There doesn't seem to be any evidence that it's ever been given any serious consideration by Bill & Co.
I personally would have liked to see Microsoft protect its "Freedom to Innovate" (TM) by doing some sort of voluntary divestiture. At or before the beginning of the lawsuit, they might have been able to dodge the bullet. Now, it's too late.
In any event, quite frankly, it's been clear from the beginning that breaking up is something Microsoft just does not want to do, however wishfully I and others might want to believe otherwise. It's been clear from day one that Microsoft's primary, overriding objective throughout this whole ordeal has been to preserve the Corporate Structure. Who cares if the company has to put up with a few conduct remedies that stifle freedom to innovate, as long as the sacred Corporate Structure remains intact?
My guess, based on this past course of conduct, is that Microsoft will fight the breakup tooth and nail both in court and out.
Joel Klein can do whatever he wants in the way of giving the company a chance to cooperate. If past conduct is any indication, he might as well start hiring his team of experts right now, because he's going to have to do everything all by himself. I could be wrong, but, in my view, Microsoft will never, ever, in a million years, cooperate. No f---ing way.
If I'm right about this (a big if, but one I think the record of past conduct in this case supports), it's going to be very interesting to see how this thing unfolds. What's going to happen when the professors and bureaucrats from the DOJ show up at Microsoft's door, steno pads and sliderules in hand, ready to get down to business?
Furthermore, from the government's perspective, lest anyone think this judge is just going to sign off on DOJ's wimpy two-way breakup, let me suggest that it is by no means a foregone conclusion.
cbs.marketwatch.com
The bottom line from this article is that, when it comes to remedies, the judge can do whatever he wants, and it suggests he was signaling that he's concerned about the browser and wants to do a three-way breakup:
Should an additional browser company result from the debated three-way split, Microsoft is not likely to differ much from a proposed two-way split in the eyes of consumers. But from Microsoft's perspective, such a move by the court is a death knell.
Likely conduct restrictions that would accompany a three-way split could limit or even eliminate the use of Internet technologies with Microsoft's operating systems and applications. Depending on how the new companies are set up, it could throw Microsoft years behind other leading software companies, including Oracle (ORCL: news, msgs), IBM (IBM: news, msgs) and America Online (AOL: news, msgs) -- software behemoths in their own right.
* * *
"It's almost certain that Judge Jackson is preparing to order a three-way split: Indeed, he probably has written the judgment," said Hillard Sterling, a Chicago lawyer who defended the Staples/Office Depot proposed merger against the Federal Trade Commission in 1996.
Judge Jackson looked for a rubber stamp earlier this week from the Justice Department, hoping they would go along with his preference for a three-way split, according to Sterling.
Although the judge didn't get his wish, that's not a likely deterrent, as the lawyer says Jackson won't be scared away by the reluctance of the plaintiffs to change strategies. To be sure, Judge Jackson can set forth any remedy he sees fit, including his supposedly favored three-part breakup.
Such a court-ordered split would be the absolute worst-case suggested so far as a remedy -- at least from Microsoft's perspective. Should a separate Internet browser company ever be created, likely conduct restraints put on that part of the company could severely limit profit for years to come.
My own read on these latest events is that the judge is flummoxed by this case, as are the DOJ's economists. He wants to kick the whole thing upstairs and let the Court of Appeals tell him what to do. The least mentally taxing way to do that is to just sign off on the DOJ's proposal and get the judgment entered so the clock can start running on the appeal.
But this judge is clearly pissed off at Microsoft, and how pissed off he is will be shown by whether he goes for the three way split.
It looks to be shaping up to be a battle royale. |
