Ny And Eight Other States Urge Court To Approve Microsoft Pact

New York Attorney General Sptizer, in a brief submitted Wednesday, asked the federal judge reviewing the proposed consent decree in the Microsoft case to approve the settlement reached with the U.S. Department of Justice, New York and eight other States.

 

In the brief, prepared on behalf of the nine Settling States -- New York, Ohio, Wisconsin, Illinois, Kentucky, Louisiana, Maryland, Michigan and North Carolina -- Spitzer told the Court that the decree "seeks to resolve a complex and historic government antitrust action by imposing wide-ranging conduct relief on Microsoft, which is designed to redress the harm to competition that Microsoft’s anti-competitive actions inflicted, and so to vindicate the public interest in protecting competition in the software industry."

Under the federal Tunney Act, the settlement of an antitrust case brought by the United States becomes effective only if a federal court determines, after an opportunity for public comment, that approving the decree between the parties is in the public interest. Because the Settling States investigated and litigated the antitrust case against Microsoft jointly with the Department of Justice, they are participating in the hearing to decide approval, which Judge Colleen Kollar-Kotelly has scheduled for March 6.

Attorney General Sptizer also announced that the nine Settling States have agreed, with Microsoft and the Department of Justice, to certain modifications clarifying provisions of the proposed decree. The modifications were proposed by the Department of Justice, in consultation with the States, after reviewing thousands of comments from the public, which discussed parts of the proposed decree. With one exception, the modifications are refinements of the language to better reflect the parties’ intentions in drafting the settlement agreement. The exception – a provision that could have permitted Microsoft to request an intellectual property license from certain third parties in exchange for disclosures required by Microsoft under the decree – was removed entirely after concerns were expressed by members of the public.

In addition to urging the Court to approve the proposed decree as in the public interest, the nine Settling States also rejected an effort by Microsoft, made in a court filing on Tuesday, to dismiss the separate remedies case that the remaining nine States and the District of Columbia are pursuing against Microsoft. New York and the other Settling States noted that under prevailing law, the proposed decree agreed to by the United States and the Settling States does not prevent the States that did not join the settlement from exercising their right to have Judge Kollar-Kotelly rule on their request for a different remedy against Microsoft in a separate proceeding. "After Microsoft argued for reversal" of the earlier judgment in the case based on "the lack of what it regarded as a sufficient remedies hearing -- and after the D.C. Circuit unanimously upheld Microsoft’s liability for unlawful monopoly maintenance -- Microsoft should not be heard to contend that the Non-Settling States themselves should now be denied a hearing on the remedy that they seek," New York and the other States noted.

 


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