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Lone holdout deadlocks jury in 2-month Novell-Microsoft trial

'I made the right decision,' juror says

Published: Friday, Dec. 16 2011 9:01 p.m. MST

Carl Banks, the jury foreman, talks to the media after Novell Inc.'s antitrust trial against Microsoft Corp. ended in a hung jury outside of the Frank E. Moss federal courthouse in Salt Lake City Friday, Dec. 16, 2011.

Kristin Murphy , Deseret News

SALT LAKE CITY — One juror kept Novell Inc. from exacting as much as $1.3 billion from one-time rival Microsoft Corp. for alleged antitrust violations.

Corbyn Alvey, a 21-year-old security guard, was the lone holdout who deadlocked the 12-person jury after three days of deliberations in the complex, two-month trial in federal court.

"I walk away feeling honestly myself, and I can't speak for the other jurors, that I made the right decision even if it resulted in a hung jury," he told the Deseret News Friday. "There were so many inferences that needed to be drawn that I felt that it was unfair to Microsoft to go out on a limb and say yes."

A yes vote would have been enough for Novell to prove that Microsoft violated antitrust laws during the development of Windows 95, putting Novell's newly acquired WordPerfect word processing software at a competitive disadvantage and allowing Microsoft to gain a monopoly in the PC operating systems market.

Novell sought $1.3 billion in compensation. Whether the seven-woman, five-man jury would have awarded any damages isn't known. According to Microsoft attorneys who spoke to jurors privately afterward, five of them would not have awarded Novell anything had it prevailed.

Both sides presented the jury hundreds of pages of emails, memos and corporate documents to make their cases along with 126 hours of witness testimony, including two days from Microsoft founder Bill Gates just before Thanksgiving.

When word of a deadlock filtered through the courtroom, lawyers and U.S. District Judge J. Frederick Motz discussed letting jurors think about it over the weekend.

"We spent millions of dollars on this case," Novell attorney Jeff Johnson told the judge. "Give us one more day."

Jury foreman Carl Banks said he tried hard to get a verdict. He handed the court a note reading, "I am sorry, very sorry we cannot come to one accord. I've done the best I know how."

At least two jurors were in tears as Motz dismissed the panel.

"It was a tough case. It was long and it was hard and it was grueling," an emotional Banks said afterward. "We gave it our best shot."

"We've been two and a half months now. We've been away from our families, we've been away from everything, and we're just tired and want to be done with it," added juror Barbara Frazier.

Jurors clearly wrestled with the evidence over the three days. Throughout their discussions, they sought clarification on several technical points in the complicated case and twice asked about the meaning of a hung jury. One juror late Friday asked to withdraw from the panel, but the judge refused the request.

Novell attorneys were clearly upset with the hung jury.

Johnson said, "One juror had strong technical views, and he wasn't about to budge."

"We're very disappointed that they jury couldn't reach a verdict," said Jim Lundberg, Novell's corporate counsel. "We hope to refile to convince another jury our claims have merit."

Before that happens, Microsoft will likely renew an earlier motion asking Motz to throw out the case based on "legal deficiencies." Motz heard the motion as the cause began but reserved ruling on it until after trial.

"We remain confident that Novell's claims don't have merit and look forward to the next steps in the process," said Microsoft attorney Steve Aeschbacher.

Novell filed the lawsuit in 2004, alleging six antitrust claims. All but the one argued in the trial were dissmised earlier.

Novell's cased hinged on the four tiny pieces of computer code — application programming interfaces known as name space extensions. Name space extensions contain information about how some applications may be displayed and used in Windows.

The Provo-based company contends Gates pulled a "bait and switch" when he stripped the code from the final version of Windows 95. Novell intended it as an integral part of its word processing software for Windows and argues the decision caused its products to hit the market too late.

Novell bought Orem-based WordPerfect in 1994 for $1.5 billion. It sold it about 18 months later for just $146 million.

Microsoft contends Novell bought a dying company in WordPerfect and was slow to recognize the emergence of Windows. It argued that delays in development of Novell's spreadsheet application slowed the release of its software for Windows 95.

Alvey, the holdout juror, said the jury agreed on the technical aspects of the case but disagreed on the marketing aspects or what Novell could have accomplished "but for" Gates' decision.

"There was a lot of speculation in this 'but for' world," he said.

Alvey described the deliberations as stressful. "Obviously, I wanted to convince them to agree with me and they wanted to convince me to agree with them."

E-mail: romboy@desnews.com, Twitter: dennisromboy

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