Group disputes findings in Microsoft trial

A trade group, of which Microsoft is a member, files a "friend of the court" brief in the landmark antitrust trial, asking the court to exonerate the software giant.

3 min read
A trade group filed a "friend of the court" brief in Microsoft's landmark antitrust trial today, asking the court to exonerate the software giant.

And, while the 45-page brief enjoys Microsoft's day in court bipartisan support from Washington legal luminaries, critics will no doubt point out that Microsoft is a member of the group that filed it.

The Association for Competitive Technology (ACT) today filed an amicus brief, also called a friend of the court brief, on behalf of Microsoft in its ongoing antitrust battle with the government and 19 states, according to ACT president Jonathan Zuck. The brief was due tomorrow, along with others requested by the government and Microsoft. While not legally required, such briefs can illuminate arguments or points of law.

"The (Information Technology) industry has been solidly on the side of Microsoft, but this is the first time we've got some real luminaries, including two former attorneys general, two former legal counsels for the president and a former solicitor general for the Reagan administration, behind us," Zuck said.

While ACT is somewhat guarded about its relationship with Microsoft, the group formed about two years ago when the software maker's legal woes started heating up. The organization would not disclose how much money it receives from Microsoft but said all its members pay dues.

A source close to the trade group said it raised "outside money for the excellent brief," with the expectation there would be questions about Microsoft's possibly funding the document.

In its brief, ACT stands by arguments championed by Microsoft both in court and in its "conclusions of law" brief filed on Jan. 18.

In an interesting twist, the brief largely accepts the arguments put forth by Jackson in his "findings of fact" issued on Nov. 5. But ACT concludes that Jackson's facts, while true, due not demonstrate that Microsoft violated antitrust law.

The government would not say who would be filing its friend of the court brief, but Justice Department spokesperson Gina Talamona dismissed the conclusions reached in the ACT's brief.

"This filing cannot change the laws and the facts found by the court," she said.

The Washington, D.C., law firm of Wilmer, Cutler & Pickering authored the brief, supported by former Carter administration attorney general Griffin Bell, former Johnson administration attorney general Nicholas Katzenbach, former Clinton legal counsel Lloyd Carter, former Bush administration legal counsel Boyden Gray, former Reagan administration deputy solicitor general Louis Cohen and Howard Triens, an antitrust lawyer with Chicago-based Sidley & Austin.

"We've got bipartisan support of top legal officials from the last five administrations," Zuck said.

U.S. District Judge Thomas Penfield Jackson during a Nov. 18 scheduling hearing invited both the government and Microsoft to submit these sort of briefs.

Other briefs are expected. During the meeting, Jackson told both sides he would be asking Harvard Law School Lawrence Lessig professor to file an amicus brief on tying Internet Explorer to Windows 9x.

"It's just the same argument regurgitated again and again," said University of Baltimore Law School professor Bob Lande of today's brief. "It's just so boring to get through. Is it fair to essentially force the poor judge to read Microsoft's brief again?"

Many of the people attached to the brief, such as Griffin Bell, are renowned lawyers but lack antitrust experience, Lande said. "It's like buying a name."

Microsoft's ability to rally support from a group it clearly backs demonstrates its clout, he added.

"The fact that they can get all these other corporations to sign is a testimony to Microsoft's monopoly power," he said. "That they can cow these other corporations and force them to sign demonstrates there is no doubt of their power in this industry."