Jacking in from the "Not On My Watch" Port:
Washington -- All hell is breaking loose inside the Antitrust division of the Justice Department. The Clinton's Administration's version of a Doberman Pinscher, Antitrust Top Cop Anne Bingamen, is acting more like a poodle these days, leaving the vaunted antitrust division's lawyers demoralized and disgruntled and ready for change.
And Wednesday, it's change they got: The Antitrust Division will bring in a legal gunslinger to argue its case before a U.S. Appeals Court in Washington, as Justice tries to get the three judge panel to overturn a lower court decision that scrapped the 1994 Antitrust Microsoft Settlement decree.
Joel Klien, until recently President Clinton's Deputy Counsel, will pitch hit for Bingamen, whom he now works for, according to an article by Wendy Goldman Rohm in Interactive Week, a biweekly news magazine.
Meanwhile, Bingamen, trying to salvage what's left of her reputation, is likely to issue an order early next week that blocks the Microsoft-Intuit deal, Interactive Week reports. In fact, a behind the scenes game of political brinkmanship is being carried out in almost daily conversations between Bingamen and Microsoft as the antitrust chief tries to get Microsoft's Chief Counsel William Neukom to blink before the order goes public.
The tough talking Bingamen has proved to be more bark than bite; her decision to wrestle the Microsoft Antitrust case from the Federal Trade Commission, where it had languished for years, was a matter of personal pride that back-fired.
Bingamen went gunning for Microsoft as a way to pump up her political currency; the eventual settlement, which U.S. District Judge Stanley Sporkin recently refused to sign, has been widely derided as going too soft on the software giant. Instead of the boom that Bingamen predicted, it turned up bust.
With Bingamen's political capital nearly bankrupt, owing to her extremely poor showing before Sporkin -- at times she nearly broke into tears -- the Justice Department has decided to let Klien take center stage in U.S. Appeals Court here on Monday, as he tries to get the three-judge panel to overturn Sporkin's maverick decision to toss out the 1994 antitrust settlement with Microsoft.
Klien will argue that Sporkin "overstepped his authority by rejecting the settlement," Interactive Week reports.
The arrival of Klien is a move to restore some teeth into the antitrust division, according to senior level Administration sources. The White House is currently lobbying Congress to give the antitrust division a beefed up roll in overseeing the future mergers and competitive environment of the telecommunications industry. A bill currently headed for the Senate floor, possibly by the first week in May, essentially guts all Justice antitrust oversight, a provision the White House is opposed to.
Bingamen's lap dog approach to antitrust actions is seen as hurting the Administration's case for a larger antitrust role for Justice, according to White House sources. Installing Klien, who has argued at least 10 cases before the Supreme Court according to Interactive Week, is a calculated political move to restore some muscle to the beleaguered division. Klien currently serves as Bingamen's lieutenant.
Klien will serve up his best to a panel made up of two conservatives and one liberal. Legal experts are split on whether Klien will be able to convince the appellate judges to overturn Sporkin's decision.
Sporkin is known as a dead bang eccentric who presides over his court room as if it were a break away republic of the former Soviet Union. When Bingamen first appeared before him to defend her the Microsoft settlement, Sporkin lit into her at every turn when she had the temerity to try and tell him what he "had to do." Sporkin almost visibly came out of his chair at those comments: "This is my courtroom, my rules," he told her in no uncertain terms.
Most experts agree that Sporkin's decision was made more on the gut feeling that Justice had screwed the pooch in its settlement agreement with Microsoft, rather than on a strict point of law.
Yet it will be that strict point of law that Klien will argue before the Appeals court. The Justice Department contends that Sporkin's decision violates the intent of the Tunney Act, which only allows a judge to vote up or down on the findings of the original antitrust investigation. Sporkin was convinced that Bingamen's group didn't probe far enough and axed the settlement. By doing so, Klien will argue, he overstepped his judicial authority, according to Interactive Week.
Regardless of the appeals court decision, another antitrust action could be in the wings at Justice, Interactive Week reports, "based on the continuing predatory behavior on the part of the software giant."