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Microsoft argues for lower-court appeal hearing

In a legal brief, the software giant says the Supreme Court should allow a lower court to hear an appeal in the company's landmark antitrust case.

WASHINGTON--Microsoft, in a legal brief today, said that the Supreme Court should allow a lower court to hear an appeal in the company's landmark antitrust case.

The filing is Special coverage: Breakupthe latest move by the software giant in its fight to avoid being split into two or more companies. U.S. District Judge Thomas Penfield Jackson in June found Microsoft had used illegal and unfair tactics against rivals to sustain monopoly power for its Windows operating system, used in most personal computers, and ordered the company broken up.

The Justice Department and 19 states last month asked that the high court review the appeal directly, skipping over the U.S. Court of Appeals for the District of Columbia Circuit.

But Microsoft today argued that the law allowing this action, the Expediting Act, does not cover the states' portion of the case. The DOJ and states had filed separate cases that Jackson treated as one.

Microsoft also argued that there are too many factual errors in the court proceeding and it should be reviewed by the Court of Appeals rather than the Supreme Court.

"We believe our brief makes a compelling case for having the Supreme Court remand this case to the Court of Appeals for an initial review," Microsoft spokesman Jim Cullinan said. "The Supreme Court will benefit from having the Court of Appeals provide an initial review of the large and complex record in this case, in order to clear the factual underbrush of this appeal."

Redmond, Wash.-based Microsoft also attacked interviews Jackson gave to the press.

"It was reported that the district court, without notice to Microsoft, had been granting extrajudicial interviews to members of the press for nine months, i.e., since before entering its findings of fact," Microsoft lawyers wrote.

In the brief, Microsoft contends Jackson's "blunt comments to the press raise serious questions about (his) impartiality."

Microsoft argued that this warrants a reversal of Jackson's judgment and the case being handed to a new judge.

But Howard University Law School professor Andy Gavil said Jackson's giving press interviews "is totally irrelevant to whether or not the Supreme Court should take the case."

Legal experts concede that Microsoft's argument that the Expediting Act does not apply to the state portion of the case is a good one, but it may not be enough to sway the Supreme Court.

The 1976 law allowing states to join federal antitrust cases came into effect after the Expediting Act's 1974 revision. For that reason, there is some question about its application to the states' case, Gavil said.

"I'm not sure making a big deal out of the fact there's a lack of clarity in the Expediting Act about whether or not the state case could be consolidated is here or there for them in terms of whether or not the court should take the case," he explained.

Microsoft also argued that the case is not of enough national significance to warrant direct appeal to the Supreme Court.

Before the Expediting Act was revised in 1974, it was routinely used to skip the appellate level and take cases directly to the Supreme Court. Now the law is used only for cases of compelling national significance, which the government has argued applies to Microsoft's appeal.

"If not this case, then what case?" Gavil asked. "If the Expediting Act is to have any meaning at all, if a case of great public importance is defined by the court as anything, how could this case not meet that definition?"

Microsoft's argument of factual errors did not strike antitrust experts as compelling.

"The potshots at the supposed errors by Judge Jackson are just that. They're not going to be very compelling to the Supreme Court," said Rich Gray, an intellectual property attorney with Outside General Counsel Silicon Valley in Menlo Park, Calif.

Among the long list of errors cited by Microsoft: Jackson starting the trial only five months after the government filed the case; his dismissing state copyright counterclaims; and his accepting claims that Microsoft conspired in a 1995 meeting with Netscape to divvy up the Web browser market.

"Microsoft is arguing, 'There are all kinds of errors, and we would do better to have the Court of Appeals look through those things and clean it up a little bit.' When wouldn't that be true?" Gavil said.

But the argument that could stick and compel the High Court to pass on the case is the enormous court record of more than 30,000 pages.

"I think the references to the very voluminous factual record will resonate the Supreme Court they should be happy to have the Court of Appeals sift through it," Gray said. "It's a huge record, and that's not what the Supreme Court wants to deal with."

Bill Kovacic, a professor at the George Washington University School of Law, believes the record is large enough "that if the Supreme Court takes this case, it may not be able to hear any others this session."

The government will file a rebuttal brief Aug. 15, in which it is expected to argue that the case is of enough national significance to warrant the direct appeal. Microsoft has the option of responding Aug. 22.

The Supreme Court is expected to rule on jurisdiction by early October. If it chooses to take the case directly, a ruling is expected by next June. Otherwise the case goes back to the Court of Appeals, which could rule as early as nine months later.

Microsoft's outside legal counsel, New York-based Sullivan & Cromwell, wrote the brief, with help from Carter Philips of Sidley & Austin and Rick Rule of Covington & Burling here.