Choose your lawyers wisely.
Microsoft took on the U.S. government led by a combative Gates and an equally aggressive general counsel, Bill Neukom. Gates, the son of an attorney, was outraged, frustrated and convinced the company was being unfairly targeted. His No. 2, Steve Ballmer, famously said the company could put a ham sandwich into Windows if it wanted to. And throughout, Neukom not only failed to tamp down his executives’ worst impulses, he seemed to amp them up. His legal style led observers to point out that his last name -- pronounced `nuke 'em’ -- was quite fitting.
The U.S. government’s latest antitrust targets should take heed: If your top executive's style tends towards waving a red flag in front of a bull, you may be wise to consider a top lawyer with a more conciliatory style. Google’s top executives have already raised the ire of lawmakers for refusing to appear before Congress, and no one has ever accused Jeff Bezos of being afraid of a fight. At Facebook, where Zuckerberg regards Gates as a mentor and observers see similarities in their styles and temperaments, this lesson might be particularly important.
There are many different ways to lose.
Right now, the companies are only at risk of an inquiry -- the agencies are deciding what, if any, action to take. But even at this stage, they should keep in mind that a loss doesn’t only mean a full-scale breakup or forced divestiture. Companies can avoid that extreme fate and still find, as Microsoft did, that the years of distraction from the fight have hampered their business and sucked up executive time and mental energy.
In an interview last year at the Code Conference, Microsoft President and Chief Legal Officer Brad Smith lamented the distraction the case caused, and cited it as a reason the company missed out on the search market -- the business that fueled the runaway success of Google, now under the microscope itself. Others have pinned Microsoft’s abysmal performance in mobile computing partially on constraints and distractions from the case. Some of the company’s business missteps can fairly be attributed to poor execution and strategic errors that had nothing to do with the government dispute. Still, the notion that merely fighting an antitrust battle may do almost as much harm as losing one brings us to our last point.
Consider settling early.
It's hard to say with certainty what the late 1990s and early 2000s might have looked like for Microsoft had it found a way to settle with the government earlier than 2002. Still, for the government’s current targets, it's worth weighing a settlement against the impact of several years of investigation, a possible loss in court and potentially harsher restrictions or remedies. Amazon, Apple, Facebook and Google probably have a pretty good idea of what regulators may object to, and it’s worthwhile for them to consider ways to assuage those concerns while keeping the core of their businesses and future ambitions intact. The alternative is years of investigations, possibly damaging evidence and testimony, and ample distraction, all leading up to what could be a devastating loss in court.
This article was provided by Bloomberg News.