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MS trial judge points finger of blame at US states

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Judge Richard Posner, who ran the Microsoft case mediation talks until they failed earlier this year, has paid-out another snippet for trial whodunnit addicts. In the immediate aftermath of the breakdown of talks in April Posner denounced the "leaking and spinning" that surrounded them, and said that was his final word. But now he observes that the US states' role in antitrust cases should be limited.

In his April statement Posner didn't say who was to blame for leaking misleading information, but as we noted at the time, although he thanked both the DoJ and Microsoft for "professionalism," he didn't mention the gaggle of States' attorneys general. These officials have been largely surplus to requirements during trial proceedings, hanging around on the fringes while the DoJ's legal shock troops took the lead, and seizing the odd mike when they could.

It's surely not unreasonable to therefore to view Posner's latest observations as loaded. He'd like to see the US states stopped from bringing antitrust suits except in highly restricted areas. If for example there had been price fixing on goods bought by a state, an action could go ahead. More nebulous stuff like taking action on behalf of consumers allegedly ripped off by companies, he would seem to think fits better under the federal hat.

It's probably not a bad point. Posner argues that the states don't have the resources to mount antitrust suits, but that's probably putting it charitably. He thinks they end up taking a free ride on the back of federal cases (a pretty clear comment on what he thinks has happened in the Microsoft case), and he also seems to deplore the European Union and ambulance-chasing class actions piling in after the event.

The EU angle is of course more complicated than that; Brussels has been tinkering around the edges for some years now, and rather than it being a case of 'me too,' the reason Europe appears to be bringing up the rear is because of the demarcation lines drawn between EU and US antitrust authorities. The US is lead member on Microsoft, for the moment.

But as far as the rest of it is concerned, you can see where Posner's coming from. The DoJ team in the Microsoft case was an expensive, efficient class act, while other antitrust actions have looked a lot more rickety. Bristol and Intergraph (against Intel, of course) went down in flames, while Microsoft has so far been pretty successful in zapping the class actions. Getting a result is harder and more expensive than you might think, and maybe the current situation does little more than take up time, and line lawyers' pockets. ®

Related story:
Judge attacks 'eaking and spinning' in MS deal talks

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