Microsoft, DOJ could learn antitrust findings of fact as early as today

As early as this afternoon, U.S. District Judge Thomas Penfield Jackson could issue his findings of fact in the ongoing antitrust battle between the U.S. Justice Department and Microsoft. Those findings, while not a ruling, could reveal the direction the judge is going and what conclusions of law he might reach.

They could also set the stage for settlement talks, which the judge has strongly advocated.

The basic proceedings of the landmark case, in which the government and 19 states allege Microsoft used its Windows monopoly unfairly against browser rival Netscape Communications, concluded with closing arguments on September 21. Since then, both sides have been waiting for Jackson's findings of fact.

Many antitrust experts believe Jackson will use his findings to prod both sides to discuss a settlement. Typically, a judge would ask both sides to submit their conclusions of law before he or she rendered the findings of fact.

In this case, however, only after the findings of fact are issued will both sides present their conclusions of law to the judge. The step gives both parties an extra opportunity to rethink their positions and gauge his reaction before he issues his conclusions of law.

"The judge is trying to force settlement by bifurcating facts from law, which gives the parties another opportunity to start talking," said Bob Lande, a professor at the University of Baltimore School of Law who specializes in antitrust.

"The findings of fact [constitute] the judge's effort to distill from these competing narratives what he sees the events to have been and what position and motive he attributes to [Microsoft] and how he evaluates the effect of what they did," explained Bill Kovacic, an antitrust professor at George Washington University.

Until Jackson issues his findings of fact, there are really two points of view, which he must weave into a single picture, said Joe Sims, an antitrust attorney with Jones, Day, Reavis & Pogue.

"Once he decides these are the facts, like a jury decides an individual's guilt or innocence, then he issues conclusions of law, which are the legal consequences of those facts," Sims said.

If Jackson does plan to prod both sides toward settlement, he will have to do so carefully and craftily, said antitrust experts. He must convince both the government and Microsoft neither side will get a clear victory, which some antitrust experts suggest could be the case's natural outcome.

The judge, for example, could find some antitrust violations against Microsoft, but rule out ones that would eventually call for serious remedy. The government laid out essentially six theories for antitrust behavior by Microsoft, said antitrust experts. If Jackson favors some theories that benefit one side and some that benefit the other, they might consider settlement talks.

"If the judge sets out findings that are adverse to one side or the other, but are not so compelling that either party feels absolutely certain they can knock it down or uphold it, then you obviously have a basis for compromise," said Sims.

Many antitrust attorneys predict Jackson's findings will be hard on Microsoft, and possibly a wake-up call for the Redmond, Washington-based software maker.

"You have a company with all this power, with no one to challenge it, and only listening to what is said inside," said Lande. "The judge is trying to slap Microsoft back to reality, slap them back to the earth so they can talk settlement."

On the other hand, if the findings of fact go badly for Microsoft, it could drive the company to dig in and pursue a strategy of trying to win the case on appeal, possibly to the Supreme Court.

Some antitrust experts don't see a lot of foundation for settlement talks, even if the findings of fact favor neither party. Microsoft has said it is open to settling the case, but not at the expense of developing new features for Windows. The government has indicated it wants a stiff remedy.

The Justice Department is also under pressure from the states not to go soft on Microsoft.

"The feds do not want the states to defect, and that gives the states a lot of leverage," Kovacic said. "The states have taken a 'With your shield or on it' approach to remedies," he said, referring to the famous Spartan admonition for soldiers headed off to war.

If Jackson issues his findings of fact today he will do so at 3:30 p.m. PT; or at the same time on some future Friday. He will issue the document electronically in WordPerfect, which both sides can post on the Web.

Either side soon after could file a motion of reconsideration should they dispute any portion of the judge's findings, no matter how small. That is not unusual in an antitrust trial, said antitrust experts.

The original schedule tentatively called for both sides to present their briefings on the conclusions of law about 30 days after getting the findings of fact. But the longer Jackson takes, the more likely he will wait until after the holidays, as late as early February, to hear the briefings.

Typically the briefings are staggered rather than presented simultaneously, likely stretching out the next stage until late February. Most antitrust attorneys do not expect the judge's conclusions of law until late spring.