Microsoft Appeals Antitrust Case to Supreme Court

Microsoft Corp. on Tuesday pressed on with its campaign to slow down the antitrust case by appealing the U.S. Court of Appeals decision to the U.S. Supreme Court.

The U.S. Court of Appeals on June 28 entered a decision that sent the case back to a new judge in the U.S. District Court for a rehearing on the browser-operating system tying issue and a new remedy phase.

Microsoft's Writ of Certiorari, which is a request for the nation's highest court to take the case, seizes on the U.S. Court of Appeals' substantial criticism of U.S. District Judge Thomas Penfield Jackson's conduct on the case.

Microsoft argues that the Appeals Court erred in not throwing out Jackson's Findings of Fact and Conclusions of Law in addition to his now vacated remedy, which ordered a breakup for Microsoft into an operating systems company and an applications company.

Central to Microsoft's Supreme Court appeal effort is the contention that Judge Jackson began giving secret interviews to New York Times and New Yorker magazine reporters in September 1999 and continuing for the next eight months. The interviews, which the reporters agreed not to disclose until after all of Jackson's judgments were rendered, would have resulted in the judge being disqualified had anyone found out about them while they were occurring, the Appeals Court found.

Microsoft contends that because the interviews began before the judge entered his Findings of Fact or Conclusions of Law, both of those should be thrown out.

"The court of appeals' deference to the district judge's findings of fact in this important, highly visible case -- despite the appearance of partiality created by his secret discussions with reporters -- can only erode public confidence in the judicial system," Microsoft's attorneys wrote.

In its legal filing, Microsoft as much as admitted its hands were tied in limiting its appeal to the issues dealing with the judge's conduct. Microsoft contests the Appeals Court's findings that it violated antitrust law through its agreements with Internet access providers and through its license agreements with computer manufacturers.

"Microsoft recognizes, however, that the [temporary] nature of the court of appeals' judgment militates against review of those issues by [the Supreme Court] now," Microsoft's attorneys wrote.

About the Author

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