To: Bearded One who wrote (21157 ) 10/30/1998 1:44:00 AM From: Gerald R. Lampton Read Replies (2) | Respond to of 24154
Federal Filings Newswires Copyright (c) 1998, Dow Jones & Company, Inc. Thursday, October 29, 1998 Colorful E-Mails Figure Little In MSFT Case Result FORM TYPE: LEGAL ISSUER: FEDERAL FILINGS BUSINESS NEWS SYMBOL: X.FFI WASHINGTON (FFBN) -- Although Microsoft Corp. (MSFT) has been able to grab a bit of media attention through the presentation of colorful e-mails criticizing Netscape Communications Corp. (NSCP) products and painting a picture of a conspiratorial Silicon Valley banding together to topple the software giant, the messages will have little bearing on the court's decision as to whether Microsoft violated antitrust laws, according to a local antitrust lawyer. "Judges tend to discount these types of colorful company documents and keep their eyes on the big picture," Keith Shugarman, a partner who specializes in antitrust law with the D.C. office of Boston-based Proctor Goodwin & Hoar, told Federal Filings Business News. Shugarman referred to a famous quote written by Chief Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh in a 1984 antitrust case: "We attach rather little weight to internal company documents used to show anticompetitive intent, because, though they sometimes dazzle a jury, they cast only a dim light on what ought to be the central question in an antitrust case: actual or probable anticompetitive effect." In addition to sitting on the federal appellate bench, Judge Posner is an antitrust law professor, author of several books, and a highly regarded expert in economic and antitrust theory. As reported, Microsoft introduced an e-mail from an apparently disgruntled Netscape employee who compared the speed of company's browser, Navigator, to a dead dog with no legs. Netscape CEO James Barksdale discounted the e-mail, testifying that this document was written on the company's "electronic water cooler," a forum on which employees could post their complaints and often tried to "outdo" each other. Microsoft has also presented e-mails between Barksdale and America Online Inc.'s (AOL) CEO Steve Case, in which the executives refer to themselves as World War II characters and to their common enemy, Microsoft, as the "Axis." Microsoft argued that Netscape and AOL were the true culprits in a market division scheme, not Microsoft, as alleged by the government in its landmark antitrust case against the company. Shugarman suggested that these kinds of e-mails have more value as sound bites than persuasive evidence. Patti Dennis, Esq. Legal Editor