Post #42,928
6/19/02 6:57:08 PM
6/19/02 7:04:46 PM
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MS defies judge.
From the WashingtonPost: [link|http://www.washingtonpost.com/ac2/wp-dyn/A12890-2002Jun19?language=printer|Here]: Microsoft's Lawyers Defy Judge
By D. Ian Hopper
AP Technology Writer
Wednesday, June 19, 2002; 5:13 PM
WASHINGTON \ufffd\ufffd In a surprising end to the Microsoft antitrust hearings, Microsoft lawyers refused to comply with a judge's request that they offer possible concessions to the nine states suing the company.
U.S. District Judge Colleen Kollar-Kotelly had asked both sides to rank their competing proposals and wanted Microsoft to say whether it could accept any of the "least onerous" state penalties.
During closing arguments Wednesday, Microsoft lawyer John Warden refused to give any ground.
"This proposed decree is fundamentally flawed," Warden said of the state penalties. "We can't remedy any of this by changing a few words here and there."
The judge, who had asked both sides to find middle ground, smiled slightly through Warden's statements.
Kollar-Kotelly has to decide whether to institute the states' harsh sanctions against Microsoft as punishment for breaking antitrust law. She is also weighing a much less demanding federal settlement made last year.
The arguments capped two months of testimony. Kollar-Kotelly is expected to make her decisions later this summer.
When asked to address some of the ways the federal settlement with the company could be modified, Warden sarcastically offered to eliminate some extra penalties that Microsoft agreed to during negotiations.
Warden similarly dismissed Kollar-Kotelly's request that the company consider how perceived loopholes in the federal deal could be fixed.
Warden called the criticisms "groundless," and said they were "by people who would benefit by its changes," referring to the company's competitors.
"We have been through this. We negotiated. We went as far as we can go," Warden said. "That's the deal."
Lawyers for the states targeted company chairman Bill Gates during their arguments. Gates and other Microsoft executives used "thuggish-like tactics" against rivals Netscape and Sun, lead lawyer Brendan Sullivan said.
"It's really astounding to think that someone of Mr. Gates' background let it happen," Sullivan said in only his third speech of the hearings.
The states' lawyers focused on Gates' testimony in the hearings as well as his companywide e-mails.
Lawyer Steven Kuney said threats were "part of the fabric of how they do business." He also mocked Gates' testimony that the proposed penalties would crush innovation and hurt the industry.
"Somehow they know better than anybody else what is good for the PC ecosystem," Kuney said. "And what is good for Microsoft is good for the economy, consumers and everybody else."
While joking that the task was like "giving up your children," Kuney complied with Kollar-Kotelly's wish by prioritizing the states' penalties. He said making sure Microsoft discloses enough technical information to software developers is most important to the health of the technology industry.
That information would make sure that competing software works well with Microsoft's dominant Windows operating system. Microsoft has been criticized for holding back such information.
Kuney also mentioned more flexibility and protection for computer makers from restrictive contracts and retaliation by Microsoft.
During the hearings, lawyers for the states at times posed hypothetical questions based on changes in their proposed penalties. Kollar-Kotelly indicated in her order that she may want the states to make those changes, and Kuney said the states would be willing to make some modifications.
Warden called the state proposals "harmful to consumer welfare" and unfair to Microsoft.
[...] Emphasis added. It's my understanding that it's not good to get a judge to show emotion... The hubris of these guys... {added below in edit} [link|http://quote.bloomberg.com/fgcgi.cgi?ptitle=Technology%20News&s1=blk&tp=ad_topright_tech&T=markets_bfgcgi_content99.ht&s2=ad_right1_technology&bt=ad_position1_technology&middle=ad_frame2_technology&s=APREI6RaOTWljcm9z|Here's] Bloomberg's coverage with more details. Cheers, Scott.
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Post #42,934
6/19/02 7:38:02 PM
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It's no gamble.
``It's a gamble that she may not mean what she said and will just'' side with Microsoft, Blumenthal said. Blumenthal is almost right. It's no gamble.
Imric's Tips for Living- Paranoia Is a Survival Trait
- Pessimists are never disappointed - but sometimes, if they are very lucky, they can be pleasantly surprised...
- Even though everyone is out to get you, it doesn't matter unless you let them win.
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Post #42,943
6/19/02 9:17:40 PM
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|dream.
The judge is going to side with Microsoft. It's the safe thing to do. After all, it was good enough for the DOJ, so why not?
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Post #42,959
6/19/02 10:58:34 PM
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Hope
As in, I hope she recognizes the disrespect they have shown and is pissed enough to say "You do not control the judicial system. I am going to teach you a lesson."
