WASHINGTON -- There's a new rumor making the rounds in Washington: The judge overseeing the Microsoft antitrust trial will release his findings late Friday.
US District Judge Thomas Penfield Jackson recently said that his preliminary decision would come on a Friday at 6:30 p.m. EDT.
He refused to divulge which week he'd act. But the buzz among both proponents and opponents of Microsoft is that Friday is The Day.
Which means preparations, prognostications, and pre-spinning.
The Computer and Communications Industry Association and the American Antitrust Institute -- a proponent of more antitrust cases -- held a telephone conference call for reporters on Thursday.
But -- wait -- would it be Friday after all? Somehow, inexplicably, by the end of the day, the predictive pendulum had swung back to maybe-next-week instead.
"This morning I thought it was an 80 percent chance that we'd have a decision tomorrow. But now I think it's about 50-50," said one Washington attorney who has followed the case.
"I've geared my staff up. We're on standby. We plan to be here on Friday and Saturday," said CCIA President Ed Black. But Black is hedging his bets: He hasn't cancelled weekend plans.
All of the speculation revolves around one brief note from the judge: "The findings of fact in US v. Microsoft, State of New York, et al. v. Microsoft, will issue on a Friday evening at 6:30 p.m."
He'll give both sides two hours notice -- in other words, just as soon as the financial markets close for the week.
That could be important. Microsoft is now part of the Dow Jones industrial average, and an apparent loss at this stage will send the Dow skittering downwards.
The Dow average is weighed by share price, and not market cap, so a drop -- or rise -- would depend on how much MS stock goes up or down. The Nasdaq would be similarly affected, as it was last week when Microsoft's earnings report propelled the technology-laden Nasdaq index to its third biggest one-day point gain.
Both sides agree that the findings of fact will hint at what Judge Jackson is thinking -- and a perceived loss by either MS or the government would give that side more reason to settle.
And if there's no settlement?
Jackson probably won't reach a verdict until next year, and the Supreme Court may not rule until 2003 on whether Microsoft really did violate antitrust laws after all.
William Neukom, Microsoft's general counsel, told Wired News earlier this year he expected a ruling from Jackson around January 2000. "I think it's going to be later this year or early next year," Neukom said.
To turbocharge the appeals process, Jackson could turn to a little-known law that allows trial judges to forward appeals directly to the Supreme Court in important antitrust cases.
"The district judge who adjudicated the case [may enter] an order stating that immediate consideration of the appeal by the Supreme Court is of general public importance," states the law, called the Expediting Act.
But the justices have a habit of pushing such appeals through the usual channels. The Supreme Court has accepted such a case only once in recent history, says George Washington University law professor William Kovacic.
That happened in 1983, when the court signaled 6-3 that it approved of the AT&T consent decree. By affirming the district court's ruling, the court let the landmark Bell divestiture proceed. Jackson has already been repeatedly thwarted by a three-judge panel that has overturned his earlier rulings in favor of Microsoft. The Expediting Act would give him a way to bypass that trio of pesky judges.
If both parties don't settle and the case heads for the Supreme Court, the assumption is that the court will agree to hear the case. Experts say that's particularly likely if the government loses.
Once the case reaches the high court, and if the justices decide to take it, add an additional delay of one-and-a-half to two years. Knotty cases are usually decided toward the end of the court's term, which means the Supreme Court might well rule on it in late June 2002 or 2003.
