Talks between the Department of Justice and Microsoft broke down over the weekend. The following is a statement released April 1 by U.S. Court of Appeals Chief Judge Richard Posner in Chicago, the talks’ mediator.
I regret to announce the end of my efforts to mediate the Microsoft antitrust case. Since my acceptance of this assignment on November 19 of last year, I have endeavored to find common ground that might enable the parties to settle their differences without further litigation. Unfortunately, the quest has proved fruitless. After more than four months, it is apparent that the disagreements among the parties concerning the likely course, outcome, and consequences of continued litigation, as well as the implications and ramifications of alternative terms of settlement, are too deep-seated to be bridged. This result is disappointing not only because of the amount of time that so many busy professionals, officials, and executives have devoted to the mediation, but also because the public interest would be served by avoiding further litigation, with its potential for unsettling a key industry in the global economy. I believed when I undertook this assignment that it was in the national interest that the case be settled, and I believe it even more strongly today.
Mediation is a confidential process, and I do not intend to make any public or private comments on the merits of the litigation, the negotiating positions of the parties, the individuals involved in the negotiations, or the content of any of the communications between the parties’ mediation teams and myself. I can, however, without impropriety, say this much: Despite my strenuous efforts to maintain the confidentiality of the mediation, there has been a good deal of leaking and spinning, and this leaking and spinning have given rise to news reports that have created a misleading impression of several aspects of the process and that should be heavily discounted by anyone interested in hewing to the truth. One reason for my issuing this public statement is to correct the impression created by some news reports that there were no serious negotiations over possible terms of settlement until two weeks ago. On the contrary, almost twenty successive drafts of a possible consent decree, evolved over the past months, had been considered by the parties before it became clear late last night that the case would not settle, at least at this stage of the litigation. I particularly want to emphasize that the collapse of the mediation is not due to any lack of skill, flexibility, energy, determination, or professionalism on the part of the Department of Justice and Microsoft Corporation.
I do not intend to make any further statements about the mediation.
I would like, in closing, to commend Judge Thomas Penfield Jackson for his efforts to bring about a settlement, and to thank him for according me the honor of asking me to mediate this complex, fascinating, and immensely important case.