*136 MEMORANDUM OPINION
Presently pending before the Court is a motion by Defendant Microsoft Corporation (“Microsoft”) seeking “dismissal of the Non-Settling States’ demand for equitable relief.” See Microsoft Mot. at 1. Microsoft filed its motion and memorandum in support thereof following the remand of the above-captioned case from the Court of Appeals for the District of Columbia Circuit and immediately prior to the commencement of evidentiary proceedings on the issue of remedy for Microsoft’s violations of Section 2 of the Sherman Act. The Litigating States 1 oppose Microsoft’s motion on multiple grounds. Upon review of Defendant’s motion, Plaintiffs’ opposition, Defendant’s reply, the brief of the United States as amicus curiae, the brief of the State of New York as amicus curiae, and the brief of twenty-four other states 2 as amici curiae, the Court concludes that Defendant’s motion shall be denied.
I. PROCEDURAL HISTORY 3
On May 18, 1998, the United States and a group of state plaintiffs filed separate civil complaints alleging antitrust violations by Microsoft and seeking preliminary and permanent injunctions barring the company’s allegedly unlawful conduct.
See United States v. Microsoft Corp.,
The Court of Appeals remanded the cases to the District Court with instructions to hold a “remedies-specifie eviden-tiary hearing,” id. at 103, and to “fashion an appropriate remedy” in light of the revised liability findings, id. at 105. Following remand, pursuant to Court order, the parties in the two consolidated cases entered into intensive settlement negotiations. See United States v. Microsoft Corp., Nos. 98-1232 and 98-1233 (D.C.C. Sept. 28, 2001) (order requiring the parties to enter into settlement negotiations). The settlement negotiations did not resolve both cases in their entirety. However, the United States and Microsoft were able to reach a resolution in United States v. Microsoft Corp. in the form of a proposed consent decree. The settlement negotiations were partially successful with regard to the states’ case, State of New York, et al. v. Microsoft Corp.; a portion of the Plaintiff States joined in the settlement between the United States and Microsoft. Consequently, these states have elected not to proceed to a remedies-specifie hearing in State of New York, et al. v. Microsoft Corp. Those states which opted not to join the settlement between the United States and Microsoft — the Litigating States' — have proposed a remedy distinct from that presented in the proposed consent decree. Microsoft’s motion addresses only the continuing request for injunctive relief by these Litigating States.
II. LEGAL STANDARD
Ordinarily, the Court would commence its discussion of a dispositive motion, such as a motion to dismiss, with a succinct statement of the legal standard applicable to'the pending motion. In this instance, the parties have provided little guidance on the threshold question of the appropriate legal standard. Despite labeling its motion as a “motion to dismiss,” Microsoft does not identify any basis in the Federal Rules of Civil Procedure which permits the filing of a post-liability “motion to dismiss.” Upon examination by the Court, the authorization for Defendant’s motion is not immediately apparent in the Federal Rules,. Still, the Court will endeavor to identify the proper basis for Defendant’s motion, and hence, the applicable legal standard, before proceeding to the merits of the arguments contained therein.
Taking the title of Microsoft’s motion as a starting point, the Court turns to Rule 12 of the Federal Rules of Civil Procedure which, by its own title, concerns “Defenses and Objections — -When and How Presented — By Pleading or Motion — Motion for Judgment on Pleadings.” Fed.R.Civ.P. 12. Motions to dismiss brought pursuant to Rule 12(b) of the Federal Rules of Civil Procedure must be “made before pleading if a further pleading is permitted.” Fed. R.Civ.P. 12(b). Rule 12(b) further specifies that where “a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief.” Id. Clearly the parties are well past the' pleading stage and indeed, are past a trial on the merits of Plaintiffs’ claims. Thus, at a minimum, Microsoft’s “motion to dismiss” does not appear to fit the ordinary parameters of a motion pursuant to subsection (b) of Rule 12. 5
*138 Arguments presented by Microsoft in its reply memorandum give the impression that Microsoft has based its request for dismissal upon an asserted lack of subject matter jurisdiction. See generally Microsoft Reply. Given this position, Microsoft’s motion could be considered in accordance with Rule 12(h)(3) of the Federal Rules of Civil Procedure, which authorizes challenges to subject matter jurisdiction at any point in the proceedings. Fed. R.Civ.P. 12(h)(3) (“Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”). Accordingly, the Court will treat any of Microsoft’s arguments which can be characterized as concerning subject matter jurisdiction as having been raised pursuant to Rule 12(h)(3). 6
This conclusion, however, does not provide an appropriate standard for many of Microsoft’s arguments which cannot be couched in terms of jurisdiction and instead appear to raise issues relating to judgment on the merits.
