State AGs Call Microsoft Appeal A Longshot

Attorneys general for several states that joined the antitrust lawsuit against Microsoft Corp. said the court's ruling against the company looks bullet-proof on appeal.

Connecticut Attorney General Richard Blumenthal said U.S. District Court Judge Thomas Penfield Jackson -- in his blistering opinion that found Microsoft guilty of antitrust violations -- gives the company little wiggle room on appeal.

"This opinion, as I've read it a third time, is really very, very powerful as a document for the Court of Appeals in various respects," said Blumenthal, speaking on a news conference call with reporters. "Particularly in its finding that . . . there was no benefit to consumers in any of this conduct [by Microsoft]."

Blumenthal, one of the most vocal attorneys general to join the lawsuit against Microsoft by the U.S. Department of Justice, said Jackson limits Microsoft's play on appeal because the judge created no new legal theory in the case.

"All of the findings point to the conclusion that Microsoft engaged in classic anticompetitive conduct," Blumenthal said.

"The thing that really strikes me about the opinion is the careful thought and analysis that Judge Jackson has put into this," said New York Attorney General Elliot Spitzer. "Judge Jackson has really spoken with judicial wisdom."

Spitzer said the judge has left Redmond, Wash.-based Microsoft in a difficult position.

"They are left, although they are trying to spin to the contrary, with a very remote chance of success on appeal," Spitzer said.

Neither Blumenthal nor other attorneys general on the conference call -- including California Attorney General Bill Lockyer, Iowa Attorney General Tom Miller, or Spitzer -- would discuss what type of redress they would ask Judge Jackson to take against Microsoft.

And they all refused to detail what happened through last weekend to derail four-month-old settlement talks between the states, the Justice Department and Microsoft.

Because the court-appointed mediator in the case, U.S. Appeals Judge Richard Posner, issued a statement saying the collapse of the talks was "not due to any lack of skill, flexibility, energy, determination, or professionalism on the part of the Department of Justice and Microsoft," speculation developed that the states were declining to go along with final offers.

"I don't think you should draw any inferences from the judge's one, brief sentence there," Lockyer said.

However, "the states and the federal government have been on the same page. We filed every brief together," Miller said.CRN

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