Microsoft case sent directly to high court

Jackson suspends his breakup order, skips appeals level

Timetable uncertain

June 21, 2000|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON - Invoking a seldom-used power, a federal judge shifted the Microsoft Corp. antitrust case directly to the Supreme Court yesterday, giving the justices the first choice to review it.

U.S. District Judge Thomas Penfield Jackson diverted the case around an appeals court and on to the highest court because, he said, it "is of general public importance in the administration of justice."

At the same time, Jackson put on hold his entire remedy order against the software company. That includes his order to break it into two companies, for Microsoft to begin planning the breakup, and a host of restrictions he imposed on the way the company conducts business.

Each side in the two-year antitrust battle could claim something in its favor from Jackson's actions yesterday. The Justice Department and 19 states that sued Microsoft gained the chance for a quick review in the highest court and evaded, for now, a risky trip through the U.S. Circuit Court of Appeals here, which Microsoft considers sympathetic to it.

The company, though, was spared the duty of having to begin to carry out the far-reaching remedies Jackson imposed after he found that Microsoft had committed repeated antitrust violations.

While Jackson's decision to send the case to the Supreme Court was expected, his postponement of all aspects of his order was a surprise. The judge gave no reason for the delay.

That part of his order gave the software company considerable breathing room. Without the postponement, Microsoft would have been required to take some steps toward carrying out the judge's order as early as Sept. 5.

The company has complained that such obligations would seriously disrupt its software development business and "make it difficult for Microsoft to conduct business in the highly competitive, fast-moving software industry at a critical time."

Yesterday, Mark Murray, a Microsoft spokesman, said the company was "obviously very pleased" with the postponement ordered by Jackson. He again expressed the company's confidence that it would win ultimately, no matter which court makes the final ruling.

It is now up to the Supreme Court to decide whether to rule on the case or to send it back for an initial review by the appeals court in Washington. The fact that a federal law gave Jackson the option of shifting the case to the justices does not compel them to hear it.

If the Supreme Court does send it back to the appeals court, the case is expected to return to the justices at some point. A final resolution appears to be months away.

Now that the case is at least temporarily pending in the highest court, nothing will happen in the appeals court, which had taken preliminary steps to deal with Microsoft's appeal. That process was automatically suspended the moment Judge Jackson moved the case on to the justices.

The Supreme Court has set no timetable for acting on the case. But one close observer of the court's procedures, Thomas C. Goldstein, a Washington lawyer, predicted that the court would speed the time for filing formal papers and act quickly on the case this summer.

The justices will begin a three-month summer recess by the end of this month, but they could act on the case during the recess. Goldstein said he expects the court to decide "by the middle of the summer - late July or early August" - whether to hear the case.

Because Microsoft lost in Jackson's court, it will be the side that actually appeals the case in the Supreme Court, even though it would prefer not to be there now.

The company technically has until late August to file formal appeal papers before the Supreme Court, but the Justice Department is expected to ask the justices to shorten that timetable. The department had said last week that if Jackson transferred the case to the justices, "we will ask the Supreme Court to hear Microsoft's appeal promptly."

Reacting yesterday to the judge's order, the department said the order supported its view "that a quick and effective remedy is necessary to resolve this significant case."

Immediate review, the Justice Department added, is especially necessary now that Jackson has put all of his order on hold - an action the department had firmly opposed.

The judge, in sending the case to the Supreme Court, used his authority to do so under a 1974 federal law.

That procedure, used only twice before, in cases involving the breakup of the Bell telephone system, is reserved only for antitrust cases of unusual importance.

Microsoft and the Justice Department and the states have been locked in intense legal maneuvering over the past week as they sought to influence where the case would move beyond Jackson's court. Each side had claimed some temporary victories in that skirmishing.

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