This is n. p. r.'s all things considered i'm linda wertheimer and i'm noah adams today in california three veteran class action attorneys are filing a lawsuit against microsoft since that could be the beginning of an avalanche of litigation senseless by a federal judge is description of microsoft's behavior in a bluntly worded statement earlier this month judge thomas penfield jackson said that microsoft had carved consumers by thwarting innovation

He also gave support to potential plaintiffs who want to prove that microsoft overcharged for its windows operating system n. p. r.'s john mcchesney reports

There's a key paragraph in judge jackson's findings of fact that might provide leverage for these and other class action lawyers the judge points to a november nineteen ninety seven study in which microsoft says he couldn't charge

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Ninety eight but chose instead to charge eighty nine dollars as quote the revenue maximizing price the study might provide plaintiffs against microsoft with a dollar figure to measure damages which an anti trust cases can be three times actual damages but it won't be easy to make this case the pricing issue alone will not make the case for these litigators don baker is an antitrust lawyer in washington d. c. he was head of the justice department's antitrust division during the ford administration

There's no rule that says a monopolistic is prevented from charging a monopoly priced of corporate the queen and intellectual property and so forth

Baker says that in order to these class action plaintiffs to make their case they would have to prove a connection between the stifling of innovation alleged by the government and seconded by the judge they have to prove a connection between that and the higher price microsoft charge for windows for its part microsoft says it could affect the price of windows even higher and actually considered a hundred and twenty nine dollars but settled for the lower price of eighty nine dollars

Microsoft spokesman mark murray says the study quoted by the judge is standard practice for any company surveying the marketplace in an attempt to set

Rice's well we think it's very unfortunate both for consumers and the economy that this common ground with lawsuits will be threatened again an american company that has consistently driven prices down and deliver great innovation that consumers this kind of lawsuit is particularly ironic since microsoft prices were consistently lower than virtually all of our operating system competitors like i. b. m. are the match

Another potential complication for these class action lawyers is that most people don't buy windows and shrink wrapped packages from a retailer instead they get windows from a computer manufacturer pre loaded on a new computer and nineteen seventy seven supreme court ruling says that such indirect purchasers of products can recover damages and class action antitrust lawsuit since then though eighteen states including california and new york have passed laws permitting indirect producers to recover damages

Many observers believe that the threat of a flood of these kinds of class action suits with the potential liability of millions or even billions of dollars for microsoft had to be pressure for the big software maker to settle this case out of court but there are others who believe that microsoft could see this kind of thing common a long time ago and if it were worried that it's settled the case earlier

On friday judge jackson appointed a well known anti trust expert as a mediator in the case he's richard posner a federal appeals court judge again no skeptical observers point out that a mediator will only work if the parties want to settle

John mcchesney n. p. r. news san francisco