Some legal experts think Judge Jackson will be removed, having all but disqualified himself by his inflammatory behavior. With the departure of Joel Klein (now CEO of Bertelsman, a cash rich German company planning numerous US acquisitions) and David Boies, (whom judge Jackson described as one of the finest lawyers ever to grace his courtroom) there will be a new cast of characters. Boise is to be replaced by DOJ lawyers from the Solicitor's General's office. Richard Urofsky and Steven Holley are to argue on MSFT’s behalf, replacing John Warden.
They’ll argue the issues of “tying,” monopoly maintenance, attempted monopolization, and relief. An extra time slot has been allotted to discuss JJ’s behavior. The tying issue is central to the DOJ’s case. This court of appeals has, on prior occasion, ruled tying was legal as long as there was “plausible benefit” for consumers, which would appear to jeopardize that portion of JJ’s findings of fact. With regard to relief, MSFT is expected to argue that JJ’s ruling to split the company in two was “draconian”, and arrived at without time for adequate hearings.
Current sentiment appears to be that MSFT will prevail on at least part of the FOF. If so, and if the case is remanded down to a new judge with new players, there could be even footing for a settlement. MSFT and DOJ demonstrated some willingness to compromise last time, unfortunately they were undermined by the state lawsuits which complicated negotiations to the point that the arbitrator, Judge Posner, threw in the towel. |
