| Arthur S. Alexion on Mon, 18 Feb 2002 16:50:14 +0100 |
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The District Court (trial court) found that MS had violated anti-trust laws and imposed penalties which included a break up of the company. The Circuit Court (Court of Appeals) upheld (agreed with) the trial court on the issue of liability (i.e. that MS had violated the anti-trust laws), but overturned (disagreed with) the penalty imposed (the break up). Appeals courts very rarely impose their own penalties under such circumstances. Instead they remand (send back) the case to the District Court to gather further evidence and hear further arguments, if necessary, to devise an new penalty in accordance with certain guidelines set forth in the written opinion of the Court of Appeals (i.e. the opinion which affirmed (upheld) in part and reversed (overturned) in part, the original District Court decision). Among the things that troubled the Court of Appeals was their perception that the District (trial) judge, Thomas Pennfield Jackson, showed bias in granting an interview to NPR wherein he discussed the merits of the case while it was still pending to some extent. Because of this perception of bias, they instructed that the District Court assign a different judge to hear the case on remand (when it is reheard on the limited issues that the Appeals court disagreed with). Under the standard procedure the US Supreme Court is not to get involved until the lower courts have had their final say. The US Supreme Court only hears cases that it wants to hear. Only a small minority of appeals from the Circuit Courts are heard by the Supreme Court. The rest become final with the Circuit Courts' decisions. The Supreme Court is supposed to endeavor to hear only those cases with broad national implications, and not simply disputes between the involved parties, no matter how important the case is to the parties involved. The S. Ct. is mindful of the fact that its decisions set precedent to be followed in other cases, and that goes into its decision of whether or not to take a case. Occasionally, the when the parties are confident that their case merits S. Ct. review, will ask the S. Ct. to intervene before the lower courts have had their final say. Arguments for and against this both tend to argue efficiency, but there is usually another motive. In the MS case, the government wished to bypass a Court of Appeals that had already show its hostility toward Judge Jackson. For the same reason, MS argued that the Court of Appeals should not be bypassed. The S. Ct. declined to intervene at this stage, and the case remains at the District Court with a finding that MS violated antitrust laws, and waiting for a new remedy or penalty. The Court is applying heavy pressure on the parties to settle. Settlements cannot be appealed. They are final. This is the Court's motivation to encourage settlement. The parties have their own motivations regarding settlement. In addition to the usual motivations which weigh risks and uncertainties of further litigation, there are political reasons in this case. There is a strong perception that the Bush-Ashcroft Justice Department (some think that phrase is an oxymoron) is less anxious to enforce the anti-trust laws in general, and favors MS, in particular. Based on that perception, Gates and company strongly supported Bush's candidacy. This dynamic is playing a major role in the settlement negotiations. That said, a settlement at this time would mean that the finding that MS violated the anti-trust laws would forever stand. So MS has a disincentive to settle, regardless how favorable the terms. They know there is a possibility that the S. Ct. might eventually take the case and overturn even that finding. For now however -- and likely forever -- there is a finding that MS violated the anti-trust laws. Sorry to be long winded, but I hope some found this helpful. Art
On Wed, 13 Feb 2002, gabriel rosenkoetter wrote: _____________________________________________________________________ Art Alexion mailto:arthur@alexion.com Arthur S. Alexion LLC http://www.alexion.com ---<>--- Click http://signature.coola.com/?arthur@alexion.com to put me in your Palm Address Book
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