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Hung Jury - 11 to 1 for Novell -- Mistrial in Novell v. Microsoft ~ pj - Updated 5Xs
Friday, December 16 2011 @ 07:10 PM EST

Dennis Romboy at Deseret News has the story first, that the jury is deadlocked in Novell v. Microsoft:
Jurors in the Novell v. Microsoft antitrust trial couldn't reach a verdict, resulting in a hung jury on Friday. "I am sorry, very sorry we cannot come to one accord. I've done the best I know how," the jury foreman told the judge in announcing the deadlock.

The seven-woman, five-man jury returned to the U.S. District courtroom deadlocked Friday after three days of deliberation in the complex, two-month trial....

Motz agreed to discharge the jury, but asked them if they'd be willing to talk to the attorneys for both sides. Such discussions, he said, might be able to help attorneys reach some kind of settlement.

And that is what I expect is most likely, actually, since Microsoft didn't get the breezy win it seemed to expect even with a judge who seemed to rule for them whenever he could. However, Novell has other options, which it will no doubt consider after it has the opportunity to speak to the jurors. You'll see headlines all over the place that the judge "dismissed" the case against Microsoft, but that isn't accurate information. He dismissed this jury, ending this version of the case. It's a mistrial. Normally, absent a settlement, there will be a retrial with a new jury. Nobody won, and nobody lost. So it starts over. And considering each side has spent millions already, settlements do sometimes follow hung juries.

Jump To Comments

Tom Harvey at the Salt Lake Tribune adds this:
After three full days of deliberations, the 12-member jury returned about 4:30 p.m. to say they could not agree whether Redmond, Wash.-based Microsoft harmed the Utah company’s efforts to compete in the area of software application suites.

The announcement brings an inconclusive result to a lengthy and technical trial....

For Microsoft, the trial represents the last of an expensive string of legal actions against it over antitrust allegations that stretch back to the 1998 Department of Justice lawsuit contending the company had engaged in anticompetitive behavior to maintain its monopoly on personal-computer operating systems....

Microsoft paid out billions of dollars to settle some of the claims, including $536 million to Novell in 2004. Novell claimed then that Microsoft illegally used its market dominance in the mid-1990s to muscle in on the Utah company’s NetWare-related computer server market and stall development of competing operating systems.

BusinessWeek has a comment from one of the Novell attorneys:
“We are terribly disappointed,” Jim Lundberg, an attorney for Novell, said in an interview after the judge declared a mistrial.
Given how the trial was conducted, I'd say this could be enough to motivate Microsoft, the defendant, into offering a settlement. Damage was done, from Novell's point of view, and at least some jurors believed that sufficiently that they would not budge from that view. Microsoft has an antitrust reputation, after all, and its story that this was all Novell's fault didn't convince at least one juror, maybe nearly all of them. Who knows? We may find out later how the split went, if the jurors speak with the attorneys. But a hung jury tells the defendant that its case isn't as convincing as it imagined, and that can be highly motivational.

Update: In fact, I see Harvey has updated his article now and it was 11 to 1 in favor of Novell:

Looking haggard and distraught as they assembled in the courtroom, the seven-woman, five-man jury shook their heads when Motz asked them if there was any chance of reaching a verdict. One woman dabbed her eyes with a handkerchief as she cried. After dismissing the panel, Motz went into the jury room to talk with them.

Later, a clerk emerged to say they were "very emotional."

Novell asked the judge to explore whether the jury might come back after a weekend to think about the case and try again to reach a verdict. But none of them appeared to think that a unanimous decision was possible....

But Novell lawyers said the jury was hung 11 to one in their favor.

That makes me wonder why the judge gave up so fast, frankly. Novell asked for one more day. And he could have ordered it. What a trial this has been.

But I would never criticize a holdout juror. You are supposed to hold true to your convictions, assuming they are honestly held and reasonable. There is a reason why it has to be unanimous. It's not a system that was designed to find guilt lightly.

