August 24, 2001 5:10 PM PDT

New Microsoft judge in the spotlight

The newest judge to preside over the fortunes of the world's largest software company may be best known for her decision to spare thousands of Canada geese from government-orchestrated slaughter.

U.S. District Judge Colleen Kollar-Kotelly will oversee all aspects of the federal government's sweeping antitrust case against Microsoft, but the longtime Washington, D.C., resident has little experience with antitrust cases--or business cases in general.

The U.S. Court of Appeals for the District of Columbia Circuit appointed Kollar-Kotelly, whose background rests in criminal law, on Friday after a computer selected her randomly from a field of 10 candidates.

Kollar-Kotelly's courtroom experience includes numerous murder cases, a controversial call on agricultural biotechnology and the labeling of some genetically altered foods, and a high-profile decision that awarded $355 million to an American killed by Iranian terrorists. The Humane Society of the United States also lauded Kollar-Kotelly for her decision to ban the slaughter of migratory birds in Virginia.

Her lack of experience in business cases, specifically antitrust cases, worries some legal experts. They fear generalist judges could make decisions that aren't as informed as those with more first-hand knowledge.

"This is a huge problem in antitrust," said Luke M. Froeb, associate professor of management at the Owen Graduate School of Management at Vanderbilt University in Nashville and a former economist with the Antitrust Division of the Justice Department during the Ronald Reagan and George H.W. Bush administrations.

"Think about the nuances of business cases: If you don't understand bundling, for example, you're immediately suspicious," Froeb said. "Only when you have a lot of experience and knowledge do you start thinking about the alternatives and nuances. This case is very nuanced."

Froeb said the idea of allowing a computer to randomly select judges doesn't do justice to the amount of business and technological savvy required for this particular case. (The computer picked Kollar-Kotelly from 10 candidates; U.S. District Judge Thomas Penfield Jackson, the previous judge in the Microsoft case, was not in the running, nor was Chief Judge Thomas Hogan, who had the prerogative of turning down new case assignments.)

"To put this before the court and ask one of these judges to make a decision--you may as well as be flipping a coin," Froeb said.

Conquering the learning curve
Other antitrust experts were more optimistic. They noted that judges, based on the volume of diverse cases they handle, are generally adept at immersing themselves in the intricacies of a case--even if they had little or no knowledge of the subject previously. Their careers are based on their ability to climb steep learning curves, proponents say.

Regardless of Kollar-Kotelly's ability, the appointment of any new judge on the case is likely to stall the proceedings.

James F. Blumstein, an antitrust specialist and centennial professor of law at Vanderbilt University, said Kollar-Kotelly will likely need several weeks to read the most basic documents and the Court of Appeals briefing. That could give Microsoft more time to launch its newest product, Windows XP, which critics say also may violate antitrust rules.

Windows XP, Microsoft's new operating system, was released to manufacturers Friday and will arrive on store shelves in late October.

"This judge isn't going to start taking any measures before the first week in October," Blumstein said, noting that Kollar-Kotelly is highly unlikely to make any decisions on XP.

"This is a decision that the government and the states will have to trigger if they want to stop this," Blumstein said of XP. "It would be unwise and set the wrong tone for the judge to intervene absent a request from the party. Judges are referees, not players, in these cases. If she intervenes, it suggests she's got an agenda."

Legal experts--from Microsoft attorneys to armchair judges around the world--are likely to scrutinize Kollar-Kotelly. The stakes are high: Jackson, the previous judge in the Microsoft case, was removed from the position in an embarrassing vote of no confidence by his peers.

In its order upholding eight separate antitrust violations against Microsoft on June 28, the Court of Appeals struck down Jackson's remedy, which sought to break Microsoft into separate operating system and software application companies. The Court of Appeals threw out Jackson's order partially because he failed to hold his own remedy hearings. The seven appellate judges also removed Jackson from the case largely because Jackson gave interviews to journalists regarding details of the case.

Kollar-Kotelly's appointment puts the judge, who got a law degree from Catholic University of America and who spent four years in the Justice Department's criminal division, in a blinding spotlight. Although she has presided over numerous high-profile cases since Bill Clinton appointed her to the U.S. District Court for the District of Columbia in May 1997, none titillated the media as the Microsoft case likely will.

Kollar-Kotelly already has some insight into the media. In September 2000, she ruled that a reporter who breaks a promise to a news source isn't violating a contract under Washington or Virginia law. She dismissed a lawsuit brought by Julie Hiatt Steele, a minor figure in the Clinton impeachment scandal, against Newsweek reporter Michael Isikoff.

After graduating from law school, Kollar-Kotelly served as a law clerk to Judge Catherine Kelley at the District of Columbia Court of Appeals. In October 1984, after serving as chief legal counsel to St. Elizabeth's Hospital, she took an appointment as an associate judge at the District of Columbia Superior Court. There she served as deputy presiding judge of the criminal division from 1995 until her appointment as a federal judge.

