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Technology Stocks : How high will Microsoft fly? -- Ignore unavailable to you. Want to Upgrade?

To: ed who wrote (32507)	11/7/1999 1:06:00 AM
From: Jim Lamb	Respond to of 74651

Ruling could haunt for years by James V. Grimaldi and Jay Greene Seattle Times staff reporters WASHINGTON - The ruling yesterday in the historic Microsoft antitrust trial is only the first of two, but there's a possibility it could haunt the software giant for years to come. Some legal experts say Microsoft faces the risk that the ruling could prompt dozens of private lawsuits and even propel ongoing lawsuits filed by such rivals as Caldera and Blue Mountain Arts. "We really don't know whether the factual findings will have precedent value or not," said Robert Litan, an antitrust scholar at the Brookings Institution. "Plaintiffs will certainly try to cite these findings as definitive. My impression is that courts will not take the factual findings as a holy writ and only would do so once there is a legal determination." Antitrust laws permit other people and companies to file subsequent lawsuits against defendants that have had verdicts rendered against them without having to present the evidence heard in the original case. The point is to avoid arduous trials on complicated issues when they already have been decided in another courtroom. But the nation's appeals courts and legal experts are divided on whether split rulings, such as the first half issued yesterday by U.S. District Court Judge Thomas Penfield Jackson, can carry the weight of law in other courtrooms. Most everyone agrees the judge's ruling will have a deep and long-lasting impact if the case is not settled out of court and Jackson makes the final ruling. If the ruling goes against Microsoft, the company is likely to appeal while seeking an order staying the ruling until the appeals process is exhausted. If a settlement does occur - and talks between both sides are expected to resume - it is an open question whether yesterday's ruling would haunt Microsoft. The ruling likely will play a role in two other cases initially - a suit brought by Caldera, a Utah operating-systems maker, and another by Blue Mountain Arts, an online greeting-card company in Colorado. Caldera, which bought its legal claims from Novell, alleges that Microsoft illegally sought to undermine Novell's DR-DOS operating system in the early 1990s to secure a monopoly for its own MS-DOS system. To win its case, Caldera needs to prove that Microsoft had monopoly power in the operating-system business from 1990 forward. Jackson seemed to suggest that Microsoft's monopoly reaches that far back, writing that "every year for the last decade" Microsoft's operating system market share topped 90 percent. "It is conceivable that it could benefit us," said Steve Hill, a Caldera lawyer. Blue Mountain alleges that Microsoft's browser, Internet Explorer, and its popular Outlook Express e-mail program illegally dumped electronic greeting cards sent by its customers into a junk-mail folder. Blue Mountain claims that Microsoft did so to give the software giant an unfair competitive advantage to its own online greeting-card business. To bolster that claim, Blue Mountain alleges that Microsoft has had a pattern of competing unfairly. With Jackson's ruling yesterday that Microsoft has engaged in predatory practices, Blue Mountain may not need to prove that point. All of this is complicated by the unusual approach Jackson has taken in issuing judgments in two parts: factual findings and conclusions of law. Some observers suggest Jackson was taking a deliberately cautious course that seeks to inoculate his ruling from being overturned; already higher courts have twice knocked down his rulings in this case. Microsoft's top lawyer, Bill Neukom, said Microsoft can't appeal the decision until Jackson also has issued his conclusions of law and ruled on liability. But because Microsoft can't appeal the findings of fact, litigants in other cases can rely on them, he said. "Findings of fact are not authority in other cases until there is an appealable decision," Neukom said. Herb Hovenkamp, an Iowa University antitrust professor who has provided counsel to the government, said the conventional wisdom is that the first of the two rulings is useless to others who try to use it in another court. "This is a rather idiosyncratic situation," Hovenkamp said. "Ordinarily judges don't do this (split decision)." Hovenkamp said before the decision was released that he thinks Jackson is trying to encourage a settlement. He took this approach so that each side received a glimpse into his thinking. That would give both time to consider the potential fallout without allowing the case to reach a final judgment. However, there are cases in other U.S. courts where the judge has set aside his ruling, and a judge in another courtroom chose to accept it as precedent-setting anyway. "In at least some courts, there is a real likelihood that the findings of fact would be binding in a later case," said Kevin Arquit, a former Federal Trade Commission enforcement chief who practices antitrust law in New York. Arquit has reason to think this way: He often represents Microsoft adversaries and is the type of lawyer to make such arguments. The strongest example where a preliminary finding had more impact than a judge intended occurred in the 5th Circuit in Texas. In that case, the judge made a preliminary ruling against the defendant, and the defendant later settled the case. A subsequent plaintiff tried to use the judge's memo - and the 5th Circuit Court of Appeals agreed with the plaintiff. "Tactically (the losing party) chose to litigate fully - risking an adverse decision," the appeals court ruled. "He lost on that risk and only when he lost did he decide to settle, fearing (follow-on lawsuits). Now, he seeks to avoid the consequences of that loss." Other circuits have offered different views. The 2nd Circuit leans toward the 5th Circuit, and the 9th Circuit requires the judge in the first lawsuit to make the call. The 4th Circuit in Virginia and Maryland has argued that the ruling must be final before it can apply elsewhere. Depending on how Jackson's ruling is interpreted, it could have influence on other lawsuits.

To: ed who wrote (32507)	11/7/1999 1:24:00 AM
From: American Spirit	Read Replies (5) \| Respond to of 74651

Microsoft does deserve credit for helping to bring about the internet age. As does Gore as a politician who helped enable it from Washington. You certainly never heard Dan Quayle touting the internet being in every school in America. His focus was NASA not the internet and the environment like Gore. So all I'm saying is give credit where credit's due. And don't count him out yet on the election. Incumbant VEEPS are always beind at first. He might lose in the end but he's certainly only begun to flex his campaigning powers. He is a powerful speaker if you've ever heard him in person, and very knowledgeable and appealing. He also has a beautiful family. Vietnam War record (unlike Bush) and no skeletons in his closet. Microsoft is a great company. It just got too dominant. I remember trying to buy a PC three years ago and being startled to find that Windows though maybe the best software was mandatory. Not one choice. That is a monopoly. And when they forced their browser into the mandatory side fo things they brought on this anti-trust action. Nevertheless, MSFT will surive and prosper. I am seriously looking at buying MSFT stock if it falls. And if it falls it will come back. But very short-term a lot of people will be dumping on fear. Sorry if you're a short-term holder but whatever sells will be bought back. Longer term you'll be fine.