Microsoft Slams Judge In Antitrust Case

Vendor wants Jackson disqualified, but judge may oversee breakup if appeal fails


Microsoft Corp. made a request of the U.S. Court of Appeals last week to reverse the decision that the company violated antitrust law and, failing that, to assure that trial Judge Thomas Penfield Jackson would have nothing more to do with the case.

Microsoft may still have reason to fear Jackson, who could oversee the company's breakup if its appeal fails.

In its 150-page brief, Microsoft said the antitrust trial "was infected with error" and accused the judge of running a "highly unusual and prejudicial" trial and violating judicial codes of conduct by speaking publicly about the case.

Microsoft said it wants Jackson disqualified from any further proceedings.

But Jackson may still shape the final chapter. If Microsoft doesn't win on appeal, he could supervise his plan to separate Microsoft's operating system unit from the rest of its business - or some lesser remedy sought by the appeals court, said legal experts.

If the breakup is imposed, the details will be worked out by the two parties. But Jackson "would become effectively the manager, while [the] parties develop a breakup proposal," said Herb Hovenkamp, a law professor at the University of Iowa in Iowa City and an antitrust expert.

Since the trial ended in June, Jackson has been outspoken about the case, defending his decision while also acknowledging that his rulings may be "vulnerable on appeal." He has also acknowledged his lack of expertise in forming a remedy.

Legal experts said they aren't certain how these comments will affect the appeals court judges.

Judging the Judge

"[Jackson's] comments create a lens through which the Court of Appeals will look at what he has done," said William Kovacic, a visiting professor of antitrust law at The George Washington University in Washington.

"You want a careful judicial craftsman, exercising cautious, sensible judgments," said Kovacic.

"His comments bespeak a lack of good judgment and an inclination to use very crude rules of thumb in deciding key issues in the case," he added.

But Hovenkamp said he doubts the appeals court will give much weight to Jackson's out-of-court comments. "They are not materially different from the things that the judge said during the course of the trial," Hovenkamp said.

The U.S. Department of Justice, along with the state governments that joined the agency in the case against Microsoft, will respond Jan. 12.

DOJ spokeswoman Gina Talamona last week said Jackson's judgment "is well supported by the evidence offered during a 78-day trial, including thousands of pages of Microsoft's own documents."

Microsoft, in its brief, said it broke no law.

"Microsoft did not engage in anticompetitive conduct," the company wrote in its appeal. "To the contrary, Microsoft's conduct - improving its platform and broadly distributing those improvements - was procompetitive. It also made perfect business sense."

Copyright © 2000 IDG Communications, Inc.

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