But a settlement offer now seems like a sure thing, frankly. If Microsoft came this close to an verdict of antitrust violation, even after putting Bill Gates himself on the stand, they can't be feeling very good tonight or overly confident about a new trial.

You know what is so inspiring to me? We saw the media, which was overwhelmingly telling the story of this case very much from the viewpoint of Microsoft. Some still are, stressing that this is a loss for Novell, the case was "dismissed", that it favors Microsoft, none of which is so. And we saw the judge who seemed very annoyed there even was a trial. And yet the jury saw Novell's story as true, almost to a man, from the early reports. Do you see now why I always tell you that I trust a jury of my peers to get it right more even than a judge? Certainly more than the media.

However, there is one footnote to this I should tell you. One of our reporters saw a juror having a cigarette break with a court reporter. One hopes that they were not discussing the case. I don't see it as ever appropriate for any juror to be schmoozing with anybody during a trial. Just one more example of why this was one of the strangest trials I ever saw.

But here's the good thing -- the materials that Novell asked to reopen the case to include but was denied by the judge -- they can all be presented in any new trial, presumably.

Update 2: And retrial is what we can expect, from this statement from Novell, reported by PCWorld's Joab Jackson and James Niccolai:

"While Novell is disappointed that the Jury was unable to reach a unanimous decision, Novell still believes in the strength of its claim," the company said in a statement. "Clearly, this is a complicated technical case and Novell is hopeful that a re-trial will allow the opportunity to address any uncertainties some of the jurors had with this trial."
Not some. One. And the article, which explains the factual issues clearly also presents the view of an analyst, who explains why this case still matters:
Although Microsoft does not cast as deep a monopolistic shadow across the IT landscape as it once did, the case is significant for a number of reasons, Charles King, head of the Pund-IT analysis firm, said earlier this week.

"Many would claim that the Novell case is old news. I'd take the opposite side of that argument -- anti-competitive behavior and how it is punished or condoned is as critically important today as it has ever been," King said.

I think it still casts a shadow, and I think Barnes & Noble would argue the same. In fact, it is.

Update 3: And now we hear from Microsoft, via Fox News. They have a plan:

Microsoft said it would file a motion asking the judge to dismiss Novell's complaint for good and avoid a second trial.

"We remain confident that Novell's claims don't have any merit and look forward to the next steps in the process," said Steven Aeschbacher, Microsoft's associate general counsel.

This is what I like to call legal broccoli. They may feel obligated to serve it, but I don't have to like it or eat it up.

Confident would not be a rational feeling after an 11 to 1 against you hung jury. They may feel confident in the judge. I would, if I were Microsoft, but for sure any such motion, if granted, would be appealed immediately, just like the last time the judge tried to avoid a jury and was overturned on appeal.

Update 4: More details on who the hold out juror was and why, from Deseret News:

One juror kept Novell Inc. from exacting as much as $1.3 billion from one-time rival Microsoft Corp. for alleged antitrust violations.

Corbyn Alvey, a 21-year-old security guard, was the lone holdout who deadlocked the 12-person jury after three days of deliberations in the complex, two-month trial in federal court.

"I walk away feeling honestly myself, and I can't speak for the other jurors, that I made the right decision even if it resulted in a hung jury," he told the Deseret News Friday. "There were so many inferences that needed to be drawn that I felt that it was unfair to Microsoft to go out on a limb and say yes."...

Novell attorneys were clearly upset with the hung jury. Johnson said, "One juror had strong technical views, and he wasn't about to budge."...

Alvey, the holdout juror, said the jury agreed on the technical aspects of the case but disagreed on the marketing aspects or what Novell could have accomplished "but for" Gates' decision. "There was a lot of speculation in this 'but for' world," he said.

And Tom Harvey at the SLT has a bit more as well:
"One juror had strongly held technical views and he wasn’t going to budge," Novell’s lead trial attorney, Jeffrey Johnson, told reporters after speaking with jurors. "It’s gratifying the jury by and large saw our point of view."

