David Boies, the antitrust hired gun who argued the government's case against Microsoft in Washington Tuesday, was in London last month suggesting that British users of Windows software get in on the fun and sue Bill Gates's company for triple damages -- using an American attorney.
Could that attorney be Boies? An "exclusive interview" in the Aug. 15 London Observer quoted the Microsoft case's lead trial lawyer: "U.S. law permits anyone outside the United States harmed by a U.S.-based pricing conspiracy to receive the same recovery as U.S. citizens."
The newspaper added, based on the Boies interview, that "this would require British citizens to contact a U.S. lawyer in private practice to represent them." Boies is described by the Observer as "America's top antitrust lawyer," but he sounds here more like a transatlantic ambulance chaser.
Microsoft's friends in Congress this week asked Attorney General Janet Reno whether Justice Department regulations preclude personal profit for Boies derived from his prosecution. But the issue transcends individual ethics. Boies was hired for the Microsoft case by Assistant Attorney General Joel L. Klein, who had come over to Justice's Antitrust Division from the Clinton White House counsel's office. Microsoft, perhaps too big and too successful for liberal sensibilities, was targeted by Klein in a prosecution that effectively extends beyond American borders.
Apart from Boies's London visit, Klein and his lieutenants circled the globe in 1997 and 1998 importuning foreigners to move against this country's most successful company.
Brazil: In Brasilia on May 20, 1998, the Justice Department's Russell Pittman briefed Brazil's top antitrust officials about Microsoft. According to a Brazilian lawyer present, Pittman said: "Because Microsoft exerts an arrogant monopoly, behaving often in an arrogant fashion before the antitrust authorities, it would get from the antitrust agencies what it deserves." One week later, Brazilian authorities announced they were exploring legal action against Microsoft. Brazil's investigation continues.
Israel: At an antitrust seminar in Herzliya on May 26, 1998, Deputy Assistant Attorney General Daniel Rubinfeld (pinch-hitting for Klein) called it essential "to stop the use of monopoly power" by Microsoft "before the market tips." Rubinfeld provided a detailed presentation of the Justice Department case and leveled these accusations: "Microsoft used its monopoly to create a noose around the internal browser market. Microsoft limited the choice of software to consumers in the United States and the world." Israel's investigation continues.
Japan: In early December 1997, Klein traveled to Tokyo to meet with senior officials of the Japanese Fair Trade Commission (JFTC). Six weeks later, on Jan. 13, 1998, 20 JFTC inspectors conducted a "dawn raid" on Microsoft's Tokyo offices to probe the American company's competition with Japanese agencies. The investigation continued with threatened legal action against Microsoft for unfairly competing with a Japanese firm -- remarkable for a country noted for its weak antitrust policy -- but was officially closed last February.
Europe: On June 8, 1998, in Paris, Deputy Assistant Attorney General A. Douglas Melamed briefed the Organization for Economic Cooperation and Development about antitrust cases in the United States. Coincidentally or not, action is pending against Microsoft in France and Italy.
A bipartisan House group of three Republicans and four Democrats (all but one from Microsoft's home state of Washington) in their letter to the Attorney General Monday concentrated on Boies's remarks in London: "It appears that Mr. Boies, while on foreign soil, was encouraging non-U.S. citizens to hire private lawyers to pursue private litigation against an American corporation." They said this is "highly inappropriate" and enclosed Justice Department regulations prohibiting lawyers involved in litigation from making extrajudicial statements.
And what about the litigator's return to private life? The House members, headed by Democrat Jay Inslee and Republican Jennifer Dunn, questioned whether "Mr. Boies and his firm have agreed to forego representing civil claimants against Microsoft." The Justice Department is silent on this point, not responding to my inquiry.
The broader oversight question for Congress should be why Joel Klein and his hired gun are conducting a global vendetta against their country's most successful company. It would be interesting to know whether they moved on their own or received presidential sanction when Klein left the White House to begin his prosecution of Microsoft, but Bill Clinton surely would invoke executive privilege if Congress asked.
(C) 1999, Creators Syndicate Inc.