It Ain't Over Till It's Over
By Matthew Goldstein
SmartMoney.com
Microsoft is already practicing its victory dance in its long battle with the Justice Department. But the fat lady isn't even in the building.
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Indeed, most software analysts these days not only dismiss the possibility of an injunction — they also disregard the potential earnings damage that could be done to Microsoft during the upcoming remedy phase of the antitrust case. In fact, 21 of the 24 analysts who cover the company rate the stock a Buy, even though it's up 50% this year and trades at a lofty price/earnings ratio of 47, compared with the S&P 500's average P/E of 25. (Microsoft Chief Executive Steve Ballmer's recent dance at a Microsoft assembly seems to indicate that he's pretty confident, too.)
But is this kind of optimism justified? We aren't so sure.
Even if Windows XP launches without a hitch, the antitrust game is far from over. The remedy and penalty phases of the case could lead to several more months of court hearings and a new round of appeals. Lawyers like New York attorney Stephen Axinn of Axinn Veltrop & Harkrider, an antitrust firm, say that, barring a negotiated settlement, it could take another two years before the case is concluded. And in that time, Microsoft could fumble the legal football. That's what market watchers call "legal overhang" — the risk that a miscue could do damage.
In fact, one prominent Microsoft critic suggests, paradoxically, that the U.S. Department of Justice and the 18 state attorneys general bringing the case may actually want Windows XP to hit the stores as planned. That, he says, would be the best way for government to demonstrate to whomever ends up hearing the case that Microsoft continues to abuse its monopoly power in dealing with competitors. One of the cornerstones of the appellate-court ruling was that Microsoft improperly commingled, or "bundled," the computer code for the Internet Explorer browser in its Windows 98 operating system. Windows XP, critics charge, takes bundling to an entirely new level, incorporating such functions as instant messaging, media playing and digital photography service to the detriment of AOL Time Warner (AOL), RealNetworks (RNWK) and Eastman Kodak (EK), respectively. (In an attempt to quell some controversy, Microsoft this week announced it was trying to reach an agreement with Eastman Kodak.)
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The upshot for investors: All of this legal overhang could keep the stock locked in a narrow trading range for at least the next several months. Jonathan Rudy, a Standard & Poor's equity analyst who follows the software industry, is one of the few on the Street who think Microsoft's stock is fully valued at its current price. "With highly valued companies, you need everything to work out perfectly," he says. And right now, a lot of things can still go wrong for Team Gates.
Even some fund managers who own Microsoft and say they aren't concerned about the final outcome of the legal proceedings can't see a lot of near-term upside to the stock. Says Howard Ward, a portfolio manager with Gabelli Asset Management, whose Gabelli Growth fund (GABGX) has about 1% of its assets invested in Microsoft shares: "It's fairly priced based on everything we know today." That's especially telling, since a private investment fund run by Gates recently invested $100 million in Mario Gabelli's well-known Wall Street money-management firm.
Far from being a walkover, this game could go down to the wire — and perhaps into overtime. Investors who don't yet own shares of Mr. Softee would do best to watch from the sidelines for now.
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