Microsoft rejects argument against appeal
Published: 13 Sep 2001 10:43 BST
Microsoft on Wednesday slammed the government's argument that the Supreme Court should reject the company's request for appeal.
In its legal brief, Microsoft countered eight points made by government lawyers in a 26-page document filed almost two weeks ago.
But Bob Lande, an antitrust professor with University of Baltimore School of Law, said he would be shocked if the Supreme Court accepted Microsoft's request for appeal.
"The chances are astronomical," he said.
Because of a court-mandated schedule, Microsoft spokesman Jim Desler said, Microsoft had to make the filing Wednesday instead of waiting out of respect for the victims of Tuesday's terrorist attacks in Washington DC and in New York.
"My understanding is that we needed to submit it to ensure that it was part of the record," he said.
Microsoft and the government also are scheduled to file a joint status report with US District Judge Colleen Kollar-Kotelly on Friday. It is unclear whether that filing might be delayed because of the national tragedy.
In its 31 August brief, the Justice Department and 18 states had asked the nation's highest court to reject Microsoft's request for appeal. Rather than appealing on the merits of the case, Microsoft in its request had once again attacked US District Judge Thomas Penfield Jackson.
In June, a federal appeals court removed Jackson from the case because of statements he made to the media during the landmark antitrust trial.
Microsoft had argued that because Jackson started holding his out-of-court discussions before delivering his two-part ruling -- the "findings of fact" and "conclusions of law" -- the Supreme Court should consider throwing out both documents.
In its 28 June ruling upholding eight separate antitrust violations against Microsoft, the Court of Appeals found merit in throwing out Jackson but not his ruling.
In its Wednesday legal brief, Microsoft reiterated its contention that Jackson's violation of the codes of conduct governing judges' behaviour warrants Supreme Court review.
Microsoft faulted the Court of Appeals for not throwing out the ruling, arguing the action "cannot be reconciled with decisions of other circuits that have ordered new trials for far less egregious violations" of the codes of conduct governing judges' behavior.
The software giant asked the Supreme Court to "grant review now before further proceedings occur on remand in reliance on tainted findings of fact and conclusions of law that must be vacated."
But legal experts questioned whether the high court would want to tackle this issue.
"Was Judge Jackson's conduct so bad it warranted not only requiring his removal but starting the whole proceeding over?" Lande said. "That's a fact-based analysis, and the Supreme Court does not like to engage in fact-based analysis."
While Microsoft asks for consideration from the nation's highest court, the company is preparing for proceedings to resume before the US District Court for the District of Columbia. Unless delayed because of the terrorist attacks, Microsoft and the government are expected to meet with Kollar-Kotelly on 21 September.
Legal experts also expect the judge to ask both sides to file the joint status report to facilitate settlement discussions.
"After all, both sides have to talk to draft the joint proposal," said Rich Gray, a Silicon Valley-based antitrust lawyer closely following the trial. "That certainly can't hurt."
But Gray wondered whether Microsoft had "lots of good reasons to settle this thing. Settlement won't make all those private lawsuits go away. They may knock off a bunch of them, but they won't all go away."
Even if Microsoft successfully negotiates a settlement with the government, private litigants -- including consumers and competitors -- could use Jackson's ruling to help bolster their cases.
Microsoft also faces another settlement challenge: New York Attorney General Elliot Spitzer and California Attorney General Bill Lockyer last week warned they would be willing to seek separate sanctions should they feel the Justice Department is too soft on Microsoft.
Besides having the resources to pursue independent remedies against Microsoft, the two states are home to some of the company's biggest competitors such as AOL Time Warner and Sun Microsystems.
When the case does return to the trial court, it will take on a much different character than previously anticipated. The Justice Department last week decided not to seek the breakup of Microsoft, backing off a position strongly advocated by the Clinton administration.
In a more surprising change, the government decided not to retry the tying claim -- that Microsoft illegally integrated its Internet Explorer Web browser with Windows 95 and 98.
"Tying will eventually have to be dealt with by somebody," Gray said. "You can't just leave this important issue hanging out there."
Typically under tying law, a company cannot force consumers to take one product with another -- something the government earlier contended Microsoft did with Internet Explorer. But as Microsoft and other companies integrate -- or bundle -- new features into their products, this issue may have to be addressed again separately, Gray said.
But retrying tying could have added another six months, even another year to the case, and trustbusters said they want to move quickly to the remedy, Lande said.
When the case returns to court, the Justice Department and 18 states are expected to ask for additional discovery to probe new Microsoft technologies because Jackson issued the earlier remedy thrown out by the appeals court.
The government seems particularly interested in Windows XP, Passport authentication and Microsoft's .Net software-as-a-service strategy.
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