Ex-DOJ attorney sees broad impact on Microsoft case

This week's appeals court decision lifting the injunction which forbade Microsoft from insisting that computer resellers bundle its Internet Explorer Web browser with Windows 95 -- could well influence the US Department of Justice's antitrust case as it goes forward, a former DOJ lawyer says. The way the decision was phrased 'has significant consequences for the government's recently filed case.'

This week's appeals court decision lifting the injunction imposed by Judge Thomas Penfield Jackson last December -- which forbade Microsoft from insisting that computer resellers bundle its Internet Explorer Web browser with Windows 95 -- could well influence Jackson as the U.S. Department of Justice's antitrust case goes forward, a former DOJ lawyer says.

Tyler Baker, who worked as an attorney at the DOJ's Antitrust Division and is now a partner at Carrington, Coleman, Sloman & Blumenthal LLP in Dallas, says the court's action, which takes "a strong position on the proposition that genuine integration is something that the courts should not address," is very favorable to Microsoft.

"It sounded as though the appellate court was saying... that integration is legitimate and should not be second-guessed by the court," Baker says. "Phrased that broadly, I think it has significant consequences for the government's recently filed case," brought in May, which targeted Windows 98.

Baker adds, however, that the US DOJ may argue that even if the products are tightly integrated, the harm caused by that integration needs to be rectified. "The competitive effect (of combining Windows 95 and Internet Explorer could be)... so overwhelmingly bad that the government could conceivably still win."

The appeals court's decision yesterday doesn't necessarily set a precedent in the pending Windows 98 case, Baker points, "but it probably will be influential to some degree as to how the district court will look at the (September) case.

"Forgive this analogy," Baker says, "but this is like a lot of the Clinton problems -- any win in a case with a lot of public visibility makes a difference. It may not ultimately make a difference with the court, but it's still important. I'm sure Microsoft is pleased with the news."

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