Feeds

MS case totters in Caldera action – $1.77bn damages?

Tin hats for the attorneys as another blocking attempt falls

  • alert
  • submit to reddit

Bridging the IT gap between rising business demands and ageing tools

MS on Trial Caldera has won a further round in its private antitrust suit against Microsoft. MS is making nine tries at killing the action by dividing its dismissal motion up into chunks and fighting each one of them, in the hope of narrowing the charges. The latest defeat concerned Microsoft's desire to have excluded any consideration of actions in Europe and Japan. But it turns out that Microsoft's lawyers have done a sloppy job and misstated the law concerning Caldera's sales of DR-DOS outside the US. Perhaps Microsoft should be negotiating a refund from the fees charged by its lawyers. Caldera argued that American damages stemmed from Microsoft's actions outside the US, prompting Judge Benson to say: "If this is not a case of antitrust standing, then I don't know what is" when he denied Microsoft's motion from the bench. Microsoft either fundamentally misunderstood Caldera's claims, or has chosen to ignore them, Caldera said in its Memorandum. Caldera was not making any claim for damages suffered by DRI's European or Japanese subsidiaries, but only for the loss of revenue to DRI and Novell in the US. Perhaps the weakest part of Microsoft's argument was that its own expert witness, Professor Elzinga, conceded that the relevant geographical market was the world. Another goof by Microsoft's lawyers was their failure to understand the Foreign Trade Antitrust Improvements Act, which everybody knows has nothing to say about the issue of the standing of a party. The Act only deals with whether the court properly has jurisdiction with respect to the defendant's conduct. DRI was engaged in export commerce since it received agreed royalties from its overseas subsidiaries. A footnote in the Memorandum refers to an Exhibit 4 (which is not disclosed and is under seal), but it does confirm Caldera's base-case claim for damages. These are put at $590 million, which would be tripled to $1.77 billion. Only $11.9 million of the base claim is for the period prior to Novell's acquisition of DRI, so even if Caldera loses on this point (and wins on the others), it would only reduce the award by a paltry $35.7 million. Interestingly, some of the arguments by Caldera are under Utah state law rather than federal law. Caldera claims Microsoft improperly interfered with Novell's [the previous owner of DR-DOS] economic relationships. If found guilty, this could be very expensive for Microsoft under Utah law, and result in punitive damages being awarded. Microsoft's last ditch stand is to claim that the state-law claim was filed too late, since DRI/Novell was aware of the allegedly illegal tactics in 1991, and Caldera did not acquire DR-DOS until 1996. Hang on, says Caldera: Microsoft was engaging in a pattern of misconduct, and therefore the filing deadline is extended as a result of the harm suffered. Judge Benson has asked for additional briefs on this, and will hold a further hearing in mid-August. So bad does the Caldera case now look for Microsoft that even its PR machine is feeling chastened and not offering any of its usual black-is-white denials. ® Complete Register Trial coverage

The Power of One Brief: Top reasons to choose HP BladeSystem

More from The Register

next story
BBC goes offline in MASSIVE COCKUP: Stephen Fry partly muzzled
Auntie tight-lipped as major outage rolls on
iPad? More like iFAD: We reveal why Apple fell into IBM's arms
But never fear fanbois, you're still lapping up iPhones, Macs
Nadella: Apps must run on ALL WINDOWS – PCs, slabs and mobes
Phone egg, meet desktop chicken - your mother
White? Male? You work in tech? Let us guess ... Twitter? We KNEW it!
Grim diversity numbers dumped alongside Facebook earnings
HP, Microsoft prove it again: Big Business doesn't create jobs
SMEs get lip service - what they need is dinner at the Club
ITC: Seagate and LSI can infringe Realtek patents because Realtek isn't in the US
Land of the (get off scot) free, when it's a foreign owner
Dude, you're getting a Dell – with BITCOIN: IT giant slurps cryptocash
1. Buy PC with Bitcoin. 2. Mine more coins. 3. Goto step 1
There's NOTHING on TV in Europe – American video DOMINATES
Even France's mega subsidies don't stop US content onslaught
You! Pirate! Stop pirating, or we shall admonish you politely. Repeatedly, if necessary
And we shall go about telling people you smell. No, not really
prev story

Whitepapers

Designing a Defense for Mobile Applications
Learn about the various considerations for defending mobile applications - from the application architecture itself to the myriad testing technologies.
How modern custom applications can spur business growth
Learn how to create, deploy and manage custom applications without consuming or expanding the need for scarce, expensive IT resources.
Reducing security risks from open source software
Follow a few strategies and your organization can gain the full benefits of open source and the cloud without compromising the security of your applications.
Boost IT visibility and business value
How building a great service catalog relieves pressure points and demonstrates the value of IT service management.
Consolidation: the foundation for IT and business transformation
In this whitepaper learn how effective consolidation of IT and business resources can enable multiple, meaningful business benefits.