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Microsoft Sends Judge Motz Another Letter: Agrees to Mediation of Novell's Antitrust Complaint Re WordPerfect ~ pj
Wednesday, December 28 2011 @ 09:41 AM EST

Last we looked, Microsoft was breathing fire from its nose, telling the judge in the trial of the Novell antitrust complaint against it regarding WordPerfect and QuattroPro that it planned to renew its motion to dismiss as a matter of law by January 13th. This was right after the trial ended in a hung jury, but a jury made up of 12 people, all of whom indicated they thought Microsoft had behaved badly and one, or perhaps more, who couldn't agree about damages. That letter made Microsoft sound confident about a second trial outcome. Or delusional. Take your pick.

But look at this: another letter to the Hon. Frederick Motz, in which Microsoft now tells the judge the following:

Microsoft Corporation is amenable to a mediation conducted by a magistrate judge of the Court.
That's a change.

What are they *not* saying? That they are looking for an exit that isn't a total disaster, in case he isn't inclined to rule their way? That on further reflection they don't see how he can grant such a motion? That they aren't as confident as they sounded, now that they've had more time to think and perhaps to talk to the jurors from the first trial? That they tried to come up with arguments to renew their motion, but they all sounded lame even to them? That they don't wish to negotiate a settlement with Novell directly? That they wish to appear reasonable to the judge? That they have tried to talk to Novell and talks failed?

I don't know, but frankly I think they'd be foolish not to try for a settlement, as they are otherwise risking what Microsoft has gone to great lengths to avoid for some time -- a trial verdict from a jury of their peers that the company is guilty of antitrust violations. Again.

Not that Microsoft thinks it has -- or should have -- any peers, if I may say so. That's how they get into these messes in the first place, I'd suggest.

Here's the docket entry:

12/27/2011 - 393 - NOTICE OF FILING of Letter to the Honorable J. Frederick Motz filed by Defendant Microsoft. (Jardine, James) (Entered: 12/27/2011)

Right after the trial, Microsoft's lawyers were firmly taking the position that they were right, so they wouldn't settle. One thing is certain, then -- this represents a shift in position, and a softening on Microsoft's part. Settlement in a fact pattern like this generally means they'd have to pay Novell something, because Novell is claiming damages and Microsoft is not.


Microsoft Sends Judge Motz Another Letter: Agrees to Mediation of Novell's Antitrust Complaint Re WordPerfect ~ pj | 17 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Authored by: Kilz on Wednesday, December 28 2011 @ 09:56 AM EST
So problems can be fixed

[ Reply to This | # ]

Authored by: Kilz on Wednesday, December 28 2011 @ 09:58 AM EST
Please mention the news story's name in the title of your

[ Reply to This | # ]

Off Topic
Authored by: Kilz on Wednesday, December 28 2011 @ 09:59 AM EST
For all posts that are not on topic.

[ Reply to This | # ]

Comes Stuff Here
Authored by: SilverWave on Wednesday, December 28 2011 @ 10:08 AM EST

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 | # ]

rephrased: does this give novell opportunities?
Authored by: designerfx on Wednesday, December 28 2011 @ 10:46 AM EST
Could Novell object to the mediation and follow up with a
motion for something more amenable to them than mediation?

[ Reply to This | # ]

Microsoft Sends Judge Motz Another Letter: Agrees to Mediation of Novell's Antitrust Complaint Re WordPerfect ~ pj
Authored by: HockeyPuck on Wednesday, December 28 2011 @ 11:00 AM EST
MS should just pay up and let it go. They already are not trusted; at least by
common sense folks (and others as well). They should just pay; so what? No one
has even heard of these products. Let alone cares what happened to them. Pay and
get Novell off their backs so they can continue their business plan of sue, sue,
sue. What? Create something innovative? Nah, we'd rather pay lawyers, not

[ Reply to This | # ]

initial vs. current stance
Authored by: hAckz0r on Wednesday, December 28 2011 @ 11:00 AM EST
Their initial stance, after the trial, was probably just to use PR to appease the stock holders, as they would be watching very closely at that point. Now MS is trying to quietly sweep that past dirt under the carpet so it won't come back and bite them again. The quieter the better. In the mean time the stock holders are now off looking at a different set of numbers and are likely just in a wait and see mode. Unless the case is put back on the docket MS is happy, so I'll be watching for very "confidential" but mutually beneficial agreement (aka settlement) with Novel to not pursue the case further.

DRM - As a "solution", it solves the wrong problem; As a "technology" its only 'logically' infeasible.

[ Reply to This | # ]

Be very careful Novell
Authored by: Anonymous on Wednesday, December 28 2011 @ 11:40 AM EST

Microsoft Corporation is amenable to a mediation conducted by a magistrate judge of the Court.
And in the subtext not actually put in I read:
    Could we get you to oversee the magistrate and ensure we get a magistrate as amicable to MS' position as you are honorable Judge?
I think if I was Novell walking into that mediation, I'd be highly suspect of being strong armed into an acceptance I wouldn't otherwise normally make.


[ Reply to This | # ]

Mediate what? Where?
Authored by: cpeterson on Wednesday, December 28 2011 @ 01:07 PM EST
Last we saw, Microsoft was saying that Novell had no case to try; and Judge Motz
agreed with them. (Forget that had already been litigated, said Microsoft and

So - are they now saying that they've caved, Novell does has a case, and they're
willing to let a magistrate handle the outcome? Or are they wanting a magistrate
to handle the (already-decided) question of whether Novell has a case?

I rushed to see what the rest of the letter said - and it said nothing. The one
sentence quoted is the full text of the letter's body.

Next question: where? Judge Motz can't assign this case to a magistrate back in
Baltimore - it's not a 4th circuit case. He can't assign it to a magistrate in
Utah - he's not a 10th circuit judge.

I don't think Microsoft ever wanted to be in a court in Utah, and having a
near-damages experience has only exacerbated their wish to be elsewhere. Like
back in Baltimore. I think that's what they're hoping for - in all likelyhood,
assigning this case to a Utah magistrate would result in another session of
recusal-go-round like we've seen in SCO v IBM recently. Of course, if that takes
up a bunch of time, and puts some public-mind-distance between their poor
showing in the jury trial and a magistrate's decision, that's all to the good as

[ Reply to This | # ]

Microsoft Sends Judge Motz Another Letter: Agrees to Mediation of Novell's Antitrust Complaint Re WordPerfect ~ pj
Authored by: Anonymous on Wednesday, December 28 2011 @ 08:22 PM EST
In preparation for the release of DOS 6.0, Microsoft had been in discussion
with Stac Inc about their disk compression utility called Stacker. After seeing

the code MS decided not to continue with Stac and released DOS with
something they called Double Space. Stac subsequently sued MS, the first
time they had been sued. Gates testified at the trial and MS lost. He didn't
appear in court again until the tapes of his mandatory deposition provided
comic relief for the antitrust trial.

It's my unfounded belief that Gates decided to testify in the Novel trial,
assuming that as the Lord High Poobah of philanthropy, whatever he said
would now be taken as gospel. The fact that none of the jurors believed him
had to infuriate him considerably. Although not in any brief of argument, MS
most likely position is that the jurors are simply too stupid to understand
what they're being told.

Gates is in a terrible position. I doubt he would even consider the risk of
being called a liar again so would refuse to testify in a new trial; yet his
absence would likely be interpreted as a sign of guilt. So long as Novel can
avoid binding arbitration with a hand picked mediator, they should be able to
get almost any kind of settlement they want.

[ Reply to This | # ]

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