Attorneys for dozens of the private class-action lawsuits filed against Microsoft met at a downtown law firm here to discuss how they might coordinate and consolidate their legal campaigns against the beleaguered software giant.
Since May 1998, Microsoft has been battling a wide-ranging antitrust case brought by the Department of Justice, 19 states and the District of Columbia. In November, US District Judge Thomas Penfield Jackson issued harshly worded findings of fact in the case, labelling Microsoft a bullying monopolist that ruthlessly squelches competition in the computer software industry.
Jackson's findings effectively spilled blood into water inhabited by hundreds of lawyers specialising in class-action civil suits, which seek to include as many wronged people as possible. When Jackson declared Microsoft to be a monopolist, the company's vulnerability to class-action suits was heightened.
If Jackson's findings survive Microsoft's almost-certain appeals, private plaintiffs in suits filed in California, North Carolina and elsewhere won't have to prove that Microsoft holds a monopoly in computer operating systems. Instead, they can concentrate on arguing that Microsoft used its monopoly power to the financial detriment of consumers. The lawyers will argue that Microsoft's actions resulted in artificially high prices, and in the stifling of the sort of product innovation that could have benefited computer users.
Under relevant law, plaintiffs in such suits are entitled to three times the amount of any damages that are awarded. Couple that prospect with the fact that the government has already done much of the heavy legal lifting, and it's easy to see why private litigators across the country are salivating.
About 70 private suits filed in various state and federal courts were represented at yesterday's meeting, according to attorneys who attended. Early next year, the federal cases are likely to be consolidated into one case by a panel of federal judges. Among the venues being considered for that case are Columbus, Ohio; East St. Louis, Ill.; and Washington. Microsoft is expected to file a venue request with the panel by Thursday.
"We're going to attempt the best we can to coordinate these claims and resolve them as forcefully as possible," says Doug Thompson, a partner in a Washington firm.
Thompson and another attorney, Michael Hausfeld, say the talks are a first step in figuring out how to coordinate the dozens of pending suits. So far, no single firm has emerged as the leader of the pack, although Hausfeld's firm is said to aspire to that position.
For its part, Microsoft dismisses the private suits as opportunistic and without merit. The company has hired Seattle attorney Steve Berman, who specialises in class-action lawsuits, to defend it.
"These suits are just not designed at all to benefit consumers," says Microsoft spokesman Adam Sohn. "This is an effort by plaintiffs' attorneys to seek money from a successful American company."
Meanwhile, the government antitrust case has been proceeding along two tracks. On December 6, the government filed a brief contending that Microsoft's conduct violated two sections of the Sherman Antitrust Act. Microsoft has until January 17 to file an answering brief. Another round of oral arguments is scheduled before Jackson on February. 22.
Earlier this week, Jackson brushed aside Microsoft's objection to his appointment of Harvard law professor Lawrence Lessig, a regular contributor to The Standard, as a "friend of the court." Lessig will file a brief dealing with the subject of tying technological products together.
Last month, Jackson appointed federal appeals court judge Richard Posner to mediate settlement talks between the two sides, which have since met several times with Posner in Chicago. Although both sides are largely silent about the talks' progress, they are said to remain far apart on terms.