NYTimes.com Article: Judge Is Assigned to Decide Microsoft Antitrust Penalties

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Judge Is Assigned to Decide Microsoft Antitrust Penalties

By STEPHEN LABATON



WASHINGTON, Aug. 24 — The government's landmark antitrust case
against the Microsoft Corporation (news/quote) was assigned today
to Judge Colleen Kollar-Kotelly, a seasoned trial court judge and
Clinton appointee to the federal bench. She will determine how to
penalize the company for abusing its monopoly power in the software
business.

 Judge Kollar-Kotelly was selected randomly from the pool of
available federal district court judges to replace Judge Thomas
Penfield Jackson. The assignment represents an important point in
the long-running antitrust case. Two months ago, the federal
appeals court here removed Judge Jackson and chastised him for
discussing the case with reporters.

 The appeals court unanimously upheld many of his most important
findings that Microsoft had repeatedly violated the Sherman
Antitrust Act but ordered the case to be returned to a new district
judge to reconsider his order to split the company in two.

 While Judge Kollar-Kotelly, like most trial judges, has had little
experience with complex antitrust matters, lawyers following the
case said that antitrust expertise was less important at this phase
of the case than the ability to move the proceedings along quickly
and keep the lawyers under tight control.

 Most of the important legal questions have already been resolved
by the comprehensive opinion from the the United States Court of
Appeals for the District of Columbia Circuit, which sharply
narrowed the issues and remanded a handful of significant ones to
the district court.

 Judge Kollar-Kotelly (pronounced COAL-er kuh-TELLY) will be the
third district court judge to consider the government's antitrust
complaints against Microsoft. She is expected to now supervise a
series of hearings.

 She will have to determine whether Microsoft's integration of its
Internet Explorer browser software to its Windows operating system
violated antitrust law and assess the appropriate penalties for the
antitrust violations already upheld by the appeals court.

 She is also expected to consider any requests by the Justice
Department and 18 states that brought the case to modify the new
operating system, Windows XP.

 And she would oversee any renewed efforts to settle the case.


The appointment of Judge Kollar- Kotelly follows an unsuccessful
effort by Microsoft to delay all proceedings until the Supreme
Court decides in October whether to hear the company's latest
appeal. Microsoft has urged the Supreme Court to throw out the case
in its entirety because of the derogatory comments that Judge
Jackson made about the company and its senior executives. The
company's critics say the appeal is a frivolous attempt to keep the
antitrust proceedings from affecting the introduction of Windows
XP.

 The selection of the judge coincided with the announcement today
by Microsoft that it had released the final Windows XP code to
computer makers for installation in new machines. At a celebration
at the company's headquarters in Redmond, Wash., five computer
makers picked up copies of the new operating system to begin
mass-producing them. William H. Gates, the company's chairman and
co-founder, hailed the new program as "the best operating system
Microsoft has ever built."

 The Windows XP operating system will be installed in personal
computers sold beginning next month and is expected to be in retail
stores in October. The company has denied accusations by rivals and
experts that the system, by incorporating a number of applications
that are similar to those marketed by rivals, has even more
antitrust problems than the operating systems at issue in the
antitrust lawsuit.

 Today's developments in the case were praised by government
officials who have long sought a resolution before advances in
technology made the case moot.

 "We are pleased that the case is back in district court and we're
anxious to proceed," said Gina Talamona, spokeswoman for the
Justice Department's Antitrust Division.

 Microsoft has succeeded in knocking out of the case two of Judge
Kollar-Kotelly's predecessors who were particularly aggressive in
taking on the company. Six years ago, the company successfully
removed a federal district judge, Stanley Sporkin, from a related
antitrust case after the judge questioned a proposed consent decree
and suggested that the government's settlement had been too
lenient.

 Judge Kollar-Kotelly, 58, became an authority on mental health law
before she began her career as a judge in 1984 on the Superior
Court, which is Washington's rough equivalent to state court. She
was elevated to the Federal District Court in 1997 by President
Clinton, and today she was widely praised for being evenhanded and
diligent.

 "Her reputation is excellent," said Plato Cacheris, a prominent
Washington lawyer whose clients have included Monica Lewinsky and
two Russian spies, Robert P. Hanssen and Aldrich H. Ames. "She's
intelligent and fair."

 Stanley Brand, a Washington lawyer who has appeared before the
judge, described Judge Kollar-Kotelly as "practical and
experienced."

 "She's not pro-government or pro- anything," he said.

 E.
Lawrence Barcella Jr., another lawyer who has appeared before her,
said she "brings a tremendous amount of trial experience" to the
Microsoft case.

 "She has absolute control of her courtroom," Mr. Barcella said.
"She's very pleasant about it and very bright."

 A 1996 article in The Washingtonian magazine rating local judges
offered similar praise.

 "Her expertise in mental health issues might have put her on the
map, but Kollar-Kotelly excels in virtually every type of case,"
the article said. "On the bench she is all business, extremely
organized and efficient."

 On antitrust matters, the judge's record is sparse, and even the
few cases she has decided involving accusations of anti-competitive
conduct have presented none of the questions involved in the
Microsoft case.

 Earlier this year, the judge ruled that the Ivax Corporation
(news/quote) could continue selling a generic version of the cancer
drug Taxol, which is made by Bristol-Myers Squibb (news/quote).
Ivax has maintained that Bristol's efforts to block the generic
drug are anti-competitive.

 The judge has also ruled against the efforts by the American
Bankers Association to limit the expansion of credit unions into
competing lines of business.

 The judge's record on regulatory issues suggests that she pays
close attention to the facts and the law and is not predisposed to
rule for or against the government.

 For instance, she agreed with the Sierra Club in its lawsuit
against the Environmental Protection Agency over air quality in St.
Louis. But she also dismissed a lawsuit against the Food and Drug
Administration brought by biotechnology opponents. That suit sought
to require genetically modified food to be labeled and tested for
safety.

 Before becoming a judge, she worked for 12 years as chief legal
counsel to St. Elizabeths Hospital, the psychiatric institution. A
graduate of the college and law school at Catholic University, she
served for three years of the Nixon administration in the appellate
division of the Justice Department's criminal section.

 A native of New York, Judge Kollar-Kotelly is a daughter of an
environmental engineer and an oil painter. Her husband, John T.
Kotelly, is a Washington lawyer now in private practice. He was the
lead prosecutor in the Abscam case against former Representative
John W. Jenrette, and he also successfully prosecuted two other
congressmen, Charles C. Diggs Jr. and James Hastings, for payroll
padding and kickbacks. More recently he was a senior official on
the staff of the independent counsel who declined to prosecute
former Labor Secretary Alexis M. Herman.

http://www.nytimes.com/2001/08/25/technology/25SOFT.html?exÙ99765433&eiÑ&enÝ94b0ba504e9b79e

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