The Breakfast Table

MSFT: It’s Not Over Till the Three Judges Sing


I’ll take you up on your offer to move on from dot-coms to Microsoft.

It’s all about the appeal now, which, thanks to yesterday’s news, will apparently be soon. Microsoft has a more than fighting chance.

Let’s start with the judge. Microsoft prevailed at the appeals court on related issues way back, with the higher court reversing Judge Jackson. That shows that the appeals court will be willing to thoroughly question this judge’s work and won’t show him deference just because the decision bears his name.

Second, Judge Jackson back in November issued a scathing “findings of fact” that basically sealed Microsoft’s fate in his hands. It’s extremely hard for appeals courts to overrule a district court on factual findings, on the theory that the trial court is closer to the details and better positioned to make a judgment. Generally an appeals court can only overrule findings of fact that are “clearly erroneous.”

At first blush, it seems that this procedural posture would weigh in the government’s favor. But it’s possible that the D.C. Circuit might be a touch suspicious, and in turn resentful, that the district tried to tie the appeals court’s hands by issuing such a sweeping factual ruling.

Third, at least back in the mid-’90s (I haven’t followed it closely since) the D.C. Circuit appeals court was relatively “conservative,” which suggests it would be loath to affirm such an extreme anti-business/pro-government remedy as a breakup. Much will depend on the specific three-judge panel assigned to the case.

Finally, the whole aura feels like too much fanfare, not enough facts. Sure, Microsoft was arrogant and brought on a lot of its own woes. But those AGs were media sluts, pardon the vernacular. Hopefully, in the more removed court of appeals, the issues will get heard unfettered.

BTW: I’m not sure how a reversal would play for the stock. As the market is said to love certainty, it might favor closure in the form of a legal affirmance and corporate breakup over a reversal that included continued litigation.