Since shortly after U.S. District Judge
Thomas Penfield Jackson
delivered his stinging Conclusions of Law on
alleged antitrust behavior Monday afternoon, I've been talking to prominent plaintiffs' lawyers around the U.S. about how the flood of civil suits now being organized might play out.
These suits are a huge risk for Microsoft -- with a price tag that could dwarf the costs of meeting even Judge Jackson's toughest final ruling.
Among my most interesting conversations was a long talk Wednesday with Cincinnati attorney
, leader of a group of eight plaintiffs' lawyers who have banded together to press coordinated demands for relevant documents in the "discovery" phase of their pending actions against Microsoft.
This all-for-one-and-one-for-all approach has become commonplace in class actions: Often the handful of lawyers who are first to the courthouse, and wind up representing very large numbers of members of classes, jointly fund extensive storage, indexing and retrieval systems for their trials, sharing both the documents and the cost of gathering them.
Chesley said Microsoft is digging in its heels on the discovery issue, refusing, so far, to provide much of anything to plaintiffs' lawyers. "I haven't seen this kind of behavior in 15 years," Chesley said Wednesday. "I guess Microsoft has just never faced this kind of action before."
I asked Chesley if he thought it was a lay-down that he and his cooperating attorneys would eventually get what they were seeking. "Oh sure," he said. "That's pretty straightforward. Now we're trying to get documents from the
Department of Justice
action in Washington, and also from the suit against Microsoft by
, which was settled in January. We'll get them."
Chesley, who estimated that the eight lawyers in his group represent about three-fourths of the claims already filed against Microsoft, and will eventually represent 90 to 95% of all claimants -- argued that the damages ultimately assessed against Microsoft could be far higher than presently believed.
"We're not only looking at actual damages from monopolistic pricing," Chesley said, "but also at the cost for plaintiffs of not being able to buy the competing technologies which were never allowed to come to market because of Microsoft's illegal actions."
Some have speculated that original equipment manufacturers (OEMs), which license
from Microsoft to pre-install on the PC systems and servers they build and sell, could be among the litigants against Microsoft. On one hand, they probably wouldn't want to antagonize their ongoing partner, Microsoft, by going to court against them. But on the other, their boards of directors might worry that they have a fiduciary duty to their shareholders to pursue Microsoft in court, lest they walk away from huge sums in potential damage awards.
Chesley added another angle to the OEMs' dilemma: "Those OEMs also have to think about whether they have some liability here, too -- whether they were in fact acting as Microsoft's agents in these antitrust violations."
How long might it take to get these suits through the courthouse doors? Chesley thinks the timeline will be a lot shorter than some others I've spoken with. "I think that once we get this discovery process rolling," he said, "it shouldn't take more than a year to a year and a half to get to trial. Of course, appeals will take longer."
And just how much might the eventual tab for Microsoft -- and its shareholders -- run? Beyond a throwaway "easily into the billions" response from one plaintiffs' lawyer I spoke with, none of the lawyers would address that question.
But litigation like this tends to grow over time. Just as with tobacco litigation over the past few years, plaintiffs' progress tends to stall unless and until there's one high-profile win for a plaintiff. Then settlement becomes a lot more attractive for the defendant -- and in turn, lots more plaintiffs come out of the woodwork. It's a vicious cycle for defendants.
In effect, Microsoft is shortly going to be hiring and running a huge law firm, devoted to managing and defending these civil suits. That cost alone is going to be very substantial -- perhaps as much as a billion in lawyers' fees and expenses, before the last case is closed.
Add in trebled-damages awards, and the cost of settling at least some of these cases -- which could have been cut off at the knees, many argue, if Microsoft had settled its way out of the DOJ action -- and the total cost of these civil cases could far exceed any penalties assessed by Judge Jackson, plus the business costs of operating under the tough new rules that seem to be a given here.
A few weeks ago, I did some work on what Microsoft's share price "ought" to have been around the first of March, absent this antitrust litigation in Washington. My answer -- now interesting, perhaps, but useless -- was about 185 per share, or about twice Wednesday's close.
It looks as if despite Microsoft's continuing product successes, the costs of the antitrust litigation, and this coming flood of civil cases, could keep Microsoft away from that kind of valuation for a long time to come.
Tomorrow: Some odds on Microsoft's ability to "play the George W. Bush card" -- the potential benefits of delaying as long as possible, until the possible election of a new Republican administration in November.
Jim Seymour is president of Seymour Group, an information-strategies consulting firm working with corporate clients in the U.S., Europe and Asia, and a longtime columnist for PC Magazine. Under no circumstances does the information in this column represent a recommendation to buy or sell stocks. At time of publication, neither Seymour nor Seymour Group held positions in any securities mentioned in this column, although holdings can change at any time. Seymour does not write about companies that are current or recent consulting clients of Seymour Group. While Seymour cannot provide investment advice or recommendations, he invites your feedback at