Microsoft Judge Has Few Antitrust Rulings
A U.S. district judge was named Friday to preside over the Microsoft antitrust lawsuit, putting her in a position to determine the fate of one of America’s richest, most powerful corporations.
Colleen Kollar-Kotelly, a respected jurist, takes the helm of one of the most bitterly contested antitrust battles in U.S. history with a scant record on the topic. She has spent most of her 35-year career handling criminal cases in the nation’s capital and as a chief attorney for a government-owned psychiatric hospital.
Kollar-Kotelly, 58, arrives at a critical juncture in the long-running Microsoft dispute and will decide how to punish the company for violating federal antitrust laws.
The much-anticipated appointment--determined by a computerized lottery--sent both sides scrambling to review her rulings for any clues as to how she might approach the landmark case.
“It looks like she has virtually no antitrust experience on the bench,” said Herbert Hovenkamp, a University of Iowa law professor whose work has been cited in the case. He said a computerized search of her rulings yielded only two routine approvals of antitrust settlements between companies and the government.
Her record on the issue makes it difficult to predict how she might approach the case. But legal experts said her lack of antitrust expertise would not be a liability.
“She’s going to approach the issues with an open mind,” said Kenneth Starr, the former judge and Whitewater prosecutor who represents some of Microsoft’s opponents. “Not infrequently, judges are faced with new areas. That goes with the territory.”
Attorneys who have appeared before Kollar-Kotelly say she has a somber, no-nonsense demeanor. She is considered a tough sentencer but also displays a slight liberal bent. Before she was appointed to the federal bench, she spent 13 years in District of Columbia Superior Court, overseeing some gruesome murder cases. Before that, from 1972 to 1984, she worked at St. Elizabeths Hospital in Washington, which began as a government-owned insane asylum for wounded Civil War veterans.
“She is bright and capable, and she won’t dawdle,” said Stanley Sporkin, the former federal judge who oversaw a 1995 consent decree between Microsoft and the Justice Department.
Among her recent decisions, Kollar-Kotelly ruled this year that Ivax Corp. could continue selling a generic version of the cancer drug Taxol despite complaints from rival drug maker American BioScience. In October, she dismissed a lawsuit that attempted to force the government to require labels on genetically engineered food.
Kollar-Kotelly was selected from a list of eligible judges at the District Court in Washington.
Half of the District Court’s judges were eliminated from the draw, including Judge Thomas Penfield Jackson, the previous Microsoft judge, who was disqualified by an appeals court for discussing the case with reporters. The others recused themselves for unspecified reasons.
There was no official word on when the parties will reconvene in court.
Kollar-Kotelly couldn’t be reached for comment.
She started her legal career in the 1960s as a Justice Department criminal prosecutor and ascended to the federal bench in 1997, nominated by former President Clinton. She graduated from Columbus School of Law at Catholic University in 1968.
A native of New York, Kollar-Kotelly is married to John Kotelly, a well-known attorney who has represented large corporations against the government. He also represented Clinton’s lead Secret Service agent, Larry Cockell, in his battle to avoid being forced to testify in the Monica Lewinsky investigation.
On June 28, the appeals court upheld several key elements of the government’s suit, which accused Microsoft of illegally using its monopoly over personal computer operating systems to stifle competition and hurt consumers. But at the same time, the court threw out Jackson’s order to split Microsoft into two companies.
A third issue--whether Microsoft violated the law by tying its Internet Explorer Web browser to its Windows operating system--was remanded for a new trial.
Microsoft is asking the U.S. Supreme Court to throw out the entire ruling and give the company a new trial, based upon Jackson’s misconduct. If the Supreme Court decides to hear the case--which experts say is unlikely--proceedings in Kollar-Kotelly’s court would be delayed. The Supreme Court is expected to decide whether to accept the case as early as late September.
In the meantime, the government is expected to push hard to resume the case. “We’re anxious to proceed,” said Gina Talamona, a Justice Department spokeswoman.
The first step will be a status hearing in the next few weeks, at which the government probably will be asked whether it plans to retry the one remaining claim. If it declines, the case could move immediately to remedy hearings, which are expected to take several months.
Kollar-Kotelly also may order the parties to make one last attempt at settlement, or appoint a mediator.
A Microsoft spokesman said Kollar-Kotelly will face a more focused case than her predecessor. “The Court of Appeals has drastically narrowed the liability issues being considered,” spokesman Jim Desler said.
For Kollar-Kotelly, the Microsoft case holds both promise and peril. It’s not an easy job, as her predecessors can attest. There are mind-numbing technical issues to consider. Reams of paperwork to read. Rich, powerful parties on both sides of the courtroom. And it’s all conducted under the harsh spotlight of the media.
“This is not a slip-and-fall,” Sporkin quipped. “It’s a difficult case. In terms of media attention, this is near the top.”
The challenge, Sporkin said, will be to cut through complex technology issues and “inside baseball,” and instead focus on what’s best for consumers.
“The judge has got to make the case relevant,” said Sporkin, a partner at Weil, Gotshal & Manges. “Antitrust law is for the protection of the public.”
His efforts to follow that advice, however, landed him in hot water.
Sporkin was removed from the Microsoft case after he rejected a proposed 1995 settlement as being too soft on the software company, in part based upon a book he read about Microsoft outside the courtroom. The appeals court ruled his extracurricular reading was improper.
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Times researcher Robin Cochran contributed to this report.
