Both sides in the Microsoft antitrust trial are discussing how remedies against the software giant can be enforced - with little legal precedence to guide the legal teams.
The clostest parallel that judge Colleen Kollar-Kotelly has as a guide is the 1984 break-up of AT&T by Judge Harold Green.
Attorneys for the nine non-settling states have 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 process could take four months, said the states’ attorney John Shenefield.
Kollar-Kotelly expressed some scepticism: “Do you really think it’s going to work that way?” she asked.
Shenefield acknowledged that the proposal hasn’t been carried out before in an antitrust case, but said that “there hasn’t been an antitrust case like this one, either. This is a little unusual.”
More power 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 the 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 US “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.
More work Microsoft attorney Charles Rule said that the states’ plan wouldn’t make the judge’s life easier. He predicted that the special master proposal would have the affect of funnelling more cases to the judge.
Under a plan backed by Microsoft, the US 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. 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 Microsoft, demanding tougher reparations. That settlement is also awaiting action by the judge.