Judge waits to rule on scope of remedies

The district judge at the heart of the Microsoft remedy hearing has decided to delay making her ruling on the actions required to...

The district judge at the heart of the Microsoft remedy hearing has decided to delay making her ruling on the actions required to curb Microsoft's anticompetitive behaviour.

Judge Colleen Kollar-Kotelly told the courtroom she would hear all testimonies from witnesses before reaching a decision, despite numerous motions from Microsoft to strike from the record any testimony from the nine states' witnesses that the company deemed outside the scope of the remedy hearing.

"I thought I could do this earlier," she said, "but I decided I need more factual information."

This postponement could spell good news for the nine states and District of Columbia that chose not to reach an antitrust settlement with Microsoft.

In preparing for the remedy hearing that began last Monday, the states told the court it planned to put on the witness stand a number of industry executives who would testify about Microsoft's business practices in markets other than the desktop operating system space.

These included emerging areas such as operating systems for handheld computers and television set-top boxes, as well as Web services and server software.

In response, Microsoft filed motions asking the judge to disallow all such testimony, claiming that with these witnesses the states are trying to prove Microsoft's anticompetitive behaviour extends beyond the PC operating system market.

The judge told the states that she would, in fact, consider such testimony, but only as it helps her decide which remedies should be placed on Microsoft.

Kollar-Kotelly, who took over the case last August, asked both Microsoft and the litigating states to come up with a set of proposed remedies that they would argue for during the hearing.

While attorneys for the states have argued that testimony from officials with companies in non-PC markets such as Palm and Novell will focus on supporting the states' remedies,

Microsoft lawyers insisted that such testimony be barred. The states are attempting to show new liabilities with these witnesses, Microsoft has argued, instead of sticking to the parameters of the hearing set by the court of appeals - namely Microsoft's behaviour in the PC OS market.

Separately, Kollar-Kotelly on Monday invited the US Department of Justice (DOJ) to comment on Microsoft's recent motion to dismiss the litigating states' case.

Microsoft claims that the states lack the authority to seek nationwide remedies, and are attempting to "displace the [DOJ] in its role of establishing national competition policy", according to a court document.

The DOJ and nine other states reached a settlement agreement with Microsoft last autumn that is now being reviewed by Kollar-Kotelly.

In her order on Monday, the judge asked the DOJ to offer its position. "It seems most prudent to ask the (DOJ) to enlighten the court with its views on the issues raised in Microsoft's motion," the document read.

A spokeswoman with the DOJ on Tuesday said the department is reviewing the judge's order and will respond as appropriate.

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