Bell v. Hood,
III. DISCUSSION
Plaintiffs’ action arises, in part, under Section 16 of the Clayton Act, which provides that “[a]ny person, firm, corporation, or association shall be entitled to sue for and have injunctive relief ... against threatened loss or damage by a violation of the antitrust laws.... ” 15 U.S.C. § 26.
*139
In addition to the Clayton Act, Plaintiffs’ request for equitable relief rests upon the finding by the District Court, as affirmed by the Court of Appeals, that Defendant violated the various state statutes analogous to the federal antitrust statutes. Plaintiffs in this case seek equitable relief in their capacity as
parens patriae
“to prevent or'repair harm to [their] quasis-overeign interests,”
Hawaii v. Standard Oil Co.,
Microsoft’s “motion to dismiss”' attack Plaintiffs’ right to seek equitable relief on numerous fronts. Microsoft couches its primary arguments in terms of “standing” and, in doing so, merges and mingles a number of distinct doctrines. Microsoft primarily relies upon the doctrines of “antitrust standing” “antitrust injury,” and “parens patriae standing.” In the discussion to follow, the Court will address each of these arguments, as well as Microsoft’s secondary arguments.
A. Antitrust Standing and Injury
One- of Microsoft’s central, though vaguely articulated, 9 arguments for dismissal relies upon the complementary doctrines of antitrust standing and antitrust injury. In short, Microsoft argues that Plaintiffs have not satisfied “all of the requirements of Section 16 ... including proof of antitrust injury and a causal connection between the injury and the actions found to be anticompetitive.” Microsoft Reply at 12; accord Microsoft Mem. at 22.
The label “antitrust standing” has traditionally been applied to a court’s evaluation of the relationship between the antitrust plaintiffs harm and the alleged wrongdoing by the defendant.
See Associated Gen. Contractors of California, Inc. v. California State Council of Carpenters,
Distinct from the antitrust standing requirement is the earlier-articulated requirement -of antitrust injury. The requirement of antitrust injury arises out of the Supreme Court’s announcement in
Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc.,
Although the
Brunswick
Court’s enunciation of the requirement of “antitrust injury” concerned Section 4 of the Clayton Act, the antitrust injury requirement did not remain confined to Section 4 claims. Under Section 4 of the Clayton Act, “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws” may sue for treble damages, 15 U.S.C. § 15, while Section 16 of the Clayton Act entitles “[a]ny person, firm, corporation, or association ... to sue for and have injunctive relief ... against threatened loss or damage by a violation of the antitrust laws.” 15 U.S.C. § 26. Despite the differences between “actual” and “threatened” injury, the Supreme Court’s opinion in
Cargill
extended the doctrine of “antitrust injury” beyond suits for damages under Section 4 to suits for injunctive relief pursuant to Section 16.
Cargill,
As the separate doctrines of antitrust standing and antitrust injury exist, in part, to “set economically rational limits ... on the frequency of antitrust litigation,” Page, 37 Stan.L.Rev. at 1446, the doctrines are “commonly applied at an early stage of litigation, in either a motion to dismiss or for summary judgment,”
id.
at 1447-48. Given that both doctrines serve to establish the proper scope of antitrust liability,
id.
at 1447, logic dictates that where liability has been found, and affirmed at the appellate level, both the District Court and the Court of Appeals have necessarily concluded that the requirements of antitrust standing and antitrust injury have been satisfied. In this case, the Court of Appeals’ findings of antitrust standing and injury are implicit, if not express, in its order that the District Court “on remand ... after affording the parties a proper opportunity to be heard, can fashion an appropriate remedy for Microsoft’s antitrust violations.”
Microsoft,
*141
1. Law-of-the-Case Doctrine and the Mandate Rule
Where issues have been resolved at a prior state in the litigation, based upon principles of judicial economy, courts generally decline to revisit these issues. More than a mere rule-of-thumb, the “‘law-of-the-case doctrine’ refers to a family of rules embodying the general concept that a court involved in later phases of a lawsuit should not reopen questions decided (i.e., established as the law of the case) by that court or a higher one in earlier phases.”
