According to recently released court transcripts, Judge Thomas Penfield Jackson has been quietly urging representatives from Microsoft Corporation and the U.S. Department of Justice (DOJ) to seek a settlement in the historic antitrust case. But the judge's recommendations don't stop there: He'd also like the DOJ and the 19 states that are suing Microsoft to get together and decide on a remedy should Microsoft lose the case. In fact, the decision to appoint a mediator in the case was due in no small part to a need to get the states and the federal government working for the same goals. Apparently, the states had been preparing their own remedy separate from the DOJ.
"\[The appointment of mediator Richard Posner\] is something that I think will come as something of a surprise to you," the judge told lawyers for the states and the DOJ last week. "I think this is probably as propitious a time for any possible negotiated outcome as you could have. \[Posner is being appointed\] to see whether or not he can get you all playing the same tune, if you are willing to take a shot at it."
"\[The decision is\] partly motivated by what I think are some somewhat disturbing reports in the press that the plaintiffs are proceeding on parallel tracks, or something like that," he continued. "The harmony between the states and the DOJ so far has been, I think, enormously helpful, and I would like to see it continue. I would not like to have to deal with divergent points of view."
Division between the states and DOJ, however, is said to be exaggerated by those involved with the case. On Tuesday, various representatives announced that their ongoing partnership is as healthy as ever.
"We will have a strategy to move into mediation and that will be coordinated with \[the DOJ\], as it has been every other time we've been in negotiation," said Iowa Attorney General Tom Miller, who has assumed a leadership role for the states.
"Those reports of divergent views were somewhat exaggerated," concurred Connecticut Attorney General Richard Blumenthal. "There will be a strong consensus among the states with the federal government about all aspects of the case." The states and the U.S. government, of course, could recommend that Microsoft be broken up ala AT&T and Standard Oil. And it is this possibility that haunts Microsoft the most, making it more acceptable to settle now, before the findings of law are announced in January. The judge's appointment of a mediator now gives the two sides time to get together and hammer out a settlement before the January date arrives