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Taking full advantage of her first opportunity to publicly express her views on the United States v. Microsoft Corp. antitrust case, U.S. District Judge Colleen Kollar-Kotelly sent a precisely calibrated message to the lawyers for the government and the software giant: Settle the case. In a sternly worded Sept. 28 order and in her remarks from the bench at a scheduling conference the same day, Judge Kollar-Kotelly made her thoughts indisputably clear. “You have requested a total of 28 attorneys to be here today,” she told both sides at the end of the 45-minute conference. “You have plenty of litigation resources. And if you don’t want to use all of these resources, settle the case. That’s one of the main reasons that cases settle.” Kollar-Kotelly took over the case on Aug. 24 after the U.S. Court of Appeals for the D.C. Circuit removed Judge Thomas Penfield Jackson. In her order, Kollar-Kotelly directed that settlement talks begin immediately and continue through Nov. 2. All other procedural aspects of the case are suspended. If the parties can’t settle the case on their own by Oct. 12, they are to come up with the name of a mediator. If they can’t agree on a name, Kollar-Kotelly said she will appoint a mediator herself. In a status report last month to the judge, both sides had said settlement talks had already begun. But the two sides seemed far apart. An earlier four-month effort by Judge Richard Posner of the 7th Circuit to mediate the case, however, proved fruitless. Kollar-Kotelly linked the need for a quick settlement with the aftereffects of the recent terrorist attacks on New York and Washington. “In light of the recent tragic events affecting our nation, this court regards the benefit which will be derived from a quick resolution of these cases as increasingly significant,” the judge wrote in her order. She implied that the millions of dollars spent on continuing the long-running antitrust litigation could be put to better use by both sides in rebuilding the damaged national economy. “The court expects that the parties will act in good faith and will engage in an all-out effort to settle these cases, meeting seven days a week and around the clock, acting reasonably to reach a fair resolution,” Kollar-Kotelly wrote. The judge also indicated from the bench that, if the case does not settle, a hearing on the antitrust remedy for Microsoft’s monopolization of the PC operating systems market would begin around March 11, 2002. Last June, the D.C. Circuit, in addition to disqualifying Jackson from the case for perceived bias against Microsoft, upheld his monopolization finding but sent the case back to the trial court for the remedy hearing. On Sept. 6, the Justice Department and 18 state attorneys general who had brought the case announced that they would not seek to reinstate Jackson’s order breaking the software company in half. At the conference, Kollar-Kotelly flatly rejected a recent Microsoft proposal — that before the remedy hearing begins, she ought to first hold legal arguments on the propriety of the remaining remedies that the government wants to impose. “It’s premature to address the appropriateness of specific provisions at this point,” Kollar-Kotelly said at the status conference. “I won’t give an advisory opinion or discuss the scope of relief outside the context of the evidentiary hearing.” Kollar-Kotelly asked the government to submit its proposals for relief by Dec. 7. Microsoft must reply by Dec. 12. In addition to John Warden, Microsoft’s longtime lead outside counsel from New York’s Sullivan & Cromwell, the conference featured a new player for Microsoft — Dan Webb, the well-known litigator from Chicago’s Winston & Strawn. In his brief responses to Kollar-Kotelly in open court, Webb took a much more conciliatory and deferential tack than that generally taken by Warden and other company lawyers in the four-year-old case. “We agree with you, your Honor, that you can enjoin acts of the same character and nature as those involved in the violation,” Webb said. “But it appears to us at least that the government is seeking a remedy greater than what is tailored to address these wrongs.” Warden addressed the judge more combatively. At one point he almost peevishly ticked off a list of procedural problems that he had with various of Kollar-Kotelly’s rulings.

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