Crocker v. Piedmont Aviation, Inc.,
Similar to the law-of-the-case doctrine is the “mandate rule,” a “ ‘more powerful version’ of .the law-of-the-case doctrine, which prevents courts from reconsidering issues that have already been decided in the same case.”
Independent Petroleum Ass’n of America v. Babbitt,
Based upon these principles, the Court cannot question the sufficiency of either antitrust standing or antitrust injury at this late point in the proceedings. To do so would contradict the law of the case, specifically the Court of Appeals’ opinion and the ensuring mandate, which affirmed in part the liability findings for violations of Section 2 of the Sherman Act and the applicable state-law counterparts. Thus, application of the law-of-the-case doctrine and the mandate rule to this case precludes consideration, at this late stage, of Microsoft’s antitrust standing and antitrust injury arguments. See United States v. Microsoft Corp., Nos. 00-5212 and 00-5213 (D.C.Cir. June 28, 2001) (mandate affirming in part and reversing in part the District Court’s findings of liability, remanding in part, and vacating the remedial order in full).
2. Jurisdiction, Law-of-the-Case Doctrine, and the Mandate Rule
Microsoft attempts to rescue its position from foreclosure by the law-of-the-case doctrine and the mandate rule by arguing that the issués it raises are jurisdictional. There are two fundamental flaws in this argument. First, the doctrines of antitrust standing and antitrust injury are not jurisdictional. Second, as discussed in greater detail below, the law-of-the-case doctrine applies equally to jurisdictional issues.
Ordinarily, a reference to “standing” would raise issues of Article III
*142
jurisdiction and the judicially created “prudential” considerations that often accompany an analysis of Article III standing,
see Allen v. Wright,
Even if antitrust standing and injury could be characterized as jurisdictional, Microsoft’s arguments remain foreclosed by the law-of-the-case doctrine. The D.C. Circuit and “other courts of appeals routinely apply law-of-the-case preclusion to questions of jurisdiction, and do so even when the first decision regarding jurisdiction is less than explicit.”
LaShaum, A.,
Microsoft is correct, as a general proposition, that jurisdiction over the subject matter of a case cannot be conferred by the action or inaction of the parties, and therefore cannot be waived.
Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee,
This Court is loathe to presume, as Microsoft does, that the Court of Appeals did not consider the jurisdictional issue of standing. Rather, because Article III courts are required to satisfy themselves of their own jurisdiction before proceeding to the merits of a case,
Steel Co. v. Citizens for a Better Env’t,
every federal appellate court has a special obligation to “satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,” even through the parties are prepared to concede it. Mitchell v. Maurer,293 U.S. 237 , 244[,55 S.Ct. 162 ,79 L.Ed. 338 ] (1934). See Juidice v. Vail,430 U.S. 327 , 331-332[,97 S.Ct. 1211 ,51 L.Ed.2d 376 ] (1977) (standing). “And if the record discloses that the lower court was without jurisdiction this court will notice the defect, although the parties make no contention concerning 'it. [When the lower federal court] lack[s] jurisdiction, we have jurisdiction on appeal, not of the merits but merely for *145 the purpose of correcting the error of the lower court in entertaining the suit.” United States v. Corrick,298 U.S. 435 , 440[,56 S.Ct. 829 ,80 L.Ed. 1263 ] (1936) (footnotes omitted).
Arizonans for Official English v. Arizona,
Paying little heed to the Court of Appeals’ obligation to inquire both into its own jurisdiction, as well as the jurisdiction of the District Court, Microsoft argues, in effect, that because this case was consolidated with
United States v. Microsoft Corp.
