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The U.S. Department of Justice urged a federal judge late Feb. 8 to dismiss a challenge to the U.S. government’s Microsoft Corp. settlement, which had been filed by the Washington, D.C.-based American Antitrust Institute, arguing the group has no right to question the deal. “The complaint fails to state a claim for which relief can be granted and this court lacks jurisdiction to hear plaintiff’s claims in any event,” the Justice Department said in its motion to dismiss the AAI lawsuit. The antitrust institute filed suit Jan. 31, asking U.S. District Judge Colleen Kollar-Kotelly of the District of Columbia to suspend future court action on the settlement until after Microsoft discloses all of the contacts she had with members of Congress and their staffs in connection with the case. The AAI also said the Justice Department should detail why it rejected other remedies, such as splitting the software giant into multiple companies. The group contends that the Tunney Act, which provides for judicial oversight of government antitrust settlements and gives the public the right to comment on such deals, requires both actions. AAI president Albert Foer said Feb. 9 that he has not yet seen the government’s filing. The group is expected to submit its response Wednesday. But Foer said the suit already is having its intended effect. At a court hearing Friday, the judge required the government and Microsoft to respond to many of the points the institute raised. “We think we already are making progress,” Foer said. At the Friday hearing the judge also said she would hear testimony the week of March 4 from the government and Microsoft on why she should adopt the settlement. That would occur about a week before a March 11 hearing on a demand by nine states for tougher remedies against Microsoft. Those states refused to endorse the Justice Department settlement. The judge also did not decide whether the hearing on the settlement would last a single day, as the government and Microsoft desire, or whether critics of the deal would be allowed to testify. The judge is expected to provide more guidance in several weeks. In a 29-page memorandum accompanying the motion to dismiss the AAI lawsuit, the Justice Department says it is inappropriate for the court to consider the AAI’s motion for a stay because the group had an opportunity to comment on the settlement through the Tunney Act proceeding. “Any contrary result would imply that the thousands of commenters in this matter could file suit anywhere in the country to enjoin the court’s handling of its own case,” the Justice Department said. “Such a result is neither intended by the act nor necessary to vindicate Congress’s goals.” The government memorandum also argued that the Tunney Act does not give private parties the right to question settlements through lawsuits, nor has the U.S. Congress through the act waived the government’s sovereign immunity from being sued, argued the government. The Justice Department also contends that the antitrust institute is not harmed by the alleged failure of the government and Microsoft to comply with the Tunney Act. This is because the group had a right through a normal Tunney Act public comment filing to express its objections to the deal. The government also said that even if the institute does have a right to sue, the Justice Department did not violate the Tunney Act disclosure requirements. It says the law requires the government to list alternatives to the settlement but not an explanation of why the options were rejected. It also said Microsoft’s alleged violation of the disclosure requirement does not give AAI a right to sue because the listing of contacts with Capitol Hill is intended to aid the court, not the public. Copyright (c)2002 TDD, LLC. All rights reserved.

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