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New MS contract clause caters for forced company breakup

Lawyers being ultra-lawyerly, or do we see the big one coming?

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A reader yesterday essentially cracked our April Fool's jest (that Judge Jackson would rule on US v Microsoft on 25 November, which is of course Thanksgiving Day in the USA). Thanksgiving for what? Well might you ask. (see story). A District Court source in Washington said yesterday said that "The findings of fact will not issue on October 22", so the bets are now on for a future Friday. Judge Jackson has asked that his chambers not be called, and said that no other notices would be posted. The reason for Judge Jackson deciding to issue his findings late on a Friday is to minimise the effect of his ruling on the stock market. This does suggest that he will be mostly finding that the DoJ's version of the facts is, well, more factual than Microsoft's. Microsoft itself seems to be confirming this expectation, since it has been putting some funny legal language in its contracts recently. What other explanation could there be for a pessimistic clause that says that the contract may be transferred to "any successor to its business that results from a reorganisation required under a court order as part of the pending United States trust case"? Dow Jones quotes an anonymous spokesman saying that there's no Microsoft policy to include such language, that he was unaware of any such language, and that perhaps it was requested by Microsoft's business partners. This doesn't wash, because lawyers and their clients have confirmed that the clause was invented by Microsoft. General opinion seems to be that the assignment clause is a product of "careful lawyering", but it is of course quite possible for the court to negate any contractual clauses or contracts. Meanwhile, Microsoft's share price rose 7 per cent yesterday, to regain the ground that Ballmer lost. The unanswered question is whether Maffei was acting under orders to be upbeat, in order to drive the share price up, and make Microsoft employees and investors more cheerful. ®

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