Judge who ruled for credit unions FOM expansion to determine Microsoft's fate

WASHINGTON – She’s been labeled a “meticulous jurist,” and “even-tempered,” and her experience has been called into question by some experts on antitrust law. But U.S. District Judge Colleen Kollar-Kotelly made a name for herself last year in credit union circles when she ruled overwhelmingly in their favor allowing them to expand their membership. Kollar-Kotelly was randomly picked by a computer program among 17 civil trial judges on Aug. 24 to decide how Microsoft should be punished for trying to conquer its software competitors just as the company held a ceremony introducing the release of its new operating system, Windows XP. She will also decide whether to break up Microsoft for being an illegal monopoly and if bundling its Internet Explorer software with its Windows operating systems was an illegal tactic Her ties to the credit union industry stem from a case originally filed by banking interests including the American Bankers Association to block implementation of the Credit Union Membership Access Act of 1998. Judge Kollar-Kotelly ruled against banks’ request for a preliminary injunction to stop new membership approvals in March 1999. The banking plaintiffs countered with an amended complaint and discovery requests in June 1999. One key issue presented by the bankers’ request for an injunction was whether the NCUA rules expanded on the legislation’s 3,000-member limit on groups that can be added to “multiple common-bond” credit unions. The judge found that the NCUA’s interpretation of the new legislative authority is a reasonable interpretation of last year’s law. Further, Judge Kollar-Kotelly found nothing sufficient to support a preliminary injunction. Concluding that the ABA is unlikely to succeed on the merits of most of its claims, the court denied the preliminary injunction. And, the rest is history. “We were particularly pleased the judge refused to accept the banker’s absurdly broad request for discovery in this case,” said Eric Richard, general counsel for CUNA. “And even if they are granted further discovery rights in the future, we will continue to argue that they seek volumes of information beyond the bounds of common sense.” Fred Becker, president and CEO of NAFCU has no doubts that Kollar-Kotelly’s disposition will be an asset in presiding over one of the most highly publicized and critically important antitrust cases in history. “Judge Colleen Kollar-Kotelly did a masterful job untangling the FOM issues in the bankers lawsuit now pending before the Court of Appeals,” Becker said, adding her “nimble legal mind and remarkable judicial temperament” will be “fully exercised in deciding the outcome of this phase of the Microsoft lawsuit.” Her judicial career started as law clerk in the District of Columbia Court Appeals after earning a B.A. from the Catholic University of America in 1965 and a J.D. from its Columbus School of Law in 1968. She then served as an attorney in the criminal division of the U.S. Dept. of Justice until 1972 and later became the chief legal counsel to St. Elizabeths Hospital until 1984. Later that year, she was appointed associate judge of the D.C. Superior Court, served as deputy presiding judge in its criminal division and was appointed to the federal bench in 1997. Judge Kollar-Kotelly has a mixed record. She sided with the Sierra Club in a lawsuit against the Environmental Protection Agency over air quality in St. Louis on the one hand but dismissed a suit against the Food and Drug Administration (FDA) over the regulation of genetically modified food, on the other. Earlier this year, she ruled that Ivax Corp. could continue selling a generic version of the cancer drug Taxol despite complaints from a rival drug maker. Ernest Gellhorn, an antitrust professor at George Mason University Law School, who is familiar with District Court politics, told Reuters that Kollar-Kotelly’s two-plus years on the District Court bench will make for a steep learning curve when taking on Microsoft’s antitrust case. “In terms of the federal District Court, she’s relatively new,” Gellhorn said. “The obvious conclusion here is that she’s going to have to learn antitrust, learn something about software and the computer industry and learn how to be under the glare of publicity.” Meanwhile, a verdict in Microsoft’s case could take at least six months, according to some legal experts. Microsoft spokesman Jim Desler said in a press statement the company was confident in “proceeding with a case that has been significantly narrowed by the court of appeals ruling,” but added that resumption of the case in the district court “does not preclude our efforts to address the remaining issues through settlement.” The browser issue is likely to prove particularly controversial experts say because opponents have accused Microsoft of thumbing its nose as it proceeds with plans for Windows XP, the final version of which was shipped to manufacturers on the same day Kollar-Kotelly was named as the trial’s replacement. – [email protected]