- The Washington Times - Thursday, June 15, 2000

SEATTLE A state judge in Oregon has dismissed a lawsuit against Microsoft Corp. that claimed consumers paid too much for Windows 98, giving the software maker one of its first victories in a string of consumer antitrust suits filed in 37 states and the District of Columbia.
Multnomah County Circuit Judge John Wittmayer based his decision yesterday on a U.S. Supreme Court ruling that consumers cannot sue a company under antitrust laws if they did not purchase a product directly from the company.
That not only covers computers purchased with the Windows operating system pre-loaded, but also software and upgrades purchased through retail outlets such as software stores and on-line electronic-commerce sites. Microsoft only sells directly to retail stores and computer makers, and does not offer direct sales to consumers.
"We believe this is a good first step based on sound Supreme Court precedent," said Microsoft spokesman Jim Cullinan. "I think the court recognized that these are simply efforts by plaintiffs' attorneys to go after a successful company and nothing more."
David Dean, a Portland attorney representing Oregon consumers Hafez Daraee and Brooks Cooper, said he is considering an appeal.
Since a federal judge has found that Microsoft violated federal antitrust laws, there has been a rush on the courts by attorneys looking to sue the company.
U.S. District Judge Thomas Penfield Jackson last week ordered Microsoft be broken up into two companies. Microsoft is appealing the decision.
Consumer lawsuits could be expensive for Microsoft, as federal law allows for three times the normal damages. But Herb Hovenkamp, an antitrust expert at the University of Iowa, said the law was fairly clear on third-party antitrust lawsuits.
"This is probably an attempt by the local plaintiff to get an interpretation of Oregon's statute on this," said Mr. Hovenkamp, whose book, "Antitrust Law," has been repeatedly cited by all parties in Microsoft's federal antitrust case. "This gives Oregon courts some precedent, but also other state courts can look at this as well."
Only 16 states not including Oregon and the District of Columbia allow consumers to sue for antitrust violations if they purchase products through a middleman. Those states are Alabama, California, Hawaii, Illinois, Kansas, Maine, Maryland, Michigan, Minnesota, Missouri, New Mexico, North Carolina, Rhode Island, South Dakota, Washington and Wisconsin.
The Oregon case was one of 137 filed against Microsoft by private parties. A federal judge in Baltimore was tapped last month to coordinate and consolidate 27 of the private lawsuits against the company.

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