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More Microsoft Questions

Bruce Gottlieb
Posted Monday, Nov. 2, 1998, at 2:07 PM ET

In trying to sort out the trial technicalities, Explainer also wonders:

1) Why is the case being tried before a judge, not a jury?

Answer: If the plaintiffs (the Department of Justice and 20 states) were seeking "damages" (money) from Microsoft, then either side would be entitled to request a jury trial. However, the plaintiffs are not seeking money--they only seek injunctive relief such as stopping Microsoft from packaging its internet browser in Windows 98 (see Explainer below). The Microsoft trial thus falls under a category of law called "actions in equity." According to a tradition dating back to English law, "actions in equity" are tried before a judge not a jury.

The DOJ complaint does seek to recover "costs" from Microsoft--such as the money spent while preparing depositions. Likewise, the states' complaint filed August 17 seeks to be "awarded their costs of suit, including reasonable attorneys' fees." However, costs and fees are minor sideshows of the case, and neither of these constitute "damages."

2) What do the 20 states (plus the District of Columbia) stand to gain that the Justice Department wouldn't?

Answer: Nothing really--the states' complaint is substantively similar to, albeit separate from, the DOJ complaint, and since damages are not being sought, both plaintiffs will gain the same thing. The states had sought to investigate Microsoft's business practices related to its Microsoft Office software, but they dropped that in July.

While they will not gain financially, the states feel that they are advancing the cause of their consumers and businesses. The states, as well as the DOJ, have the ability and responsibility to enforce anti-trust law, and some states have been investigating Microsoft on those grounds for years. Looking at the individual states who joined the suit also is revealing. New York has Silicon Alley, California has Silicon Valley--both would benefit from increased competition in the technological world (which would give more exposure to locally developed products). The absentees are equally notable. Texas--where a lot of PC manufacturers are located--decided not to join the suit last-minute when, according to an Associated Press story, "several of the state's high-tech companies complained to Attorney General Dan Morales." Microsoft's home state of Washington is also notably absent.

Next question?

This item was written by Kate Galbraith.

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Bruce Gottlieb is a law student and a former Slate staff writer.
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