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SUN SETS ON MICROSOFT WITH HELP OF MORGAN, LEWIS PARTNER Morgan, Lewis & Bockius’ Jeffrey Kingston, a San Francisco antitrust partner, traveled all the way to Brussels to sue Microsoft Corp. on behalf of Sun Microsystems Inc. in 1998. This week, Sun claimed victory in one of the largest antitrust cases in the history of the European Union. Sun’s aim, Kingston said, was to get Microsoft to stop sabotaging competitors. “If what you really want is a lot of money, the U.S. is the place you go. If you’re looking to reform business behavior, you go to Europe,” he said. The European Commission, the administrative arm of the EU, found that Microsoft broke European competition law by using its Windows monopoly to muscle into markets for server operating systems. The commission fined Microsoft $613 million and required the company to turn over technical information within 120 days to rivals to allow their competing server software to work smoothly with Windows. The sanctions were more severe than those of the U.S. government’s 2001 antitrust settlement with Microsoft in which the company had to make a series of promises to curb its competition-crushing behavior. “The [Department of Justice's] behavioral remedies are a failure, an embarrassment,” said Kingston. “I mean Martha Stewart was punished worse than Microsoft.” Kingston said the European system relies more heavily on documentary evidence, rather than witnesses, making its adjudication more time-consuming, but also more sophisticated. “More companies will be asking the question about whether Europe would be the right venue to bring antitrust complaints,” he said. “Until now, most lawyers here in Silicon Valley would think about Alameda County or federal court here in San Francisco. EC wasn’t on the list.” — Adrienne Sanders A BIRD IN THE HAND � The Man is trying to crack down on the Bushman, but the Bushman may have a legal ace in the hole: the Wilson brothers. The identical twins, both San Francisco trial lawyers, are considering teaming up to help the shrub-toting street entertainer. One of the brothers, Jacque Wilson, an attorney in the San Francisco public defender’s office, already represents the Bushman, having been assigned his case at random a few months ago. “Some people think he’s a little cuckoo, but I don’t,” Wilson says of his client, whom he calls a San Francisco icon. Last week, Wilson persuaded a San Francisco jury to find the Bushman not guilty of four public nuisance charges. The Bushman, aka David Johnson, faced not only a possible three-year jail sentence, but an injunction barring him from the Fisherman’s Wharf sidewalk where he has plied his trade for 25 years. One of the Wharf’s most popular acts, the Bushman spooks unwary tourists by rattling the small tree branch he hides behind as they pass by. “If he had been convicted, they would have been able to put the Bushman out of business,” says Wilson. Even now, Wilson says, the police continue to harass his client — he was slapped with two littering tickets a few days after his courtroom vindication. That’s where Jacq Wilson comes in. The similarly named twin, a personal injury and product liability lawyer at San Francisco’s Schuman & Associates, may bring a civil action on the Bushman’s behalf seeking either a cease-and-desist order or a restraining order for the police department. It would be the first time Jacq and Jacque have paired up to defend a client. Brother Jacq says he’s looking into the matter. While going up against a government entity like the city of San Francisco can be a lot of work, he says the case seems interesting and could be worth it for the publicity. — Alexei Oreskovic REVENGE OF THE TRIAL LAWYERS? Assemblyman Robert Pacheco, R-Walnut, a frequent, outspoken opponent of the plaintiffs bar, lost his seat on the Assembly Judiciary Committee last week. Newly elected Assembly Speaker Fabian Nunez, D-Los Angeles, said the bump was part of a larger effort to reduce the size of committees and make the Legislature more efficient. The speaker also axed Democrat Loni Hancock of Berkeley from the committee and got rid of a vacant Democratic seat. Pacheco said he hadn’t had the chance to talk to Nunez about the move, but admitted that he couldn’t help but think his well-known opposition to the trial lawyers might have had something to do with his getting bounced. The committee is chaired by trial-lawyer ally Ellen Corbett, D-San Leandro, who bumped heads with Pacheco last year over, among other things, efforts to change the state’s unfair competition law. Pacheco has another bill on the subject pending this year. Nunez’s office said neither the trial lawyers nor the unfair competition statute had anything to do with Pacheco’s ouster. Even so, Pacheco said he’d like to talk to Nunez about the possibility of getting back on board. In the meantime, he’ll have to count on the remaining Republicans on the committee to help him out with his unfair competition bill. Nunez left the minority party in control of three of judiciary’s 11 seats. Sharon Arkin, president-elect of Consumer Attorneys of California, laughed at the idea that her group had that kind of juice. “We had absolutely nothing to do with it. It was a shock to me,” Arkin said. Asked if she thought it would change the flavor of the debate in Judiciary, Arkin joked that committee meetings would likely be shorter without Pacheco, who she said is known for taking his time vetting things. — Jeff Chorney UNEASY IN OAKLAND There was nothing ordinary about the March 19 arraignment at Alameda’s branch courthouse. For starters, the defendant was Oakland Judge Jackson “Jack” Gifford, who was accused of trying to buying sex from a police decoy during a videotaped sting early this month. The 76-year-old judge, who did not appear in court that day, ultimately pleaded no contest to disturbing the peace, paying a $270 fine. Gifford may still face discipline from the Commission on Judicial Performance, a state judicial watchdog agency. The arraignment yielded more awkwardness for court leaders. Similar cases would normally be heard at the Wiley W. Manuel Courthouse, but Gifford’s couldn’t be done there because that’s where the accused judge normally presides. Instead of using a local jurist, retired Marin County Judge Peter White handled the case. Another uncomfortable moment came when White asked Gifford’s lawyer if he’d advised his client about the legal implications of the no-contest plea. Walnut Creek attorney Michael Cardoza replied that he had, but felt “a little funny” giving such legal advice to a judge. Later, Cardoza apologized to White on Gifford’s behalf. His client realized it’s difficult for a judge to preside over a colleague’s criminal case, Cardoza said. “It’s not an easy thing for a judge to do,” he said. — Jahna Berry

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