Could get her a gig on the E! channel.
"If you run Windows and read Email, You Have the Klez!"
-Andrew Grygus
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Post #42,967
6/19/02 11:53:16 PM
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It was the right thing to do.
Given the judge's very evident favoritism toward Microsoft in her evidence rullings and other items, they would likely evaluate the situation thus: 20% she's going to rule for Microsoft / 80% she's laying the groundwork to have her way with Microsoft and have her way of having it.
In the first case - no risk - it's in the bag! In the second case - no risk - they are bagged.
I don't see how they could have done otherwise.
[link|http://www.aaxnet.com|AAx]
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Post #42,995
6/20/02 10:00:17 AM
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John Lettice's take on it
[link|http://www.theregister.co.uk/content/4/25812.html|At The Register] Couple of good lines: There's really no answer to that if you've spent the entirety of the states' hearings out on the end of a branch with a saw. She has an acid little sting in the tail too: "As Defendant is well aware, its proposal has been criticized for 'exceptions which swallow the rule.'" Indeed.
...
So you can see how the big train wreck happens. If CKK tosses the MS-DoJ deal or requires significant changes, then from Microsoft's point of view the deal could well be off. Which would mean its new friends at the DoJ would have to stop being friends and resume litigation - wouldn't that be an amusing process to observe, considering that its high command has gone on record as saying the negotiated deal is better than anything they could have achieved if they'd continued litigating? Dear oh dear.
It is however possible that Microsoft believes something along those lines. Some of the states' proposals would certainly be painful for the company, but others could just about be accepted without the world ending. So if the company really won't deal, it must really think it can come out of the other end with something similar to, or even better than, the existing deal. Or it might just have myopia induced by a previous victory.
Regards,
-scott anderson
"Welcome to Rivendell, Mr. Anderson..."
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Post #43,016
6/20/02 12:35:33 PM
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Interesting note
Back in the days of the MS-DoJ consent decree, the one that the DoJ lashed up so badly that it subsequently wound up with the whole antitrust matter, Judge Stanley Sporkin revolted and refused to sign it off.
...
Then, however, there weren't any pesky dissenting states. Microsoft and the DoJ had cut a deal, the judge was not supposed to be messing around trying to change it, he was just supposed to sign it and go away. So Mad Stan was removed, and an alternative judge signed the decree. One Judge Thomas Penfield Jackson, as we recall... It seems any judge who deals with MS long enough eventually gets royally pissed off. Hmm, didn't someone suggest earlier in this round that MS's apparent strategy was to piss off CKK enough to get her tossed like TPJ did? Seems they've been using this tactic longer than we thought. ===
Microsoft offers them the one thing most business people will pay any price for - the ability to say "we had no choice - everyone's doing it that way." -- [link|http://z.iwethey.org/forums/render/content/show?contentid=38978|Andrew Grygus]
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Post #43,024
6/20/02 1:18:34 PM
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No, it's not a new tactic
They applied it very heavily at the begining of the antitrust trial, but Jackson kept his cool at the time. Unfortunately, he eventually broke down, but not before the conviction verdict was in.
Microsoft knew they were in trouble with Jackson, because they made such a fool of him with the consent decree.
Unfortunately, at the time of assigning retrial of the penalty phase, Sporkin was no longer with the court. I would have just loved to see his name picked in the random selection instead of CKK. Microsoft would have had a cow!
[link|http://www.aaxnet.com|AAx]
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Post #43,050
6/20/02 2:59:02 PM
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It's the states' fault.
[link|http://www.eweek.com/article2/0,3959,148824,00.asp|They showed weakness.]
[link|http://www.angelfire.com/ca3/marlowe/index.html|http://www.angelfir...e/index.html]
Truth is that which is the case. Accept no substitutes.
If competence is considered "hubris" then may I and my country always be as "arrogant" as we can possibly manage.
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Post #43,053
6/20/02 3:28:58 PM
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Both took the best course
The states listed their priorities as requested. Microsoft refused.
Microsoft has bowed out, and the judge may now decide for herself how many of the states' priorities she wishes to apply and how she wishes to apply them. The states very prudently placed their most controversial item, modular Windows, well down the list so it wouldn't act as a stopping point.
Microsoft is obviously preparing for an unfavorable judgement and doesn't want anyone to be able to say, "You said you would accept this" or even "You said this would be the lesser of evils" in subsequent action. They are still hoping to hit a weak judge somewhere along the line.
Since both the judge and the DoJ (very reluctantly) have denied Microsoft's claim that the states have no standing - there will almost certainly be an appeal.
[link|http://www.aaxnet.com|AAx]
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