Novell Legal Vice President Jim Lundberg said the company will continue the legal battle and push for a new trial.

"We look forward to retrying the case and for the opportunity to convince all 12 jurors," Lundberg said....

Microsoft attorneys said it wasn’t clear that jurors had deadlocked 11-1 because they had stalled part way through filling out the verdict form. Steven Aeschbacher, associate general counsel for Microsoft, said the company was confident in its case in any further legal proceedings.

And the Seattle Times has one further statement from Novell:
Novell, which is now owned by Seattle-based Attachmate Corp., issued the following statement from its attorney Jim Lundberg: "While Novell is disappointed that the jury was unable to reach a unanimous decision, Novell still believes in the strength of its claim. Clearly, this is a complicated technical case and Novell is hopeful that a re-trial will allow the opportunity to address any uncertainties some of the jurors had with this trial."
And here's KSL's televised report entitled Lone holdout deadlocks jury in 2-month Novell-Microsoft trial", including at the end a reported claim by Microsoft that several jurors told *them* they wouldn't have awarded anything to Novell. Ah, Microsoft. There is also a comment by one Microsoft attorney, Jim Jardine, that hints that it will not settle, not even now.

Update 5: This amazing video interview with the holdout juror by KSL reveals that he too was convinced that Microsoft was guilty of anticompetitive behavior. He just wasn't convinced that Novell was damaged by it. Wow.


  


Hung Jury - 11 to 1 for Novell -- Mistrial in Novell v. Microsoft ~ pj - Updated 5Xs | 146 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Thread
Authored by: bugstomper on Friday, December 16 2011 @ 07:37 PM EST
Please type a summary of error->correction or s/error/correction/ in the
Title box to make it easy for PJ to scan to see what errors need to be corrected
and for readers to see which have already been reported to avoid duplication of
effort.

[ Reply to This | # ]

News Picks Thread
Authored by: bugstomper on Friday, December 16 2011 @ 07:44 PM EST
Pick your News right here. Please type the title of the News Picks article you
are commenting about in the Title box and include the link to the article in
your comment for the convenience of readers after the article has scrolled off
the News Picks Sidebar. As an added bonus, use HTML Formatted mode to make the
link clickable.

Hint: The Geeklog software used by Groklaw sometimes makes a link unclickable.
You can work around that bug by always putting a space in between the closing
> and the text of a link such as the space before the word The in

<a href="http://example.com"> The Link</a>

[ Reply to This | # ]

Off Topic threads
Authored by: bugstomper on Friday, December 16 2011 @ 07:47 PM EST
Please stay off topic in these threads. Use HTML Formatted mode to make those
links deliciously clickable. See the hint in the News Picks thread starter
comment for how to avoid the Geeklog bug that can break links.

[ Reply to This | # ]

Comes transcripts here
Authored by: bugstomper on Friday, December 16 2011 @ 07:55 PM EST
Thank you for contributing transcripts of Comes exhibits here, posted with HTML markup but using Plain Old Text mode to make it easy for PJ to copy and paste.

For your convenience, here is a link to the Comes Tracking Page where you can find PDFs of exhibits that need transcribing and, if you have a login, book the ones you are working on.

[ Reply to This | # ]

It makes one womder...
Authored by: Anonymous on Friday, December 16 2011 @ 08:32 PM EST
If the trail had been fairer, would Novell have prevailed?

Tufty

[ Reply to This | # ]

Tom Harvey of The Salt Lake Tribune said "The hung jury favors Microsoft"
Authored by: Anonymous on Friday, December 16 2011 @ 08:34 PM EST
"The hung jury favors Microsoft, which escaped a verdict that it had engaged in anti-competitive conduct as well as nearly $1 billion in potential damages Novell asked the jury to assess. But Novell lawyers said the jury was hung 11 to one in their favor."

