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Supreme Court may decide soon on taking Microsoft case

The high court could decide as early as tomorrow whether to take the software giant's antitrust case directly, overstepping the normal appellate process.

The Supreme Court could decide as early as tomorrow whether to take the Microsoft antitrust case directly from a lower court rather than allow it to proceed through the normal appellate process.

The longer it takes to make that decision, legal experts say, the more likely the high court is to take the case directly.

The issue of jurisdiction is seen as pivotal in the case's outcome.

"Microsoft knows the Court of Appeals is a more favorable venue. That's why they want the case to go there" instead of directly to the Supreme Court, said Bob Lande, an antitrust professor at the University of Baltimore Law School.

Microsoft's federal and state opponents in the case requested that the Supreme Court hear the case directly.

The high court's nine justices meet today for the first time since June 30, when they embarked on their scheduled summer vacation, and Microsoft's antitrust case is expected to top today's agenda. The autumn session begins on Oct. 2.

"The longer they take--let's say this spills beyond next Monday--that's suggestive they are going to take the case," said Bill Kovacic, an antitrust professor at George Washington University School of Law. "That indicates there's some active debate and there's some significant factions in the court that want the case."

Kovacic said he expects a decision before Monday.

If the Supreme Court passes on the case, the U.S. Court of Appeals for the District of Columbia Circuit will hear it. In an unprecedented move, the appeals court in June offered to hear the case before the full panel of seven judges, instead of the customary three.

On June 7, U.S. District Judge Thomas Penfield Jackson ordered that Microsoft be broken into separate companies--one for operating systems, the other for software applications--after earlier determining that the company had violated U.S. antitrust law.

Eight days before the close of the high court's spring session, U.S. Solicitor General Seth Waxman, at the urging of the Justice Department and 19 states, asked the Supreme Court to accept the case on direct appeal.

The government invoked a 1974 revision of the Expediting Act, which directs skipping over the regional appeals court in favor of the Supreme Court in cases of national significance.

The government has asked the high court to take only two cases directly in 26 years. In an Aug. 22 legal brief, government attorneys laid out several reasons the case warrants direct appeal.

"The suit has Special coverage: Breakupimmense importance to our national economy," the brief stated. "It is especially important to the rapidly developing high-technology sectors."

For its part, Microsoft contends that mistakes made by Jackson at trial, the size of the court record--some 30,000 pages--and problems with the Expediting Act's application to the states' case indicate the need for appellate review.

The Supreme Court passed on two earlier opportunities to issue a decision, Aug. 28 and on Sept. 8.

This is telling about where the court could go with the case, said Andy Gavil, an antitrust professor at Howard University Law School.

"I think that, without question, the longer the court takes to reach a decision, the more likely it will take the case," he said.

Lande, at the University of Baltimore, supports that view. "I think there is now almost a 100-percent chance the Supreme Court will take the case," he said.

That is not the consensus, however. Kovacic, who has been handicapping the case with other lawyers involved in Supreme Court practices, has found few who think the direct appeal will be accepted.

Still, he said, "It's too close to call."

When the high court issues its decision, there is likely to be no fanfare, no explanation and none of the media theatrics that have dominated the landmark antitrust trial. The Supreme Court will likely do no more than release a one- or two-sentence statement, Kovacic said.

Even if the Supreme Court accepts the direct appeal, the Justice Department cannot expect an easy victory, Kovacic said.

"It will remain a difficult battle for the government to preserve everything they've got," he said. "I think Judge Jackson so badly handled the remedy phase of the case that the remedy package will be remanded to the District Court for further proceedings. That will get sent back no matter what."

Many legal experts have said Jackson handled the antitrust case from the start with diligence and finesse but stumbled in the end. His decision to end the remedy portion of the case in 60 days rather than grant Microsoft's request for more time is viewed as a vulnerability.

Meanwhile, Joel Klein, head of the government's antitrust division, said last week he would leave his post at the end of the month. Klein had been the driving force behind the antitrust case but more recently has taken a secondary position. If the Supreme Court agrees to take the case, Waxman would make arguments before the justices.