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Strategies & Market Trends : Anthony @ Equity Investigations, Dear Anthony,

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To: Wolff who wrote (78413)	6/23/2002 6:55:15 AM
From: Wolff	Read Replies (1) of 122087

End in sight Published: June 21 2002 5:00 \| Last Updated: June 21 2002 5:00 Microsoft just doesn't get it, said one of the company's legal opponents this week at the close of the hearings that will resolve the long-running antitrust trial. Reading through the final submissions from both sides, it is easy to sympathise with this comment. Even Judge Colleen Kollar-Kotelly, who is presiding over the case's two parallel proceedings, has displayed barely concealed incredulity at some of Microsoft's arguments. She must decide whether or not to accept a settlement Microsoft reached last year with the US Justice Department and nine states. At the same time, she must rule on a rival set of remedies proposed by nine states that did not agree to the settlement. Microsoft rejects both the detail of the states' rival proposal and the accompanying rhetoric. "We haven't failed to get some message. We haven't claimed that we're immune from the law or anything of that kind," said its lawyer. But in recent weeks, Microsoft has tried to get the states' case dismissed using some esoteric legal arguments that plainly left the judge astonished. Then, when she asked both sides to list their highest priorities in their own case, and the parts of the other side's case they would find hardest to live with, Microsoft simply refused. The states' proposals were "fundamentally flawed", Microsoft's lawyer said. "We can't remedy this by changing a few words here and there. We negotiated. We went as far as we can go. That's the deal." As she decides on her verdict, the judge must reject both that specific assertion - that the agreement reached with the Justice Department is in some sense definitive - and the "Microsoft knows best" assumption that underlies it. The fact that the judge asked both sides for their bottom-line proposals is an encouraging sign that she is considering doing just that. Previous rulings in the case have found Microsoft guilty of breaking the law. Remedies are now required not merely to prevent similar actions in the future but to try to undo some of the damage to competition caused by the company's illegal actions. Microsoft's proposed settlement does not meet that test. The states' original wish-list went too far the other way. But by focusing - in response to the judge's request for priorities - on a limited selection of important remedies, the states have rectified that error. Judge Kollar-Kotelly now has the opportunity to craft a judgment that goes beyond the feeble settlement Microsoft agreed with the Justice Department. In doing so, she would ensure that Microsoft did indeed get the message.

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