Microsoft keeps fighting Supreme Court appeal 
By Joe Wilcox
Staff Writer, CNET News.com
June 19, 2000, 4:10 p.m. PT
URL: http://news.cnet.com/news/0-1003-200-2111048.html 

Microsoft this afternoon tore into a government petition asking a federal
judge to certify its antitrust case directly to the Supreme
Court. 

Earlier today, the U.S. Court of Appeals for the District of Columbia
Circuit set a briefing schedule for hearing Microsoft's motion to
stay business restrictions set to go into place on Sept. 5. The government
had asked the appellate court to take no action in the
case, pending its certification for direct appeal to the Supreme Court,
which it refused to do. 

Microsoft's short but punchy legal brief attacked the government's petition
on a number of fronts, arguing the direct appeal would rob
it of due process in having any appeal heard and that the law governing the
request does not apply to the states' portion of the case. 

The Justice Department (DOJ) and 19 states filed separate cases in May 1998
that Judge Thomas Penfield Jackson later treated as
one case. For direct appeal, the government would also like the cases
consolidated. 

But the 1974 Expediting Act, which authorizes such an appeal, predates the
1976 statute that authorizes states to bring cases
under federal antitrust law. 

"There is no real answer from the statute, when you have a case where the
states are the complainant and the United States is a
complainant," said Lars Liebeler, an antitrust attorney with Washington,
D.C. firm Thaler Liebeler Machado & Rasmussen. "It looks
like Microsoft has a point." 

Since it filed a lengthy legal brief last Monday, the government has been
maneuvering to get the entire case--including Microsoft's
motion for a stay on conduct restrictions--to the Supreme Court. Microsoft
has resisted, winning nominal support from the appeals
court. 

"You can't manufacture jurisdiction to just get everything in the same
place," Liebeler said. "This rule doesn't provide for that, and it's
an odd situation." 

"The government's efforts to circumvent the normal appellate process will
deprive the Supreme Court of the obvious benefits of a
review by the Court of Appeals," said Microsoft spokesman Jim Cullinan. "The
government seems afraid of review by the Court of
Appeals." 

Microsoft's argument against combining the states' case, which it also made
in a legal brief filed last week, may have been the
reason the appellate court today decided to step back from the case if
Jackson certifies the case for direct appeal. 

"Certainly the appeals court would not want to be put in the position where
they are viewed as telling the Supreme Court what to do
about the Expediting Act," said Bill Kovacic, an antitrust professor with
George Washington University School of Law. 

For now, Jackson will decide what happens next, Liebeler said. As early as
tomorrow, the judge is expected to certify the
government's direct appeal, which the Supreme Court is under no obligation
to accept. 

In fact, before the high court decides to accept the case, it will have to
grapple with whether Microsoft has a valid argument against
the states' case that cannot be included in the direct appeal, Kovacic said.


Microsoft's argument that the government's maneuvering would rob it of due
process is a compelling one, said Andy Gavil, an
antitrust professor with Howard University Law School. Jackson's judgment
orders that conduct restrictions go into effect 90 days
from its issuance, or Sept. 5. 

"It is wholly unlikely under any conceivable scenario the Supreme Court will
decide the question of jurisdiction before the first week
of September," Gavil said. "The rock-and-a-hard-place argument is
Microsoft's compelling one." 

Gavil, who is an expert in antitrust procedural law, faulted the government
for being entangled into a war of jurisdiction that
needlessly undermined its position. 

"If they had thought through the timeline problem and thought of Microsoft's
immediate reaction to the stay, they might have realized
the 90 days would be insufficient to get to the Supreme Court, and they
would have this jurisdictional battle on
their hands," Gavil said. "The easy solution is in front of the district
court right now, which is to extend the 90
days." 

The Redmond, Wash.-based software maker also contends the case is not of
enough "general importance" to
warrant the direct appeal and that procedural problems warrant a review by
the appeals court. 

Cullinan emphasized Microsoft's appeal would "include a vast array of
procedural, factual and legal errors made by the district court,
not just a few specific issues of law as the government contends. The
Supreme Court itself has said many times that it prefers to
have such cases first reviewed by the Court of Appeals." 

"The more of these procedural complexities you pack into the case," Kovacic
said, "the more likely it is the Supreme Court will say,
'send it all back; let the Court of Appeals sort it out.'" 

Jackson ordered less than two weeks ago that Microsoft be broken into
separate operating systems and software applications
companies, but he stayed such action pending appeal. The judge earlier found
Microsoft had violated two sections of the 1890
Sherman Act by illegally maintaining its operating systems monopoly and
trying to unlawfully extend it into Web browsers. 



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