and “no one focused on this issue until the paths [of the two eases] diverged on November the 6th, 2001,” there can be no presumption that the Court of Appeals satisfied itself of its own jurisdiction prior to addressing the merits. Remedy Hrg. Tr. at 7333. Microsoft underestimates the Court of Appeals. The Court of Appeals, sitting
en banc,
noted at the outset of its review of the two cases that “[t]he action against Microsoft arose pursuant to a complaint filed by the United States and separate complaints filed by individual States,”
S. General Building Contractors Ass’n v. Pennsylvania: footnote %%
In a similar vein, in its reply, Microsoft boldly applies to the facts of this case the proposition that a court need not consider the standing of other plaintiffs until they “seek or obtain relief different from that obtained by plaintiff with [unquestioned] standing.” Microsoft Reply at 3. Applying this proposition, Microsoft reasserts its earlier contention that the Court of Appeals had no “occasion to discuss the several factors distinguishing the States’ rights to equitable relief under federal or state law from that of the United States.” Microsoft Mem. at 7;
accord
Microsoft Reply at 3-4. Microsoft bases its argument in this regard on a footnote in
General Building Contractors Ass’n v. Pennsylvania,
The Supreme Court’s statement in footnote 22 of
General Building Contractors
need not be read as an aberration or an exception to the law of standing. The Court’s discussion in footnote 22 in
General Building Contractors
was concerned only with whether a particular plaintiff had satisfied Article Ill’s standing requirements,
id.,
meaning the Constitution’s “case or controversy” requirement, which is the minimum necessary for the Court to exert jurisdiction over the subject matter of the case,
Warth,
Unlike
General Building Contractors,
where plaintiffs with unquestionable Article III standing were parties to the
same case
as a single plaintiff with questionable Article III standing, the United States — the entity with unquestionable standing — has
never
been a party to
this case.
The separate cases of
United States v. Microsoft Corp.,
No. 98-1232, and
State of New York, et al. v. Microsoft Corp.,
No. 98-1233, were consolidated pursuant to Federal Rule of Civil Procedure 42(a). Rule 42(a) provides, in pertinent part, that “[w]hen actions involving a common question of law or fact are pending before the court ... it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Fed.R.Civ.P. 42(a). As this Court previously observed, consolidation “does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another.”
United States v. Microsoft Corp.,
Nos. 98-1232 and 98-1233, Order at 2 (D.D.C. Feb.1, 2002) (Order deconsolidating
United States v. Microsoft Corp.,
No. 98-1232, and
State of New York, et al. v. Microsoft Corp.,
No. 98-1233) (quoting
Johnson v. Manhattan Ry.,
Although Microsoft would have the Court believe that the presence of entirely separate cases is a minor point, Microsoft Reply at 4, because the doctrine of Article III standing is simply a way of capturing the Constitution’s “case or controversy” limitation on federal court jurisdiction and the prudential considerations related thereto, the fact that the claims were brought in separate “cases” would seem to impact substantially upon any discussion of Article III standing. Furthermore, although the two cases presented common issues of law,
State of New York, et al. v. Microsoft Corp.
also presented issues which were wholly absent from
United States v. Microsoft Corp.,
namely the claims of each individual state under the corresponding provisions of state law. Both the District Court and the Court of Appeals assumed jurisdiction over these separate state law claims.
Microsoft,
To the extent that Defendant’s motion invokes the concepts of antitrust standing and injury, it reads as a challenge to Plaintiffs’ legal entitlement to seek a remedy following the Court of Appeals’ finding of liability in this case. Seeming to ignore the mandate of the Court of Appeals, Microsoft shrugs off the impact of the appellate court’s opinion. Specifically, Microsoft asserts that the failure of the Court of Appeals to “distinguish!] the States’ rights to equitable relief under federal or state law from that of the United States” somehow invites a new analysis of the sufficiency of the allegations in Plaintiffs’ complaint and the proof provided at trial. Microsoft Mem. at 7; accord Microsoft Mem. at 13; Microsoft Reply at 3. While it is difficult to quibble with the notion that the Court of Appeals may not have foreseen the divergence of United States v. Microsoft Corp. from State of New York, et al. v. Microsoft Corp., nothing in the appellate opinion undermines Plaintiffs’ ability to proceed to a judicial determination on the issue of remedy. Notwithstanding this fact, with little more than a passing reference, Microsoft implores this Court to ignore the .explicit findings of liability and presume that the Court of Appeals simply overlooked the fact that it was presented with two separate and distinct cases which sought relief on separate statutory grounds. Having failed to identify any legitimate basis for a challenge to the sufficiency of the pleadings or the evidence adduced at trial, Microsoft’s arguments with regard to antitrust standing .and injury are improper given the procedural posture of the case.
B. Parens Patriae Standing
Another of Microsoft’s primary arguments focuses upon yet another spe
*149
cies of
“standing”
— parens
patriae
standing. The doctrine of
parens patriae
standing
20
allows states to bring suit on behalf of their citizens in certain circumstances by asserting ah injury to a “quasi-sovereign interest.”
Snapp,
At the outset of this discussion, it bears repeating that the Supreme Court has “sharply distinguished the jurisdictional question presented for immediate resolution from’ the merits questions unavoidably pretermitted for determination at later stages of the litigation.”
