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DoJ MS trial lawyer spars with Judiciary Committee

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MS on Trial Microsoft-related fireworks were thin on the ground yesterday, when DoJ antitrust chief Joel Klein and FTC chairman Robert Pitofsky were witnesses before the House Committee on the Judiciary. The oversight hearings on antitrust agencies weren't "a response to any particular event", as chairman Henry Hyde (Republican, Illinois) put it, but were scheduled last January and required as part of House rules. With elections in sight, and lashings of lobbying money to be consumed, it was still a time for vested interests to be vest. Hyde himself is a strong supporter of antitrust enforcement, and wrote recently that: "We must support the use of more government resources for antitrust enforcement and less for government regulation of markets. When we do that, a thousand innovations will bloom." This may not be the sense in which Bill Gates refers to innovation. Hyde said there would be no comment on the merits of the Microsoft case, and added that "everyone would benefit from a toning down of the rhetoric and a greater faith in the court system to come to the right resolution." Collaboration between the FTC and DoJ does seem to work - only last week joint "Competition collaboration guidelines" to assist businesses to assess the risk of being challenged in collaborations were issued - but it is surprising that there appears to be no attempt to deal with the strange anomaly that both the FTC and the DoJ have responsibility for antitrust enforcement. Klein chose a telling passage from Judge Jackson's findings to read to the Committee: "Only when the separate categories of conduct are viewed, as they should be, as a single, well-coordinated course of action does the full extent of the violence that Microsoft has done to the competitive process reveal itself..." In speaking about criminal enforcement of antitrust, Klein stressed the use in international enforcement against cartels and skipped any consideration of the appropriateness of criminal proceedings in the Microsoft case, where there is a greater effect outside the USA than within it. So far as the future was concerned, Klein said: "While we are committed to seeking relief that will stimulate competition, innovation and consumer choice in this important market, we have not made the final decision regarding the relief that we will recommend to the court." The occasion did provide some time for a few fireworks to be let off. John Connors (Democrat, Michigan) hoped there would "not be those who are using this case as a fund-raising cash cow or an attempt to intimidate the DoJ" and criticised Gates' TV commercials to seek public support. Zoe Lofgren (Democrat, California) reminded everyone that Judge Jackson was a Reagan appointee and "not someone who is known as a wild flaming liberal who is out to destroy the free market system". Not surprisingly, several Republicans weighed in for Microsoft, with George Gekas (Pennsylvania) and Steve Chabot (Ohio) claiming that the case focussed on competitors' complaints and not consumer interests. Joe Scarborough (Republican, Texas) thought Klein acted more as "a front man for disgruntled rivals rather than consumers". Klein defended competitive markets, and volunteered that when the DoJ approved the WebTV acquisition by Microsoft, there had been six or seven competitors complaining to the DoJ. ®

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