August 8, 2001


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Microsoft Asks Supreme Court
To Set Aside Antitrust Ruling
Legal Experts Say Appeal Is Unlikely
To Be Accepted by U.S. Supreme Court
By JOHN R. WILKE
Staff Reporter of THE WALL STREET JOURNAL


WASHINGTON -- Microsoft Corp. asked the Supreme Court to go beyond an appeals-court ruling that rejected a breakup of the company and throw out a judge's finding that it is a predatory monopolist.

Microsoft's filing Tuesday seeks to vacate all findings of fact and legal conclusions of U.S. District Judge Thomas Penfield Jackson in the government's antitrust case against the company. It said the judge's private conversations with a handful of reporters during the trial had "flagrantly violated" judicial ethics.

Judge Jackson's order to split Microsoft into two companies was thrown out by the federal appeals court here on June 28, in part because it found he had improper contacts with reporters and had failed to hold hearings on the need for a breakup. But the appeals court, relying on Judge Jackson's findings of fact, affirmed that Microsoft is a monopoly and had repeatedly and willfully violated antitrust law.

Court Filings
See Microsoft's Supreme Court filing. Also, see Microsoft's appeals-court request for a stay, and the footnotes, both in Adobe Acrobat format, available free.

Many legal experts said it is unlikely the appeal would be accepted or that the high court would vacate the judge's findings.

"The possibility of getting this thrown out is almost zero," said Stephen Gillers, a professor of legal ethics at New York University's School of Law. "I don't think the Supreme Court will be second-guessing the judgment of a unanimous appeals court."

But Samuel Miller, a San Francisco antitrust attorney who worked for the Justice Department on an earlier Microsoft case, predicted the company's attack on Judge Jackson's findings eventually might be reviewed by the Supreme Court -- though not until a new trial-court judge rules on remaining issues in the case. "It's a powerful argument," he said, "because even the Court of Appeals struggled with whether all the findings of fact should be vacated."

In its petition, Microsoft said the judge's actions would have led to his immediate disqualification from the case had they been known during trial, and argued that the appeals court erred when it found him guilty only of an "appearance of bias." The Redmond, Wash., software company also asserts that the point at which the case was tainted by misconduct occurred many months before the appeals court said it did.

A Supreme Court review of the issue "is important to restoring public confidence in the integrity of the judicial system," Microsoft said. In a separate motion filed with the U.S. Circuit Court of Appeals here, the company asked that it not send the case back to a trial court for remedy proceedings until the Supreme Court rules on whether it will hear the case. That likely wouldn't occur until October; the lower court may proceed in the interim unless a stay is granted.


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Turning to the Supremes
Microsoft appeals recent antitrust ruling by U.S. Court of Appeals, asking the Supreme Court to throw out trial judge Thomas Penfield Jackson's original findings. Key findings from the U.S. Court of Appeals:

Microsoft violated antitrust laws, but a new judge should decide on a punishment

Microsoft acted illegally in maintaining its monopoly in the operating system market

Judge Jackson engaged in "serious judicial misconduct" by making derogatory comments about Microsoft to the media

The judge's actions would give outsiders cause to "question his impartiality"

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Microsoft cited in support of its argument a 1988 Supreme Court case in which a judge's ruling was thrown out for judicial misconduct. Mr. Gillers of New York University said the 1988 case wasn't directly comparable to this one, in part because the appeals court has remanded the current case to a new judge.

In its petition, Microsoft referred to statements by Judge Jackson to The Wall Street Journal, the New York Times and Ken Auletta, author of a book about the case. For example, Microsoft said Judge Jackson's comments to the Journal about whether to hold hearings on the breakup were "shocking" and showed bias.

"It's procedurally unusual to do what Microsoft is proposing," Judge Jackson told the Journal in a June 2000 article. "Are you aware of very many cases in which the defendant can argue with the jury about what an appropriate sanction should be? Were the Japanese allowed to propose the terms of their surrender?"

The Justice Department said the issue on which Microsoft is seeking review already has been addressed by the appeals court. Speaking for the 18 states that also are plaintiffs in the case, Tom Miller, Iowa's attorney general, said they oppose the appeal and efforts by Microsoft to delay a return of the case to a new judge.

Most often, the Supreme Court accepts a case when there is a conflict of law among the appeals courts and leaves disciplining of district judges to those courts. "In this instance, the appeals court found that on balance, they weren't persuaded that the errors in judgment by the trial-court judge affected the whole decision," said Bill Baer, a lawyer with the law firm of Arnold & Porter here and a former federal antitrust enforcer.

In its filing, Microsoft said it ultimately might seek review of a series of other questions raised in the case, including the legality of exclusive agreements and whether copyright law protected the integrity of Windows software, the source of its market power. In its June 28 ruling, the appeals court swept Microsoft's copyright argument aside, saying it "borders upon the frivolous."

The timing of any remedy imposed in the case is important because of the imminent arrival of Windows XP, a new version of Microsoft's monopoly operating-system software. The system incorporates many new features in ways that Microsoft critics argue are illegal under the standards used in the appeal's court's recent ruling.

The Justice Department and states are expected to make Windows XP an issue in proceedings before a new judge. But the clock is ticking: While Windows XP officially goes on sale Oct. 25, some personal-computer makers now say they will ship machines with the new software as much as a month earlier.