Payne v. District of Columbia,
Notwithstanding the foregoing, whether jurisdictional or otherwise, as discussed in detail' above, the law-of-the-case doctrine forecloses consideration by this Court of matters which were addressed at an earli
*150
er stage in proceedings, either explicitly or implicitly, by the District Court and Court of Appeals.
LaShawn A.,
1. Article III Injury
Injury in a suit brought by a state in its
parens patriae
capacity rests upon “sufficiently severe and generalized” harm to the welfare of that state’s citizens, rather than harm to the proprietary interest
of
the state.
Commonwealth of Pennsylvania v. Kleppe,
2. Statutory Requirements
Microsoft’s argument extends beyond the Article III minimum to the issue of whether Plaintiffs have satisfied the antitrust standing and injury requirements for a parens patriae claim under Section 16 of the Clayton Act. In this regard, Microsoft posits that Plaintiffs have not satisfied the requirements for a parens patriae claim under Section 16 of the Clayton Act.
It is beyond dispute that federal antitrust law, specifically Section 16 of the Clayton Act, provides statutory authorization for claims brought by a state in its capacity as
parens patriae. See Georgia v. Pennsylvania R.R.,
The Supreme Court candidly acknowledged in
Kleppe
that “[t]he nature of the economic or welfare interest necessary to justify state standing is one of the more obscure'issues with which [the Court] must deal.” Kleppe,
Microsoft’s initial assertion is without support in the law.
23
While certainly a state alleging injury must establish that its own citizens have suffered some injury, none of the cases cited by Microsoft hold that
parens patriae
standing should be denied where the injury is felt by the citizens of the other states.
See Snapp,
■ ■ With regard to Microsoft’s latter assertion, that the claimed injuries are insufficient ' because they are based upon too discrete a group of constituents, this claim is flatly contradicted by the District Court’s conclusion that “significant adverse effect on competition within the state ... is manifestly proven by the facts pre
*152
sented here.... [Millions of citizens of, and hundreds, if not thousands, of enterprises in each of the United States and the District of Columbia utilize PCs running on Microsoft software.”
Microsoft,
S. Collateral Attack
Defendant offers a third argument against
parens patriae
standing by Plaintiffs in this case, asserting broadly that to allow Plaintiffs to obtain relief would “undermine the enforcement scheme embodied in the Sherman and Clayton Acts.” Microsoft Mem. at 22. In this regard, Microsoft characterizes Plaintiffs’ request for a remedy in this case as a “collateral attack” on the proposed settlement between the United States and Microsoft in
United States v. Microsoft Corp.
Remedy Hrg. Tr. at 7371. As Plaintiffs and the United States points out, in crafting this argument, Microsoft quotes selectively from a number of cases with the effect of mischaracterizing their holdings.
Compare
Microsoft Mem. at 23-24 (citing
Keppe,
Further supplementing its
parents pat-riae
arguments and its more general policy arguments, Microsoft relies upon a second line of cases for the proposition that a state cannot “impos[e] its own policy choice on neighboring States.” Microsoft Mem. at 24 (quoting
BMW of N. Am., Inc. v. Gore,
C. Other Arguments
Having disposed of Microsoft’s more detailed arguments involving antitrust standing, antitrust injury, and parens patriae standing, the Court turns to a series of arguments raised in summary form by Microsoft in its memorandum in support of dismissal. Once again, the Court takes the position that because liability in this case has been established and affirmed on appeal, the law-of-the-case doctrine precludes all of the following arguments, which are attacks upon the Litigating States’ ability to bring suit and to obtain a judgment in their favor. Nonetheless, for the sake of completeness, the Court touches briefly upon the legal merits of Microsoft’s remaining arguments.
1. Appointments and Take Care Clauses
Microsoft argues that to permit the Litigating States to seek relief distinct from that agreed upon and submitted to the Court for approval by Microsoft and the United States “would raise serious constitutional questions under both the Appointments and Take Care Clauses of Article II.” Microsoft Mem. at 27. The “Appointments Clause,” appearing in Article II, Section 2 of the Constitution, provides that the President “shall nominate, and by and with the Advice and Consent of the Senate shall appoint ... Officers of the United States.” U.S. Const. Art. II, § 2. Arguing that the Appointments Clause enables compliance with the Constitution’s mandate that the President “take [c]are that the [l]aws be faithfully executed,” U.S. Const. Art. II, § 3, Defendant insists that the Litigating States’ request for equitable relief “impermissibly interfere[s]” with the President’s duties in this regard. Microsoft Mem. at 27. As the United States points out in its amicus brief, Microsoft’s argument in this vein can be viewed as an attack not only on actions by private parties pursuant to Section 16, but on actions pursuant to “Sections 4 (damage actions by private parties for antitrust violations) and 4C (state
par-ens patriae
suits for money damages for violations of the Sherman Act)” on the grounds that the actions authorized thereunder are inconsistent with Article II. United States Amicus Br. at 19. Not surprisingly, this ambitious argument and the ensuing conclusion that Plaintiffs’ claims should be precluded are not directly supported by the case law cited by Microsoft in its memorandum.
