Microsoft case put on fast track

Punishment order for Microsoft Corp. set by early June

April 06, 2000|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Vowing to move quickly toward the final act in the Microsoft Corp. antitrust trial, a federal judge laid down yesterday a timetable that would lead to his punishment order against the company by early June.

U.S. District Judge Thomas Penfield Jackson's schedule -- a "fast-track" timetable that both sides agreed to follow -- has some flexibility built into it. Still, the judge made clear that he wants the two sides to complete within the next eight weeks their proposals on how he should remedy Microsoft's antitrust violations.

Jackson told lawyers on both sides this week that he wants to have the case resolved "within 60 days and on its way" toward appeal to a higher court. The judge emphasized that he would prefer the fastest appeal route -- directly to the Supreme Court.

The discussions between the judge and the lawyers behind closed doors yesterday and Tuesday were revealed in transcripts made public yesterday.

As Jackson met with attorneys in his chambers, Microsoft Chairman Bill Gates met with lawmakers on Capitol Hill a few miles away. He later participated in an economic meeting with President Clinton and Federal Reserve Chairman Alan Greenspan.

Jackson has told attorneys in the case he wants to move through the remedial phase of the case quickly and is encouraging both sides to take any Microsoft appeal directly to the Supreme Court.

"My transcendent objective is to get this thing before an appellate tribunal -- one or another -- as quickly as possible because I don't want to disrupt the economy or waste any more of yours or my time on a remedy if it's going to come back here," Jackson said, according to a transcript of the meeting Tuesday.

In his meetings with lawmakers, Gates expressed confidence that his company would see Jackson's verdict overturned on appeal, but said he thought a speedy appellate process was unlikely because of the complexity of the issues involved.

Jackson set a hearing for May 24 on proposed remedies and on Microsoft's response. The suggested remedies are due by April 28 from the Justice Department, Maryland and the 18 other states that sued the software company. Microsoft has until May 10 to respond.

JV0 The May 24 hearing date, the judge indicated, might be postponed if the remedies suggested by the Justice Department and the states lead the company to ask for more time to respond.

A lawyer for the Justice Department, David Boies, told the judge that the government's proposal for punishment "is probably not going to be anything new in the sense of radically different" from proposals that each side has been discussing for weeks and that were leaked to the news media.

Among those proposals, almost certain to be resisted by Microsoft, was a suggestion that the only cure for the company's violations of the Sherman Antitrust Act and state laws is to break Microsoft into two or more companies.

During negotiations over an out-of-court settlement -- talks that collapsed last weekend -- the idea of a breakup was apparently taken off the negotiating table by the Justice Department. But it is unclear whether the idea has been abandoned.

Jackson stressed that he plans to issue one "omnibus remedy," to cure not only the violations of the Sherman Act but also those of the antitrust laws of Maryland and its 18 state partners in the lawsuit.

Attorneys for the states and the Justice Department told the judge that they hoped to agree on a single remedy to try to speed the process. A Wisconsin assistant attorney general, Kevin J. O'Connor, told Jackson that the 19 states were "going to work very closely" with the Department of Justice "to try to get on the same page in remedies." Some of the states have been the strongest advocates of a breakup of Microsoft.

The judge gave the states permission to suggest a remedy if they could not accept the Justice Department plan. He would then find a way to combine them.

Jackson also told the attorneys to find ways to move the case promptly to the Supreme Court -- a move that would bypass a midlevel appeals court that Microsoft has long believed would be sympathetic to the company's defense.

If the judge finishes his remedy order by early June, and a quick appeal to the Supreme Court can be pursued, it could cut up to a year off the appeals process.

The judge made clear to the attorneys that he is leaving open the option of resuming settlement talks. Four months of discussions broke up in disagreement last weekend, leading the judge on Monday to issue his findings that labeled Microsoft as a "predatory" lawbreaker that had sought to crush any rivals for its Windows computer operating system.

Because of the chance of a resumption of settlement talks, Jackson dropped a plan to require both sides to disclose their "best and final offer" during the negotiations through mediator Richard A. Posner, a federal appeals judge.

The timetable for the final phase of the trial allows each side to put forth a summary of what it wants, supported by sworn statements by officials or experts on why the proposal is justified.

If both sides limit themselves to sworn statements, the procedure leading to a hearing before the judge could be faster. If witnesses are called for courtroom testimony, it could take longer.

The Associated Press contributed to this article.

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