Government faces fresh challenges in Microsoft appeal

The strange twist of events comes as the government on Friday prepares to file its principal brief in Microsoft's antitrust appeal. Legal experts predict the filing will offer little new material.

"The surprise would be if there were any surprises," said Emmett Stanton, an antitrust attorney with Fenwick & West in Palo Alto, Calif.

But antitrust lawyers and academics agree the government's position is greatly weakened, if for no other reason than out-of-courtroom comments made by the trial judge, U.S. District Judge Thomas Penfield Jackson.

In fact, two books released this month focus on the case. The first, from author and commentator Ken Auletta, was excerpted in the Jan. 8 issue of The New Yorker. Auletta offered startling commentary from Jackson, who lambasted the appeals court hearing the case as freely as he did Microsoft and Chairman Bill Gates.

Regarding an earlier Microsoft case, in which the Court of Appeals overturned a Jackson decision, the judge said the appellate court "made up about 90 percent of the facts on their own."

Comments like this can only hurt the government's case, Stanton said.

Analysts already have predicted that the appeals court would remove Jackson should any portion of the case return to the District Court. But more recent Jackson revelations cast a shadow over how the appellate court may handle Jackson's principal documents in the case, the "Findings of Fact" and "Conclusions of Law," as well as his June 2000 order that Microsoft be broken into separate operating systems and software applications companies.

"I think the Court of Appeals will look less deferentially at arguments Judge Jackson made in the case," said Bill Kovacic, an antitrust professor at the George Washington University School of Law. "Further, I think that it ensures that they will remand the entire proceeding on remedies."

Hillard Sterling, an antitrust attorney with Gordon & Glickson in Chicago, agreed that Jackson has greatly weakened the government's position as the case proceeds.

"Judge Jackson hasn't helped his cause with his arguably inappropriate comments," Sterling said. "Judge Jackson has shown exactly what trial judges should not do to preserve their decisions."

The amount of interviews and comments emerging from Jackson "is practically a PR campaign," Stanton quipped.

Poor judgment
Jackson's questionable post-trial actions have put the government in a compromising position, from which it will be difficult to emerge unscathed, analysts say.

That is something government plaintiffs--the U.S. Justice Department and 19 states--will have to deal with in their legal brief. Most of the document will repeat positions the government has stated before.

"The basic substantive arguments the government is relying on have been displayed already, in the proceeding before Judge Jackson on the conclusions of law and the effort to expedite the appeal to the Supreme Court," Kovacic said.

But the government is now in the difficult position of convincing the panel of seven appellate judges that Jackson's post-trial comments should not affect how they treat his handling of the case.

Kovacic warned that will not be easy. He predicted the government would portray Jackson's position in the courtroom the same as it is now, just stated "in more flamboyant terms. You will see an invitation to the court to ignore the pyrotechnics and focus on the substance of what he said earlier."

But with further comments coming from the jurist, "It is impossible to eliminate the aura of imprudence that with every other utterance Judge Jackson magnifies," Kovacic added.

The government's problem is multifaceted. Jackson's findings of fact--essentially his distillation of what was true in the case--normally would receive little scrutiny from the appellate court. But his recent comments, some of which were pointed at the Court of Appeals, put some of that document's "facts" in jeopardy.

"Judge Jackson's comments will compel the appellate judges to look more carefully at the factual underpinnings than they normally would," Sterling said.

Regardless of whether the appellate court lets stand Jackson's findings, it is likely to differ with his application of antitrust law, Kovacic and Sterling said.

"Even if the appellate judges defer on the facts, they have galaxies of room to reverse on the law," Sterling said.

In its brief, the government is expected to vehemently defend Jackson's application of the law, particularly among the case's weakest claims, such as the assertion that Microsoft illegally tied Internet Explorer to the Windows operating system.

One area where the government is likely to prevail is Microsoft's assertion that Jackson was biased from the onset and his ruling should be vacated.

"It's quite a leap to say that the judge's comments after the trial--after he heard the evidence, after he saw the witnesses--is evidence he was biased before he got the case," Stanton said.

Bob Lande, an antitrust professor with the University of Baltimore Law School, agreed. "It's doubtful Microsoft can convince the Court of Appeals to throw out everything."

In fact, Stanton noted that Microsoft's attack on Jackson is somewhat limited. The judge also is overseeing a discrimination suit filed by former Microsoft employees.

"Has Microsoft tried to get him thrown off their employee discrimination case?" he asked. "I doubt it. I don't think they see him as pathologically opposed to Microsoft as a corporation."

Plaintiffs divided
One other issue overshadowing the case is change of leadership in Washington. While the incoming Bush administration is not expected to actively interfere in the case--giving the appeals court first shot--that hasn't stopped speculation about a softening position toward Microsoft.

That has compelled some of the 19 states to reaffirm their commitment to see the case through, even if the Justice Department later withdraws.

While Sterling believes there will be little change in the Justice Department's position, he expects some posturing on the part of the states in the government's filing.

"We may see stronger statements by the states, to make it more difficult for the incoming administration to retreat from its hard-line positions," he said. "This brief, therefore, may be more strongly worded than the plaintiffs' prior filing."

Uncertainty about the Justice Department's long-term commitment could create division the government cannot afford, Sterling said.

"It would be almost suicide for the plaintiffs during this briefing process, so the states will probably succeed in harshening the tone of their filing," he said. "They want to make it as tough as possible for Bush's appointee to backtrack."

The next step in the trial will be Feb. 26 and 27 oral arguments before the Court of Appeals. David Frederick and Jeffrey Minear from the Solicitor Generals office will present for the government and Richard Urowsky from New York-based Sullivan & Cromwell for Microsoft.