U.S. District Judge Thomas Penfield Jackson issued an order asking the government to respond to a court brief filed yesterday by Microsoft.
In a conference call with Jackson this morning, government lawyers requested an opportunity to respond to Microsoft's filing, which proposed substantive changes to the government's remedy plan submitted last Friday.
Justice Department lead attorney David Boies apparently told Jackson that Microsoft had made a number of good points, said a source familiar with the conference call. But the government also is apparently concerned with many of Microsoft's proposed changes.
"I would be surprised if (the government) just sat silently and let it be," said George Washington University School of Law professor Bill Kovacic. "There are some purely housekeeping details Microsoft points to and some other matters that raise substantive concerns."
Jackson ordered the Justice Department (DOJ) and 19 states to "file their response to Microsoft's specific comments as to the form of their revised proposed final judgement," by Monday morning. Microsoft has the option of responding by Wednesday morning.
"We believed it was appropriate to request a short opportunity to comment on Microsoft's specific suggested changes, both to determine whether there are a few we can accept without undermining our proposed remedy and also to offer our reasons for urging rejection of the others by the court," said Justice Department spokesperson Gina Talamona.
"The government has asked for more time to correct some of the enormous problems pointed out in our filing yesterday," said Microsoft spokesperson Jim Cullinan. "The government-induced delay does not change the fact that the government's plan is excessive and harmful to consumers and the industry."
Cullinan said the delay "underscores the fact the government's proposal was poorly thought out from the start. It is very telling the government has had to acknowledge the first two versions of their plan were poorly crafted, and this new delay should raise serious questions about the government's plan and the entire process in this case."
Until yesterday's filing, Jackson had been expected to issue his final judgement in the case as early as today. The new briefs mean his final ruling will be delayed at least another week.
Two months ago, Jackson determined that Microsoft had illegally maintained its operating system monopoly and unlawfully tried to extend that into the Web browser market.
The government later responded by proposing Microsoft be broken into two companies--one responsible for operating systems and the other for software and Internet applications--a plan Microsoft rejected as excessive and unwarranted based on the court record.
Microsoft's brief yesterday was supposed to have been its last chance to respond to the government's remedy plan. Microsoft had proposed a number of clarifications to the government's plan as well as some serious changes, such as modifying certain time elements.
"Microsoft made some points that concerned the government, said University of Baltimore Law School professor Bob Lande. "It does not mean it thinks they're valid. They think Judge Jackson will take it seriously and adopt some of these proposed changes, and they want to explain to the judge why Microsoft is trying to pull the wool over his eyes."
Among the most serious changes, Microsoft wants 12 months instead of four to present the government with a detailed plan for breakup. While the government would like the company split in two, it has left many of the finer details to Microsoft.
"The government's request that the plan be filed within four months is a shrewd move," said Kovacic. "What they're expecting in part is that by forcing Microsoft to reveal a plan, it makes the prospect of reorganizing them more real and more feasible."
The government is expected to address many of Microsoft's other concerns, such as time needed for restructuring overseas, stock issues and vagaries in the government's proposal the software giant believes will give competitors free access to Windows and Office source code.
"What happened yesterday is Microsoft finally is taking the remedy issue seriously, and now Jackson and Boies are taking Microsoft's 42-pages of comment seriously," Lande said. "For the first time, Microsoft is no longer in denial, and the inevitable outcome, at least in part, might go against it."