Microsoft vs. DoJ: Round 2 Begins in Appeals Court

With a claim that “the entire proceeding was infected with error,” Microsoft Corp. filed an appellate brief with the U.S. Court of Appeals in an attempt to overturn U.S. District Court Judge Thomas Penfield Jackson’s ruling that the company engaged in monopolistic practices and his order to split the software giant into two separate companies.

Monday’s filing from Microsoft calls on the appeals court to overturn the lower court’s ruling based on Microsoft’s opinion that the district court displayed a “clear misunderstanding of the antitrust laws.” Microsoft’s brief goes on in detail to describe, point by point, the ways in which the lower court was in error, in the company’s estimation.

The brief especially takes aim at Jackson, claiming that his public comments to the press during and after the trial “violated the Code of Conduct for United States Judges.”

“By repeatedly commenting on the merits of the case in the press, the district judge has cast himself in the public’s eye as a participant in the controversy, thereby compromising the appearance of impartiality, if not demonstrating actual bias against Microsoft,” the brief reads.

While Microsoft objected to all the points of the lower court’s ruling, the company objected most harshly to the remedy imposed by Jackson, as well as to the pre-trial and trial proceedings. The company called the district court’s handling of the trial “highly unusual and prejudicial to Microsoft.”

“Time and again, the district court changed the rules of the game – and always to Microsoft’s detriment,” said the Microsoft brief. Microsoft claims that the court applied double standards in looking at precedent, failed to provide Microsoft with adequate opportunity to prepare for and defend against a “dramatically expanded case,” and created an environment in which “reliance on hearsay was inevitable.”

Microsoft’s strongest reaction was to the remedy imposed by Jackson in the district court’s ruling. Microsoft claimed that the court used “inadmissible evidence” and argued that the court refused to hold evidentiary hearings during the remedy phase of the initial trial. Microsoft also once again claimed that hearsay was employed.

“Leaving aside the fact that Microsoft’s continued belief that its conduct was lawful is not grounds for any relief, much less breaking up the company, the only conceivable basis for the district court’s statement is hearsay submitted by plaintiffs,” the brief says.

Ultimately, Microsoft’s appeal calls for the reversal of Jackson’s original ruling and, barring that, a complete retrial in district court. – Isaac Slepner

About the Author

Scott Bekker is editor in chief of Redmond Channel Partner magazine.