Ed, there is no such thing as neutrality in the FOF. The Court will rule one way or the other, that is, either for MSFT or against it. Assuming the ruling is against MSFT, there are a number of factors which may still foster a settlement. An adverse finding may, in and of itself, lead to further settlement discussions. Specific findings with respect to Bill Gates' credibility, or the credibility of MSFT expert witnesses, may trigger, or further, settlement discussions.
Assuming a ruling adverse to MSFT, there are some things that cannot be undone on appeal. For instance, the Court's findings with respect to the credibility of witnesses may be difficult, if not impossible, to undo on appeal. I think some damage can be done if the Court finds Bill Gates' testimony to have been incredible.
Once again, if an accord cannot be reached prior to the issuance of the FOF, there will be a number of opportunities to reach one thereafter, and I believe the Court will continue to push, every step of the way, to have the parties resolve the issue.
The critical, and more difficult, aspect of this case, in my mind, is not the findings of fact, but the remedies imposed by the Court.
JMHO. |
