Monday, November 12, 2007

Justice Department Opposes Extension of Microsoft Decrees

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reports.

The U.S. Department of Justice opposes an effort by ten states and the District of Columbia to extend the antitrust final judgments against Microsoft Corporation that are set to expire in large part in November 2007.

The Justice Department's friend-of-the-court brief filed with the federal district court in Washington, D.C. on November 9 sets out in detail its earlier position that the standard for an extension had not been met by the states.

California, Connecticut, Iowa, Kansas, Minnesota, Massachusetts, and the District of Columbia asked for an extension of the final judgment obtained by the “non-settling” states (2006-2 Trade Cases ¶75,541), while Florida, Louisiana, Maryland, and New York sought extension of certain provisions of the final judgment in the federal/state action (2006-2 Trade Cases ¶75,418).

The final judgments, which prohibit the computer software company from abusing its monopoly in the PC operating system market, were to expire after five years on November 12, 2007. Last year, they were modified to extend the expiration of certain provisions related to communications protocol licensing an additional two years until November 12, 2009.

The states raised “inadequate and mutually inconsistent arguments to justify extension of the Final Judgments," according to the Justice Department. Their theories "are directly contravened by the states' own past statements and actions."

The Justice Department's three principal arguments against extension were that: (1) given the effectiveness of the final judgments, the states failed to establish any legal basis for extension of the expiring provisions; (2) it was premature to consider an additional extension of a provision in the decree that already been extended until Fall 2009; and (3) neither the previous extension of that provision nor the difficulties in the implementation of that provision justified an extension of the expiring provisions of the final judgments.

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