Judge Admits Friends of Court

By Peter Galli  |  Posted 2002-02-28
The Project to Promote Competition & Innovation in the Digital Age (ProComp) and SBC Communications Inc. would be allowed to participate as "friends of the court" in the Tunney Act proceedings currently underway in the antitrust case between Microsoft Corp. and the U.S. Department of Justice, Washington District Court Judge Colleen Kollar-Kotelly ruled on Thursday.

But neither party would be allowed to intervene in the matter, she said in the two separate opinions and orders filed with the court on Thursday.

The court has received requests from a number of parties to be allowed to intervene for a limited purpose or appear as an amicus curiae or "friend of the court"

Kollar-Kotelly, who said ProComp appeared to represent a vocal group of Microsofts staunchest competitors, described the groups request as "somewhat redundant in light of the lengthy comment it submitted to the Department of Justice in response to the proposed consent decree [between Microsoft and the DOJ]."

Even the single piece of evidence that ProComp wanted to have admitted, the testimony of economist Kenneth Arrow, had been appended, in the form of a declaration, to ProComps submission of commentary to the Department of Justice, she said.

"ProComp does not indicate what more Professor Arrow would add to that declaration if permitted to appear before the court in conjunction with the Tunney Act proceedings. ProComp also did not indicate what further argument it will offer if allowed to participate as amicus curiae or otherwise in the Tunney Act proceedings," she said, adding that "the Court considers any additional participation by ProComp to be largely superfluous."

Regarding SBCs request, the Judge said that SBC would be allowed to participate in a limited capacity as an amicus curiae since it continued to argue that it would not have an opportunity to reply to the written responses filed with the court by Microsoft and the government."

But Kollar-Kotelly made clear that this participation would be governed by strict parameters. "The court wants first to emphasize that any participation as amicus curiae should not be utilized to repeat arguments and assertions detailed in that entitys comments [already] filed.

"Instead, the Court shall permit each entity serving as amicus curiae to submit a single amicus brief in reply to the memoranda filed by Microsoft and the United States in response to the public comments," she said in her two opinions.

Each reply memorandum would not be allowed to exceed twenty-five pages and both ProComp and SBC could use the reply memorandum to raise arguments in response to memoranda filed by the United States and Microsoft on February 27, 2002, and March 1, 2002. They could also use them to address new issues and arguments which were not raised in the comments they had already filed with the Department of Justice.

The Court would also allow both ProComp and SBC Communications to address it for no more than ten minutes during the upcoming Tunney Act hearing. ProComp and SBC could use this time to "address any issues not previously raised in its comments and/or to emphasize the most significant issues raised in its comments.

"Again, the Court does not want this time to be spent summarizing or rehashing issues previously discussed in detail in the comments filed with the Department of Justice. Participation of amici beyond these parameters will not be permitted, as such participation threatens to burden the court with duplicative material and, more importantly, is unlikely to be of great assistance to the court," she said in her opinions.

Rocket Fuel