Appeals court sets timetable for Microsoft case

The decision by the U.S. Court of Appeals for the District of Columbia Circuit means that Microsoft has only until Nov. 27 to file its primary brief for its appeal. The government's main brief is due by Jan. 12, with Microsoft delivering a reply document by Jan. 29. Final briefs are due Feb. 9, with oral arguments scheduled for Feb. 26 and 27.

The court said that it would not entertain extensions of these deadlines.

In June, U.S. District Judge Thomas Penfield Jackson ordered that Microsoft be broken into separate operating system and software application companies after earlier determining the company had violated U.S. antitrust law.

Two weeks ago, the appeals court began its consideration of the matter after the Supreme Court decided not to take the case directly from the district court.

Antitrust experts warned not to read too much into the scheduling order. The decision on scheduling has little, if anything, to do with the case's merits, they said.

"Whether it's a faster rather than a slower timetable doesn't really tell us about (the judges') views of the case," said Bill Kovacic, an antitrust professor at the George Washington University School of Law.

Microsoft's proposed schedule would have meant that the appeals court could not begin deliberations in less than six months. The schedule issued today accelerates the process, but not as quickly as the government plaintiffs had wanted.

The appeals court's expediting of the case might mean the judges want to "step briskly" through the process and not depart too much from the standard appellate framework, Kovacic said.

Microsoft voiced its approval of the court's timetable.

"We believe this is a fair and reasonable schedule, and we look forward to making our appellate argument to the court," said Microsoft spokesman Jim Cullinan. "We are very confident of our case and believe this District Court judgment will be reversed due to a number of factual, legal and procedural errors committed during this process."

The Justice Department, one of the software maker's opponents, also said in response to the announcement that it looks forward to presenting its case to the appeals court.

In two briefs filed last week, Microsoft asked the court to give each side 60 days to prepare primary briefs and 30 days for supplemental filings.

The government's proposal would have made Microsoft's first brief due Nov. 1, its primary filing due Dec. 8, and its secondary brief due Dec. 22.

"They split the baby. Normally I think they would give some time on it just so they don't give the appearance they're rushing into it," said John Smith, an antitrust attorney with Nixon Peabody here.

The Justice Department and 19 states that are pressing the antitrust case had objected to Microsoft's proposed schedule, saying it was "excessive and would delay resolution of this appeal unnecessarily."

Microsoft shot back in its reply: "It is truly remarkable that appellees now seek to shift to Microsoft the blame for, and the burden of, the delay that resulted from their tactical decision to seek direct review in the Supreme Court."

"It's interesting that the first jockeying is over how many months or decades the briefing should take place," said Emmett Stanton, an antitrust attorney with Fenwick & West in Palo Alto, Calif. "It struck me a little as like the Vietnam peace negotiations (and) arguing over the size of the table. That's as far as we've gotten."

Though the appeals court found middle ground on scheduling, it largely sided with Microsoft on the lengths of the documents. The software maker had asked that principal briefs be about 170 pages, more than twice the approximately 70 pages proposed by the government.

The appeals court opted for 150 pages for the main documents, to be accompanied on Microsoft's part by a 25-page friend-of-the-court brief. The Justice Department's primary brief is to be accompanied by a 25-page document from the states.

The appeals court also gave Microsoft more space for its reply brief, which is limited to 75 pages.

Smith said he is not surprised that the appeals court "gave Microsoft more than the normally allotted space. I think there are some very substantial issues on appeal, and I think it's hard to justify the rush to judgment."

In an unusual move, the court in June agreed to hear the case en banc, or before a full panel of eligible judges. Of the court's 10 jurists, seven will hear the appeal, with three others recused for conflicts of interest. Typically only three judges hear appeals.

Four of the seven judges are appointees of Ronald Reagan or George Bush: Douglas Ginsburg, Raymond Randolph, David Sentelle and Stephen Williams. Jimmy Carter or Bill Clinton appointed the remaining judges: Harry Edwards, Judith Rogers and David Tatel.

The appeals court has set up a Web site dedicated to the Microsoft case.