Microsoft, DOJ Find Little Common Ground in Filing

By eweek  |  Posted 2001-09-20 Print this article Print

In a joint filing today, Microsoft sought to narrow the scope of punishments aimed at it for antitrust violations, while the Department of Justice asked for a speedy resolution to the case.

WASHINGTON, D.C. - In a joint filing today, Microsoft sought to narrow the scope of punishments aimed at it for antitrust violations, while the Department of Justice asked for a speedy resolution to the case. Microsoft and the DOJ sparred in the Joint Status Report over dramatically different interpretations of an appeals courts remand that puts the case in the courtroom of Judge Colleen Kollar-Kotelly for a final decision on remedies to Microsofts illegal conduct.
In June, the U.S. Court of Appeals for the District of Columbia Circuit found Microsoft had illegally maintained its monopoly in operating system software but handed the case back down for more deliberation on how the company should be penalized. The case was originally tried in the U.S. District Court of the District of Columbia before Judge Thomas Penfield Jackson, who found the company guilty of breaking numerous antitrust statutes. It now goes back to that court to be completed by Kollar-Kotelly after Jacksons disqualification.
The DOJ wants the penalty phase to move quickly, using all of Jacksons suggested punishments as a guide. Those remedies include compulsory licensing and the release of Microsofts closely guarded application program interfaces. "Plaintiffs have advised Microsoft of their position that, in order to unfetter the market from Microsofts anticompetitive conduct, to deny Microsoft the fruits of its violations of the Sherman Act, and to ensure that there remain no practices likely to result in monopolization in the future, they will seek injunctive relief modeled on the conduct-related provisions of the prior Final Judgment," the DOJ wrote. The DOJ also asked the District Court to request proposed remedies from each side by Nov. 9 with a full evidentiary hearing starting on February 4, 2002. Microsoft offered two alternative schedules, depending on whether it can convince Kollar-Kotelly to narrow the scope of the remedies. It argued that an appeals court substantially narrowed Microsofts liabilities in a June ruling, and that therefore Jacksons remedies go too far. "The vacated conduct remedies . . . would wreak havoc not only on Microsoft, but also on the thousands of companies that build products that take advantage of Microsofts innovations in Windows," wrote Microsoft. If Microsoft persuades Kollar-Kotelly to limit the scope of remedies, then the company proposes starting hearings within three months of that decision. If the judge does not agree to narrow the decision-making, Microsoft wants hearings no earlier than six months from that ruling. The DOJ criticized Microsofts proposed timetables as a harmful delay which "advantages only Microsoft because, while it waits for these proceedings to conclude, it continues to have available to it all of the tools condemned by both Courts to continue its illegal maintenance of its monopoly." Microsoft countered that it needs the time to prepare if Kollar-Kotelly chooses to weigh all of Jacksons remedies. "Microsoft believes that the time needed for discovery - and the procedures needed to prepare the case for an evidentiary hearing on relief - are dependent on the outer bounds of the relief under consideration," the company wrote. Both sides told the court they will not seek a settlement through alternative dispute resolution, but neither party is ruling out an agreement reached through private negotiations, which are ongoing.

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