by David Wilkinson
The morning after Judge Penfield Jackson issued his Findings of Fact in the Clinton administrations anti-trust action against Microsoft, Connecticut Attorney General Richard Blumenthal gleefully joined Janet Reno in front of the of the TV cameras.
For many people, this was the first indication that Microsoft has also been sued by the Attorneys General of nineteen states. The AG’s jointly filed their complaint in the same court and immediately after the Justice Department filed its complaint.
The AGs agreed early on to use only one set of lawyers -- assistants to the New York State Attorney General. Four days later, the judge consolidated the two lawsuits, knowing they would cover the same ground. He would hear and try them together although the plaintiffs would keep their separate identities.
All of which raises the question, do the nineteen state AGs believe that their states’ antitrust regulatory systems are superior to that of the Feds, or that the New York AG has better lawyers within its Antitrust Division than the Justice Department Antitrust Division, or in some other way can do better than the Feds in battling Microsoft? In other words, what do they honestly think they can contribute to the efforts of the Justice Department against a formidable opponent like Microsoft? Or have they joined the lawsuit for other reasons?
Consider the following: at one point, of the AGs who joined in the suit, thirteen were announced candidates for an elective office, whereas in the thirty states whose AGs did not join the suit, only nine were on the ballot. As a former state attorney general, I know how difficult it is to raise funds running for an office that does not get the attention of the race for governor which usually takes place at the same time, let alone a race for the U.S. Senate, which often also comes then.
As a former attorney general of Utah, a less populous state, I also know that antitrust lawsuits are among the most publicized matters in which an AG can become involved. The image of the state’s lawyer with a small staff going to battle against a giant like Microsoft generally results in good publicity, even though a nationwide survey taken last year showed that 83% of those surveyed view the pursuit of Microsoft in court as a waste of federal and state taxpayers funds.
As this protracted litigation comes to its close, it is fair to ask what if anything have these nineteen state AG plaintiffs done which the Federal plaintiff (the Justice Department) did not do?
A cursory examination of the court docket for the two consolidated cases gives a rough idea. (The court docket for a lawsuit, among other things, summarizes the documents filed in it.) Of some 60 court documents filed against Microsoft by either the Justice Department alone, or by the states alone, only seven were filed by the states alone, four of them in the few days between when the states filed their joint complaint and the date the judge consolidated their suit with the earlier filed Justice Department suit. Two more of the state filings obviously made no contribution: one was to allow the AG of South Carolina to exit the lawsuit and the other was an amended complaint, meaning the AGs’ lawyer had not done it right the first time.
By contrast, the Justice Department filed over 50 documents against Microsoft and from the docket appears to have been the only plaintiff of the twenty plaintiffs (Justice Department and 19 states) to have supported those filings. A large collection of other documents filed against Microsoft appear from the docket to have been filed together by the Justice Department and the State of New York Attorney General.
However, the docket appears to have at least sometimes been mistaken; in a sampling of cases, the docket represents that certain documents were filed jointly by the Justice Department and the New York AG, but on examining the court file itself, the documents were signed only by the Justice Department. Since no attorney had signed them on behalf of the nineteen states, the judge should treat them as if they speak only for the plaintiff who did sign them, the Justice Department.
The Microsoft case is not the first where state AGs joined together to lend the names of their states as plaintiffs to a lawsuit which may or may not have had merit, but which usually had a pot of gold at its end for the plaintiffs if they won.
In this case, the AGs will be poised to share in the publicity and any financial reward, even if they did little to earn it. Come to think of it, there is nothing to be “earned” here, anyway.
The more one examines the case record, the more dubious the plaintiff’s case becomes. In the hyper-competitive Internet economy, an anti-trust action looks like an anachronism. What the case is really about is politics, so perhaps we should not be surprised that more politicians seek to climb on board.
- David Wilkinson served as the elected Attorney General of Utah from 1981-89. He is a director of the National Legal and Policy Center.
EW