Microsoft Remedy Hearings: US Backs States' Rights

The US Department of Justice (DOJ) found itself in an awkward position yesterday when the agency felt impelled to oppose Microsoft's attempt to throw out the remaining charges the nine nonsettling states and the District of Columbia are pursuing. The DOJ, which reached a tentative settlement with Microsoft in November 2001, said that the states have the legal authority to continue the fight and seek stronger sanctions than the federal settlement imposed.

"The United States finds no definitive case law that would require granting the relief Microsoft seeks as a matter of law," the DOJ wrote in a filing it issued to Judge Colleen Kollar-Kotelly, who had asked the agency to comment on Microsoft's request. Microsoft is seeking to have the states' case thrown out because the company believes US states have no constitutional right to impose sanctions in a federal antitrust case. However, legal precedent sides with the states, which have been granted that right in past antitrust cases.

The DOJ did caution the judge, however, to prevent the states from usurping control of the case from the federal government. For example, the DOJ noted, the states could "confound compliance" with the federal settlement by imposing more severe sanctions. "But under existing law, the nonsettling States may pursue relief in their separate case," the DOJ wrote. "It is the Court's exercise of equitable discretion that must provide protection from these dangers."

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