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MS mislays huge lobbyist team in court filing

Can't have spent three months pushing for a deal after all...

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Microsoft filed a characteristically Microsoftish document with with the District of Columbia court on Monday. Its "Description of written or oral comunications regarding the revised proposed final judgment" is intended to comply with US regulations regarding lobbying, but it does so in a strikingly minimalist way.

The law, the Antitrust Procedures and Penalties Act, requires that Microsoft provide a "description of 'any and all written or oral communications by or on behalf of' Microsoft 'with any officer or employee of the United States concerning or relevant to' the Revised Proposed Final Judgment filed in these actions on November 6, 2001." This is indeed what Microsoft does in the filing; but only sort of.

"Following the Court's order dated September 27th 2001 [i.e. the order forcing Microsoft and the government into settlement talks]," the filing commences, "counsel for Microsoft met on a virtually daily basis with counsel for the United States and the plaintiff States in Washington, D.C." On October 5th, "counsel for Microsoft met with representatives of the United States and the plaintiff States in Washington, D.C. to answer a variety of technical questions."

And that, folks, is it, to all intents and purposes. Microsoft is therefore taking the narrowest of narrow views of compliance with the Act. Relevant communications are deemed to have commenced after the judge told them to try to settle, and these communications are solely the settlement talks themselves. The swarms of lobbyists Microsoft unleashed on Washington to press for a settlement following the appeals court decision apparently don't count, maybe didn't even exist, because the talks themselves must have just kind of popped out of the judge's head, and then Microsoft, good corporate citizen, fell into line.

The Microsoft legal team's literalist minimalism is back, in style.

The law itself, known as the Tunney Act, was brought in following Tricky Dicky Nixon's shenanigans with ITT in the 70s, and is intended to stop political interference in antitrust cases. Lawyers (or indeed lobbyists, we know not) for Microsoft's competitors are of the view that Microsoft's lobbying activities should be covered in detail in the filing, and that Microsoft is in breach of the Act by not doing so.

That of course depends on interpretation. But if it really is the case that only communications relevant to the immediate settlement talks process are covered, the Act itself seems somewhat pointless. For example, a swift trawl of the archives reveals in the NYT, June 29th: "As federal and state prosecutors ponder what to do next with Microsoft, they have already come under enormous lobbying pressure from the company to settle quickly and from its rivals, most notably AOL Time Warner, to continue litigating," and "'The amount of lobbying and campaign contributions have skyrocketed in recent years, and will be increasing in leaps and bounds over the next few months as both sides pound each other hard and try to establish as many close relations with officials as they can,' said Steven Weiss, a spokesman for the Center for Responsive Politics."

This sort of stuff might not count if you were to argue that the outfits lobbying for Microsoft were not directly communicating with "any officer or employee of the United States," but if the kind of indirect pressure lobbyists exert is not covered, then the Act again looks a tad pointless. the quantities of money Microsoft has been pumping into political contributions in recent years however probably don't count, because although it's lobbying of a kind, it's too general to be tracked right through to the settlement. ®

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