Connecticut AG Vows To Take Microsoft Case To Supreme Court If Government Loses

Connecticut Attorney General Richard Blumenthal, a hard-liner in the Microsoft antitrust case, vows to keep battling if the U.S. Court of Appeals decides to go easy on the software giant.

With a decision on Microsoft's appeal expected imminently, Blumenthal says he's prepared to take his case to the U.S. Supreme Court if the Court of Appeals overturns a lower court's year-old order to break up Microsoft or if the revised remedies are deemed too lenient.

Blumenthal says Microsoft's .Net and HailStorm platforms raise serious new antitrust concerns about protecting consumers and businesses in the Web services era. One legal expert says the Court of Appeals is sending signals that a decision in the landmark antitrust case is expected within the next week.

Richard Blumenthal, attorney general for the state of Connecticut.

"We are certainly preparing for the possibility that the appellate court will rule against us on one or more issues, and we will either pursue the case at the district court level or before the U.S. Supreme Court," Blumenthal said in a telephone interview on Tuesday. "There has definitely has been a moderation of many tactics used over the years, and Microsoft has been more sensitive about antitrust consequences. But HailStorm and other [.Net] products and the potential bundling certainly raises red flags."

A spokesman for the Iowa attorney general's office, another front-runner in the case against Microsoft, declined to comment until the Court of Appeals announces its ruling. However, the implications of the remedies on Microsoft's .Net ambitions are serious matters, he noted. "We're watching all of this with keen interest. HailStorm and Windows XP do raise significant concerns for us," said a spokesman for Iowa Attorney General Tom Miller. "We're still very much in the game to be sure."

Still, it's likely that the hard-liners will have a far more difficult challenge, given that the playing field and political atmosphere have changed since the start of the four-year-old case, which consolidated antitrust lawsuits brought by the U.S. Department of Justice and 19 state attorneys general into one case. Industry observers say it's unlikely that the state attorneys general would find much success persuading the federal government to join their cause if the Court of Appeals slaps Microsoft on the wrist.

"The state attorneys general could proceed even if the U.S. government backs out. But that's a highly uphill place to be," says Eben Moglen, a law professor at Columbia University. "If the appeals court [overturns U.S. District Court Thomas Penfield Jackson's order], I think [President George W.] Bush and [U.S. Attorney General John] Ashcroft will take their ball and go home, and that leaves the states in an unusual position."

The Illinois and Ohio attorneys general also oppose Jackson's order to split Microsoft into two separate companies.

"The state attorneys general will fight this to the bitter end, but a loss by the government will soften the federal government's position," says Hillard Sterling, a partner at Gordon & Glickson, a Chicago law firm specializing in IT issues. "It's doubtful that the Bush administration will react with great frustration and aversion to an overturning of Jackson's ruling. The reality is that the Bush administration is quietly hoping for a defeat [of the government's case], since this case stems from policies of the past administration. And there's no indication that Bush or his appointees will have any interest in breaking up Microsoft or supporting radical relief in other respects, including harsh conduct remedies."

Iowa Deputy Attorney General Tam Ormiston declined to comment on whether any of the state attorneys general involved in the case have met with Ashcroft or Charles James, whom Bush nominated as assistant attorney general to head the department's antitrust decision. "We're committed to the case. We'll see what the court does," Ormiston said in a phone interview. "The new antitrust chief hasn't gone through full Senate confirmation yet."

Though many antitrust experts say it's unlikely that the Court of Appeals will uphold the breakup order because of antitrust precedents, Moglen warned Microsoft supporters that the case is far from closed.

"It's premature, and there's reason to be cautious," Moglen says. "It's a highly complex case. Jackson's [decision] is an attackable remedy because it seems to go beyond the case claimed. But if the government provides its case about Microsoft's API [application program interface], then breaking up Microsoft seems to make sense. But most people have soured on the breakup by the end of the trial."

At least one Microsoft competitor agrees that the appeal decision would have a far-reaching impact on the high-tech sector and consumers in the Internet era. "Microsoft would like to be the first stop on your way to the Internet, whether you're an enterprise or a consumer. And that's the biggest single threat that we face going forward," says Dennis Raney, COO of Novell. "This is not solely a Novell problem. The extent to which the judgment affects [Microsoft's] ability to do that is important to all companies. That is the big issue, absolutely."