CURRENT EVENTS UPDATE

By CHRIS TAYLOR

Could Bill Gates still have the last laugh? Microsoft’s boss reportedly boasted to Intel employees back in 1995 that “this antitrust thing will blow over.” Those words have echoed hollowly on each of the Judgment Days since, as Microsoft steadily descended into Judge Thomas Penfield Jackson’s three circles of hell—branded a monopoly, found in violation of antitrust law and, finally, last week ordered to perform self-dismemberment. But Gates has at least one, and more likely two, lives left in this game—one if the U.S. Supreme Court takes the case immediately, as the Justice Dept. and Judge Jackson want, and two if the high court declines to hear the case until it goes through the U.S. Court of Appeals. Maybe it will blow over yet.

For months now, Microsoft has been investing its entire stock of faith in the Court of Appeals. Ask the company’s attorneys, and they will tell you with unshakable confidence that the three-judge review panel of the appeals court will see the flaws in Jackson’s reasoning and strike down all elements of his decision—not just the split-’em-up remedy but the findings of law and fact too.

But such total vindication is about as likely as the Cubs’ winning the World Series this fall. “It’s not a question of total reversal,” says Washington antitrust lawyer Joseph Kattan, “but [of] whether the company gets broken up.” Nevertheless, there are a number of factors that could help the company slip its noose at the 11th hour:

Friendlier Courts In 1998 the Court of Appeals dealt the Department of Justice a body blow by reversing Jackson’s injunction ordering Microsoft to quit tying its Web browser to Windows. That decision has since been glorified by Microsoft attorneys, who see it as their salvation.

Judicial Competence “The judge simply got it wrong,” says a senior Microsoft attorney. “He committed errors from the start of the proceeding and became more and more confused as time went on. He doesn’t have special expertise in economics. He’s a trial-court judge.” Ouch.

Procedural Issues Judge Jackson decided to abruptly end the proceedings without allowing Microsoft to call witnesses (including Gates) to discuss remedies. This kept the case from dragging on until the end of the year, but also denied the company an opportunity to mount an important defense. “The refusal to entertain any further debate was a mistake,” says George Washington University law professor William Kovacic. “What Jackson was basically saying is that nothing was going to change his mind.”

Time, June 19, 2000

Questions
1. Where did the Microsoft antitrust trial stand at the time this article was published?
2. What factors could enable Bill Gates to have “the last laugh” in the Microsoft trial?

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