A Less-Public Path to Changes In Antitrust

[David Farber <dave () farber net>]

Begin forwarded message:

From: Daniel Berninger <dan () danielberninger com>
Date: May 15, 2005 6:46:28 AM EDT
To: dave () farber net
Subject: A Less-Public Path to Changes In Antitrust


Dave,

Consider for IP

Dan

202.250.3838


> > > > > > >

http://www.washingtonpost.com/wp-dyn/content/article/2005/05/11/ 
AR2005051102
087.html

TECH THURSDAY
A Less-Public Path to Changes In Antitrust

By Jonathan Krim

Thursday, May 12, 2005; Page E01

Throughout Microsoft Corp.'s long-running defense against charges  
that it
broke antitrust laws was an intriguing subtext: Technology industries  
are so
new and different that many aspects of traditional antitrust law don't
apply.

It's a thorny issue, one that Congress might even touch on when it  
considers
a nominee to replace R. Hewitt Pate, who resigned this week as head the
antitrust division at the Justice Department.

But as usual in today's Washington, the important decisions don't get  
ironed
out in places as public as congressional hearings. Instead, significant
revisions of U.S. antitrust law are being hashed out by a group composed
mainly of lawyers who represent large companies.

And Microsoft -- found to be an illegal monopolist on two continents  
-- is
likely to have some influential allies.

The work is being carried out by an organization called the Antitrust
Modernization Commission. Created by Congress in 2002, the commission is
examining a series of questions that challenge long-standing antitrust
enforcement policies.

The head of the 12-member commission is Deborah A. Garza, a partner at
Fried, Frank, Harris, Shriver & Jacobson LLP in Washington. Garza's  
partner
and close associate in the firm, Charles F. Rule, represents  
Microsoft in
court proceedings that monitor the company's compliance with its consent
decree with the Justice Department.

Also on the commission is John L. Warden, based in New York with the  
firm of
Sullivan & Cromwell LLP. The gravelly-voiced Warden was Microsoft's lead
outside attorney during much of its case.

Alan J. Meese, the commission's senior adviser and a law professor at
William & Mary, wrote papers during the case arguing against the
government's proposal to break up Microsoft into two companies.

For several months, the commission has been soliciting requests for  
topics
to study and recommendations on the issues it decided to address.  
Actively
participating in submitting suggestions is a task force of the  
American Bar
Association led by Richard J. Wallis, an in-house Microsoft attorney who
heads the ABA's antitrust section.

The issues the commission is tackling could have broad impact, and  
many are
near and dear to Microsoft. Among them:

· Should state attorneys general play a role in antitrust enforcement?

More than a dozen states participated in the prosecution of  
Microsoft, at
first joining with the federal government and then splitting away and
pursuing the case further after the Justice Department settled with the
company in late 2001.

· Should technology industries be treated differently under antitrust  
laws?
In particular, the commission is looking at whether the conduct of a  
single
firm throughout different aspects of its business warrants different
treatment in "new economy" industries.

Microsoft's bundling of various features into its dominant operating  
system,
including Web browsing and playing of audio and video, was at the  
heart of
the antitrust cases in the United States and Europe.

The commission also is examining whether the standard for determining  
when a
company is shutting out competitors should change.

· Should antitrust standards be different for regulated industries?

· Should criminal antitrust penalties be eliminated?

Some of the commission members -- who were appointed by the Bush
administration and by members of Congress from both parties -- played  
roles
for companies that opposed Microsoft in its antitrust litigation.

Others did tours at the Justice Department.

But none comes from a background of state antitrust enforcement or  
consumer
advocacy.

The commission holds its meetings in public, and its actions are  
documented
on its Web site at http://www.amc.gov/ .

<snip>





-------------------------------------
You are subscribed as lists-ip () insecure org
To manage your subscription, go to
 http://v2.listbox.com/member/?listname=ip

Archives at: http://www.interesting-people.org/archives/interesting-people/