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Microsoft settlement plods onwards, as industry groups try to block it
Posted by James Grimmelmann on Monday, January 06 @ 22:50:27 EST Antitrust
Two computer industry groups, with member lists including many competitors of Microsoft, want to block the settlement entered in November. Big surprise. Microsoft and the government like the settlement just fine and think the trade groups have no business being part of the case. Even bigger surprise.

All sarcasm aside, the last few weeks have seen some fairly standard plays from the Civil Procedure playbook as various industry players disappointed by the settlement pull out the stops as they try to keep the case alive. Back on December 20, the Computer and Communications Industry Association (member list) and the Software and Information Industry Association (member list) filed a joint motion to intervene in the case for purposes of appeal. That is, since the federal government has taken its marbles and gone home by signing off on the settlement, they want to be allowed in to continue the fight, in a separate appeal from that of the two states that refused to accept the settlement.

Since Microsoft and the Justice Department, unsurprisingly, think that the settlement they agreed to is a good one, they've replied to the motion to intervene with a fairly standard response: in essence, that not only is the settlement good, but the CCIA and SIIA don't even belong in the suit in the first place and shouldn't be allowed in at this late date. Like most procedural jousting, the arguments on both sides come dressed up in fancy policy clothes that rehash the main case, Underneath, however, it's not clear that the motion to intervene will be especially significant, given that West Virginia and Massachusetts are already appealing the case . . . to the historically Microsoft-friendly D.C. Circuit.

The motion itself is worth a glance, if only to note that the lawyers representing the CCIA and SIIA include Robert Bork and Ken Starr.

 
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Re: Microsoft settlement plods onwards, as industry groups try to block it (Score: 1)
by HowardGilbert on Tuesday, January 07 @ 08:03:12 EST
(User Info | Send a Message) http://www.yale.edu/pclt
There were two cases. One involved the DOJ, the other involved 18 States and DC. The DOJ and half the states reached a settlement for both cases. Half the states continued the case filing both Tunney objections to the DOJ case and their own arguments on their own case. Two states are now appealing something.

These two groups have filed a brief asking that they be allowed to join the appeal of the Tunney part. However, it is not clear at this point if the two states are making an appeal of the Tunney review (a long shot in which they are already "outsiders") or if they are appealing the separate decision knocking down arguments presented in the non-settling States' case. If it turns out to be the latter, Bork and Starr may have written a brief to "join" an appeal of the wrong case. Tunney only applies to DOJ cases, not the States' case.


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