Judge Reviews the DOJ Settlement

They have battled for more than four years, and last week, Microsoft Corp. and the Department of Justice found themselves in court again.

But this time, the two were on the same side, joining a contingent of settling states in U.S. District Court here to defend a consent decree hammered out late last year to end the case over Microsofts monopolistic practices.

After the daylong hearing, Judge Colleen Kollar-Kotelly took the matter under advisement, saying she would rule on this case without waiting for the outcome of a case going to trial this month. The trial, in which Microsoft will take on the nine states that didnt join the settlement over remedies following the companys appeal of the verdict from the initial trial, was scheduled to start this week but was postponed until next week after the states changed some of the wording of their proposal.

In the hearing last week, John Warden, Microsofts lead attorney in the case, argued that the Redmond, Wash., software maker, in the settlement with the DOJ, went far beyond the probable outcome had the case been retried.

Even though the governments case was weak, Warden said, Microsoft settled for terms beyond what it thought a litigated decree would include because “that was the cost of a settlement.”

Opponents argued that the settlement did little to keep Microsoft from using its monopolistic powers to squelch competition, with consumers being the biggest losers.

Had the consent decree been in place in 1995, “Microsoft would have been able to do the same things it did to Netscape Navigator and to Java,” which both posed threats to Microsofts operating system monopoly, said Robert Bork, a former federal judge and an attorney representing a group of Microsoft opponents known as ProComp.

Don Flexner, an attorney representing SBC Communications Corp., a San Antonio broadband provider, said the decree does nothing to limit Microsofts incursions into other areas, such as Internet services.

But Gene Schearr, arguing on behalf of the Association for Competitive Technology, said the primary opposition to the decree are companies such as Sun Microsystems Inc. and AOL Time Warner Inc., which are dominant in their own areas and want to use the courts to block competition from Microsoft.

Schearr likened the case to a chicken coop where chickens attack a sick or injured bird “until that chicken is no longer a competitor for the food supply.”