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.
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