A few years ago, I was part of an event in which 500 Californians walked barefoot down a 12-foot bed of red hot coals. That was the nimblest footwork I ever saw until yesterday, when the Antitrust Division submitted its brief on Microsoft’s motion to dismiss (filed back in February) the nine non-settling states' action. Microsoft argued that the states lack any legal authority to continue.
DOJ's brief says the states should be allowed to continue, but it makes clear that the Antitrust Division thinks Microsoft should prevail in the end. The trial judge may not be compelled to dismiss the case as a matter of law but she should dismiss it as a matter of “equitable discretion.” Furthermore, the peroration (pp. 25-26) leads to an inexorable conclusion that if the judge does not dismiss the case, the Court of Appeals should reverse her for abuse of discretion.
The crux of Microsoft’s motion was that, (a) Since the feds have reached a settlement, the terms of the antitrust laws preclude any state effort to keep the case going; and, (b) If the states assert that their own laws provide a basis for continuing, parts of the U.S. Constitution would block them, especially the Commerce Clause.
The trial judge asked DOJ to submit its views.
Twelve Division lawyers signed the brief, a number usually indicative of internal fractiousness. It starts out by affirming the primacy of the federal government. Then it plunges into analysis of the states’ status in enforcing the antitrust laws, which is that they are pursuing “quasi-sovereign parens patriae interests.” DOJ never explains the elements of this status, which is not surprising, because the formulation is impenetrable as a matter of language and logic. But the brief concludes that Microsoft has not demonstrated irrefutably that the states failed to show that they possess it (whatever it may be), so the judge is not compelled to dismiss. So far, score one for the states, but only sort of, since DOJ does nothing but nit-pick Microsoft; it never actually supports the states’ arguments.
Then the brief dismisses Microsoft’s constitutional claims, but on the ground that the states are not asserting any state claims, only federal ones. This may be news to the states, who are ambiguous on the point, but who are now on notice that if they do assert that their own laws give them standing, then DOJ regards the constitutional issues as serious indeed, and perhaps they do not want to go there. Score a big one for Microsoft.
The end of the brief bluntly tells the judge that she would be wacko not to dismiss the case, speaking of the states’ “effort to extend the relief to new products, new services, new markets, and even new theories of liability,” and problems that “become magnified in significance when . . . the competitive issues are national in scope, the plaintiffs seeking relief have neither the authority nor the responsibility to act in the broader national interest, and the plaintiff [DOJ] with that authority and responsibility has taken a different course.”
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