In an amicus brief filed with the US District Court for the District of Columbia, the DOJ argued against extending provisions of the 2002 consent decree with Microsoft Corporation that were set to expire on November 12, 2007. In October, several state attorneys general formed two groups, each filing separate petitions for a five year extension of the consent decree. The court, in response, granted a three month extension to allow it until January 2008 to consider the parties’ arguments.

The group of state respondents led by California – which included Connecticut, Iowa, Kansas, Minnesota, Massachusetts and Washington DC – argued that in the absence of the protections accorded by the consent decree, Microsoft would wield its market dominance to harm competition. In particular, the California group pointed to the consent decrees’ provisions concerning so-called middleware (software used to connect other software components), stating that such provisions are “more necessary now than ever and should not be allowed to lapse precisely when they could be the most useful.” The California group also argued that the extension was appropriate in light of Microsoft’s stalling for almost five years in publishing certain technical documentation, which was mandated under the final judgment. Another respondent group led by New York – which included Maryland, Louisiana and Florida – concurred in the California group’s arguments and characterized Microsoft as “an entrenched monopolist.”

Opposing the states’ motions to extend the consent decree, the DOJ argued that an extension was not supported by law, would undermine its antitrust settlement framework and would constitute bad public policy. According to the DOJ, the consent decree had achieved its principal objectives to cause Microsoft to cease its illegal practices, to prevent the recurrence of those practices and to restore competition with Microsoft’s products from middleware. The California group’s assertion that the consent decree had been ineffective because Microsoft’s market power still existed, and that the company might abuse its market power in the future, are not legally sufficient bases for extending the consent decree. The DOJ further argued that if a few states “are granted a substantial modification of the decree . . . it would destabilize the finality of consent decrees and thereby undermine the ability of the United States to settle antitrust cases in general, and in particular to settle cases jointly with antitrust enforcers in the states.”