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Novell v. Microsoft - The Antitrust Trial Begins; Picking the Jury ~ by pj
Monday, October 17 2011 @ 08:07 PM EDT

Today was the first day of the trial in Novell v. Microsoft, the antitrust trial over WordPerfect and Quattro Pro. Novell won the right to this trial on appeal. The US Court of Appeals for the Fourth Circuit reversed Judge J. Frederick Motz's ruling [PDF] on summary judgment in favor of Microsoft, basically on a technicality, and so it's back to Utah they had to go, but with Judge Motz, who is a judge in US District Court in Maryland, where the case had been transferred from Utah, commuting to Utah to stay in charge of the case.

The case matters, because normally Microsoft settles antitrust litigation either before they go to trial or early in the trial, and frankly, I wouldn't be surprised if that happened again.

Our own Chris Brown attended for us today. He says that mainly today was about picking the jury. They sat 12 jurors, out of 45 prospective jurors, just in case. In Utah, where this trial is happening, the judge explained, you only need 6 jurors for civil trials, but things happen, and rather than run out of jurors, they picked double the amount, and he says the judge said all of them would participate if they all make it to the end of the trial. They were then released until the morning, 8:30 AM promptly, and the lawyers then argued about whether the Findings of Fact from the US government's antitrust trial against Microsoft should be called Findings of Fact or just Findings.

I know. I doubt this will enhance your respect for the lawyers for Microsoft or for lawyers generally, but they won the point.

Chris reports it like this:

The main point of contention is how the findings would be announced. Microsoft didn't want the jurors to hear that the government was a party to the case as they believed it would be prejudicial. Microsoft also didn't want them referred to as "findings of fact". Novell's point is that most of the jurors were already aware of that case, and that they would likely learn more of it via cross-examination of the expert witnesses.

Judge Motz sided with Microsoft on this believing it would be prejudicial. He said he'd introduce the findings as "In a previous case in the District of Columbia, certain findings were made"...

In a previous case... Sigh. Well, *we're* not jurors, so here are those Findings of Fact1 for you, and if you read them, you'll probably understand why Microsoft is so touchy about them. No one wants to reap what they sow.

The other main news of the day is that Bill Gates is not expected (by Novell, anyway) to show up in person at this trial, only by video deposition. Here's a transcript [PDF] of one of his depositions in this case, along with some exhibits [PDF], if you'd like an advance peek. There was a second deposition ordered, if you recall, but we didn't get to see it or a transcript of it yet.

I'm disappointed he won't appear in person, as you probably are too, remembering how well he did in his deposition in the United States v. Microsoft case. Heh heh.

The alleged wrongdoing happened between 1994 and 1996. In case you long ago forgot what this case was about, then, here are a few of the most important filings:

Here's Chris Brown's full report from today:
I went to the first day of the Novell v. Microsoft trial today. Not much came out of it.

Judge Motz seems to know all the participants and I only recall perhaps one attorney stating their name.

About 45 prospective jurors were brought in. About a half dozen responded that they had hardship reasons not to serve. Those people, and a couple dozen more whose responses on the written questionnaire met in chambers with the Judge and the party's attorneys.

As far as I could tell, all those who claimed hardships were released.

The two parties passed the juror lists back and forth as they stuck jurors.

Eventually, 12 jurors were seated.

Judge Motz explained 12 were chosen since only a minimum of 6 jurors are required to decide civil cased in federal court. There would be no alternates and should all 12 remain to deliberate, they would all participate.

Judge Motz gave instruction to the jurors on what is expected of them as jurors and what their restrictions are. He also gave a relatively basic overview of what the case is about.

He also explained the trial schedule, being generally 8:30am to 1:30pm Monday through Thursday perhaps into December. He said the week of the 31st of October and half of Thanksgiving week would be off.

He then released the jurors until 8:30 Tuesday.

Judge Motz then heard several issues from the parties, though most was in chambers. Including some point about Mr. Gate's deposition testimony. As an aside, Novell's attorneys told me after court that we will only hear from Mr. Gates via prerecorded video deposition, but to expect it early in their case.

The only real issue heard in court was regarding collateral estoppel and how the findings of fact in the DOJ anti-trust case would be presented to the jurors. The main point of contention is how the findings would be announced. Microsoft didn't want the jurors to hear that the government was a party to the case as they believed it would be prejudicial. Microsoft also didn't want them referred to as "findings of fact". Novell's point is that most of the jurors were already aware of that case, and that they would likely learn more of it via cross-examination of the expert witnesses.

Judge Motz sided with Microsoft on this believing it would be prejudicial. He said he'd introduce the findings as "In a previous case in the District of Columbia, certain findings were made"...

That was it for today.

Judge Motz was very conversational with the parties and seemed relatively informal compared to, say, Judge Kimball. He quite frequently spoke over attorneys as they were making their points. While the court reporter frequently rolled her eyes at this, she never interrupted them.

