Government rips Microsoft's appeal schedule

In a scathing reply, the government tears into the software giant's proposed schedule for hearing its antitrust appeal.

4 min read
WASHINGTON--In a scathing reply, the government today tore into Microsoft's proposed schedule for hearing its antitrust appeal.

One day after Microsoft filed its proposed schedule--and two days before the government's deadline to respond--government lawyers filed their reply with the court of appeals.

The government said Microsoft's proposal "is excessive and would delay resolution of this appeal unnecessarily."

Microsoft and the government--the Justice Department and 19 states--are squabbling over a schedule for the software maker's appeal, which the U.S. Court of Appeals for the District of Columbia Circuit will hear. The Supreme Court sent the case back to the lower court last week, after rejecting a government request for direct appeal.

Microsoft had asked that each side be given 60 days to file primary briefs and another 30 days for additional briefs. The software maker also asked for oral arguments after the legal filings, with each side getting 90 minutes.

But that schedule would mean the appeals court could not begin deliberating on the case any sooner than six months.

Microsoft's proposal also far exceeds what would be considered standard procedure with the appeals court, say legal experts.

"The normal statutory period would be 40, 30 and 15 days," said Andy Gavil, an antitrust professor at Howard University Law School. "That's what's normal under the federal rules of appellate procedure."

Given the urgency Special coverage: Breakup of the case, the government would like to move things much faster. "We believe that a Nov. 1 due date (36 days after the remand) provides ample time for Microsoft to complete and file its opening brief," wrote government attorneys.

The government made this position clear during discussions with Microsoft last week, the brief states.

The government would then have 38 days to respond to Microsoft's primary brief, with the filing due on Dec. 8. Microsoft would then get two weeks for its response, due on Dec. 22.

"To be consistent?they really have to say everything needs to be on a faster track," Gavil said. "It doesn't surprise me that the government would be closer to a normal briefing schedule."

"My hunch is the government's timetables are more likely to be endorsed than Microsoft's," said Bill Kovacic, an antitrust professor at the George Washington University School of Law. "A briefing schedule that brings things to a close at the end of this calendar year or in January 2001 is more likely to be endorsed."

The government also faulted Microsoft's request for boosting the size of the legal briefs to 56,000 words from 14,000 for the main filings and to 28,000 from 7,000 for the other documents.

"There is no justification for this request," wrote government lawyers. "This is an appeal, not a retrial." Microsoft's 56,000 words would be about 200 pages of non-proportionally spaced type, the brief notes.

Gavil said Microsoft's proposed length for briefs "was really at the outer limits for what you could reasonably ask for. Accepting a factor of four would be a really extraordinary move by the court. I wouldn't expect they would accept that."

The government was harsher: "The excessively long briefs Microsoft seeks to file would burden the court and inevitably delay deposition of the appeal."

Under the government's proposal, principal briefs would be 24,000 words, with the states filing an additional 7,000-word document. Reply briefs would be the normal 7,000 words.

"Instead of 30-page briefs, they're saying 50-page briefs, which would be the norm of what you're allowed in the Supreme Court," Gavil said.

"Microsoft's appeal will raise a broad number of legal, factual and procedural issues," said Microsoft spokesperson Vivek Varma. "We have suggested a schedule and briefing length that will allow for a prompt and efficient process to consider the appeal. We are confident of our case on appeal and look forward to the court of appeals instruction on the schedule and length of briefs."

The government asked that in setting a briefing schedule, the appeals court allot more time if the briefs are longer and to take in account Thanksgiving and Christmas holidays.

Microsoft has until Oct. 10 to respond to the government's brief, but legal experts expect to see the document sooner. If so, the appeals court could set the briefing schedule as early as next week.

Gavil and Kovacic both expect all briefs to be filed by no later than January of next year.

"If the court of appeals sets oral arguments for a month afterwards--that would mean, say, early February--I would expect the court issuing a decision in April or early May," Kovacic said.

The case would then likely be resubmitted to the Supreme Court, which is not expected to reach a final decision on the case until 2002.

At issue is U.S. District Judge Thomas Penfield Jackson's order that Microsoft be broken into separate operating systems and software applications companies. Earlier he determined that Microsoft had violated two sections of the 1890 Sherman Act