Microsoft Remedy Hearings Completed

The Microsoft remedy hearings ended Friday on a quiet note after eight weeks of often contentious cross-examination, thousands of pages of written and oral witness testimony, and hundreds of pieces of evidence. A few formalities await Judge Colleen Kollar-Kotelly, however, including a Microsoft motion to exclude new evidence that the non-settling states presented during the hearings. But the big question, of course, revolves around the often inscrutable judge and how she might rule in this case.

The stakes are high. Microsoft was found guilty of sweeping antitrust violations two years ago and ordered broken into two separate companies. However, the breakup decision was thrown out by a federal Appeals Court, which found that the original judge--Thomas Penfield Jackson--acted unprofessionally because of his hatred of the company and its "arrogant" executives. But the Court upheld the guilty verdict and ordered that the case be handed to a new judge, so that a new remedy could be devised.

The US Department of Justice (DOJ) then severely narrowed its case against the software giant when it abandoned its product tying complaints, and settlement talks began. In late November 2001, Microsoft and the DOJ announced that they had reached a tentative settlement, an agreement which was later endorsed by nine of the 18 states that had joined the US government in its antitrust battle. Nine other states, and the District of Columbia--the so-called non-settling states--refused to sign on, however, and they launched their own legal battle against Microsoft, seeking stronger penalties than those required by the proposed settlement.

And that's where things get interesting. Kollar-Kotelly has many choices to make. She could endorse the DOJ/Microsoft settlement and/or the non-settling states remedy proposals, each of which has parts that are mutually exclusive, or devise her own remedies that are based, in part, on both the DOJ and states' plans. It's impossible to gauge how the judge will rule, since her demeanor in eight weeks of hearings gave no indication about which side she preferred. At times, she lashed out at the states' attorneys, but she also silenced many Microsoft objections about new evidence introductions. And let's not forget that a remedy hearings victory won't represent an overall Microsoft victory: The company is basically playing for breadth of punishment here, as its original guilty verdict stands and was upheld, unanimously, on appeal. If Judge Kollar-Kotelly adopts any of the states' plans in addition to or in place of agreements from the proposed DOJ settlement, however, Microsoft must claim defeat.

But right now, it's all a guessing game. And your guess is as good as mine.

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