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A proposed class of foreign companies have joined the burgeoning class action consumer’s antitrust suit against Microsoft Inc. currently pending in U.S. District Court in Maryland. Attorneys Michael M. Baylson, Melissa H. Maxman, Edward G. Biester III, John C. Ryan, Sandra A. Jeskie and Julie S. Lu of Duane Morris & Heckscher in Philadelphia filed the suit on behalf of two British companies and one Swiss company. The suit, filed on Tuesday, mirrors the suit already lodged by the U.S. Justice Department in which U.S. District Judge Thomas Penfield Jackson of the District of Columbia has ruled that Microsoft must be split in two because it engaged in illegal monopolizing tactics. While Judge Jackson’s case has garnered most of the media attention, all of the private lawsuits against Microsoft have been assigned to Chief U.S. District Judge J. Frederick Motz of Maryland under the Multi-District Litigation program. So far, all of the suits have been filed on behalf of American companies and consumers. More than 90 of the 100-plus suits are brought on behalf of “end users,” or ordinary consumers who often seek to represent a class of consumers from their own state, frequently bringing both federal and state antitrust claims. The remaining suits were brought on behalf of “direct purchasers,” companies involved in computer hardware or software sales that contract with Microsoft to re-license large quantities of its Windows operating system. Now, three European companies are taking a seat at the table, seeking to represent a class of “all persons and entities outside the United States … who purchased a license to use and resell any of the following: MS-DOS, Windows 95, upgrades to higher MS-DOS versions, upgrades to or of Windows 95, Windows 98, or other software products in which MS-DOS or Windows has been incorporated in full or in part, directly from Microsoft, or from any subsidiary, affiliate or authorized dealer thereof, at anytime during the period from Jan. 1, 1990 to the present.” The three companies are Silverware Ltd., based in Reading, Berkshire, England; Data Unit AG, based in Sursee, Switzerland; and Datacrown Ltd., based in Todmorden, Lancashire, England. In an interview yesterday, attorney Maxman said that the end-user lawsuits face significant hurdles due to federal antitrust caselaw that makes it difficult to establish standing as an indirect purchaser. But the suits brought by computer sales companies are not likely to have that problem, she said, since they can show Microsoft strictly controlled the channels of commerce and forced most retailers to purchase Microsoft software through a small number of authorized direct purchasers. The suit says Microsoft is the world’s largest independent software company with fiscal 1999 revenues of $19.75 billion. The company’s net income reached $7.785 billion in fiscal 1999, up from $4.490 billion the prior year. Joining the Philadelphia lawyers in bringing the suit are attorney Eric J. Sinrod of the Duane Morris office in San Francisco and James P. Ulwick of Kramon & Graham in Baltimore.

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