See Printz v. United States,
2. Supremacy Clause
Microsoft raises an additional concern for the supremacy of federal enforcement by relying upon the Supreme Court’s holding in
Geier v. American Honda Motor Co.,
Each of the cases Microsoft cites is readily distinguishable on its facts. Moreover, Microsoft’s arguments on this point ignore the fact that states have long been permitted to sue under the federal antitrust laws in their capacity as
parens patriae.
26
See Georgia,
S. United States v. Microsoft Corp.
Microsoft makes a series of arguments based upon the existence of a proposed final judgment in United States v. Microsoft Corp. In essence, Microsoft argues that consideration of the proposed consent decree submitted by the parties in United States v. Microsoft Corp. — the “[Second] Revised Proposed Final Judgment” — is appropriate only in that case and not in this one. Microsoft Mem. at 38-39. Without disputing this somewhat general and inoffensive proposition, the Court fails to see how it impacts upon these proceedings. That Microsoft has chosen to offer as its proposed remedy in this case a remedy which is identical to the “[Second] Revised Proposed Final Judgment” submitted in United States v. Microsoft Corp. does not bear upon this Court’s discretion to order an appropriate remedy for antitrust violations pursuant to Section 16. It borders on frivolous to argue that Microsoft’s decision to submit the same proposed remedy in both cases would have such an effect and thereby enable Microsoft to bootstrap itself into an argument for preclusion. 27
J. Fifth Amendment Takings Clause
Finally, Microsoft argues that “several aspects” of the Litigating States’ proposed remedy “raise substantial issues under the Takings Clause of the Fifth Amendment, and those issues militate against awarding such relief under traditional equitable principles.” Microsoft Mem. at 39-40. Microsoft’s argument in this regard is directed at the specifics of the Litigating States’ remedy proposal. Because Microsoft seeks outright dismissal of the Litigating States’ request for equitable relief, this side-trip into the merits of select portions of Plaintiffs’ proposal seems, if not contradictory to Microsoft’s arguments, then at lease premature. Furthermore, Microsoft’s argument regarding “several aspects” of the Litigating States’ remedy proposal is overly vague, failing to cite to any specific provision in the Litigating States’ remedy proposal. Id. at 39-41. As consideration of the “takings” issue raised by Microsoft would be far more appropriate in the context of a substantive evaluation of the competing remedy proposals, the Court defers its discussion of this argument, if necessary at all, until it addresses the merits of the competing proposals.
IV. CONCLUSION
This case has been unique from its inception and has continued to distinguish itself from its predecessors throughout its pendency. The Court’s Opinion in response to Microsoft’s “motion to dismiss” reinforces that distinction in that the Court’s holding in this instance is a product, primarily, of the unusual procedural posture of this case. Thus, the Court observes that the legal issues addressed herein may prove appropriate for consideration in a subsequent case where they are not hobbled at the outset by the existing law of the case. 28
*156 Nonetheless, in this particular case, for the reasons set forth in detail above, the Court concludes that Microsoft’s motion is without merit and must be denied. In so concluding, the Court rejects Microsoft’s legal arguments on their merits, as well as Microsoft’s contention that these legal arguments are not foreclosed by the law of this case. An appropriate Order accompanies this Memorandum Opinion.
ORDER
For the reasons set forth in the accompanying Memorandum Opinion, it is this 12th day of June, 2002, hereby
ORDERED that Defendant Microsoft’s “Motion for Dismissal of the Non-Settling States’ Demand for Equitable Relief’ is DENIED.
SO ORDERED.
Notes
. The record in this case reflects that, the nine states and the District of Columbia proceeding to litigate this case prefer to be call the "Litigating States,” as opposed to the "Non-Settling States.” As a matter of courtesy, the Court will refer to this group of plaintiffs by their chosen title, or simply as "Plaintiffs.”
