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Microsoft, Feds Revise Settlement Agreement
An Anonymous Coward writes: "This AP article writes of some changes negotiated by MS and the Justice Department to the anti-trust settlement. MS urges Judge Kollar-Kotelly to accept the settlement it negotiated with the Justice Department b/c doing otherwise would raise constitutional issues. Please."
The Raven
The Raven
Sporkin refused to authorize a consent decree settlement agreed upon by DOJ and Microsoft because he thought it wasn't strong enough as a remedy. The Appeals Court which is full of nice reasonable people like David Sentelle who for example, had overturned Oliver North's conviction and had also appointed Ken Starr as special prosecutor since the previous special prosecutor wasn't sufficently rabid, threw Sporkin off the case saying he didn't have the authority to withhold his signature to a settlement reached by plaintiff and defendant (one wonders why we have judges at all then).
However, the big difference between these two cases and what was used to hang Sporkin, was that an argument could be made from things he had said that he believed not just that the remedy to be ineffectually weak, but that he wanted the remedy to include corrections for Microsoft abuses that DOJ never argued or tried to prove in the case. The Microsoft/DOJ as appellants argued that this was an inappropriate blurring of function: Judge Sporkin couldn't be both Judge and Prosecutor. Blowing this minute and dubious distinction about remedy and sufficient remedy up into a separation of powers type argument, the appeals court went on to "reluctantly" accept Microsoft's contention that since Sporkin had mentioned having read a book , Harddrive, about Microsoft he was unduly biased against them and that bias was the motive behind his finding against them and his intent to apply a remedy stricter and more far reaching than DOJ wanted.
The consent decree was handed then to Thomas Penfield Jackson for his immediate signature, (who must have also wondered why a rubber stamp at DOJ wasn't used instead, since according the Appeals Court his signature was non-optional.)
Later on, when they could get around to voiding the entire content of Sporkin's finding against Microsoft, the COA did so. This is what shocked Judge Jackson into carefully separating his findings of fact from his findings of law, as he said himself, when predictably Microsoft was brought back into the courts again on a antitrust beef. For reasons of tradition, and because appeals courts are not supposed to try cases but sort out the application of law to verdicts and findings, Appeals Courts tend to leave findings of fact alone, and address only legal conclusions of lower courts. As it happened they did exactly as Jackson predicted, unfortuately his comments to a writer may have helped justify the obstruction from above, at least to the public.
As others have said before, if Judge K. is persuaded by the dissenting nine states and the Tunney comments and she tries to apply realistic remedies to Microsoft she will find her tits caught in the same big wringer.
This wayward reference to "separation of powers" is Microsoft and the Asscleft DOJ reminding Judge K. about what has happened to her predecessors on this case, particularly Sporkin. It would be really great if she had the balls to charge right back into the lion's den and force the Appeals Court to brazenly and shamelessly save Microsoft from their guilt once again! Are we not entertained?
Johnny Quest has two Daddies.
Microsoft defended its decision to disclose to the trial judge only its antitrust discussions with officials in the executive branch, but not with those in Congress. Records of such contacts are required under the 1974 Tunney Act, passed to guarantee that a company settling antitrust charges doesn't improperly lobby the government. Critics of Microsoft's disclosures -- including former Sen. John Tunney, D-Calif., who wrote the law -- accused the company of failing to disclose all its conversations with U.S. government officials.
Microsoft called those "meritless complaints," and said Tunney's opinion, "coming over 25 years after enactment of the statute, is irrelevant as a legal matter."
I am just astonished at the arrogance of the Microsoft legal team. I hope it bites them on the ass the way it did with Judge Jackson. Sure, Judge Kollar-Kotelly doesn't technically have to consider Tunney's opinion, but I think it will pretty well rule out any argument about the intent of the statute as it is written, so it's not exactly irrelevant.
Microsoft tried (apparently successfully, so far) to win the case through lobbying rather than in the courts, which is exactly what the Tunney act was designed to prevent. The New York Times said as much in the statement they sent to the DOJ in the Tunney Act public comment period. It's a long way from being a "meritless complaint."
I am so disgusted with the political interference in this case. The settlement would be considered weak even if Microsoft hadn't already been convicted of wrongdoing.
The fact that the Justice Department backed down to this slap-on-the-wrist after winning the case and convicting Microsoft of illegal activities smacks heavily of back-room deals and under-the-table politics. Microsoft obviously has the resources to engineer a political victory. Why didn't they disclose their meetings with members of Congress? A cursory reading of the Tunney act makes it clear as day that they should have done so.
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This does *not* mean that monopolies should be left on their own. I want them stopped *not* because the government can run things better, or any illusion that the government can "fine-tune" the economy (all the evidence says it can't), but because monopolies tamper with my precious markets.
The very *problem* with monopolies is that they interefere with markets, and stop us from receiving the benefits of the market.
hawk, baffled by the supposedly free-market folks that are willing to let the markets be abused like this.