Microsoft Remedy Hearings: Broader Sanctions Possible

For the first time since picking up the Microsoft antitrust case, Judge Colleen Kollar-Kotelly has made a statement indicating the direction she is heading in her ultimate ruling against the company, and it's a potentially devastating blow to the company. After brushing aside numerous requests by Microsoft lawyers to limit testimony that they said was beyond the scope of the current remedy hearings, Kollar-Kotelly announced that she will allow testimony by representatives of markets that Microsoft is expanding into, and not limit testimony to topics that narrowly relate to the original charges. In other words, Microsoft will now have to defend its behavior in other areas so that the judge can determine whether the behavior that got it in trouble in the first place is being duplicated in other markets. The judge said she will determine whether this testimony is relevant after the hearings end.

"There seems to be little dispute that the law allows remedies beyond the very specific conditions \[found to be illegal\]," the judge said Tuesday. "I've decided that I need more factual information \[about Microsoft's behavior\], frankly." The announcement brought smiles to the faces of those who oppose the software giant. "Today \[Kollar-Kotelly\] has made it clear we can bring in all of our evidence and she will at least consider it," said attorney Tom Greene, who is representing the state of California. "That's just enormously important to us. I'm a happy camper."

But Kollar-Kotelly also said that she would weigh Microsoft complaints that the nonsettling states' continuing battle is a constitutional violation. So she asked the US Department of Justice (DOJ) to provide her with its legal opinion on Microsoft's request to dismiss the broader remedies sought by the states. The question is a sticky one for the DOJ, as it is allied with Microsoft and 9 US states in attempting to settle the case. But 35 US states, including several of the settling states, have pointed to legal precedent to prove that US states can pursue federal antitrust battles on their own. "It seems most prudent to ask the United States to enlighten the court with its views," the judge said, giving the DOJ until April 15 to respond.

Earlier in the day, Intel executive and Microsoft critic Steven McGeady was cross-examined, with Microsoft's lawyers attempting to show McGeady's bias against the company. McGeady has repeatedly criticized Microsoft as being "evil" and said that Microsoft wasn't exactly the "fellow traveler" described by Intel founder, Gordon Moore. "When I think of fellow travelers, I think of the Donner Party," McGeady said, referring to the doomed 1846 travelers that were forced to resort to cannibalism when their party was trapped en route to California. McGeady, obviously, is a fairly controversial figure. "I have tried to portray Microsoft's corporate culture and business practices that I don't believe align with a company of their stature," McGeady said after being questioned about his opinion of Microsoft. "I am quoted as saying all sorts of things that probably should have gotten my mouth washed out with soap."

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