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Government lawyers usually play the heavies in court, and many in the public believe they did in the historic antitrust suit against Microsoft. But certainly not when it came to lunch. Every day, a team of San Francisco antitrust lawyers crossed Washington, D.C.’s 7th Street to a sandwich shop called The Markette. At the same time, a group of Microsoft lawyers defending the company against the government’s antitrust suit would cross the same street to eat $750 buffet lunches in a private room at the Mark restaurant — right next door to The Markette — where fax and phone lines were installed at the company’s expense. Christopher Crook, the chief of the San Francisco field office of the Justice Department’s antitrust division, has a photograph of the restaurants in his 10th floor office of the Phillip Burton Federal Building. It’s his favorite picture in an album he kept to document the work of a small but hardscrabble group of lawyers — some not long from law school — who left behind their families for nine months to work in spartan conditions, and under intense pressure, to slingshot one of the world’s most successful and controversial firms. “We worked, basically, in a file room with a lot of windows,” Crook says. “This was a lean, mean group of people.” The trial was also a professional metamorphosis for many members of the team. Now, even as Microsoft argues to a higher court that the fight was unfair, some attorneys are pursuing other cases within the DOJ, while others have left the scene to hunt for the next big thing. “It was a wild ride,” says trial attorney Steven Holtzman, who is working as a consultant on the Microsoft appeals and is mulling an offer to set up a San Francisco office of a major antitrust firm. “You don’t spend your life, in large measure, for almost four years working on something without it affecting you deeply,” Holtzman says. BUILDING THE TEAM San Francisco isn’t a routine field office. It built its reputation in the 1990s, first under former chief Gary Spratling, then under Crook. It is the only field office charged with investigating all three areas of antitrust law: criminal, mergers and civil non-merger cases, like the Microsoft monopoly suit. Last year, San Francisco played a key role in raking in more than $1 billion in fines, capping what Spratling has called “the most celebrated era in the history of antitrust litigation.” Consequently, the office has a reputation for developing some of the best antitrust lawyers around, including Phillip Malone, who would take the reigns of the Microsoft suit. He led a team that had what Washington wanted — experience in high-tech cases. “[Antitrust chief Joel Klein] had met the staff a couple of times, and I believe he was impressed,” Crook says. After first opening a file on Microsoft in 1995, the San Francisco office was given full control of the Justice Department’s 1997 investigation into Microsoft’s bundling of the Internet Explorer browser into its Windows operating system. Malone was joined by trial attorneys Holtzman, Pauline Wan and a recent Stanford graduate named Karma Giulianelli, and the case snowballed into a monopoly suit. “It was a natural progression,” Holtzman says. John Cove Jr., and another recent graduate, Michael Wilson, were added as the case grew. Klein hired David Boies in late 1997, a sure signal that something big was coming. He was an old Justice Department nemesis, having successfully defended IBM against the government’s 13-year antitrust suit. “It wasn’t a matter of somebody coming in and sitting above it all,” says Malone, who led the team until Boies was hired. “It was really a great coming together.” The Justice Department also hired away from Wilson Sonsini Goodrich & Rosati, Denise DeMory, who had extensive experience working high-tech cases. “I felt strongly about the case. It was an opportunity I couldn’t pass up,” DeMory says. The San Francisco lawyers say they were not pushing to file a monopoly suit, and that the decision with Washington was collaborative. At one point, Klein brought out several top lawyers from the Washington office for a meeting in San Francisco. Opinions were aired, and in May 1998, the Justice Department filed suit alleging Microsoft was a monopoly that abused its power. “It was not a remote decision-making process,” Malone says. Nor was it easy on the lawyers bringing the suit. Klein never took the suit away from San Francisco, a bold move that in the end proved justified. “It was,” Crook says, “a leap of faith on the part of the people in Washington.” By this time, the work was accelerating, and people were seeing less of their families. Wan, for example, had been away on maternity leave for just over two months when she was invited back to the office to sit in on a meeting with Klein, ostensibly to show the antitrust division chief her firstborn. “Joel sort of chuckled him under the chin. We started the meeting. And then it was, ‘OK, let’s get back to work,’” Wan says. Maternity leave was over. ‘A HUGE TOLL’ The summer after the suit was filed was busy. Holtzman brought a sleeping bag to work. Michael Wilson kept a pillow in his office, loaning it out as needed. Malone describes the effort as “lots of people not getting any sleep.” “Before we went away for trial, people were lost to their families here for several months,” Crook adds. Wilson, one of the newest additions to the team, was recently married. He celebrated his one-year anniversary by taking his wife out to dinner, taking her home, and heading back to the office to work on a brief that was due the next day. Giulianelli was another newlywed. “My husband played a lot of golf,” she said. Some lawyers in the office declined offers to work on the case, not willing, or able, to make the commitment. Cove said his reaction to the breakup order was relief that he could go home to see his wife and two children, now 2 and 6. “It took a huge toll on people,” Crook says. HOLING UP IN THE WAR ROOM MICROSCOPE In September 1998, the team moved to Washington for trial, staying in the Landsburgh Apartments, a corporate hotel in Pennsylvania Quarter. Pregnant with her second child, Wan stayed in San Francisco on the advice of her doctor. Rarely did the team leave a four-block stretch between the U.S. District Courthouse, the apartments and a handful of restaurants. Washington didn’t exactly roll out the red carpet for the San Francisco team. They worked in the file room because it was across the street from the apartments. Utilitarian desks were shipped in, along with a copy machine. But there were no cubicles, no