Judge Asks Pointed Settlement Questions, Grills Lawyers

While Judge Colleen Kollar-Kotelly did nothing to betray how she might decide with regards to the Microsoft/US Department of Justice (DOJ) settlement, she did ask attorneys representing both parties some pointed questions about the deal during the opening day of hearings Wednesday. Operating under the requirements of a 1974 federal law, Kollar-Kotelly will decide whether the settlement is in the public interest and, if so, the agreement will be ratified and Microsoft officials will sign a consent decree.  However, if the judge throws out the settlement, Microsoft's four year old antitrust case will stretch out for months more, and the company has vowed to appeal to the US Supreme Court.

Kollar-Kotelly's first question regarded Microsoft's interpretation of the agreement, and the rationale for such a query is clear: The company violated a 1995 consent decree, which eventually led to a sweeping federal antitrust lawsuit in 1998. Microsoft attorney John Warden told the judge that the company was very clear on the settlement terms, however. "We have a meeting of the minds," he said, "that we certainly agree with the scope and operation of the \[settlement terms\]."

Kollar-Kotelly then disagreed with government attorney Philip Beck, who had told the judge that the DOJ would have pursued the case had they not reached a settlement, even though it would have been an "uphill battle" because of the Appeals Court narrowing of the case. The judge brushed aside this assessment, noting that the Appeals Court decision revolved solely around whether Microsoft should be broken up. Once it was decided that the company would remain intact, she said, the DOJ could have pursued any and all of the charges that were brought during Microsoft's original antitrust trial. For example, the Appeals Court ruled that Microsoft's commingling of Windows and Internet Explorer (IE) code would need to be examined further if this action would be considered as one that might have led to the breakup of the company. Many people misinterpreted this ruling to mean that the court felt it was OK for Microsoft to commingle the code. That was not the court's intention, however.

The judge also questioned the term "middleware" and wondered whether the settlement's definition of the word was broad enough. "I want to know whether you are taking a different approach \[with regards to the definition of "middleware" from the appeals court\] and if so, I want to know why." Beck told her that the settlement's definition didn't differ from that used by the Appellate Court.

Kollar-Kotelly rejected a request for more evidence to be introduced, stating that she already had enough evidentiary information to decide whether the settlement is in the public interest. She also grilled a Microsoft attorney about alleged lobbying disclosure violations.

Kollar-Kotelly's eventual ruling has no legal precedent. Several companies have settled antitrust cases with the government since 1974, but in all previous cases, the settlement occurred before a ruling was issued against the settling company. In Microsoft's case, the company has already been found guilty of violating US antitrust laws, a decision that was unanimously upheld on appeal. The judge noted that she would not be issuing her decision any time soon, but she didn't provide an exact time table.

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