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For Deborah Platt Majoras, the timing couldn’t have been worse. On Sept. 28, 2001, U.S. District Judge Colleen Kollar-Kotelly ordered lawyers from the Department of Justice and the Microsoft Corp. to work around the clock for five weeks to try to settle the government’s landmark antitrust case against the software giant. “I went pale,” says Majoras, the deputy assistant attorney general of the Antitrust Division, who had taken over as point person on the Microsoft case a few months earlier. “My wedding was October 6.” Majoras got married as planned, and one month later the case settled, the unfortunate scheduling just one more bump in her action-packed tenure at the Department of Justice. In a lengthy interview in her Main Justice office, Majoras, 39, spoke candidly about the Microsoft experience, offering a rare insider account from a government official on the antitrust case of the decade. “I think [the settlement] is one of the most misunderstood things we’ve seen,” says Majoras, who seems more philosophical than defensive when discussing the November 2001 agreement and the barrage of criticism it unleashed upon the Antitrust Division. Not that Microsoft is out of her life — like a hydra, the case keeps popping up again and again. Microsoft rivals continue to complain that the terms of the consent decree are being violated. The commonwealth of Massachusetts is still pursuing its challenge to the settlement, as are two industry trade groups, which are seeking to intervene in the case. And while Majoras says she can’t confirm or deny the opening of an investigation, the company’s recent alliance with AOL Time Warner has raised a red flag among many in the antitrust bar, who see the deal as potentially anti-competitive. “Being faced with the Microsoft case right out of the box immediately made me put into proper perspective what my role was as an enforcer,” says Majoras, who was a partner at Jones Day when her colleague there, Charles James, recruited her to join him in government service after he was named head of the Antitrust Division by President George W. Bush. “I was switching from a world where I had flesh and blood clients telling me what they wanted to accomplish. Now, I had a new role as attorney, a new client — the public, the U.S. consumer,” she continues. “At the same time, I had multiple constituencies telling me what to do [in Microsoft], saying, ‘Here’s what’s best for the public.’ “But each of these constituencies was self-interested — of course they were self-interested. It wasn’t their job to protect the public. It was mine.” In the face of the immense public scrutiny and pressure that accompanied the Microsoft case, Majoras made this her touchstone. “The stakes were so high,” she says. “I don’t think anything could have prepared me for the intensity of the experience.” ‘TOUGH-MINDED’ A small-town girl, Majoras was raised in Meadville, Pa. (population 13,685), and planned to be a social worker until a teacher suggested she aim higher. She still remembers the advice: “If you want to make the world a better place, work from the top down.” So she went to law school, graduating from the University of Virginia School of Law in 1989. She became interested in antitrust during a two-year clerkship with Judge Stanley Harris (now retired) at the U.S. District Court for the District of Columbia. It was a somewhat rude introduction to the field. Her first antitrust case was Federal Trade Commission v. R.R. Donnelley & Sons Co., a complex, drawn-out merger fight. Majoras recalls sitting in the jury room, filled end-to-end with binders of documents, and thinking in near-despair, “I have to read all these!” But once she got started, her interest in antitrust law was piqued. After her clerkship, she joined Jones, Day, Reavis & Pogue as an associate, working first in the firm’s Chicago office, then in Cleveland, and finally in Washington. She made partner in 1999. Jones Day partner Joe Sims, one of the leaders in the field of antitrust, took her under his wing. Her single biggest assignment: representing pharmaceutical company Aventis in hundreds of class actions stemming from the DOJ’s vitamin price-fixing case. “Her main characteristic is she’s pretty tough-minded,” says Sims. “She’s able to separate the wheat from the chaff, to figure out what’s important and focus in on that to find a solution to the problem.” At the same time, he adds, Majoras is “able to get along with almost everybody. She does it naturally. … Most people like her.” GETTING PERSONAL Majoras says James warned her in advance that the day-to-day responsibilities for United States v. Microsoft Corp. would land on her plate. The case had been filed three years earlier and, at the time, the U.S. Court of Appeals for the D.C. Circuit was deliberating Microsoft’s appeal of the decision by trial court Judge Thomas Penfield Jackson. Jackson had ruled that Microsoft abused its monopoly power and had ordered the company broken in two. Majoras started work at the DOJ in April 2001, two months before James, who was awaiting Senate confirmation. She didn’t have much time to worry about Microsoft, though — no sooner had she arrived as the division’s first political appointee than the General Electric Co.’s merger with Honeywell hit the rocks in Europe. She promptly found herself on a plane to Brussels to meet with European Union antitrust chief Mario Monti, who, Majoras cheerfully concedes, “had no idea who I was.” Majoras tried to convince Monti that the merger, which had been cleared by the DOJ, was not anti-competitive, but to no avail. “They saw the case in a particular way. We saw it differently,” she says. It was the first time that such a split had occurred between U.S. and European antitrust authorities, and it doomed the $45 billion deal. The silver lining, though, says Majoras, is that it prompted greater communication and cooperation between U.S. and EU officials. Within a few weeks of this baptism by fire, the appeals court threw out Jackson’s Microsoft remedy. The case was sent back to the lower court and reassigned to Judge Kollar-Kotelly, of the U.S. District Court