Pills, geese, gene-altered crops and terrorists
In one of her rare corporate cases, Kollar-Kotelly allowed the Miami-based pharmaceutical and veterinary product developer Ivax to keep selling a generic version of the cancer drug Taxol. The April ruling was a disappointment for Ivax rival American BioScience, which asked Kollar-Kotelly to order federal regulators to revoke the generic drug's approval. The rivals, in addition to Bristol-Myers Squibb, are fighting over the drug, which had sales of more than $1.5 billion last year.

Kollar-Kotelly also made news in December 1999 after she slapped John McBryde with the worst punishment, short of impeachment, to ever hit a federal judge. She and other judges banned the hot-tempered Fort Worth U.S. district judge from hearing new cases, then threw out most of McBryde's case against the jurists who disciplined him.

Kollar-Kotelly made what seems to be her most publicized decision in July 2000, when she ruled against the U.S. Department of Agriculture and supported an anti-slaughter stance in a migratory bird case. Articles about the decision were published in the nation's biggest newspapers, and animal-rights advocates hailed the judge's decision.

In that case, Kollar-Kotelly ruled that the USDA. could not conduct roundups of Canada geese--large birds that have been known to disrupt flight patterns and swarm public parks--without a permit issued by the Interior Department's Fish and Wildlife Service.

Her decision contradicted a 1997 rule from the Clinton administration, which allowed the USDA and other federal agencies to kill otherwise protected migratory birds without permits from the Fish and Wildlife Service. When the USDA attempted to conduct roundups and slaughters at dozens of sites in northern Virginia in 1997, the Humane Society of the United States, the Animal Protection Institute and Citizens for the Preservation of Wildlife challenged the program in a federal lawsuit, arguing that the geese and other migratory birds were protected under provisions of the Migratory Bird Treaty Act.

The Humane Society praised Kollar-Kotelly for standing up to the government rule, but the 58-year-old has also ruled in favor of federal agencies.

In September 2000, she sided with the Food and Drug Administration in a case that angered critics of agricultural biotechnology. They wanted the judge to reverse an 8-year-old FDA policy permitting gene-altered crops, such as herbicide-resistant soybeans, to have the same regulatory controls and label requirements as crops produced by traditional breeding methods.

Kollar-Kotelly sided with the FDA, determining that the biotech critics failed to prove that the FDA violated procedural and environmental laws in establishing the policy or that the agency should mandate labeling of the foods. Unless the agency decides biotech ingredients are materially different from conventional products, it "lacks a basis upon which it can legally mandate labeling, regardless of consumer demand," she wrote.

Another decision that attracted media attention came in September 2000. That's when she ordered the Iranian government to pay $355 million to the family of Marine Lt. Col. William R. Higgins, who was taken captive and killed in 1989 while on a United Nations peacekeeping mission in Lebanon. Higgins was kidnapped in February 1988, one of 18 Americans taken hostage, and the 44-year-old father was killed 18 months later.

Robin L. Higgins, a retired Marine lieutenant colonel, said terrorists backed by Iran were behind her husband's kidnapping, torture and death. Kollar-Kotelly said expert witnesses convinced her that Iran controlled Hezbollah, the group that she found responsible for the acts. It was the fifth and largest award that Iran has been ordered to pay since a 1996 U.S. law meant to provide recourse in the courts to American victims of terrorist acts abroad.

More recently, Kollar-Kotelly has presided over urban crime cases.

On Thursday, a day before she was given the Microsoft case, she began proceedings in Washington for an 11-year police veteran accused of using excessive force during a traffic stop in Northwest Washington three years ago. Officer Lawrence K. Holland was arrested in March on federal assault and civil rights charges because of a June 1999 skirmish in which he allegedly beat Tionne Jordan with his fists and a blackjack.

In late July, she was assigned to hear the case of Kofi Apea Orleans-Lindsay, who was accused of killing Maryland state trooper Edward M. Toatley. The 24-year-old convicted drug dealer from Silver Spring, Md., was charged with killing a person who was aiding a federal investigation, taking part in a long-standing drug conspiracy and illegally using a firearm. Kollar-Kotelly set a Feb. 4 trial date.

Kollar-Kotelly seems to have little sympathy for criminals. In July 1999, she sentenced the leader of a telemarketing company that allegedly cheated customers of more than $ 1.6 million to a 63-month prison term.

She took little pity on a 33-year-old man who pleaded guilty to money laundering, and attorneys said that many of the roughly 850 victims were elderly.

"Clearly this was a crime of greed, victimizing those who had already been victimized," Kollar-Kotelly said.

 

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