Prosecution trying to speed Microsoft appeal

Governments want case sent to Supreme Court

Antitrust trial

June 13, 2000|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON - The Justice Department and 17 states moved yesterday to force Microsoft Corp. to speed its appeal of the government's antitrust case so the dispute can shift quickly to the Supreme Court.

Accusing Microsoft of trying to manipulate the case to keep it away from the highest court, the department and the states suggested a fast-track procedure to get the case moving this week.

The software giant has not yet formally filed a notice that it will appeal the judge's ruling, which would force a breakup of the company and impose restrictions on its business behavior.

Though Microsoft has made clear that it will appeal, it prefers that the case go first to the U.S. Court of Appeals here, a court it regards as more sympathetic. But the lack of the specific document necessary to start the process - a notice of appeal - has stalled the case in the court of U.S. District Judge Thomas Penfield Jackson. To get it moving again, the department and the states suggested to Jackson a timetable that could lead the judge to send the case to the high court within days.

A Microsoft spokesman, Jim Cullinan, called the new filing, "an extremely bizarre tactic," that would add new delays in the case, "for apparently no reason."

In their new plea, Microsoft's challengers submitted a draft of the argument they will make for an immediate review of the case by the Supreme Court. Under federal law, Jackson must agree to that maneuver if he finds that the justices' review now is "of general public importance."

Microsoft, the department and the states asserted in the draft, operates in "global markets that affect hundreds of millions of consumers and businesses throughout the world."

They added that "prolonged uncertainty" about the breakup as a result of lengthy appeals "would have significant adverse consequences. ... It is important that the appeal be resolved quickly to ... begin the process of restoring competitive conditions."

Microsoft has asked Jackson to postpone all of his remedy order pending the company's appeal. The department and the states opposed that request yesterday, but said Jackson should delay ruling on that matter until Microsoft has filed its formal appeal notice and the issue of sending the case to the Supreme Court is decided.

In the rapid timetable detailed yesterday, Microsoft would have until tomorrow to reply to the new proposal.

Once the company filed its notice of appeal, the prosecution would make its plea the next day to Jackson to shift the case directly to the Supreme Court.

Microsoft would have to file its objection to Supreme Court review within four days, setting the stage for the judge to act promptly. The judge has indicated that he is inclined to send the case to the Supreme Court as soon as he is asked to do so.

The department and the states contend that Microsoft had offered no proof it would be harmed if the order goes forward.

Under Jackson's ruling, the breakup order would not take effect until after Microsoft's appeal has concluded. The rest of his order - requiring Microsoft to make major changes in its dealings with others in the computer industry - would go into effect in about 90 days if Jackson does not delay it.

If the judge were to block those other remedies now, the department and the states contended, "the irreparable injury to the public interest is particularly great."

"Whenever competition is illegally impeded, as it was by Microsoft here, there is substantial and irreparable injury worked on the public," they argued.

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