"It's a little implausible to have so much data that something is important to the disease, and then to find that it wouldn't have an effect, " said Miller.
Because of the retroactive effect of the act and uncertainty about its scope, Judge Miller amended his decision in August 2009, allowing the workers to bring back the ADEA claim.
AOL, as it happens, is the only company that might be a viable alternative to Microsoft as a merger candidate, but whether Mr Miller's presence would help in any such negotiation is questionable, since he was in effect ousted.