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To: Keith Hankin who wrote (15063)	12/18/1997 3:04:00 PM
From: Daniel Schuh	Respond to of 24154

Oh, Keith, you just don't understand. How can all the high school civics stuff I'm always earnestly preaching stand up to the local antitrust expert? Judges have nothing to do with what the law means, it means what Microsoft's lawyers say it means. Same thing with "what is an OS", and so many other things. Microsoft's lawyers have spoken, and their word is final. Those of us who think judges has the final say, that a successful appeal is not a forgone conclusion, that what a (totally unbiased, of course) layman reads into documents filed by his favorite company is not legally binding just don't understand. Literary references are readily available to explain this all, of course, Mr. Bowers is sending one Bill's way I hear. Cheers, Dan.

To: Keith Hankin who wrote (15063)	12/18/1997 8:18:00 PM
From: John F. Dowd	Read Replies (2) \| Respond to of 24154

Dear Sir: If you have read them why not give the rest of us folks the benefit of this interesting view by reference or even a URL or something other than a vague reference.

To: Keith Hankin who wrote (15063)	12/19/1997 1:26:00 AM
From: Gerald R. Lampton	Respond to of 24154

>Can you find any legal experts, other than MSFTs, that will argue that the actions >taken by the judge are either improper or uncommon? Is the United States Court of Appeals for the Fifth Circuit "expert" enough? In WESTERN WATER MANAGEMENT, INC. v. BROWN, 40 F.3d 105 (5th Cir. 1994), cited in Microsoft's brief, we find the following excerpt: III. MODIFICATION OF THE AMENDED INJUNCTION [8][9] Defendants also complain of the district court's sua sponte modification of the Amended Injunction, tightening restrictions on Defendants' actions without prior notice. Although a district court retains jurisdiction to modify an injunction to the defendants' detriment under certain circumstances, [FN4] we find no authority allowing such a modification to be made without notice. Rule 65 provides stringent notice requirements for issuance of injunctive relief. [FN5] FN4. E.g., Exxon Corp. v. Texas Motor Exchange of Houston, Inc., 628 F.2d 500, 503 (5th Cir.1980) (recognizing that an injunction may be modified to impose more stringent requirements on the defendant when the original purposes of the injunction are not being fulfilled in any material respect). FN5. See Fed.R.Civ.P. 65(a) (forbidding issuance of preliminary injunction without notice) and (b) (allowing for issuance of temporary restraining order without notice only under exceptional circumstances); see also Parker v. Ryan, 960 F.2d 543, 544 n. 1 (5th Cir.1992) (recognizing that Rule 65(a)'s notice requirement is constitutionally required). Notice requirements for permanent injunctions are also stringent. See Nationwide Amusements, Inc. v. Nattin, 452 F.2d 651, 652 (5th Cir.1971) (requiring notice of court's consolidation pursuant to Rule 65(a)(2) of the trial of permanent injunction with the hearing of preliminary injunction); Puerto Rican Farm Workers ex rel. Vidal v. Eatmon, 427 F.2d 210, 210-11 (5th Cir.1970) (same); see also United States v. Crusco, 464 F.2d 1060, 1062-63 (3d Cir.1972) (holding that permanent injunction is not available without notice to the adverse party). Though Defendants had requested relief from the injunction, they were not on notice of the modification imposed on the court's own motion. Not having notice of any broader scope of the hearing than the notice they sent and Plaintiff's notice on the second contempt motion, "they were therefore unprepared and not on notice to oppose the [modified] injunction issued at that hearing." Williams v. McKeithen, 939 F.2d 1100, 1005 (5th Cir.1991) (vacating court's sua sponte issuance of second order injoining defendants at hearing held on notice of defendants' motion to vacate first injunction because of lack of notice of the court's intended action); see also Spangler v. Pasadena City Bd. of Educ., 537 F.2d 1031, 1036 n. 8 (9th Cir.1976) (Wallace, J., dissenting) ("[E]ven if the district court had power to modify the injunction sua sponte, it could not do so without providing prior notice."). We hold that the district court abused its discretion in modifying the Amended Injunction, because the Modification was not preceded by appropriate notice and an opportunity for hearing. (emphasis added) God, how it pains me to agree with Regimond on anything, but, on this issue, it appears he may be right. It is quite clear that notice is mandatory before a court can issue a preliminary injunction sua sponte, and at least in the Fifth Circuit courts have been reversed for what Judge Jackson did. Now, maybe some document among the flurry of filings by DOJ and the court can be construed as notice that DOJ was seeking or the court intended to enter a preiminary injunction. Or, maybe the remedy for the absence of notice is to vacate the injunction, reinstate it as a TRO and send it back to the District Judge and the good Professor Lessig for a hearing as the rule clearly requires. Only God knows what will happen or what the ultimate outcome will be. But I think this case law is pretty persuasive that an error has been committed. > I have seen at least two or >three articles with opinions by other legal experts indicating that the judge's actions >are neither improper nor uncommon, and that he has not outstepped his bounds. Please post references or links, as I'd like to read them and see what their reasoning is.