Legal Heavyweights Add Punch to the Microsoft Case
WASHINGTON — Through the long years of Microsoft Corp.’s antitrust case, the software behemoth has made a point of hiring some of the nation’s most combative, hard-nosed attorneys to do battle with the Justice Department. That strategy has produced angry judges, frequent rebukes and a guilty verdict in the biggest antitrust trial in a century.
But as the crucial penalty phase of the trial begins Monday, a new face will be among the company’s formidable legal ranks: former Iran- Contra prosecutor Dan K. Webb, a Chicago trial lawyer best known for his unflappable demeanor.
Some experts and observers of the Microsoft case say the arrival of Webb is a sign that the Redmond, Wash.,-based company wants to project a kindler, gentler image while bringing quick closure to the case.
For the 56-year-old Webb, the payoff is the challenge of handling the biggest antitrust case since the breakup of Standard Oil Co. a century ago.
Webb, who has been involved in such high-profile cases as Iran-Contra, the Tylenol poisonings and Big Tobacco, declined to be interviewed. A Microsoft official would not elaborate on why the company hired him.
Experts note that Microsoft recently agreed to modify its controversial settlement with the Justice Department and nine states in an attempt to appease the District of Columbia and nine other state holdouts. Webb’s involvement in the case may have helped mollify Microsoft’s famously combative top executives on the witness stand.
For instance, Microsoft President Steven A. Ballmer--who once had doctors repair his vocal chords after he damaged them by yelling at a Microsoft pep rally--was soft-spoken and chuckled frequently during a videotaped deposition he gave last month at which Webb was present.
Ballmer’s performance stood in contrast to that of Microsoft Chairman Bill Gates. Four years ago, the brilliant software mogul was smug, uncharacteristically forgetful and acted detached in a videotaped deposition played during the antitrust trial.
Microsoft officials say Webb’s appointment does not signal a change in the company’s legal strategy. Webb, who has handled more than 100 jury trials since 1973, will provide additional expertise alongside co-counsel John Warden, a partner at Sullivan & Cromwell, they said.
Microsoft has brought in other lawyers throughout the long-running case, including appellate expert Carter Philips to help with antitrust appeals.
Former House Ways and Means Committee Chairman Dan Rostenkowski (D-Ill.), who’s now a Chicago-area political and business consultant, said it isn’t coincidental that Microsoft may be taking a different approach.
“If Bill Gates is stubborn--and there is every reason to believe that he is--Webb’s the guy you want to have to get him to see the other side,†said Rostenkowski, whom Webb defended after the congressman was indicted on federal corruption charges in 1994. “He’s a hands-on defender and a good listener....My biggest mistake was to [initially] hire a Washington insider instead of hiring Dan to defend me.â€
Rostenkowski, who pleaded guilty to two charges of mail fraud in 1995 and served a 17-month prison sentence, said he doesn’t know whether another lawyer would have spared him punishment. But he said he always “felt comfortable†with Webb and has no regrets hiring him.
Webb honed his career as a U.S. attorney in the early 1980s and later as a veteran trial lawyer with Chicago law firm Winston & Strawn.
As a U.S. attorney, he cracked down on corruption in the judicial system of Cook County, Ill., convicting more than 60 lawyers and police officers on extortion, bribery and other charges. He also won convictions in the 1983 Tylenol extortion case.
Webb’s stature as one of the nation’s leading trial attorneys was perhaps cemented when he was selected in 1990 as chief prosecutor in the trial of former White House National Security Advisor John M. Poindexter.
The rear admiral was convicted on all five criminal charges of deceiving and lying to Congress as part of an effort to conceal the Reagan administration’s actions in the Iran-Contra scandal.
In private practice in recent years, Webb has supplemented his white-collar criminal work with commercial litigation on behalf of Fortune 500 companies.
He defended the tobacco industry against lawsuits brought by the states in a federal court in Texas in 1998. Webb’s clients paid $15.3 billion to the settle the case.
In 1994, he engineered a surprise victory for General Electric Co. by persuading a federal judge to dismiss criminal charges that the company was conspiring with South African trading company DeBeers to fix the world price of industrial diamonds.
“Dan has a clearheaded and credible way of explaining things and mounting the most effective defense possible,†said William J. Baer, a former top lawyer for the Federal Trade Commission who worked with Webb on the GE case.
Baer said Webb’s strength is being better prepared that his opposition.
The GE case may represent the paradigm for how Webb might approach the Microsoft case.
Like Microsoft, GE had a strong-willed chairman, Jack Welch, who vowed never to plead guilty or pay a huge fine to settle Justice Department price-fixing charges. GE also had a huge stable of lawyers when it hired Webb to coordinate its defense.
Webb, who once told the Chicago Tribune that he works such long hours that “I almost never have lunch,†worked on the case nearly around the clock with two dozen other lawyers in a small suite of offices near the court in Columbus, Ohio.
He said he won the complex case by narrowing it to a few key points. “You have to key your brief into what a particular judge is thinking or ruling,†he told The American Lawyer in a 1995 interview.
Webb’s first appearance in the Microsoft case came in October during a scheduling conference before U.S. District Court Judge Colleen Kollar-Kotelly, who is presiding over the penalty phase of the antitrust case.
Webb recently has taken on more prominent roles--helping to prepare potential witnesses in the case, such as Ballmer, and fine-tuning Microsoft’s settlement with the Justice Department.
Some experts wonder whether Webb can quickly master the intricacies of the antitrust dispute.
The case is entering its closing phase this week after a three-year trial and a sweeping federal appeals court ruling last summer that threw out a lower court breakup of Microsoft, but ordered new proceedings to determine how Microsoft should be punished.
“It’s very hard to bring in somebody cold and introduce them to all the antitrust concepts we work with today,†said Andrew Gavil, a professor of law at Howard University. “That’s not to say that Dan Webb is not up to the task. But the Microsoft case is very complex, and the evidentiary record is extensive.â€
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Dan K. Webb
Born: Sept. 5, 1945, in Macomb, Ill.
Education: Student at Western Illinois University, 1963 to 1966; law degree from Loyola University, 1970.
Law firm: Winston & Strawn in Chicago, Ill.
Notable cases: Defended former Rep. Dan Rostenkowski; chief prosecutor of former National Security Advisor John Poindexter in Iran-Contra case; defended tobacco companies in lawsuits brought by states.
Quote: “I almost never have lunch.â€
