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To: Gerald R. Lampton who wrote (23959)	5/25/2000 1:30:00 AM
From: Harvey Allen	Respond to of 24154

Hi Gerald- That must have been quite a show today. Judge Jackson has been abused so much by Microsoft the past two years it's a fitting way to ring down the curtain. I liked this exchange: And to Microsoft's request for a delay, the judge told a company lawyer: "I find it somewhat ironic that your client believes its travails will end at the court of appeals, and yet wants to spend more time in this court." In response to your question I think things will move quickly once the final judgment is in place. Every new technology has had to run the Microsoft gauntlet which breaks its momentum. Now that will be removed. Partly because of structural remedies but also because they will be struggling to survive. Warden was right when he told the Judge the DOJ proposal is meant to keep Microsoft from winning the next round. That's not 100% correct but to win they'll have to work at it. This time they'll embrace Java like a life jacket and get rid of all the virus breeding crap they've been passing off as technology. I wonder if Bill mentioned security as he was reading passages of "The Road Ahead" to the gathering at his mansion today? Harvey

To: Gerald R. Lampton who wrote (23959)	5/25/2000 4:44:00 PM
From: Harvey Allen	Respond to of 24154

Microsoft in uphill battle on appeal By David Lawsky, Reuters, 5/25/2000 WASHINGTON - Microsoft says the judge in its antitrust case is rushing to judgement on whether to divide the firm, but experts said on Thursday although its argument may be a good one it faces an uphill battle in appeals court. District Judge Thomas Penfield Jackson abruptly ended the trial Wednesday two years after it was filed, asking the government to tinker with a proposal to break the company into two entities before resubmitting it Friday. Microsoft Corp. (MSFT.O) can comment on the form of that final draft, but not do much more. The judge's decision caught Microsoft by surprise. Jackson has already found Microsoft violated antitrust law by abusing monopoly power and his next task is to decide what remedy to impose. Microsoft lawyer John Warden had opened the hearing by proposing it focus on the company's motion to dump consideration of a break-up, and then turn to a schedule for witnesses and hearings on other remedies in the coming months. The judge brushed that aside and said the discussion would be about remedies. After the hearing, Microsoft general counsel Bill Neukom said challenges to the judge's remedy procedures will be one of many issues the company raises on appeal. Most experts contacted said it would have been a good idea for the judge to conduct further hearings. One sympathetic to the government case, who asked not to be identified, said further hearings would have been a good insurance policy. "There's probably enough to survive due process but the judge has raised a question he didn't need to raise" about his procedures, said the legal expert. A Washington lawyer who for the most part represents defendants thought Microsoft's concerns about further hearings would be looked on favorably by a higher court. "You're not going to find any controlling legal authority that says you have to do it but put yourself in the shoes of an appellate court," said John Stuart Smith of Nixon Peabody, noting that Jackson "did not permit (Microsoft) to either present evidence, conduct discovery or have a factual hearing on the impact" of a remedy such as a break-up. But Duke Law School professor Tom Rowe, who teaches remedies, said appeals courts give judges wide latitude to conduct their courtrooms as they see fit. "I think it is highly likely the decision about whether to hear more evidence, witnesses and argument would be subject to deferential appellate review, reversible only for abuse of discretion," he said. But some other parts of Microsoft's appeal -- for example, whether the judge's conclusions of law were correct -- will be scrutinized by a much tougher standard and there the judge's views will be given no deference, Rowe said. Indeed, Jackson has had experience in getting reversed on Microsoft cases. Bill Kolasky, who wrote a friend-of-the-court brief sympathetic to Microsoft, compared Jackson's failure to hold more hearings to his 1997 action in an earlier Microsoft case. The government had asked Jackson hold Microsoft in contempt for violating a 1995 agreement with the government. Instead, Jackson issued a preliminary injunction without conducting hearings or letting Microsoft comment. His procedure was overturned unanimously by the court of appeals in May, 1998. "What Jackson is doing here is what he did in the contempt proceedings in 1997," said Kolasky, adding there was "more process than in 1997, but not much more." But another law professor, Herbert Hovenkamp of the University of Iowa College of Law, who has on occasion done work for some of the states that sued Microsoft, said the situations in 1997 and now were very different. "I think (Jackson) is in the clear," said Hovenkamp, because he had already heard the views of both sides on paper and in person. Whether or not it was a good idea for the judge to hold more hearings, it was not required by law, Hovenkamp said. "If he decides it's not worthwhile to have another hearing, he's free to call it quits," Hovenkamp said. digitalmass.com