privacy and so little space that a walkway in the center of the room was often more trench than aisle. “I had the misfortune of being assigned to the desk closest to the copy machine, which was going 24 hours a day and was the size of a battleship,” Cove mutters. Besides a steep learning curve, an organizational hurdle had to be overcome. Keeping track of information and passing it along to others was critical. Several support staff, the lawyers say, were instrumental in keeping the team moving forward. The San Francisco team brought Joli Wilson, a crackerjack paralegal, out with them. Without cubicles, the team also tore down other walls. Any semblance of corporate structure was eliminated. “We believe sort of fundamentally … in a collegial atmosphere. Not hierarchical, very egalitarian,” says Holtzman, who described his role as a kind of chief of staff. Wilson, the youngest member of the team, agrees. “Someone had described it as a Silicon Valley start-up,” Wilson says. “The fact that we were forced to work so close together, that you couldn’t escape, added to the work. Just because you had a bad day, you couldn’t go and hide.” Work was divided between witnesses (Judge Thomas Penfield Jackson had limited each side to 12) and areas of technology. Everyone knew what the other was working on. “While the war room was not pleasant for amenities, it was conducive to everybody exchanging ideas and helping everybody else out,” Cove says. “You’ve got instant communication with people,” Malone adds. The environment the war room fostered paid off during the trial. Boies had made a point of attacking Microsoft’s credibility. During one memorable courtroom exchange, Boies questioned Microsoft’s former general manager of new technology, Dan Rosen, about an allegedly intimidating visit he made to Netscape Corp.’s Mountain View, Calif., headquarters. Netscape makes Navigator, the chief rival to Microsoft’s Internet Explorer browser. Boies produced an e-mail Rosen had written and sent to several top Microsoft staffers that seemed to support Microsoft’s alleged hard-line attitude toward Netscape. Despite a date stamp and a list of recipients, Rosen said the e-mail was a draft letter that was never sent. Perplexed, Wilson returned to the war room at lunch and had a paralegal find the box of documents from which the e-mail was produced. In the box, there was a cover letter from Microsoft, explaining that this batch of evidence came from the files of one of the recipients listed on Rosen’s “draft” e-mail. After lunch, the cover letter was Exhibit A, and Rosen’s testimony was undercut. “This was not my witness. I hadn’t even had a chance to read his testimony,” Wilson says. “Everybody was ‘on,’ all the time.” LITIGATING UNDER A MICROSCOPE Also forging a closer team was the intense pressure under which they operated, both from without and what one lawyer described as a ‘you don’t screw up here’ atmosphere. Everyone was keenly aware of the importance of the suit. Holtzman admits his nerves would sometimes hum at trial. Giulianelli says the media were harsh critics, pouncing on any missteps. “It was too high-stakes not to be stressful,” she says. “Knowing that the world was watching every day, that whatever happened in court would end up on the front page of the Wall Street Journal or Washington Post” added to the normal pressures of a trial, Malone says. The team would often blow off steam after a week in court by “having dinner together, drinking a lot of beers and laughing about what happened that day in court,” Giulianelli says. Microsoft’s court victories were not as spectacular as the Justice Department’s, but they did make news with their extra-judicial efforts to influence the suit. At one point, Microsoft lobbied Congress to slash the Justice Department’s budget by $9 million. The effort went nowhere as several key senators and congressmen supported the antitrust department’s work in general. But the lawyers did take note. One lawyer was astonished at the move, saying it threatened to set a dangerous precedent that would undercut the Justice Department’s antitrust ability to investigate large companies. Another didn’t blame Microsoft, but was flabbergasted that members of Congress would even entertain the notion. Although they knew they were in for a big battle, the attorneys felt going into trial that the facts were behind them. “There was just a huge amount of evidence that was on our side,” Malone said. “Day to day, witness by witness, things were going well.” Judge Jackson’s June 7 order splitting Microsoft in two is now the subject of further court wranglings. The U.S. Court of Appeals for the Federal Circuit has agreed to hear Microsoft’s appeal, but Jackson recently ruled the case should go straight to the U.S. Supreme Court. The antitrust division’s appellate attorneys are now working the case. Malone is still on it as well, having spent so much time in Washington recently that he speaks with some pride about revitalization in the area around the Landsburgh Apartments. The case is the latest example of the antitrust division’s newfound vigor, but it was a risky move. The Justice Department denies a loss would have derailed the antitrust division’s momentum. Regardless of the final outcome, the lawyers say they’ve struck a blow for competition. “We as a country really do believe in competition,” Malone says. “That’s really what the case is all about.” Along with Malone and Crook, Wan and Cove are still with the DOJ, but several lawyers have left for greener pastures. “People don’t come here in the first place to make money, and they don’t stay because they’re making money,” Crook says, his office decorated with red, white and blue quilts and posters promoting war bonds. “I can’t think of anybody here that wouldn’t be welcome at any reputable firm.” Several were. Wilson took a job as an associate in Gibson, Dunn & Crutcher’s Palo Alto offices.”[Microsoft] whet my appetite for more big, big cases,” he says. DeMory set up her own practice in San Francisco, and Holtzman similarly struck out on his own. Holtzman has been working with Boies and is mulling an offer to set up a San Francisco office of the latter’s Armonk, N.Y. firm, Boies, Schiller & Flexner. And Giulianelli quit the week after closing arguments, leaving for Denver and the firm Bartlit Beck Herman Palenchar & Scott, where she’s working with the Canadian government in a suit against cigarette maker R.J. Reynolds. “I get homesick for the war room, which is a pathetic thing to say,” Giulianelli says. “Nothing is going to be that interesting again.”

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