Glenn, it is obvious that you don't like the behavior of MS, but you should like the stock, it is at or near the most undervalued stock in NYSE/NASQ.
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Likely grounds for appeal
Whatever its chances, Microsoft is virtually assured an appeal, if only because of the potential national economic impact of any final order, according to legal experts. Among the issues Microsoft is expected to cite in seeking one:
Unfair procedural change. The company is likely to say the judge began the case focusing on the company's decision to tie Internet Explorer to Windows and then addressed a broad range of accusations.
Lack of restrictions on testimony. For instance, if the case should have been limited to the browser wars, Microsoft might seek to have other testimony declared irrelevant.
Conclusions of law, the basis for the judge's April 3 ruling, cite few references to the specifics of the case.
The judge's findings are inconsistent with the record. This is the broadest avenue for appeal. Microsoft has alleged all along that government lawyers and the judge have misapplied the law based on a misunderstanding of the company's business practices. This would allow the company to seek to have Jackson's earlier findings of fact, delivered Nov. 5, thrown out.
"We do not believe we have violated the law, and the Court of Appeals has yet to consider this case," Microsoft Chief Executive Steve Ballmer said Friday.
To support the attempted-monopolization argument against Microsoft, Jackson cited the case of American Airlines and Braniff International Airways. According to legal experts and those familiar with Microsoft's legal team, the company is expected to argue that the case is not applicable because it involved an attempted conspiracy and naked price-fixing, practices Microsoft is not accused of.
The second type of violation, sometimes called "monopoly broth," relies on the theory that a group of individual behaviors that are not illegal can together add up to a violation. The standard says: Don't look at the tiles, look at the entire mosaic. But that theory is vulnerable to the argument that it gives future businesses no clear guidance on how to obey the standard, Kovacic said.
"It provides very murky guidance to a company in deciding what it can do," he said. "It's like going on a highway and instead of having a sign that says `Speed Limit 55,' seeing a sign that says `Drive Reasonably,' and not knowing what's unreasonable until you see a flashing light in the rear-view mirror."
Microsoft will likely cite the case of Intel vs. Integraph, in which an appellate court this year overturned a circuit-court ruling that found several fractionalized violations can add up to one violation, according to those familiar with the case. The lower court found that Intel improperly withheld information on new products.
In another allegedly anticompetitive practice, the Justice Department argued that by refusing to disclose the secret programming codes of Windows to rivals, Microsoft made it difficult for competitors to write software for Windows but continued to create such programs itself.
To combat that argument, Microsoft is expected to cite an Eastman Kodak case. Government lawyers had argued that Kodak used anticompetitive practices in making Instamatic cameras that would not work with standard film. The company made its own film, but did not disclose the details to rivals.
In 1979, the court ruled that requiring Kodak to disclose those details to rivals would stifle the company's willingness to create new camera designs. Microsoft has an expert on the case: David Warden, whose arguments persuaded a federal appeals court to throw out the $87 million damage award against Eastman Kodak.
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