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A month ago, a handful of state attorneys general engaged in the long-running antitrust battle with the Redmond, Wash.-based Microsoft Corp. saw something they didn’t like: The momentum was building for a settlement between Microsoft and the federal government, which had been the states’ partner in the case since 1998. A group of states — led by California, home of some of Microsoft’s biggest rivals — would have to go it alone. It was time to find a trial lawyer. California Chief Deputy Attorney General Peter Siggins got on the phone with several of his counterparts. One name, he says, kept coming up for lead attorney: Brendan Sullivan Jr. of Washington, D.C.’s Williams & Connolly. “We were looking for someone with a national reputation, someone that the states could rally around,” says Siggins, who headed the search. Sullivan, 59, came on board Oct. 25. By the end of the next week, he had made his first appearance before U.S. District Judge Colleen Kollar-Kotelly of the District of Columbia. “I am trial counsel if there is going to be a trial,” Sullivan told the judge at a Nov. 6 hearing. Then last week, mediator Eric Green helped produce an agreement between the U.S. Department of Justice and Microsoft. Nine of 18 states signed on, and two or three more might end up doing the same. But California, joined by a handful of other states, is not settling. Instead, the antitrust team from its attorney general’s office is preparing for trial under the leadership of Sullivan, the white-haired litigator who first gained national fame in 1987 when he represented Lt. Col. Oliver North before Congress in the Iran-Contra hearings. Although Sullivan didn’t participate in the settlement negotiations, his presence was felt from the moment he came on board, a key state official says. “His reputation is stupendous, and if anything, he has exceeded it in the excellence of the advice he has given us,” says Connecticut Attorney General Richard Blumenthal, whose state is among those that balked at the proposed settlement. “He’s already given us a good deal of advice concerning litigation and legal strategy,” he says. Blumenthal declines to discuss the details of that advice, and Sullivan, through a spokeswoman, declines comment for this article. It’s clear that Sullivan — a D.C. insider at a firm with a reputation for fierce representation of its high-profile clients — is facing possibly the most difficult challenge of a notable career. Not only will Sullivan have to deploy his legendary capacity for long hours and his nationally known courtroom skills, but also he will need to steer deftly through what experienced antitrust lawyers view as uncharted waters. No antitrust case, let alone one that tackles the conduct of an iconic industry leader such as Microsoft, has ever proceeded at the same time toward settlement under the Tunney Act of 1974 and toward litigation with well-financed parties that decline to settle. The split between Justice and the states is leading the case down this unprecedented double track. Kollar-Kotelly has ruled that discovery can proceed in the states’ case even as comments pile up during the Tunney Act’s 60-day period of public notice. The comment period will begin later this month, as soon as the settlement is published in the Federal Register. The trial — which will be limited to the issue of the appropriate remedy for Microsoft’s monopolization of the PC operating systems market — could begin next spring. A prehearing conference is set for March 4. The course chosen by California and the other states on its side seems a treacherous one. Kollar-Kotelly has made clear her desire for a settlement. And whether a judge can or will accept a Justice consent decree as being in the public interest, yet decide after a trial that Microsoft needs to be restrained more tightly, remains to be seen. Moreover, at this stage the states will face not only Microsoft’s skilled litigation team but also their former ally, the Department of Justice. Now that Justice has reached an agreement with Microsoft, its antitrust lawyers may well tell Kollar-Kotelly that imposing more onerous restrictions on the software company will hurt competition and the national economy. And in a Nov. 8 court order, Kollar-Kotelly noted that the states that chose to settle with Microsoft “will also play an active role” in advocating the settlement. “We all know what we’re up against and what our mission is,” says Siggins. Sullivan is not an antitrust specialist, but is the latest in a long line of nationally known trial and appellate litigators who have stepped into the Microsoft case. At an earlier stage, Microsoft tapped appellate expert Carter Phillips of the D.C. office of Sidley Austin Brown & Wood. It recently turned to former Illinois U.S. Attorney Dan Webb of Chicago’s Winston & Strawn to join a team led, as it has been from the start, by attorneys from New York’s Sullivan & Cromwell. Justice, which tapped David Boies to take the lead in the celebrated 1998-99 trial before Judge Thomas Penfield Jackson, recently brought in Philip Beck of the Chicago litigation boutique Bartlit Beck Herman Palenchar & Scott. Last year, the states hired Hogan & Hartson’s John Roberts Jr. to handle their side of the D.C. Circuit appeal in the case. The continuing battle of the big names is no coincidence, says Iowa Attorney General Tom Miller. “DOJ had Phil Beck. Microsoft had Dan Webb. We wanted to have a lawyer of similar stature,” says Miller. California’s Siggins is quick to note that his state didn’t hire Sullivan alone. His fellow Williams & Connolly partners Steven Kuney, an antitrust expert, and former Air Force Secretary F. Whitten Peters, who has an expertise in software law, are also going to be in the courtroom. The group includes several firm associates as well, and all the states are contributing lawyers from their attorney general’s offices to the cause. This includes, in California’s case, Tom Green, the head of the office’s Antitrust Section. The money to pay Williams & Connolly comes from a special appropriation of $3.7 million that the California legislature approved last year. The money was not earmarked specifically for Microsoft but for antitrust litigation in general. Siggins says that although the agreement between the state and the firm has not been put into final form yet, Sullivan has agreed to accept “some reduction” in his usual hourly fee because the client is a government rather than a private company. Home to major Microsoft competitors such as Sun Microsystems and Hewlett-Packard, California without question has the biggest stake in the case. The Associated Press reported last week that Microsoft rivals lobbied state lawmakers and Gov. Gray Davis last year to set aside money precisely so that there could be a possible new source of funding for the Microsoft case. The other states and the District of Columbia, which also remains in the case, are not legally obligated to reimburse California. But Siggins says he will pass the hat for voluntary contributions. “We’re going to explore this with our fellow plaintiffs,” he acknowledges. “But what’s important is that no state should feel that it can’t go forward because of a lack of resources.” Siggins says the $3.7 million “won’t be exhausted in the initial contract. But we’re not kidding ourselves. It can go way up from here.” In the years since the case was filed in 1998, the states have spent an estimated $20 million on the litigation, and Justice says its Antitrust Division spent $11.5 million through mid-2000. One state AG, Darrell McGraw Jr. of West Virginia, says, however, that Sullivan does not represent him. “We don’t have money to pay for him,” says McGraw. “We are impecunious here in West Virginia.” McGraw also says the state has a possible conflict of interest, which he declines to specify, involving Williams & Connolly and unrelated litigation where West Virginia is a party. McGraw says West Virginia will be represented at trial by a staffer in his office. Even so, McGraw isn’t sure that in the end his state would be of the same mind as California and the others. “As they mold the remedy, it could be that [Sullivan's] clients have a different remedy in mind than we have,” he says.

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