As Kollar-Kotelly weighs whether to approve the settlement, ongoing litigation will be moving toward its next phase. Since early November, the settlement and the continuing litigation have been proceeding on separate tracks. But legal experts say those two tracks could collide, or merge, if Kollar-Kotelly believes she can dispatch the entire case through a single proceeding. On one track, the Justice Department, nine states and Microsoft settlement has been going through the Tunney Act process leading up to Kollar-Kotelly's acceptance, modification or rejection of the deal. On the other track, the nine litigating states and the District of Columbia have been working toward the March remedy hearing and potentially stiffer restrictions on Microsoft's business practices than were worked out in the Justice Department settlement. The settlement and ongoing litigation will reach critical junctures around the same time. The judge will be looking at accepting the settlement; about the same time a remedy hearing will unfold in her courtroom. Kollar-Kotelly would then have the option of bringing the two tracks together into one remedy against Microsoft. "What I would do if I were her would be to work things out so I got to hear all the evidence before I had to make a judgment on either proceeding," said Rich Gray, a Silicon Valley-based attorney closely following the trial. "I would be very surprised if the timelines don't work out so she can do the one before she has to decide the other." Under terms of the proposed settlement, Microsoft would agree to refrain from contracts and related activities that compel other companies to do its bidding. It also would be prohibited from retaliating against PC manufacturers or software developers supporting competing products. But the Windows operating system, at the heart of a court ruling that branded Microsoft a monopolist, would emerge largely unchanged, and Windows XP--once a focal point of further proceedings--would be free of any significant restrictions. The litigating states delivered a much harsher solution in a remedy proposal filed in early December. That proposal argues that US District Judge Thomas Penfield Jackson's November 1999 "findings of fact" and April 2000 "conclusions of law"--essentially his two-part ruling against Microsoft--demand stiffer sanctions against the company. Among other things, the states want Microsoft to open up the source code to its Internet Explorer Web browser, carry Sun's Java in Windows for 10 years and license through auction the Office productivity suite for competing operating systems. A "crown jewel" provision could force Microsoft to open the source code to Windows, should the company violate the remedy. Rather than treat the two proceedings separately, Kollar-Kotelly could weigh one against the other, drafting a remedy that falls somewhere in between or even largely supports the proposal put forth by the litigating states. "While the (litigating) states' remedy proposal is something Microsoft would never agree to, it's not outside the scope of the ruling handed down by the Court of Appeals," said Fenwick & West's Stanton. In June, seven appellate judges unanimously upheld eight separate antitrust violations against Microsoft. Many portions of the litigating states' remedy proposal tightened up ambiguities in the Justice Department settlement and strengthened the enforcement mechanisms, Stanton said, setting up a scenario in which Kollar-Kotelly could, "in a way, superimpose one over the other". Gray believes that a collision between the settlement and the court-sanctioned remedy is a fairly likely outcome. "At some point, she can just blend the two together," he said. "She can issue a judgment in one and then based on the other reject the settlement. She would then encourage those parties to sign onto the judgment she just issued." Another option: encouraging another round of settlement talks. Because Kollar-Kotelly is unlikely to be able to decide on the settlement before the remedy hearing--even if she wanted to--the non-settling states are in the strongest position to affect any outcome, Gray emphasised. "The dissenting states right now are in the driver's seat, not the settling ones," he said. "They already played their hand and said what they'll settle for. The dissenting states are the wild cards here."
Think it's all over? The antitrust case against Microsoft can still go back the to Court of Appeals, and then there's the European Commission's investigation... See ZDNet UK's DoJ/Microsoft News Section for the latest headlines.
Have your say instantly, and see what others have said. Go to the Microsoft forum.
Let the editors know what you think in the Mailroom.
