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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND IN RE MICROSOFT CORP. ANTITRUST LITIGATION "Consumer Track" This Document Relates To: McCall v. Microsoft Corp. Moscowitz v. Microsoft Corp. Howard v. Microsoft Corp. Strickley v. Microsoft Corp. Prentice v. Microsoft Corp. * * * * * * * * * * * * *****

MDL 1332

Civil No. JFM-99-3897 Civil No. JFM-00-2444 Civil No. JFM-00-2446 Civil No. JFM-00-2447 Civil No. JFM-00-2451

MEMORANDUM

Microsoft has filed a motion to dismiss certain complaints asserting state law claims. Specifically, Microsoft seeks to dismiss in their entirety the complaints filed in Howard v. Microsoft Corp., Moscowitz v. Microsoft Corp., Prentice v. Microsoft Corp., and Strickley v. Microsoft Corp., and the complaint in McCall v. Microsoft Corp. to the extent that plaintiffs in that action seek relief other than injunctive relief. Microsoft's motion will be granted in all respects. In an opinion issued on January 12, 2001, I deferred ruling on Microsoft's motion to dismiss with respect to certain state law claims to "await guidance from the appellate courts in those states." In re Microsoft Corp. Antitrust Litig., 127 F. Supp. 2d 702, 722-23 (D. Md. 2001). Microsoft's present motion is based upon state appellate court decisions that have been rendered since my January 12, 2001 Opinion. Connecticut - Moscowitz In Vacco v. Microsoft Corp., 793 A.2d 1048 (Conn. 2002), the Connecticut Supreme Court

affirmed the trial court's dismissal of claims asserted by the plaintiff under the Connecticut Antitrust Act and under the Connecticut Unfair Trade Practices Act. Plaintiffs in this action concede that they cannot distinguish the claim they have asserted under the Connecticut Unfair Trade Practices Act (the sole claim they have asserted) from the similar claim asserted in Vacco. Kentucky - Strickley and Howard In Arnold v. Microsoft Corp., No. 2000-CA-002144-MR, 2001 WL 1835377 (Ky. Ct. App. Nov. 21, 2001), the Kentucky Court of Appeals held that Illinois Brick bars suits by indirect purchasers of Microsoft operating software licenses under Kentucky's version of the Sherman Act and Kentucky's Consumer Protection Act. Id. at *7. On November 13, 2002, the Supreme Court of Kentucky denied discretionary review of the Arnold decision. Plaintiffs here seek to distinguish Arnold on the ground that the Arnold plaintiffs did not assert a claim for unjust enrichment under Kentucky common law. However, in Arnold the court held that a more specific statute controls over a more general one. Id. Therefore, under Arnold a claim for damages for antitrust violations cannot be asserted under the Kentucky Consumer Protection Act where they cannot be asserted under Kentucky's version of the Sherman Act. This same reasoning equally applies to a common law claim for unjust enrichment arising from antitrust violations. Maryland - McCall In Davidson v. Microsoft Corp., 792 A.2d 336, 344 (Md. Cts. Spec. App.), cert. denied, 801 A.2d 1032 (Md. 2002), the Maryland Court of Special Appeals held that Illinois Brick bars actions brought by indirect purchasers of licenses to Microsoft software. Plaintiffs in this action ask that this court certify the Illinois Brick question to the Maryland Court of Appeals. In light of a recent 2

amendment to the Maryland Uniform Certification of Questions of Law Act, Md. Code Ann., Cts. & Jud. Proc.

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Maryland Law