Regarding collateral estoppel, which was the issue being argued after the jurors left, here's Novell's motion [PDF] regarding collateral estoppel, and the Memorandum in support [PDF] from 2008. Attached are Appendix A [liability rulings against Microsoft in DC Circuit], Appendix B [Findings in US v. Microsoft Corp. Novell asked to be given preclusive effect], and Appendix C [Novell's explains why it requested preclusive effect for Findings], all PDFs, along with the court's order [PDF] granting in part and denying in part, in case you really want to understand what collateral estoppel issues are about. Novell also filed this document, Appendix A to a subsequent filing, where Novell explained why the contested Rulings and Findings are relevant.


1 Here's a snip from the end of the Findings of Fact:


409. To the detriment of consumers, however, Microsoft has done much more than develop innovative browsing software of commendable quality and offer it bundled with Windows at no additional charge. As has been shown, Microsoft also engaged in a concerted series of actions designed to protect the applications barrier to entry, and hence its monopoly power, from a variety of middleware threats, including Netscape's Web browser and Sun's implementation of Java. Many of these actions have harmed consumers in ways that are immediate and easily discernible. They have also caused less direct, but nevertheless serious and far-reaching, consumer harm by distorting competition.

410. By refusing to offer those OEMs who requested it a version of Windows without Web browsing software, and by preventing OEMs from removing Internet Explorer or even the most obvious means of invoking it prior to shipment, Microsoft forced OEMs to ignore consumer demand for a browserless version of Windows. The same actions forced OEMs either to ignore consumer preferences for Navigator or to give them a Hobson's choice of both browser products at the cost of increased confusion, degraded system performance, and restricted memory. By ensuring that Internet Explorer would launch in certain circumstances in Windows 98 even if Navigator were set as the default, and even if the consumer had removed all conspicuous means of invoking Internet Explorer, Microsoft created confusion and frustration for consumers, and increased technical support costs for business customers. Those Windows purchasers who did not want browsing software businesses, or parents and teachers, for example, concerned with the potential for irresponsible Web browsing on PC systems not only had to undertake the effort necessary to remove the visible means of invoking Internet Explorer and then contend with the fact that Internet Explorer would nevertheless launch in certain cases; they also had to (assuming they needed new, non-browsing features not available in earlier versions of Windows) content themselves with a PC system that ran slower and provided less available memory than if the newest version of Windows came without browsing software.

By constraining the freedom of OEMs to implement certain software programs in the Windows boot sequence, Microsoft foreclosed an opportunity for OEMs to make Windows PC systems less confusing and more user-friendly, as consumers desired. By taking the actions listed above, and by enticing firms into exclusivity arrangements with valuable inducements that only Microsoft could offer and that the firms reasonably believed they could not do without, Microsoft forced those consumers who otherwise would have elected Navigator as their browser to either pay a substantial price (in the forms of downloading, installation, confusion, degraded system performance, and diminished memory capacity) or content themselves with Internet Explorer.

Finally, by pressuring Intel to drop the development of platform-level NSP software, and otherwise to cut back on its software development efforts, Microsoft deprived consumers of software innovation that they very well may have found valuable, had the innovation been allowed to reach the marketplace. None of these actions had pro-competitive justifications.

411. Many of the tactics that Microsoft has employed have also harmed consumers indirectly by unjustifiably distorting competition. The actions that Microsoft took against Navigator hobbled a form of innovation that had shown the potential to depress the applications barrier to entry sufficiently to enable other firms to compete effectively against Microsoft in the market for Intel-compatible PC operating systems. That competition would have conduced to consumer choice and nurtured innovation. The campaign against Navigator also retarded widespread acceptance of Sun's Java implementation.

This campaign, together with actions that Microsoft took with the sole purpose of making it difficult for developers to write Java applications with technologies that would allow them to be ported between Windows and other platforms, impeded another form of innovation that bore the potential to diminish the applications barrier to entry. There is insufficient evidence to find that, absent Microsoft's actions, Navigator and Java already would have ignited genuine competition in the market for Intel-compatible PC operating systems. It is clear, however, that Microsoft has retarded, and perhaps altogether extinguished, the process by which these two middleware technologies could have facilitated the introduction of competition into an important market.

412. Most harmful of all is the message that Microsoft's actions have conveyed to every enterprise with the potential to innovate in the computer industry. Through its conduct toward Netscape, IBM, Compaq, Intel, and others, Microsoft has demonstrated that it will use its prodigious market power and immense profits to harm any firm that insists on pursuing initiatives that could intensify competition against one of Microsoft's core products. Microsoft's past success in hurting such companies and stifling innovation deters investment in technologies and businesses that exhibit the potential to threaten Microsoft. The ultimate result is that some innovations that would truly benefit consumers never occur for the sole reason that they do not coincide with Microsoft's self-interest.

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