Microsoft blasts DOJ's aim at Supreme Court

WASHINGTON--Microsoft wasted no time countering a plan by government attorneys to quickly move the antitrust trial to the Supreme Court.

In a tersely worded brief today, Microsoft attacked the government, saying it was trying to sidestep the law so it could petition

Microsoft breakup

the Supreme Court to take the case directly. However, the government cannot make this request until Microsoft files its main appeal, which it has not done.

The Justice Department yesterday requested that U.S. District Judge Thomas Penfield Jackson withhold ruling on a Microsoft motion that would clear the way for Microsoft's filing an important preliminary appeal.

This week's battle of the briefs kicks off yet another drama in the landmark antitrust case, as both sides jockey to determine which court will hear a preliminary appeal and ultimately Microsoft's larger appeal.

"Plaintiffs now ask the court not merely to deny the stay motion, but to delay ruling on the motion for several more days," Microsoft lawyers wrote in the brief. "That request is not motivated by any concern that the court needs additional time to consider the stay motion; rather, plaintiffs see a tactical advantage to be gained from such delay."

The filing of the government's brief surprised many antitrust experts, who pointed out that the case is quickly becoming a battle of jurisdiction.

Microsoft would like to keep any appeal--preliminary or otherwise--here with the U.S. Court of Appeals for the District of Columbia Circuit, which twice before ruled in favor of the software company. The government would like to sidestep the local appeals court and, under the Expediting Act, take any appeal directly to the Supreme Court.

"Microsoft wants to move ahead quickly with the appellate phase of this case and believes that the appellate courts should stay the district court's judgment because it will cause significant and irreversible harm to consumers, the high-tech industry and our economy," said Microsoft spokesman Jim Cullinan. "We remain confident of our appeal and believe that either the appeals court or Supreme Court will reverse the judgment by the district court."

Microsoft has up to 60 days to file its larger appeal, but the stay request is its larger, immediate problem.

In about 84 days the Redmond, Wash.-based software giant faces stiff restrictions on its business practices unless it can get Jackson or an appellate court to stay any or all of the restrictions pending its larger appeal. Jackson is expected to refuse the motion, setting the preliminary appeal in motion.

"It looks like Microsoft is delaying filing the notice of appeal because both sides think that the filing strips Jackson and the district court of any authority for doing anything else in the case," said Lars Liebeler, an antitrust attorney with Thaler Liebeler Machado & Rasmussen here. This is because of the government's petition to take the case directly to the Supreme Court, he said.

"As soon as Jackson denies the stay, then they, Microsoft, control where the stay is next heard," Liebeler said. "Microsoft would then have the option of moving where they want to be, which is the court of appeals."

Microsoft's problem is that it can't go directly to the appeals court, which must wait for Jackson to refuse the stay motion before any preliminary appeal.

For its part, the government would like to control which court hears the stay motion and could conceivably try to get the Supreme Court to handle it as well as part of the larger appeal, Leiebler said.

If Jackson compels Microsoft to file its larger appeal first and then rules on the stay motion, the government essentially gains control of where any portion of the case goes next. With the clock ticking on the conduct restrictions, a major delay getting its preliminary appeal heard is a risk Microsoft cannot afford to take.

"Both sides are acting quite logically," said University of Baltimore Law School professor Bob Lande. "Microsoft wants to do every legal trick to get into the court of appeals, and the government is doing the same trying to get the case to the Supreme Court."

Jackson last week ordered that Microsoft be broken into separate operating system and software application companies, which he stayed pending the expected larger appeal. He determined Microsoft had violated two sections of the 1890 Sherman Act by illegally maintaining its operating system monopoly and trying to unlawfully extend that to Web browsers.

The Supreme Court would likely decide by early October whether to take the case directly, which is something it is not compelled to do. If so, the case could be over by next summer.

In Asia, Microsoft chairman Bill Gates said he expected the appeals process to take about 12 months, indicating that he may believe the case will go directly to the Supreme Court.