Microsoft has a court in mind

It wants its appeal heard by D.C. circuit, not Supreme Court

Friendlier ears?

But the government favors fast track to 9 justices

Antitrust case

June 08, 2000|By Michael Stroh | Michael Stroh,SUN STAFF

It's the next cliff-hanger in the antitrust battle of the decade: Which courtroom will the Microsoft case wind up in now?

Legal experts said yesterday that the answer to this question could mean the difference between who wins and who loses.

U.S. District Judge Thomas Penfield Jackson brought the nearly 2-year-old antitrust trial against Microsoft to an official close yesterday, ordering that the company be broken into two separate companies and imposing a series of restrictions on Microsoft's conduct in the marketplace.

Microsoft has vowed to appeal the decision and conduct restrictions, slated to begin in three months. The company will have 60 days to file the necessary paperwork with the court.

The conventional wisdom among court experts is that Microsoft is hoping the case lands in the D.C. Circuit Court of Appeals, which has so far not been kind to Judge Jackson or his predecessors. Microsoft has emerged victorious in three out of three trips there. With that record in mind, the Justice Department has said it will ask for the case to be put on a fast track to the Supreme Court for a final decision, bypassing the appellate court altogether.

"There is nothing good that will happen in the Court of Appeals for Judge Jackson or the government," said William Kovacic, an antitrust scholar at George Washington University School of Law.

To bypass the circuit court, the Justice Department will dust off an obscure, rarely invoked 1903 law, the Exediting Act, to put the case on a fast track to the highest court in the country. Jackson has signaled in the past that he would likely grant such a request.

For the Supreme Court justices it would be dM-ijM-` vu: The last time the law was used was during the breakup of AT&T in 1982, the government's last great antitrust battle.

It's anybody's guess whether the Supreme Court will agree to hear the Microsoft case, although many legal experts are betting against it.

The Supreme Court justices typically prefer to hear cases that have bounced around the federal circuit courts or ones in which a lower court decision differs substantially from Supreme Court precedent, said Andrew Gavil, an expert on procedural law at Howard University Law School in Washington.

The Microsoft case, for the most part, meets neither criteria, said Gavil. In the AT&T antitrust case, the court accepted the referral but merely signed off on the government's breakup plan without hearing arguments.

Not making it to the Supreme Court would likely be fine with Microsoft.

In 1995, the D.C. Circuit Court of Appeals overturned an order by U.S. District Court Judge Stanley Sporkin, who had been in charge of the Microsoft case, and ordered him removed from the case. Judge Thomas Penfield Jackson, who succeeded Sporkin, didn't do much better. In 1998, the appeals court twice reversed him.

Despite the company record with the appeals court, legal experts caution that overturning Jackson's decision is not a foregone conclusion for Microsoft.

"The D.C. circuit is very diverse; You really can't predict what panel you could get," said Howard University's Gavil.

The Court of Appeals consists of six Republican and four Democratic appointees spread across the ideological spectrum. Judges chosen for the three-court panel that would hear Microsoft's case are selected randomly by computer (which happens to use Microsoft software).

No matter which court the case winds up in, Microsoft will have its work cut out for it in chipping away at Judge Jackson's ruling.

One strategy that Microsoft's lawyers have been hinting at: playing up the notion there was lack of due process during the trials' remedy phase.

Jackson has been widely praised for running a tight ship, but some antitrust experts believe that he may have whipped through the remedy phase a little too quickly-giving Microsoft's lawyers less than two months to respond to a breakup proposal and ignoring their appeals for more time.

"I think this is one area where the judge took an unacceptable risk," Kovacic said.

Microsoft is also likely to argue that the landscape of the technology industry has changed drastically and the company is no longer as dominant as it once was.

Since the case began, for example, America Online bought Netscape, the company whose Web browsing software sparked Microsoft's antitrust troubles in the first place.

Since AOL's agreement to bundle Microsoft's Internet Explorer browser expires this year, AOL may decide to make Netscape the browser of choice for its 20 million subscribers. If it does, it would be easier for Microsoft lawyers to erode the charge that Microsoft holds a monopoly there. Even if Microsoft catches all the breaks and staves off a breakup, legal experts say, it's unlikely that the company will emerge from the courts unscathed when the whole process winds up a year or more from now.

Said Gavil: "It's very unlikely that there's going to get a wholesale reversal."

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