for the District of Columbia. With the decision, the behind-the-scenes lobbying by Microsoft foes kicked into full gear. The campaign started the day James was announced as the president’s pick to head the Antitrust Division, says Majoras, when calls began rolling in to him at Jones Day. The message: “Don’t even try to settle the case.” One lawyer, Majoras recalls, “told me if we settle on terms not favorable to the industry, we could forget” ever getting any assistance from Silicon Valley companies again. “I like good, quality advocacy, even if it is self-serving” says Majoras. But this was beyond the pale. “I had lawyers telling me to disregard the judge’s orders,” she says incredulously. “People didn’t want to accept that the Court of Appeals changed the case.” James, who left the DOJ last fall to serve as general counsel of the ChevronTexaco Corp., could not be reached for comment. After the terrorism attacks of Sept. 11, Judge Kollar-Kotelly ordered the parties into settlement talks. “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,” she wrote on Sept. 28. She also told the parties to hire a mediator — an unusual step in a government antitrust case. The parties agreed on Eric Green, a Boston-based mediator who co-founded JAMS/Endispute, and D.C. lawyer Jonathan Marks, previously with JAMS. The mediators limited each side to no more than four lawyers in the room. On the government team were Majoras and Phillip Malone, a career DOJ lawyer who, along with New York’s David Boies, was lead trial counsel. Representing the 20 states also party to the suit were Jay Himes from the New York attorney general’s office and Beth Finnerty from Ohio. On Microsoft’s side were Charles “Rick” Rule, a partner at Fried, Frank, Harris, Shriver & Jacobson; Steven Holley of Sullivan & Cromwell; and Microsoft in-house counsel Thomas Burt and David Heiner. One of the first things the mediators did, says Majoras, was to decree that all meetings would take place at Fried Frank’s D.C. offices at 1001 Pennsylvania Ave., N.W. The reason? “At Justice, there were no refreshments, and no budget for refreshments,” says Majoras. “At Fried Frank, they always had coffee and sodas and snacks.” But when the lawyers were working until sunrise, as they did on Halloween night, a ready supply of coffee was no small consideration. “The most intense experience [of the case] was sitting across the table from Microsoft lawyers for hours at a time, hashing out every word,” says Majoras. She is adamant on one point: the settlement was not politically motivated or dictated by higher-ups. “I never heard word one from the folks in the White House,” Majoras says. “We were left alone to do what we thought was right for the consumer.” Her work has won the praise of Attorney General John Ashcroft. “Debbie is an outstanding attorney and a highly-valued member of the Justice Department leadership team,” he said through a spokeswoman. “Her work on the Microsoft settlement was superb and a great victory for consumers and the economy.” But others don’t see it that way. “The Department of Justice took the biggest appellate victory of a generation and, for settlement purposes, treated it as a loss,” says Kelley Drye & Warren partner Glenn Manishin. Manishin, along with Robert Bork and Kirkland & Ellis’ Kenneth Starr, represents the Computer & Communications Industry Association and the Software & Information Industry Association, which are seeking to challenge the settlement. In order to justify a “pre-ordained result,” Manishin continues, DOJ lawyers “made up arguments that couldn’t and can’t withstand scrutiny and that will have serious doctrinal consequences for antitrust law.” Majoras admits that at times, the censure hurt. “Some of the criticism went beyond saying, ‘We don’t like this. We think it’s an improper legal position.’ Some became more personal, and patronizing, like, ‘Gee, you couldn’t expect these folks to go toe to toe with Microsoft and come out with the better position.’ It helped me to build up some calluses about what it means to be in the public eye.” She felt vindicated when Kollar-Kotelly approved the settlement last fall and one by one, the states moved to settle their cases as well. In June, West Virginia reached a deal with Microsoft, leaving Massachusetts as the last holdout. The company still faces a dozen private antitrust class actions around the country. The biggest ongoing issue with Microsoft for the DOJ is compliance with the terms of the consent decree. “For better or worse, the Microsoft case remains very important,” says R. Hewitt Pate, who was confirmed as head of the Antitrust Division in June. “[Majoras is] in charge of enforcement of the decree.” On June 13, The Washington Post reported that such Microsoft rivals as Novell Inc., Sun Microsystems Inc., and the International Business Machine Corp. are complaining that the company is demanding inflated prices to license key technology, thwarting the terms of the settlement. To date, only four companies have signed up for licenses. “It’s very important to us that we get industry feedback on the licensing terms because we obviously want the decree to work, and if people aren’t signing up for licenses, we want to figure out why that is,” says Majoras. “We are determined to make sure Microsoft complies with everything and if they don’t, we will go to the judge.” DOJ lawyers have already had a “lengthy in-chambers conference” with Kollar-Kotelly about settlement compliance, she continues. “What everyone would like is never to be in contempt proceedings. We’d prefer to reach consensus.” Still, she’s all too aware that industry complaints are often self-serving. “Naturally, we expect that they want us to set these licenses on terms that are favorable to them and less favorable to Microsoft,” she says. In addition, many of these same companies are members of the two trade groups trying to overturn the settlement. “Some of their motivation could be to try to make the settlement look completely ineffective,” she says. “We have to take into account the context [of the complaints] and what their self-interest is.”

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