I don't believe him and I want proof.

KSL is reporting on TV that it was 11 in favor of Novell and I think the jury foreman was the only one in favor of M$.

[ Reply to This | # ]

ific8ion
Authored by: tz on Friday, December 16 2011 @ 09:03 PM EST
fija.org - nullification, as the book by thomas woods explains. Though in this

case it will be retried.

[ Reply to This | # ]

What is inspiring to me
Authored by: jbb on Friday, December 16 2011 @ 09:55 PM EST
PJ said:
You know what is so inspiring to me? We saw the media, which was overwhelmingly telling the story of this case very much from the viewpoint of Microsoft. Some still are, stressing that this is a loss for Novell, the case was "dismissed", that it favors Microsoft, none of which is so. And we saw the judge who seemed very annoyed there even was a trial. And yet the jury saw Novell's story as true, almost to a man, from the early reports. Do you see now why I always tell you that I trust a jury of my peers to get it right more even than a judge? Certainly more than the media.
For me, jbb, it is PJ's words, her vision, and her integrity that are inspiring and that keep me coming back. As George Orwell said:
In a time of universal deceit, telling the truth is a revolutionary act.

---
[ ] Obey DRM Restrictions
[X] Ignore DRM Restrictions

[ Reply to This | # ]

  • Yea! - Authored by: Anonymous on Friday, December 16 2011 @ 10:02 PM EST
Retrial, recusal?
Authored by: Anonymous on Friday, December 16 2011 @ 11:03 PM EST
What with the epidemic of recusals in Utah just now,
will Novell be condemned to suffer this judge again?

[ Reply to This | # ]

None of the Above
Authored by: Anonymous on Friday, December 16 2011 @ 11:41 PM EST
At one point, the jury asked whether Windows 95 was considered "an operating system or middleware," court filings show.
PCWorld

[ Reply to This | # ]

Less than unanimous - less than confident
Authored by: cpeterson on Saturday, December 17 2011 @ 12:23 AM EST

From the Bloomberg article PJ linked in the above text, I find this quote:

During jury deliberations, Motz asked lawyers on both sides whether they would agree to accept a verdict that wasn’t unanimous to avoid a mistrial. Microsoft’s lawyers refused.

That seems somewhat at odds with Wednesday's Salt Lake Tribune quotation, found in the prior Groklaw article:

"We’re confident in the jury and are looking forward to what they have to say," said Steven Aeschbacher, associate general counsel for Microsoft.

I'm no lawyer, but I think I would translate thus:

Judge: If you were given a chance to reject whatever the jury came back with, would you do it?
Microsoft: Absolutely.

[ Reply to This | # ]

What an extraordinary case :-|
Authored by: SilverWave on Saturday, December 17 2011 @ 02:36 AM EST
11-1 eh?

MS will pay them off now.

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

What did they learn?
Authored by: Anonymous on Saturday, December 17 2011 @ 05:30 AM EST

The interesting thing for me is what did they learn.

Novell was clearly ambushed at the 11th hour with a Microsoft lie about lack of documents in the closing hour. Obviously they won't allow that tactic again though I'm sure Microsoft will find something equally shady but different next time round.

Microsoft clearly learned that having a favorable judge is not enough. I really wonder how far they will go next time round to influence the verdict. If I understand PJs comments the juge will have to change (I can't find appropriate information, however this criminal example seems to suggest changing judge is exceptional)

Bill Gates clearly continues to learn how to act in front of a court. During the Jackson trial he lied outright about facts and was caught with videos and clear factual demonstrations. This time round he's switched to merely misrepresenting the facts in ways which become matters of personal knowlege or opinion and very difficult to challange. I think he's probably been having acting lessons with his various lawyers ever since the Jackson trial and I really don't think there's almost any direct hole that you will be able to poke into his statements.

