Posted on 11/30/2002 11:38:00 AM PST by Sparta
Massachusetts announced yesterday that it would fight on in court to try to toughen the sanctions against Microsoft in the company's long-running antitrust case.
Seven other states and the District of Columbia said they would not appeal a federal judge's order earlier this month, which did little to strengthen a settlement reached last year between the Bush administration and Microsoft. West Virginia said it would decide on Monday, the deadline for deciding whether to appeal.
Advertisement
Tom Reilly, the attorney general of Massachusetts, called the order by Judge Colleen Kollar-Kotelly a "loophole-filled deal" and a mere "slap on the wrist" for a company found in court to have been a monopolist that had repeatedly violated the nation's antitrust laws.
The Massachusetts move to appeal on its own, legal analysts say, is somewhat surprising. States that were at the forefront of the push for tougher sanctions, including California, Iowa and Connecticut, chose not to appeal, deciding it was time to move on from a suit filed by the Clinton administration and 20 states in May 1998.
The Massachusetts appeal, legal experts said, will be difficult to win at this stage. "There are a few legitimate grounds for appeal, but the chances of prevailing are not high," said Andrew I. Gavil, a professor at the Howard University law school.
The appeals court, Mr. Gavil noted, must give considerable deference to Judge Kollar-Kotelly. The appellate court cannot overrule her on interpretation of the facts of the case; it can act only if it believes that she misinterpreted the law — which will not be easy to show in her ruling, which was confined to what were the appropriate remedies in the case.
The Massachusetts plea will be filed before the federal appeals court in Washington, which has tilted toward Microsoft somewhat in the past. The appeals court last year upheld the initial ruling by Judge Thomas Penfield Jackson that Microsoft was a monopoly that had abused its power, but it also brushed aside his order to split the company in two and substantially reduced Microsoft's liability in the case.
State attorneys general who chose not to appeal Judge Kollar-Kotelly's remedy decision wished Mr. Reilly well. But their actions suggested that they were skeptical of the value of continuing the battle against Microsoft in court.
"In litigation, as in life, timing is everything," said Richard Blumenthal, the attorney general of Connecticut. "Now is the time to end this chapter of the case and focus on enforcement."
The group of states that sued to try to win stronger sanctions against Microsoft were not pleased with Judge Kollar-Kotelly's ruling, which followed 10 weeks of hearings in Washington. "We got some things but not nearly as many as we wanted," said Tom Miller, the Iowa attorney general.
The dissenting states, which chose not to appeal, argue that their effort was not in vain, saying the enforcement measures were strengthened and some loopholes were tightened in the requirement that Microsoft share technical information with industry partners and rivals.
Microsoft counters that the only substantive element added to the original settlement was a requirement for a three-member committee on the Microsoft board to oversee compliance.
The states that chose not to appeal say the time has come to focus their efforts on enforcing Judge Kollar-Kotelly's decree instead of further confrontation in court. They announced that Microsoft agreed to pay them $28.6 million — $25 million for lawyer fees and litigation costs, and $3.6 million that the states will use to monitor Microsoft's compliance with the decree.
For its part, Microsoft issued a statement that it would focus on "complying fully with the court's judgment, working collaboratively with governments to address the important public policy issues relating to information technology and the Internet, and on developing innovative products that will benefit consumers."
In a news conference yesterday, Mr. Reilly said his appeal was being made with consumers in mind. "Microsoft is crushing innovation," he said. "And we all get hurt by that."
Mr. Reilly has not yet filed his appeal, and he gave few details of his challenge. But he did note that Microsoft was found to have illegally blended — "commingled," in the legal term — programming code for its Windows operating system with its Internet browser. Mr. Reilly noted that no remedy seemed to address that violation.
In her ruling, Judge Kollar-Kotelly noted that the often uncertain link between a violation and consumer harm tended to argue for limited sanctions. That, legal experts said, is an example of a judgment that is open to debate on appeal. "That's a good issue to appeal," noted Mr. Gavil of Howard University.
The seven states that decided not to appeal were California, Iowa, Connecticut, Florida, Minnesota, Kansas and Utah. The District of Columbia also chose not to appeal.
Microsoft still faces other antitrust challenges. Next week, a federal judge in Baltimore will hear testimony on a motion by Sun Microsystems for an injunction against Microsoft, seeking to force the company to carry Sun's Java technology as part of Microsoft's .Net programming tools.
The European Union is expected to come to a decision in its antitrust investigation of Microsoft in the next few weeks.
Not to worry. The impending McDonald's class action suit should keep them in socialist government handouts for five more years.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.