text of the statement issued Saturday by Judge Richard Posner
"I regret to announce the end of my efforts to mediate the Microsoft
antitrust case. Since my acceptance of this assignment on November 19
of last year, I have endeavored to find common ground that might enable
the parties to settle their differences without further litigation.
Unfortunately, the quest has proved fruitless. After more than four
months, it is apparent that the disagreements among the parties
concerning the likely course, outcome, and consequences of continued
litigation, as well as the implications and ramifications of alternative terms
of settlement, are too deep-seated to be bridged. This result is
disappointing not only because of the amount of time that so many busy
professionals, officials, and executives have devoted to the mediation, but
also because the public interest would be served by avoiding further
litigation, with its potential for unsettling a key industry in the global
economy. I believed when I undertook this assignment that it was in the
national interest that the case be settled, and I believe it even more
strongly today.
"Mediation is a confidential process, and I do not intend to make any
public or private comments on the merits of the litigation, the negotiating
positions of the parties, the individuals involved in the negotiations, or the
content of any of the communications between the parties' mediation
teams and myself. I can, however, without impropriety, say this much:
Despite my strenuous efforts to maintain the confidentiality of the
mediation, there has been a good deal of leaking and spinning, and this
leaking and spinning have given rise to news reports that have created a
misleading impression of several aspects of the process and that should
be heavily discounted by anyone interested in hewing to the truth. One
reason for my issuing this public statement is to correct the impression
created by some news reports that there were no serious negotiations
over possible terms of settlement until two weeks ago. On the contrary,
almost twenty successive drafts of a possible consent decree, evolved
over the past months, had been considered by the parties before it
became clear late last night that the case would not settle, at least at this
stage of the litigation. I particularly want to emphasize that the collapse of
the mediation is not due to any lack of skill, flexibility, energy,
determination, or professionalism on the part of the Department of Justice
and Microsoft Corporation.
"I do not intend to make any further statements about the mediation.
"I would like, in closing, to commend Judge Thomas Penfield Jackson for
his efforts to bring about a settlement, and to thank him for according me
the honor of asking me to mediate this complex, fascinating, and
immensely important case." |
