ACT to Take Part in Tunney Act Hearing

The Association for Competitive Technology may appear as a “friend of the court” and present 10 minutes of oral argument during the Tunney Act hearing in the antitrust case between Microsoft Corp. and the Department of Justice, Washington District Court Judge Colleen Kollar-Kotelly said in an order filed with the Court late Monday.

In a separate order, she also ruled that ruled that Novell Inc. could file a 25-page memorandum to address the new issues raised by the United States submission of the Second Revised Proposed Final Judgment.

Kollar-Kotelly will begin hearing arguments in the Tunney Act review Wednesday to determine whether the settlement is in the public interest.

Technology advocacy group ACT, of which Microsoft is a member and which also supports the Redmond, Wash., software makers legal position, argued that its participation is appropriate based on the logic that “if the Court is going to hear from those who would impose more onerous restrictions on Microsoft than those in the proposed consent decree, the Court should also hear from third-parties who believe that they will be harmed by those additional restrictions.”

Kollar-Kotelly pointed out that ACTs reference to “more onerous restrictions” referred to the proposed remedy in the separate case between Microsoft and nine states and the District of Columbia, which have rejected the proposed final settlement between Microsoft and the Department of Justice.

“In as much as ACTs comments and proposed participation focus upon the remedy proffered by the so-called Litigating States … ACTs focus is misplaced. The remedy proposed by the Litigating States is not before the Court in this case. Accordingly, reference to that proposed remedy has no place in these proceedings. … Notwithstanding ACTs somewhat misguided argument regarding the remedy proposed in a separate action, the Court will permit ACT, in the role of amicus curiae, to address the court for no more than ten minutes at the Tunney Act hearing, limited to the issue of the remedy proposed in this case,” the Judge said in her order.

The latest orders follow those allowing limited participation in the Tunney Act hearings by the Computer & Communications Industry Association, the American Antitrust Institute, the Project to Promote Competition & Innovation in the Digital Age, SBC Communications Inc., and the Software & Information Industry Association.