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Microsoft Files Motion for Judgment as a Matter of Law
Monday, January 16 2012 @ 09:30 AM EST

As promised Microsoft has now filed its renewed motion for judgment as a matter of law [PDF; Text] in the Novell case. Nothing terribly surprising here, and we don't know what arguments Microsoft will set forth to support this motion, although Microsoft renews its arguments set forth in its original motion from November 17.

One thing that drips with irony is Microsoft's claims about what a reasonable jury would have done:

... given the evidence at trial, (1) a reasonable jury would not have a legally sufficient evidentiary basis to find, and as a matter of law there is no basis to find, that Microsoft’s withdrawal of support for the namespace extension APIs constituted anticompetitive conduct under the antitrust laws; (2) a reasonable jury would not have a legally sufficient evidentiary basis to find, and as a matter of law there is no basis to find, that Microsoft’s withdrawal of support for the namespace extension APIs harmed competition in the PC operating system market; (3) a reasonable jury would not have a legally sufficient evidentiary basis to find, and as a matter of law there is no basis to find, that Microsoft’s withdrawal of support for the namespace extension APIs was the cause of any meaningful delay in the release of versions of PerfectOffice, WordPerfect and Quattro Pro for Windows 95; (4) a reasonable jury would not have a legally sufficient evidentiary basis to find, and as a matter of law there is no basis to find, that Microsoft’s withdrawal of support for the namespace extension APIs caused injury to Novell or entitles Novell to an award of any damages; ... [emphasis added]
Given that the only thing the jury was undecided about was the degree of damage to Novell, are we to conclude that the jury was, in fact, unreasonable in all of its other findings? That seems a bit rich. On the other hand, judges have been known to override juries before, and what a reasonable jury would have done is the basis for a judgment as a matter of law. In this case, however, it would seem that, if the Judge Motz thought Novell had failed to prove its case as Microsoft suggests, he would have never allowed the matter to go to the jury in the first place.

This action by Microsoft is likely simply a matter of protecting its right of appeal and attempting to strengthen its hand in any settlement discussions with Novell. We will await Microsoft's brief, which is due February 3.

Judgment as a Matter of Law - Formerly called a motion for directed verdict, this is a motion entered after trial claiming that the opposing party has failed to put on sufficient evidence to prove its case and, therefore, a verdict cannot be rendered against the moving party. The standard by which the motion is evaluated is what a reasonable jury would find.

************

Docket

396 - Filed and Effective: 01/13/2012
MOTION
Document Text: MOTION for Judgment as a Matter of Law (Renewed) filed by Defendant Microsoft. (Jardine, James) (Entered: 01/13/2012)


***********

Document

396

David B. Tulchin
Steven L. Holley
Sharon L. Nelles
Adam S. Paris
SULLIVAN & CROMWELL LLP
[address telephone]

James S. Jardine (A1647)
RAY QUINNEY & NEBEKER
[address telephone]

Steven J. Aeschbacher (A4527)
MICROSOFT CORPORATION
[address telephone]

Attorneys for Microsoft Corporation

_______________________________________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

_______________________________________

NOVELL, INC.,
Plaintiff,
-v-
MICROSOFT CORPORATION,
Defendant.

MICROSOFT’S RENEWED MOTION
FOR JUDGMENT AS A MATTER OF
LAW

Civil No. 2:04 CV 1045
Honorable J. Frederick Motz

____________________________________

January 13, 2012

Pursuant to Federal Rule of Civil Procedure 50(b) and District of Utah Civil Rule 7-1(a), Defendant Microsoft Corporation (“Microsoft”) hereby renews its motion for judgment as a matter of law (originally filed on November 17, 2011, at the close of Novell’s case) on (a) each ground set forth in Microsoft’s memoranda in support of that motion (filed on November 17, 2011 and November 21, 2011), (b) each ground set forth in open court at trial, and (c) on the grounds set forth below.

Judgment should be entered in Microsoft’s favor because, given the evidence at trial, (1) a reasonable jury would not have a legally sufficient evidentiary basis to find, and as a matter of law there is no basis to find, that Microsoft’s withdrawal of support for the namespace extension APIs constituted anticompetitive conduct under the antitrust laws; (2) a reasonable jury would not have a legally sufficient evidentiary basis to find, and as a matter of law there is no basis to find, that Microsoft’s withdrawal of support for the namespace extension APIs harmed competition in the PC operating system market; (3) a reasonable jury would not have a legally sufficient evidentiary basis to find, and as a matter of law there is no basis to find, that Microsoft’s withdrawal of support for the namespace extension APIs was the cause of any meaningful delay in the release of versions of PerfectOffice, WordPerfect and Quattro Pro for Windows 95; (4) a reasonable jury would not have a legally sufficient evidentiary basis to find, and as a matter of law there is no basis to find, that Microsoft’s withdrawal of support for the namespace extension APIs caused injury to Novell or entitles Novell to an award of any damages; (5) Novell has no standing to assert its claim because it suffered no cognizable antitrust injury, and because the evidence at trial also establishes that any harm inflicted on Novell’s office productivity applications had no substantial impact on competition in the PC operating system market; (6) the claim asserted in Count I of Novell’s Complaint is “associated directly or

indirectly with” DR DOS and/or the PC operating system market, and thus that claim was sold to Caldera in 1996 and, as a result, Novell does not have standing to assert it; and (7) Novell’s claim is barred by the applicable four-year statute of limitations set forth in 15 U.S.C. § 15b and, further, the tolling provision of 15 U.S.C. § 16(i) does not apply because the claim is not “based in whole or in part” on United States v. Microsoft Corp. (as the quoted phrase is used in that statute).

For each of these reasons and the reasons that will be set forth in Microsoft’s Memorandum in Support of its Renewed Motion for Judgment as a Matter of Law, which will be filed on February 3, 2012 in accordance with the briefing schedule approved by the Court on January 6, 2012 (Docket #395), Microsoft respectfully requests that the Court grant this motion and enter judgment in favor of Microsoft.

Dated: January 13, 2012

Respectfully Submitted,

/s/James S. Jardine
James S. Jardine (A1647)
RAY QUINNEY & NEBEKER
[address telephone fax]

David B. Tulchin
Steven L. Holley
Sharon L. Nelles
Adam S. Paris
SULLIVAN & CROMWELL LLP
[address telephone fax]

Steven J. Aeschbacher (A4527)
MICROSOFT CORPORATION
[address telephone fax]

Attorneys for Microsoft Corporation

-2-

CERTIFICATE OF SERVICE

I hereby certify that on the 13th day of January, 2012, I caused a true and correct copy of the foregoing Microsoft’s Renewed Motion for Judgment as a Matter of Law to be filed with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following:

Max D. Wheeler
Maralyn M. English
SNOW, CHRISTENSEN & MARTINEAU
[address]

Jeffrey M. Johnson
Paul R. Taskier
Jason D. Wallach
DICKSTEIN SHAPIRO LLP
[address]

R. Bruce Holcomb
ADAMS HOLCOMB LLP
[address]

John E. Schmidtlein
WILLIAMS & CONNOLLY LLP
[address]

/s/ Jasmine Diamanti


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