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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.


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