Microsoft Motion to Dismiss Case Denied

Judge Colleen Kollar-Kotelly delivered a blow to Microsoft Wednesday, denying the company's motion to dismiss the case.

One week prior to final arguments in a case that included nine weeks of witness hearings earlier this spring, the judge in the landmark Microsoft Corp. antitrust remedy proceeding denied the companys request to dismiss the case for lack of standing. The nine states and the District of Columbia pursuing the case welcomed the ruling.

"The decision confirms the rightful role of State Attorneys General to prosecute antitrust violations," said Iowa Attorney General Tom Miller in a prepared statement. "Now we can almost see the finish line in this case. We are looking forward to next weeks oral arguments and then the Court deciding how to remedy Microsofts violation of antitrust laws."

Microsoft had argued that the states pursuit of strict remedies for its antitrust violations undermined the federal governments effort to achieve a nationwide settlement. The judge had asked for the opinion of the Department of Justice, which opposed the states tough remedy proposal but conceded that they have the right to pursue it. In November, the Justice Department and nine other states agreed to a far less strict settlement proposal with Microsoft.

While ruling in favor of the non-settling states on Microsofts motion to dismiss, Judge Colleen Kollar-Kotelly remarked that she had taken notice of the Justice Departments policy arguments. "However, given the unique posture of this case, . . . the Court does not regard these arguments as sufficient to justify dismissal of Plaintiffs request for injunctive relief," Kollar-Kotelly said. "The Court has yet to determine whether these policy considerations will inform the Courts exercise of its equitable powers in devising a remedy in this case."

Microsoft took some consolation today in the possibility that the judge will consider the Justice Departments policy arguments later in the proceeding. "While we had hoped for a different outcome on this particular motion, we did raise some important Constitutional and policy issues with the Court," said Jim Desler, Microsoft spokesman. "The court notes some of these issues may remain relevant in its determination of a remedy."

Kollar-Kotelly was frequently blunt in her criticism of Microsofts motion, beginning with an admonition for failing to identify a basis in federal rules for the filing. She noted that some of Microsofts arguments were "vaguely articulated" and, in some cases, presumptuous. "This Court is loathe to presume, as Microsoft does, that the Court of Appeals did not consider the jurisdictional issue of standing," she wrote in her order.

Microsoft still has motions pending with the court to dismiss the states case for lack of evidence or to at least dismiss the states proposal for a modular version of Windows, or one in which the operating system is removed from the companys middleware. The judge has not yet ruled on those motions.

The parties will appear before Kollar-Kotelly June 19 to present their closing arguments, summarizing the nine weeks of hearings and thousands of pages of "findings of fact," which they filed with the court Monday.

Related Stories:

  • Witness Hearings End in Microsoft Case
  • Microsoft Asks Judge to Dismiss Suit
  • States Outline Case Against Microsoft

For more on the Microsoft antitrust case, check out eWs special report, "Microsoft vs. DOJ."