Mass. Vs. Microsoft: Uphill Battle Starts Tuesday
Posted by: meshy on Nov 03, 2003 - 03:11 PM
Microsoft
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Massachusetts Attorney General Tom Reilly has taken on such cultural icons in his state as the Boston Red Sox and the Catholic Church. So he's not daunted by the odds he faces in court on Tuesday when his lawyers will begin a lonely, last-gasp bid for tougher antitrust sanctions against Microsoft.
''We expect an ultimate remedy . . . that addresses (the company's) illegal behavior and fixes it,'' he said in a telephone interview. ''If we felt we had no chance, we would not go forward.''
Massachusetts is the last state to forge ahead with the epic antitrust battle, appealing a settlement approved last year by federal Judge Colleen Kollar-Kotelly. That deal was reached in late 2001 between Microsoft and the Justice Department, along with nine states, to settle charges that Microsoft illegally protected its Windows software monopoly and stifled competition. Of nine remaining states, eight accepted the pact after Kollar-Kotelly's ruling.
That left Reilly battling uphill.
''I think it would take an intense act of judicial courage to upset the apple cart when all but one of the players have made their peace,'' says Spencer Waller, law professor at Loyola University.
Yet Howard University law professor Andrew Gavil, who represents Sun Microsystems in a separate antitrust lawsuit against Microsoft, believes there is a chance Reilly can get the U.S. Court of Appeals in Washington, D.C., to send the case back to Kollar-Kotelly to expand the remedies. ''I do think there is still a real possibility the (appeals court) is going to have the final word here,'' Gavil says.
He is less optimistic about a related appeal before the same court Tuesday by two computer groups that will argue Kollar-Kotelly should not have ruled the settlement is in the public interest. Judges are given great deference in approving settlements, Gavil says.
The settlement lets PC makers remove icons for Microsoft's media player and other products from Windows and substitute rival offerings. It also forces Microsoft to disclose Windows' code so rival products can work with the dominant operating system.
Reilly calls the deal ''worthless.'' No major PC makers are removing Microsoft icons. And only nine companies, mostly Microsoft allies, have paid for the code.
Several states said they took the deal only because they were out of money and had new priorities.
''It was resources and timing,'' says Iowa Attorney General Tom Miller. ''If Tom (Reilly) prevails, we would welcome that.''
But experts say Massachusetts faces the high hurdle of showing Kollar-Kotelly was ''clearly erroneous.'' Its lawyers likely will argue she misunderstood the law, because the appeals court is likely to defer to her findings of fact.
For instance, Massachusetts wants to let PC makers unbundle Microsoft products from Windows, not just remove the icons.
It maintains that Kollar-Kotelly's failure to order unbundling is a legal error because these same appeals judges earlier had ruled Microsoft's decision to ''commingle'' software code hurt rivals. Yet the judge found that removing code could hobble Windows and hurt consumers -- a fact-finding the appeals court is unlikely to question.
The state also wants to open the door to non-Microsoft Web services that could challenge Windows. That also may be a long shot.
Reilly's critics charge he's pursuing the case for headlines prior to running for governor. They also point out that Sun Microsystems, also battling Microsoft, recently built a large plant in the state.
Reilly, a wiry, silver-haired 61-year-old, calmly denies the claims. ''I have principles that guide me. We're living in a time when some companies seem to be above the law. Without competition, our economy has no future. I thought it important to see this through.''
Colleagues say he does not back down. ''If he's reached a conclusion, you're going to need dynamite to knock him off the track,'' says Marty Murphy, who worked as a county prosecutor with Reilly.
Last year, Reilly threatened to block the sale of the Red Sox until the buyer agreed to donate an extra $30 million to the seller's charities. And he unsuccessfully tried to prosecute bishops for failing to prevent abuse of children by priests. ''No one can be above the law,'' Reilly says.
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