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. Last Updated: 07/27/2016

Judge Jackson: Suit Should Be Settled Out of Court




WASHINGTON -- In the end, after more than two years, 78 days of trial and thousands of pages of evidence, the final decision for the federal judge overseeing U.S. vs. Microsoft came with enormous reluctance.


Thomas Penfield Jackson, the U.S. District judge who oversaw one of the most important trials in the history of American business, said in an interview that he had little choice but to accept the proposal of the U.S. Justice Department and the states because he wanted to avoid establishing a conduct-restraining order that required an onerous regulatory scheme.


"Given my personal preferences, I'd much prefer to have market forces accomplish as much of the remedy as could be done," Jackson said in an interview Wednesday. "I would have preferred a conduct remedy. I've always thought the best remedy was the one the parties could have negotiated between themselves."


In an hourlong conversation in his chambers, the judge said that rather than see a breakup imposed, the lawsuit could be settled out of court f even now. He urged both sides to "swallow their own reluctance to compromise and reach a remedy that both sides, if not elated by, nevertheless are willing to extend."


Short of that, Jackson said he decided to accept whatever remedy had been proposed by the Justice Department and a majority of the 19 state attorneys general.


"My inclination probably would have been to accept the government's recommendation that a structural remedy was unnecessary in these circumstances," Jackson said. "I have absolutely no desire to become an overseer of Microsoft."


He added: "The less radical the remedy, the more comfortable I am with imposing it."


The federal judge, appointed to the court by U.S. President Ronald Reagan in 1980, emphasized his conservative Republican credentials and noted that he has not always sided with the government in his courtroom. In an earlier case, he rejected a huge recall of automobiles advocated by federal auto-safety administrators.


"It's important you understand what my function is here," Jackson said calmly. "I am not an economist. I do not have the resources of economic research or any significant ability to be able to craft a remedy of my own devising."


As a result, Jackson relied heavily on the work of the government.


As the judge sat at his desk, occasionally puffing on a pipe, he seemed calm and reconciled to his role in antitrust history and this case. In fact, he downplayed it. "It is momentarily important," Jackson said of the trial. "It is certainly not going to be the event that defines the 20th century or the 21st century."


In the interview, rare but not unprecedented for a federal judge, Jackson acknowledged that the case could grow in importance for the Internet age and the "new economy" as it moves to the Supreme Court.


"I would suspect that whatever the Supreme Court has to say when it ultimately gets the case will in large measure chart the direction of the so-called new economy," Jackson said.


Asked if he intended to approve a government motion to send the case quickly to the Supreme Court, bypassing the U.S. Court of Appeals for the D.C. Circuit, Jackson said, "I am favorably inclined towards it. I'll look at whatever is presented to me."


Jackson rebuffed suggestions from Microsoft defenders that he has sided with the government because he is biased or out to get the company: "Believe me, I have no grudge against Microsoft. [Before the case] I knew nothing about them really, other than the fact that they built the software used on my computer."