MS/DOJ - Microsoft, states sum up cases for judge

ITworld.com –

Microsoft Corp. and the group of states that continue to press the long-fought antitrust case against the software make submitted to a U.S. District Court their recommendations for a resolution of the case, paving the way for a judge to decide how to punish Microsoft for violating federal antitrust laws.

In lengthy court documents, the two sides offered largely conflicting views both on what remedies U.S. District Court Judge Colleen Kollar-Kotelly should impose and on what laws she should base those remedies. Kollar-Kotelly's final decision in the remedy portion of the trial, known as findings of fact and conclusions of law, is expected some time in the next few months.

These filings are required in antitrust cases in part so an appeals court later can use the documents to determine whether the judge overseeing the case got the law right and had the proper evidence to enforce those laws, according to Emmett Stanton, an attorney with Fenwick & West LLP, in Palo Alto, California, who specializes in antitrust law.

"(Kollar-Kotelly) could adopt one of the proposals wholesale or use them as a starting point," Stanton noted.

In a 540-page document filed with the U.S. District Court for the District of Columbia, Microsoft detailed its recommendations, which didn't budge much from its position in November 2001, when Microsoft agreed to a settlement with the U.S. Department of Justice and nine states, which have signed on to that proposed settlement.

It argued that "the (non-settling) states' remedy is unworkable, would cause great harm to the PC ecosystem, would hurt consumers and is hopelessly vague and ambiguous," according to a statement from Microsoft spokesman Jim Desler. Meanwhile, Desler said in the statement that the proposed settlement with the DOJ and nine states "is a tough but fair and appropriate resolution of this case."

Microsoft argued that there were "a number of flaws in the case mounted by the non-settling states," and that are not entitled to any relief that goes beyond what the company agreed to in its proposed settlement, according to the text of the filing. All the provisions the states are seeking "go beyond the 12 acts found to be anticompetitive by the U.S. Court of Appeals," Microsoft wrote.

The company also charged that the witnesses and expert testimony offered by the suing states was thin and "self-serving." The suing states -- California, Connecticut, Florida, Iowa, Kansas, Massachusetts, Minnesota, Utah and West Virginia -- as well as the District of Columbia, Monday filed their 520-page report detailing their proposal for how Kollar-Kotelly should rule in the case.

Iowa Attorney General Tom Miller, who is leading the states' push, issued a statement following the release of the document characterizing the states' case as a strong one. "The filing gives the Court a powerful foundation for ordering injunctive relief necessary to repair the systematic harm that Microsoft has inflicted upon consumers and competition in the computer software industry," he said.

The suing states are seeking remedies to be imposed on Microsoft that are forward-looking and go well beyond the proposed settlement with the federal government. They want the judge to force Microsoft to offer a stripped-down version of the Windows desktop operating system that allows hardware makers to ship computers with products such as a media player or instant messaging application from competing vendors. They also want to force Microsoft to make its Office desktop software run on competing operating systems, and make the underlying code of the Internet Explorer Web browser freely available to developers.

Closing arguments from Microsoft and the states are scheduled to begin on June 19.

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