Res Judicata Effect
To what extent is MSFT in an impossible position? It is very difficult to settle with both the DOJ and all the attorneys' general (elected prima donnas looking more for headlines than results).
If MSFT does not settle with this unruly crowd, Judge Jackson enters his conclusions of law. The findings of fact would thereafter have "res judicata" effect, meaning that private plaintiffs would not have to prove the issues in the findings of fact. The private lawsuits are thereby turbocharged because they open with a flying headstart: findings that MSFT is a monopoly, misused its monopoly, etc. MSFT is stuck with, and cannot re-litigate, those findings in the private litigation.
Then, Balmer, Gates, etc. are then buried in depositions with 150-200 private lawsuits. Microsoft loses its focus, just like IBM before it, as its management spends and ever-increasing time defending private litigation. (It was not the litigation that hurt IBM; it was the loss of focus that allowed competitors like MSFT to usurp its domain.) The depositions of MSFT brass are worse than anything IBM exes may have faced in the earlier era because IBM did not have to explain its email.
So, MSFT will have a difficult time settling because of the elected hyena attorneys' general suing it. But if it does not settle it becomes a litigation nightmare, starting the day after the conclusions of law are entered.
Thoughts? MSFT has faced impossible challenges before, but never convincingly on a legal front. After all, Microsoft Legal didn't even have the good sense pre-litigation to implement a corporate policy that disposed of old email. |
