DOJ asks U.S. Supreme Court to reject MS appeal

The U.S. government Friday urged the Supreme Court to reject Microsoft Corp.’s bid to review its antitrust case.

Microsoft asked the Supreme Court to review an appeals court ruling earlier this month after that court upheld that Microsoft was operating as an illegal monopoly with its grip on the desktop operating system. Specifically, the Redmond, Washington software maker asked the court to overturn earlier rulings against it due to inappropriate comments trial court Judge Thomas Penfield Jackson made in the press while hearing the case.

The U.S. Court of Appeals for the District of Columbia upheld parts of Jackson’s lower court ruling, but overturned a set of legal and structural remedies imposed on Microsoft, including the break-up of the company into two independent companies. The Appeals Court also admonished Jackson for speaking to the press about the case and ordered a new judge to hear the case.

Microsoft has said that the appellate judges should have thrown out all of the rulings against it due to Jackson’s talks with reporters, which made him appear biased.

The government responded to that claim again Friday, noting that the Appeals Court “discerned no actual bias on the part of the trial judge, but concluded that the appearance of partiality required, as a remedy for the violation, the judge’s disqualification.”

The Department of Justice, which is a plaintiff in the case along with 18 state attorneys general, further argued in the latest court document that Microsoft’s argument “rests squarely on a mischaracterization of the court of appeals’ [sic] ruling,” and said that the Appeals Court acted within its boundaries in its ruling.

It also warned that Microsoft has signaled that it may attempt to ask the Supreme Court to review other parts of the case, in addition to the judge’s conduct. The DOJ said that if the Supreme Court denies the current request, it could prevent Microsoft from filing other review requests. “Microsoft’s petition provides clear notice that granting certiorari now would likely lead to multiple … requests for review – precisely the result that this Court’s practice of denying interlocutory review is designed to avoid,” the DOJ wrote in its filing.

The government asked that the case not go to the high court and “should go on without further delay” at the trial level.

The case has since been returned to a trial court where a new judge will decide a new remedy to impose on Microsoft. That judge, Colleen Kollar-Kotelly, was named last week to head the case.

Kollar-Kotelly, this week, set a date for a status conference with representatives from Microsoft and the government scheduled for Sept. 21.

Microsoft, in Redmond, Wash., can be reached at The DOJ can be reached online at

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