Microsoft, DoJ to wait it out another week

US District Judge Thomas Penfield Jackson's decision not to issue his findings of fact in the Microsoft antitrust trial on Friday ended hours of anxious anticipation in the high-tech, financial and legal communities.

Jackson said last week that he would issue his findings - which will outline how he views the evidence presented in the 76-day trial but is not a final ruling - on "a Friday" at 6:30pm EST, after financial markets close. Microsoft and the US DoJ will be notified two hours earlier than that.

Word came last week that it would be at least another week before the findings of fact are issued. Microsoft and the Department of Justice will then present their responses, and a final ruling from Jackson is not expected until 2000. Between now and then, the two sides could return to the negotiation table in hopes of hammering out a settlement.

Some observers speculated that part of the reason Jackson did not issue his report this week is because on November 1, Microsoft is due to debut on the Dow Jones Industrial Average, and the judge has taken pains to try to minimise the decision's impact on the stock market. Microsoft is one of a handful of companies being added to the 103-year-old Dow, which until this week has used only companies listed on the New York Stock Exchange.

The financial community is bracing for a ruling that heavily criticises Microsoft. One financial analyst who tracks the software giant said in an in-house memorandum that the ruling "undoubtedly will be negative," and "could be a near term negative to the stock."

When Jackson does issue his findings, some copies will be available for the press and public at the Washington courthouse. Microsoft and the Department of Justice both will post the decision on their Web sites, and the court will publish it on a specially created Web site - - although that site is not yet active.

Assistant US Attorney Joel Klein, the official who is spearheading the Department's case, defended on Thursday the government's decision to challenge the software behemoth as good for consumers and competition.

"The notion that the government chooses winners and losers is absolutely wrong. The marketplace chooses winners and losers," Klein said at the Gilder Group/ Forbes New Economy conference in New York, likening the role of the antitrust division to a referee in a boxing match. "You need a fair set of rules."

Because he spoke before Jackson's rulings, Klein said it was premature to discuss remedies in the event of a ruling against Microsoft. In general, he said the two types of remedies revolve around corporate structure - as happened when AT&T was required to break itself into separate companies in the 1980s - or conduct, where a company can no longer be involved in exclusionary contractual arrangements or tie products.

Klein said that the US government's model of antitrust enforcement as a means of regulation will eventually win out worldwide. European and Asian governments have already abandoned the idea of "national champions," or state-owned enterprises in protected markets, and have started dismantling Asian industrial conglomerates, such as Japanese keiretsu.

Klein said that the government's ability to address the Microsoft case in the fast-paced IT industry proved that the government can move in "internet time." He also brushed aside the suggestion that the projected explosion of non-PC devices will make the Microsoft case irrelevant.

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