States Prepare Remedies in Case of Win in Microsoft Case

By Joel Brinkley N. Y. Times News Service | THE JOURNAL RECORD, March 17, 1999 | Go to article overview

States Prepare Remedies in Case of Win in Microsoft Case


Joel Brinkley N. Y. Times News Service, THE JOURNAL RECORD


WASHINGTON -- Flush with optimism about the way their case is progressing, the 19 state attorneys general who joined the federal government in the landmark antitrust suit against Microsoft say they will not be satisfied, should they win the case, with any remedy that does not revamp the company.

No specifics have been decided about how that should be done -- and probably none will be until the judge issues his ruling this summer. But as equal partners in the lawsuit, the states hold something of a veto power over the kinds of remedies the federal government can recommend, and the offices of the attorneys general are alive with discussion of the various options.

The one receiving the most favor right now would force Microsoft to license the source code for the Windows operating system to several other companies -- instantly creating competition in the operating system business. In addition, many of the states -- including New York, Ohio, Minnesota and Utah -- are eager to use provisions in their own laws that would allow them to fine Microsoft for every antitrust violation "incident." The amount for each incident varies, from $2,000 in Kentucky to $100,000 in New York, but there is little if any case law to suggest how an incident is defined in this context. Officials in several states said they were hoping to establish that every purchase of a copy of Windows constituted a violation. "With per violation or per occurrence, that would be millions and millions of dollars," said Doug Davis, an assistant attorney general in West Virginia. But state officials acknowledged that it was far from certain that the courts would uphold that interpretation. So far, the states have stayed out of the spotlight, relying primarily on the Justice Department's lawyers, most notably its lead trial lawyer and hired gun, David Boies, to argue the case in court. Yet the states are key players. Thirteen states researched the case cooperatively with the Justice Department. When it came time to file the suit last spring, one of those states, Texas, decided to drop out of the effort, while a handful of additional states, including West Virginia and Maryland, decided to join. That brought the total to 20. In December, South Carolina's attorney general announced that he was leaving the group, asserting that competition in the software industry remained strong, making the suit unnecessary. The 19 remaining attorneys general say they remain strongly committed to the case. After the Justice Department and the states filed similar but separate antitrust suits against Microsoft last May, the cases were merged and are being tried together. So, although Justice officials say they have not yet decided on what remedies to propose should they win, whatever they recommend to Judge Thomas Penfield Jackson must have the approval of the states as co-litigants. In the end, the remedy Jackson imposes might or might not be based on the recommendations of the plaintiffs. Because state attorneys general are elected officials, their motives are not always the same as those of the Justice Department. They must be more responsive to their constituents -- or, viewed more cynically, play to the voters. When the suits were filed last May, "we got some constituent mail asking why we were harassing Microsoft," said Mark Weaver, Ohio's deputy attorney general. But now, says Richard Blumenthal, attorney general of Connecticut, "We feel vindicated." "The public," he added, "has a much better understanding of Microsoft's abuses and violations of law." While Microsoft insists that it will win the case, the hardened position on remedies is fueled by a growing perception among the attorneys general that their side has gained the upper hand in court. In interviews last week, attorneys general or their assistants in more than a dozen states said they had been pleasantly surprised, even thrilled, with their accomplishments in court -- though all acknowledge that the judge could ultimately rule in Microsoft's favor.

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