provides enough capacity to service a small percentage of customers using the phone system at the same time. During national emergencies, such as earthquakes, etc., people have frequently experienced "lines are all busy" messages, but you can't sue the phone company during those periods. Utility/service providers are only expected to cover "normal" usage patterns. If a service provider scaled up to provide service during worst case load, we would all be paying a fortune for that service.
