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Charles Bierbauer: What's next in Microsoft case?

Charles Bierbauer  

CNN Senior Washington Correspondent Charles Bierbauer discussed Thursday's Microsoft ruling.

Q: What do you make of the Microsoft decision? What's the future here?

A: The case is being sent to a new judge to assess the penalty here. It has accepted Judge Jackson's finding that Microsoft is in violation of antitrust provisions and has behaved anti-competitively.

But it is severely troubled by the judge's actions, particularly, speaking to media, making comments about the case that suggested he might have had a bias against Microsoft even if he had no specific bias. Logic says it goes back to a new district court judge. There are other variables that come into play, one of which is how aggressively the Justice Department will now pursue this case.


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Justice still has a judgment against Microsoft, a judgment that it used its monopoly power and violated antitrust laws, but it doesn't have a remedy. What it doesn't have is an answer to the question, 'OK, what next?' That's where Judge Jackson had ruled that Microsoft be split. And now the question is, would a new judge arrive at the same conclusion? Would a new judge devise a different penalty? Would it be as extreme or would it be a slap on the wrist? But even before you get to that, you have to get the Justice Department's decision as to how aggressively it wants to pursue this.

The administration now is not the Clinton Justice Department, which brought this case. It's the Bush Justice Department. Conventional wisdom alone will tell you the Bush administration likely will be kinder to corporate America than the Clinton administration would have been.

We only know the Justice Department is pleased that Microsoft has been found to engage in illegal conduct. All along there is at least some speculation that there is a still a negotiated settlement possible here, and certainly when the Bush administration came in, the prospects of some settlement seemed to increase. We haven't heard the answer to that yet. Nor do we know who the lower court judge is, what his disposition is likely to be, and what kind of procedures he would undertake in reviewing the case. So if nothing else, this thing lies some distance down the track.

There is a possibility it will come back before the Supreme Court ... at least in the first instance where the Supreme Court had an opportunity to take this case, it said no thanks and it deferred to the appeals court, even though it could have taken the appeal directly under antitrust provisions.

And the Supreme Court tends to like to see a full record in the lower court before it needs to get engaged. It didn't feel it needed to tangle with this one immediately. And now it might not tangle with it for a while.


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