Experts: Mediator boosts settlement prospects

Microsoft and government lawyers are more likely to settle the antitrust case against the software giant with Judge Richard A Posner as a mediator than they would be without such a well-respected guide, several legal experts said.

Judge Thomas Penfield Jackson last week appointed Posner, the chief judge of the Seventh Circuit Court of Appeals in Chicago, to the role of mediator between Microsoft on one side and the US Department of Justice and 19 state attorneys general on the other. Posner is revered by experts as a major contributor to the influential Chicago School of antitrust law, which applies economic analysis to antitrust cases and makes consumer interests the priority over the interests of competing companies.

"He certainly is one of the five or 10 most important people in the country in the area of antitrust," said Michael Jacobs, a law professor at the DePaul University College of Law in Chicago. "The odds of a settlement have improved dramatically."

Microsoft and the Justice Department both praised Posner when his appointment was announced.

"The prospects of a settlement before this were dim," said Mark Schecter, an attorney at Howrey & Simon in Washington and a former Justice Department lawyer who participated in the department's earlier prosecutions of Microsoft. With Posner, the parties have a golden opportunity to talk to one of the people best able to foresee the future of the case - for both sides - if the issues end up going through an appeals process, Schecter said.

While experts agreed that Posner's wisdom will command respect, they debated whether his conservative ideology would also become a factor in the mediation. Some experts said Posner would serve merely as an objective facilitator, but others hinted that his preference for unfettered market economics over government regulation could help him win the trust of Microsoft, which received a lashing in Jackson's November 5 findings of fact.

As a mediator, experts agreed, Posner will abide fully by Jackson's findings; he can't actually rule on anything. But Randal Picker, a law professor at the University of Chicago who once clerked for Posner, said the judge might be able to instruct Microsoft and the government about why Microsoft may still have a viable appeal based on legal thinking that emphasises the case's impact on consumers. Microsoft's harm to Netscape Communications seemed clearer in Jackson's opinion than its harm to consumers, Picker said.

Christopher B. Hockett, a lawyer at McCutchen Doyle Brown & Enersen, agreed, saying that Posner "might be sympathetic to arguments that Microsoft would be making." Hockett serves on the council of the American Bar Association's antitrust section. His firm lists Microsoft as a client.

Many users have said they would prefer to see a settlement rather than a prolonged war that produces uncertainty. "I think this is the best thing for everybody," said James Fey, director of advanced technology at PMI Mortgage Insurance in San Francisco.

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