Settlement no closer after MS brush with Justice

So the show must go on, apparently...


MS on Trial No whispers of settlement came from Judge Jackson's chambers yesterday when Microsoft and the Department of Justice met to discuss the scheduling of the case. Microsoft was legally outnumbered, since it was represented only by John Warden and Steve Holley. Warden said before the meeting that he wasn't going to talk about any settlement, and afterwards said it was "just scheduling" that was discussed. David Boies, the DoJ special trial counsel, agreed that Warden's characterisation of the meeting was true. The DoJ was represented by six other lawyers, including attorney generals of Iowa and Connecticut. It was confirmed that as expected, there would be an opportunity for oral argument after two briefs from each side have been filed by 31 January on the subject of the legal interpretation to be given to the judge's findings of fact. In due course the judge will issue an order as to the date of the hearing, but it will probably be for one day in late February. The next step will be for Judge Jackson to deliver his findings of law, which could well take up to three months, although as the task is less than for the facts, it may be sooner. It is highly probable that he will find that Microsoft has breached section 2 of the Sherman Act, and is guilty of monopolisation in two markets - Windows of course, but also browsers, according to Robert Bork, former US solicitor general, federal appeals judge, and legal consultant to Netscape. The next step would probably be a series of briefs and hearings on remedies. Although Microsoft's defence team believes that the finding that consumers were harmed was not supported by the evidence, it is not necessary to prove this, as any move to restrict a market is seen as prima facie evidence of consumer harm. Although it is not impossible to appeal the findings of fact, it is unlikely because even a Microsoft-sympathetic appellate court is loath to get involved in assessing facts, and nearly always defers to the district court. It has been suggested that the judge separated the fact and legal findings to make it more difficult for the appellate court to overturn him. There is little evidence that he has been pushing a settlement, although he did suggest during a long break in the case earlier in the year that the parties should use their time wisely. It is known that there have been three meetings to discuss settlement, but it was agreed that the discussions would remain confidential. The evidence is that no significant progress was made, with Gates insisting that Microsoft must be free "to innovate", and that Windows boot-up could not be modified, which was PR code for "no surrender". On ABC television's "Good Morning America" programme this week, Gates said that he was willing to consider "any sort of resolution" to the case. This should be seen as a PR move to suggest that Microsoft is being reasonable, and not as any shift in Gates' intransigent attitude. On the PR front, Microsoft must be hoping that George W Bush becomes president, since it is expected that he could be amenable to doing the same as Reagan did to IBM - get the antitrust case against Microsoft dropped rather than harm a national treasure, whatever it might have done. This makes any settlement possibilities remote, since the indications are that Microsoft would not get any cosy terms from the DoJ this time around. It is unlikely that the release of Windows 2000 will be stopped by the court, especially as Microsoft was not prevented from launching Windows 95 in August 1995. It is not widely realised that on 21 August 1995, a judge appointed by ballot after the appellate court ruled against Judge Sporkin. He signed the consent decree agreed by Microsoft and the DoJ and side-stepped the opportunity to stop the release of Windows 95 three days later. That judge was Judge Jackson. ® Complete Register Trial coverage


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