States help keep Microsoft antitrust case alive

Massachusetts and West Virginia face a daunting but not impossible task in appealing the Microsoft antitrust decision, a move that keeps alive for at least a year the threat of additional remedies against the software maker, according to legal experts.

These two states are appealing U.S. District Court Judge Colleen Kollar-Kotelly's Nov. 1 decision rejecting most of the remedies sought by nine nonsettling states -- remedies that would have forced Microsoft to unbundle Windows, turn Internet Explorer into an open-source application and allow the porting of Office to other operating systems, such as Windows, among others.

In her Nov. 1 decision, Kollar-Kotelly backed the U.S.-led settlement reached last year with Microsoft that imposes some business restrictions such as requiring Microsoft to share interfaces, but she otherwise rejected any drastic changes to the company or its products.

Seven of the nine nonsettling states, including California, Connecticut and Iowa, decided to accept last month's decision.

Massachusetts and West Virginia will return the case to the U.S. Court of Appeals in Washington, which will be asked in the appeal to decide whether Kollar-Kotelly misread the court's 2001 decision.

In that earlier decision, the appeals court outlined a test, based on three separate Supreme Court cases, for a remedy. It said a remedy should "terminate the illegal monopoly," as well as "unfetter" the market from anticompetitive conduct. A remedy should also deny the defendant "the fruits" of its violation and ensure "that there remain no practices likely to result in the monopolization in the future."

"The key question is whether she [Kollar-Kotelly] has carried out the mandate of the court of appeals," said Stephen Houck, the former lead trial counsel for the 18 states that pursued Microsoft in its initial antitrust trial. He said he believes the appealing states can raise "significant legal issues that are fair game for arguing."

The appeals court rejected a remedy calling for a breakup of Microsoft but upheld the lower court ruling that Microsoft had illegally maintained its monopoly.

But Andrew Gavil, an antitrust professor at Howard University in Washington, said the Appeal Court's decision offered Kollar-Kotelly a "tapestry of choices" for remedies that reflected the desire of the seven judges to reach a unanimous consensus. "And she selected the elements that resonated the most with her," said Gavil.

Instead of focusing on remedies that denied Microsoft, for instance, the "fruits" of past actions, Kollar-Kotelly focused on the causation -- a legal term for considering whether Microsoft's operating system dominance is a result of its anticompetitive acts. The Appeals court decision said that absent this link, a remedy is limited.

Kollar-Kotelly didn't find a causal connection and pointed out in the her decision that harm to "one or more competitors" however severe, "is not condemned by the Sherman act in the absence of harm to competitive process."

Steven Newborn, an antitrust expert at New York-based Clifford Chance Rogers & Wells LLP, said the odds of a successful appeal aren't bad, but he believes the appeals court may be tired of this case.

"I think everyone is sick of this case -- and I think it's very difficult to overcome the feeling that this thing as run its course."

Join the newsletter!

Or
Error: Please check your email address.
Rocket to Success - Your 10 Tips for Smarter ERP System Selection
Keep up with the latest tech news, reviews and previews by subscribing to the Good Gear Guide newsletter.

Patrick Thibodeau

Computerworld
Show Comments

Essentials

James Cook University - Master of Data Science Online Course

Learn more >

Mobile

Sansai 6-Outlet Power Board + 4-Port USB Charging Station

Learn more >

Exec

Budget

Back To Business Guide

Click for more ›

Brand Post

Most Popular Reviews

Latest Articles

Resources

PCW Evaluation Team

Andrew Teoh

Brother MFC-L9570CDW Multifunction Printer

Touch screen visibility and operation was great and easy to navigate. Each menu and sub-menu was in an understandable order and category

Louise Coady

Brother MFC-L9570CDW Multifunction Printer

The printer was convenient, produced clear and vibrant images and was very easy to use

Edwina Hargreaves

WD My Cloud Home

I would recommend this device for families and small businesses who want one safe place to store all their important digital content and a way to easily share it with friends, family, business partners, or customers.

Walid Mikhael

Brother QL-820NWB Professional Label Printer

It’s easy to set up, it’s compact and quiet when printing and to top if off, the print quality is excellent. This is hands down the best printer I’ve used for printing labels.

Ben Ramsden

Sharp PN-40TC1 Huddle Board

Brainstorming, innovation, problem solving, and negotiation have all become much more productive and valuable if people can easily collaborate in real time with minimal friction.

Sarah Ieroianni

Brother QL-820NWB Professional Label Printer

The print quality also does not disappoint, it’s clear, bold, doesn’t smudge and the text is perfectly sized.

Featured Content

Product Launch Showcase

Latest Jobs

Don’t have an account? Sign up here

Don't have an account? Sign up now

Forgot password?