Group Petitions Judge In Microsoft Case

The American Antitrust Institute filed a brief asking a federal judge not to approve a settlement of the U.S. v Microsoft case because it said both sides had failed to comply with the Tunney Act.

The American Antitrust Institute on Monday again argued that the proposed settlement in the antitrust case between Microsoft Corp. and the U.S. Department of Justice should not be approved by a federal judge as both parties had failed to comply with the disclosure requirements of the Tunney Act.

The AAI today filed an amicus, or friend-of-the-court, brief in the case. It alleged that Microsoft, despite its certification to the U.S. District Court in Washington that it had complied with the Tunney Act, did not satisfy the Acts filing deadline.

The Redmond, Wash.-based software firm had also not disclosed communications by its agents with Congress or filed the required descriptions of communications, the Institute said.

The AAI brief goes on to say that, for its part, the Justice Departments Competitive Impact Statement, did not evaluate the alternative remedies it had considered.

"These failures cannot be cured and do not leave the Court any discretion, other than to reject the settlement or to force the parties to make the full disclosures and then give the public another opportunity to comment," Albert Foer, the president of the AAI, said in a statement.

A new Tunney Act process in the case would have two important collateral benefits, the AAI said in its filing. "First, it would allow the Court the opportunity to hear evidence in the Non-Settling States case related to the significance of alternative remedies, which the Justice Department improperly failed to disclose in this case. This would greatly assist the Court in determining whether the proposed settlement is in the public interest.

"Second, it would remove the very real risk that the Court will appear to be biased in the Non-Settling States case by whatever ruling it made on whether the proposed settlement in this case is in the public interest," it said.

The latest AAI brief follows a suit it filed in January along much the same lines, which claimed that both the Justice Department and Microsoft had violated the Tunney Act and, therefore federal law, by failing to reveal all related lobbying and government communications.

That suit was rejected last month by Judge Kollar-Kotelly, who said the group did not have any standing to file it. She later ruled that the AAI could testify before the court in the Tunney Act hearings held last week, and could file an amicus brief.