Last week, 25 US states issued briefs supporting the nine nonsettling states and the District of Columbia, which are still pursuing stricter sanctions against Microsoft in the company's ongoing antitrust case. The list of states includes a couple of surprises, such as Microsoft's home state of Washington--which was never involved in the antitrust suit--and all but one of the nine states that have already agreed to settle the case. Altogether the nine litigating states, 24 additional states (see the list below), and New York filed separate briefs. Microsoft wants the court to throw out the nonsettling states' case against it because of alleged constitutional problems. The company says that states have no authority in a case that will have implications beyond their jurisdictions.
But many states disagree with that assertion. "\[According to legal precedent,\] Congress has granted the states clear authority to proceed independently," the group of 24 states wrote in the joint brief they filed late Friday, "despite the fact that the federal government has chosen not to act, has proposed to settle a case, has in fact settled a case, or has taken the matter to trial." The 24 states include Arizona, Arkansas, Colorado, Idaho, Illinois, Indiana, Louisiana, Kentucky, Maine, Maryland, Michigan, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, North Dakota, Ohio, Oregon, South Dakota, Tennessee, Vermont, Washington, and Wisconsin. The nine nonsettling (litigating) states are California, Connecticut, Florida, Iowa, Kansas, Massachusetts, Minnesota, Utah, and West Virginia, plus the District of Columbia.
Microsoft issued a statement about the matter over the weekend. "We have strong relationships with many of the state attorneys general," a Microsoft spokesperson said. "We work with them on various activities and initiatives. On this issue, we agree to disagree. While the states do have a role in antitrust enforcement, the nonsettling states stepped outside the boundaries of that role when they chose to pursue a different course from the Justice Department, resulting in conflicting national competition policy."
Far more than the Microsoft case is at stake. The states are trying to protect their rights to pursue federal antitrust cases that the US government settles or fails to pursue, a right granted under an early 1980s federal ruling. If Judge Colleen Kollar-Kotelly rules that the nonsettling states have no right to pursue Microsoft in this fashion, the repercussions will be felt far beyond this case, as such a ruling would undermine the legal precedent. Lawyers for Microsoft and the nine nonsettling states will face Kollar-Kotelly in court today at the start of remedial hearings that could last as long as 2 months.