UNITED STATES OF AMERICA et al v. MICROSOFT CORPORATION

Filing 672

Memorandum in Opposition to Motion re [], [] Opposition of Plaintiff United States to Two Motions of Relpromax Antitrust Inc. for Amicus Participation and for an Extension of Time filed by UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Hesse, Renata)

UNITED STATES OF AMERICA et al v. MICROSOFT CORPORATION

Doc. 672 Att. 2

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

UNITED STATES OF AMERICA,

) ) Plaintiff-Appellee, ) ) v. ) No. 00-5212 ) MICROSOFT CORPORATION ) ) Defendant-Appellant. ) ) -----------------------------------) ) STATE OF NEW YORK, et al., ) ) Plaintiffs-Appellees, ) ) v. ) No. 00-5213 ) MICROSOFT CORPORATION ) ) Defendant-Appellant. )

REPLY BY CARL LUNDGREN TO THE PARTIES' RESPONSES TO MOTIONS REGARDING AMICUS PARTICIPATION

1.

Joint Response of Appellee's.

The government appellees

are apparently favorable to the admission of as many amici as the Court would see fit to admit. Since they assert no objections,

they presumably accept the proposed filing date of December 20, 2000 for my independent brief, that would be limited to a discussion of the need for more extensive remedy hearings, and more particularly with the need to include third parties within such remedy hearings.

Dockets.Justia.com

2.

Adverse Response by Microsoft.

Microsoft's response is

a horse of another color. worth a general comment.

Before getting to specifics, it may be Microsoft's approach is to whittle down

eight potentially adverse briefs into only one brief or none. There may be, of course, some concern about imbalance among the amici, if all were allowed in. In my view, it would be better to

allow all reasonable amici to participate, and if this creates a serious imbalance against Microsoft, the Court may entertain a motion to extend the length of Microsoft's reply brief. I do not

regard it as realistic to expect all adverse amici to merge their potentially divergent opinions into only one brief, nor should the Court require it. 3. Tired Quote from Judge Posner. In an effort to exclude

amici, in this Court and in the District Court, Microsoft continues to quote (and misuse) an opinion from Judge Posner, 7th Circuit (Response at 2). Even by the terms of Posner's opinion,

an amicus brief is permissible whenever "the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide." This

is a rather broad permission, which can be used to justify the Court's admission of almost any reasonable amicus. Nevertheless,

Microsoft continues to pretend that this is a rather restrictive criterion, which can be used to exclude all manner of amici with whom Microsoft may disagree. 4. Microsoft's Objection Based on "No Particularized Microsoft seeks to waive away four briefs with the 2

Interest."

assertion "entities with no particularized interest in this case should be denied participation as amici" (Response at 5; also 2 and 3). Microsoft does not define what it means by

"particularized interest", nor does Microsoft provide any judicial support or precedent for this opinion. It is fanciful,

and it runs contrary to Judge Posner's opinion quoted earlier. Each motion for amicus status should be judged on its own merits, and not according to Microsoft's arbitrary and exclusionary criteria. Indeed, if Microsoft were correct, the amici brief by

four independent economists (filed by Robert Litan) should never have been accepted by the District Court. 5. Individuals Do Not Count, So Sayeth Microsoft. In

furtherance of its opinion about "entities with no particularized interest," Microsoft asserts: The Court should continue to reject the entreaties of private individuals to participate in this case as amici.... Neither Ms. Peterson's "analytical framework" (Peterson Mot. at 1) nor Mr. Lundgren's "economic invention" (Lundgren Mot. at 1) merit the attention of the Court. Nothing they have to say will make a meaningful addition to the parties' presentations on the factual and legal issues in the case. Three things are wrong here. The first is that private The

individuals do have standing to petition for amicus status.

second is that Microsoft asserts unsupported opinions regarding the "merits" of potential contributions by private individuals. The third is that Microsoft derives unsupported conclusions about whether private individuals can provide "meaningful" presentations to the Court, which go beyond what the parties 3

themselves might make. 6. Carl Lundgren Has a Financial Interest to Argue in Favor By "particularized interest"

of More Extensive Remedy Hearings.

I can guess (but do not know) that Microsoft means financial interest. Carl Lundgren seeks (and expects to obtain) a patent This invention

on an economic method for preventing collusion.

is generally applicable for resolving problems of imperfect competition in a variety of industries, including the software industry. In the event that extensive remedy hearings would be

held in this case (presumably in District Court), and in the event that Carl Lundgren or his businesses were permitted to participate, Carl Lundgren would be prepared to argue that use of his invention would provide a better remedy in this case than would any other remedy. If Carl Lundgren should prevail in a

fair contest to select the best remedy, he could earn a fortune. 7. The Court Needs to Rule on Whether the District Court's Both Microsoft and some of the

Remedy Hearings Were Adequate.

amici are displeased that the District Court held such perfunctory hearings during the remedy phase of trial. one amicus at the District level (Robert Litan and three additional economists) argued strongly in favor of more extensive remedy hearings, among other issues. I intend to expand upon the Indeed,

arguments made by Robert Litan and others in a brief devoted exclusively to arguing for better remedy proceedings. This is an

issue of significant potential importance, both for the present case and as precedent for future cases. 4 Carl Lundgren would

offer a unique perspective on this issue.

So far as I am aware,

no other party intends to focus exclusively on this issue.

Respectfully submitted. ___________________________________ Carl Lundgren Valmarpro Antitrust 5035 South 25th Street Arlington, VA 22206-1057 [phone] (home) [phone] (work) [e-mail] (E-mail)

Dated:

October 30, 2000

5

CERTIFICATE OF SERVICE Service of the foregoing was made by sending a copy thereof, in a sealed envelope, postage fully prepaid, addressed to: Bradley P. Smith (by mail and by hand) Sullivan & Cromwell 1701 Pennsylvania Avenue, N.W., 8th Floor Washington, DC 20006-5805 John L. Warden Sullivan & Cromwell 125 Broad Street New York, NY 10004-2498 William H. Neukom, Sr. Vice President Law & Corporate Affairs Microsoft Corporation One Microsoft Way Redmond, WA 98052-8300 A. Douglas Melamed Antitrust Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, DC 20530 Catherine G. O'Sullivan (by mail and by hand) Chief, Appellate Section U.S. Department of Justice 601 D Street, N.W., Room 10536 Washington, DC 20530 Phillip R. Malone Antitrust Division U.S. Department of Justice 325 Seventh Street, N.W., Suite 615 Washington, DC 20530 Richard L. Schwartz Deputy Chief, Antitrust Bureau New York State Attorney General's Office 120 Broadway, Suite 2601 New York, NY 10271-0332 Kevin J. O'Connor Wisconsin Attorney General's Office 123 West Washington Avenue Madison, WI 53703-7957 Christine Rosso Chief, Antitrust Bureau Illinois Attorney General's Office 100 West Randolph Street, 13th Floor Chicago, IL 60601 and deposited in the United States Mail by the undersigned this 31st day of October, 2000. ___________________________________ Carl Lundgren