<On the other hand, looking past the formalities, can it not be said that Microsoft had a full and fair opportunity to present its case?>
Absolutely not.
<How would providing formal notice have materially altered Microsoft's argument?>
MSFT prepared for, and defended this case under the pretense of a contractual dispute (breach of the contempt order), and therefore was not prepared for a contest under the rules of the Sherman Anti-trust act. It is this part of thier argument that holds most water. I have actually been part of a legal preceeding where the judge actually argued the case for a plaintiff (I was the defendant:-)due to the fact that the plaintiff was simply outclassed. This is not the judges purview, he/she is there to adjudicate, not to bring motion, petition or argue the case (that is the job of the parties involved). In expanding the confines of the case beyond that of the DOJ's motion, he in essence did all three of the aforementioned, and without due process.
<Also, what's the remedy? To disolve the injunction or have the same Judge (or the Special Master) hold another hearing, with the existing preliminary injunction being left in place as a TRO?>
The remedy that I foresee, due to the political tensions building, would be to have the case remanded to another judge or master with special instructions. The logical thing to do (which rarely seems to coincide with the all too political legal system) would be too simply dissolve the injunction, being that it was issued without due process and the findings on the contractual portion (contempt order) of the hearing was issued under due process. |
