Jackson in the hot seat in Microsoft appeal

The appeals court hearing Microsoft's antitrust appeal gives company something it didn't ask for--another crack at U.S. District Judge Thomas Penfield Jackson.

4 min read
WASHINGTON--The appeals court hearing Microsoft's antitrust appeal gave the company something it didn't ask for--another crack at U.S. District Judge Thomas Penfield Jackson.

In a scheduling order issued Tuesday afternoon, the Court of Appeals included time during oral arguments to address Jackson's courtroom procedures and post-trial comments. Neither side--Microsoft or the Justice Department and 19 states--had requested time to discuss Jackson in their legal brief filed Friday.

Andy Gavil, an antitrust professor at Howard University Law School, said the appeals court's action indicates Microsoft's attack on Jackson resonated with some of the jurists.

"If you look at the wording of the order, it's conduct of trial and extrajudical statements," he said. "Based on the briefs, there must be one or more judges on the panel that has some questions they want answered."

George Washington University School of Law professor Bill Kovacic believes the court's action puts the government's case in a sticky position.

"This indicates they regard this as a very serious and troubling matter," he said. "This is a very awkward topic to discuss in an open courtroom. For the court to be willing to undertake that somewhat awkward and embarrassing inquiry reflects their sense that it is a very serious issue."

In briefs filed during its appeal, Microsoft relentlessly attacked Jackson's credibility, using statements he made following the trial's close to question his credibility and handling of the case and to infer bias.

"More time on Jackson means the Court of Appeals is really concerned about everything Jackson did during the trial," said Bob Lande, an antitrust professor with University of Baltimore Law School.

Legal experts already Special coverage: Breakup had warned that Jackson's ongoing comments about the case--some of which were leveled at the Court of Appeals--had undermined the government's victory. They also warned that no matter what the outcome of the appeal, Jackson would likely be removed from the case should any portion be sent back to the District Court.

"We look forward to presenting all of our arguments to the Court of Appeals on all the issues of our appeal," Microsoft spokesperson Jim Cullinan said Tuesday.

The U.S. Court of Appeals for the District Columbia Circuit will hear oral arguments in the case on Feb. 26 and 27. Besides adding 30 minutes per side to address Jackson, the court significantly bumped up the time allotment in other areas.

Microsoft and the government had asked for 45 minutes per side to discuss monopoly maintenance, which the court increased to 75 minutes each. The Court of Appeals also bumped up the discussion of relief to 45 minutes from 30 minutes.

"Overall, it is not good for the government that the appeals court is going to entertain as much oral argument as they've indicated," Gavil said. "It suggests to me they have a lot of questions and it's going to take some significant time for the parties to work through them in response to the questions."

More questions mean a greater likelihood the Court of Appeals is concerned about key elements of the government's case, he added.

The extra time on relief could benefit the government, and that is surprising, Lande said.

"More time on relief would help the government and could indicate there must be a violation," he said. "Otherwise, why would you spend more time on relief?"

Many legal experts believe that regardless of the appeals court's decision on the case, the relief, or remedy, portion of the case will be remanded back to the District Court for review.

"Plain and simple, Jackson handled that portion of the case badly," Kovacic said. "So the Court of Appeals will certainly send the remedy package back for review."

In his remedy, Jackson ordered Microsoft to be broken into separate operating systems and software applications companies but stayed action pending appeal. He earlier ruled the company violated two sections of the 1890 Sherman Act.

The court is hearing the case en banc, or before the full panel of judges minus those recused for conflicts of interest. This is unusual and in some ways unprecedented, said Lande. Three judges typically hear appeals.

Seven judges will hear Microsoft's oral arguments: Harry Edwards, Douglas Ginsburg, Raymond Randolph, Judith Rogers, David Sentelle, David Tatel and Stephen Williams.

Jeffrey Minear and John Roberts from the Solicitor General's office will represent the government's oral argument on liability, and David Frederick will cover relief. Richard Urowsky, from New York-based Sullivan Cromwell, will present most of Microsoft's oral argument, with Steven Holley handling relief.

Legal experts expect a ruling from the appeals court sometime in April or May.