What Went Wrong With The Microsoft Trial

from the two-opinions dept

The San Jose Mercury News has two guest commentary pieces looking at what went wrong with the Microsoft trial – one suggesting that it went on too long, and other saying not long enough. The first is from lawyer Gary Reback, former Wired coverboy well-known for his efforts to bring about the anti-trust trial in the first place, saying that Silicon Valley didn’t understand how to properly work the Washington DC machine, and that they need to appeal the Microsoft settlement or Silicon Valley’s whole culture may be threatened. This seems a tad excessive, as I think Silicon Valley has the ability to reinvent itself. The other column takes a different viewpoint suggesting that the whole fight against the settlement by certain states was really a proxy fight done for a few deep pocketed Microsoft competitors and had nothing to do with consumers’ actual rights. His opinion seems to be that this case has cost Microsoft shareholders too much money already and should be left alone.

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Comments on “What Went Wrong With The Microsoft Trial”

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Steve says:

2nd article way off base

I only read the second article and it got me pretty ticked off. My state is one of the nine. Microsoft’s opponents don’t have any kind of presence here and had nothing to do with not going along with the fed’s slap on the wrist settlement. Our Attorney General (now Governor elect) was a huge consumer rights proponent and that’s why our state didn’t bend over and say, “thank you sir may I have another.”

I question CKK’s objectivity with the statements she made,

She went on to note that the attorneys general of the nine non-settling states offered “little, if any, legitimate justification” for the remedies they requested, which, for the most part, were “not supported by any economic analysis.” Why, she wondered, would the states ask for relief “at this late stage … unrelated to [Microsoft’s] monopoly market.”
Her answer: “Certain of Microsoft’s competitors appear to be those who desire these provisions.”

If Judge Jackson’s comments (which were the result of the evidence he saw presented in court) were inflammatory enough to cause his remedies to be set aside, shouldn’t Judge Kollar-Kotelly’s as well? The findings of fact that are unappealable are that Microsoft illegally used its monopoly power to squash its competitors resulting in inflated prices, lack of choices and an often defective product for consumers. The federal settlement neither punishes Microsoft for past illegal acts nor protects its victims from future ones. The states have every right to say that the settlement does not provide ample measure of justice to its citizens.

Further in the article I was equally annoyed by this:

Because of murky statutes and conflicting case law, companies like Microsoft can never be quite sure what constitutes permissible behavior. If the company can’t demonstrate that its actions were motivated by efficiency, conduct that is otherwise legal somehow morphs into an antitrust violation. Normal business practices — price discounts, product improvements, exclusive contracting — become violations of law.

Yeah sure, Microsoft had no idea what they were doing was illegal. Then why did they shred evidence & destroy email messages? And some of their violations were for actions explicitly outlined as illegal in the previous anti-trust case. They said sure, we’ll behave, and won’t do X, Y, and Z. And now we’re supposed to feel sorry for them because they didn’t know what they did was wrong?

Finally in his rules that should govern the conflict of state and federal authorities in antitrust, he says

Third, relief should be in the form of money damages only, not “conduct remedies.” The problem with conduct remedies is that they invariably affect out-of-state residents.

The first problem here is that current settlement doesn’t have any money damages and second, for MS with billions of cash on hand (because they have never paid a dividend) monetary damages unless extreme, do nothing to discourage future illegal acts.

I hate the overly litigous aspect of our society as much as anyone, but I also believe everyone has a right to seek legal action and every case should be decided on it’s merits. If the states can prove their case in a court of law regardless of what the federal government does, they have every right to.

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