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Microsoft, government agree on appeal arguments

Lawyers for the software giant and government prosecutors agree to a format for oral arguments, with five lawyers making presentations before the Court of Appeals.

    WASHINGTON--It's all over but the shouting in Microsoft's appeal of its antitrust case.

    Lawyers for the software giant and government prosecutors agreed Friday to a schedule and format for oral arguments, with five lawyers making presentations before the Court of Appeals.

    Microsoft and the government--the U.S. Department of Justice and 19 states--will present oral arguments in the appeal, scheduled for Feb. 26 and Feb. 27, before a tribunal of seven appellate judges: Harry Edwards, Douglas Ginsburg, Raymond Randolph, Judith Rogers, David Sentelle, David Tatel and Stephen Williams.

    Microsoft and the government asked that the proceeding last four 1/2 hours--three hours the first day and 1 1/2 hours the second day. They requested that half the first day's time be dedicated to the government's tying claim--that Microsoft illegally "bolted" Internet Explorer to Windows--and spend the remaining time on maintenance of monopoly. The two sides would get 45 minutes for each of the two presentations.

    On the second day, Microsoft and the government would like to spend 30 minutes--split evenly between the parties--for the attempted monopolization claim and one hour, or 30 minutes a side, focusing on relief.

    "Microsoft believes the Court may wish to allow additional time for further responses to questions in view of the hearing en banc and for each side to sum up," the brief states. "The United States and state plaintiffs do not believe additional time is necessary."

    While Microsoft aggressively attacked how U.S. District Judge Thomas Penfield Jackson conducted the trial and comments he made following the case's conclusion, both sides agreed not to raise these as issues during oral arguments.

    Jeffrey Minear and John Roberts from the Solicitor Generals office will represent the government on liability, and David Frederick on relief. Richard Urowsky, from New York-based Sullivan Cromwell, will present most of Microsoft's oral argument, with Steven Holley handling relief.

    The U.S. Court ofSpecial coverage: Breakup Appeals for the District of Columbia Circuit is overseeing the case. At issue is Jackson's June 2000 order that Microsoft be broken into separate operating systems and software applications companies. In April of last year, Jackson determined Microsoft had violated U.S. antitrust law.

    The Justice Department and 19 states brought the case in May 1998, alleging that Microsoft had illegally maintained a monopoly in operating systems for Intel-based PCs and had attempted to unlawfully extend that monopoly into Web browsers.

    In briefs filed in November and January, the companies staked out their positions on the case. Microsoft attacked Jackson--how he handled the case, his application of the law to the facts, and comments Jackson made after the case--to infer bias. The government, in turn, defended the judge, arguing that he had correctly interpreted Microsoft's business practices under antitrust law and applied the appropriate remedy.

    In a reply brief filed Monday, Microsoft focused on the tying claim and continued its assault on Jackson's credibility.

    Bill Kovacic, an antitrust professor with the George Washington University School of Law, said he "would not be surprised to see a ruling from the Court of Appeals by April or May."

    Once the appeals court issues its decision, the Justice Department will have to decide how next to handle the case. With the new presidency, the government's position is uncertain. Many legal experts believe a Justice Department led by John Ashcroft might not file an appeal to the Supreme Court should much of the government's case be overturned, as expected.

    "The Justice Depart could conceivably back away from an appeal," Kovacic said. But he doesn't expect the Bush Administration to intervene before the Court of Appeals has its say.