Judge faces options after Lessig ruling

Following a ruling yesterday by a federal appeals court, the most likely response by the judge handling the antitrust dispute between the Justice Department and Microsoft will be to lay low, though that's not his only option, legal observers say.

As reported yesterday, the U.S. Court of Appeals for the District of Columbia granted Microsoft's motion to immediately suspend the appointment of a computer and Internet law expert directed to collect technical evidence and recommend legal and factual findings. The stay will be in effect pending a more thorough review by the appellate court of the "special master" appointment, which Microsoft contends violates established law in a number of ways.

The one-page ruling does not specify the basis for granting Microsoft's request.

U.S. District Judge Thomas Penfield Jackson appointed visiting Harvard Law School professor Lawrence Lessig in December after ruling that it was not immediately clear that Microsoft was violating terms of a contested 1995 consent decree.

•  Appeal pending on the appointment of a special master to advise the lower court in the antitrust case. A hearing is scheduled for April 21. •  Appeal pending on Judge Jackson's preliminary injuction that prohibits required bundling of Internet browsing software with Windows 95. A hearing is scheduled for April 21. •  Microsoft had appealed contempt-of-court charges by the Justice Department but reached a settlement that was announced January 22.

Because the interpretation of the antitrust settlement centered on a number of highly technical issues surrounding software, Jackson looked to Lessig for guidance.

Following yesterday's decision, however, Jackson will have to make other plans, at least until after an April 21 hearing where the two sides will argue the matter. While Jackson has a number of options, legal observers say the judge is most likely to take little or no action in the case until after the appeals court rules definitively on the special master and another pivotal issue that is also on appeal.

"The government has gotten the relief it has sought," said Harvey Goldschmid, a professor specializing in antitrust law at Columbia University. "At this point, there's not much before him [Jackson], so my sense is that everyone is going to sit and wait to see if his basic rulings are going to be sustained."

In addition to the challenge to the special master, the appeals court is also reviewing a preliminary injunction requiring Microsoft to separate its Internet browser from its operating system products. While the latter appeal is pending, however, it remains in place.

James Pooley, a high-tech litigator at Fish & Richardson, agreed there is probably no real motivation for anyone to do anything other than wait for the appeals court to rule. Pointing to the language of yesterday's order, however, he added that there are at least two other options available to Jackson.

For instance, the judge could withdraw his appointment of Lessig altogether and sift though technical evidence himself. Or he could withdraw the appointment and designate a new special master with more limited powers. No matter what the judge decides to do, Pooley said one thing is inevitable: The legal battle will not be over soon.

"The scenarios mostly point to delay in the ultimate resolution of the case," Pooley said. "Even if he [Jackson] gives up the special master route, there's going to necessarily be a later and more complicated trial than if he was acting on a special master's report."

In the end, there probably would be little to gain in taking a new course of action before the court of appeals takes up the matter, according to Morgan Chu, an attorney with Irell & Manella.

"Between now and April is not a lot of time to have really significant discovery," said Chu, whose regular clients include the likes of Intel. "If the [lower court proceedings] don't grind to a halt, there might be very limited discovery, but I don't think that there's any discovery that's going to change any of the key issues that are before the court of appeals."

On a related note, all three observers say yesterday's appeals court decision isn't likely to cause Jackson to tone down his periodic criticism of Microsoft. In a sternly worded order, for example, he denied an earlier request by Microsoft to revoke Lessig's appointment.

For one thing, the observers say, in its arguments to the appeals court, Microsoft downplayed its most controversial argument: that Lessig's past writings made him appear biased against the software giant. In denying Microsoft's request, Jackson had called the argument "trivial" and "defamatory."

On another point, being second-guessed comes with the job of being a district judge.

"Any experienced trial judge has quite a number of cases where the court of appeals has had a different point of view," Chu said. "When they get reversed on a particular issue, they will follow the direction of the court of appeals, but they will continue to call them as they see them."