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Earlier this week, the cable news program Moneyline ran a segment on the future of the Microsoft antitrust lawsuit. While the segment was not able to answer the most interesting questions, it did ferret out an important issue: Some participants in the case refuse to allow facts and evidence play their proper role in the case. Just like the rest of us, lawsuit-happy attorneys general should wait to see what is in the Appeals Court ruling.
It has been more than three months since the D.C. Circuit Court of Appeals heard the last arguments in the case. Yet, there has been hardly a whisper about the crucial W-questions that surround the case.
When will the court announce its verdict? What will the ruling say? Who will benefit? Will district court Judge Penfield Jackson be disqualified from future proceedings for his uncharacteristic extra-judicial commentary during and after the proceedings in his courtroom? Were grievous procedural mistakes made at the district court level?
Regardless of the ruling, there is every indication that the time will be ripe for a settlement between the government and the software company. The case has dragged on for years and the new president has repeatedly announced his belief in innovation over excessive litigation.
But there is a large stumbling block to a negotiated settlement. Several of the state attorneys general involved in the case have decided, before even seeing one word of the ruling from the Appeals Court, to appeal to the United States Supreme Court. Why wait when an appearance on national television is possible by jumping the gun?
Appearing on Moneyline, Connecticut’s attorney general says that he expects to have all or most of the 19 states that enjoined the lawsuit continue with him to the Supreme Court. It was a small cadre of over-the-top state attorneys general – led by Connecticut’s Richard Blumenthal, Florida’s Bob Butterworth, and Iowa’s Tom Miller – who balked at a punishment and early end to the case negotiated by a federal judge last year.
The evidence presented at every level of the proceedings shows that consumers are beneficiaries of new product innovations and releases. Software prices have been falling steadily for years and in the critical market for browser software, the price has gone down to zero.
These facts are not disputed. Facts are stubborn. The recent actions of some state officials indicate that they are too.