June 20, 2002

Microsoft Plays Hardball at the End of Its Antitrust Trial

The end of the remedy phase of the Microsoft antitrust trial. Looks like--once again--Microsoft's lawyers have decided to rely on the appeals court's finding something it doesn't like in the trial judge's conduct of the case. This is an extremely risky strategy....


| M E D I A U N S P U N |

Judging a Judge's Smile | Before closing arguments in the remedy phase of the Microsoft antitrust trial, Judge Colleen Kollar-Kotelly asked the two sides to rank their arguments and consider which of their opponent's proposals might be tolerable to them. Attorneys for the nine non-settling states obliged. Microsoft hard-lined it, blowing off the judge's request and even proposing a last-minute scaling back of the already toothless Justice Department settlement. And the judge smiled.

Reporters had differing interpretations of that smile. The New York Times said the judge smiled at Microsoft's lawyer's "open defiance of her efforts to extract concessions." The Seattle Post-Intelligencer guessed that the judge's smile meant that she "like most in the courtroom understood such elements have no chance of being dropped from any settlement." The San Jose Mercury News' Dan Gillmor made his opinion perfectly clear while admitting that the judge's could not easily be interpreted: "Only she knows what she was thinking, but I'm hoping it was a smile of incredulity."

Let's take a poll of the opposing lawyers' sound bites. Of nine outlets Unspun surveyed, seven reported the states' lead attorney Brendan Sullivan's plea to the judge: "Microsoft still doesn't get it, and you're the only one left to tell them what it's all about." Only five ran some version of Microsoft lead attorney John Warden's tough-guy stance, "We have been through this. We went as far as we felt we could go. That's the deal."

Obliging the judge's request, the states prioritized their remedy proposals, although protesting that such ranking was similar to "giving up one of your children," as several outlets quoted the states' Steven Kuney. Many reporters noted that the states' most controversial proposal, forcing Microsoft to produce alternate versions of Windows free of some of its bundled software, was way down the list. At the top was disclosure of Windows internals to competitor and partner companies.

Dow Jones, carried in SmartMoney, spent most of its column-inches on the states' presentation. In answer to the question posed by several outlets -- why did the states de-emphasize unbundling? -- reporter Mark Wigfield winkled an explanatory detail from a "brief press conference" held by Tom Miller, attorney general of Iowa, after the session. (Unspun pictures Miller pausing to mutter an answer in response to a shouting, shoving crush of reporters.) Miller said the decision to elevate disclosure to the top of the wish list came, in a late-night conference call, as the states acknowledged the controversial nature of the unbundling proposal.

The Seattle P-I's Charles Pope turned in a good analysis of the choices facing Judge Kollar-Kotelly as she balances the tasks of approving the Justice Department settlement, or not, and imposing further remedies. Pope wrote that "many observers expect" the judge to blend the states' proposals with the DOJ settlement to "forge a settlement that requires more disclosure from Microsoft and tougher oversight."

Most scribes said they expect a decision later in the summer. Unspun suspects the judge will smile when she delivers it. - Keith Dawson

Microsoft Antitrust Case Goes to Judge for Ruling
http://www.nytimes.com/2002/06/20/technology/20SOFT.html

Microsoft spurns request to rank issues
http://seattlepi.nwsource.com/business/75355_msft20.shtml

Microsoft leaves no doubt in blowing off judge's order
http://www.bayarea.com/mld/mercurynews/business/3508223.htm

States Push for Disclosure in Microsoft Antitrust Remedy (Dow Jones)
http://www.smartmoney.com/bn/ON/index.cfm?story=ON-20020619-000815-1721

Microsoft Refuses to Present Narrowed List of Demands
http://online.wsj.com/article/0,,SB1024502680123150200,00.html
(Paid subscription required)

Lawyers for states suing Microsoft accuses firm of arrogance in antitrust case (SFGate, AP)
http://tinyurl.com/fmb

Microsoft refuses to yield in case (Boston Globe)
http://tinyurl.com/fm9

Microsoft Says No to Further Concessions
http://www.latimes.com/business/la-000043139jun20.story

States ask judge to curb a vain Microsoft (Reuters)
http://news.com.com/2100-1001-937476.html

Posted by DeLong at June 20, 2002 09:41 AM

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