Microsoft calls antitrust case too messy for Supreme Court

Washington -- Microsoft Corp. today urged the U.S. Supreme Court to let the lower U.S. Court of Appeals do the heavy-duty work of clearing the "underbrush" of messy issues in the antitrust case against the software vendor, instead of directly hearing the company's appeal of the breakup order issued last month.

The Supreme Court must decide -- perhaps when its next session begins in October -- whether to take the high-profile appeal or send the case to the appeals court for an initial review. U.S. District Court Judge Thomas Penfield Jackson, who presided over the antitrust trial and ruled that Microsoft be split into two separate companies, last month granted a government request that Microsoft's appeal go directly to the Supreme Court.

But Microsoft opposes the effort to bypass the appeals court, which gave the company a key legal victory in an earlier ruling two years ago. In a statement announcing the filing of today's brief, Microsoft argued that the Supreme Court "would benefit from allowing the normal appellate process to move ahead with an initial review" by the appeals court.

The company's appeal will cite "a vast array of procedural, factual and legal errors committed by the District Court, which makes this case more suitable for the Appeals Court to clear the factual and procedural underbrush of this appeal," said Microsoft spokesman Jim Cullinan.

Indeed, Microsoft's central argument today was that the appeal is too messy for the Supreme Court, which usually takes on cases with one or two big legal issues that need an authoritative resolution. "The sheer number of issues raised by Microsoft's appeal makes this case completely unsuitable for direct appeal [to the Supreme Court]," the filing said.

Microsoft claimed the antitrust case has "a morass of procedural and substantive issues that can be resolved only through a painstaking review of a lengthy and technologically complex trial record" -- the kind of thing that appeals courts usually handle.

"Whatever time, if any, might be saved by immediate review [by the Supreme Court] is outweighed by the benefits . . . of ensuring comprehensive and careful review of the decision" at the appellate court level, the company added.

Hillard Sterling, a lawyer at Gordon & Glickson LLP in Chicago, agreed with Microsoft's argument. "This case has a complex tangle of issues that should be distilled by the D.C. Court of Appeals," Sterling said. For the Supreme Court, the case would be a "house of horrors" if it skips the normal appellate review, he added.

Washington antitrust attorney Joe Sims said it's hard to predict exactly what the Supreme Court will do because there's no precedent that can easily be applied. But he added that he doubts the justices will agree to hear the case without first sending it to the appeals court, which could clarify the issues that the high court needs to consider.

The Supreme Court justices "want a docket that is limited, focused and narrow," Sims said. "They've been reducing their caseload for years." In addition, he noted, they like to have cases with a reasonably clear set of facts that have been sorted out by a lower-level appellate court.

The Washington-based appeals court already has said it's willing to hear Microsoft's appeal expeditiously with a seven-judge panel instead of the usual group of three judges. That means the appeal would likely be decided more quickly than normal because neither Microsoft nor the government would be able to seek a rehearing by the full appeals court (see story).

The appeals court previously ruled that the courts shouldn't interfere in Microsoft's efforts to bundle other features, such as its Web browser, into Windows if there's a discernible customer benefit. But Jackson disagreed and ruled that the bundling amounted to illegal "tying" of the browser to the operating system.

Microsoft clearly hopes the Court of Appeals will again overrule Jackson on that point. The appeals court "has already spoken on a central issue in the case -- the standard applicable to claims of technological tying -- and should be given first opportunity to review the district court's decision on that issue," Microsoft said in today's brief.

But the U.S. Department of Justice (DOJ) and 19 states involved in the case have argued that the case should go directly to the Supreme Court in hopes of getting a speedier resolution since the bitter fight between the government and Microsoft inevitably will end up before the high court in any event. In doing so, the government used a procedure under the Expediting Act of 1974 that allows for fast-track reviews of high-profile antitrust cases by the Supreme Court.

The DOJ is scheduled to reply to today's filing by Microsoft on Aug. 15, according to a schedule agreed to by the two sides last month. The company would then have until Aug. 22 to respond to the government's expected argument that a direct review by the Supreme Court is imperative despite the claims made today by Microsoft.

After a two-year trial, Jackson ruled that Microsoft abused its monopoly position in the Windows market to harm competitors. The judge ordered that Microsoft be split into two separate companies -- one for its operating systems, the other for the rest of its software products (see story).

Jackson also imposed a series of restrictions on Microsoft's business conduct as part of his ruling. But -- much to the government's disappointment -- the judge later agreed to put all of the remedies against the company on hold until the appeals process runs its course .

Copyright © 2000 IDG Communications, Inc.

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