WASHINGTON, D.C. - Lawyers for Microsoft and the Department of Justice are scheduled to plead their cases this morning before a new federal judge in a hearing that marks the start of the final phase of the landmark antitrust trial.
The litigants are expected to shed light on the appropriate punishments they believe Microsoft should face for illegally maintaining its operating system monopoly.
It will also be the first time for the public and counsel to see Judge Colleen Kollar-Kotelly in action on the case. Kollar-Kotelly, who is regarded as a competent, no-nonsense jurist, was chosen by automated drawing last month to replace Judge Thomas Penfield Jackson, who had ordered that Microsoft be broken up.
The appeals court dismissed Jackson for making inappropriate comments to the press. It also overturned substantive portions of Jacksons anti-Microsoft verdict, sending the case back to federal court for further review and for punishment on one area that it agreed with him -- that Microsoft acted illegally to protect its Windows monopoly.
Kollar-Kotelly will likely have to put all her skills to use. The antitrust trial has been lengthy and complex.
Legal experts are anticipating the government will finally lay out the specific remedies it wants. So far, the DOJ has vaguely asked for punishments modeled after remedies originally handed down by Jackson but later blocked by the appeals court. They include compulsory licensing and the opening of the application program interfaces to Microsofts OS-the crown jewels of the software giants intellectual property storehouse.
"There will be movement regarding the specifics of the governments expectations," predicted Hillard Sterling, an anti-trust attorney with Gordon & Glickson. "The government will likely reveal its intentions on stopping the shipping of future product releases."
In a joint filing earlier this month, Microsoft and the DOJ outlined their differences on how to proceed in the final phase. The government wants a swift resolution to the trial with harsh remedies; Microsoft would rather take its time and minimize the damage along the way. Part of that strategy is convincing Kollar-Kotelly to narrow the scope of the penalties before any evidence hearings begin. If granted, the move could add six months to the proceedings.
Sterling said it was doubtful the new judge would grant such a request, but would opt for hearing the full range of evidence before making a decision to limit the scope of punishments.
The hearing also brings two new faces into the courtroom. Yesterday, Microsoft announced it had hired Dan Webb, a highly respected trial lawyer from the Chicago firm of Winston & Strawn. In July, the DOJ hired Phil Beck of Bartlit Beck Herman Palenchar & Scott, best known for successfully representing George Bush before the Supreme Court and delivering him the presidency.
The DOJ has said it will no longer ask for a break-up of Microsoft and wont pursue the more difficult-to-prove issues of whether Microsoft illegally "tied" its Internet Explorer browser into the Windows operating system. Jackson ruled it had, but the appeals court said that issue needed further review.
Meanwhile, Microsoft is pushing ahead with the Oct. 25 release of Windows XP and has petitioned the Supreme Court to essentially throw out the case because of alleged bias on the part of Penfield Jackson.