. This amicus brief was filed by the States of Arizona, Arkansas, Colorado, Idaho, Illinois, Indiana, Louisiana, Maine, Maryland, Michigan, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, North Dakota, Ohio, Oregon, South Dakota, Tennessee, Vermont, Washington, and Wisconsin, and the Commonwealth of Kentucky.
. The history of this case is lengthy and complicated. As not all of the historical details are pertinent to the instant motion, the Court will recount, in summary form, limited portions of the procedural history of this case.
. The suit styled as State of New York, et al. v. Microsoft Corp., No. 98-1233, was originally brought by twenty states and the District of Columbia. One state withdrew from the action prior to the issuance of liability findings by the District Court. Another state settled its claims in July of 2001.
. Rule 12(b) applies to the following defenses: "(1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19.” Fed.R.Civ.P. 12(b).
. "[I]t is well established that, in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.”
See Scheuer v. Rhodes,
. Beyond an initial determination that "a plaintiff’s jurisdiction-conferring claims are not insubstantial on their face, no further consideration of the merits of the claim(s) is relevant to a determination of the court’s jurisdiction of the subject matter.”
Hagans v. Lavine,
.For Microsoft’s non-jurisdictional arguments, the Court may apply the ordinary summary judgment standard. Summary judgment should be granted only if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law.
See Celotex Corp. v. Catrett,
. The centrality of the issues of antitrust standing and injury is not strikingly apparent from Microsoft's opening memorandum, in part, because Microsoft does not initially distinguish its discussion of parens patriae standing from its discussion of antitrust standing and injury. Nevertheless, the Court draws this distinction at the outset to reflect the fact that the case law which establishes the doctrine of parens patriae standing proceeds along a separate channel from the body of law that defines antitrust standing and injury. See Infra Section III.B.
. The Supreme Court explained in Allen:
The Art. Ill doctrine that requires a litigant to have ''standing” to invoke the power of a federal court is perhaps the most important of these doctrines. “In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, [422 U.S. 490 , 498,95 S.Ct. 2197 ,45 L.Ed.2d 343 (1975)]. Standing doctrine embraces several judicially self-imposed limits on the exercise of federal jurisdiction, such as the general prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff’s complaint fall within the zone of interests protected by the law invoked. See [Valley Forge Christian College v. Americans United for Separation of Church and State, Inc.,454 U.S. 464 , 474-475,102 S.Ct. 752 ,70 L.Ed.2d 700 (1982)]. The requirement of standing, however, has a core component derived directly from the Constitution. A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief. [Id. at 472,102 S.Ct. 752 ].
. The distinction between prudential and true Article III standing is immaterial in this discussion because the D.C. Circuit treats prudential aspects of standing as being "akin” to core Article III requirements for purposes of assessing subject- matter jurisdiction.
American Immigration Lawyers Ass’n v. Reno,
While there can be said to be an aspect of "standing” in a court’s evaluation of the statutory basis for a plaintiff's claim, this aspect of standing for purposes of establishing jurisdiction presents a low threshold. The plaintiff need only state a claim which is not so “patently insubstantial” that the exercise of jurisdiction is not warranted.
Best v. Kelly,
. Berger and Bernstein are quite clear that antitrust standing is separate from both the purely constitutional and the prudential aspects of the constitutional doctrine of standing:
Because the doctrine of antitrust standing reflects the special antitrust policy considerations mentioned above, its focus is somewhat different from that of standing doctrines familiar to constitutional lawyers. In constitutional litigation, the initial standing question is whether the claimant is alleging a "particular, concrete injury” that gives him a "personal stake in the outcome” of the adjudication, and thereby meets the constitutional and prudential requirement of injury in fact.
Antitrust plaintiffs pass this constitutional threshold by alleging the statutorily required "injury in [their] business or property.” Since such economic injury satisfies the constitutional standing requirement of injury in fact, the antitrust standing injury is not concerned with whether the plaintiff has constitutional standing.
Berger and Bernstein, 86 Yale L.Rev. at 813 n. 11 (citations omitted) (alteration in Berger and Bernstein) (emphasis added).
. The Court is aware that courts are not "bound by decisions on questions of jurisdiction made
sub silento
in previous cases- 'when a subsequent case finally brings the jurisdictional issue' to the Court.”
