Microsoft Corp. and the U.S. Department of Justice (DOJ) late Friday announced their selections of the attorneys who will represent them in the upcoming appeal of the breakup order issued last year against the software vendor, with Microsoft saying it plans to rely on a lawyer named Richard Urowsky who successfully represented it in earlier appeals.
Urowsky was a key legal strategist for the company during the antitrust trial conducted by U.S. District Court Judge Thomas Penfield Jackson and attended the proceedings on an almost daily basis. By contrast, the government said it will use two attorneys from the Office of the Solicitor General, David Frederick and Jeffrey Minear, who may not have attended any of the more than 70-plus days of the trial and who have had limited involvement in the case since it was filed in 1998.
So who will have the advantage when the two sides meet before the U.S. District Court of Appeals in Washington next month to argue over the appeal that Microsoft filed in late November? Legal analysts today said Urowsky’s deep familiarity with the case may give him an edge in answering any factual questions, but they added that the attorneys who work in the Office of Solicitor General are experts at arguing appeals.
The Solicitor General handles all appellate arguments for the government and is involved in about two-thirds of the cases that the U.S. Supreme Court decides in a typical year, analysts pointed out. And in an appeal, they said, it’s often the legal theories that are debated more so than the facts of the specific case at hand.
The potential advantages and disadvantages that the two sides hold “balance out quite easily,” said Joe Sims, a former DOJ antitrust official who now works as a lawyer at the law firm of Jones Day Reavis & Pogue in Washington.
The earlier lack of involvement in the antitrust case on the part of Frederick and Minear is “a bit of disadvantage,” said Stephen D. Houck, former lead trial counsel for the 19 states that are involved in the case against Microsoft along with the DOJ. On other hand, the government attorneys may bring more appellate experience to the case, added Houck, who is now an attorney at Reboul, MacMurray, Hewitt, Maynard & Kristol in New York.
Microsoft is appealing a decision issued last June by Jackson, who ruled that the software vendor broke antitrust laws and ordered that it be split into two separate companies — one for its operating systems, the other for the rest of its products.
The case is currently being heard by the appeals court after the U.S. Supreme Court rejected a request by the government that it take on the matter directly. The DOJ’s written legal brief responding to Microsoft’s appeal is due to the court on Friday.
Ed Black, who heads the Computer & Communications Industry Association (CCIA), a Washington-based trade group that supports the government’s efforts to break up Microsoft, said the use of the Solicitor General’s office represents “a good normal transition” as the case moves through the appeals process.
Although it’s possible that the incoming Bush administration could seek a less hard-line position on this case from the federal perspective, state officials have repeatedly indicated their desire to pursue the matter, and Houck and Black said they wouldn’t expect the states to retreat from that promise otherwise.