The judge clearly learned that he isn't pushing hard enough to get a pro-Microsoft verdict. I think next time round he's going to try much harder to goad the Novell lawyers into making mistakes.

[ Reply to This | # ]

The holdout juror didn't act properly if his quotes are true
Authored by: Anonymous on Saturday, December 17 2011 @ 08:56 AM EST
<blockquote>Alvey, the holdout juror, said the jury agreed on the
technical aspects of the case but disagreed on the marketing aspects or what
Novell could have accomplished "but for" Gates' decision. "There
was a lot of speculation in this 'but for' world," he said.
</blockquote>

From reading this, I take it that he agreed with the other jurors that Microsoft
was guilty of anti-competitive behavior, but that he didn't agree with the other
jurors on the amount of damage that it caused to Novell. If this was the case,
then he should have voted to find for Novell, but then followed up with a vote
for a smaller amount for the damages award.

[ Reply to This | # ]

Hung Jury - 11 to 1 for Novell -- Mistrial in Novell v. Microsoft ~ pj - Updated 4Xs
Authored by: StormReaver on Saturday, December 17 2011 @ 09:06 AM EST
This is good news for both sides. For Microsoft, they get a temporary stay of
execution. For Novell, they can't possibly get a worse, more obviously biased
judge for the next trial. The judge didn't even pretend to not be a Microsoft
fan.

[ Reply to This | # ]

another newspaper gets it wrong - Times-Dispatch of Richmond, Virginia
Authored by: Anonymous on Saturday, December 17 2011 @ 03:09 PM EST
The article says "from wire reports" that the "suit was
dismissed".

Maybe these journalists do not know the difference between a suit being
dismissed and the jury being dismissed.

After reading Groklaw for about 8 or 9 years now, I have learned that simply
because there has been a setback for one party does not mean it's the end.

I want to email the newspaper to tell them about the error, but I doubt they
would even read it.

[ Reply to This | # ]

Interviews with jurors?!
Authored by: Anonymous on Saturday, December 17 2011 @ 04:58 PM EST
The press are allowed to interview jurors about why they made their decisions?

In the UK, the jury's deliberations are confidential and any juror talking about
them or anyone asking a juror about them would be in contempt of court. The idea
is that jurors should not be subject to any outside pressure, which seems like a
good idea to me.

If you are going to be expected to justify your decisions to the press after the
case (even if it is theoretically optional), you could easily end up making
different decisions (eg. deciding based on what you think other people will
think about you, rather than your own judgement and conscience).

[ Reply to This | # ]

Hung Jury - 11 to 1 for Novell -- Mistrial in Novell v. Microsoft ~ pj - Updated 4Xs
Authored by: lanser on Sunday, December 18 2011 @ 07:03 AM EST
NO room for a Majority verdict?

[ Reply to This | # ]

The "One-Nut" Theory
Authored by: webster on Sunday, December 18 2011 @ 07:28 AM EST
.
All that you need to avoid a loss [or conviction] is one different, stubborn
person that sees things your way. With a jury you have twelve shots at such a
person. With a judge you have only one.

~webster~

.

[ Reply to This | # ]

Hung Jury - 11 to 1 for Novell -- Mistrial in Novell v. Microsoft ~ pj - Updated 5Xs
Authored by: HockeyPuck on Sunday, December 18 2011 @ 02:28 PM EST
I think the young man made his verdict based on moral and personal convictions.
That said, the last comment disturbed me. He's willing to help both sides
sharpen their cases. That sounded like he was looking for some money out of the
deal. I hope that is not what he is about (though I may not blame him). He
seemed to be on the "straight and arrow".

[ Reply to This | # ]

I don't believe this
Authored by: Anonymous on Tuesday, December 20 2011 @ 03:01 PM EST
Only one juror. Even he is convinced of Microsoft's guilt.
How can they possibly know after only a few days that he
would never change his mind or that some kind of accord could
not have been reached. How can they give up so easily?

[ Reply to This | # ]

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