Microsoft beefs up legal team for Supreme Court arguments

The Redmond, Wash.-based software giant drafted Washington, D.C.-based attorney Carter Phillips and his law firm, Sidley & Austin, to work with lead attorney John Warden and his firm, Sullivan & Cromwell.

Microsoft is preparing for a battle over jurisdiction as the Supreme Court decides whether it will accept the case directly, skipping over a Washington appeals court.

"He is one of the top Supreme Court and appellate practitioners in the country, and he is going to work with our trial counsel on the jurisdictional issue of whether or not the Supreme Court should take this case at this time or not," said Microsoft spokesman Jim Cullinan. "He will provide counsel on this process moving ahead."

Phillips was part of the legal team that won the Miranda case last week and the HMO appeal two weeks ago. In the Miranda case, the high court ruled in favor of continuing to require police to read suspects their rights. In the other decision, the Supreme Court ruled that HMOs could not be sued for compensating doctors for cutting costs.

"That has got to be a blow to Sullivan Cromwell," said University of Baltimore Law School professor Bob Lande. "That's kind of a vote of no confidence to your law firm, isn't it? It's got to mean Microsoft isn't too awfully thrilled with their counsel."

"Saying our addition of Carter Phillips to an already strong team is a no confidence vote for Sullivan Cromwell is like saying that if the Lakers traded for another good player...that would be a no confidence vote for Shaquille O'Neal and Kobe Bryant," Cullinan said.

Phillips, who is a highly regarded Supreme Court practitioner, could bring an important boost to Microsoft as it seeks to wrestle with the Justice Department (DOJ) and 19 states over which venue should hear the case.

Microsoft on July 26 will present its argument as to why the Supreme Court should not accept the case, followed by the government's response Aug. 15.

One of the most contentious issues before the court is whether the Expediting Act, the statute authorizing the direct appeal, applies to the state portion of the case. The DOJ and 19 states filed separate cases in May 1998 that U.S. District Judge Thomas Penfield Jackson treated as one.

"But the expedited appeal could present the (DOJ) with problems," said Andy Gavil, a law professor with Howard University Law School. The statute allowing states to file cases under federal law came after the Expediting Act, he explained. "There is no law here."

If Phillips can convince the Supreme Court not to take the case, either for this reason or others, it would be a big win for Microsoft, which would prefer that the U.S. Court of Appeals for the District of Columbia Circuit, which has ruled in the company's favor before, hear the case.

The high court is expected to make a decision of jurisdiction sometime before the first week of October. If the Supreme Court takes the case, it likely would issue a decision before June of next year.

If the case goes back to the appeals court, legal experts expect the case to spend nine to 12 months there and another year before the Supreme Court, with a final ruling sometime in June 2002.

Jackson on June 7 ordered that Microsoft be split into separate operating systems and software applications companies. He stayed the breakup, pending appeal, but left conduct restrictions free to go into effect Sept. 5.

After Microsoft asked the appeals court to stay the business restrictions and began a spirited tug-of-war with the government over jurisdiction, Jackson unexpectedly stayed the conduct remedies pending the final appeal.