Lawyers debate remedy enforcement in MS case

The AT&T break-up was the ghost in the courtroom today, as Judge Colleen Kollar-Kotelly heard warnings that the Microsoft antitrust case could dominate her time for years to come if she gets the remedy wrong.

No matter how the case turns out, two things are clear: Microsoft will be forced to live under the terms of a remedy, and it will have to be enforced somehow.

At issue today: how that remedy will be enforced.

On that matter, there is little legal precedence to guide the judge in making a decision. The closest parallel is the 1984 breakup of AT&T by Judge Harold Green, who made a career after the breakup considering the many legal issues and complaints that arose from it.

Attorneys for the nine nonsettling states today outlined a plan for the appointment of a special master to oversee the remedy and conduct preliminary work if a third party were to file a complaint about Microsoft's compliance with the remedy. That special master would gather facts and deliver a report to the court within four months, along with possible recommendations for action.

The entire process could take four months, said states' attorney John Shenefield.

Kollar-Kotelly expressed some skepticism and asked him if that model would work. "Do you really think it's going to work that way?" she asked.

Shenefield acknowledged that the proposal hasn't been done before in an antitrust case, but said "there hasn't been an antitrust case like this one either. This is a little unusual."

The special master would have more power then than the three-member "technical committee" that would be set up under the settlement terms reached by the Bush administration, Microsoft and nine of the 18 states originally involved in he case. That committee would consist of a "full-time, on-site compliance team of software design and programming experts, with the means to hire its own staff and consultants, as needed."

This committee would have complete access to Microsoft's records, facilities, systems, equipment and personnel, including source code.

This committee would monitor compliance, while providing dispute resolution. If enforcement action is needed, the U.S. "will not have to start from scratch. Rather, it will have the Technical Committee's work product, findings and recommendations to help start any investigation," the government said.

But Microsoft attorney Charles Rule said the states' plan wouldn't make the judge's life easier. He predicted that the special master proposal would have the affect of funneling more cases to the judge.

"The special master provides no firebreak," said Rule.

Under a plan backed by Microsoft, the U.S. Department of Justice, which Rule said has much experience in enforcing decrees, could decide what cases to move ahead on.

The two sides aren't due to return to court until June 19 for closing arguments, in the case. Testimony in the remedy phase concluded last Friday.

The hearings were brought about by the nine states that refused to back the Bush administration settlement with the company. That settlement is also awaiting action by the judge.

The dissenting states -- California, Connecticut, Florida, Kansas, Iowa, Massachusetts, Minnesota, Utah and West Virginia as well as the District of Columbia -- are seeking tougher remedies than those called for in the Justice Department deal. The holdouts' proposals include a requirement that Microsoft create a thin-client version of Windows, stripped of most of its applications, as well as the porting of Office to other operating systems, such as Linux.

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