STATEMENT OF ASSISTANT ATTORNEY GENERAL R. HEWITT PATE
REGARDING THE DEPARTMENT'S FILING TODAY IN THE MICROSOFT CASE
WASHINGTON, D.C. R. Hewitt Pate, Assistant Attorney General in charge of the
Department's Antitrust Division, issued the following statement today after the Department filed
its brief in the U.S. Courts of Appeals for the District of Columbia Circuit in case 03-5030,
United States of America, Appellee v. Microsoft Corporation, Appellee, Computer and
Communications Industry Association and Software & Information Industry Association,
"The Microsoft settlement is in the public interest and the Department remains committed
to actively enforcing its terms. As today's brief explains, the District Court properly rejected
CCIA and SIIA's attempt to intervene in this case. Following painstaking review of the record,
the District Court correctly found that the Department fully complied with the Tunney Act
procedures, and that the settlement was in the public interest."
- Today's brief is filed in the appeal of the District Court's January 11, 2003, order denying
the attempt by two non-parties, CCIA and SIIA, to intervene in the Department's case in
order to appeal the court's approval of the settlement. Under the District Court's
intervention decision, the two trade groups cannot appeal the District Court's decisions
that the Department complied with the Tunney Act and that the settlement is in the public
interest. The trade groups are appealing this intervention decision, and have no standing
to appeal the merits of the settlement unless the District Court is found to have abused its
discretion in denying intervention.
- In its brief, the Department shows that the District Court properly rejected CCIA and
SIIA's motion to intervene for purposes of appeal. Although their arguments on the
merits are not properly before the court, the Department's brief addresses them, and
demonstrates that the United States complied with the Tunney Act procedures and that
the District Court properly found that entry of the settlement was in the public interest.
- On March 26, 2003, the D.C. Circuit issued an order limiting the Department and
Microsoft, who are both appellees in this appeal but were adverse parties in the
government's antitrust case, to a total of 14,000 words in their separate briefs. The
Department had limited space to address both the intervention issue-the only issue
properly before the court-and the trade groups' various attacks on the settlement.
Appellants, CCIA and SIIA acting jointly, had 14,000 words for their opening brief and
filed a single brief.
- Also in its March 26, 2003 order, the D.C. Circuit ordered that the parties file their briefs
not only in the usual form, but also on CD-Rom with all citations to the record, filings,
and other briefs "hyperlinked" so that a click on any cite will immediately take the reader
to the original source. The issue before the Court, whether on intervention or on the
merits, is whether the record supports what the District Court did. The use of CD-ROM
filing with hyperlinking makes that record more readily available to the Court than it
would otherwise be.
- CCIA and SIIA's reply brief, limited to 7,000 words, is due to be filed on or before July
16, 2003. Oral argument, to be heard en banc, has been set for November 4, 2003.
- The Department is not a party to the State of Massachusetts's appeal of the District
Court's November 1, 2002 decision denying the vast majority of the remedies sought by
Massachusetts, eight other states, and the District of Columbia. The Massachusetts
appeal and the CCIA/SIIA appeals are separate appeals with separate briefing, and the
Department has not filed a brief in the Massachusetts case. The two appeals are,
however, being briefed on the same schedule and will be heard on the same day.