Dear Mr. Gates...
As the government continues to
work over Microsoft's witnesses
(obtaining such "concessions" as
the obvious one that exclusive
deals with ISPs deprived
customers of the opportunity to
choose Netscape), I thought I would make today's
column an open letter to Bill Gates on the state of the
trial. Here goes.
Mr. Gates, I think it is fair to say that so far this trial has not gone well for the company you founded. You yourself have not fared well as the government has played numerous excerpts of your videotaped deposition, a deposition that all my experience tells me you chose not to prepare for. I am sure at that point, and even today, you had great difficulty understanding how a lawsuit such as this could ever have been brought against your company. I think for that reason, and because you had no intention of testifying at the trial, you made the conscious decision to not spend any more of your extremely limited time on the deposition than you absolutely had to. I suspect you now wish that you could go back in time and change that decision.
What I am sure has not changed is your belief that this lawsuit is a farce, a witch-hunt based on an understanding of the high-technology business world that is as badly flawed as the superstitions that led to the burning of innocent women in my native Massachusetts centuries ago. While I happen to disagree with you on this point, your belief is shared by others outside Microsoft, including some economists and lawyers as well as high-profile business leaders right here in Silicon Valley.
You probably also have a hard time understanding why your team seems to be performing so poorly in the trial, repeatedly leaving openings that the government has skillfully exploited. On that score I can only say that I am as amazed as you. What should concern you right now is that even many observers friendly to your cause believe that your company's case is now in serious trouble.
Where do you go from here? You could stay the course. Your legal team could do everything within its power to poke holes in the government's case, fight hard for limits on any remedies Judge Jackson is inclined to grant the government, and then attempt to tie everything up in the appellate process long enough to make any government victory irrelevant. Your company might even win on appeal. Of course, you might instead find yourself subject to a remedy that hobbles your company and engaged in enough new litigation to keep a small army of lawyers fully employed.
I'd recommend a different approach. Put together a small team to quickly assess the strengths and weaknesses of the government's case and to suggest and then implement a plan to reach a settlement with the government. The team should be headed by someone you trust completely but who is also outside the day-to-day management of your company. Your co-founder and fellow board of directors member Paul Allen seems an ideal candidate. The team's other member should be a lawyer that has had no involvement in either the government or the Sun Microsystems lawsuits, bringing a fresh perspective to the task.
Such a team, unburdened by any preconceptions and not smarting from the setbacks your company has suffered in court, may be able to achieve a resolution that your company can live with. What have you got to lose?
sjmercury.com |