LaShawn A.,
.Waiver, as a doctrine related to law-of-the-case doctrine, dictates that a "legal decision made at one stage of litigation, unchallenged on subsequent appeal when the opportunity to do so existed [governs] future stages of the same litigation, and the parties are deemed to have waived the right to challenge that decision at a later time.”
Crocker,
. As defined by Black's Law Dictionary, to waive is "[t]o abandon, renounce, or surrender (a claim, privilege, right, etc.); to give up (a right or claim) voluntarily.” Black’s Law Dictionary 1574 (7th ed. 1999). Waiver is defined as the "voluntary relinquishment or abandonment — express or implied — of a legal right or advantage.” Id.
. The Insurance Corp. of Ireland Court stated:
[A] court, including an appellate court, will raise lack of subject-matter jurisdiction on its own motion. "[T]he rule, springing from the nature and limits of the judicial power of the United States is inflexible and without exception, which requires this court, of its own motion, to deny its jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the.record.”
. The mandate provides in full:
These causes, come on to be heard on the record on appeal from the United States District Court for the District of Columbia and were argued by counsel. On consideration thereof, it is
ORDERED and ADJUDGED, by the Court, that the judgment of. the District Court appealed from in these causes is hereby affirmed in part, reversed in part, remanded in part, the final judgment embodying the remedial order is vacated in full and the cases are remanded with instructions, all in accordance with the opinion for the Court filed herein this date.
Microsoft, Nos. 00-5212 and 00-5213 (D.C.Cir. June 28, 2001).
. The holding in
IPAA II
does not detract from this conclusion, as that case is plainly distinguishable on the facts. In that case, on the first appeal,
IPAA I,
the Court of Appeals addressed two cases consolidated at the District
Court
level,
IPAA v. Babbitt
and
Samedan Oil Corp. v. Deer,
and reversed the District Court’s grant of summary judgment on two discrete issues.
IPAA
IT,
argue[d] that its claim originally included a challenge to the [agency decision challenged by the companion case, Samedan Oil Corp. v. Deer,] and that in IPAA I [the Court of Appeals] reversed the District Court's order granting summary judgment against IPAA in its challenge to [the agency decision in] Samedan. IPAA suggested that] the District Court ignored this mandate by refusing to enter a judgment in its favor and subsequently dismissing its complaint. According to IPAA, by reopening questions already determined in earlier phases of this litigation, the District Court violated the mandate rule.
IPAA II,
. It is not clear whether, in referencing “Article III jurisdiction to entertain those common issues presented by all plaintiffs,”
General Building Contractors,
.
"Parens patriae
means' literally parent of the country.' "
Alfred L. Snapp & Son, Inc. v. Puerto Rico,
. Although the District Court reached this conclusion in the context of a discussion of intrastate injury in conjunction with its analysis of certain state laws,
Microsoft,
. For Article III purposes, the breadth of the injury among the several states is not relevant, as limitations on claims for broadly felt injuries are not constitutionally based.
See Warth,
. Microsoft concedes that the term “state-specific injury” is a “Microsoft" term, which does not appear in the case law. Remedy Hrg. Tr. at 7359.
.
Indeed,
BMW
concerned an attempt by Alabama to “impose economic sanctions on violators of its laws with the intent of changing the tortfeasors' lawful conduct in other States."
. Microsoft quotes
selectively from the
language in
Borden
to imply that suits by the federal government are intendéd to supersede suits by private litigants, including states in their
parens patriae
capacity. Microsoft Mem. at 15. The holding in
Borden
does not go that far. To the contrary,
Borden
holds only that suits by private litigants resulting in an in
junction do not
preclude suits by the United States for injunctive relief.
Borden,
. Some antitrust statutes expressly encourage state litigation as parens patriae. See, e.g., 15 U.S.C. § 15c.
. As no judgment has been entered in United States v. Microsoft Corp., at this point, the Court need not address Microsoft's argument that entry of a final judgment in United States v. Microsoft Corp. constitutes res judicata such that the Litigating States cannot obtain relief in their own case.
. The policy arguments raised in the United States' amicus brief, and to a lesser extent in Microsoft’s memoranda, regarding the Court's exercise of its equitable powers, although not specifically addressed in this Memorandum Opinion, have not passed unnoticed. Once again, however, given the unique posture of this case, including specific instructions from the Court of Appeals to "af
*156
ford[] the parties a proper opportunity to be heard” on the issue of remedy,
Microsoft,