Getting them straight is tricky, particularly for the growing crowd of lawyers now attacking Microsoft Corp. in private antitrust litigation.
Ever since Judge Thomas Penfield Jackson tarred the software giant as a bully and monopolist in his November findings of fact, dozens of lawyers have filed suits seeking damages for consumers and corporations allegedly overcharged for Microsoft products. Forty-two cases already have been filed, with many more expected in the coming months.
But the race to sue--and stake a claim in this hoped-for gold rush--is producing some memorable legal bloopers. Lawyers behind one suit filed in a California state court, for instance, seemed momentarily confused about Microsoft's core business. The complaint drafted by San Diego's Krause & Kalfayan suggests at one point that the software maker is actually competing in the generic drug market.
"These arrangements have enabled Microsoft Corporation to exclude other developers of Intel-compatible PC operating systems from obtaining the supply of such generic drugs' active pharmaceutical ingredient ('API')," the complaint states on Page 2.
James C. Krause, a partner in the firm, described the mistake as embarrassing and said his firm knows full well that Microsoft isn't marketing drugs. Why the mix-up? A lawyer in the firm drafted the complaint by replacing key words in a suit filed against a pharmaceutical company, Krause explained. Apparently, not all of the drug references were altered.
"Obviously there is a lot of commonality among various cases, so you try to be a good lawyer and take advantage of pleadings in the past, and sometimes you make a mistake and I don't think it's a big deal," Krause said.
Seeking the triple damages typically awarded plaintiffs in private antitrust suits, many lawyers are finding Microsoft an irresistible, if somewhat confusing, target. But few firms have much expertise in high technology, in part because the industry has only recently attracted the attention of antitrust enforcers. Most plaintiffs' firms have scored their largest victories courtesy of more traditional product-liability matters.
The law office of Shelby & Cartee in Birmingham, for example, is known for asbestos litigation. That helps explain why on Page 3 of the firm's filing against Microsoft, Shelby & Cartee claims the Redmond, Wash.-based company is principally located "within the State of Texas."
The law firm also declares that it will represent consumers who purchased a computer system through "MacIntosh Computer Company" (it meant Apple Computer Inc.). A few pages later, the firm lists as possible plaintiffs anyone who has purchased Windows 2000. (That's bound to be a tiny number--like zero--as Windows 2000 has yet to go on sale.)
"Like most complaints, this one was filed pretty quickly," said David Shelby, a lawyer at the firm. In fact, Shelby came up with the idea for the suit while watching a television report that aired the Friday that Judge Jackson issued his findings of fact. The following Monday, Shelby arrived at work and instructed a colleague to start typing a complaint.
"It will probably require an amendment or two," Shelby said of the document, with a chuckle.
Meanwhile, the Cincinnati law firm Waite, Schneider, Bayless & Chesley contended in its complaint that "Microsoft withheld technical information from Netscape, preventing development of a Windows 95 version of Netscape Navigator."
That seems unlikely, since a Windows 95 version of Navigator hit the market years ago. So how could Microsoft have "prevented" it from being developed?
Robert Heuck, one of the lead lawyers in the case, explained the firm meant that Microsoft had sought to delay a Windows 95 Netscape product, in effect "preventing" Netscape from developing a Windows 95-based browser for a period of time.
"There was prevention, but it was not forever," Heuck said.
Microsoft officials contend that gaffes in the lawsuits are emblematic of the mistakes in logic that underlie all the allegations against the company.
"It seems like all of these cases were written under the influence of an active pharmaceutical ingredient," said Mark Murray, a Microsoft spokesman. "The only people who are going to benefit from these cases are lawyers."