-Caveat Lector-
Microsoft's Competitors Hire Starr to Back Breakup
By James V. Grimaldi
Washington Post Staff Writer
Friday, January 12, 2001 ; Page E01
Rivals of Microsoft Corp. have retained Whitewater prosecutor
Kenneth Starr to help support the Clinton administration's case
that the software giant broke antitrust law and should be split
in two to restore competition in the marketplace.
Starr, who also served as an appellate judge and solicitor
general, has been hired by ProComp, a trade group that includes
America Online Inc., Sun Microsystems Inc. and Oracle Corp.
Separately, America Online has hired Walter Dellinger, a former
solicitor general for President Clinton, to work on the case.
The duo have helped Robert Bork, a former federal judge, write a
friend-of-the-court brief backing the trial court's decision to
break up the company. The brief is due today at the U.S. Court
of Appeals for the District of Columbia.
The U.S. Justice Department, 18 states and the District also
have a deadline today to file their brief in opposition to
Microsoft's appeal of the order breaking the company into two
competing entities, one focused on Windows operating systems and
another centered around software applications. Oral arguments
are set for next month.
As Whitewater prosecutor, Starr led the investigation into the
Monica Lewinsky scandal, and his final report resulted in the
impeachment of President Clinton.
Dellinger, a partner at O'Melveney & Meyers, served as solicitor
general in 1996 and 1997 and was a key member of Vice President
Gore's legal team that fought for a manual recount of votes in
several counties in Florida. He also teaches constitutional law
at Duke University Law School.
Starr said he first was asked last fall to join the antitrust
fight by Bork, his friend and former colleague on the appeals
court. Starr, whose report on the Lewinsky scandal was released
in the midst of the Microsoft antitrust trial, said he had
followed the matter but closely studied the antritrust case
before agreeing to help. He then told Bork he had no hesitation
supporting the judgment and breakup order.
"This is, as I see the case, an application of traditional and
well-established antitrust principles to a setting of new
technology," Starr said yesterday. "And the findings of fact are
very elaborate, very detailed and admirably thorough, coming on
the heels of a very comprehensive trial."
The hiring of Starr and his firm, Kirkland & Ellis, comes just as
the case enters a crossroads of administrations, with questions
being raised about whether the incoming administration of
President-elect Bush will take a softer approach to Microsoft, or
drop the case altogether.
During the presidential campaign, Bush expressed doubts about
Judge Thomas Penfield Jackson's order to break Microsoft into two
companies. But Bush also has pointed out that one of his top
high-tech advisers is Jim Barksdale, the former chief executive
of Netscape Communications Corp. and the government's lead
witness in the antitrust trial.
While Bush kept a distance from Starr during the campaign, Starr
is close to many Republicans with strong links to the incoming
administration.
Perhaps more important to ProComp than Starr's GOP connections is
his knowledge of the D.C. Circuit, where he served from
1983-1989. An appeals court panel, voting 2 to 1, gave Microsoft
a 1998 victory in a predecessor antitrust case.
"Ken Starr is an especially astute observer of that court," said
William Kovacic, a George Washington University law professor who
has followed the case closely. "He has a singularly wise
intuition about how the court thinks and as a result an ability
to shape arguments that have the best possible chance of
appealing to them."
Microsoft's supporters, including the Association for Competitive
Technology, also have a star-studded legal team. It includes
former White House counsels Lloyd Cutler and C. Boyden Gray,
ex-deputy solicitor general Louis Cohen, and former attorneys
general Griffin Bell and Nicholas deB. Katzenbach. But
Katzenbach later said that while he opposed the breakup plan, he
thought Microsoft had violated antitrust law.
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FROM THE DESK OF:
*Michael Spitzer* <[EMAIL PROTECTED]>
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