States Reject Microsoft Call For A Delay

The nine dissenting states on Wednesday rejected out-of-hand a Microsoft motion to delay the remedy hearings scheduled to start next Monday.

The nine states and the District of Columbia, which have refused to accept the proposed antitrust settlement between Microsoft Corp. and the Department of Justice, on Wednesday rejected out-of-hand a Microsoft motion to delay the remedy hearings scheduled to start next Monday.

In a filing posted with the Washington District Court on Wednesday in response to Microsofts request for a two-week delay of the remedy hearings in the matter, the states said "Microsoft vastly overstates the magnitude of the revisions in the Litigating States proposal.

"But for Microsofts idiosyncratic and unjustified reading of the States original proposal, the overwhelming majority of these clarifications would never have been necessary. To eliminate wasted efforts at the hearing, prudence dictated some modified wording to increase the likelihood that the debate at the hearing will concern a proposal the Litigating States actually made, and not some straw version that Microsoft concocted," it said.

The latest flurry of court documents and calls for a delay in the case follow the filing of an amended version of the litigating states remedy proposals on Monday, in which they said Microsoft, of Redmond, Wash., should be forced to offer a modular version of its Windows operating system in addition to the fully integrated version of the product.

But, in todays filing, the litigating states say there has been no fundamental shift in their proposed remedy. They go on to accuse Microsoft of modifying the terms of its proposed settlement with the Department of Justice, a matter currently being dealt with in another case. Microsoft had simply denominated those changes as the Second Revised Proposed Final Judgment, which was never formally filed as an amended remedy proposal in that action, they said.

"Having back-doored its own unannounced and indeed never-filed change in its remedial proposal into this case on Friday, March 1, Microsoft now protests that the Litigating States have filed a revised proposal, clearly labeled as such, with the clarifications also clearly labeled, documented and explained, on Monday, March 4," the states said in their latest filing.

Each of the provisions in their settlement proposal still addressed the same issues they had since the December 7 filing, whether it be the unco-mingling of Microsoft middleware from the operating system, the need for OEM flexibility, mandatory disclosures to ensure broad interoperability, or effective enforcement via a Special Master, they said.

"As a result, the claimed need for additional discovery is baseless – no clause or proviso has changed beyond the parameters of the issues already explored at length at the depositions of the witnesses the Litigating States intend to call at the hearing.

"Microsoft seems to misunderstand … the purpose and mission of the upcoming remedies hearing … The not very subtle subtext of Microsofts motion reveals its real misgiving: that these clarifications have made the States Proposed Remedy more compelling," they said.