Kollar-Kotelly Delays Trial, Questions Broadening Scope
WASHINGTON — The federal judge overseeing the Microsoft Corp. antitrust case expressed misgivings Friday over a bid by nine states to expand the scope of the trial to include restrictions on the software giant’s expansion into new markets, such as cell phones and television set-top boxes.
U.S. District Judge Colleen Kollar-Kotelly said the states’ expanded filings raised a legal “red flag.”
“I don’t think you can go back and prove additional illegal behavior,” Kollar-Kotelly said. “I don’t know whether that’s what you’re trying to do, but that’s what it sounded like.”
Kollar-Kotelly delayed a hearing on the states’ claims that was scheduled to begin Monday. She set a new hearing date of March 18, telling both sides to submit more information about the issues.
Under a ruling from a federal appeals court, Kollar-Kotelly is charged with crafting a resolution that prevents Microsoft from continuing to use its power to squelch threats to its operating-system monopoly.
The states are arguing that some emerging areas constitute potential threats and therefore deserve protection. Microsoft wants to keep the focus more narrow, concentrating on programs that appear on PCs today.
Steven Kuney, an attorney for the states, said companies in the emerging markets “are today in Microsoft’s sights.” The states and the District of Columbia want Microsoft punished far more harshly than the proposed antitrust settlement between the company and the Justice Department.
Microsoft attorney John Warden countered that any testimony about devices other than PCs should be excluded from the trial because they were not part of the original case, nor were they included in an appeals court decision last year.
The appeals court found that Microsoft illegally acted to protect its monopoly in a dozen ways, trying to kill off potential threats, including Netscape’s Web browser and the Java programming language.
After listening to both sides, Kollar-Kotelly appeared to side with Microsoft, telling the states’ attorney, “I have some concerns about your argument ... I frankly think you don’t have enough case law.”
Rob Enderle, a technology analyst with Giga Information Group, said that if Microsoft succeeds in keeping the trial focused on PCs alone, “they have won the battle, though they have not yet won the war.”
“This shows the judge wants to keep this very closely contained within the appellate court decision,” he said. “The states want to broaden the underlying case, and they can’t do that.”
Microsoft attorneys were pleased that Kollar-Kotelly challenged the states’ stance, but they did not declare a clear victory. They noted the judge gave the states one more chance to make a legal argument on why some of the non-PC issues should be included.
The delay gives the judge time to rule on whether the proposed settlement between the Justice Department and Microsoft is in the public interest and appropriate for the misdeeds found last year by the appeals court.
Both Microsoft and Justice Department attorneys met in Kollar-Kotelly’s courtroom Wednesday to argue for the judge’s approval of their settlement.
So far, the judge has not indicated when she would rule on the settlement’s fairness.
Robert Lande, an antitrust law professor at the University of Baltimore, said delaying the states’ trial by a week gave a slight advantage to Microsoft.
If Kollar-Kotelly issues a ruling on the Justice Department settlement before the states’ trial starts, it will make it “twice as hard for the states to win,” Lande said.
The states want, among other things, to force Microsoft to create a version of the Windows operating system that is “modular,” so that computer manufacturers can easily swap out features.
But as the days pass and the states begin to present their case, “she’s going to learn more and more,” Lande said. “It’s less and less likely she’ll approve the federal consent order.”
